The opinion of the court was delivered by: Hon. Jean P. RosenbluthUnited States Magistrate Judge
ORDER GOVERNING INADVERTENT DISCLOSURE AND THE PROTECTION OF CONFIDENTIAL DOCUMENTS AND MATERIALS
The scope of and procedures governing discovery in this case shall be as follows:
1. Inadvertent Disclosure of Privileged Materials:
(a) If information subject to a claim of attorney-client privilege, work-product immunity, or other privilege, doctrine, right, or immunity is nevertheless inadvertently or unintentionally produced, such production shall in no way prejudice or otherwise constitute a waiver or estoppel as to any such privilege, doctrine, right, or immunity.
(b) Any party or third-party disclosing or producing documents, information, or materials ("Producing Party") in connection with discovery in this case ("Discovery Material") that inadvertently produces information that it believes is protected by the attorney-client privilege, work-product immunity, or other privilege, doctrine, right, or immunity may obtain the return of that Discovery Material by promptly notifying the receiving party ("Receiving Party") upon learning of the inadvertent production. If a Receiving Party receives materials that bear a legend or other marking indicating that the materials are subject to an attorney-client privilege, work-product protection or other privilege or immunity that would otherwise attach to the document or information and where it is reasonably apparent that the materials were provided or made available through inadvertence, the Receiving Party must refrain from examining the materials any more than is essential to ascertain if the materials are privileged, and shall immediately notify the Producing Party in writing that it possesses material that appears to be privileged.
(c) Upon receiving notification under subsection 1(b) above, the Receiving Party shall gather and return to the Producing Party all copies of the Discovery Material identified as inadvertently produced, or destroy all copies and certify such to the Producing Party. Within five days after receiving the returned Discovery Material, the Producing Party shall provide a privilege log for those materials.
(d) Nothing in this Stipulation shall prevent the Receiving Party from challenging the propriety of the attorney-client privilege or work-product immunity or other applicable privilege or immunity designation (based on information independent of the content of the asserted privileged materials) before the Court. Unless and until the Court rules in favor of the Receiving Party on such challenge and grants use of the Discovery Material at issue, the Receiving Party shall not use or refer to the Discovery Material, including in deposition, any hearing, or in any filing unrelated to the challenge itself. Notwithstanding this provision, outside litigation counsel of record are not required to delete information that may reside on their respective firm's electronic back-up systems or a vendor's systems that are over-written in the normal course of business.
2. Protecting the Confidentiality of Documents and Materials:
In order to protect confidential information obtained from or disclosed by any Producing Party in connection with this case and pursuant to the Court's authority under Federal Rule of Civil Procedure 26(c) and Federal Rule of Evidence 502, Plaintiff and Defendant submit as follows:
(a) Purposes and Limitations:
(i) Disclosure and discovery activity in this case are likely to involve production of confidential, proprietary, or private information for which special protection from public disclosure and from use for any purpose other than prosecuting this litigation would be warranted. The unrestricted disclosure of such information would cause undue damage to the parties, third-parties, and their businesses. The parties acknowledge, as set forth in subsection 2(h) below, that this Order creates no entitlement to file confidential information under seal; Civil Local Rule 79-5 sets forth the procedures that must be followed, and reflects the standards that will be applied, when a party seeks permission from the Court to file material under seal.
(ii) Documents and other information produced in connection with this case shall be used solely for purposes of prosecuting, defending, or attempting to settle this case, whether such information is designated as Confidential Information or not, except as otherwise noted herein. The additional protections outlined in this Order, however, apply only to Confidential Information which has been appropriately designated as such.
(b) Nondisclosure of Confidential Information: Except as provided below or with the prior written consent of the Producing Party originally designating a document, discovery response, or deposition transcript as "Confidential," Confidential Information as defined herein may not be disclosed to any person. Nothing herein, however, shall be construed as restricting any party's ability to use its own Confidential Information.
(c) Designating Confidential Material:
(i) A Producing Party may designate as confidential (by stamping the document "Confidential" or as otherwise set forth herein) any document, response to discovery, or deposition transcript which that Producing Party considers in good faith to contain information involving trade secrets, confidential business or financial information subject to protection under California or federal law, or another applicable legal standard ("Confidential Information").
(ii) A Producing Party may designate information disclosed by it during a deposition or in response to written discovery as "Confidential" by so indicating in said responses or on the record at the deposition and requesting the preparation of a separate transcript of such material. Additionally, a Producing Party may designate in writing, within 21 days after receipt of (1) discovery responses or (2) the final deposition transcript for which a Confidential designation is proposed, that the discovery responses and/or transcript be treated as Confidential Information. Any other party or third-party may object to such proposal, in writing or on the record. Upon such objection, the parties shall follow the procedures described in subsection 2(e) below. Deposition transcripts shall be treated in their entirety as Confidential Information for 31 days after receipt of the final transcript. All parties shall affix the legend required by this subsection 2(c) on any deposition transcript designated Confidential at the deposition or by subsequent written notice.
(iii) If it comes to a Producing Party's attention that information or items that it designated for protection do not qualify for protection at all, the Producing Party must promptly notify all other parties that it is withdrawing the mistaken designation.
(iv) If timely corrected, an inadvertent failure to designate qualified information or items as Confidential Information does not, standing alone, waive the Producing Party's right to secure protection under this Order for such material. If material is appropriately designated as Confidential Information after the material was initially produced, the Receiving Party, on timely notification of the designation, must make reasonable efforts to assure that the material is treated in accordance with the provisions of this Order.
(d) Permissible Disclosures: (i) Confidential Information that is designated as such in accordance with the terms of this Order shall not be disclosed to any person other than the following, and ...