STIPULATED PROTECTIVE ORDER Plaintiffs, AND [PROPOSED] ORDER (MODIFIED BY THE COURT)
1. PURPOSES AND LIMITATIONS 19
Disclosure and discovery activity in this action are likely to involve production of confidential, proprietary, or private information for which special protection from public 21 disclosure and from use for any purpose other than prosecuting this litigation may be warranted. 22
Accordingly, the parties hereby stipulate to and petition the court to enter the following Stipulated 23 Protective Order. The parties acknowledge that this Order does not confer blanket protections on 24 all disclosures or responses to discovery and that the protection it affords from public disclosure 25 and use extends only to the limited information or items that are entitled to confidential treatment 26 under the applicable legal principles. The parties further acknowledge, as set forth in Section 14.4, below, that this Stipulated Protective Order does not entitle them to file confidential 28 information under seal; Civil Local Rule 79-5 and General Order 62 set forth the procedures that must be followed and the standards that will be applied when a party seeks permission from the 2 court to file material under seal.
2.1 Challenging Party: a Party or Non-Party that challenges the designation of 5 information or items under this Order. 6
2.2 "CONFIDENTIAL" Information or Items: information (regardless of how it is 7 generated, stored or maintained) or tangible things that qualify for protection under Federal Rule 8 of Civil Procedure 26(c). 9 2.3 Counsel (without qualifier): Outside Counsel and House Counsel (as well as their 10 support staff). 11
2.4 Designating Party: a Party or Non-Party that designates information or items that it 12 produces in disclosures or in responses to discovery as "CONFIDENTIAL" or "HIGHLY 13 CONFIDENTIAL -- ATTORNEYS' EYES ONLY." 14 2.5 Disclosure or Discovery Material: all items or information, regardless of the 15 medium or manner in which it is generated, stored, or maintained (including, among other things, 16 testimony, transcripts, and tangible things), that are produced or generated in disclosures or 17 responses to discovery in this matter. 18
2.6 Expert: a person with specialized knowledge or experience in a matter pertinent to the litigation who (1) has been retained by a Party or its counsel to serve as an expert witness or 20 as a consultant in this action, (2) is not a past or current employee of a Party or of a Party's 21 competitor, and (3) at the time of retention, is not anticipated to become an employee of a Party 22 or of a Party's competitor.
2.7 "HIGHLY CONFIDENTIAL -- ATTORNEYS' EYES ONLY" Information or Items: extremely sensitive "Confidential Information or Items," disclosure of which to another 25 Party or Non-Party would create a substantial risk of serious harm that could not be avoided by 26 less restrictive means. 27
2.8 House Counsel: attorneys who are employees of a party to this action. House
Counsel does not include Outside Counsel.
2.9 Non-Party: any natural person, partnership, corporation, association, or other legal 2 entity not named as a Party to this action. 3 2.10 Outside Counsel: attorneys who are not employees of a party to this action but are 4 retained to represent or advise a party to this action. 5 2.11 Party: any party to this action, including all of its officers, directors, employees, 6 consultants, retained experts, and Outside Counsel (and their support staffs). 7 2.12 Producing Party: a Party or Non-Party that produces Disclosure or Discovery Material in this action. 9
2.13 Professional Vendors: persons or entities that provide litigation support services (e.g., photocopying, videotaping, translating, preparing exhibits or demonstrations, and 11 organizing, storing, or retrieving data in any form or medium) and their employees and 12 subcontractors.
2.14 Protected Material: any Disclosure or Discovery Material that is designated as "CONFIDENTIAL," or as "HIGHLY CONFIDENTIAL -- ATTORNEYS' EYES ONLY."
2.15 Receiving Party: a Party that receives Disclosure or Discovery Material from a Producing Party.
The protections conferred by this Stipulation and Order cover not only Protected Material (as defined above), but also (1) any information copied or extracted from Protected Material; 20 (2) all copies, excerpts, summaries, or compilations of Protected Material; and (3) any testimony, 21 conversations, or presentations by Parties or their Counsel that might reveal Protected Material.
However, the protections conferred by this Stipulation and Order do not cover the following 23 information: (a) any information that is in the public domain at the time of disclosure to a Receiving Party or becomes part of the public domain after its disclosure to a Receiving Party as 25 a result of publication not involving a violation of this Order, including becoming part of the 26 public record through trial or otherwise; and (b) any information known to the Receiving Party 27 prior to the disclosure or obtained by the Receiving Party after the disclosure from a source who obtained the information lawfully and under no obligation of confidentiality to the Designating
Party. Any use of Protected Material at trial shall be governed by a separate agreement or order.
Even after final disposition of this litigation, the confidentiality obligations imposed by this Order shall remain in effect until a Designating Party agrees otherwise in writing or a court 6 order otherwise directs. Final disposition shall be deemed to be the later of (1) dismissal of all 7 claims and defenses in this action, with or without prejudice; and (2) final judgment herein after 8 the completion and exhaustion of all appeals, rehearings, remands, trials, or reviews of this action, 9 including the time limits for filing any motions or applications for extension of time pursuant to 10 applicable law.
For a period of six months after final disposition of this litigation, this court
5. DESIGNATING PROTECTED MATERIAL 12
5.1 Exercise of Restraint and Care in Designating Material for Protection. Each Party or Non-Party that designates information or items for protection under this Order must take care 14 to limit any such designation to specific material that qualifies under the appropriate standards.
To the extent it is practical to do so, the Designating Party must designate for protection only 16 those parts of material, documents, items, or oral or written communications that qualify -- so that 17 other portions of the material, documents, items, or communications for which protection is not 18 warranted are not swept unjustifiably within the ambit of this Order. 19
Mass, indiscriminate, or routinized designations are prohibited.
Designations that are
shown to be clearly unjustified or that have been made for an
improper purpose (e.g., to 21 unnecessarily encumber or retard the
case development process or to impose unnecessary 22 expenses and
burdens on other parties) expose the Designating Party to sanctions.
If it comes to a Designating Party's attention that information or items that it designated for protection do not qualify for protection at all or do not qualify for the level of protection 25 initially asserted, that Designating Party must promptly notify all other parties that it is 26 withdrawing the mistaken designation. 27
5.2 Manner and Timing of Designations. Except as otherwise provided in this Order will retain jurisdiction to enforce the terms of this order.
(see, e.g., second paragraph of section 5.2(a) below), or as otherwise stipulated or ordered, Disclosure or Discovery Material that qualifies for protection under this Order must be clearly so 2 designated before the material is disclosed or produced. 3
5 but excluding transcripts of depositions or other pretrial or trial proceedings), that the Producing 6 EYES ONLY" to each page that contains protected material. If only a portion or portions of the 8 material on a page qualifies for protection, the Producing Party also must clearly identify the 9 protected portion(s) (e.g., by making appropriate markings in the margins) and must specify, for 10 each portion, the level of protection being asserted. 11
A Party or Non-Party that makes original documents or materials available for inspection need not designate them for protection until after the inspecting Party has indicated which 13 material it would like copied and produced. During the inspection and before the designation, all 14 of the material made available for inspection shall be deemed "HIGHLY CONFIDENTIAL -- 15
ATTORNEYS' EYES ONLY." After the inspecting Party has identified the documents it wants 16 copied and produced, the Producing Party must determine which documents, or portions thereof, 17 qualify for protection under this Order. Then, before producing the specified documents, the 18
CONFIDENTIAL -- ATTORNEYS' EYES ONLY") to each page that contains Protected 20
Producing Party also must clearly identify the protected portion(s) (e.g., by making appropriate 22 markings in the margins) and must specify, for each portion, the level of protection being 23 asserted. 24
25 that the Designating Party identify on the record, before the close of the deposition, hearing, or 26 other proceeding, all protected testimony and specify the level of protection being asserted. When 27 it is impractical to identify separately each portion of testimony that is entitled to protection and it 28 appears that substantial portions of the testimony may qualify for protection, the Designating
DB2/ 23805227.1 STIPULATED PROTECTIVE ORDER
Designation in conformity with this Order requires:
(a) for information in documentary form (e.g., paper or electronic documents,
Party affix the legend "CONFIDENTIAL" or "HIGHLY CONFIDENTIAL -- ATTORNEYS' 7
Producing Party must affix the appropriate legend ("CONFIDENTIAL" or "HIGHLY 19
Material. If only a portion or portions of the material on a page qualifies for protection, the 21
(b) for testimony given in deposition or in other pretrial or trial proceedings,
Party may invoke on the record (before the deposition, hearing, or other proceeding is concluded) 2 a right to have up to 21 days to identify the specific portions of the testimony as to which 3 protection is sought and to specify the level of protection being asserted. Only those portions of 4 the testimony that are appropriately designated for protection within the 21 days shall be covered 5 by the provisions of this Stipulated Protective Order. Alternatively, a Designating Party may 6 specify, at the deposition or up to 21 days afterwards on written notice, that the entire transcript 7 shall be treated as "CONFIDENTIAL" or "HIGHLY CONFIDENTIAL -- ATTORNEYS' EYES 8
Parties shall give the other parties notice if they reasonably expect a deposition, hearing or 10 other proceeding to include Protected Material so that the other parties can ensure that only 11 authorized individuals who have signed the "Acknowledgment and Agreement to Be Bound" 12
(Exhibit A) are present at those proceedings. The use of a document as an exhibit at a deposition 13 shall not in any way affect its designation as "CONFIDENTIAL" or "HIGHLY 14
Transcripts containing Protected Material shall have an obvious legend on the title page that the transcript contains Protected Material, and the title page shall be followed by a list of all 17 pages (including line numbers as appropriate) that have been designated as Protected Material and 18 the level of protection being asserted by the Designating Party. The Designating Party shall 19 inform the court reporter of these requirements. Any transcript that is prepared before the 20 expiration of a 21-day period for designation shall be treated during that period as if it had been 21 designated "HIGHLY CONFIDENTIAL -- ...