The opinion of the court was delivered by: Hon. David O. Carter United States District Court Judge
STIPULATED PROTECTIVE ORDER
WHEREAS, it may be necessary or desirable to take discovery of information which is believed to be confidential and proprietary by the holder thereof; and
WHEREAS, the parties hereto desire to obtain a protective order to prevent dissemination and unnecessary disclosure of such information on the public record;
IT IS HEREBY STIPULATED, and subject to the Court's approval, ORDERED, pursuant to Federal Rules of Civil Procedure, Rule 26(c), that the following provisions shall govern the handling of such confidential information and documents in these proceedings:
The parties acknowledge that this Order does not confer blanket protections
on all disclosures or responses to discovery and that the protection it affords extends only to the limited information or items that are entitled to confidential treatment under the applicable legal principles. The parties further acknowledge, as set forth in Section 11, 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 when a party seeks permission from the court to file material under seal.
2.1 Party: any party to this action, including all of its officers, directors, employees, in-house attorneys, consultants, retained experts, outside counsel, and associated support staff.
2.2 Disclosure or Discovery Material: all items or information, regardless of the medium or manner generated, stored, or maintained (including, among other things, testimony, transcripts, or tangible things) that are produced or generated in disclosures or responses to discovery in this matter.
2.3 "Confidential": for purposes of this Order, " information designated "Confidential" shall mean all information or material produced for or disclosed in connection with this action to a Receiving Party that a Producing Party considers in good faith to contain confidential, commercially sensitive and/or proprietary information not otherwise known or available to the public. The following are examples of information that is not considered confidential: (a) advertising materials, (b) materials that on their face show that they have been published to the general public, or (c) documents that have been submitted to any governmental entity without request for confidential treatment. By way of non-limiting example, documents in one or more of the following categories may qualify for the "CONFIDENTIAL" designation: information (regardless of how generated, stored or maintained) or tangible things that qualify for protection under standards developed under F.R.C.P. 26(c); non-public, non-commercially sensitive technical information, including data sheets, product schematics, technical reference materials, and other non-public technical descriptions and/or depictions of the relevant technology.
2.4 "Confidential -- Outside Attorneys' Eyes Only": for purposes of this Order, information designated "Confidential -- Outside Attorneys' Eyes Only" shall constitute or contain information that is confidential and/or sensitive in nature and that the Producing Party reasonably believes that the disclosure of such information may cause economic harm or competitive disadvantage to the Producing Party. By way of non-limiting example, documents in one or more of the following categories may qualify for the "Confidential -- Outside Attorneys' Eyes Only" designation: (i) commercially sensitive research and development, technical, testing or engineering documents (including CAD diagrams, manufacturing and engineering drawings, engineering notebooks, specifications, requirement documents, research notes and materials); (ii) commercially sensitive financial information (e.g., the number of products sold, total dollar value of sales products, sales forecasts, and profit margins); (iii) commercial agreements, settlement agreements or settlement communications; (iv) customer lists, employee information, and other non-public information of similar competitive and business sensitivity; (v) commercially sensitive business and/or marketing plans, including, without limitation, trade secrets, pricing information, product development information; (vi) price lists and/or pricing information; (vii) information obtained from a non-party pursuant to a current non-disclosure Non-Disclosure Agreement ("NDA"); and (viii) non-public communications (including email) regarding topics relating to items (i)-(vii).
2.5 "Highly Confidential Code" or "Source Code": extremely sensitive electronic or computer code such as software, firmware, source code, object code, listing files generated by compilers or assemblers, and intermediate files created during the build process, test programs and scripts, and source code or object code for associated tools (collectively "Source Code"). The following are not properly considered "Source Code": documents, files, and data that are primarily intended for human review (including but not limited to word processing documents, text files, PowerPoint presentations, Excel spreadsheets, Access databases, PDF files, photographs, and the like or any files with file extensions such as doc, xls, txt, ppt, pps, pdf, jpeg, tiff, htm, html, maq, mdb, mov, MP3, wav, mpp, and pst). For avoidance of doubt, a document primarily intended for human review with an excerpt of electronic or computer code is not "Source Code."
2.6 Producing Party: a Party or non-party that produces Disclosure or Discovery Materials in this action.
2.7 Receiving Party: a Party that receives Disclosure or Discovery Material from a Producing Party.
2.8 Designating Party: a Party or non-party that designates Disclosure or Discovery Materials produced in this action as "Confidential," "Confidential -- Outside Attorneys' Eyes Only," or "Highly Confidential Code."
2.9 Protected Material: any Disclosure or Discovery Material that is designated as "Confidential," "Confidential -- Outside Attorneys' Eyes Only," or "Highly Confidential Code."
2.10 Outside Counsel: attorneys who are neither employees nor principles of a Party (and also for Plaintiff: attorneys who have no ownership interest or inventorship interest in Plaintiff or the patents-in-suit) but who are retained to represent or advise a Party in this action, as well as their support staff. For avoidance of doubt, Todd E. Fitzsimmons is not Outside Counsel under this Protective Order.
2.11 In-House Counsel: Up to three attorneys designated by (and also employed by that Party) that have signed the "Acknowledgement and Agreement to Be Bound" (Exhibit A). For avoidance of doubt, Todd E. Fitzsimmons may be In-House Counsel under this Protective Order.
2.12 Expert: a person with specialized knowledge or experience in a matter pertinent to the litigation who has been retained by a Party or its counsel to serve as an expert witness or as a consultant in this action and who is not a past or a current employee of a Party or a Party's competitor and who, at the time of retention, is not anticipated to become an employee of a Party or a Party's competitor. "Expert" as defined in this paragraph and as used in this Order is applicable only for the purposes of disclosure of Protected Material.
2.13 Professional Vendors: persons or entities that provide litigation support services (e.g., photocopying; videotaping; translating; preparing exhibits or demonstrations; organizing, storing, retrieving data in any form or medium; etc.) and their employees and subcontractors. This definition includes a professional jury or trial consultant retained in connection with this litigation.
The protections conferred by this Order cover not only Protected Material (as defined above), but also any information copied or extracted therefrom, as well as all copies, excerpts, summaries, or compilations thereof, plus testimony, conversations, or presentations by parties or counsel to or in court or in other settings that might reveal Protected Material.
Even after the termination 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 order otherwise directs.
5. DESIGNATING PROTECTED MATERIAL
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 to limit any such designation to specific material that qualifies under the appropriate standards. A Designating Party must take care to designate for protection only those parts of material, documents, items, or oral or written communications that qualify -- so that other portions of the material, documents, items, or communications for which protection is not warranted are not swept unjustifiably within the ambit of this Order. Mass, indiscriminate, or routinized designations are prohibited. If a Receiving Party believes that items designated for protection do not qualify for the level of protection indicated, the Receiving Party shall request that the Producing Party re-designates the items in accordance with Section 6, below. If it comes to a Party's or a non-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 initially asserted, that Party or non-party must promptly notify all other Receiving Parties that it is withdrawing the mistaken designation.
5.2 Manner and Timing of Designations. Except as otherwise provided in this Order (see, e.g., Paragraphs 5.2(c), 5.2(d), and 5.2(f), below), or as otherwise stipulated or ordered, material that qualifies for protection under this Order must be clearly so designated before the material is disclosed or produced.
Designation in conformity with this Order requires:
(a) Hard copy or Paper Materials (apart from transcripts of depositions or other pretrial or trial proceedings): The Producing Party must affix the legend "CONFIDENTIAL" or "CONFIDENTIAL -- OUTSIDE ATTORNEYS' EYES ONLY" or "HIGHLY CONFIDENTIAL CODE" at the top or bottom of each page that contains such Protected Material. If the Receiving Party believes a portion of the page so designated does not contain Protected Material or should be given a lower level of protection, the Receiving Party may make a request to the Producing Party that that portion be de-designated. The change in the level of protection may be indicated by making appropriate markings in the margins of the affected page.
(b) Native and/or Other Electronic Materials: All Protected Material not reduced to hard copy, tangible, or physical form or that cannot be conveniently designated as set forth in Paragraph 5.2(a) shall be designated by informing the Receiving Party of the designation in writing, and/or in the load file or other similar database, table or chart accompanying said production. To the extent the Receiving Party subsequently generates any copies of this information, whether electronic or hard copy, it shall ensure that all such copies are designated with the appropriate confidentiality designations.
When documents are produced in electronic form, the Producing Party shall include a confidentiality designation on the medium containing the documents. If the medium contains documents in native electronic format, the medium shall include an electronic database record for each native format file that includes on the face of the electronic database record the applicable confidentiality designation (if any) and a document identification or Bates number for the associated document. When a Receiving Party prints a native format file from such medium, the Receiving Party shall also print the corresponding electronic database record and attach it to the native format file so that the native file's confidentiality designation will be readily apparent to one viewing the file. In the event that a Receiving Party prints a native format file from a medium that has been marked with a confidentiality designation, but the native file is not accompanied by an electronic database record or the electronic database record could not be printed, the Receiving Party shall mark each page of such native file with a "CONFIDENTIAL" or "CONFIDENTIAL -- OUTSIDE ATTORNEYS' EYES ONLY" designation until the native file's electronic database record may be located or printed.
(c) Documents Made Available for Inspection: Any tangible objects, documents or electronically stored information (excluding Source Code) made available only to Outside Counsel for the Receiving Party for initial inspection prior to the production of selected items shall initially be considered, as a whole, to constitute "CONFIDENTIAL -- OUTSIDE ATTORNEYS' EYES ONLY" information and shall be subject to this Protective Order. 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 material it would like copied and produced.
During the inspection and before the designation, all of the material made available for inspection shall be deemed "CONFIDENTIAL -- OUTSIDE ATTORNEYS' EYES ONLY." After Outside Counsel for the inspecting Party has identified the documents it wants copied and produced, the Producing Party must determine which documents qualify for protection under this Order, then, before producing the specified documents, the Producing Party must affix the appropriate legend ("CONFIDENTIAL," "CONFIDENTIAL -- OUTSIDE ATTORNEYS' EYES ONLY," or "HIGHLY CONFIDENTIAL CODE") at the top or bottom of each page that contains Protected Material. If the Receiving Party believes a portion of the page so designated does not contain Protected Material or should be given a lower level of protection, the Receiving Party may make a request to the Producing Party that that portion be de-designated. The change in the level of protection may be indicated by making appropriate markings in the margins of the affected page.
(d) Physical Exhibits: The confidential status of a physical exhibit shall be indicated by placing a label on it with the appropriate confidentiality ...