JEAN P. ROSENBLUTH, Magistrate Judge.
The Court recognizes that at least some of the documents, electronic data, and information being sought through discovery in the above-captioned action are, for competitive reasons, normally kept confidential by the parties. The parties have agreed to be bound by the terms of this Protective Order ("Order") in this action.
The Protected Information to be exchanged throughout the course of the litigation between the parties may contain trade secret or other confidential research, technical, cost, price, marketing, or other commercial information, as is contemplated by Federal Rule of Civil Procedure 26(c)(1)(G). The purpose of this Order is to preserve the confidentiality of such Protected Information as much as practically possible during the litigation. THEREFORE:
1. The term "Confidential Information" will mean and include information disclosed or to be disclosed during this litigation including, without limitation, information provided in documents, portions of documents, answers to interrogatories, responses to discovery requests, deposition exhibits, deposition testimony, and transcripts depositions; including data, summaries, compilations, copies, abstracts, and any other format reproducing or capturing such information or otherwise derived from such information that meets the designation requirements of "CONFIDENTIAL, " "CONFIDENTIAL-OUTSIDE COUNSEL ONLY, " or "CONFIDENTIAL-OUTSIDE COUNSEL ONLY-SOURCE CODE" as set out in paragraphs 7 and 8, below. The provisions of this Protective Order do not apply to trial or other proceedings (e.g. trial exhibits, trial testimony, transcripts of trial testimony). This Court will not bind any future presiding judicial officer to certain procedures. Rather, the parties shall take up with that judicial officer at the appropriate time how confidential material will be handled in court filings or during court proceedings.
2. The term "Protected Information" will include, but is not limited to: documents; correspondence; e-mails; memoranda; bulletins; blueprints; specifications; software; firmware; customer lists or other matter that identify customers or potential customers; price lists or schedules or other matter identifying pricing; minutes; telegrams; letters; statements; cancelled checks; contracts; invoices; drafts; books of account; worksheets; notes of conversations; desk diaries; appointment books; expense accounts; sales and cost information; financial statements; business plans; license agreements; recordings; photographs; motion pictures; compilations from which information can be obtained and translated into reasonably usable form through detection devices; sketches; drawings; notes (including laboratory notebooks and records); reports; instructions; disclosures; other writings; models and prototypes; and other physical objects. Protected Information may be designated as Confidential Information in accordance with the terms of this Order.
3. The term "Counsel" will mean outside Counsel of Record, as defined below, and shall also include other attorneys, paralegals, secretaries, and other support staff employed by the law firms identified below:
4. The term "Counsel of Record" will mean and include (i) outside counsel who appear in the action in any capacity, whether on the pleadings, on the record in a deposition or in a hearing, or in any other circumstance associated with the action, as counsel for a party, (ii) partners, principals, counsel, associates, employees, and contract attorneys (contract attorneys must execute an undertaking in the form attached as Exhibit A) of such outside counsel to whom it is reasonably necessary to disclose the Confidential Information for this action, including supporting personnel employed by the attorneys, such as paralegals, legal secretaries, and legal clerks, (iii) independent shorthand reporters retained to record and transcribe testimony in this case and videographers retained to film testimony in this action and (iv) litigation support service vendors retained to assist counsel in the preparation and trial of this action (who will execute an undertaking in the form attached as Exhibit A).
5. The term "Independent Expert" will mean a person with specialized knowledge or experience in a matter pertinent to the case who has been retained by Counsel to serve as an expert witness or as a litigation consultant in this case, and who is not a current employee of a party or of a competitor of a party and who, at the time of retention, is not anticipated to become an employee of, or a non-litigation consultant of a party or competitor of a party.
6. "Source Code" includes documents and human-readable programming language text that defines software or firmware and associated comments, revision histories, formulas, engineering specifications or schematics that define or otherwise describe in detail the algorithms or structure of software designs or hardware designs of integrated circuit devices. Source Code associated with software may be referred to as "Software Source Code, " and Source Code associated with hardware may be referred to as "Hardware Source Code". Text files containing Source Code will hereinafter be referred to as "Source Code Files." Software Source Code Files include, but are not limited to, files containing Source Code in "C, " "C, " BREW, Java ME, J2ME, assembler, digital signal processor (DSP) programming languages, and other human readable text programming languages. Software Source Code Files further include "include files, " "make" files, "link" files, and other human-readable text files used in the generation and/or building of software directly executed on a microprocessor, micro-controller, or DSP. Hardware Source Code Files include, but are not limited to, files containing Source Code in Hardware Design Language ("HDL"), VHDL, Verilog, or other RTL language.
7. Each party to this litigation that produces or discloses any Confidential Information and/or Protected Information, or any other information that the producing party believes should be subject to this Order, may designate the same as "CONFIDENTIAL" or "CONFIDENTIAL-OUTSIDE COUNSEL ONLY."
(a) Designation as "CONFIDENTIAL": Any party may use the "CONFIDENTIAL" designation only if, in the good faith belief of such party and its Counsel, the unrestricted disclosure of such Protected Information could be potentially prejudicial to the business or operations of such party.
(b) Designation as "CONFIDENTIAL-OUTSIDE COUNSEL ONLY": Any party may use the "CONFIDENTIAL-OUTSIDE COUNSEL ONLY" designation only if, in the good faith belief of such party and its Counsel, such Protected Information is among that considered to be most sensitive by the party, including but not limited to trade secret or other confidential research, development, financial, or other highly sensitive Protected Information.
8. Designation as "CONFIDENTIAL-OUTSIDE COUNSEL ONLY-SOURCE CODE": Any party may use the "CONFIDENTIAL-OUTSIDE COUNSEL ONLY-SOURCE CODE" designation only if, in the good faith belief of such party and its Counsel, such Protected Information contains Source Code or Source Code Files produced by the party, that the party believes in good faith is not generally known to others, and has significant competitive value such that unrestricted disclosure to others would create a substantial risk of serious injury, and that the party would not normally reveal to third parties except in confidence, or has undertaken with others to maintain in confidence.
9. In the event the producing party elects to produce Protected Information for initial inspection, no marking need be made by the producing party in advance of the initial inspection. For purposes of the initial inspection, all Protected Information produced will be considered as "CONFIDENTIAL-OUTSIDE COUNSEL ONLY, " and must be treated as such pursuant to the terms of this Order. Thereafter, upon selection of specified Protected Information for copying by the inspecting party, the producing party must, within a reasonable time prior to producing the Protected Information to the inspecting party, mark the copies of the Protected Information that contain Confidential Information with the appropriate "CONFIDENTIAL, " "CONFIDENTIAL-OUTSIDE COUNSEL ONLY, " or "CONFIDENTIAL-OUTSIDE COUNSEL ONLY-SOURCE CODE" designation.
10. Whenever a deposition taken on behalf of any party involves a disclosure of Confidential Information of any party:
(a) The deposition or portions of the deposition must be designated as containing Confidential Information subject to the provisions of this Order; such designation must be made on the record whenever possible, but a party may designate portions of depositions as containing Confidential Information after transcription of the proceedings; a party will have until fourteen (14) days after receipt of the deposition transcript to inform the other party or parties to the action of the portions of the transcript to be designated "CONFIDENTIAL, " "CONFIDENTIAL-OUTSIDE COUNSEL ONLY, " or "CONFIDENTIAL OUTSIDE COUNSEL ONLY-SOURCE CODE."
(b) The disclosing party will have the right to exclude from attendance at the deposition, only during such time as "CONFIDENTIAL, " "CONFIDENTIAL-OUTSIDE COUNSEL ONLY, " or "CONFIDENTIAL OUTSIDE COUNSEL ONLY-SOURCE CODE" designated Confidential Information is to be disclosed, any person, other than the deponent and other than those individuals permitted access under this Order, the court reporter, and the person(s) agreed upon pursuant to paragraph 14 below, provided that nothing herein prevents a deposing party from seeking to exclude a person from ...