MEGA BRANDS INC. and MEGA BRANDS AMERICA, INC., Plaintiffs,
AMLOID CORPORATION, Defendant.
Michael D. Bednarek, (admitted pro hac vice) AXINN VELTROP & HARKRIDER LLP,
Thomas K. Hedemann (admitted pro hac vice) AXINN VELTROP & HARKRIDER LLP, Hartford, CT.
Allan E. Anderson, (SBN 133672) Timothy L. Skelton, (SBN 200432) ARENT FOX LLP, Los Angeles, CA.
Ben M. Davidson, (SBN 181464) DAVIDSON LAW GROUP, Los Angeles, California. Attorneys for Plaintiffs MEGA Brands Inc. and MEGA Brands America, Inc. Washington, D.C. Attorneys for Defendant/Counterclaimant AMLOID CORPORATION
[PROPOSED] CONFIDENTIALITY ORDER
ARTHUR NAKAZATO, Magistrate Judge.
GOOD CAUSE STATEMENT:
In this case, the parties are direct competitors with respect to the products at issue. The discovery in this case may call for each side to reveal the quantity of its sales, its strategies for trademarks and marketing, and the identity of customers. Further, each side will likely be required to provide information regarding its revenues, costs, and profits. A disclosing party would be put at an unfair competitive disadvantage if it were required to reveal these matters to a competitor.
Further, the documents to be exchanged in this case contain certain information that may implicate the right to privacy or trade secret privileges with respect to third parties such as the parties' vendors, customers, and employees. The parties wish to protect these third parties from unwarranted intrusion into their privacy and finances, and from potentially disclosing third party financial information and trade secrets.
It appears that the parties have need for a Confidentiality Order for identifying, protecting and restricting the publication and use of confidential information, documents and testimony produced in discovery in this matter. Therefore, pursuant to Rule 26(c) of the Federal Rules of Civil Procedure,
IT IS HEREBY ORDERED:
1. All Classified Information, as defined below, produced or exchanged in the course of this litigation shall be used solely for the purpose of the prosecution, defense, settlement or trial of this action, and shall not be used by the receiving party for any other purpose whatsoever, including, without limitation, any patent applications, business use or commercial use, and shall not be disclosed by the receiving party to any person or entity except in accordance with the terms of this Order. Nothing in this Order shall be construed as authorizing a party to disobey a lawful subpoena issued in another action.
2. "Classified Information, " as used herein, means any information of any type, kind or character which is designated as "Confidential" or "Highly Confidential - Attorneys' Eyes Only" by either party. In connection with discovery proceedings in this action, a party may designate any document, record, thing, or other material, produced by either party, containing confidential information as "Confidential" or "Highly Confidential - Attorneys' Eyes Only, " including, but not limited to, any documents, deposition testimony and transcripts, deposition exhibits, responses to any discovery requests, including responses to interrogatories, document requests, subpoenas duces tecum, and requests for admission, and any other information or material produced pursuant to the rules of civil procedure applicable in this action. Confidential information concerning a party produced in response to a third party subpoena may be similarly designated by either party, or by that third party before production.
3. All materials designated as "Confidential" or "Highly Confidential - Attorneys' Eyes Only" under this Order, the information contained therein, and any summaries, copies, abstracts, or other materials derived in whole or in part from such material, shall be treated as Classified Information as set forth in this Order.
4. In designating information as "Confidential" or "Highly Confidential-Attorneys' Eyes Only, " the designating party will make such designation only as to that information or material that it in good faith believes constitutes or contains non-public, personal, proprietary, or confidential information that is treated by the proprietor thereof as such information, including, but not limited to business, financial, technical, research, development, customer, product or other commercial information, including intellectual property and trade secrets, that the designating party believes in good faith requires the protections of this Order.
Nothing shall be designated as "Confidential" or "Highly Confidential - Attorneys' Eyes Only" information if it is information that: (a) is in the public domain at the time of disclosure, as evidenced by a written document; or (b) becomes part of the public domain through no fault or action by the receiving party, as evidenced by a written document.
However, if any Classified Information becomes "publicly available" as the result of a breach or violation of this Order, or as the result of some other improper or inadvertent conduct, the parties shall nonetheless continue to treat such information as designated under this Order.
Nothing shall be designated as "Highly Confidential - Attorneys' Eyes Only" information except information of a business sensitive nature, which, if disclosed, would reveal technical or business advantages of the producing or designating party.
5. Classified Information being produced to a party in discovery shall be so designated by stamping or otherwise marking copies of the material with the legend "Confidential" or "Highly Confidential - Attorneys' Eyes Only." Stamping or marking the legend "Confidential" or "Highly Confidential - Attorneys' Eyes Only" on the cover of any multi-page document (except depositions, responses to interrogatories, responses to requests for admissions and similar discovery responses) shall designate all pages of the document as "Confidential" or "Highly Confidential - Attorneys' Eyes Only, " unless otherwise indicated by the producing party. Designations of deposition testimony shall be governed by Paragraph 7. Designations of subpoenaed materials shall be governed by Paragraph 8. With respect to designations for interrogatory responses and responses to requests for admission, the responding party shall state, in the body of the discrete discovery response being designated, that it contains Classified Information. Only those discrete interrogatory responses and responses to requests for admission specifically designated as "Confidential" or "Highly Confidential - Attorneys' Eyes Only" in this action shall be deemed Classified Information.
6. The producing party shall designate any Classified Information or material as "Confidential" or "Highly Confidential - Attorneys' Eyes Only" at the time of producing such information. Nevertheless, inadvertent production of any information that has not been designated as "Confidential" or "Highly Confidential - Attorneys' Eyes Only" pursuant to this Order shall not waive a party's opportunity to claim that such information is confidential, nor shall the party be stopped from later designating such information as "Confidential" or "Highly Confidential - Attorneys' Eyes Only, " if within ten (10) business days after actually discovering that such inadvertent production was made, the party designates the material as "Confidential" or "Highly Confidential - Attorneys' Eyes Only." Upon notification of the designation of material as "Confidential" or "Highly Confidential - Attorneys' Eyes Only, " the receiving party shall: (a) take all reasonable steps to ensure that all known copies of such material it has disclosed to third parties are recovered and returned promptly to the producing party; (b) mark all summaries, abstracts and copies of the material in its possession accordingly; and (c) treat the Classified Information as set forth in this Order.
7. Information disclosed at (a) the deposition of a party or one of its present or former officers, directors, employees, agents or independent experts retained by counsel for the purpose of this litigation, or (b) the deposition of a third party (which information pertains to a party), may be designated by any party as "Confidential" or "Highly Confidential - Attorneys' Eyes Only" information by indicating on the record at the deposition that the ...