IN RE: MYKEY TECHNOLOGY INC. PATENT LITIGATION.
Intelligent Computer Solutions, Inc. MyKey Technology Inc.,
ROBERT E. FREITAS, (SBN 80948), Kaiwen Tseng, QUDUS B. OLANIRAN, (SBN 267838), FREITAS TSENG & KAUFMAN LLP, Redwood Shores, California, Attorneys for Plaintiff, MyKey Technology Inc.
Paul J. Stockhausen, Jessica H. Polakowski, REINHART BOERNER VAN DEUREN S.C., Madison, WI, Attorneys for Defendant, Robert Botchek.
STIPULATED PROTECTIVE ORDER
PAUL L. ABRAMS, Magistrate Judge.
Pursuant to Rule 26(c) of the Federal Rules of Civil Procedure, Plaintiff MyKey Technology Inc. and Defendant Robert Botchek, through counsel undersigned jointly submit this Stipulated Protective Order to govern the handling of information and material produced in the course of discovery or filed with the Court in this action.
ORDER AND STATEMENT OF GOOD CAUSE
Plaintiff MyKey Technology Inc. and Defendant Robert Botchek agree that disclosure and discovery activities in this action are likely to involve production of highly sensitive financial or business information or proprietary information that has not been disseminated to the public at large, that is not readily discoverable by competitors and that has been the subject of reasonable efforts by the respective parties to maintain its secrecy, and for which special protection from public disclosure and from use for any purpose other than prosecuting this litigation would be warranted. Such information likely will include, among other things, sensitive product information, product design and development materials, engineering materials, marketing and sales information, purchase orders, invoices, distributor information, and customer information relating to write blocking devices, duplicator devices, and data removal devices.
Each party wishes to ensure that such confidential information shall not be used for any purpose other than this action and shall not be made public by another party beyond the extent necessary for purposes of this action. The parties therefore seek to facilitate the production and protection of such information. The parties acknowledge that this Protective 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 under the applicable legal principles to treatment as confidential. The parties further acknowledge that this Protective Order creates no entitlement to file confidential information under seal.
Good cause exists to enter the instant Protective Order to protect such confidential information from public disclosure. The confidential information includes information that could be used by actual or potential competitors to gain a competitive advantage in the marketplace.
Accordingly, based upon the agreement of the parties and for good cause shown, IT IS HEREBY ORDERED that whenever, in the course of these proceedings, any party or non-party has occasion to disclose information deemed in good faith to constitute confidential information, the parties and any such non-party shall employ the following procedures:
1. Designation of Discovery Materials as "CONFIDENTIAL, " "CONFIDENTIAL BUSINESS INFORMATION SUBJECT TO PROTECTIVE ORDER" or "CONFIDENTIAL - ATTORNEYS' EYES ONLY." The labels "CONFIDENTIAL BUSINESS INFORMATION SUBJECT TO PROTECTIVE ORDER" and "CONFIDENTIAL - ATTORNEYS' EYES ONLY" shall be view to be synonymous and as defined according to the limitations set forth in section 1(b) below. All documents produced in the course of discovery, all Answers to Interrogatories, all Answers to Requests for Admission, all Responses to Requests for Production of Documents, and all deposition testimony and deposition exhibits shall be subject to this Order concerning confidential information, as set forth below:
(a) The designation of confidential information shall be made by placing or affixing on the document, in a manner which will not interfere with its legibility, the word "CONFIDENTIAL, " "CONFIDENTIAL BUSINESS INFORMATION SUBJECT TO PROTECTIVE ORDER, " or "CONFIDENTIAL - ATTORNEYS' EYES ONLY." One who provides material may designate it as "CONFIDENTIAL" only when such person in good faith believes it contains sensitive personal information, trade secrets or other confidential research, development, or commercial information which is in fact confidential. A party shall not routinely designate material as "CONFIDENTIAL, " or make such a designation without reasonable inquiry to determine whether it qualifies for such designation. Except for documents produced for inspection at the party's facilities, the designation of confidential information shall be made prior to, or contemporaneously with, the production or disclosure of that information. In the event that documents are produced for inspection at the party's facilities, such documents may be produced for inspection before being marked confidential. Once specific documents have been designated for copying, any documents containing confidential information will then be marked confidential after copying but before delivery to the party who inspected and designated the documents. There will be no waiver of confidentiality by the inspection of confidential documents before they are copied and marked confidential pursuant to this procedure.
(b) Confidential Information may be designated as "CONFIDENTIAL BUSINESS INFORMATION SUBJECT TO PROTECTIVE ORDER" or "CONFIDENTIAL - ATTORNEYS' EYES ONLY" when, in the reasonable judgment of the designating party, the information is Confidential, but is too sensitive, valuable, or difficult to protect from misuse to allow a wider circulation. The parties agree, without limitation that the following categories of information qualify for the designation "CONFIDENTIAL BUSINESS INFORMATION SUBJECT TO PROTECTIVE ORDER" or "CONFIDENTIAL - ATTORNEYS' EYES ONLY":
(i) Confidential information relating to product sales, pricing, costs, profits, or margins;
(ii) Non-public technical information, including schematic diagrams, technical reference manuals, operations manuals, and the like relating to ...