BANDAG SOUTHERN AFRICA (PTY) LTD, a South African private limited company, Plaintiff,
KELLEY FLEET SERVICES, LLC, a Delaware limited liability company; and KELLEY-AMERIT FLEET SERVICES, INC., a California corporation, dba AMERIT FLEET SOLUTIONS, Defendants.
ANDREW S. PAULY, ANDREW J. HALEY, GREENWALD, PAULY, FOSTER AND MILLER PC, Santa Monica, CA, Attorneys for Plaintiff, BANDAG SOUTHERN AFRICA (PTY) LTD.
KIM P. GAGE, BYRON J. BAHR, COOKSEY, TOOLEN, GAGE, DUFFY & WOOG Costa Mesa, CA, Attorneys for Defendant, KELLEY FLEET SERVICES, LLC.
DAVID J. COCKE (pro hac vice) EVANS PETREE, PC, Memphis, TN, Attorneys for Defendant, KELLEY FLEET SERVICES, LLC.
MATTHEW D. BROWN, COOLEY LLP, San Francisco, CA, Attorneys for Defendant, KELLEY-AMERIT FLEET SERVICES, INC., d/b/a AMERIT FLEET SOLUTIONS.
[PROPOSED] AMENDED STIPULATED PROTECTIVE ORDER
ROBERT N. BLOCK, Magistrate Judge
The parties to this action, through their undersigned counsel, stipulate to entry of the following Protective Order by the Court.
1. PURPOSE AND LIMITS OF THIS ORDER
Discovery in this action is likely to involve confidential, proprietary, or private information requiring special protection from public disclosure and from use for any purpose other than this litigation. Thus, the Court enters this Protective Order. This Order does not confer blanket protections on all disclosures or responses to discovery, and the protection it gives from public disclosure and use extends only to the specific material entitled to confidential treatment under the applicable legal principles. This Order does not automatically authorize the filing under seal of material designated under this Order. Instead, the parties must comply with L.R. 79-5.1 if they seek to file anything under seal. This Order does not govern the use at trial of material designated under this Order.
2. DESIGNATING PROTECTED MATERIAL
2.1 Over-Designation Prohibited. Any party or non-party who designates information or items for protection under this Order as "CONFIDENTIAL, " "HIGHLY CONFIDENTIAL - ATTORNEY EYES ONLY, " or "HIGHLY CONFIDENTIAL - SOURCE CODE" (a "designator") must only designate specific material that qualifies under the appropriate standards. To the extent practicable, only those parts of documents, items, or oral or written communications that require protection shall be designated. Designations with a higher confidentiality level when a lower level would suffice are prohibited. Mass, indiscriminate, or routinized designations are prohibited. Unjustified designations expose the designator to sanctions, including the Court's striking all confidentiality designations made by that designator. Designation under this Order is allowed only if the designation is necessary to protect material that, if disclosed to persons not authorized to view it, would cause competitive or other recognized harm. Material may not be designated if it has been made public, or if designation is otherwise unnecessary to protect a secrecy interest. If a designator learns 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 designator must promptly notify all parties that it is withdrawing the mistaken designation.
2.2 Manner and Timing of Designations. Designation under this Order requires the designator to affix the applicable legend ("CONFIDENTIAL, " "HIGHLY CONFIDENTIAL - ATTORNEY EYES ONLY, " or "HIGHLY CONFIDENTIAL - SOURCE CODE") to each page that contains protected material, to the extent practicable. For information or items produced electronically in a format that includes separate pagination, to the extent practicable, the designator must affix the applicable legend to each electronic page of such documents that contains protected material. For information or items produced in a format which does not lend itself to separate pagination (for example, certain databases), confidentiality shall be designated in a reasonable manner. For testimony given in deposition, the designator shall specify all protected testimony and the level of protection being asserted. It may make that designation during the deposition, or may invoke, on the record or by written notice to all parties on or before the next business day, a right to have up to 21 days following receipt of the transcript of the deposition to make its designation.
2.2.1 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 identified which material it would like copied and produced. During the inspection and before the designation, all material shall be treated as HIGHLY CONFIDENTIAL - ATTORNEY EYES ONLY. After the inspecting party has identified the documents it wants copied and produced, the producing party must designate the documents, or portions thereof, that qualify for protection under this Order.
2.2.2 Parties shall give advance notice if they expect a deposition to include designated material so that the other parties can ensure that only authorized individuals are present at that deposition when such material is disclosed or used. The use of a document as an exhibit at a deposition shall not in any way affect its designation. Deposition transcripts containing designated material shall have a legend on the title page noting the presence of designated material, and the title page shall be followed by a list of all pages (including line numbers as appropriate) that have been designated, and the level of protection being asserted. The designator shall inform the court reporter of these requirements. Any transcript that is prepared before the expiration of the 21-day period for designation shall be treated during that period as if it had been designated HIGHLY CONFIDENTIAL - ATTORNEY EYES ONLY unless otherwise agreed. After the expiration of the 21-day period, the transcript shall be treated only as actually designated.
2.3 Inadvertent Failures to Designate. An inadvertent failure to designate does not, standing alone, waive protection under this Order or any other rights, and such inadvertent failure is without prejudice to any claim or argument that such information or item is CONFIDENTIAL, HIGHLY CONFIDENTIAL - ATTORNEY EYES ONLY, or HIGHLY CONFIDENTIAL - SOURCE CODE. Upon timely assertion or correction of a designation, all recipients must make reasonable efforts to ensure that the material is treated according to this Order.
3. CHALLENGING CONFIDENTIALITY DESIGNATIONS
All challenges to confidentiality designations shall proceed under L.R. 37-1 through L.R. 37-4.
4. ACCESS TO DESIGNATED MATERIAL
4.1 Basic Principles. A receiving party may use designated material only for this litigation. Designated material may be disclosed only to the categories of persons and under the conditions described in this Order.
4.2 Disclosure of CONFIDENTIAL Material Without Further Approval. Unless otherwise ordered by the Court or permitted in writing by the designator, a receiving party may disclose any material designated CONFIDENTIAL only to:
4.2.1 The receiving party's outside counsel of record in this action and employees of outside counsel of record to whom ...