BLUE SPHERE, INC., a California corporation, and ROBERT A. KLOETZLY, an individual, Plaintiff,
H&H SPORTS PROTECTION USA, INC., a California corporation, Defendant. H&H SPORTS PROTECTION USA, INC., a California corporation, Counterclaimant,
BLUE SPHERE, INC., a California corporation, ROBERT A. KLOETZLY, an individual, and ROES 1 through 10, inclusive, Counterdefendants.
THOMAS J. SPEISS, III SBN 200949, SARAH S. BROOKS SBN 266292, STRADLING YOCCA CARLSON & RAUTH, Newport Beach, CA, Attorneys for Plaintiffs and Counterdefendants BLUE SPHERE, INC. AND ROBERT A. KLOETZLY.
Charles C.H. Wu (166756), Vikram M. Reddy (228515), CHARLES C.H. WU & ASSOCIATES, APC, Irvine, California, Attorneys for defendant and counterclaimant H&H SPORTS PROTECTION USA, INC.
ANDREW J. WISTRICH, Magistrate Judge.
The Court recognizes that at least some of the documents and information ("materials") 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 in this action.
The parties have also agreed to be bound by the terms of this Protective Order prior to entry by this Court and to a mutual exchange of documents and information as though this Protective Order has been entered.
The materials to be exchanged throughout the course of the litigation between the parties may contain trade secret or other confidential research, technical, financial, marketing or other commercial information, as is contemplated by Federal Rule of Civil Procedure 26(c). The purpose of this Protective Order is to protect the confidentiality of such materials during this action. THEREFORE:
(a) "Confidential Information." For purposes of this Protective Order, "Confidential Information" means information which the designating party deems to constitute trade secret or other confidential research, development, or commercial information which is not publicly known and cannot be ascertained from an inspection of publicly available documents, materials, or devices. It shall be the duty of the party who seeks to invoke protection under this Protective Order to give notice, in the manner set forth hereinafter, of the information and documents and testimony to be covered hereby, and the duty of any other party or person to maintain the confidentiality thereof under this Protective Order commences with such notice,
(b) "Documents." As used herein, the term "document" shall have the meaning ascribed to it by Rule 34 of the Federal Rules of Civil Procedure and shall include, without limitation, any written or graphic matter in any medium and any type or description upon which information is recorded.
(c) "Pleadings." As used herein, "pleadings" means, without limitation, the following items: complaints, answers, cross claims, counterclaims, or amendments thereto, Orders of the Court, briefs, memoranda, reports, declarations, affidavits, interrogatories and responses thereto, requests for admission and responses thereto, requests to produce or documents or things, and responses thereto, deposition testimony, trial and hearing testimony, and exhibits filed with the Court in connection with this proceeding.
2. Levels of Confidentiality. In recognition of the fact there are different degrees of sensitivity for various pieces of Confidential Information and that it may be necessary for counsel to show some confidential materials to independent experts and to client representatives in order to prepare the case for trial, there will be two levels of confidentiality hereunder:
(a) "CONFIDENTIAL - OUTSIDE ATTORNEYS EYES ONLY."
Any party may designate information as "CONFIDENTIAL - OUTSIDE ATTORNEYS EYES ONLY" only if, in the good faith belief of such party and its counsel, the information is among that considered to be most sensitive by the party, including but not limited to trade secret or other confidential research, development, technical, financial, or other commercial information. "CONFIDENTIAL - OUTSIDE ATTORNEYS EYES ONLY" may be disclosed only to (i) counsel of record, the members of their respective law firms, and their office personnel assisting in the conduct of the case; (ii) authors of and lawful recipients of the information designated CONFIDENTIAL-OUTSIDE ATTORNEYS' EYES ONLY; (iii) other persons with the prior written approval of counsel for the designating party or non-party (iv) independent experts and consultants retained to assist counsel in the preparation of the case, and their office personnel, under the conditions set forth in Paragraph 2(c) of this Protective Order; (v) court stenographers, videographers, translators, copy vendors, electronic discovery vendors, and graphics consultants; (vi) the Court and its staff; and, (vii) any current or former officer, director, employee agent, or Rule 30(b)(6) designee of the designating party.
(b) "CONFIDENTIAL." Any party may designate information as "CONFIDENTIAL" only if, in the good faith belief of such party and its counsel, the unrestricted disclosure of such information could be potentially prejudicial to the business or operations of such party. "CONFIDENTIAL" materials may be shown to persons authorized to review "CONFIDENTIAL - OUTSIDE ATTORNEYS EYES ONLY" documents as well as the parties or their officers, directors, in-house counsel, and employees to the extent necessary for the conduct of this action and deponents noticed by the parties.
(c) The right of any independent expert or consultant to receive any Confidential Information will be subject to the advance approval of such expert or consultant by the designating party or by permission of the Court.
i. The party seeking approval of an independent expert or consultant must provide the designating party with a written notification, which includes the name and curriculum vitae of the proposed independent expert or consultant that includes a description of the expert or consultant's employment and consulting history during the past four years, and an executed copy of the form attached hereto as Exhibit A, at least ten (10) days in advance of providing any Confidential Information of the designating party to the expert or consultant.
ii. If the designating party does not convey an objection to the proposed disclosure within ten (10) calendar days of receipt of the written notification, the designating party will be deemed to have waived ...