BAL SEAL ENGINEERING, INC., a California corporation, Plaintiff,
NELSON PRODUCTS, INC., a Colorado corporation; and DOES 1-10, inclusive, Defendants.
STIPULATED PROTECTIVE ORDER
ROBERT N. BLOCK, 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, likely to involve production of confidential, proprietary, or private information for which special protection from public disclosure and from use for any purpose other than prosecuting this litigation may be warranted. Such information, for competitive reasons, is normally kept confidential by the parties. As such, the parties have agreed to be bound by the terms of this Protective Order ("Order") in this action.
STIPULATED PROTECTIVE ORDER
The materials 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 protect the confidentiality of such materials as much as practical during the litigation. THEREFORE:
1. The term "Confidential Information" will mean and include information contained or disclosed in any materials, including documents, portions of documents, answers to interrogatories, responses to requests for admissions, deposition testimony, and transcripts of depositions, including data, summaries, and compilations derived therefrom that is deemed to be Confidential Information by any party to which it belongs.
2. The term "materials" will include, but is not to be limited to: documents; correspondence; memoranda; bulletins; blueprints; specifications; customer lists or other materials that identify customers or potential customers; price lists or schedules or other matter identifying pricing; minutes; letters; statements; cancelled checks; contracts; invoices; drafts; books of account; worksheets; notes of conversations; desk diaries; appointment books; expense accounts; recordings; photographs; 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, prototypes and other physical objects; and magnetic tapes, CDs, DVDs, hard drives, and any and all electronic storage devices by which information is retained in retrievable form.
3. The term "counsel" will mean outside counsel of record, and other attorneys, paralegals, secretaries, and other support staff employed in the law firms identified below: CADDEN & FULLER LLP and FISH & ASSOCIATES, P.C. and their successors.
4. Each party to this litigation that produces or discloses any materials, answers to interrogatories, responses to requests for admission, deposition testimony, and transcripts of depositions, or information that the producing party believes should be subject to this Protective Order may designate the same as "CONFIDENTIAL" or "HIGHLY CONFIDENTIAL - FOR ATTORNEYS' EYES ONLY."
a. Designation as "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 or cause harm to its competitive position.
b. Designation as "HIGHLY CONFIDENTIAL - FOR ATTORNEYS' ONLY": Any party may designate information as "HIGHLY CONFIDENTIAL - FOR 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, financial or other commercial information whose disclosure would raise a material risk of: (i) present or future competitive injury to the designating party; or (ii) present or future competitive or commercial advantage, including litigation advantage, to the receiving party or non-parties.
c. Mass, indiscriminate, or routinized designations are prohibited.
5. In the event the producing party elects to make materials available for inspection prior to actual production and/or copying, the producing party may make the materials available for inspection as they are kept in the ordinary course of business, and no marking need be made by the producing party in advance of the inspection. For purposes of the inspection, all materials will be considered as "HIGHLY CONFIDENTIAL - FOR ATTORNEYS' EYES ONLY, " and must be treated as such pursuant to the terms of this Order. Thereafter, upon selection of specified materials for copying by the inspecting party, the producing party must, within a reasonable time prior to producing those materials to the inspecting party, mark the copies of those materials that contain Confidential Information with the appropriate confidentiality marking.
6. 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" or "HIGHLY CONFIDENTIAL - FOR ATTORNEYS' EYES ONLY."
b. the disclosing party will have the right to exclude from attendance at the deposition, during such time as the Confidential Information is to be disclosed, any person other than the deponent, counsel (including their staff and associates), the court reporter, and the person(s) agreed upon pursuant to paragraph 8 below; and
c. the originals of the deposition transcripts and all copies of the deposition must bear the legend "CONFIDENTIAL" or "HIGHLY CONFIDENTIAL - FOR ATTORNEYS' EYES ONLY, " as appropriate, and the original or any copy ultimately presented to a court for filing must not be filed unless it can be accomplished under seal, identified as being subject to this Order, and protected from being opened except by order of this Court.
7. All Confidential Information designated as "CONFIDENTIAL" or "HIGHLY CONFIDENTIAL - FOR ATTORNEYS' EYES ONLY" must not be disclosed by the receiving party to anyone other than those persons designated within this Order and must be handled in the manner set forth below and, in any event, must not be used for any purpose other than in connection with this litigation, unless and until such designation is removed either by agreement of the parties, or by order of the Court.
8. Information designated "HIGHLY CONFIDENT1AL - FOR ATTORNEYS' EYES ONLY" must be viewed only by counsel (as defined in paragraph 3) of the receiving party, and by the additional individuals listed below, provided each such individual has read this Order in advance of disclosure and has agreed in writing to be bound by its terms (except for those persons identified in 8.d., who do not need to agree in writing):
a. Independent experts under the conditions set forth herein. The term "independent expert" as used herein shall mean an outside person (who is not an employee of a party) and includes testifying experts, proposed testifying experts, and non-testifying technical advisors with whom counsel may deem it necessary to consult concerning technical, financial, or other aspects of this case for the preparation of trial thereof. The right of any independent expert to receive any Confidential Information will be subject to the advance approval of such expert by the producing party or by permission of the Court. The party seeking approval of an independent expert must provide the producing party with the following information: the proposed independent expert's name, up-to-date curriculum vitae, professional address, all present employment and non-confidential consultancies, all prior employment and non-confidential consultancies within the last five (5) years, a list of all cases in which the proposed independent expert has testified at a deposition or in court within the last five (5) years, and an executed copy of the form attached hereto as Exhibit A, in advance of providing any Confidential Information of the producing party to the expert. Any objection by the producing party to an independent expert receiving Confidential ...