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San Diego Unified Port District v. Monsanto Co.

United States District Court, S.D. California

July 3, 2019

SAN DIEGO UNIFIED PORT DISTRICT, et al., Plaintiffs,
v.
MONSANTO COMPANY, et al., Defendants.

          PROTECTIVE ORDER FOR THIRD-PARTY MATERIALS

          Hon. Andrew G. Schopler United States 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 third parties who may have received a subpoena in this case. The parties have agreed to be bound by the terms of this Protective Order (“Order”) in this action.

         The materials to be exchanged throughout the course of the litigation between the parties and third 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 third-party materials as much as practical during the litigation. THEREFORE:

         DEFINITIONS

         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, trial testimony, deposition testimony, and transcripts of trial testimony and 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 be limited to: documents; correspondence; memoranda; bulletins; blueprints; specifications; customer lists or other material that identify customers or potential customers; price lists or schedules or other matter identifying pricing; minutes; telegrams; letters; statements; cancelled checks; contracts; invoices; drafts; books of account; worksheets; notes of conversations; desk diaries; appointment books; expense accounts; recordings; photographs; motion pictures; 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 and prototypes and other physical objects.

         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: Kelly Drye & Warren, LLP; Baron & Budd, P.C.; Gomez Trial Attorneys; White and Williams LLP; Capes Sokol, Goodman and Sarachan, PC; Latham & Watkins LLP. “Counsel”@ also includes, in-house attorneys for Plaintiffs and in-house attorneys for Defendants.

         GENERAL RULES

         4. Any third party to this litigation that produces or discloses any materials, trial testimony, deposition testimony, or information that the third party believes should be subject to this Protective Order may designate the same as "CONFIDENTIAL" or "CONFIDENTIAL - FOR COUNSEL ONLY."

         a. Designation as "CONFIDENTIAL": Any third party may designate information as "CONFIDENTIAL" only if, in the good faith belief of such third party and its counsel, the unrestricted disclosure of such information could be potentially prejudicial to the business or operations of such third party.

         b. Designation as "CONFIDENTIAL - FOR COUNSEL ONLY": Any third party may designate information as "CONFIDENTIAL - FOR COUNSEL ONLY" only if, in the good faith belief of such third party and its counsel, the information is among that considered to be most sensitive by the third party, including but not limited to trade secret or other confidential research, development, financial or other commercial information.

         c. To the extent that previously undisclosed material in the possession of a Third Party is in the process of being analyzed, reviewed and/or prepared for, or on behalf of, a Party to this action (“Requesting Party”) in the normal course of the Requesting Party's business, and such information has not previously been turned over or made available to the Requesting Party or submitted to a regulatory agency on behalf of the Requesting Party prior to the date of production by the Third Party under any subpoena in this action, the Requesting Party shall have the right to object in writing to production under any subpoena of the previously undisclosed material in question until such time that the previously undisclosed material is finalized and turned over to the Requesting Party or submitted to a regulatory agency on behalf of the Requesting Party by Third Party in the normal course of business. Any objection pursuant to this section by the Requesting Party shall identify the nature of the previously undisclosed material at issue and shall provide an estimated timeline for when it is expected that the Third Party will provide the same to the Requesting Party or submitted to a regulatory agency on behalf of the Requesting Party in the normal course of business. The Requesting Party shall inform all other Parties in writing when the previously undisclosed material is received from the Third Party or submitted to a regulatory agency on behalf of the Requesting Party in the normal course of business and shall make arrangements for it to be turned over or made available for review. The intent of this provision is to preclude the production of material pursuant to a subpoena in this action which is sensitive or confidential in nature and which has not been made available to the Requesting Party or a submitted to a regulatory agency on behalf of the Requesting Party in the normal course of business outside of the context of this litigation.

         5. In the event the third party elects to produce materials for inspection, no marking need be made by the third party in advance of the initial inspection. For purposes of the initial inspection, all materials produced will be considered as "CONFIDENTIAL -FOR COUNSEL 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 third 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 ...


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