Opinion
Case No. 2:04-CV-00208.
February 24, 2005
PROTECTIVE ORDER
For the purpose of facilitating the exchange of information among the parties to this litigation, and avoiding injury through the disclosure of such party's confidential information, the Court orders as follows:
1. All information produced by National Oilwell, Inc. and/or National Oilwell, L.P. (collectively, "the producing parties"), including, without limitation, documents, writings, video or audio tapes, computer-generated or recorded information in any form, materials, oral or written testimony, answers to interrogatories, responses to requests for admission, deposition testimony, deposition transcripts and exhibits and other responses to requests for information, produced in response to discovery requests (hereinafter "Discovery Material"), which the producing parties in good faith believe contains any trade secret or confidential commercial or financial information, may be designated "Confidential" under this Protective Order by the producing parties ("Confidential Information"). Confidential Information also includes any document or other item describing or substantively referring to Discovery Material designated "Confidential." In addition, Confidential Information may be further designated "Attorney Eyes Only" by the producing parties which it believes in good faith that it may be substantially harmed or placed at a competitive disadvantage by the disclosure of the information to a party, likely witness or other person, and any secondary or derivative documents or other materials describing or substantively referring to such designated material shall also be deemed "Attorney Eyes Only" material hereunder. Discovery Material designated "Confidential" or "Attorney Eyes Only" hereunder is also referred to herein as "Designated Material."
2. A party may object to the designation of particular "Designated Material" by giving written notice to the producing parties. The written notice shall identify the information to which the objection is made. If the parties cannot resolve the objection within 10 business days after the time the notice is received, it shall be the obligation of the party objecting to the designation of "Confidential" or "Attorney Eyes Only," whichever the case may be, to thereafter file an appropriate and timely motion requesting that the Court determine whether the disputed information should be subject to the terms of this Protective Order. If such a motion is timely filed, the disputed information shall be treated as it has been designated under the terms of this Protective Order until the Court rules on the motion. In connection with a motion filed under this paragraph, the producing parties shall bear the burden of establishing that good cause exists for the disputed information to be treated as it has been designated.
3. Confidential Information not designated "Attorney Eyes Only" shall be designated by placing on or affixing to each page of the document or on the object container (in such manner as will not interfere with the legibility thereof), the designation "CONFIDENTIAL PER COURT ORDER." Confidential Information designated "Attorneys Eyes Only" shall be designated by placing on or affixing to each page of the document or on the object container (in such manner as will not interfere with the legibility thereof), the designation "CONFIDENTIAL PER COURT ORDER — ATTORNEY EYES ONLY."
4. Any deposition testimony containing Designated Material shall be appropriately designated either on the record at the deposition or by letter to counsel within 10 days after receipt of the final transcript. The failure to designate examination and testimony at deposition "Attorney Eyes Only" shall not constitute any waiver of the right to make such designation during the review period, notwithstanding the fact that some person not entitled to see, hear or receive "Attorney Eyes Only" material may have done so by reason of the inadvertent failure to designate such testimony during the deposition and/or before the final transcript was produced for review. During the 10-day review period, the deposition transcript shall be deemed to be designated "Attorney Eyes Only."
5. Notwithstanding the provisions of paragraph 3 of this Protective Order, as part of discovery, the producing parties may produce various files and collections of documents for inspection and selection by opposing counsel, before such materials or documents are actually numbered, copied and delivered for possession by opposing counsel. Documents produced for such inspection shall be considered "Attorney Eyes Only" at such inspection, even though not then labeled as such. Any documents thereafter designated by opposing counsel for numbering, copying, and delivery shall be appropriately labeled, if necessary, pursuant to paragraph 3 of this Protective Order, and treated accordingly. All other materials produced for inspection but not selected for more formal production will continue to be considered and treated "Attorney Eyes Only," except to the extent such other material is otherwise formally produced or used in this matter.
6. Except as expressly allowed herein, Confidential Information not designated "Attorney Eyes Only," shall be disclosed only to: (a) the parties of record, including owners, officers, directors and employees, to the extent reasonably necessary for the prosecution or defense of this litigation, and subject to the further limitations of this paragraph; (b) the outside counsel of record for the parties and their associated attorneys, paralegal, clerical and secretarial employees engaged in the conduct of this action; (c) any inside counsel of the parties, as expressly approved by the Court, and such counsel's paralegal, clerical and secretarial employees, provided such inside counsel has signed an undertaking in the form annexed hereto as Exhibit A; (d) any person retained to assist outside counsel of record in the preparation or trial of this action (including consultants and/or experts and their immediate assistants engaged in the conduct of this action), provided such person is not otherwise affiliated in any way with a party or a competitor of a party, and provided such person has signed an undertaking in the form annexed hereto as Exhibit A; and (e) the Court and Court personnel, including stenographic reporters, and the jury hearing this case.
7. An owner, officer, director or employee of a receiving party, as allowed hereunder, is authorized to view Confidential Information not designated "Attorney Eyes Only" subject to the further following conditions: (a) before seeing such Confidential Information, both the receiving party of record and the particular owner, officer, director or employee of the receiving party must each sign an undertaking in the form annexed hereto as Exhibit A; and (b) no such person or party shall be provided with copies of documents containing such Confidential Information, but shall only be entitled to view that information in the presence of that party's outside counsel of record or during the course of a deposition attended by that person's and party's outside counsel of record. By the requirement of "in the presence of that party's outside counsel of record," the Court means that authorized persons may review such Confidential Information not designated "Attorney Eyes Only" at the regular offices of that party's outside counsel of record, whether or not such outside counsel of record is actually physically present for such review, or at the party's regular offices provided such party's outside counsel of record is physically present at and for the review.
8. In addition, a witness at deposition can see Confidential Information not designated "Attorney Eyes Only" for purposes of his deposition examination if (a) the witness authored or previously saw it; (b) it was within the possession, custody or control of the witness; or (c) the witness is or was an employee, officer, or owner of the entity that produced said Confidential Information. Otherwise, Confidential Information not designated "Attorney Eyes Only" may be used at deposition with a witness if the party wishing to use such Confidential Information receives authorization to use the information at or prior to the deposition. If objection is made, the party proposing disclosure may petition the Court for such authorization.
9. If a party's counsel desires to disclose specific Confidential Information not designated "Attorney Eyes Only" to a person not authorized to receive such information as allowed by this Protective Order, that party may request in writing the party that produced said Confidential Information to authorize in writing the disclosure of said Confidential Information to such other person. If such authorization is given in writing, no formal amendment to this Protective Order is necessary; however, such authorized person shall be treated as provided in paragraph 3(d) herein. If authorization is not given, the party seeking it may petition the Court for such authorization.
10. Confidential Information designated "Attorney Eyes Only" shall be disclosed only to: (a) the outside counsel of record for the parties and their associated attorneys, paralegal, clerical and secretarial employees engaged in the conduct of this action; (b) any inside counsel of the parties, as expressly approved by the Court, and such counsel's paralegal, clerical and secretarial employees, provided such inside counsel has signed an undertaking in the form annexed hereto as Exhibit A; (c) as necessary, the Court and its staff, pursuant to paragraph 14; and (d) any person retained to assist outside counsel in the preparation or trial of this action (including consultants and/or experts and their immediate assistants engaged in the conduct of this action), provided such person is not otherwise affiliated in any way with a party or a competitor of a party, and provided such person has signed an undertaking in the form annexed hereto as Exhibit A. If a party's counsel receiving Confidential Information designated "Attorney Eyes Only" wants to disclose it to a person not otherwise authorized to view it, the receiving party's counsel must notify the producing parties' counsel in advance, in writing, identifying the documents to be disclosed by category or bates numbers and the proposed recipient of this disclosure. If, after 15 days, the producing parties do not object in writing, the identified Discovery Material may be disclosed to the identified recipient in the same manner as allowed hereunder for other Confidential Information in paragraph 3. If the producing parties object, then the parties shall confer in good faith to resolve the issue; if the issue is not resolved, the requesting party may thereafter apply to the Court for relief if necessary. The Confidential Information designated "Attorney Eyes Only" may not be disclosed as proposed absent a ruling from the Court.
11. In addition, a witness at deposition can see Confidential Information designated "Attorney Eyes Only" for purposes of that witness's deposition examination if (a) the witness authored or previously saw it; (b) it was within the possession, custody or control of the witness; or (c) the witness is or was an employee, officer or owner of the entity that produced said "Attorney Eyes Only" information. Otherwise, Confidential Information designated "Attorney Eyes Only" may be used at deposition with a witness if the party wishing to use such "Attorney Eyes Only" information receives appropriate authorization to use the information at or prior to the deposition.
12. Disclosure of Designated Material to any person described in this Protective Order shall be only for the purpose of litigating this proceeding, and any appeal of this proceeding, and for no other purpose whatsoever.
13. In the event that any Designated Material is contained or substantively described in any pleading, motion, exhibit, or other paper (collectively the "papers") filed or to be filed with the Clerk of the Court, the Clerk shall be so informed by the party filing such papers, and such papers shall be filed under seal, bearing the appropriate designations pursuant to paragraph 3 of this Protective Order. Designated Material contained or substantively described in the papers shall remain under seal until further order of this Court provided, however, that such papers may be furnished to persons or entities that may receive Designated Material as allowed by paragraphs 5-11. Upon or after the filing of any paper containing or substantively describing Designated Material, the filing party may file on the public record a duplicate copy of the paper that does not reveal the Designated Material. Further, if the protection for any such material expires, a party may file on the public record a duplicate copy which also contains the formerly protected material.
14. At the time that any consultant, expert or other person retained to assist counsel in the preparation of this action concludes participation in the action, such person shall return to counsel all copies of documents or portions thereof containing or substantively describing Designated Material that are in the possession of such person. At the conclusion of this action, each party shall either destroy or return documents containing or substantively describing Designated Material obtained in this action to the producing parties, unless the parties mutually agree to alternative arrangements. In the event that a party elects to destroy such documents, such party shall provide to the producing parties a certificate of destruction of the documents.
15. Nothing in this Protective Order shall be construed to effect an abrogation, waiver, or limitation of any kind on the right of the parties or third parties to assert any applicable discovery or trial privilege.
16. The handling of Designated Material at trial shall be addressed at the final pretrial conference or such other time before trial as the Court may direct.
ACKNOWLEDGEMENT OF PROTECTIVE ORDER
I, ____, being duly sworn, state that:My current employer is ____.
My business address is ____.
My business telephone is ____.
My current occupation is ____.
1. I have received a copy of the Protective Order in this action, a copy of which is attached hereto. I have carefully read and understand the Protective Order, and agree to comply with its provisions.
2. I will hold any Designated Material disclosed to me in confidence, and will not disclose such material to anyone not qualified to receive such material under the Protective Order, and will use such material only for purposes set forth in the Protective Order.
3. Promptly upon termination of this action, I will return all Designated Material which came into my possession, and all documents or things that I have prepared which contain, reflect or are based on such Designated Material or the information contained therein, to counsel disclosing such materials to me.
4. I hereby submit to the jurisdiction of the United States District Court for the District of Utah for the purpose of enforcement of the Protective Order and this Agreement.
___________________________________ (Signature)
Subscribed and sworn to before me this ____ day of ____, 2005.
__________________________________ Notary Public
My Commission Expires: ____