Opinion
Case No. 08-20247-RAG.
September 4, 2008
David E. Rice, Federal Bar No. 04942, Lisa Bittle Tancredi, Federal Bar No. 22440, Venable LLP, Baltimore, Maryland, Counsel for CollegeNET, Inc.
Irving E. Walker, Federal Bar No. 00179, Gary H. Leibowitz, Federal Bar No. 24717, Cole, Schotz, Meisel, Forman Leonard, P.A., Baltimore, Maryland, Counsel for ApplicationsOnline, LLC.
STIPULATION AND PROTECTIVE ORDER GOVERNING DISCOVERY AND OTHER MATERIALS
Pursuant to the joint request of the parties, in accordance with Rule 26(c) of the Federal Rules of Civil Procedure and Rule 7026 of the Federal Bankruptcy Rules, and for good cause shown, it is hereby ORDERED that the discovery and other materials among ApplicationsOnline, LLC (the "Debtor") and CollegeNET, Inc. ("CollegeNET") used in connection with this bankruptcy case shall be subject to the following terms and conditions:
1. This Order shall govern the use of Confidential Information, as defined in paragraph 2, in the bankruptcy case of In re ApplicationsOnline, LLC, Case No. 08-20247 (RAG), in the United States Bankruptcy Court for the District of Maryland (the "Bankruptcy Case") and in any contested matters and/or adversary proceedings in the Bankruptcy Case (collectively, the "Action").
2. "Confidential Information" shall mean all information in written, oral, electronic, graphic/pictorial, audiovisual, or other form, whether it be a document, information contained in a document, information revealed during a deposition, information revealed in an interrogatory answer, or otherwise:
(a) Which is designated as such by the producing party; and
(b) Which constitutes or contains a trade secret or other confidential research, development or commercial information;
(c) The disclosure of which (i) is likely to have the effect of harming the competitive position of the producing party or (ii) would violate an obligation of confidentiality to a third person, including a court.
3. "Highly Confidential Information" means information which is designated as such by the producing party and which constitutes or contains highly sensitive Confidential Information, the disclosure of which would be particularly harmful to the competitive position of the producing part, relating to any of the following: proprietary technical data regarding current or future commercial products that has been maintained by the disclosing party as protected trade secret information; computer source code; database schemas; database code; software design specification documents; user and technical manuals and instructions; present or future marketing plans; product profit data and projections; financial data of the parties (other than the information made publicly available by the Debtor); and technical and/or pricing information relating to new concepts or products or improved products currently in design.
4. Before a person covered in paragraphs 4(a)(i) — 4(a)(iii), 4(b)(i)-4(b)(iii) below, shall receive any such Confidential Information or Highly Confidential Information, such person shall receive a copy of this Order and shall execute an Agreement in the Form of Exhibit A hereto. Subject to the provisions of paragraph 1, Confidential Information may be given, shown, disclosed, described, made available, or communicated only to the following:
a. For the Debtor:
(i) Joshua Reiter;
(ii) in-house counsel of the Debtor and stenographic, clerical, and paralegal employees whose function requires access to Confidential Information; and
(iii) outside attorneys of record for the Debtor (including Cole, Schotz, Meisel, Forman Leonard, P.A., Whiteford, Taylor Preston, and Schwabe Williamson Wyatt, P.C.) and stenographic, clerical, and paralegal employees whose function require access to Confidential Information.
b. For CollegeNET:
(i) James Wolfston;
(ii) in-house counsel of CollegeNET and stenographic, clerical, and paralegal employees whose function requires access to Confidential Information; and
(iii) outside attorneys of record for the CollegeNET (including Venable LLP and Klarquist Sparkman, LLP) and stenographic, clerical, and paralegal employees whose function require access to Confidential Information.
c. Independent litigation support services retained by counsel for the purposes of this action.
d. Court reporters.
e. Experts or consultants, including their support personnel, whose advice and consultation are being or will be used by such party in connection with the conduct of this action.
f. Deponents, provided they received, authored, were courtesy copied or are referred to in Confidential Information.
g. Deponents, provided they received, authored or were courtesy copied on Highly Confidential Information.
h. Such other persons as hereafter may be designated by written stipulation of the parties or by further order of the Court on motion by any party to this action.
5. Confidential Information may be further designated by a party as "Highly Confidential" by marking such information "Highly Confidential." This designation shall be made by stamping the original or copies of the document produced to a party with the legend "HIGHLY CONFIDENTIAL" or otherwise notifying the other party, in writing or on the record, of the confidentiality of such document. Stamping the legend "HIGHLY CONFIDENTIAL" on the cover of any multi-page document shall designate all pages of the document as Highly Confidential, unless otherwise indicated by the producing party. All documents or things designated as Highly Confidential are included within the meaning of Confidential Information as used in this Order, and all provisions of this Order apply to such information. Subject to the provisions of this Order, Highly Confidential information, including any copies, summaries, abstracts of such Highly Confidential Information, or documents primarily derived from such Highly Confidential Information, may be given, shown, disclosed, made available or communicated only to the persons identified in paragraphs 4(a)(iii), 4(b)(iii) and 4(c) — (h) above. Except for the financial data of the Debtor and such other information that the Debtor is required to disclose, or that is disclosed by the Debtor, in this Action (which is not Confidential Information or Highly Confidential Information), Highly Confidential Information) includes all Confidential-Outside Counsel's Eyes Only Information, as that term is defined in the Stipulated Protective Order entered November 20, 2007 (the "Oregon Order") in the action styled CollegeNET, Inc. v. ApplicationsOnline, LLC and Common Application, Inc., Civil No. 05-1255, United States District Court for the District of Oregon (the "Oregon Action"). Nothing in this Order shall be construed to override, alter, change or modify, or have any effect on, the Oregon Order. Moreover, no designation of any document or other information in this case pursuant to this Order shall override, alter, change or modify, or have any effect on, any designation of the same or any other document or other information pursuant to the Oregon Order. The Oregon Order is not affected in any way by the entry of this Order.
6. A party shall designate as Confidential Information only materials which that party in good faith believes constitute information that is not generally known and which the party would normally not reveal to third parties or would cause third parties to maintain in confidence. Highly Confidential information shall be limited to a party's designated proprietary business information, the disclosure of which that party in good faith believes would likely result in competitive harm to that party. A party that previously marked information "Confidential-Outside Counsel's Eyes Only Information," as that term is defined in the Oregon Order need not re-mark such information as "Highly Confidential" for purposes of the proceedings herein, and such information shall be treated as "Highly Confidential" except that financial data that the Debtor makes publicly available shall not be considered Confidential Information or Highly Confidential Information. The provisions of this Order with respect to Confidential Information and Highly Confidential Information shall not apply to information that was, is, or became publicly available unless inadvertently made public or disclosed without the knowledge or consent of the designating party, in which case(s) the Confidential and Highly Confidential designations and protections will still apply.
7. Material designated as Confidential or Highly Confidential under this Order, the information contained therein, and any summaries, copies, abstracts, or other documents derived in whole or in part from material so designated (hereinafter "Confidential Material") shall be used only for the purpose of the prosecution, defense, settlement, or appeal of the Action and for no other purpose (it being specifically agreed that Confidential Material may not be used in any other litigation involving CollegeNET); provided, however, that if the same material has been designated Confidential or Confidential-Outside Counsel's Eyes Only Information under the Oregon Order, such material may also be used as set forth in the Oregon Order. Furthermore, no person, firm, corporation or other entity subject to this Order shall give, show, disclose, make available, or communicate Confidential Information or Highly Confidential information to any person, firm, corporation or other entity not expressly authorized by this Order or the Oregon Order to receive, respectively, such Confidential Information or Highly Confidential Information. Each party reserves the right to challenge another party's designation of particular information as Confidential or Highly Confidential for the purpose of having the Court determine whether or not the information should be designated as Confidential or Highly Confidential.
8. Upon the entry of this Protective Order, any Party a signatory hereto may be permitted to file papers under seal. All Confidential or Highly Confidential information subject to this Protective Order shall be filed with the Court in accordance with the Court's rules and directives with respect to the electronic filing under seal of Confidential Information.
9. With respect to testimony of a party or a party's officers, employees, directors, agents, consultants, and/or experts, at depositions, trial or otherwise, counsel for the witness shall identify on the record the specified portions of the depositions, if any, involving "Confidential" or "Highly Confidential" information, or so advise all counsel within 5 business days of receipt of the transcript. Continuously from the date of the deposition to the conclusion of this 5-day period, all deposition transcripts and the information contained therein shall be deemed "Highly Confidential." Counsel for the witness shall have the right to request the Court to exclude from any deposition, trial, hearing or other proceeding any person who is not authorized by this Protective Order to receive "Confidential" or "Highly Confidential" information, but such right of exclusion shall only apply during periods of examination or testimony constituting, involving or relating to "Confidential" or "Highly Confidential" information.
10. In the case of depositions at which a party or its counsel is not present, if an examining attorney at the deposition marks as an exhibit, or discloses a document or portion of a transcript that has been previously designated by the non-attending party as "Confidential" or "Highly Confidential," examining counsel shall comply with the requirements of this Protective Order regarding the use of "Confidential" or "Highly Confidential" information, and shall use his or her best efforts to exclude from the deposition any person who is not authorized by this Protective Order to receive "Confidential" or "Highly Confidential" information. No person not authorized to receive such "Confidential" or "Highly Confidential" information shall be entitled to receive a copy of the portions of the transcript referring to such previously marked "Confidential" or "Highly Confidential" information, absent further order of the Court or written consent of the party designating such information as "Confidential" or "Highly Confidential."
11. Nothing herein is intended to govern, limit or affect the right of any party to use information designated as "Confidential" or "Highly Confidential," in a hearing or trial in this Bankruptcy Case or Action, provided that such information is submitted and filed under seal and shall not be made available to anyone other than the trier of fact and those persons authorized to see such information pursuant to Paragraph 4 of this Protective Order. In the event that Confidential Information or Highly Confidential information is used in any proceeding in this Action, including a trial, it shall not lose its Confidential or Highly Confidential status merely through such use.
12. The procedure set forth herein shall not affect the rights of the parties to object to discovery, nor shall it relieve a party of the necessity of proper response or objection to discovery requests, nor shall it limit or preclude any party from seeking further relief or protective orders from the Court as may be appropriate under the Federal Rules of Civil Procedure or the Federal Rules of Bankruptcy Procedure or from applying to the Court for relief from this Protective Order.
13. This Protective Order shall not affect: (a) any party's right to use with complete discretion the information which it initially produced; (b) any party's right to object to any discovery demand on any ground; (c) any party's right to seek an order compelling discovery with respect to any discovery demand; (d) any party's right to object to the admissibility of any information on any ground; (e) any counsel's right to make litigation decisions in this or any other proceeding that do not involve disclosure of information subject to this Protective Order or of any copy, transcript, excerpt or summary thereof; (f) any party's right to use without limitation (except as provided in the Oregon Order) any information, including information designated "CONFIDENTIAL" or "HIGHLY CONFIDENTIAL," that the party acquires independently and in a lawful manner from a source other than the designating party or the Debtor; (g) any party's right to disclose any information pursuant to a duly authorized subpoena or civil investigative demand, provided that any party intending to produce information designated by another party as "CONFIDENTIAL" or "HIGHLY CONFIDENTIAL" shall give counsel for the designating party prompt notice of such subpoena or civil investigative demand, which notice if possible shall be at least ten (10) days prior to the earlier of (1) any deadline for filing objections to the subpoena of civil investigative demand or (2) the actual production of the information; or (h) any party's right to seek amendments to this Protective Order broadening or restricting the rights of access to, or the use of, material subject to this Protective Order or otherwise modifying this Protective Order.
14. The testimony of any expert witness in the Action, or the inadvertent production of any privileged or otherwise protected information shall not be deemed a waiver or impairment of any claim of privilege or protection, including, but not limited to, the attorney-client privilege and the protection afforded to attorney work-product materials, or the subject matter thereof. In addition, no party will assert in the Bankruptcy Case, any Action, or the Oregon Action, or any other proceeding the existence of such waiver or impairment as a result of the testimony of any expert witness in the Action or any inadvertent disclosure or production of any privileged or otherwise protected information. Any party receiving notice from any other party that information has been inadvertently produced shall return all such information (including all copies thereof within its custody and control) to the inadvertently producing party within five (5) working days of receipt of such notice, unless application is made to this Court within such period to challenge the claim of privilege or other protection.
15. In the event a party inadvertently fails to designate, or inaccurately designates, information "CONFIDENTIAL" or "HIGHLY CONFIDENTIAL," it may correct the error by notifying counsel for all receiving parties within ten (10) days of discovering the error or within ten (10) days of the entry of this Order, whichever comes later, that it wishes to designate the information "CONFIDENTIAL" or "HIGHLY CONFIDENTIAL." Any party receiving notice that information has been inadvertently produced with an inaccurate or omitted "CONFIDENTIAL" or "HIGHLY CONFIDENTIAL" designation shall return all such information (including all copies thereof within its custody and control) to the inadvertently producing party within five (5) working days of receipt of such notice so that the information may be designated "CONFIDENTIAL" or "HIGHLY CONFIDENTIAL."
16. It is agreed that the proprietary nature of the Confidential Information and Highly Confidential Information makes any breach of this Order unable to be remedied solely by damages. Therefore, if there is a breach or threatened breach of this Order, the parties hereto acknowledge that the non-breaching party shall be entitled to a temporary restraining order and/or injunction; however, this shall not be construed as prohibiting the non-breaching party from pursuing any other remedies for any breach or threatened breach.
17. This Order shall survive the closing of the Bankruptcy Case. Within thirty (30) days of the termination or conclusion of all contested matters and adversary proceedings involving the parties hereto in the Bankruptcy Case, and any final appeal(s) thereof or therein, counsel for the parties shall return to each other all documents, material and deposition transcripts designated as Confidential or Highly Confidential and all copies of same, except to the extent that such material may otherwise be treated otherwise in the Oregon Order.
So Stipulated by the parties, through counsel, as evidenced by their signatures below.
SO ORDERED
EXHIBIT A
IN THE UNITED STATES BANKRUPTCY COURT FOR THE DISTRICT OF MARYLAND (Baltimore Division)
In re: ApplicationsOnline, LLC. Case No. 08-20247 (RAG) (Chapter 11) Debtor. I have read the Stipulation and Protective Order Governing Discovery Materials entered by the Bankruptcy Court on ______________, 2008 in the above-captioned bankruptcy case (the "Stipulation and Order"). I understand the provisions of the Stipulation and Order and I understand the responsibilities and obligations the Stipulation and Order imposes on persons viewing "Confidential Information" and/or "Highly Confidential Information," as the case may be. I understand that any violation of the terms of the Stipulation and Order may constitute contempt of a Court Order. In accordance with Paragraphs 4 and 5 of the Stipulation and Order, so as to permit me to view "Confidential Information" and/or "Highly Confidential Information," I hereby agree to be bound by all of its provisions and terms. I further consent to the exercise of jurisdiction over me by the United States Bankruptcy Court for the District of Maryland.