Opinion
Case No. 2:03-cv-00937.
February 15, 2005
Dennis R. James, Michelle H. Christensen, MORGAN, MINNOCK, RICE JAMES, L.C., Attorneys for Defendant, Nashai Biotech, LLC.
Scott M. Lilja, VAN COTT, BAGLEY, CORNWALL McCARTHY, Attorneys for Defendant, Banner Pharmacaps, Inc.
Peggy A. Tomsic, Kristopher S. Kaufman, TOMSIC LAW FIRM, LLC, Attorneys for Plaintiff, Nutraceutical Corp.
STIPULATED PROTECTIVE ORDER
IT IS HEREBY STIPULATED AND AGREED by undersigned counsel, subject to the approval of the Court that:
1. Scope: This Protective Order shall apply to all information, documents and things subject to discovery in this action produced either by a party or a non-party to the litigation in response to or in connection with any discovery conducted in this action and testimony adduced at depositions or hearings.
2. Definitions:
a. "Confidential." Discovery materials that have been maintained by the producing party or person as confidential and contain trade secret or other confidential information, including but not limited to, but not limited to, proprietary technology, research, design or development, manufacturing methods, capacities, financial information, marketing or sales information, pending patent applications, new products and business methods, buyer names, customer lists, and personnel data may be designated as "Confidential."
b. "Confidential Material." Material designated "Confidential" shall be referred to collectively as "Confidential Material."
3. Parties' Obligations in Designating Discovery Material as Confidential Material: No party or its lawyer(s) shall designate any discovery material as Confidential Material unless that party and its lawyer(s) have a good faith belief such discovery material meets the requirements for a protective order under Rule 26(c) and applicable federal law.
4. Designation of Confidentiality: Discovery materials may be designated Confidential Material in the following ways:
a. In the case of documents and the information contained therein, designations shall be made by means of the following legend placed on any such document: "Confidential."
b. In the case of interrogatory answers and requests to admit and the information contained therein, designation shall be made by means of a statement in each answer specifying the answer or part thereof designated as Confidential Material or by means of a statement at the conclusion of such answers specifying the answers or parts thereof designated as Confidential Material.
c. All testimony given at a deposition and each transcript of a deposition shall be presumptively treated as Confidential Material for a period of fourteen (14) calendar days following the deponent's counsel's receipt of the transcript of the deposition from the reporter. Within that fourteen (14) day period, counsel for any party or the deponent may designate certain pages of the transcript as Confidential Material by notifying counsel for each party and the deponent in writing of such pages. If no designation is made within that fourteen (14) day period, the transcript shall be considered not to contain Confidential Material.
5. Use of Confidential Material: Confidential Material may be used by the receiving person solely for the purpose of prosecuting and defending this action, and shall not be used for any business or other purpose whatsoever, whether directly or indirectly. Nothing contained in this Protective Order shall preclude a party or non-party from using or disseminating its own Confidential Material.
6. Disclosure of Information Designated "Confidential": Information designated "Confidential" shall not be made public or disclosed to anyone other than to the following persons:
a. In house and outside counsel actively involved in the above-entitled litigation, and paralegals, investigative, litigation support services, secretarial and clerical personnel, including outside copying services engaged in assisting counsel in the above-entitled action and to whom it is necessary that the materials be disclosed for purposes of this litigation. Should either party require the addition or substitution of counsel, this stipulated order shall be amended accordingly by agreement of counsel.
i. For Nashai, outside counsel shall mean the law firm of Morgan, Minnock Rice James.
ii. For Banner, outside counsel shall mean the law firm of Van Cott, Bagley, Cornwall McCarthy.
iii. For Nutraceutical, outside counsel shall mean the Tomsic Law Firm.
b. Officers, directors and employees of each party up to a maximum of five persons, provided that prior to such disclosure to such person, that person must execute an undertaking in the form attached as Exhibit A.
c. Any expert, and employees and assistants under the control of such expert (1) who is engaged by counsel in this litigation and (2) whose advice and consultations are being or intended to be used by a party hereto only in connection with this action to the extent necessary to perform work on this litigation, provided that prior to such disclosure to such person, that person must execute an undertaking in the form attached as Exhibit A.
d. Any person who authored or previously received the particular Confidential information sought to be disclosed to that person.
e. Any interpreter, or court or other shorthand reporter or typist translating, recording or transcribing testimony.
f. The Court and Court personnel. Any discovery materials filed with the Court and identified as containing or disclosing Confidential Material shall be submitted under seal and the clerk of the Court is directed to maintain such material under seal.
7. Objections to Designation: The failure by any party to object to the designation of discovery material as Confidential Material at the time of its designation shall not be deemed a waiver of that party's right to challenge the propriety of such designation at any time thereafter. Should counsel object to the designation by a party of any discovery material as Confidential Material, counsel shall notify the designating party's counsel of the objections in writing, referring specifically to the discovery material objected to. Counsel shall promptly confer in an attempt to resolve the matter. If the matter remains unresolved, counsel designating the discovery material as Confidential Material may then apply to the Court for a determination of whether the designated material can properly be designated as Confidential Material under Rule 26(c) and applicable federal law. The designating party must file such a motion within twenty days after conferring with objecting counsel or the designation and right to designate relative to the discovery material at issue is waived and is no longer deemed Confidential Material. The party making the designation of Confidential Material bears the burden of proving that it is in fact subject to protection as Confidential Material under Rule 26(c) and applicable federal law.
8. Preservation of Rights and Privileges: Nothing contained in this order shall affect the right, if any, of the party or non-party to make any other type of objection, claim, or other response to interrogatories, requests of production for documents and/or things, requests for admissions or any questions at deposition. Nor shall this order be construed as a waiver by any party or non-party of any legally cognizable privilege to withhold any discovery material or of any right that any party may have to assert such privilege at any stage of the proceedings. Nothing in this order shall limit the right of any person who receives discovery material designated as Confidential Material from using the material to the extent that the information (a) was in that recipient's possession prior to the time it was disclosed under this order; (b) is available to the public or becomes available to the public through no fault or omission of the recipient; or (c) is lawfully obtained by the recipient from a third party on a non-confidential basis.
9. Inadvertent Production: Inadvertent production of discovery material in this action shall not in itself be deemed to waive any claim of attorney-client privilege or attorney work-product protection that might exist with respect to such discovery material, or other information referred to therein. Except in the case of deposition testimony, the inadvertent disclosure of any Confidential Material by a producing party, without an appropriate designation, shall not be considered a waiver of any claim that the inadvertently disclosed material is entitled to protection under this order, if such inadvertent or mistaken disclosure is brought to the attention of the receiving parties promptly after the producing party's discovery of such disclosure. In the event that privilege materials are inadvertently produced, the producing party shall notify all parties of the inadvertent disclosure and state with particularity the basis of the privilege. The receiving parties shall promptly either return or destroy all copies of the inadvertently produced discovery material, unless, the Court, upon motion, rules that such discovery material is not protected by the attorney-client privilege or work production doctrine.
10. Notice of Requested Disclosure: A party who contemplates disclosure of Confidential Material requested in a validly served subpoena, civil investigative demand, discovery procedure permitted under the Federal Rules of Civil Procedure or other formal discovery request shall give notice of such request in writing to the party that designated the materials as such, as soon as is reasonably possible, to permit the designating party an opportunity to appear and be heard in connection with any motion or request to a court to order production of such Confidential Material.
11. Return of Confidential Materials: Within thirty (30) calendar days after the conclusion of the above-entitled action, including, without limitation, any appeal or retrial, all Confidential Material, including any copies retained by the receiving counsel pursuant to Paragraph 10, shall be returned to counsel who produced it, or be destroyed, in which case the party destroying it shall certify that it has been destroyed, provided, however, outside counsel may retain one complete and unredacted set of deposition transcripts and pleadings and papers filed with the Court or served on the other party solely for reference in the event of, and only in the event of, further proceedings of litigation between the parties, or a dispute over the use or dissemination of Confidential Material subject to the terms of this order.
12. Continuing Effect: Upon conclusion of the above-entitled action, the provisions of this Protective Order shall continue to be binding.
13. Effective Term: Prior to the trial of this matter, this order shall remain in force and effect until modified in writing, superseded or terminated by written consent of the parties or by order of the Court made upon reasonable written request. During trial, the Court shall determine what, if any, protective measures need to be put in place for discovery material designated as Confidential Material which are marked as trial exhibits.
IT IS SO STIPULATED.
EXHIBIT A AGREEMENT TO BE BOUND BY THE STIPULATED PROTECTIVE ORDER
I, the undersigned, hereby acknowledge that I have read the Stipulated Protective Order executed and entered into in the above-entitled action; that I understand the provisions prohibiting the disclosure or use of Confidential Material (as that term is defined therein), for any purpose or in any manner not connected with the prosecution or defense of this case, and that I agree to be bound by all provisions of the aforesaid Stipulated Protective Order. I understand that any Confidential Material I receive, any copies I make of any such material, and any other records or compilations that may be made regarding such information shall not be disclosed to others except as provided in the Stipulated Protective Order, and shall be returned at the conclusion of this litigation to counsel of record for the party that provided the Confidential material to me.I declare under penalty of perjury under the laws of the United States of America that the foregoing is true and correct.
Dated: _______________________ Signed: ______________________ Name (Print): ________________ Company: _____________________