Opinion
Case No. 2:84-CV-0814 TS
May 28, 2004
DAVID G. MANGUM, MARK A. GLICK, MARGARET NIVER MCGANN, PARSONS BEHLE LATIMER, Salt Lake City, UT, for SRECO-FLEXIBLE, Inc.
STEPHEN J. TRAYNER, STRONG HANNI, Salt Lake City, UT, for Sewer Equipment Co. of America
PROTECTIVE ORDER RE CONFIDENTIAL INFORMATION
Pursuant to Rule 26 of the Fed.R.Civ.Proc. and agreement between the parties, and having reviewed and approved the terms and conditions of this Protective Order in connection with the above-captioned action, and this Court states that
BY ORDER OF THE COURT, the terms and the provisions set forth in the following paragraphs are applicable to and binding upon all parties to this action and participating nonparties, and their respective officers, directors, employees, agents, and attorneys, and all experts and consultants retained on their behalf for the purposes of this action. This Stipulated Protective Order governs all information produced in this litigation by Plaintiff SRECO-Flexible, Inc. ("SRECO") and Defendant Sewer Equipment Corp. of America ("Defendant") (collectively the "Parties") that either of the Parties reasonably and in good faith believes embodies any of its confidential or sensitive proprietary. This Order is not limited to confidential information produced in the Litigation after the effective date of the Order, but also governs confidential information produced in the Litigation before the effective date of the Order.
IT IS HEREBY ORDERED, that:
1. The Parties and participants to this action may designate information, documents and things, including transcripts, produced by itself and non-party participants responding to a subpoena (hereinafter referred to as the "producing party") that the producing party seeking to impose such designation reasonably and in good-faith believes is not generally known to the public and considered to be commercially sensitive, proprietary, or trade secret information of the producing party, or that is an invasion of privacy of an individual under applicable law, and the disclosure of which should be subject to protection under Federal Rule of Civil Procedure 26(c)(7). The producing party may designate such information, documents and things, including transcripts, as "CONFIDENTIAL — SUBJECT TO PROTECTIVE ORDER", or "CONFIDENTIAL — SUBJECT TO PROTECTIVE ORDER — OUTSIDE COUNSEL EXPERTS ONLY" under this Protective Order. Additionally, non-party participants who produce testimony, items, materials, documents, and information in this action subject to subpoena that either the producing non-party or a Party hereto believes is not generally known to the public and that is considered to be commercially sensitive, proprietary, or trade secret information, the disclosure of which should be subject to protection under Federal Rule of Civil Procedure 26(c)(7), may designate such information as "CONFIDENTIAL — SUBJECT TO PROTECTIVE ORDER" or "CONFIDENTIAL — SUBJECT TO PROTECTIVE ORDER — OUTSIDE COUNSEL EXPERTS ONLY" under this Protective Order.
2. All information, documents, and things, including transcripts, designated "CONFIDENTIAL — SUBJECT TO PROTECTIVE ORDER" hereunder and all summaries, copies, abstracts, or other information and documents derived from or incorporating in whole or in part material designated as "CONFIDENTIAL — SUBJECT TO PROTECTIVE ORDER" will be maintained by the receiving party in confidence according to the terms of this Protective Order and used by the receiving party solely in the preparation, prosecution, settlement, or trial of this action alone and for no other purposes whatsoever. This Order does not limit or prevent disclosure or use of such "CONFIDENTIAL — SUBJECT TO PROTECTIVE ORDER" information by the producing party who designated the information as such.
3. All information, documents and things, including transcripts, which have been designated as being or containing "CONFIDENTIAL — SUBJECT TO PROTECTIVE ORDER" information by a producing party, and all copies thereof, will be maintained securely in the offices of counsel of record for the receiving party, except that copies thereof may be provided to the categories of persons identified in paragraphs 4(a), (c), (d), (e), (f), (g), and (h) to the extent necessary for the conduct of this litigation.
4. Information designated "CONFIDENTIAL — SUBJECT TO PROTECTIVE ORDER" may not be disclosed to entities or individuals other than:
(a) Counsel of record of this proceeding, and others in their law firms to whom such disclosure is necessary for the conduct of this proceeding;
(b) Directors, officers, agents or employees of each party to this proceeding who need to be consulted by outside counsel of record to assist in the prosecution, defense, settlement, or trial of this action, provided that before "CONFIDENTIAL — SUBJECT TO PROTECTIVE ORDER" information is disclosed to such persons, they be provided with a copy of this Protective Order, and be required to sign an "Acknowledgment Agreement to be Bound by Protective Order," in substantially the same form as Exhibit A attached hereto that also includes the proper caption that complies with the Local Rules and that is used in this action, and that expressly states the signor's agreement to abide by the Protective Order;
(c) Court reporters while in the performance of their official duties;
(d) Outside experts and consultants retained by the parties in order to assist its outside counsel of record in the conduct of this litigation, but only to the extent that such disclosure is deemed reasonably necessary by such counsel for the performance of such assistance, and provided that a copy of this Protective Order has been provided to that person, and that person has signed an "Acknowledgment" in substantially the same form as Exhibit A attached hereto, and that expressly states the signors agreement to abide by the Protective Order;
(e) Insurance claims adjusters for an insurance company to whom a party has tendered its defense to the extent that such disclosure is deemed reasonably necessary by such counsel for the proper evaluation of the insurance claim;
(f) Court personnel to whom disclosure is necessary in connection with the conduct of this proceeding;
(g) Persons who have prepared or assisted in the preparation of such information, documents, and things, including transcripts, or to whom the documents or copies thereof were addressed or delivered, but only to the extent that such disclosure is necessary for the conduct of the litigation; and
(h) All persons or entities authorized by the prior written consent of the person designating the information as "CONFIDENTIAL."
5. If any party discloses information, documents, and things, including transcripts, to any individual who is required under this Protective Order to sign an "Acknowledgment", Exhibit A, then within 30 days of the termination of the litigation, including any appeals, counsel for the party that disclosed the information, documents, and things, including transcripts, must produce a list to all other parties identifying every individual who obtained information, documents, and things, including transcripts, after executing the required "Acknowledgment."
6. The producing entity or participant or a party hereto that is entitled to designate documents or information as "CONFIDENTIAL — SUBJECT TO PROTECTIVE ORDER" who also reasonably believes that the information to be produced constitutes highly sensitive business information of the producing party or participant and that the disclosure of such information is likely to result in an unfair competitive financial and or commercial advantage to the receiving party or disadvantage or injury to the producing participant or party, may designate such information as "CONFIDENTIAL — SUBJECT TO PROTECTIVE ORDER — OUTSIDE COUNSEL EXPERTS ONLY" under the authority of this Protective Order.
7. Information, documents, and things, including transcripts, designated as "CONFIDENTIAL — SUBJECT TO PROTECTIVE ORDER — OUTSIDE COUNSEL EXPERTS ONLY" will be subject to all of the provisions of this Protective Order that apply to "CONFIDENTIAL — SUBJECT TO PROTECTIVE ORDER" information, documents, and things, including transcripts, except that "CONFIDENTIAL — SUBJECT TO PROTECTIVE ORDER — OUTSIDE COUNSEL EXPERTS ONLY" information, documents, and things, including transcripts, will NOT be disclosed to the persons described in paragraph 4(b) above, unless otherwise agreed to in writing or ordered by the Court. Nothing herein shall prevent or otherwise restrict counsel from rendering advice to their client, and in the course thereof, relying generally on examination of "CONFIDENTIAL — SUBJECT TO PROTECTIVE ORDER" or "CONFIDENTIAL — SUBJECT TO PROTECTIVE ORDER — OUTSIDE COUNSEL EXPERTS ONLY" information; provided, however, that in rendering such advice, counsel shall not disclose any actual documents or detailed information unless otherwise permissible under the terms of this Order. If one party believes that more detailed disclosure of "CONFIDENTIAL — SUBJECT TO PROTECTIVE ORDER" or "CONFIDENTIAL — SUBJECT TO PROTECTIVE ORDER — OUTSIDE COUNSEL EXPERTS ONLY" information to its client is required for the settlement, defense or prosecution of this case, the parties will engage in good faith negotiations prior to seeking judicial intervention.
7.1 The disclosure of Information designated as "CONFIDENTIAL — SUBJECT TO PROTECTIVE ORDER — OUTSIDE COUNSEL EXPERTS ONLY" is restricted only to outside counsel for the receiving party, independent outside experts retained by such outside counsel, and the staff and employees thereof who must have access to such information for purposes of assisting such outside counsel and independent outside experts in the prosecution of this action.
8. The designation of information as either "CONFIDENTIAL — SUBJECT TO PROTECTIVE ORDER" or "CONFIDENTIAL — SUBJECT TO PROTECTIVE ORDER — OUTSIDE COUNSEL EXPERTS ONLY" will be made as follows:
(a) In the case of documents, by affixing a legend to each page thereof indicating that information contained within or disclosed on that page of the document is "CONFIDENTIAL — SUBJECT TO PROTECTIVE ORDER" or "CONFIDENTIAL — SUBJECT TO PROTECTIVE ORDER — OUTSIDE COUNSEL EXPERTS ONLY" as the case may be; and
(b) In the case of depositions, a producing party may designate documents, information, or things disclosed at a deposition of a producing party or one of its present or former officers, directors, employees, agents, or independent experts retained for purposes of this litigation as "CONFIDENTIAL — SUBJECT TO PROTECTIVE ORDER" or "CONFIDENTIAL — SUBJECT TO PROTECTIVE ORDER — OUTSIDE COUNSEL EXPERTS ONLY" on the record during the deposition or by notifying all parties in writing of the specific exhibits or lines and pages of the transcript that are Confidential within twenty (20) days of receiving a copy of the deposition transcript. If a producing party timely designates such documents, information, or things as "CONFIDENTIAL — SUBJECT TO PROTECTIVE ORDER" or "CONFIDENTIAL — SUBJECT TO PROTECTIVE ORDER — OUTSIDE COUNSEL EXPERTS ONLY" on the record or within twenty days of receiving the deposition transcript, the court reporter shall indicate on the cover page of the transcript that the transcript includes Confidential information, shall list the pages and lines numbers and/or exhibits of the transcript on or in which such information is contained, and shall bind the transcript in separate portions containing Confidential and non-Confidential material. The court reporter will be instructed to distribute such transcription under seal clearly labeled with the appropriate designation together with the following statements: "DESIGNATED PARTS NOT TO BE USED, COPIED, OR DISCLOSED EXCEPT AS AUTHORIZED BY ORDER OF THE COURT." Further, during the period in which such Confidential information is discussed during the deposition, any person present during the deposition who is not entitled to access to the information under the terms of this Protective Order shall be excluded from that portion of the deposition,
9. All documents and things, including transcripts, submitted to the Court that disclose information designated as "CONFIDENTIAL — SUBJECT TO PROTECTIVE ORDER" or "CONFIDENTIAL — SUBJECT TO PROTECTIVE ORDER — OUTSIDE COUNSEL EXPERTS ONLY" will be filed by the parties under seal and retained as such by the Court subject to the Fed.R.Civ.Proc. and the Local Rules of the Court that apply to such information. All such documents and things filed with or submitted to the Court will be conspicuously marked "CONFIDENTIAL — SUBJECT TO PROTECTIVE ORDER" or "CONFIDENTIAL — SUBJECT TO PROTECTIVE ORDER — OUTSIDE COUNSEL EXPERTS ONLY". Proceedings and hearings in this action that refer to or that describe information designated "CONFIDENTIAL — SUBJECT TO PROTECTIVE ORDER" or "CONFIDENTIAL — SUBJECT TO PROTECTIVE ORDER — OUTSIDE COUNSEL EXPERTS ONLY" will be held in camera or as the Court may otherwise require or order. This Protective Order does not cover the use of such Confidential information at trial, and provisions for handling and protecting such information will be addressed prior to trial.
10. For purposes of keeping clients informed and obtaining client instructions and authorizations, a party or participant serving or filing with the Court sealed pleadings, motions, applications, briefs, memoranda, affidavits, declarations, and papers that include information that is designated "CONFIDENTIAL — SUBJECT TO PROTECTIVE ORDER — OUTSIDE COUNSEL EXPERTS ONLY" will provide parties hereto, upon written request, a redacted, non-confidential and unsealed copy thereof (exclusive of exhibits) with the "CONFIDENTIAL — SUBJECT TO PROTECTIVE ORDER — OUTSIDE COUNSEL EXPERTS ONLY" information redacted therefrom within 3 business days of the request.
11. The stipulations of the parties and participants to the terms and provisions of this Protective Order will not be construed as an admission or concession against the parties or participants that the information designated confidential hereunder is, in fact, confidential, proprietary, a trade secret, or otherwise protectible as such. A party or participant in this action that agrees in writing to be subject to this Protective Order may challenge the designations made by a producing party of such information, and will give the producing party prior written notice of such challenge. The party designating such information will, within 5 days of receiving written notice of such challenge, meet and confer with the party challenging the designation. If unresolved, and if the designating party wishes to maintain the confidentiality of the information, the party wishing to maintain the confidentiality of the information will within 5 days thereafter bring before the Court the question of confidentiality and the issue of whether this Protective Order should govern the disclosure and use of such information. The party wishing to maintain the confidentiality of such information will bear the burden of establishing that the desired protected status of the information is appropriate. The party challenging the designation will act in accordance with this Protective Order until a ruling is received sustaining or vitiating the designation.
12. Nothing in this Protective Order prevents the marking, or the exhibition to a witness, or the offering into evidence at deposition, or the use at a pretrial hearing or proceeding, of documents or things designated as "CONFIDENTIAL — SUBJECT TO PROTECTIVE ORDER" or "CONFIDENTIAL — SUBJECT TO PROTECTIVE ORDER — OUTSIDE COUNSEL EXPERTS ONLY", provided that the disclosure of such documents or things is accomplished in a manner consistent with paragraphs 4 and 7 above, which manner may include, among other things, excluding from the room a person to whom disclosure would not be permitted under the terms of this Protective Order. The party that objects to the presence of any particular person in a room where protected information is to be revealed has the burden to propound the objection and to seek to enforce this Protective Order. In addition, all deposition testimony and exhibits designated as "CONFIDENTIAL — SUBJECT TO PROTECTIVE ORDER" will be bound in a separate transcript, and clearly marked on each page "CONFIDENTIAL — SUBJECT TO PROTECTIVE ORDER" or "CONFIDENTIAL — SUBJECT TO PROTECTIVE ORDER — OUTSIDE COUNSEL EXPERTS ONLY" as is appropriate and will be thereafter treated as such.
13. In the event a person or party or participant having possession, custody, or control of information or things designated as "CONFIDENTIAL — SUBJECT TO PROTECTIVE ORDER" or "CONFIDENTIAL — SUBJECT TO PROTECTIVE ORDER — OUTSIDE COUNSEL EXPERTS ONLY" receives a subpoena or other process or order to produce such information, such person or party will immediately notify in writing the attorneys of record of the party or participant asserting the confidential treatment of the item, document, or information sought by such subpoena or other process or order, and will provide reasonable cooperation in proceedings directed to protecting such information that may be pursued by the party whose interests may be adversely affected by the disclosure. The person or entity asserting the confidentiality under this Protective Order will timely present a motion to quash or modify the subpoena, process, or order to the appropriate authority and the producing party will refrain from production until a ruling is made on the motion, and then will only produce such information in accordance with such the ruling and in accordance with this Protective Order to the extent possible. If the party receiving the subpoena timely complies with all its obligations set forth under this paragraph, any sanction that is levied for the sole reason that the receiving party complied with its obligations under this paragraph shall be borne by the producing party. All such produced information and things, if any, will be appropriately marked as set forth herein. If no such motion is made despite a reasonable opportunity to do so, the person or party receiving the subpoena or other process or order will comply with it so long as obligations arising under this Protective Order are fulfilled.
14. Within 30 days after the final termination of these proceedings, whether by trial or appeal or otherwise, all parties in possession of documents and things containing or disclosing information designated as "CONFIDENTIAL — SUBJECT TO PROTECTIVE ORDER" or "CONFIDENTIAL — SUBJECT TO PROTECTIVE ORDER — OUTSIDE COUNSEL EXPERTS ONLY" will return all copies of such confidential documents and things to the producing party, or otherwise will destroy and state in writing that all such copies have been destroyed in a manner that prevents their disclosure in violation of this Protective Order. Regardless of the above, all information and documents will continue to be governed by the terms of this Protective Order unless and until the designation of such information and/or documents is changed by the designating party or competent legal authority.
15. The restrictions set forth in this Protective Order do not apply to information that:
(a) Was or is disclosed to the public other than through a violation of this Protective Order; or
(b) Is acquired by the non-producing party from a third party lawfully possessing such information, provided such acquisition is not in violation of a confidentiality obligation owed by the non-producing party to the party seeking to designate the information as "CONFIDENTIAL — SUBJECT TO PROTECTIVE ORDER" or "CONFIDENTIAL — SUBJECT TO PROTECTIVE ORDER — OUTSIDE COUNSEL EXPERTS ONLY," which obligation is independent of this Protective Order; or
(c) Was already in the possession of the non-producing party prior to the receipt of such information from the producing party hereunder; or
(d) Has been deemed by competent legal authority not to constitute a trade secret, not to be proprietary information, or not to be otherwise protectible confidential information.
16. The inadvertent production of any Confidential Material during discovery without a "CONFIDENTIAL", "CONFIDENTIAL — SUBJECT TO PROTECTIVE ORDER", or "CONFIDENTIAL — SUBJECT TO PROTECTIVE ORDER — OUTSIDE COUNSEL EXPERTS ONLY" designation will be without prejudice to any claim that such material is "CONFIDENTIAL", "CONFIDENTIAL — SUBJECT TO PROTECTIVE ORDER", or "CONFIDENTIAL — SUBJECT TO PROTECTIVE ORDER — OUTSIDE COUNSEL EXPERTS ONLY" or privileged in any respect or protected from discovery as trial preparation material, and no party will be held to have waived any rights by such inadvertent production. If counsel inadvertently fails to so designate any documents or things as "CONFIDENTIAL", "CONFIDENTIAL — SUBJECT TO PROTECTIVE ORDER", or "CONFIDENTIAL — SUBJECT TO PROTECTIVE ORDER — OUTSIDE COUNSEL EXPERTS ONLY" counsel may so designate them within 10 working days of such inadvertent failure. In the event that any document or thing that is subject to a claim of privilege or that is protected from discovery as attorney work product or trial preparation material is inadvertently produced, the party that received the document will return the document together with all copies of the document to the producing party promptly after it receives a written notice from the producing party that the document was produced inadvertently.
17. This Protective Order will bind the parties hereto in contract, which contract will survive this proceeding, and violations hereof may be remedied in this proceeding as set forth herein, and may be remedied after this proceeding has concluded through usual and customary methods.
SO ORDERED.
EXHIBIT "A" ACKNOWLEDGMENT OF AND AGREEMENT TO BE BOUND BY TERMS OF PROTECTIVE ORDER
I, ______________________________, declare as follows:I hereby acknowledge that I may receive information designated as CONFIDENTIAL — SUBJECT TO PROTECTIVE ORDER, or CONFIDENTIAL — SUBJECT TO PROTECTIVE ORDER — OUTSIDE COUNSEL EXPERTS ONLY related to the case captioned SRECQ-Flexible Inc. v. Sewer Equipment Co. of America, before United States District Judge Ted Stewart of the United States District Court for the District of Utah, Central Division, in Civil Action No. Civil Action No. 2:84-CV-0814TS; and I certify my understanding that such information is provided to me pursuant to the terms and restrictions of the Protective Order entered in that proceeding ("Order").
I further agree that I have been given a copy of and have read the Order, that I am familiar with its terms, that I agree to comply with and to be bound by each of the terms thereof, and that I agree to hold in confidence all information and things disclosed to me pursuant to the terms of the Protective Order.
To assure my compliance with the Order, I hereby submit myself to the personal jurisdiction of the United States District Court for the District of Utah for the limited purpose of any proceeding relating to performance under, compliance with, or violation of the Protective Order.
I declare under penalty of perjury under the laws of the United States of America that the foregoing is true and correct.
Executed on this ___ day of ________, 20__.
SIGNED: _________________________
Printed Name: ___________________