Opinion
Civil Action No. 1:05 CV-00040 TS.
August 1, 2005
H. DICKSON BURTON, EDGAR R. CATAXINOS, BRETTON L. CROCKETT, TRASKBRITT, PC, Salt Lake City, UT, Attorneys for Plaintiff, EK Ekcessories, Inc.
L. DAVID GRIFFIN, MATTHEW A. BARLOW, WORKMAN NYDEGGER, Salt Lake City, UT, Attorneys for Defendant, Chisco, Inc.
STIPULATED PROTECTIVE ORDER
The discovery procedures in this case may require disclosure of information, either documentary or testimonial or both, regarded by the producing party as confidential information incorporating proprietary data, know-how, trade secrets, or other valuable commercial information. Accordingly, the parties, by and through their respective attorneys, stipulate, and agree to the following terms and conditions, which shall apply to this civil action:
1. Any document, tangible item, or testimonial information provided by either party, which that party in good faith contends contains information proprietary to it and entitled to protection under Rule 26(c) of the Federal Rules of Civil Procedure, may be designated as confidential and, except as permitted by further Order of a Court of competent jurisdiction, or by subsequent written agreement of the producing party, such designated documents, tangible items, or testimonial information shall be received by counsel of record for the party upon the terms and conditions of this Stipulated Protective Order ("Protective Order").
2. Documents or tangible items shall be designated confidential within the meaning of this Protective Order in the following ways:
(a) In the case of documents and the information contained therein, by placing on the document the legend "CONFIDENTIAL" or "ATTORNEYS' EYES ONLY."
(b) In the case of interrogatory answers and the information contained therein, designation shall be made by placing on the pages containing the confidential information the legend "CONFIDENTIAL" or "ATTORNEYS' EYES ONLY."
(c) In the case of tangible items, designation shall be made by visibly marking the item "CONFIDENTIAL" or "ATTORNEYS' EYES ONLY."
(d) In producing original files and records for inspection, no marking need be made by the producing party in advance of the inspection. For the purposes of the inspection, all documents produced shall be considered as marked "ATTORNEYS' EYES ONLY." Thereafter, upon selection of specified documents for copying by the inspecting party, the producing party shall mark as "CONFIDENTIAL" or "ATTORNEYS' EYES ONLY" the copies of such documents as may contain confidential information at the time the copies are produced to the inspecting party.
(e) All confidential information not reduced to documentary, tangible or physical form, or which cannot be conveniently designated pursuant to the preceding paragraphs, shall be designated by the producing party by informing the opposing party in writing.
3. With respect to all documents, information, or tangible items, produced or furnished by a party during this litigation, which are designated as "CONFIDENTIAL" or "ATTORNEYS' EYES ONLY" by the producing party, such information shall be kept confidential and shall not be given, shown, made available, discussed, or otherwise communicated in any manner ("disclosed"), either directly or indirectly, to any person not authorized to receive the information under the terms of this Protective Order.
4. If, in the course of this proceeding, depositions are conducted that involve confidential information, counsel for the witness or party producing such information may state, on the record, the portion of the deposition which counsel believes may contain confidential information. If such designation is made, that portion of the deposition will be taken with no one present except those persons who are authorized to have access to such confidential information in accordance with this Protective Order, and the court reporter. Subject to the terms hereof, CONFIDENTIAL or ATTORNEYS' EYES ONLY information may be disclosed by a receiving party in a deposition, to the extent that its use is necessary, only at the deposition(s) of:
(a) the present Directors or Officers of the producing party;
(b) present employees, directors, or officers of the producing party, to the extent such persons would be entitled to receive such information pursuant to the producing party's internal policies respecting confidentiality;
(c) an author, addressee, or other person indicated as a lawful recipient of a document containing the information;
(d) a person clearly identified in prior discovery or by the deponent in his or her deposition as an author or recipient of the information (without prior disclosure of the specific confidential information). Prior to any disclosure under this subparagraph (d), notice must be given to the producing party of the specific information so that it has a fair opportunity to object to the disclosure. Notice may be given at the time of the deposition. The parties agree to cooperate, and, if necessary, to defer any such disclosure, to allow either party to initiate action, by motion or otherwise, with the Court. The producing party bears the burden of establishing confidentiality;
(e) an independent advisor, consultant, or expert otherwise qualified under this Stipulated Protective Order to receive such information; or
(f) any person for whom prior authorization is obtained from the producing party or the Court.
Each party shall have until thirty (30) days after receipt of the deposition transcript within which to inform the other parties to the action of the portions of the transcript (by specific page and line reference) that are to be designated as CONFIDENTIAL or ATTORNEYS' EYES ONLY. The right to make such designation shall be waived, unless made within the thirty (30) day period. Prior to such designation or expiration of the thirty (30) day period, the entire deposition transcript shall be deemed ATTORNEYS' EYES ONLY information. Transcripts of testimony, or portions thereof, containing confidential information shall be filed only under seal as described in paragraph 5, until further order of the Court. Once a CONFIDENTIAL or ATTORNEYS' EYES ONLY designation is made, Depositions shall be marked as such and separately bound in a confidential volume, and shall, if required, be separately filed as provided herein so as to distinguish such confidential deposition or confidential portions thereof from non-confidential public depositions or public portions thereof.
If, during the above-described thirty (30) day designation period, a party wishes to disclose portions of the deposition transcript, the party shall make a written request to opposing counsel. The written request shall identify the portions of the deposition transcript to be disclosed and the person(s) to whom such disclosure is to be made. If no objection is made within ten (10) business days of the written request, counsel for the requesting party shall be free to make such disclosure. If objection is made within the ten (10) business days, then no disclosure shall be made. Any party may bring before the Court the question of whether the requested disclosure may be made. In the resolution of such matter, the objecting party shall have the burden of establishing before the Court the reasons for denying the requested disclosure.
5. Any document, pleading, or tangible item which contains confidential information, if filed or submitted to the Court, shall be filed pursuant to DUCivR 5-2 and shall be filed in a sealed envelope marked "CONFIDENTIAL — NOT TO BE OPENED EXCEPT BY ORDER OF THE COURT." Subject to DUCivR 5-2, counsels of record for the parties are hereby authorized to be the persons who may retrieve confidential exhibits and/or other confidential matters filed with the Court upon termination of this litigation without further order of this Court, and are the persons to whom such confidential exhibits or other confidential matters may be returned by the Clerk of the Court, if they are not so retrieved.
6. Any confidential document, tangible item, or testimonial information produced by any party which contains information proprietary to the producing party and which is particularly sensitive competitive information, may be designated in writing as ATTORNEYS' EYES ONLY. Examples of the types of information that may be designated as ATTORNEYS' EYES ONLY include:
(a) The names, or other information tending to reveal the identities, of a party's supplier;
(b) The names, or other information tending to reveal the identities, of a party's present or prospective customers;
(c) Proprietary technical and financial information of a party;
(d) The names, or other information tending to reveal the identities, of a party's distributors; and
(e) Strategic and marketing plans of a party.
Other categories of ATTORNEYS' EYES ONLY information may exist. The parties agree to designate information as CONFIDENTIAL or ATTORNEYS' EYES ONLY on a good-faith basis and not for purposes of harassing the receiving party or for purposes of unnecessarily restricting the receiving party's access to information concerning the lawsuit.
7. Before disclosure of any information subject to this Protective Order is made to any employee or officer of the non-producing party, or to any consultant or expert retained by the non-producing party, or to any witness or prospective witness, counsel for the party disclosing the information shall obtain a written undertaking, in the form attached hereto as Appendix A, from each person to whom disclosure is to be made, acknowledging that any document, information or tangible item that has been designated as confidential is subject to this Protective Order, that the person has read this Protective Order, that such person agrees to comply with, and be bound by, this Protective Order, and that such person is aware that contempt sanctions may be entered for violation of this Protective Order.
The person to whom disclosure is to be made must be given a copy of this Protective Order, and the provisions of this Protective Order must be explained to the person to whom disclosure is to be made by an attorney.
If the person to whom disclosure is to be made is a consultant or expert, a copy of the signed undertaking, a curriculum vitae of the proposed expert, must be served by facsimile on the non-producing counsel of record at least ten (10) business days before the confidential information is shown to such a consultant or expert.
The undertaking shall be provided to opposing counsel ten (10) business days in advance of the first disclosure of any confidential information to such person. If no objection is made in writing to such person receiving confidential information within such ten (10) business day period, then confidential information may be disclosed to such person. If an objection is made, then the objecting party may bring before the Court the question of whether the confidential information may be disclosed to such person within ten (10) business days of the written objection being made. No disclosure of any confidential information to such person shall be made until the Court has fully resolved the question brought regarding the disclosing confidential information to the objected to person. In the resolution of such matter, the objecting party shall have the burden of establishing before the Court the reasons for denying disclosure to such person. All signed undertakings shall be maintained through the conclusion of this action.
8. Except as permitted by further order of this Court or by subsequent written agreement of the producing party, disclosure of ATTORNEYS' EYES ONLY documents or information, including summaries thereof, but not including documents with the confidential portions redacted, shall be limited to:
(a) Outside counsel for the parties, associate attorneys, as well as paralegals and clerical employees assisting such counsel;
(b) Judges, Magistrates, law clerks, and clerical personnel of the Court before which this action is pending;
(c) consultants or experts (not employees or officers of the parties) retained by either of the parties to consult or testify in the case, upon completing the procedures of paragraph 7 above;
(d) employees and officers of the party producing the documents or information;
(e) authors or drafters of the documents or information;
(f) translators of foreign language documents or foreign language testimony retained to provide translations of ATTORNEYS' EYES ONLY or CONFIDENTIAL documents or information; and
(g) third parties, who are not affiliates of or employed by one of the parties, but are specifically retained to assist the attorneys of record or a party in copying or computer coding or imaging of documents.
The parties agree that any disclosure under this paragraph shall not be deemed to waive any attorney-client privilege or work product immunity that may exist.
9. Disclosure of information designated as CONFIDENTIAL, including summaries thereof, shall be limited to (a) the persons and entities identified in paragraph 8; and (b) no more than two (2) employees or officers of the non-producing party, upon completing the procedures of paragraph 7 above.
10. If it becomes necessary for counsel for a party receiving CONFIDENTIAL or ATTORNEYS' EYES ONLY information to seek the assistance of any other person, other than those referred to in paragraphs 8 and 9, such as any employee of the receiving party, and to disclose CONFIDENTIAL or ATTORNEYS' EYES ONLY information to such person in order to properly prepare this litigation for trial, the following procedures shall be employed:
(a) Counsel for the receiving party shall notify, in writing, counsel for the party producing the CONFIDENTIAL or ATTORNEYS' EYES ONLY information of their desire to disclose such CONFIDENTIAL or ATTORNEYS' EYES ONLY information and shall identify the person(s) to whom they intend to make disclosure;
(b) If no objection to such disclosure is made in writing by counsel for the producing party within ten (10) business days of such notification, counsel for the receiving party shall be free to make such disclosure to the designated person(s); provided, however, that counsel for the receiving party shall serve upon opposing counsel, prior to disclosure, an Undertaking in the form attached hereto as Appendix A, whereby such person agrees to comply with and be bound by this Protective Order and counsel for the for the receiving party shall explain the provisions of this Protective Order to the designated person(s).
(c) If the producing party objects to such disclosure, no disclosure shall be made. Any party may bring before the Court the question of whether the particular CONFIDENTIAL or ATTORNEYS' EYES ONLY information can be disclosed to the designated person(s). In the resolution of such matter, the producing party shall have the burden of establishing before the Court the reasons for denying disclosure to the designated person(s).
11. If, through inadvertence, a producing party provides any information pursuant to this litigation without marking the information as CONFIDENTIAL or ATTORNEYS' EYES ONLY information, the producing party may subsequently inform the receiving party of the CONFIDENTIAL or ATTORNEYS' EYES ONLY nature of the disclosed information, and the receiving party shall treat the disclosed information as CONFIDENTIAL or ATTORNEYS' EYES ONLY information upon receipt of written notice from the producing party, to the extent the receiving party has not already disclosed this information.
12. The restrictions set forth in this Order will not apply to information which is known to the receiving party or the public before the date of its transmission to the receiving party, or which becomes known to the public after the date of its transmission to the receiving party, provided that such information does not become publicly known by any act or omission of the receiving party, its employees, or agents which would be in violation of this order. If such public information is designated as CONFIDENTIAL or ATTORNEYS' EYES ONLY, the receiving party must inform the producing party of the pertinent circumstances before the restrictions of this order will be inapplicable.
13. No person or party shall directly or indirectly utilize or disclose any CONFIDENTIAL or ATTORNEYS' EYES ONLY information obtained pursuant to pretrial discovery in this action, except for the purpose of this action only and in accordance with any further order issued by the Court.
14. Acceptance by a party of any information, document, or thing designated as CONFIDENTIAL or ATTORNEYS' EYES ONLY shall not constitute a concession that the information, document or thing is confidential. Either party may contest a claim of confidentiality. If the receiving party disagrees with the designation and marking by any producing party of any material as "CONFIDENTIAL" or "ATTORNEYS' EYES ONLY", then the parties shall first try to resolve such disputes on an informal basis. If agreement cannot be reached between counsel, then such dispute may be presented to the Court by either party by motion or otherwise. In the resolution of such matter, the party contesting confidentiality shall have the burden of establishing before the Court the non-confidentiality of the information, document, or thing.
15. This Protective Order shall be without prejudice to the right of any party to oppose production of any information on grounds other than confidentiality.
16. This Protective Order shall not prevent any party from applying to the Court for relief therefrom, from applying to the Court for further or additional protective orders, or from agreeing among themselves to modify or vacate this Protective Order, subject to the approval of the Court.
17. At the conclusion of this action, including any appeals, all CONFIDENTIAL and ATTORNEYS' EYES ONLY information furnished pursuant to this Protective Order, and all copies thereof, shall be returned to the producing attorneys of record, or, at the producing party's option, destroyed by counsel for the receiving party. The provisions of this Protective Order insofar as they restrict the disclosure, communication of, and use of, confidential and attorneys' eyes only information produced hereunder shall continue to be binding after the conclusion of this action. Outside counsel may retain one copy of any material containing confidential information market CONFIDENTIAL and ATTORNEYS' EYES ONLY and one copy of counsel's work product incorporating such confidential information, which shall remain subject to the provisions of this order.
18. If discovery is sought of a person not a party to this action ("non-party" or "third party") requiring disclosure of such non-party's CONFIDENTIAL or ATTORNEYS' EYES ONLY information, the CONFIDENTIAL or ATTORNEYS' EYES ONLY information disclosed by such non-party will be accorded the same protection as the parties' CONFIDENTIAL or ATTORNEYS' EYES ONLY information, and will be subject to the same procedures as those governing disclosure of the parties' CONFIDENTIAL or ATTORNEYS' EYES ONLY information pursuant to this Stipulated Protective Order.
19. The production, through inadvertence, mistake, or other error, by one party to another, during document production, of any document entitled to protection under the attorney-client privilege or the attorney work-product doctrine shall not constitute a waiver of such privilege as to the subject matter of the document or as to related documents or communications. If during document production either party produces to the other a document entitled to protection under the attorney-client privilege or the attorney work-product doctrine, the producing party may, at any time prior to the commencement of trial — but in any event not more than fifteen (15) business days after the document is first identified as a potentially attorney-client privileged or work product protected document, marked as a deposition exhibit, or identified as a potential trial exhibit — request the return of the document. Such a request must be made in writing and must identify the basis for the privilege claimed. If the party that received the document agrees that it is privileged (without regard to its production during document production), then the document and all copies shall promptly be returned to the producing party or destroyed, and no reference to such document shall be made in connection with the proof of the facts in this dispute. If the party that received the document does not agree that the document was privileged, then it shall so notify the producing party within ten (10) business days of receiving written notice of the asserted privilege. In such event, the producing party may move the Court to resolve the question of privilege. Unless the parties otherwise agree in writing, any such motion must be made within fifteen (15) business days of receiving notification that the recipient of the document disputes the claim of privilege. If the Court rules that the document is privileged (without regard to the fact of production in the course of document production), then the party that received the document shall promptly return the document and all known copies to the producing party (except that counsel may retain copies as needed for the sole purpose of seeking reconsideration or appellate review of the Court's ruling on the question of privilege) and shall make no reference to the document in connection with the proof of the facts in this case.
20. Nothing in this Protective Order shall bar or otherwise restrict any attorney herein from rendering advice to his client with respect to this litigation and in the course thereof, relying upon the attorney's examination of confidential information; provided, however, that in rendering such advice and in otherwise communicating with his client, the attorney shall not disclose any confidential information.
21. This Protective Order may be amended by the agreement of counsel for the parties in the form of a stipulation, subject to order of the Court. Any party for good cause may apply to the Court for a modification of this Protective Order. This Protective Order shall remain in full force and effect after the termination of this litigation, or until canceled or otherwise modified by order of this Court.
IT IS SO ORDERED.
STIPULATED PROTECTIVE ORDER
I, ___________________________, declare that:1. My address is ____________________________________.
2. My present employer is ___________________________.
3. My present occupation or job description is ______ ___________________________________________________________.
4. I have received a copy of the Protective Order in this action signed by United States District Judge Ted Stewart on ______________, 2005.
5. I have carefully read and understand the provisions of the Protective Order.
6. I will comply with all of the provisions of the Protective Order.
7. I will hold in confidence, will not disclose to anyone not qualified under the Protective Order, and will use only for purposes of this action any confidential materials which are disclosed to me.
8. I will return all confidential material that comes into my possession, and documents or things that I have prepared relating thereto, to counsel for the party by whom I am employed or retained.
9. I hereby submit to the jurisdiction of this Court for the purposes of enforcement of the Protective Order in this action.
Dated: ____________________ ________________________ (name)