Opinion
CASE NO. 2:03CV-00155
December 15, 2003
David W. Tufts, Gabriel S. Clark, DURHAM JONES PINEGAR, P.C., Salt Lake City, Utah for Plaintiff
Shane Keppner, for Defendant
ORDER GOVERNING THE DISCLOSURE OF CONFIDENTIAL AND PROPRIETARY INFORMATION
The Court having reviewed the Stipulation Governing the Disclosure of Confidential and Proprietary Information and good cause appearing therefor, ORDERS AS FOLLOWS:
1. As used herein, "Restricted Information" shall mean information which is not otherwise available to the public and which, in the reasonable and good faith belief of the designating party, discloses a trade secret or other confidential research, development, manufacturing, financial or commercial information, including customer and licensing information, of the designating party, which justice requires be protected from disclosure. "Designating Party" means the party who designates documents, discovery responses or testimony as Restricted Information under this Stipulation and Order.
2. Any party may designate documents and discovery responses it produced in this case as Restricted Information by stamping it "Restricted Information" as provided in paragraph 10 herein, All copies, summaries or descriptions of the Restricted Information shall be treated as Restricted Information which is subject to this Stipulation and Order.
3. Except as otherwise may be provided by this Stipulation and Order, or by further order of the Court, access to Restricted Information shall be limited to: (a) the Court and its officers; (b) designated witnesses (as provided in paragraph 8 herein), court reporters at depositions, hearings or other proceedings in this action, and the mediator or mediators that the parties agree to employ for mediation of this matter; (c) attorneys of record in this action, including the secretarial, legal assistants and office staffs of such attorneys; (d) persons engaged by attorneys of record in this action to assist them in the preparation of this action, including independent experts and consultants and their employees; and (e) the parties to this action, their officers, directors and employees, and persons engaged by the parties to assist them in the preparation of this action, including independent experts and consultants and their employees (collectively, the "Approved Persons"). Approved Persons having access to Restricted Information shall not disclose such information to any person not bound by this Stipulation and Order, or use such information for any purpose other than the prosecution or defense of this litigation.
4. In the event that a Designating Party, in the reasonable and good faith belief that justice requires it, deems it necessary to deny access to specified Restricted Information to those persons described above in paragraph 3(e), such information may be designated "Restricted Information/Attorneys' Eyes Only." Where information is designated "Restricted Information/Attorneys' Eyes Only," the attorneys of record for the parties shall deny such information to those persons described above in paragraph 3(e), unless the Designating Party discloses the information to those persons at depositions, hearings or other proceedings in this action. The Designating Party is the only party authorized to disclose information designated "Restricted Information/Attorneys' Eyes Only" to the persons described in paragraph 3(e).
5. Hereafter, the term "Restricted Information" shall include and refer to both information designated as "Restricted Information" and information designated as "Restricted Information/Attorneys' Eyes Only."
6. Restricted Information shall not be used or disclosed by any party to this litigation, or by any person granted access thereto under this Stipulation and Order, for any business or competitive purpose or for any purpose other than the preparation and trial of this action. No party and no person granted access under this Stipulation and Order shall disclose Restricted Information, or any information therefrom, except as provided in this Stipulation and Order. Notwithstanding the foregoing, this Stipulation and Order does not restrict the right of the Designating Party to make such use or disclosure of its own documents or material which have been designated as Restricted Information as it otherwise is entitled to make.
7. Any person described in paragraphs 3(d) and (e) herein, having access to Restricted Information shall be informed of this Stipulation and Order and shall agree in writing to be bound by the terms of this Stipulation and Order by executing a copy of Exhibit A (which shall be maintained by the attorneys of record in this action) prior to being shown Restricted Information. Counsel for the parties to this Stipulation and Order shall each maintain a list of the Approved Person(s) who provide to counsel an executed copy of Exhibit A, along with the date on which the Approved Person(s) executed Exhibit A, the date on which the Approved Person(s) were given access to Restricted Information by counsel and the Restricted Information to which the Approved Person(s) was given access by counsel. Counsel will make said list available in a timely manner to counsel for any party to this Stipulation and Order upon counsel's request for same,
8. Any party seeking to disclose Restricted Information to any witness, including an Approved Person, at a deposition, hearing or other proceeding in this action, shall inform the party who made the designation at least five (5) court days prior to making such disclosure and no disclosure shall be made if the party who made the designation objects thereto. If there is no objection, the witness shall agree in writing to be bound by the terms of this Stipulation and Order by executing a copy of Exhibit A (which shall be maintained by the attorneys of record for the party seeking to reveal the Restricted Information to the witness) in advance of being shown the Restricted Information. The parties (and its counsel) shall request all witnesses to whom they seek to show Restricted Information to execute a copy of Exhibit A. Neither the parties nor their counsel shall discourage any witness from signing a copy of Exhibit A. However, if a witness refuses to execute a copy of Exhibit A, Restricted Information may not be disclosed to such witness.
9. An Approved Person may disclose Restricted Information in response to a subpoena or order of a court with jurisdiction or other governmental entity, but not prior to the return date or date of production specified in the subpoena or order. The Approved Person shall give written notice of such subpoena or order within five calendar (5) days of receipt thereof to the Designating Party. Such Approved Person may produce Restricted Information in compliance with the subpoena or order unless the Approved Person has been given timely advance notice that an order quashing or limiting the subpoena or staying or limiting the order of disclosure has been entered or that a motion for such an order has been filed.
10. In the production of documents or responses to discovery by any party hereto, Restricted Information shall be designated by marking each document in which such Restricted Information is contained. Such marking shall be made prior to the transmission of a physical copy of such document to the party requesting such document, and shall be in substantially the following form:
(1) "RESTRICTED INFORMATION SUBJECT TO PROTECTIVE ORDER Case No. 2:03 CV 00155" or "RESTRICTED INFORMATION/ATTORNEYS' EYES ONLY SUBJECT TO PROTECTIVE ORDER (2) Case No. 2:03 CV 00155"The foregoing designation shall be applied by a rubber stamp or other suitable means to the document.
11. In connection with the taking of any deposition in this action:
a. Counsel for any party hereto may, prior to or at the commencement of any such deposition, temporarily designate the entire deposition transcript as Restricted Information. In that event, the Designating Party shall give a copy of this Stipulation and Order to the court reporter reporting the deposition and shall request that such reporter execute a copy of Exhibit A, which shall constitute an agreement that he or she, his or her employees, and his or her agents shall be bound by the terms of this Stipulation and Order, and shall make no use or disclosure of Restricted Information unless expressly permitted by the terms of this Stipulation and Order, or by the express consent of the Designating Party. Such acknowledgment thereafter shall remain in effect for any subsequent depositions reported by such reporter.
b. When any party has designated temporarily the entire deposition transcript as Restricted Information, the designation will be deemed withdrawn unless the Designating Party, within twenty-five (25) days after receipt of the transcript, marks as Restricted Information those specific pages of the transcript constituting Restricted Information, thus rescinding the Restricted Information designation of all remaining pages, and notifies all other parties hereto and the reporter in writing which pages are deemed to constitute Restricted Information.
12. All Restricted Information filed or lodged with the Court shall be filed or lodged in securely sealed envelopes or other appropriately sealed containers, on which shall be endorsed:
a. the title of this action;
b. an indication of the nature of the contents;
c. the words "RESTRICTED INFORMATION"; and
d. a statement substantially in the following form: "Subject to Protective
Order. Not to be Opened or the Contents Revealed Except (1) to the Court and Then Resealed, (2) by Written Agreement of the Parties, or (3) by Order of This Court."
13. Any party to this action may at any time notify the other parties hereto in writing of its objection that a portion or all of the information previously designated as Restricted Information is not entitled to such protection under the terms of this Stipulation and Order. Upon the sending of such written notice, the parties shall meet and confer in good faith regarding such designation. The parties can agree during the meet and confer process, or at any other time, to partially de-designate information so it may be disclosed to persons other than Approved Persons. If the parties cannot agree, the party challenging the designation shall be the moving party of record if any motion is filed to de-designate the information. The designating party shall bear the burden in such motion of proving that the information was properly designated.
14. All Restricted Information produced pursuant to this Stipulation and Order shall be maintained in a secure facility with all reasonable measures being taken by the party with custody of such Restricted Information to ensure the confidentiality of such information in accordance with the terms of this Stipulation and Order.
15. If a party to this Stipulation and Order (or its counsel) becomes aware that disclosure of Restricted Information has been made to other than an Approved Person, such party (or its counsel) shall immediately inform counsel for the party whose Restricted Information has thus been disclosed of all relevant information concerning the nature and circumstances of such disclosure, and such party shall promptly take all reasonable measures to prevent further or greater unauthorized disclosure of the Restricted Information,
16. If a party discovers that it has produced information which is not designated as Restricted Information but which it intended to have so designated, and such failure to designate was the result of mistake, inadvertence or excusable neglect, the party can made such designation after the fact so long as it does so within a reasonable time after the disclosure.
17. If information subject to a claim of attorney-client privilege or attorney work product is nevertheless inadvertently disclosed to another party, such disclosure shall in no way prejudice or otherwise constitute a waiver of, or estoppel as to, any claim of attorney-client privilege or attorney work product to which the disclosing party or other person would otherwise be entitled. If a claim of inadvertent disclosure is made, pursuant to this paragraph, with respect to information then in the custody of another party, such party shall promptly return to the claiming party or person that material as to which the claim of inadvertent disclosure has been made. The party returning such material then may move the Court for an order compelling production of the material.
18. Upon final termination of this action, counsel for each party shall inform opposing counsel as to the desired disposition of Restricted Information in the possession of the other party (and/or its counsel). The Restricted Information, except for that incorporated in the work product of counsel for parties to this action, shall either be assembled and returned to the Designating Party or destroyed, according to the desires of the Designating Party, within sixty (60) calendar days of a request by the Designating Party to the party to whom the information was produced. Restricted Information incorporated into the work product of counsel for the party receiving such Restricted Information shall be destroyed within 60 days of the final termination of this action.
19. This Stipulation and Order shall be without prejudice to the right of any party to challenge the propriety of discovery on other grounds, and nothing contained herein shall be construed as a waiver of any applicable privilege, nor of any objection that might be raised as to the admissibility at trial of any evidentiary material. The parties reserve all rights to apply to the Court for an order modifying this Stipulation and Order or seeking further protection on this or other issues, and this Stipulation and Order shall not be construed to preclude a party from applying for or obtaining such further protection.
20. Except as specifically provided herein, the terms, conditions and limitations of this Stipulation and Order shall survive the termination of this action, and the Court shall retain jurisdiction with respect to this Stipulation and Order following termination of this action.
21. No part of the terms, conditions or limitations imposed by this Stipulation and Order may be modified or terminated except by (a) written stipulation executed by counsel of record for each party hereto and (b) order of the Court.
22. Any third party upon whom the parties serve a subpoena requesting documents or other information in this action may avail themselves of this Stipulation and Order and, by signing the Stipulation, shall become a party to this Stipulation and Order.
IT IS SO ORDERED.