Opinion
ase No. 02-13533 (AJG), (Jointly Administered).
June 7, 2005
Lawrence W. Bigus, Esq., Donald C. Ramsay, Esq., Mark A. Shaiken, Esq., STINSON MORRISON HECKER LLP, Overland Park, KS, Attorney for Debtors and Debtors-in-Possession.
Stephen A. Wood (SW 6270), Robert S. Friedman (RF 1538), Robert L. LeHane (RL 9422), KELLEY DRYE WARREN LLP, New York, New York, Attorneys for Parus Holdings, Inc., successor to EffectNet, Inc.
STIPULATION AND ORDER GOVERNING THE EXCHANGE OF CONFIDENTIAL INFORMATION
WHEREAS, Claimant Parus Holdings, Inc., Successor-by-Merger to EffectNet, Inc. ("Claimant") and Debtors MCI WorldCom Communications, Inc., and Intermedia Communications, Inc. ("Debtors"), believe that in the course of this contested matter with respect to Claim Nos. 9291, 9293, 11173 and 11242 filed by Claimant in these bankruptcy cases, certain information is likely to be disclosed and produced that constitutes trade secrets, proprietary information (whether financial or otherwise), or other confidential commercial information.
IT IS HEREBY STIPULATED, AGREED AND ORDERED, by and between the undersigned counsel for the Claimant and Debtors that this Stipulation and Order shall govern the handling of any information produced or disclosed by any party or non-party (the "Producing Party") to another party in this contested matter whether or not such information is in response to that party's discovery requests (the "Receiving Party"), including, without limitation, pleadings, documents and things, depositions, deposition exhibits, discovery responses, interrogatory responses, responses to requests to admit, testimony, and any other material containing trade secrets, proprietary information (whether financial or otherwise), or other confidential commercial information (such information shall hereinafter be referred to as "Discovery Material").
1. Any person subject to this Stipulation and Order who produces any Discovery Material may designate that material as "Confidential" pursuant to the terms of this Stipulation and Order. The parties expressly agree that they will not knowingly designate as "Confidential" Discovery Material that is not properly designated as such. Such material shall hereinafter be referred to as "Confidential Discovery Material."
2. With respect to the Confidential portion of any Discovery Material other than deposition transcripts and exhibits, the Producing Party or that party's counsel may designate such portions as "Confidential" by stamping or otherwise clearly marking as "Confidential" the protected portion in a manner that will not interfere with legibility or audibility.
3. Persons subject to this Stipulation and Order shall not disclose such Confidential Discovery Material to anyone else except as expressly permitted hereunder and shall not use such Confidential Discovery Material for any purpose other than for the prosecution or defense of this contested matter.
4. With respect to depositions taken in this contested matter and exhibits thereto, any party may indicate on the record that a question, a line of questioning concerning a particular subject matter, and/or an answer to a question, calls for and/or is Confidential Discovery Material, in which case (i) a transcript of the entire deposition — including the portions containing such designated testimony — shall be prepared by the reporter and marked "Confidential Discovery Governed by Stipulation and Order"; and (ii) a transcript omitting all designated portions of the testimony shall also be prepared by the reporter in a separate volume. Alternatively, a Producing Party may designate transcripts of depositions taken in this contested matter and exhibits thereto as Confidential by indicating in writing to all the parties to the contested matter, within 14 days of actual receipt of the deposition transcript by the Producing Party, the page and line number of the deposition transcript to be designated as "Confidential". During the 14-day period following the Producing Party's actual receipt of a transcript, the entirety of that transcript will be accorded confidential treatment. A Producing Party shall have the right to exclude from attendance at any deposition, during such time as Confidential Discovery Material is to be disclosed, any persons not authorized to receive disclosure of Confidential Discovery Material under the terms of this Stipulation and Order. The parties shall be entitled to have one corporate representative present at all depositions which person shall be a current employee of the party represented. Further issues regarding handling of Confidential Discovery Material at deposition will be addressed by the parties at a later time.
5. Any interrogatory answers that a party seeks to designate Confidential shall be set forth in a paper separate from those interrogatory answers not designated Confidential and bear a title describing the answers as constituting Confidential Discovery Material. Schedules, appendices or attachments to, or documents otherwise provided with, interrogatory answers designated Confidential also may be designated as such using the procedure described in the preceding paragraph concerning documents.
6. If at any time prior to trial of this action, a Producing Person realizes that some portion(s) of Discovery Material, previously produced by that person without limitation should be designated as Confidential, he/she may so designate by so apprising all parties in writing, and such designated portion(s) of the Discovery Material will thereafter be treated as Confidential under the terms of this Stipulation and Order. The inadvertent production of any Discovery Material without it being designated Confidential will not be deemed a waiver of any claim that the item contains Confidential Discovery Material. If a party through inadvertence produces any item that contains Confidential Discovery Material without designating it as such under this Stipulation and Order, the Producing Party may furnish a substitute item properly marked along with written notice to all counsel (or written notice alone as to non-documentary information) that such item is deemed "Confidential Discovery Material" and should be treated as such. The Receiving Party must treat such information as Confidential Discovery Material from the date the notice is received. Dissemination of such Confidential Discovery Material prior to the receipt of such notice will not be deemed a violation of this Stipulation and Order.
7. No person subject to this Stipulation and Order other than the Producing Person shall disclose any of the Discovery Material designated by the Producing Person as Confidential to any other person, except to:
(a) representatives, agents, employees or former employees of the parties to the contested matter;
(b) counsel retained by the parties specifically for the contested matter, including any paralegal, clerical and other assistants employed by such counsel and assigned to this matter;
(c) as to any document, its author, its addressee, and any other person indicated on the face of the document as having received a copy;
(d) any person retained by a party to serve as an expert witness (consulting or testifying) or otherwise provide specialized advice to counsel in connection with the contested matter, provided such person has first executed a Non-Disclosure Affidavit in the form annexed as an Exhibit hereto;
(e) stenographers engaged to transcribe depositions conducted in this action;
(f) any person pursuant to (i) judicial order; (ii) subpoena pursuant to ¶ 8; (iii) at the express direction of state and/or federal regulatory and/or law enforcement authorities that have jurisdiction over the parties, as required by law;
(g) the Court and its support personnel; and
(h) such other persons as the Claimant and Debtors may agree in writing.
Claimant and Debtors shall keep a record of all persons who have been provided access to the Confidential Discovery Material of the party-opponent, except there shall be no obligation of the Claimant and Debtors to keep such record of those persons provided access who are employed by outside counsel for the parties to the contested matter.
8. If any party (a) is subpoenaed in another action, or (b) is served with a demand in another action to which it is a party, or (c) is served with any legal process by one not a party to this Contested Matter, seeking Discovery Material which was produced or designated as CONFIDENTIAL by someone other than that party, then the party receiving the subpoena, demand, or other legal process shall give prompt actual written notice, by hand delivery or facsimile transmission, within ten (10) days of receipt of the subpoena, demand or other legal process, but in any event not less than three (3) business days before response to the subpoena, demand or other legal process is required, to counsel for the Producing Party who designated the material CONFIDENTIAL. It shall be the burden of the Producing Party to object to the production of Confidential Discovery Material if the Producing Party deems an objection to the subpoena, demand or other legal process is appropriate. The party receiving the subpoena, demand or other legal process shall not produce such Confidential Discovery Material until advised by the Producing Party that no objection will be made or until the Producing Party's objection to the production of Confidential Discovery Material is resolved by the court or mutual agreement of the parties and the party serving the subpoena, demand or other legal process, and to the extent permitted by law. Should the person seeking access to the CONFIDENTIAL information take action against the party or anyone else covered by this Stipulation and Order to enforce such a subpoena, demand or other legal process, the party shall respond by setting forth the existence of this Stipulation and Order. Nothing herein shall be construed as requiring the party or anyone else covered by this Stipulation and Order to challenge or appeal any order requiring production of CONFIDENTIAL information covered by this Stipulation and Order, or to subject itself to any penalties for noncompliance with any legal process or Order, or to seek any relief from this Court.
9. Prior to any disclosure of any Confidential Discovery Material to any person referred to in paragraph 7 above, such person shall be provided by counsel with a copy of this Stipulation and Order and shall sign a Non-Disclosure Affidavit in the form annexed as an Exhibit hereto stating that that person has read this Stipulation and Order and agrees to be bound by its terms. Said counsel shall retain each signed Non-Disclosure Affidavit, hold it in escrow, and produce it to opposing counsel, upon his or her request, either prior to such person being permitted to testify (at deposition or trial) or at the conclusion of this case, whichever comes first. Counsel (either in-house or outside counsel, and their legal staff) and the Court and its support personnel shall not be required to sign a Non-Disclosure Affidavit. Counsel shall not be required to produce to opposing counsel any Non-Disclosure Affidavit signed by any consulting expert(s) retained by that party. The refusal or failure of any such person to sign a Non-Disclosure Affidavit shall preclude disclosure of Confidential Discovery Material to such person.
10. Notwithstanding any other provision contained herein, the Parties, and/or their respective legal counsel in this case, may discuss any Confidential Discovery Material, including its contents, provisions, or statements, with any former employee of said Party or one of its affiliates, and will not be required to obtain said former employee's signature on a Non-Disclosure Affidavit in order to have such discussions. The Parties shall, however, be required to obtain the signature of the former employee on a Non-Disclosure Affidavit before showing the former employee the actual Confidential Discovery Material, or any copies of the actual Confidential Discovery Material. Furthermore, the Parties shall advise the former employee prior to the discussion of Confidential Discovery Material or its contents, provisions, or statements that said information is Confidential and not to be disseminated or disclosed to other persons. The parties shall record the names and addresses of former employees with whom discussions have been held regarding Confidential Discovery Material and those names and addresses shall be held in escrow and produced to opposing counsel, upon his or her request, either prior to such person being permitted to testify (at deposition or trial) or at the conclusion of this case, whichever comes first.
11. Any Confidential Discovery Material filed with the Court and any pleading, motion, deposition transcript, or other document that discloses any information contained in any Confidential Discovery Material shall be so identified and shall be filed under seal unless otherwise directed by Court Order or agreed to by the Producing Party. All Confidential Discovery Material filed under seal shall state on the envelope that it is being filed under seal pursuant to a Stipulation and Order of Confidentiality, and that it may not be seen by anyone other than the Court or the parties to this contested matter.
12. Any party who objects to any designation of Confidentiality of any Discovery Material may at any time prior to the trial of the contested matter serve upon counsel for the designating or Producing Party a written notice identifying with particularity the documents it contends should not be designated Confidential and the grounds of the objection. Counsel for the parties shall first try to resolve in good faith on an informal basis any disagreement or dispute regarding the Confidential designation of any Discovery Material. If a resolution cannot be reached within 20 days of the first notification of any objection to such Confidential designation of Discovery Material, counsel for any affected person may apply to the Court to seek removal of the Confidential designation.
13. This Stipulation and Order shall not apply to the treatment to be given at the trial of this contested matter to any Confidential Discovery Material. Such treatment shall be subject to subsequent Order of this Court.
14. Each person who has access to Discovery Material that has been designated as Confidential shall take all due precautions to prevent the unauthorized disclosure of such material.
15. This Stipulation and Order shall survive the termination of this contested matter. Within 60 days of the final disposition of the contested matter, including all appeals, the parties shall obtain from all witnesses, experts or other individuals provided with access to Confidential Discovery Material, their attestation that they have destroyed such Confidential Discovery Material. Such Confidential Discovery Material may be maintained or possessed only by counsel for the parties to this contested matter. The terms and conditions of this Stipulation and Order shall continue to apply to these materials.
16. A party needing relief from the provisions of this Stipulation and Order may, if agreement between or among the parties cannot be reached, seek appropriate relief from the Court upon notice to the other parties.
17. This Court shall retain jurisdiction over all persons subject to this Stipulation and Order to the extent necessary to enforce any obligations arising hereunder or to impose sanctions for any contempt thereof.
SO ORDERED.
EXHIBIT
NON-DISCLOSURE AFFIDAVIT
UNITED STATES BANKRUPTCY COURT SOUTHERN DISTRICT OF NEW YORK
In re CHAPTER 11 CASE NO. 02-13533 (AJG) WORLDCOM, INC., et al., (Jointly Administered)
Debtors.
____, being duly sworn, deposes and says:
That he/she resides at ____ in the City/County of ____ and State of ____;
That he/she has read the annexed Stipulation and Order, dated ____, 2005, in the contested matter regarding Claim Nos. 9291, 9293, 11173 and 11242 filed by Claimant Parus Holdings, Inc., Successor-by-Merger to EffectNet, Inc. ("Claimant") in In re: WorldCom, Inc., No. 02-13533 (AJG), which is pending in United States Bankruptcy Court for the Southern District of New York;
That he/she is fully familiar with and agrees to comply with and be bound by the provisions of that Stipulation and Order and consents to the jurisdiction of the United States Bankruptcy Court for the Southern District of New York; and
That he/she will not divulge to persons other than those specifically authorized by the Stipulation and Order, and will not copy or use, except solely for the purpose of this litigation, any information designated as Confidential.