National Federation of the Blind, et al v. Arizona Board of Regents, et al

Filing 49

PROTECTIVE ORDER REGARDING CONFIDENTIAL INFORMATION re 48 Signed by Judge G Murray Snow on 9/14/09. (TLJ)

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UNITED STATES DISTRICT COURT
DISTRICT OF ARIZONA

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The National Federation of the Blind, The Case No. CV-09-1359 PHX-GMS
American Counsel of the Blind, and Darrell
Shandrow,

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Plaintiffs,

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vs.

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PROTECTIVE ORDER REGARDING
CONFIDENTIAL INFORMATION

The Arizona Board of Regents and Arizona
State University,

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Defendants.

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In order to preserve the confidentiality of trade secret, personal financial

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information, and confidential information concerning the activities of the parties and non-

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parties, based on the stipulation of the parties to this action and Notice (Dkt. # 48), and

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good cause appearing,

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IT IS HEREBY ORDERED AS FOLLOWS:

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This Order shall govern the discovery in this proceeding of trade secrets, personal

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financial information, and confidential information concerning the activities of the parties

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and any non-parties. As used in this Order, the term “party” shall mean all named parties

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in the above-styled action, including any named party added or joined to this action. As

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used in this Order, the term “non-party” shall mean any individual, corporation,

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association, or other natural person or entity other than a party. The term “documents” as

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used herein is intended to be comprehensive and includes any and all materials in the
PROTECTIVE ORDER REGARDING
CONFIDENTIAL INFORMATION
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broadest sense contemplated by Rule 34 of the Federal Rules of Civil Procedure. For

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purposes of this Order, the party or non-party designating information, documents,

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materials or items as confidential bears the burden of establishing the confidentiality of

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all such information, documents, materials or items.

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1.

For the purposes of this Order, “Confidential” information means the

following types of documents and information:

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(a)

information that constitutes a trade secret under applicable law;

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(b)

non-public proprietary information that, if disclosed, would cause

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competitive harm;

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(c)

personal financial information; and/or

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(d)

confidential information concerning the activities of The National

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Federation of the Blind and The American Counsel of the Blind.
2.

Any party may seek an amendment to this Order to designate confidential

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documents and information in addition to the categories described in Paragraph 1 before

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production of any such documents and information. The parties agree to meet and confer

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in good faith and attempt to reach agreement on any request by a party to designate such

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additional categories of confidential documents or information.

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3.

Confidential documents shall be designated “Confidential” pursuant to this

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Order by stamping copies of the document produced to a party with the following legend:

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“CONFIDENTIAL - SUBJECT TO PROTECTIVE ORDER.”

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Any such stamp or designation shall not cover up, obscure or otherwise conceal

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any text, picture, drawing, graph or other communication or depiction in the document.

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If such designation is not feasible (e.g., in the case of certain electronic documents), then

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such designation may be made by informing the other parties in writing.

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4.

The designation of any material as “Confidential” pursuant to this Order

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shall constitute the verification of counsel for the producing party or non-party that the

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material constitutes “Confidential” information as defined in Paragraph 1 of this Order.

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PROTECTIVE ORDER REGARDING
CONFIDENTIAL INFORMATION
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5.

Documents produced by a party or non-party or their counsel (“Designating

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Party”) and as Confidential under this Order (hereinafter “Confidential Material”) may be

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disclosed or made available only to the following persons (hereinafter “Qualified

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Persons”):
(a)

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The parties to this action or an officer, director, or employee of a

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party deemed reasonably necessary by counsel to aid in the prosecution, defense, or

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settlement of this action;
(b)

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Counsel for the parties to this action (“Counsel”), including all

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partners and associate attorneys of such Counsel’s law firms and all clerks, employees,

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independent contractors, investigators, paralegals, assistants, secretaries, staff and

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stenographic, computer, audio-visual and clerical employees and agents thereof when

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operating under the direct supervision of such partners or associate attorneys and who are

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actually working on this action, all of whom shall be bound by this Order;
(c)

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The Court and any person employed or retained by the Court whose

duties require access to confidential material;
(d)

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Stenographic reporters or audio-visual personnel engaged in

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connection with this action including deposition reporters, video operators and

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transcribers;

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(e)

Any person who created, authored, received or reviewed such

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Confidential Material and those persons identified on such Confidential Material as

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creators, authors or recipients of the Confidential Material;

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(f)

Actual and/or potential trial or deposition witnesses, where Counsel

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believes, in good faith, that disclosure is necessary to prepare for or develop the

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testimony of such witnesses;

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(g)

Experts or consultants retained by such counsel to assist in the

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prosecution, defense, or settlement of this action and their respective employees,

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associates or colleagues;

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PROTECTIVE ORDER REGARDING
CONFIDENTIAL INFORMATION
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(h)

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Employees of firms engaged by the parties for purposes of

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photocopying, electronic imaging or computer litigation support in connection with this

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litigation; or
(i)

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Such other persons as may be designated by written agreement of

Counsel or by order of the Court.
6.

Prior to receiving any Confidential Material, each Qualified Person

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described in Paragraph 5(e) through 5(g) shall be provided with a copy of this Order and

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shall execute an Agreement to Maintain Confidentiality (hereinafter “Confidentiality

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Agreement”) in the form of Attachment “A.” Each such person signing a Confidentiality

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Agreement shall be subject to and bound by this Order. Counsel for the party seeking to

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disclose Confidential Material to any Qualified Person pursuant to Paragraph 5(e)

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through 5(g) shall be responsible for retaining the executed originals of all such

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Confidentiality Agreements and certifying that such individuals have complied with the

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requirements of Paragraph 14.

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7.

Any party seeking to file with the Court any Confidential Material under

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seal or in redacted form must seek leave to do so and must show good cause for sealing

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or redacting any documents filed in connection with non-dispositive motions or

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compelling reasons for sealing or redacting any documents filed in connection with

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dispositive motions. Any motion, pleading or other submission that contains or attaches

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Confidential Material subject to a motion for leave to file under seal (“motion for leave”)

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shall be filed simultaneously with the motion for leave and in accordance with the

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requirements of the local rules of the Court, in a sealed envelope that: (a) is endorsed

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with the caption for the matter; (b) sets forth a general description of the contents of the

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sealed envelope; and (c) contains the following legend:

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“CONFIDENTIAL:

THIS

ENVELOPE

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PURSUANT TO ORDER OF THE COURT, CONTAINS

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CONFIDENTIAL INFORMATION, AND IS NOT TO BE

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PROTECTIVE ORDER REGARDING
CONFIDENTIAL INFORMATION
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IS

SEALED

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OPENED NOR THE CONTENTS REVEALED EXCEPT BY

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ORDER OF THE COURT.”

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All papers that refer to or rely upon Confidential Material shall specify the
particular aspects of the documents or materials that are Confidential.
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If a person receiving Confidential Material learns that, by inadvertence or

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otherwise, it has disclosed Confidential Material to any person or in any circumstance not

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authorized under this Order, that person shall request the recipient to return the

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Confidential Material including all copies thereof, and notify the Designating Party that

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produced the Confidential Material of the disclosure.

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9.

Nothing in this Order shall prohibit disclosure of Confidential Material in

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response to compulsory process or the process of any governmental regulatory agency. If

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any person subject to this Order, including a person subject to a Confidentiality

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Agreement under this Order, is served with such process or receives notice of any

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subpoena or other discovery request seeking Confidential Material, such person shall

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promptly (not more than three (3) working days after receipt of such process or notice)

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notify the Designating Party of such process or request, shall take all reasonable steps to

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refrain from producing Confidential Material in response to such process, and shall afford

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a reasonable opportunity for the Designating Party to oppose the process or to seek a

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protective order.

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10.

Counsel for any deponent, party or non-party may designate specific

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portions of deposition testimony or exhibits as Confidential Material by indicating on the

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record at the deposition that the testimony of the deponent or any exhibits to his

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testimony are to be treated as confidential. The Court reporter shall separately bind such

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testimony and exhibits in a transcript bearing the legend “Confidential- Subject To

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Protective Order” on the cover page. Failure of Counsel to designate testimony or

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exhibits as confidential at deposition, however, shall not constitute a waiver of the

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confidentiality of the testimony or exhibits.

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deposition, Counsel shall be entitled to designate specific pages and lines of the transcript

Upon receipt of the transcript of the

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CONFIDENTIAL INFORMATION
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or the exhibits as confidential within thirty (30) calendar days after receipt of the

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transcript.

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Material until thirty (30) calendar days after the receipt of the final transcript of the

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deposition.

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The entire transcript of any deposition shall be treated as Confidential

No one may attend the portions of depositions or review the transcripts of

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the portions of any depositions at which Confidential Material is shown or discussed

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other than those persons designated in Paragraph 5 and outside counsel for any non-party

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deponent (who shall first sign the Confidentiality Agreement).

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12.

Unless a prompt challenge to a designating party’s confidentiality

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designation is necessary to avoid foreseeable substantial unfairness, unnecessary

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economic burdens, or a later significant disruption or delay of the litigation, a party does

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not waive its right to challenge a confidentiality designation by electing not to mount a

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challenge promptly after the original designation is disclosed. A party that elects to

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initiate a challenge to a Designating Party’s confidentiality designation must do so in

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good faith and must begin the process by conferring directly with counsel for the

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Designating Party. In conferring, the challenging party must explain the basis for its

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belief that the confidentiality designation was not proper and must give the Designating

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Party an opportunity to review the designated material, to reconsider the circumstances,

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and, if no change in designation is offered, to explain the basis for the chosen

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designation.

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designation, the Designating Party must within 30 days of the initial challenge file and

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serve a motion that identifies the challenged material and sets forth in detail the basis for

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the challenge. Each such motion must be accompanied by a competent declaration that

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affirms that the parties have complied with the meet and confer requirements imposed in

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this Paragraph and that sets forth with specificity the justification for the confidentiality

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designation that was given by the Designating Party in the meet and confer dialogue. The

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burden of persuasion in any such challenge proceeding shall be on the Designating Party.

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Until the Court rules on the challenge, all parties shall continue to afford the material in

If the Designating Party declines to withdraw the “Confidential”

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CONFIDENTIAL INFORMATION
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question the level of protection to which it is entitled under the producing party’s

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designation.

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13.

If any Confidential Material is inadvertently provided to a discovering party

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without being marked as confidential in accordance with this Order, the producing party

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may thereafter designate such materials as confidential and the initial failure to so mark

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the material shall not be deemed a waiver of its confidentiality. Until the material is

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designated as confidential by the Designating Party, however, the discovering party shall

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be entitled to treat the material as non-confidential.

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14.

Within sixty (60) calendar days of final termination of this lawsuit,

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including all appeals, (whether by judgment, settlement or otherwise) all materials

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produced by a party that contain Confidential Material, including all abstracts and

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summaries of such material, shall be destroyed or returned to Counsel for the Designating

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Party. Notwithstanding this provision, Counsel are entitled to retain an archival copy of

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all pleadings, motion papers, transcripts, notes, legal memoranda, correspondence or

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work product materials of counsel for the parties, expert witnesses or consultants or

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investigators or agents thereof even if such materials contain Confidential Material. Any

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such archival copies that contain or constitute Protected Material remain subject to this

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Protective Order. Counsel for each such party shall certify that the provisions of this

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paragraph have been satisfied by sending opposing counsel a letter confirming

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compliance. Reasonable out-of-pocket costs associated with returning or destroying

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Confidential Materials will be borne by the party in possession of the Confidential

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Material at the time of the final termination of this lawsuit.

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15.

No party receiving documents or materials designated as “Confidential

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Material” shall have any obligation to object to the designation at the time the designation

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is made or at any time thereafter. No party shall, by failure to object, be found to have

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acquiesced or agreed to such designation or be barred from objecting to such designation

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at any time.

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PROTECTIVE ORDER REGARDING
CONFIDENTIAL INFORMATION
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16.

Nothing contained in this Order shall be a waiver of any objection to the

admissibility of any evidence at trial, in any pretrial proceeding or on appeal.
Dated this 14th day of September, 2009.

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PROTECTIVE ORDER REGARDING
CONFIDENTIAL INFORMATION
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EXHIBIT A

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AGREEMENT TO MAINTAIN CONFIDENTIALITY

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I, _______________________________________ [print or type full name], of

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______________________________________________ [print or type full address],

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declare under penalty of perjury that I have read in its entirety and understand the

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Protective Order Regarding Confidentiality Information (“Protective Order”) that was

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entered by the United States District Court for the District of Arizona on __________

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[date] in the case of The National Federation for the Blind, et al. v. The Arizona Board of

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Regents, et al., 2:09-cv-01359 PHX-GMS. I agree to comply with and to be bound by all

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the terms of this Protective Order and I understand and acknowledge that failure to do so

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could expose me to sanctions and punishment in the nature of contempt. I solemnly

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promise that I will not disclose in any manner any information or item that is subject to

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this Protective Order to any person or entity except in strict compliance with the

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provisions of this Order.

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I further agree to submit to the jurisdiction of the United States District Court for

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the District of Arizona for the purpose of enforcing the terms of this Protective Order,

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even if such enforcement proceedings occur after termination of this action.

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Date:

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City and State where sworn and signed:

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Printed name:

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Signature:

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Agreement to Maintain Confidentiality