Stout v. Hartford Life and Accident Insurance Company et al
Filing
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PROTECTIVE ORDER. Signed by Magistrate Judge Jacqueline Scott Corley on 9/25/2012. (ahm, COURT STAFF) (Filed on 9/25/2012)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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KATHLEEN A. STOUT,
Northern District of California
United States District Court
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Plaintiff,
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Case No.: 11-6186 CW (JSC)
PROTECTIVE ORDER
v.
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HARTFORD LIFE AND ACCIDENT
INSURANCE COMPANY, et al.,
Defendants.
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1.
PURPOSES AND LIMITATIONS
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Disclosure and discovery activity in this action are likely to involve production of
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confidential, proprietary, or private information for which special protection from public
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disclosure and from use for any purpose other than prosecuting this litigation may be warranted.
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Accordingly, the Court issues this Protective Order. This Order does not confer blanket
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protections on all disclosures or responses to discovery, and the protection it affords from public
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disclosure and use extends only to the limited information or items that are entitled to
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confidential treatment under the applicable legal principles. As set forth in Section 12.3, below,
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this Protective Order does not entitle the parties to file confidential information under seal; Civil
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Local Rule 79-5 and General Order 62 set forth the procedures that must be followed and the
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standards applied when a party seeks permission from the court to file material under seal.
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2.
DEFINITIONS
2.1
Challenging Party: a Party or Non-Party that challenges the designation of
information or items under this Order.
2.2
“CONFIDENTIAL” Information or Items: information (regardless of how it is
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generated, stored or maintained) or tangible things that qualify for protection under Federal Rule
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of Civil Procedure 26(c).
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2.3
Counsel (without qualifier): Outside Counsel of Record and House Counsel (as
well as their support staff).
2.4
Designating Party: a Party or Non-Party that designates information or items that
it produces in disclosures or in responses to discovery as “CONFIDENTIAL.”
2.5
Disclosure or Discovery Material: all items or information, regardless of the
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medium or manner in which it is generated, stored, or maintained (including, among other
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things, testimony, transcripts, and tangible things), that are produced or generated in disclosures
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or responses to discovery in this matter.
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2.6
Expert: a person with specialized knowledge or experience in a matter pertinent to
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the litigation who has been retained by a Party or its counsel to serve as an expert witness or as a
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consultant in this action.
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2.7
House Counsel: attorneys who are employees of a party to this action. House
Counsel does not include Outside Counsel of Record or any other outside counsel.
2.8
Non-Party: any natural person, partnership, corporation, association, or other
legal entity not named as a Party to this action.
2.9
Outside Counsel of Record: attorneys who are not employees of a party to this
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action but are retained to represent or advise a party to this action and have appeared in this
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action on behalf of that party or are affiliated with a law firm which has appeared on behalf of
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that party.
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2.10
Party: any party to this action, including all of its officers, directors, employees,
consultants, retained experts, and Outside Counsel of Record (and their support staffs).
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2.11
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Producing Party: a Party or Non-Party that produces Disclosure or Discovery
Material in this action.
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Professional Vendors: persons or entities that provide litigation support services
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(e.g., photocopying, videotaping, translating, preparing exhibits or demonstrations, and
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organizing, storing, or retrieving data in any form or medium) and their employees and
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subcontractors.
2.13
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Protected Material: any Disclosure or Discovery Material that is designated as
“CONFIDENTIAL.”
Producing Party.
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Receiving Party: a Party that receives Disclosure or Discovery Material from a
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SCOPE
The protections conferred by this Order cover not only Protected Material (as defined
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above), but also (1) any information copied or extracted from Protected Material; (2) all copies,
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excerpts, summaries, or compilations of Protected Material; and (3) any testimony,
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conversations, or presentations by Parties or their Counsel that might reveal Protected Material.
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However, the protections conferred by this Order do not cover the following information: (a) any
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information that is in the public domain at the time of disclosure to a Receiving Party or
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becomes part of the public domain after its disclosure to a Receiving Party as a result of
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publication not involving a violation of this Order, including becoming part of the public record
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through trial or otherwise; and (b) any information known to the Receiving Party prior to the
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disclosure or obtained by the Receiving Party after the disclosure from a source who obtained the
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information lawfully and under no obligation of confidentiality to the Designating Party. Any
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use of Protected Material at trial shall be governed by a separate agreement or order.
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4.
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DURATION
Even after final disposition of this litigation, the confidentiality obligations imposed by
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this Order shall remain in effect until a Designating Party agrees otherwise in writing or a court
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order otherwise directs. Final disposition shall be deemed to be the later of (1) dismissal of all
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claims and defenses in this action, with or without prejudice; and (2) final judgment herein after
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the completion and exhaustion of all appeals, rehearings, remands, trials, or reviews of this
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action, including the time limits for filing any motions or applications for extension of time
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pursuant to applicable law.
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5.
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DESIGNATING PROTECTED MATERIAL
5.1
Exercise of Restraint and Care in Designating Material for Protection. Each Party
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or Non-Party that designates information or items for protection under this Order must take care
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to limit any such designation to specific material that qualifies under the appropriate standards.
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The Designating Party must designate for protection only those parts of material, documents,
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items, or oral or written communications that qualify – so that other portions of the material,
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documents, items, or communications for which protection is not warranted are not swept
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unjustifiably within the ambit of this Order.
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Mass, indiscriminate, or routinized designations are prohibited. Designations that are
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shown to be clearly unjustified or that have been made for an improper purpose (e.g., to
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unnecessarily encumber or retard the case development process or to impose unnecessary
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expenses and burdens on other parties) expose the Designating Party to sanctions.
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If it comes to a Designating Party’s attention that information or items that it designated
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for protection do not qualify for protection, the Designating Party must promptly notify all other
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Parties that it is withdrawing the mistaken designation.
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5.2
Manner and Timing of Designations. Except as otherwise provided in this Order
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(see, e.g., second paragraph of section 5.2(a) below), or as otherwise stipulated or ordered,
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Disclosure or Discovery Material that qualifies for protection under this Order must be clearly so
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designated before the material is disclosed or produced.
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Designation in conformity with this Order requires:
(a) for information in documentary form (e.g., paper or electronic documents, but
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excluding transcripts of depositions or other pretrial or trial proceedings), that the Producing
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Party affix the legend “CONFIDENTIAL” to each page that contains protected material. If only
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a portion or portions of the material on a page qualifies for protection, the Producing Party also
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must clearly identify the protected portion(s) (e.g., by making appropriate markings in the
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margins).
A Party or Non-Party that makes original documents or materials available for inspection
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material it would like copied and produced. During the inspection and before the designation, all
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of the material made available for inspection shall be deemed “CONFIDENTIAL.” After the
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inspecting Party has identified the documents it wants copied and produced, the Producing Party
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must determine which documents, or portions thereof, qualify for protection under this Order.
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Then, before producing the specified documents, the Producing Party must affix the
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“CONFIDENTIAL” legend to each page that contains Protected Material. If only a portion or
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portions of the material on a page qualifies for protection, the Producing Party also must clearly
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need not designate them for protection until after the inspecting Party has indicated which
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identify the protected portion(s) (e.g., by making appropriate markings in the margins).
(b) for testimony given in deposition or in other pretrial or trial proceedings, that
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the Designating Party identify on the record, before the close of the deposition, hearing, or other
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proceeding, all protected testimony.
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(c) for information produced in some form other than documentary and for any
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other tangible items, that the Producing Party affix in a prominent place on the exterior of the
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container or containers in which the information or item is stored the legend
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“CONFIDENTIAL.” If only a portion or portions of the information or item warrant protection,
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the Producing Party, to the extent practicable, shall identify the protected portion(s).
5.3
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Inadvertent Failures to Designate. If timely corrected, an inadvertent failure to
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designate qualified information or items does not, standing alone, waive the Designating Party’s
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right to secure protection under this Order for such material. Upon timely correction of a
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designation, the Receiving Party must make reasonable efforts to assure that the material is
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treated in accordance with the provisions of this Order.
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6.
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CHALLENGING CONFIDENTIALITY DESIGNATIONS
6.1
Timing of Challenges. Any Party or Non-Party may challenge a designation of
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confidentiality at any time. Unless a prompt challenge to a Designating Party’s confidentiality
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designation is necessary to avoid foreseeable, substantial unfairness, unnecessary economic
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burdens, or a significant disruption or delay of the litigation, a Party does not waive its right to
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challenge a confidentiality designation by electing not to mount a challenge promptly after the
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original designation is disclosed.
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6.2
Meet and Confer. The Challenging Party shall initiate the dispute resolution
for each challenge. To avoid ambiguity as to whether a challenge has been made, the written
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notice must recite that the challenge to confidentiality is being made in accordance with this
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specific paragraph of the Protective Order. The parties shall attempt to resolve each challenge in
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good faith and must begin the process by conferring directly (in voice to voice dialogue; other
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forms of communication are not sufficient) within 14 days of the date of service of notice. In
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process by providing written notice of each designation it is challenging and describing the basis
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conferring, the Challenging Party must explain the basis for its belief that the confidentiality
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designation was not proper and must give the Designating Party an opportunity to review the
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designated material, to reconsider the circumstances, and, if no change in designation is offered,
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to explain the basis for the chosen designation. A Challenging Party may proceed to the next
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stage of the challenge process only if it has engaged in this meet and confer process first or
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establishes that the Designating Party is unwilling to participate in the meet and confer process in
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a timely manner.
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6.3
Judicial Intervention. If the Parties cannot resolve a challenge without court
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intervention, the Designating Party shall file and serve a motion to retain confidentiality under
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Civil Local Rule 7 (and in compliance with Civil Local Rule 79-5 and General Order 62, if
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applicable) within 21 days of the initial notice of challenge or within 14 days of the parties
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agreeing that the meet and confer process will not resolve their dispute, whichever is earlier.
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Each such motion must be accompanied by a competent declaration affirming that the movant
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has complied with the meet and confer requirements imposed in the preceding paragraph.
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Failure by the Designating Party to make such a motion including the required declaration
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within 21 days (or 14 days, if applicable) shall automatically waive the confidentiality
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designation for each challenged designation. In addition, the Challenging Party may file a
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motion challenging a confidentiality designation at any time if there is good cause for doing so,
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including a challenge to the designation of a deposition transcript or any portions thereof. Any
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motion brought pursuant to this provision must be accompanied by a competent declaration
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affirming that the movant has complied with the meet and confer requirements imposed by the
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preceding paragraph.
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The burden of persuasion in any such challenge proceeding shall be on the Designating
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Party. Frivolous challenges, and those made for an improper purpose (e.g., to harass or impose
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unnecessary expenses and burdens on other parties) may expose the Challenging Party to
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sanctions. Unless the Designating Party has waived the confidentiality designation by failing to
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file a motion to retain confidentiality as described above, all parties shall continue to afford the
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material in question the level of protection to which it is entitled under the Producing Party’s
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designation until the court rules on the challenge.
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7.
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ACCESS TO AND USE OF PROTECTED MATERIAL
7.1
Basic Principles. A Receiving Party may use Protected Material that is disclosed or
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produced by another Party or by a Non-Party in connection with this case only for prosecuting,
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defending, or attempting to settle this litigation. Such Protected Material may be disclosed only
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to the categories of persons and under the conditions described in this Order. When the litigation
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has been terminated, a Receiving Party must comply with the provisions of section 13 below
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(FINAL DISPOSITION).
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Protected Material must be stored and maintained by a Receiving Party at a location and
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in a secure manner that ensures that access is limited to the persons authorized under this Order.
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7.2
Disclosure of “CONFIDENTIAL” Information or Items. Unless otherwise
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ordered by the court or permitted in writing by the Designating Party, a Receiving Party may
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disclose any information or item designated “CONFIDENTIAL” only to:
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(a) the Receiving Party’s Outside Counsel of Record in this action, as well as
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employees of said Outside Counsel of Record to whom it is reasonably necessary to disclose the
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information for this litigation and who have signed the “Acknowledgment and Agreement to Be
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Bound” that is attached hereto as Exhibit A;
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(b) the officers, directors, and employees (including House Counsel) of the
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Receiving Party to whom disclosure is reasonably necessary for this litigation and who have
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signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A);
(c) Experts (as defined in this Order) of the Receiving Party to whom disclosure is
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reasonably necessary for this litigation and who have signed the “Acknowledgment and
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Agreement to Be Bound” (Exhibit A);
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(d) the court and its personnel;
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(e) court reporters and their staff, professional jury or trial consultants, mock
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jurors, and Professional Vendors to whom disclosure is reasonably necessary for this litigation
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and who have signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A);
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(f) during their depositions, witnesses in the action to whom disclosure is
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reasonably necessary and who have signed the “Acknowledgment and Agreement to Be Bound”
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(Exhibit A), unless otherwise agreed by the Designating Party or ordered by the court. Pages
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of transcribed deposition testimony or exhibits to depositions that reveal Protected Material must
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be separately bound by the court reporter and may not be disclosed to anyone except as
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permitted under this Protective Order.
(g) the author or recipient of a document containing the information or a
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custodian or other person who otherwise possessed or knew the information.
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PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED IN
OTHER LITIGATION
If a Party is served with a subpoena or a court order issued in other litigation that compels
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disclosure of any information or items designated in this action as “CONFIDENTIAL,” that
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Party must:
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(a) promptly notify in writing the Designating Party. Such notification shall
include a copy of the subpoena or court order;
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(b) promptly notify in writing the party who caused the subpoena or order to issue
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in the other litigation that some or all of the material covered by the subpoena or order is subject
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to this Protective Order. Such notification shall include a copy of this Protective Order; and
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(c) cooperate with respect to all reasonable procedures sought to be pursued by the
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Designating Party whose Protected Material may be affected.
If the Designating Party timely seeks a protective order, the Party served with the
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subpoena or court order shall not produce any information designated in this action as
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“CONFIDENTIAL” before a determination by the court from which the subpoena or order
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issued, unless the Party has obtained the Designating Party’s permission. The Designating Party
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shall bear the burden and expense of seeking protection in that court of its confidential material –
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and nothing in these provisions should be construed as authorizing or encouraging a Receiving
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Party in this action to disobey a lawful directive from another court.
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A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE PRODUCED IN
THIS LITIGATION
(a)
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The terms of this Order are applicable to information produced by a Non-
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Party in this action and designated as “CONFIDENTIAL.” Such information produced by Non-
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Parties in connection with this litigation is protected by the remedies and relief provided by this
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Order. Nothing in these provisions should be construed as prohibiting a Non-Party from seeking
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additional protections.
(b)
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In the event that a Party is required, by a valid discovery request, to
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produce a Non-Party’s confidential information in its possession, and the Party is subject to an
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agreement with the Non-Party not to produce the Non-Party’s confidential information, then the
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Party shall:
1. promptly notify in writing the Requesting Party and the Non-Party that
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some or all of the information requested is subject to a confidentiality agreement with a Non-
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Party;
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2. promptly provide the Non-Party with a copy of the Protective Order in this
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litigation, the relevant discovery request(s), and a reasonably specific description of the
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information requested; and
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3. make the information requested available for inspection by the Non-Party.
(c)
If the Non-Party fails to object or seek a protective order from this court
within 14 days of receiving the notice and accompanying information, the Receiving Party may
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produce the Non-Party’s confidential information responsive to the discovery request. If the
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Non-Party timely seeks a protective order, the Receiving Party shall not produce any information
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in its possession or control that is subject to the confidentiality agreement with the Non-Party
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before a determination by the court.1 Absent a court order to the contrary, the Non-Party shall
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bear the burden and expense of seeking protection in this court of its Protected Material.
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10.
UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL
If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed Protected
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Material to any person or in any circumstance not authorized under this rotective Order, the
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Receiving Party must immediately (a) notify in writing the Designating Party of the
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unauthorized disclosures, (b) use its best efforts to retrieve all unauthorized copies of the
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Protected Material, (c) inform the person or persons to whom unauthorized disclosures were
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made of all the terms of this Order, and (d) request such person or persons to execute the
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“Acknowledgment and Agreement to Be Bound” that is attached hereto as Exhibit A.
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INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE
PROTECTED MATERIAL
When a Producing Party gives notice to Receiving Parties that certain inadvertently
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produced material is subject to a claim of privilege or other protection, the obligations of the
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Receiving Parties are those set forth in Federal Rule of Civil Procedure 26(b)(5)(B). This
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provision is not intended to modify whatever procedure may be established in an e-discovery
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order that provides for production without prior privilege review. Pursuant to Federal Rule of
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Evidence 502(d) and (e), insofar as the parties reach an agreement on the effect of disclosure of a
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communication or information covered by the attorney-client privilege or work product
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protection, the parties may incorporate their agreement in a stipulated protective order submitted
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to the court.
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The purpose of this provision is to alert the interested parties to the existence of confidentiality
rights of a Non-Party and to afford the Non-Party an opportunity to protect its confidentiality
interests in this court.
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12.1
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MISCELLANOUS
Right to Further Relief. Nothing in this Order abridges the right of any person to
seek its modification by the court in the future.
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Right to Assert Other Objections. As the parties have not stipulated to the entry of
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this Protective Order, no Party waives any right it otherwise would have to object to disclosing or
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producing any information or item on any ground not addressed in this Protective Order.
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Similarly, no Party waives any right to object on any ground to use in evidence of any of the
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material covered by this Protective Order.
12.3
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Filing Protected Material. Without written permission from the Designating Party
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or a court order secured after appropriate notice to all interested persons, a Party may not file in
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the public record in this action any Protected Material. A Party that seeks to file under seal any
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Protected Material must comply with Civil Local Rule 79-5 and General Order 62. Protected
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Material may only be filed under seal pursuant to a court order authorizing the sealing of the
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specific Protected Material at issue. Pursuant to Civil Local Rule 79-5 and General Order 62, a
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sealing order will issue only upon a request establishing that the Protected Material at issue is
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privileged, protectable as a trade secret, or otherwise entitled to protection under the law. If a
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Receiving Party's request to file Protected Material under seal pursuant to Civil Local Rule 79-
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5(d) and General Order 62 is denied by the court, then the Receiving Party may file the
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information in the public record pursuant to Civil Local Rule 79-5(e) unless otherwise instructed
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by the court.
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FINAL DISPOSITION
Within 60 days after the final disposition of this action, as defined in paragraph 4, each
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Receiving Party must return all Protected Material to the Producing Party or destroy such
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material. As used in this subdivision, “all Protected Material” includes all copies, abstracts,
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compilations, summaries, and any other format reproducing or capturing any of the Protected
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Material. Whether the Protected Material is returned or destroyed, the Receiving Party must
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submit a written certification to the Producing Party (and, if not the same person or entity, to the
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Designating Party) by the 60 day deadline that (1) identifies (by category, where appropriate) all
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the Protected Material that was returned or destroyed and (2) affirms that the Receiving Party
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has not retained any copies, abstracts, compilations, summaries or any other format reproducing
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or capturing any of the Protected Material. Notwithstanding this provision, Counsel are entitled
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to retain an archival copy of all pleadings, motion papers, trial, deposition, and hearing
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transcripts, legal memoranda, correspondence, deposition and trial exhibits, expert reports,
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attorney work product, and consultant and expert work product, even if such materials contain
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Protected Material. Any such archival copies that contain or constitute Protected Material
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remain subject to this Protective Order as set forth in Section 4 (DURATION).
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IT IS SO ORDERED.
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Dated: September 25, 2012
_________________________________
JACQUELINE SCOTT CORLEY
UNITED STATES MAGISTRATE JUDGE
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