Two Moms and a Toy, LLC v. International Playthings, LLC

Filing 34

PROTECTIVE ORDER: by Magistrate Judge Boyd N. Boland on 4/11/11. (bnbcd, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 10-cv-02271-PAB-BNB
TWO MOMS AND A TOY, LLC,
Plaintiff,
v.
INTERNATIONAL PLAYTHINGS, LLC,
Defendant.
______________________________________________________________________________
STIPULATED PROTECTIVE ORDER AGREEMENT
______________________________________________________________________________
Pursuant to Rule 26(c) of the Federal Rules of Civil Procedure, Plaintiff TWO MOMS
AND A TOY, LLC ("Plaintiff"), by and through its undersigned attorneys, and Defendant
INTERNATIONAL PLAYTHINGS, LLC ("Defendant"), by and through its undersigned
attorneys, hereby agree that all discovery and other materials exchanged by Plaintiff and
Defendant (collectively referred to as the "Parties") or filed with the Court in the abovecaptioned action shall be provided subject to the following conditions:
1.

The Parties, or any non-party, after review by counsel for the party making the

designation, who shall make a good faith determination that the information contained in the
documents is in fact confidential or otherwise entitled to protection under Fed. R. Civ. P.
26(c)(7), may designate as "CONFIDENTIAL" or "CONFIDENTIAL - ATTORNEYS' EYES
ONLY" all or any part of any discovery and other materials exchanged by the Parties or filed
with the Court, including without limitation, documents and things, pleadings, motions,
interrogatory answers, answers to deposition questions, and responses to requests for admission,

which contain sensitive financial, patent, trademark, copyright, trade secret, marketing,
customer, research, or product development information, or any other document or thing
containing other information of such a nature as to be protectable under Fed. R. Civ. P. 26(c)(7).
Except as set forth in paragraph 7, such designations shall be made by stamping the document
"CONFIDENTIAL" or "CONFIDENTIAL - ATTORNEYS' EYES ONLY" and shall be as
specific as the context of the information reasonably permits so as not to include nonconfidential information. All such designated discovery and other materials are referred to herein
as "Confidential Material." Notwithstanding such designation, Confidential Material does not
include information or material: (a) obtained independent of any party to this litigation as to
which no obligation of confidentiality applies; (b) that is in the public domain or accessible to
the public or trade at the time exchanged or filed; (c) that enters the public domain or becomes
accessible to the public or trade through no fault of the recipient after the time of exchange or
filing; (d) that is disclosed or made available to the recipient by a third party without restriction
and without there having been a breach of an obligation of confidence owed by the third party to
Plaintiff or to Defendant; (e) that is known to by the recipient at the time of exchange or filing,
as shown by documentary evidence that the recipient may provide to person claiming
confidentiality at any time within five (5) business days from the date of exchange or filing; (f)
that is independently developed by the recipient without reference to the exchanged or filed
information or material; (g) that is or was disclosed by the party designating it CONFIDENTIAL
or CONFIDENTIAL - ATTORNEYS' EYES ONLY to any third person, if this is or was not
done under the terms of a confidentiality or non-disclosure agreement containing terms and
conditions the same as or very similar to the terms and conditions of this Agreement; and (h) that
is disclosed by the recipient as required by judicial action.

2.

The CONFIDENTIAL - ATTORNEYS' EYES ONLY designation shall be

limited to Confidential Material which contains or comprises sensitive financial, product,
marketing, customer or commercial information (which, if known to the other party, even
subject to the non-disclosure provisions of this Agreement, would cause the disclosing party
harm), and research and development information directed to future products.
3.

Confidential Material shall be revealed only to Qualified Persons (defined in

paragraph 4 below), their clerical, support and secretarial staffs, paralegals, and assistants and
used only for preparation and trial of this action.
4.

Confidential Material may be disclosed only to the following Qualified Persons:
a.

For Confidential Material designated CONFIDENTIAL - ATTORNEYS'

EYES ONLY:
i.

Counsel of record in the above-captioned case and staff

employed by such counsel (collectively "Outside Counsel");
ii.

Subject to Paragraphs 5 and 6 below, expert and third party

technical service contractors who are not present employees of
either party, or of any predecessor, parent or related company of
either party, who are requested by Outside Counsel of the
receiving party to furnish technical or expert services in
connection with this litigation;
iii.

Third party contractors involved solely in providing

litigation support services to Outside Counsel;

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iv.

The Court and its personnel and the jury;

v.

An officer before whom a deposition is taken, including

any stenographic and/or court reporter; and
vi.

Any other person agreed to by the Parties or allowed by the

Court.
b.

For Confidential Material designated CONFIDENTIAL: in addition to the

Qualified Persons listed above in paragraph 4.a., officers, directors, and
employees of the Parties who have a need to review the Confidential Information
for the purposes of the above-captioned case.
5.

Before any disclosure of Confidential Material of the producing party is made to

an individual pursuant to Paragraphs 4(A)(ii), (iii), and (vi), Outside Counsel for the receiving
party shall: provide the individual with a copy of this Order Agreement; explain its terms; and
obtain the individual's written agreement, in the form of Attachment A, to comply with and be
bound by its terms. Copies of all written commitments in the form of Attachment A shall be
provided to the producing party upon request.
6.

No Confidential Material shall be shown to an expert or third party technical

service contractor pursuant to paragraph 4(A)(ii) until one business day after the receiving party
identifies in writing the individual to the producing party and provides the producing party with
an executed Attachment A and a curriculum vitae unless the Parties agree otherwise in a writing
signed by the Parties. If the producing party, within one business day of its receipt of written
notice and an executed Attachment A, states a good faith basis for objecting to such individual
having access to any Confidential Material, such as a conflict of interest with respect to the

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nature of work in the same field of competition, the individual shall be barred from such access
for a ten (10) business day period commencing with the receipt by the producing party of a copy
of the executed Attachment A. If within that ten (10) business day period (i) the Parties are
unable to resolve their differences and (ii) the opposing party moves for a further protective
order, then the Confidential Material shall not be provided to the individual except by further
order of the Court.
7.

Confidential Material may be disclosed to a witness at a deposition (a) if the

witness is an officer, director, or employee of the party who produced such Confidential Material
or (b) if the witness was formerly an officer, director, or employee of the party who produced
such Confidential Material, and the Confidential Material existed during the period of his or her
service of employment.
8.

Parties may attend any and all Depositions. If a party believes that portions of a

deposition shall be considered CONFIDENTIAL - ATTORNEYS' EYES ONLY they shall
notify opposing counsel of that position and the areas they consider to be such at least one day
prior to the deposition unless the Parties agree otherwise in a writing signed by the Parties.
Counsel for the party making the designation shall make a good faith determination that the
information contained in the documents is in fact confidential or otherwise entitled to protection
under C.R.C.P. 26(c)(7). If the parties cannot agree on the designation, they shall seek
immediate court intervention to resolve the issue prior to the deposition. Portions of the
deposition or exhibits which are considered Confidential shall be so noted at the time at the
deposition. In the event of designations of different categories for the same text by different
Parties, the Parties will confer to reach agreement on the appropriate category, as set forth in

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paragraph 2 hereof. Until the issue is resolved, the designated material shall be treated as the
highest category of protected material designated by anyone. Persons to whom Confidential
Material may be disclosed under paragraph 4(b) may attend any deposition, except during
testimony which the parties agree is CONFIDENTIAL - ATTORNEYS' EYES ONLY under
Paragraph 2.
9.

Except as stated in Paragraph 9(a) below, Party representatives may view

materials and listen to testimony designated CONFIDENTIAL - ATTORNEYS' EYES ONLY at
any evidentiary court hearing, such as trial or a hearing on a motion for temporary restraining
order or preliminary injunction. However, these Party representatives shall not be allowed to
view the materials or testimony outside the courtroom or to have physical possession of such
documents at any time.
10.

Nothing in this Order Agreement shall bar or otherwise restrict any Outside

Counsel from rendering legal advice to his or her client with respect to this litigation and, in the
course thereof, relying upon his or her examination of Confidential Material; provided, however,
that in rendering such advice, and in otherwise communicating with his or her client, such person
shall not make any disclosure of Confidential Material to any person not entitled to have access
to it.
11.

Disclosure of Confidential Material:
a.

The good faith designation by counsel of Confidential Material

shall, without further proof, entitle such material to the protection of this
Stipulated Protective Order Agreement. If such designation is questioned by any
other party, then this Stipulated Protective Order Agreement shall be without

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prejudice to the right of the other party to bring before the Court the question of
whether same is or is not of a confidential nature.
b.

Inadvertent disclosure of Confidential Material, without

identifying the same as Confidential Material, shall not be deemed a waiver of
confidentiality with regard to similar or related information nor shall it be deemed
a waiver of confidentiality with regard to the information inadvertently disclosed,
if called to the attention of Outside Counsel for the receiving party promptly and
prior to further dissemination to anyone on behalf of the receiving party.
12.

The parties may seek leave to file Confidential Material under seal in a

manner consistent with D.C.COLO.LCivR 7.2. If the Parties desire to file material with the
Court that has previously been designated by a Party as comprising or containing Confidential
Material, the filing party shall concurrently file a motion to seal and shall endorse said
Confidential Material with the caption of the litigation, the words "CONFIDENTIAL
MATERIAL" and "RESTRICTED ACCESS ACCORDING TO COURT ORDER" as an
indication of the nature of the contents, and a
statement in substantially the following form:
"This envelope, containing documents which are filed in this case
by [name of Party], is not to be opened nor are the contents thereof to be
displayed or revealed except by order of the Court or consent
of the Parties."
13.

A party may object to the designation of particular CONFIDENTIAL or

CONFIDENTIAL - ATTORNEYS' EYES ONLY information by giving written notice to the
party designating the disputed information. The written notice shall identify the information to
which the objection is made. If the parties cannot resolve the objection within ten (10) business
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days after the time the notice is received, it shall be the obligation of the party designating the
information as CONFIDENTIAL or CONFIDENTIAL - ATTORNEYS' EYES ONLY to file an
appropriate motion requesting that the Court determine whether the disputed information should
be subject to the terms of this Protective Order Agreement. If such a motion is timely filed, the
disputed information shall be treated as CONFIDENTIAL or CONFIDENTIAL - ATTORNEYS'
EYES ONLY under the terms of this Protective Order Agreement until the Court rules on the
motion. If the designating party fails to file such a motion within the prescribed time, the
disputed information shall lose its designation as CONFIDENTIAL or CONFIDENTIAL ATTORNEYS' EYES ONLY and shall not thereafter be treated as CONFIDENTIAL or
CONFIDENTIAL - ATTORNEYS' EYES ONLY in accordance with this Protective Order
Agreement. In connection with a motion filed under this provision, the party designating the
information as CONFIDENTIAL or CONFIDENTIAL - ATTORNEYS' EYES ONLY shall bear
the burden of establishing that good cause exists for the disputed information to be treated as
CONFIDENTIAL or CONFIDENTIAL - ATTORNEYS' EYES ONLY.
14.

In the event that a party seeks discovery from a non-party to this suit, the non-

party may invoke the terms of this Stipulated Protective Order Agreement with respect to any
Confidential Material provided to the Parties by the non-party by so advising all Parties to this
suit in writing.
15.

Within thirty (30) days of termination of this litigation, including any and all

appeals therefrom, attorneys for the receiving party shall destroy all Confidential Material
received hereunder. All copies of Confidential Material received by others hereunder shall also
be destroyed. Notwithstanding the foregoing, Outside Counsel for the receiving party may retain

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a copy of Confidential Material of a producing party, to the extent reflected or contained in such
Outside Counsel's work product or in materials filed with the Court.
16.

Prompt written notice shall be given to any party who produced Confidential

Material hereunder, in the event that the Party's Confidential Material is sought by any person
not a party to this litigation, by subpoena in another action or by service with any legal process.
Any person seeking such Confidential Material who takes action to enforce such subpoena or
other legal process shall be apprised of this Order Agreement. Nothing herein shall be construed
as requiring anyone covered by this Protective Order Agreement to contest a subpoena or other
process, to appeal any order requiring the production of Confidential Material covered by this
Protective Order Agreement, or to subject itself to penalties for non-compliance with any legal
process or order.
17.

In the event that Confidential Material designated by the producing party in

accordance with Paragraph l above, is disclosed by the receiving party to any person other than
the Qualified Persons defined in Paragraph 4 above, or is disclosed in any manner or for any
purpose inconsistent with the terms of this Order Agreement, the party responsible for the
disclosure, within five (5) days of Outside Counsel's awareness of such disclosure, must bring all
pertinent facts relating to such disclosure to the attention of Outside Counsel for the producing
party and without prejudice to the rights and remedies of the producing party, make every
reasonable effort to prevent further disclosure of it and prevent further disclosure by each person
who was the eventual recipient of the Confidential Material.
18.

The foregoing is without prejudice to the right of any party to apply to the Court

for further protection or disclosure relating to discovery.

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19.

Nothing in this Order Agreement shall prejudice the right of any party to oppose

production of any information for lack of relevance, privilege, or any ground other than
confidentiality.
20.

Nothing in this protective Order Agreement shall prejudice the right of any party

to bring before the Court at any time the question of whether any greater or lesser restrictions
should be placed upon the disclosure of any Confidential Information.
21.

It is understood that Defendant’s sales information and licensing agreements are

to be designated as CONFIDENTIAL, not CONFIDENTIAL - ATTORNEYS' EYES ONLY
information under this Agreement.
Dated April 11, 2011.
BY THE COURT:
s/ Boyd N. Boland
United States Magistrate Judge
AGREED AS TO FORM:

_/s/ Brian D. Smith__________
Brian D. Smith
Brian D. Smith, P.C.
1125 Seventeenth Street
Denver, Colorado 80202
[phone]
ATTORNEY FOR PLAINTIFF

_/s/ Ramsey M. Al-Salam
Ramsey M. Al-Salam
Perkins Coie LLP
1201 Third Ave. Ste. 4800
Seattle, WA 98101
[phone]
ATTORNEYS FOR DEFENDANT

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 10-cv-02271-PAB-BNB
TWO MOMS AND A TOY, LLC
Plaintiff,

v.

INTERNATIONAL PLAYTHINGS, LLC
Defendant.
______________________________________________________________________________
ATTACHMENT A TO STIPULATED PROTECTIVE ORDER AGREEMENT
______________________________________________________________________________

In consideration of the disclosure to me of certain information, which is subject to a
Protective Order of this Court, I agree as follows:
1.
I have read the Stipulated Protective Order Agreement in the above-captioned
case and I agree to be bound by its terms.
2.
I understand that if I violate the terms of the Protective Order Agreement, I may
be subject to an enforcement proceeding before this Court.

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3.
I agree to submit myself to the personal jurisdiction of this Court in connection
with any proceedings concerning the Protective Order Agreement.

Dated:

____________

Name:

_______________________________

Signature:

_______________________________

Address:

________________________________________________________________

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