Symplified, Inc. v. SafeNet, Inc.

Filing 37

PROTECTIVE ORDER by Magistrate Judge Kathleen M. Tafoya on 11/15/2011. (kmtcd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 11-cv-01607-CMA-KMT
SYMPLIFIED, INC., a Delaware Corporation,
Plaintiff/Counter-Defendant,
v.
SAFENET, INC., a Delaware Corporation,
Defendant/Counter-Plaintiff.
______________________________________________________________________________
PROTECTIVE ORDER
______________________________________________________________________________
It appearing that certain information, documents, and things of the parties subject to
discovery in this action will contain, embody or reflect a trade secret or non-public, confidential,
proprietary, or sensitive research, know-how, or development or technical, personal, business,
financial or commercial information, or other information otherwise covered by a legitimate
right or interest of privacy, within the meaning of F.R.C.P. 26(c), the laws of the United States,
or other applicable laws (hereinafter individually and collectively referred to as “Confidential
Information”), and in the interest of expediting discovery and permitting the same to proceed
without delay occasioned by possible disputes regarding claims of Confidential Information, and
to preserve the parties’ interests in their Confidential Information without duly encroaching upon
the public’s right to be informed of judicial proceedings, and recognizing that a party seeking to
protect information filed under seal with the Court must show good cause for sealing that part of
the record, and the parties representing that their counsel are familiar with the laws relating to the
protection of such Confidential Information, and acknowledging the importance of access by the

opposing party to information important to the decision-making of the parties in the prosecution
or defense of the litigation, the Court enters the following Protective Order pursuant to F.R.C.P.
26(c) to provide access by the Parties to such Confidential Information, subject to certain
protective provisions hereinafter set forth.
FOR GOOD CAUSE SHOWN, IT IS HEREBY ORDERED THAT:
1.

This Order shall apply to all Confidential Information that is the subject of

discovery or testimony in this action.

Discovery materials and testimony as to which a

disclosing party or non-party has an interest and as to which confidentiality is asserted in good
faith and not (1) to impose any burden or delay on an opposing party, or (2) for tactical or other
advantage in litigation, upon designation of the Confidential Information as CONFIDENTIAL or
HIGHLY CONFIDENTIAL, shall be treated pursuant to the provisions of this Order. For
purposes of this Order, disclosing non-parties shall have the same rights and obligations as a
disclosing party.
(a)

Discovery materials produced pursuant to F.R.C.P. 34. Documents and other

discovery materials produced pursuant to F.R.C.P. 34 shall be designated as Confidential
Information prior to disclosure by labeling such documents and materials in a visible manner
with a CONFIDENTIAL or HIGHLY CONFIDENTIAL legend stamped or affixed thereto, or
by a manner mutually agreeable to the Parties if the materials cannot be readily so labeled. If a
disclosing party or non-party thereafter determines that it inadvertently failed to properly
designate or label Confidential Information, it may do so by giving prompt and timely notice to
the receiving party, who shall thereafter treat the materials pursuant to the provisions of this
Order.

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(b)

Oral or written deposition taken pursuant to F.R.C.P. 30 or 31.

Any

disclosing party or non-party may designate testimony on oral or written deposition taken
pursuant to F.R.C.P. 30 or 31 as CONFIDENTIAL or HIGHLY CONFIDENTIAL under the
terms of this Order by:
(i)

so stating on the record during the deposition, or

(ii)

by notifying the other party in writing of the portions of such testimony to

be so designated within fourteen (14) days of receipt of the transcript by the deponent or
the deponent’s counsel, which ever is earlier.
Testimony designated during the deposition shall be treated as HIGHLY CONFIDENTIAL until
such written notification is received, or if no written notification is provided, until the expiration
of the fourteen (14) day period.
With regard to designations made during the deposition, the designating party shall have
the right to exclude from the deposition all persons not entitled under this Order to view or
receive such Confidential Information before the taking of such testimony. If a disclosing party
or non-party promptly and timely determines that it inadvertently failed to properly designate
confidential testimony, it may do so by giving notice to all Parties, who shall thereafter treat the
materials pursuant to the provisions of this Order. Any transcript portion that contains testimony
so designated shall be labeled in a visible manner with the CONFIDENTIAL or HIGHLY
CONFIDENTIAL legend, and if requested by the designating party, shall be bound in a separate,
sealed volume by the court reporter.
(c)

Responses to interrogatories under F.R.C.P. 33. Responses to interrogatories

under F.R.C.P. 33 shall be designated as Confidential Information prior to disclosure by labeling

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such documents and materials in a visible manner with a CONFIDENTIAL or HIGHLY
CONFIDENTIAL legend stamped or affixed thereto, or by a manner mutually agreeable to the
Parties if the materials cannot be readily so labeled. If a disclosing party or non-party thereafter
determines that it inadvertently failed to properly designate or label an interrogatory response
under F.R.C.P. 33 CONFIDENTIAL or HIGHLY CONFIDENTIAL it may do so by giving
prompt and timely notice to all Parties, who shall thereafter treat the materials pursuant to the
provisions of this Order.
2.

This Order does not affect or alter a disclosing party’s rights to refuse to disclose

information properly subject to the attorney-client privilege or the attorney work product
doctrine. If a party, through inadvertence, produces or provides discovery that it believes is
subject to a claim of attorney-client privilege, work product immunity, or is otherwise protected
from disclosure, the producing party may give prompt and timely written notice to the receiving
party that the document is subject to a claim of attorney-client privilege, work product immunity,
or other protection from disclosure, and request that the discovery be returned to the producing
party. The receiving party shall promptly return to the producing party such discovery. Return
of the document by the receiving party shall not constitute an admission or concession, or permit
any inference, that the returned document or thing is, in fact, properly subject to a claim of
attorney-client privilege, work product immunity, or other protection from disclosure, nor shall it
foreclose any party from moving the Court for an order that such document or thing has been
improperly designated or should be discoverable and/or usable in this action for reasons other
than a waiver caused by the inadvertent production.

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3.

A disclosing party may produce materials in redacted form, redacting only

information that is subject to a claim of attorney-client privilege, work product immunity, or is
otherwise protected from disclosure, and shall make the notation “REDACTED,” or other similar
notation, on each redacted portion of the document. Where a party receiving redacted materials
has good cause to believe that the redacted information is subject to disclosure, the Parties shall
attempt to resolve any dispute without intervention by the Court. Should the Parties be unable to
resolve their dispute regarding redacted information, the party objecting to the redaction shall
have the burden in any motion brought before the Court to show why the redaction is improper.
4.

Access to all materials designated with the CONFIDENTIAL or HIGHLY

CONFIDENTIAL legend shall be restricted as set forth below.
(a)

Access to CONFIDENTIAL materials. Access to all materials designated with

the CONFIDENTIAL legend, and disclosure of the information contained in such materials,
shall be restricted solely to:
(i)

attorneys and agents in outside law firms who are formally and presently

counsel of record and who are thus formally and presently representing any party as
outside counsel of record (and their necessary support staff);
(ii)

management-level employees of the receiving party;

(iii)

outside vendors for a party or their outside counsel of record who perform

photocopying or other clerical functions;
(iv)

independent outside experts (and their necessary support staff) retained

specifically for this action as consulting or testifying experts;
(v)

the Court and its personnel, and court reporters;

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(b)

Access to HIGHLY CONFIDENTIAL materials. Confidential Information may

be designated with the HIGHLY CONFIDENTIAL legend if the disclosing party believes in
good faith that the information should not be disclosed to any management-level employee of the
receiving party within the provision of paragraph 4(a)(ii) because disclosure of such could have a
significant adverse impact on the disclosing party’s business, financial condition, ability to
compete, or standing in the industry.

Such information includes, without limitation, trade

secrets, future business plans, financial analyses and projections, contractual relationships with
third parties, the identification of customers and suppliers, materials relating to on-going research
and development efforts and future products and technical materials used solely for internal
purposes in connection with development, production, engineering, or sales training. Access to
all materials designated with the HIGHLY CONFIDENTIAL legend, and disclosure of the
information contained in such materials, shall be restricted solely to:
(i)

attorneys and agents in outside law firms who are formally and presently

counsel of record and who are thus formally and presently representing any party as
outside counsel of record (and their necessary support staff);
(ii)

no more than two (2) in-house counsel of SafeNet and no more than one

(1) specifically-designated chief financial officer of Symplified who performs case
management functions (collectively, “Client Representatives”), provided that they may
use materials designated with the HIGHLY CONFIDENTIAL legend only in connection
with this litigation and not for unrelated business purposes and that disclosure to Client
Representatives only be made pursuant to the procedure described in this Section 4(b).
Promptly following the entry of this Order, the parties shall have their respective

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designated Client Representative(s) sign the authorization attached as Exhibit A,
certifying their agreement to abide by the terms of this Order with respect to any
materials designated HIGHLY CONFIDENTIAL. A copy of the authorization will be
provided to opposing counsel promptly and in any event prior to disclosure of HIGHLY
CONFIDENTIAL materials to a Client Representative;
(iii)

outside vendors for a party or their outside counsel of record who perform

photocopying or other clerical functions;
(iv)

independent outside experts (and their necessary support staff) retained

specifically for this action as consulting or testifying experts, provided that they sign the
authorization attached as Exhibit A, certifying their agreement to abide by the terms of
this Order with respect to any materials designated CONFIDENTIAL or HIGHLY
CONFIDENTIAL (which shall be retained by counsel and provided to opposing counsel
upon request or within 30 (thirty) days of settlement or the final termination of this
action, including all appeals);
(v)
(c)

the Court and its personnel, and court reporters;

Any information designated with the CONFIDENTIAL legend (including extracts

and summaries derived from such material) shall not be revealed to anyone other than those
encompassed by paragraph 4(a)(i)-(v) above, and any information designated with the HIGHLY
CONFIDENTIAL legend (including extracts and summaries derived from such material) shall
not be revealed to anyone other than those encompassed by paragraph 4(b)(i)-(v) above unless:

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(i)

the disclosure is to an author or an addressee or recipient on the face of a

document being disclosed who is not otherwise shown prior to such disclosure to have
failed to author or receive the document;
(ii)

the disclosure is to a person who received or saw the information, or who

can otherwise be shown to have known or possessed the information, prior to the
disclosure;
(iii)

the disclosure is to a person who participated in any meeting or

communication to which the information refers, or to whom the information refers;
(iv)

the disclosing party assents in advance in writing to such disclosure; or

(v)

the Court otherwise directs.

When Confidential Information of a disclosing party is stored, kept, or accessible by a
receiving party or otherwise located outside of the United States, the receiving party shall take
sufficient steps to prevent persons not permitted by this Order to receive or view such
information from accessing, receiving or viewing the information, including, but not limited to,
physically securing, segregating, or limiting access to such information.
5.

This Order does not relieve any party or non-party from compliance with the

Federal Rules of Civil Procedure or standing orders of this Court with respect to discovery
disputes.
(a)

Modification of Order. In the event that a party shall desire to provide access to

Confidential Information hereunder to any person or category or persons not included in
paragraph 4 hereof, or prohibit access to Confidential Information by the same, and if the
designating party objects thereto, the party may move this Court, in compliance with such Rules

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and orders and consistent with the other terms and provisions of this Order, for an order
modifying the Order to provide or restrict access to the Confidential Information. The moving
party shall have the burden of demonstrating good cause for modification of the Order.
(b)

Modification of Designation.

A party may request a designating party to

withdraw or alter a CONFIDENTIAL or HIGHLY CONFIDENTIAL designation for specific
material. Such request may include a written request to counsel for the designating party that the
designating party produce redacted copies of specifically identified materials [by Bates
production number or otherwise] with the Confidential Information therein redacted, and shall
specify redaction to permit review of the redacted documents as CONFIDENTIAL-designated
documents or as documents without any designation. Within five (5) days of the receipt of such
request for redaction of Confidential Information, the designating party shall produce the
requested redacted materials/documents. Within five (5) days of receipt of such redacted
materials/documents, the receiving party’s counsel shall either (a) confirm in writing that the
redactions are acceptable, or (b) provide written objection to the redaction, as well as proposed
modifications to the redactions. In the event of an objection to the redactions, within five (5)
business days after delivery of the written objections, counsel will meet and confer to resolve the
scope of the redactions and, if they are unable to reach a mutually satisfactory resolution, a
motion for re-designation may be filed with the Court in compliance with such Rules and orders
applicable to discovery disputes, and otherwise consistent with the other terms and conditions of
this Order. In the event of a challenge, the party that redacted the material shall have the burden
of proof to justify the redactions.

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6.

All Confidential Information obtained by one party from another party or non-

party in the course of this lawsuit and subject to this Order shall be used by the receiving party
solely for the preparation and trial of this lawsuit, and for no other purpose.
7.

Confidential Information identified in accordance with this Order shall not be

filed with the Court or included, in whole or in part, in pleadings, motions or briefs; provided,
however, that if a party believes Confidential Information is important to such pleading, motion,
or brief, then, pursuant to any applicable Local Rule such information may, be filed under seal
with the Court.
8.

Within thirty (30) days of settlement or final termination of this action, including

all appeals, unless otherwise agreed to in writing by an attorney of record for the designating
party, the attorneys for each party, upon request, shall assemble and destroy or return to the
disclosing party all document and things containing Confidential Information produced by that
party, and shall destroy all copies thereof made subsequent to production which are in their
possession, custody or control, except that outside counsel of record shall be entitled to retain
one (1) copy of all litigation documents, including exhibits, transcripts of testimony, court
filings, and their own correspondence and memoranda containing Confidential Information, but
such documents shall be used only for the purpose of preserving a file on the action, and shall
not, without the written permission of the disclosing party, or an order of this Court or another
court of competent jurisdiction, be disclosed to anyone other than those to whom such
information was actually disclosed, in accordance with the terms and conditions of this Order,
during the course of this action.

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9.

This Order shall remain in full force and effect unless modified or terminated by

the Court and shall survive and remain in full force and effect after the termination of this action.
Termination of this action shall not relieve any person from the obligations of this Order, unless
the Court orders otherwise.
10.

This Order shall not preclude another court or tribunal from finding that

information designated confidential in the case may be subject to disclosure in that case,
notwithstanding the existence of this Order or its provisions. Any person or party subject to this
Order who is subject to a motion to disclose another party’s information designated confidential
pursuant to this Order, shall promptly notify that party of the motion so that it may have a full
and adequate opportunity to appear and be heard on whether that information should be
disclosed.
11.

The Court retains jurisdiction for purposes of enforcing the terms of this Order at

any time after termination of this action.
THE COURT, having reviewed the Protective Order and being fully advised in the
premises and good cause shown therefor, HEREBY ORDERS that the Protective Order shall be
and hereby is GRANTED.
DONE this 15th day of November, 2011.
BY THE COURT

MAGISTRATE JUDGE

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EXHIBIT A
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 11-cv-01607-CMA-KMT
SYMPLIFIED, INC., a Delaware corporation,
Plaintiff/Counter-Defendant,
v.
SAFENET, INC., a Delaware corporation,
Defendant/Counter-Plaintiff.
______________________________________________________________________________
ACKNOWLEDGEMENT OF PROTECTIVE ORDER
______________________________________________________________________________
I acknowledge that I have been given a copy of, read, and understand the Protective
Order (the “Order”) entered in the above-captioned lawsuit.
I further acknowledge and agree to comply with the terms of the Order and be bound by
it. I acknowledge, understand, and agree that by receiving Confidential Information hereunder, I
am subject to penalty for contempt of Court for any violation of the terms of the Order.

Dated: ___________

____________________________________
Name of Individual to whom disclosure will
be made
____________________________________
Complete Mailing and Email Addresses,
Phone and fax numbers

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