Able Planet Incorporated v. Bose Corporation

Filing 35

PROTECTIVE ORDER signed by Magistrate Judge Craig B. Shaffer on 8/8/12. (cbssec)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 12-cv-894-CMA-CBS
ABLE PLANET, INCORPORATED,
Plaintiff,
v.
BOSE CORPORATION,
Defendant.

PROTECTIVE ORDER

This matter came before the Court on the Parties’ Stipulated Motion for Entry of
Protective Order. The Court, having concluded that the entry of the Protective Order is
appropriate, hereby ORDERS as follows:
1.

PURPOSES AND LIMITATIONS
Disclosure and discovery activity in this action are likely to involve production of

confidential, proprietary, or private information for which special protection from public
disclosure and from use for any purpose other than prosecuting this litigation would be
warranted. The Parties acknowledge that this Order does not confer blanket protections on all
disclosures or responses to discovery and that the protection it affords extends only to the
information or items that are entitled under the applicable legal principles to treatment as
confidential.
2.

DEFINITIONS

2.1

Party: any party to this action, including all of its officers, directors, employees,

consultants, retained experts, and outside counsel and their support staff.
2.2

Discovery Material: all items or information, regardless of the medium or manner

in which it is generated, stored, or maintained (including, among other things, testimony,
transcripts, or tangible things) that are produced or generated in disclosures or responses to
discovery in this matter.
2.3

“Confidential” Discovery Material shall be limited to material that a Producing

Party believes in good faith to be confidential or sensitive information, including, but not limited
to, trade secrets, competitively sensitive research, financial, sales, technical, marketing, planning,
or other confidential business information, as well as private or confidential personal
information. The “Confidential” designation shall not include any material that the Producing
Party has placed in the public domain and/or made available as a matter of public record.
2.4

“Highly Confidential – Attorneys’ Eyes Only” Discovery Material shall be

limited to particularly sensitive material the disclosure of which to another Party or non-party
would create a substantial risk of competitive or business injury to the Producing Party.
2.5

Receiving Party: a Party that receives Discovery Material from a Producing Party.

2.6

Producing Party: a Party or non-party that produces Discovery Material in this

2.7

Designating Party: a Party or non-party that designates information or items that it

action.

produces in disclosures or in responses to discovery as “Confidential” or “Highly Confidential –
Attorneys’ Eyes Only.”
2.8

Protected Material: any Discovery Material that is designated as “Confidential” or

as “Highly Confidential – Attorneys’ Eyes Only.”

2.9

Outside Counsel: attorneys who are not employees of a Party but who are retained

to represent or advise a Party in this action.
2.10

In-House Counsel: attorneys who are employees of a Party.

2.11

Counsel (without qualifier): Outside Counsel and In-House Counsel (as well as

their support staffs).
2.12

Expert: a person with specialized knowledge or experience in a matter pertinent to

the litigation who has been retained by a Party or its counsel to serve as an expert witness or as a
consultant in this action, and who is not a past or a current employee of a Party or of a
competitor of a Party, and who, at the time of retention, is not anticipated to become an
employee of a Party or a competitor of a Party. This definition includes a professional jury or
trial consultant retained in connection with this litigation.
2.13

Professional Vendors: persons or entities that provide litigation support services

(e.g., photocopying; videotaping; translating; preparing exhibits or demonstrations; organizing,
storing, retrieving data in any form or medium; etc.) and their employees and subcontractors.
3.

SCOPE
The protections conferred by this Order cover not only Protected Material (as defined

above), but also any information copied or extracted therefrom, as well as all copies, excerpts,
summaries, or compilations thereof, plus testimony, conversations, or presentations by the
Parties or counsel to or in court or in other settings that might reveal Protected Material.
4.

DURATION
After the termination of this litigation, the confidentiality obligations imposed by this

Order shall remain in effect until a Designating Party agrees otherwise in writing or a court order
otherwise directs.

5.

DESIGNATING PROTECTED MATERIAL
5.1

Exercise of Restraint and Care in Designating Material for Protection. Each Party

or non-party that designates information or items for protection under this Order shall, in good
faith, attempt to limit any such designation to material that qualifies under the appropriate
standards. If it comes to a Party’s or a non-party’s attention that information or items that it
designated for protection do not qualify for protection at all, or do not qualify for the level of
protection initially asserted, that Party or non-party shall notify all other parties that it is
withdrawing the mistaken designation.
5.2

Manner and Timing of Designations. Except as otherwise provided in this Order,

or as otherwise stipulated or ordered, material that qualifies for protection under this Order must
be clearly so designated before the material is disclosed or produced. Designation in conformity
with this Order requires:
(a)

For information in documentary form, that the Producing Party affix the

legend “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY”
on each page that contains protected material. A Party or non-party that makes original
documents or materials available for inspection need not designate them for protection until after
the inspecting Party has indicated which material it would like copied and produced. During the
inspection and before the designation, all of the material made available for inspection shall be
deemed “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY.” After the inspecting
Party has identified the documents it wants copied and produced, the Producing Party must
determine which documents, or portions thereof, qualify for protection under this Order, then,
before producing the specified documents, the Producing Party must affix the appropriate legend

on each page that contains Protected Material.
(b)

For testimony given in deposition or in other pretrial or trial proceedings,

that any party believes should be designated “CONFIDENTIAL” or “HIGHLY
CONFIDENTIAL – ATTORNEYS’ EYES ONLY”, the party shall designate, either on the
record during the deposition, or in writing within 20 days of the receipt by that party of the
unofficial deposition transcript, the specific portions of the testimony as to which protection is
sought and the level of protection being asserted. The Designating Party shall be required to
provide notice to the court reporter identifying those sections of the deposition transcript that are
being designated. To the extent feasible, the court reporter shall separate those sections before
producing an official transcript and shall produce the pages designated as “CONFIDENTIAL” or
“HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” in a separately bound section. If
this is not feasible or if the official transcript has already been completed, then the notice from
the Designating Party shall be affixed by the court reporter to the official transcript provided to
any party.
(c)

For information produced in some form other than documentary, and for

any other tangible items, the Producing Party shall affix in a prominent place on the exterior of
the container or containers in which the information or item is stored the legend
“CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY.”
5.3

Inadvertent Failures to Designate. An inadvertent failure to designate qualified

information or items as “Confidential” or “Highly Confidential – Attorneys’ Eyes Only” does
not, standing alone, waive the Designating Party’s right to secure protection under this Order for
such material if such failure is timely corrected once known to the Producing Party. Upon such
correction, the Receiving Party must treat the material as if it had been timely designated under

this Protective Order and must endeavor in good faith to obtain the return of, or confirm the
destruction of, all copies of documents that it distributed or disclosed to persons not authorized to
access such information.
6.

CHALLENGING CONFIDENTIALITY DESIGNATIONS
6.1

Timing of Challenges. Unless a prompt challenge to a Designating Party’s

confidentiality designation is necessary to avoid foreseeable substantial unfairness, unnecessary
economic burdens, or a later significant disruption or delay of the litigation, a Party does not
waive its right to challenge a confidentiality designation by electing not to mount a challenge
promptly after the original designation is disclosed.
6.2

Method of Challenge. A Party that elects to initiate a challenge to a Designating

Party’s confidentiality designation must do so in good faith and must begin the process by
serving a written objection upon the Designating Party. The Designating Party shall notify the
challenging party in writing of the bases for the asserted designation within ten days after
receiving a written objection. The Parties shall confer in good faith as to the validity of the
designation within five days after the challenging party has received the Designating Party’s
bases for the asserted designation. If the Parties are unable to reach an agreement as to the
challenged designation, the challenging party may make an appropriate application to the
Court. Until a challenge to an asserted designation is finally resolved by the Parties or the Court,
all Parties and persons shall treat the information or materials in question according to the
original designation.
6.3

Judicial Intervention. If a Party elects to challenge a confidentiality designation

after considering the justification offered by the Designating Party, the challenging party may
file a motion that identifies the challenged material and sets forth in detail the basis for the

challenge. Each such motion must be accompanied by a competent declaration that affirms that
the movant has complied with the meet and confer requirements imposed in the preceding
paragraph and that sets forth with specificity the justification for the confidentiality designation
that was given by the Designating Party in the meet and confer dialogue.
7.

ACCESS TO AND USE OF PROTECTED MATERIAL
7.1

Basic Principles. A Receiving Party may use Protected Material that is disclosed

or produced by another Party or by a non-party in connection with this case only for prosecuting,
defending, or attempting to settle this litigation. Such Protected Material may be disclosed only
to the categories of persons and under the conditions described in this Order. Protected Material
must be stored and maintained by a Receiving Party at a location and in a secure manner that
ensures that access is limited to the persons authorized under this Order.
7.2

Disclosure of “CONFIDENTIAL” Material. Unless otherwise ordered by the

Court or permitted in writing by the Designating Party, a Receiving Party may disclose any
material designated CONFIDENTIAL only to:
(a)

Receiving Party’s Outside Counsel of record in this action, as well as

employees of said Counsel to whom it is reasonably necessary to disclose the information for
this litigation.
(b)

officers, directors, and employees (including In-House Counsel) of the

Receiving Party to whom disclosure is reasonably necessary for this litigation;
(c)

Experts of the Receiving Party to whom disclosure is reasonably necessary

for this litigation and who have signed the “Agreement to Be Bound by Protective Order”
(Exhibit A), as well as the employees and staff of the Experts to whom disclosure is reasonably
necessary;

(d)

Court and its personnel;

(e)

Court reporters, their staffs, and Professional Vendors to whom disclosure

is reasonably necessary for this litigation; and
(f)

author of the document or the original source of the information or an

original recipient.
7.3

Disclosure of “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY”

Information or Items. Unless otherwise ordered by the Court or permitted in writing by the
Designating Party, a Receiving Party may disclose any material designated “HIGHLY
CONFIDENTIAL – ATTORNEYS’ EYES ONLY” only to:
(a)

Receiving Party’s Outside Counsel of record in this action, as well as

employees of said Counsel to whom it is reasonably necessary to disclose the information for
this litigation;
(b)

Receiving Party’s In-House Counsel, as well as employees of said In-

House Counsel to whom it is reasonably necessary to disclose the information for this litigation;
(c)

Experts of the Receiving Party to whom disclosure is reasonably necessary

for this litigation and who have signed the “Agreement to Be Bound by Protective Order”
(Exhibit A), as well as the employees and staff of the Experts to whom disclosure is reasonably
necessary;
(d)

Court and its personnel;

(e)

court reporters, their staffs, and Professional Vendors to whom disclosure

is reasonably necessary for this litigation; and
(f)
original recipient.

author of the document or the original source of the information or an

7.4

Use at Depositions. Any deponent may be shown or examined on any

information, document or thing, irrespective of designation, if it appears that the witness
authored or received a copy of it, or is employed by the party who produced the information,
document or thing, or if the Producing party consents to such disclosure.
7.5

Outside Counsel and Expert. Any Outside Counsel or Expert who has been

afforded access to information or items from a Producing Party which has been designated
“CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY,”
particularly information or items relating to Producing Party’s business, sales, research,
technology, development and marketing activities, shall not disclose, use or apply such
information or items for any purpose other than for work or services performed in the scope of
this case.
Use in This Action. The status of information or material as “CONFIDENTIAL” or
“HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” shall not be lost by use of such
information or material in a court proceeding in this action or any appeal therefrom. Counsel for
the parties shall confer on such procedures as are necessary to protect the confidentiality of any
documents, information, and transcripts used in the course of any court proceedings, and shall
incorporate such procedures as appropriate, in the pre-trial order.
8.

NON-PARTIES
8.1

A copy of this Protective Order shall be furnished to each non-party required to

produce documents or otherwise formally disclose information in response to discovery requests
during this litigation. Such non-parties may elect to avail themselves of, and agree to be bound
by, the terms and conditions of this Protective Order.
9.

PROTECTED MATERIAL SUBPOENAED

If a Receiving Party is served with a subpoena or an order issued in another action that
seeks disclosure of any information or items designated in this action as “CONFIDENTIAL” or
“HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY,” the Receiving Party must notify
the Designating Party of that request in writing promptly and in no event more than seven court
days after receiving the subpoena or order. Such notification must include a copy of the
subpoena or court order. The Receiving Party also must immediately inform in writing the Party
who caused the subpoena or order to issue in the other litigation that some or all the material
covered by the subpoena or order is the subject of this Protective Order. In addition, the
Receiving Party must deliver a copy of this Stipulated Protective Order promptly to the party in
the other action that caused the subpoena or order to issue.
The purpose of imposing these duties is to alert the interested parties to the existence of
this Protective Order and to afford the Designating Party in this case an opportunity to try to
protect its confidentiality interests in the Court from which the subpoena or order issued. The
Designating Party shall bear the burdens and the expenses of seeking protection in that court of
its confidential material – and nothing in these provisions should be construed as authorizing or
encouraging a Receiving Party in this action to disobey a lawful directive from another court.
10.

DISCLOSURE OF PROTECTED MATERIAL
If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed Protected

Material to any person or in any circumstance not authorized under this Order, the Receiving
Party must immediately (a) notify in writing the Designating Party of the disclosures, (b) use its
best efforts to retrieve all copies of the Protected Material, (c) inform the person or persons to
whom disclosures were made of all the terms of this Order, and (d) request such person or
persons to execute the “Acknowledgment and Agreement to Be Bound” that is attached hereto as

Exhibit A.
11.

FILING PROTECTED MATERIAL
In the event that Confidential or Highly Confidential – Attorneys’ Eyes Only Information

is used in any court filing or proceeding in this action, including but not limited to its use at trial,
it shall not lose its confidential status as between the Parties through such use. Whenever any
Protected Material must be filed with the Court, Parties shall seek to restrict public access to
such filings by filing appropriate motions that meet the requirements of D.C.COLO.LCivR.
7.2C. Parties shall seek the lowest reasonable level of restriction under D.C.COLO.LCivR.
7.2C.
12.

FINAL DISPOSITION
Unless otherwise ordered or agreed in writing by the Producing Party, within 60 days

after the final termination of this action, including any appeals there from, each Receiving Party
must either destroy or return to the Producing Party all Protected Material and all copies,
abstracts, compilations, summaries or any other form of reproducing or capturing any of the
Protected Material. Whether the Protected Material is returned or destroyed, the Receiving Party
must submit a written certification to the Producing Party (and, if not the same person or entity,
to the Designating Party) by the 60-day deadline that identifies (by category, where appropriate)
all the Protected Material that was returned or destroyed and that affirms that the Receiving Party
has not retained any copies, abstracts, compilations, summaries or other forms of reproducing or
capturing any of the Protected Material. Notwithstanding this provision, Counsel are entitled to
retain an archival copy of all Protected Material or pleadings, motion papers, transcripts, legal
memoranda, correspondence or attorney work product, even if such materials contain Protected
Material. Any such archival copies that contain or constitute Protected Material remain subject to

this Protective Order as set forth above.
13.

DISCLOSURE BEYOND TERMS OF PROTECTIVE ORDER
13.1

Nothing shall prevent disclosure beyond the terms of this Protective Order if the

producing party consents to such disclosure in writing, or if the Court orders such disclosure.
13.2

Exclusions. This Protective Order has no effect upon, and shall not apply to, a

Party’s use or disclosure of its own confidential information for any purpose. Nothing contained
herein shall impose any restrictions on the use or disclosure by a Party of Protected Material:
(a) separately obtained lawfully independently of this action;
(b) already known to the Receiving Party by lawful means prior to acquisition
from, or disclosure by, the Producing Party in this action;
(c) which is or becomes publicly known through no fault or act of the Receiving
Party; or
(d) rightfully received by the Receiving Party from a third party with authority to
provide such material without restriction as to disclosure.
13.

MISCELLANEOUS
13.1

Right to Further Relief. Nothing in this Order abridges the right of any person to

seek its modification by the Court in the future.
13.12 Right to Assert Other Objections. By stipulating to the entry of this Protective
Order, no Party waives any right it otherwise would have to object to disclosing or producing
any information or item on any ground not addressed in this Stipulated Protective Order.
Similarly, no Party waives any right to object on any ground to use in evidence of any of the
material covered by this Protective Order.
14.

DISCLOSURE DURING TRIAL OR AT ANY HEARING

If the need arises during trial or at any Hearing before the Court for any party to disclose
Confidential or Highly Confidential – Attorneys’ Eyes Only information, it may do so only after
giving notice to the producing party and as directed by the Court.
15.

REDACTIONS
Any Producing Party may redact from the documents and things it produces any matter

that the disclosing party claims is subject to attorney-client privilege, work product immunity, a
legal prohibition against disclosure, or any other privilege or immunity. The Producing Party
shall mark each thing where matter has been redacted with a legend stating “REDACTED,” as
appropriate, or a comparable notice. Where a document consists of more than one page, at least
each page on which information has been redacted shall be so marked. The Producing Party shall
preserve an unredacted version of each such document. This provision shall not affect any
obligation to provide a log of information redacted or otherwise withheld on the basis of
attorney-client privilege, work product immunity, a legal prohibition against disclosure, or other
privilege or immunity.
16.

INADVERTENT DISCLOSURE OF PRIVILEGED MATERIALS
Pursuant to Federal Rule of Evidence 502(d) and Federal Rule of Civil Procedure

26(b)(5)(B), attorney-client privilege, work product protection or any other privilege or
protection shall not be waived, in this case or in any other Federal or State proceeding, by
inadvertent disclosure. More specifically, if any privileged or protected documents, records,
and/or data are inadvertently disclosed to another party, such documents will not lose the
privilege and/or protection attached thereto by the mere fact such documents were inadvertently
disclosed, nor may any such documents, once identified, be used for any purpose (including,
without limitation, during a deposition). All copies of such document(s) shall be returned to the

producing party or be destroyed within five days of such notice. This provision shall apply in
this case, as well as in any other Federal or State proceeding.
If a dispute arises concerning the protected nature of the document(s) demanded or
returned under this paragraph, the Parties shall meet and confer in good faith in an effort to
resolve the dispute. If the Parties are unable to resolve the dispute, the producing party may file a
motion for protective order protecting the document(s) at issue from being further disclosed, and
requiring that the document(s) be returned to the Producing Party. In the event of such a motion
for protective order, the Producing Party shall have the burden to demonstrate the claimed
privilege, work product immunity or other immunity. The Receiving Party will not use or refer
to any information contained within the document(s) at issue, including in deposition or at trial
or in any Court filing, unless and until such a motion for protective order is denied by a Court.
17.

EXPERT MATERIALS
Testifying experts’ draft reports, notes, and outlines of draft reports shall not be subject to

discovery in this case, nor shall any such drafts, notes, or outlines of draft reports that the
testifying expert prepared in other cases be subject to discovery in this case (except if the
testifying expert has relied on an interview in his expert report, declaration, or affidavit, then all
notes, summaries of the testifying expert or transcripts relating to that interview shall be
discoverable). Discovery of materials provided to testifying experts shall be limited to those
materials, facts, consulting expert opinions, and other matters actually relied upon by the
testifying expert in forming his or her final report, trial or deposition testimony, or any opinion in
this case. No discovery can be taken from any consulting expert who does not testify, except to
the extent that the consulting expert has provided information, opinion, or other materials to a
testifying expert, who then relies upon such information, opinions or other materials in forming

his or her final opinion in this case. No conversations or communications between counsel and
any testifying or consulting expert, or between a party and any testifying or consulting expert,
will be subject to discovery unless the conversations or communications are relied upon by such
experts in formulating opinions that are presented in reports, trial or deposition testimony in this
case. Materials, communications, and other information exempt from discovery under this
paragraph shall be treated as attorney-work product for the purposes of this litigation.

EXHIBIT A
ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND

I, ________________________________ [print or type full name], of
________________________________ [print or type full address], declare under penalty of
perjury that I have read in its entirety and understand the Stipulated Protective Order that was
issued by the United States District Court for the District of Colorado on [__________, 2012] in
the case of Able Planet, Inc. v. Bose Corporation, Case No. 1:12-cv-00894. I agree to comply
with and to be bound by all the terms of this Stipulated Protective Order and I understand and
acknowledge that failure to so comply could expose me to sanctions and punishment in the
nature of contempt. I solemnly promise that I will not disclose in any manner any information or
item that is subject to this Stipulated Protective Order to any person or entity except in strict
compliance with the provisions of this Order.
I further agree to submit to the jurisdiction of the United States District Court for the
District of Colorado for the purpose of enforcing the terms of this Stipulated Protective Order,
even if such enforcement proceedings occur after termination of this action.

Date:_________________________________
City and State where sworn and signed:__________________________________________
Printed name:_______________________________________
Signature:___________________________________________________

DATED at Denver, Colorado, on August 8, 2012.
BY THE COURT:

s/Craig B. Shaffer
Craig B. Shaffer
United States Magistrate Judge