XY, LLC v. Trans Ova Genetics, LC

Filing 82

PROTECTIVE ORDER by Magistrate Judge Boyd N. Boland on 10/2/13. (bnbcd, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Magistrate Judge Boyd N. Boland
Civil Action No. 13-cv-00876-WJM-BNB
XY, LLC,
Plaintiff/Counterclaim Defendant,
v.
TRANS OVA GENETICS, L.C.,
Defendant/Counterclaim Plaintiff,
v.
INGURAN, LLC,
Counterclaim Defendant.
______________________________________________________________________________
CONFIDENTIALITY AND PROTECTIVE ORDER
______________________________________________________________________________

Before the court is the joint motion of the parties for the entry of a confidentiality and
protective order (“Protective Order”). After careful consideration, it is hereby ORDERED as
follows:
1.

Classified Information

“Classified Information” means any information of any type, kind, or character that is
designated as “Confidential” or “Attorneys’ Eyes Only” by any of the supplying or receiving
persons, whether it be a document, information contained in a document, information revealed
during a deposition, information revealed in an interrogatory answer, or otherwise.

2.

Qualified Persons

“Qualified Persons” means:
a.

For Attorneys’ Eyes Only:
i. retained counsel for the parties in this litigation and their respective staff;
ii. independent experts or consultants (and their administrative or clerical staff)
engaged in connection with this litigation (which shall not include the current
employees, officers, members, or agents of parties or affiliates of parties),
subject to the objection period set out in section 11(b), where the party
seeking to disclose information has provided written notice that includes:
1. the name of the person;
2. the present employer and title of the person;
3. an up-to-date curriculum vitae;
4. a list of current and past consulting relationships undertaken within the
last four years; and
5. a signed copy of the person’s agreement to be bound by the terms of
this Protective Order (such signed document to be maintained by the
attorney retaining such person); and
iii. this court and its staff and any other tribunal or dispute resolution officer duly
appointed or assigned in connection with this litigation.

b.

For Confidential information:
i. the persons identified in subparagraph 2(a);
ii. the party, if a natural person;
iii. if the party is an entity, such officers or employees of the party who are
actively involved in the prosecution or defense of this case who, prior to any
disclosure of Confidential information to such person, have been designated in
writing by notice to all counsel and have signed a document agreeing to be
bound by the terms of this Protective Order (such signed document to be
maintained by the attorney designating such person);
iv. litigation vendors, court reporters, and other litigation support personnel;

v. any person who was an author, addressee, or intended or authorized recipient
of the Confidential information and who agrees to keep the information
confidential, provided that such persons may see and use the Confidential
information but not retain a copy.
Such other person as this court may designate after notice and an opportunity to be heard.
3. Designation Criteria
a.

Nonclassified Information. Classified Information shall not include

information that either:
i.
ii.

becomes part of the public domain through no fault of the
recipient, as evidenced by a written document;

iii.

the receiving party can show by written document was in its
rightful and lawful possession at the time of disclosure; or

iv.

b.

is in the public domain at the time of disclosure, as evidenced by a
written document;

lawfully comes into the recipient’s possession subsequent to the
time of disclosure from another source without restriction as to
disclosure, provided such third party has the right to make the
disclosure to the receiving party.

Classified Information. A party shall designate as Classified Information,

including both Confidential and Attorneys’ Eyes Only designated information, only such
information that the party in good faith believes in fact is confidential. Information that is
generally available to the public, such as public filings, catalogues, advertising materials, and the
like, shall not be designated as Classified.
Information and documents that may be designated as Classified Information include, but
are not limited to, trade secrets, confidential or proprietary financial information, operational
data, business plans, and competitive analyses, personnel files, personal information that is
protected by law, and other sensitive information that, if not restricted as set forth in this order,

may subject the producing or disclosing person to competitive or financial injury or potential
legal liability to third parties.
Correspondence and other communications between the parties or with nonparties may
be designated as Classified Information if the communication was made with the understanding
or reasonable expectation that the information would not become generally available to the
public.
c.

For Attorneys’ Eyes Only. The designation “Attorneys’ Eyes Only” shall

be reserved for information that is believed to be unknown to the opposing party or parties, or
any of the employees of a corporate party. For purposes of this order, so-designated information
includes, but is not limited to, product formula information, design information, non-public
financial information, pricing information, customer identification data, and certain study
methodologies.
d.

Ultrasensitive Information. At this point, the parties do not anticipate the

need for higher levels of confidentiality as to ultrasensitive documents or information. However,
in the event that a court orders that ultrasensitive documents or information be produced, the
parties will negotiate and ask the court to enter an ultrasensitive information protocol in advance
of production to further protect such information.
4.

Use of Classified Information

All Classified Information provided by any party or nonparty in the course of this
litigation shall be used solely for the purpose of preparation, trial, and appeal of this litigation
and for no other purpose, and shall not be disclosed except in accordance with the terms hereof.
5.

Marking of Documents

Documents provided in this litigation may be designated by the producing person or by
any party as Classified Information by marking each page of the documents so designated with a
stamp indicating that the information is “Confidential” or “Attorneys’ Eyes Only”. In lieu of
marking the original of a document, if the original is not provided, the designating party may
mark the copies that are provided. Originals shall be preserved for inspection.
6. Disclosure at Depositions
Information disclosed at (a) the deposition of a party or one of its present or former
officers, directors, employees, agents, consultants, representatives, or independent experts
retained by counsel for the purpose of this litigation, or (b) the deposition of a nonparty may be
designated by any party as Classified Information by indicating on the record at the deposition
that the testimony is “Confidential” or “Attorneys’ Eyes Only” and is subject to the provisions of
this Order.
Any party also may designate information disclosed at a deposition as Classified
Information by notifying all parties in writing not later than 30 days of receipt of the transcript of
the specific pages and lines of the transcript that should be treated as Classified Information
thereafter. Each party shall attach a copy of each such written notice to the face of the transcript
and each copy thereof in that party’s possession, custody, or control. All deposition transcripts
shall be treated as “Attorneys’ Eyes Only” for a period of 30 days after initial receipt of the
transcript.
To the extent possible, the court reporter shall segregate into separate transcripts
information designated as Classified Information with blank, consecutively numbered pages
being provided in a nondesignated main transcript. The separate transcript containing Classified
Information shall have page numbers that correspond to the blank pages in the main transcript.

Counsel for a party or a nonparty witness shall have the right to exclude from depositions
any person who is not authorized to receive Classified Information pursuant to this Protective
Order, but such right of exclusion shall be applicable only during periods of examination or
testimony during which Classified Information is being used or discussed.
7. Disclosure to Qualified Persons
a.

To Whom. Classified Information shall not be disclosed or made available by the

receiving party to persons other than Qualified Persons except as necessary to comply with
applicable law or the valid order of a court of competent jurisdiction; provided, however, that in
the event of a disclosure compelled by law or court order, the receiving party will so notify the
producing party as promptly as practicable (if at all possible, prior to making such disclosure)
and shall seek a protective order or confidential treatment of such information. Information
designated as “Attorneys’ Eyes Only” shall be restricted in circulation to Qualified Persons
described in subparagraph 2(a).
b.

Retention of Copies During this Litigation. Copies of “Attorneys’ Eyes Only”

information shall be maintained only in the offices of outside counsel for the receiving party and,
to the extent supplied to Qualified Persons described in subparagraphs 2(a)(ii) or 2(a)(iv), in the
offices of those Qualified Persons. Any documents produced in this litigation, regardless of
classification, that are provided to Qualified Persons shall be maintained only at the office of
such Qualified Person and only necessary working copies of any such documents shall be made.
Copies of documents and exhibits containing Classified Information may be prepared by
independent copy services, printers, or illustrators for the purpose of this litigation.
c.

Each party’s outside counsel shall maintain a log of all copies of “Attorneys’

Eyes Only” documents that are delivered to Qualified Persons.

8.

Unintentional Disclosures

Documents unintentionally produced without designation as Classified Information later
may be designated and shall be treated as Classified Information from the date written notice of
the designation is provided to the receiving party.
If a receiving party learns of any unauthorized disclosure of Confidential information or
“Attorneys’ Eyes Only” information, the party shall immediately upon learning of such
disclosure inform the producing party of all pertinent facts relating to such disclosure and shall
make all reasonable efforts to prevent disclosure by each unauthorized person who received such
information.
9.

Documents Produced for Inspection Prior to Designation

In the event documents are produced for inspection prior to designation, the documents
shall be treated as For Counsel Only during inspection. At the time of copying for the receiving
parties, Classified Information shall be marked prominently “Confidential” or “Attorneys’ Eyes
Only” by the producing party.
10.

Consent to Disclosure and Use in Examination

Nothing in this order shall prevent disclosure beyond the terms of this order if each party
designating the information as Classified Information consents to such disclosure or if the court,
after notice to all affected parties and nonparties, orders such disclosure. Nor shall anything in
this order prevent any counsel of record from utilizing Classified Information in the examination
or cross-examination of any person who is indicated on the document as being an author, source,
or recipient of the Classified Information, irrespective of which party produced such information.

11.

Challenging the Designation

a.

Classified Information. A party shall not be obligated to challenge the propriety

of a designation of Classified Information at the time such designation is made, and a failure to
do so shall not preclude a subsequent challenge to the designation. In the event that any party to
this litigation disagrees at any stage of these proceedings with the designation of any information
as Classified Information, the parties shall first try to resolve the dispute in good faith on an
informal basis, such as by production of redacted copies. If the dispute cannot be resolved, the
objecting party may invoke this Protective Order by objecting in writing to the party who
designated the document or information as Classified Information. The designating party shall
then have 14 days to move the court for an order preserving the designated status of the disputed
information. The disputed information shall remain Classified Information unless and until the
court orders otherwise. Failure to move for an order shall constitute a termination of the status of
such item as Classified Information.
b.

Qualified Persons. In the event that any party in good faith disagrees with the

designation of a person as an expert or consultant under 2(a)(ii), or the disclosure of particular
Classified Information to such person, that party may object in writing within 7 days of the
designation or disclosure. No disclosure of Classified Information shall be made to a designated
expert or consultant prior to the expiration of this 7-day objection period. In the absence of any
objection at the end of the 7-day period, the designated expert or consultant shall be deemed an
approved Qualified Person under this Protective Order. If an objection is made, the parties shall
first try to resolve the dispute in good faith on an informal basis. If the dispute cannot be
resolved, the objecting party shall have 14 days from the date of the designation or, in the event
particular Classified Information is requested subsequent to the designation of the expert or

consultant, 14 days from service of the request to move the court for an order denying the
disposed person (a) status as a Qualified Person, or (b) access to particular Classified
Information. The objecting person shall have the burden of demonstrating that disclosure to the
disputed person would expose the objecting party to the risk of serious harm. Upon the timely
filing of such a motion, no disclosure of Classified Information shall be made to the disputed
person unless and until the court enters an order preserving the designation.
12.

Manner of Use in Proceedings

Any request to restrict access must comply with the requirements of
D.C.COLO.LCivR 7.2. In the event a party wishes to use any Classified Information in
affidavits, declarations, briefs, memoranda of law, or other papers filed in this litigation, the
party shall do one of the following: (1) with the consent of the producing party, file only a
redacted copy of the information; (2) where appropriate (e.g., in connection with discovery and
evidentiary motions) provide the information solely for in camera review; or (3) file any such
information with restricted access in compliance with the requirements of
D.C.COLO.LCivR.7.2.
13.

Restricted Access to Documents Filed with the Court

The clerk of this court is directed to restrict access to all documents, transcripts of
deposition testimony, answers to interrogatories, admissions, and other papers designated, in
whole or in part, as Classified Information by any party to this litigation and filed in accordance
with the requirements of D.C.COLO.LCivR 7.2.
14.

Return of Documents

Not later than 120 days after conclusion of this litigation and any appeal related to it, any
Classified Information, all reproductions of such information, and any notes, summaries, or

descriptions of such information in the possession of any of the persons specified in paragraph 2
(except subparagraph 2(a)(iii)) shall be returned to the producing party or destroyed, except as
this court may otherwise order or to the extent such information has been used as evidence at any
trial or hearing. Notwithstanding this obligation to return or destroy information, counsel may
retain attorney work product, including document indices, so long as that work product does not
duplicate verbatim substantial portions of the text of any Classified Information.
15.

Ongoing Obligations

Insofar as the provisions of this Protective Order, or any other protective orders entered
in this litigation, restrict the communication and use of the information protected by it, such
provisions shall continue to be binding after the conclusion of this litigation, except that (a) there
shall be no restriction on documents that are used as exhibits in open court unless such exhibits
were filed under seal, and (b) a party may seek the written permission of the producing party or
order of the court with respect to dissolution or modification of this, or any other, protective
order.
16.

Advice to Clients

This order shall not bar any attorney in the course of rendering advice to such attorney’s
client with respect to this litigation from conveying to any party client the attorney’s evaluation
in a general way of Classified Information produced or exchanged under the terms of this order;
provided, however, that in rendering such advice and otherwise communicating with the client,
the attorney shall not disclose the specific contents of any Classified Information produced by
another party if such disclosure would be contrary to the terms of this Protective Order.

17.

Duty to Ensure Compliance

Any party designating any person as a Qualified Person shall have the duty to reasonably
ensure that such person observes the terms of this Protective Order and shall be responsible upon
breach of such duty for the failure of such person to observe the terms of this Protective Order.
18.

Waiver

Pursuant to Federal Rule of Evidence 502, neither the attorney-client privilege nor work
product protection is waived by disclosure connected with this litigation.
19.

Modification and Exceptions

The parties may, by stipulation, provide for exceptions to this order and any party may
seek an order of this court modifying this Protective Order.
Dated October 2, 2013.
BY THE COURT:
s/ Boyd N. Boland
United States Magistrate Judge