Brilliant Optical Solutions, LLC v. Comcast Corporation
Filing
36
PROTECTIVE ORDER. By Judge Robert E. Blackburn on 1/29/2014. (Attachments: # 1 Exhibit A) (klyon, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 1:13-CV-00886-REB-KMT
BRILLIANT OPTICAL SOLUTIONS LLC,
Plaintiff,
v.
COMCAST CABLE COMMUNICATIONS, LLC
Defendant.
PROTECTIVE ORDER
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 may be
warranted. Accordingly, the parties hereby stipulate to and petition the court to enter the
following Stipulated Protective Order. The parties acknowledge that this Order does not
confer blanket protections on all disclosures or responses to discovery and that the
protection it affords from public disclosure and use extends only to the limited
information or items that are entitled to confidential treatment under the applicable legal
principles.
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
generated, stored or maintained) or tangible things that qualify for protection under
Federal Rule of Civil Procedure 26(c).
2.3
Counsel (without qualifier): Outside Counsel of Record (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”
or “HIGHLY CONFIDENTIAL – ATTORNEYS' EYES ONLY.”
2.5
Disclosure or 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, and tangible things), that are produced or generated
in disclosures or responses to discovery in this matter.
2.6
Expert: a person with specialized knowledge or experience in a matter
pertinent to the litigation who (1) has been retained by a Party or its counsel to serve as
an expert witness or as a consultant in this action, (2) is not a past or current employee
of a Party or of a Party's competitor, and (3) at the time of retention, is not anticipated to
become an employee of a Party or of a Party's competitor.
2.7
“HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” Information or
Items: extremely sensitive “Confidential Information or Items,” disclosure of which to
another Party or Non-Party would create a substantial risk of serious harm that could
not be avoided by less restrictive means.
2.8
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.
2.9
Non-Party: any natural person, partnership, corporation, association, or
other legal entity not named as a Party to this action.
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2.10
Outside Counsel of Record: attorneys who are not employees of a party to
this action but who are retained to represent or advise a party to this action and have
appeared in this action on behalf of that party or are affiliated with a law firm which has
appeared on behalf of that party.
2.11
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).
2.12
Producing Party: a Party or Non-Party that produces Disclosure or
Discovery Material in this action.
2.13
Professional Vendors: persons or entities that provide litigation support
services (e.g., photocopying, videotaping, translating, preparing exhibits or
demonstrations, and organizing, storing, or retrieving data in any form or medium) and
their employees and subcontractors.
2.14
Protected Material: any Disclosure or Discovery Material that is
designated as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES
ONLY.”
2.15
Receiving Party: a Party that receives Disclosure or Discovery Material
from a Producing Party.
3.
SCOPE
The protections conferred by this Stipulation and Order cover not only Protected
Material (as defined above), but also (1) any information copied or extracted from
Protected Material; (2) all copies, excerpts, summaries, or compilations of Protected
Material; and (3) any testimony, conversations, or presentations by Parties or their
Counsel that might reveal Protected Material. However, the protections conferred by
this Stipulation and Order do not cover the following information: (a) any information that
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is in the public domain at the time of disclosure to a Receiving Party or becomes part of
the public domain after its disclosure to a Receiving Party as a result of publication not
involving a violation of this Order, including becoming part of the public record through
trial or otherwise; and (b) any information known to the Receiving Party prior to the
disclosure or obtained by the Receiving Party after the disclosure from a source who
obtained the information lawfully and under no obligation of confidentiality to the
Designating Party. Any use of Protected Material at trial shall be governed by a
separate agreement or order. Should source code become relevant to this litigation, the
parties shall negotiate in good faith to establish procedures for ensuring the
confidentiality and protection of all source code prior to production.
4.
DURATION
Even after final disposition 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. Final disposition shall be deemed to be the later of (1)
dismissal of all claims and defenses in this action, with or without prejudice; and (2) final
judgment herein after the completion and exhaustion of all appeals, rehearings,
remands, trials, or reviews of this action, including the time limits for filing any motions
or applications for extension of time pursuant to applicable law.
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 must take care to limit any such designation to specific material that qualifies
under the appropriate standards. To the extent it is practical to do so, the Designating
Party must designate for protection only those parts of material, documents, 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 unjustifiably within the ambit of this Order.
If it comes to a Designating 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 Designating Party must promptly 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 (see, e.g., second paragraph of section 5.2(a) below), or as otherwise stipulated
or ordered, Disclosure or Discovery 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 (e.g., paper or electronic documents, but
excluding transcripts of depositions or other pretrial or trial proceedings), that the
Producing Party affix the legend “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL –
ATTORNEYS’ EYES ONLY” to each page that contains protected material. If only a
portion or portions of the material on a page qualifies for protection, the Producing Party
also must clearly identify the protected portion(s) (e.g., by making appropriate markings
in the margins) and must specify, for each portion, the level of protection being
asserted.
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
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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 (“CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’
EYES ONLY”) to each page that contains Protected Material. If only a portion or
portions of the material on a page qualifies for protection, the Producing Party also must
clearly identify the protected portion(s) (e.g., by making appropriate markings in the
margins) and must specify, for each portion, the level of protection being asserted.
(b) for testimony given in deposition or in other pretrial or trial proceedings, that
the Designating Party identify on the record, before the close of the deposition, hearing,
or other proceeding, all protected testimony and specify the level of protection being
asserted. When it is impractical to identify separately each portion of testimony that is
entitled to protection and it appears that substantial portions of the testimony may
qualify for protection, the Designating Party may invoke on the record (before the
deposition, hearing, or other proceeding is concluded) a right to have up to 21 days to
identify the specific portions of the testimony as to which protection is sought and to
specify the level of protection being asserted. Only those portions of the testimony that
are appropriately designated for protection within the 21 days shall be covered by the
provisions of this Stipulated Protective Order. Alternatively, a Designating Party may
specify, at the deposition or up to 21 days afterwards if that period is properly invoked,
that the entire transcript shall be treated as “CONFIDENTIAL” or “HIGHLY
CONFIDENTIAL – ATTORNEYS’ EYES ONLY.”
Parties shall give the other parties notice if they reasonably expect a
deposition, hearing, or other proceeding to include Protected Material so that the
other parties can ensure that only authorized individuals who have signed the
“Acknowledgment and Agreement to Be Bound” (Exhibit A) are present at those
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proceedings. The use of a document as an exhibit at a deposition shall not in any
way affect its designation as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL –
ATTORNEYS’ EYES ONLY.”
Transcripts containing Protected Material shall have an obvious legend on
the title page that the transcript contains Protected Material, and the title page
shall be followed by a list of all pages (including line numbers as appropriate)
that have been designated as Protected Material and the level of protection being
asserted by the Designating Party. The Designating Party shall inform the court
reporter of these requirements. Any transcript that is prepared before the
expiration of a 21-day period for designation shall be treated during that period as
if it had been designated “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY”
in its entirety unless otherwise agreed. After the expiration of that period, the
transcript shall be treated only as actually designated.
(c) for information produced in some form other than documentary and for any
other tangible items, that the Producing Party 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.” If only a
portion or portions of the information or item warrant protection, the Producing Party, to
the extent practicable, shall identify the protected portion(s) and specify the level of
protection being asserted.
5.3
Inadvertent Failures to Designate. If timely corrected, an inadvertent
failure to designate qualified information or items does not, standing alone, waive the
Designating Party’s right to secure protection under this Order for such material. Upon
timely correction of a designation, the Receiving Party must make reasonable efforts to
assure that the material is treated in accordance with the provisions of this Order.
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6.
CHALLENGING CONFIDENTIALITY DESIGNATIONS
6.1
Timing of Challenges. Any Party or Non-Party may challenge a
designation of confidentiality at any time. Unless a prompt challenge to a Designating
Party’s confidentiality designation is necessary to avoid foreseeable, substantial
unfairness, unnecessary economic burdens, or a 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
Meet and Confer. The Challenging Party shall initiate the dispute
resolution process by providing written notice of each designation it is challenging and
describing the basis for each challenge. To avoid ambiguity as to whether a challenge
has been made, the written notice must recite that the challenge to confidentiality is
being made in accordance with this specific paragraph of the Protective Order. The
parties shall attempt to resolve each challenge in good faith and must begin the process
by conferring directly (in voice to voice dialogue; other forms of communication are not
sufficient) within 14 days of the date of service of notice. In conferring, the Challenging
Party must explain the basis for its belief that the confidentiality designation was not
proper and must give the Designating Party an opportunity to review the designated
material, to reconsider the circumstances, and, if no change in designation is offered, to
explain the basis for the chosen designation. A Challenging Party may proceed to the
next stage of the challenge process only if it has engaged in this meet and confer
process first or establishes that the Designating Party is unwilling to participate in the
meet and confer process in a timely manner.
6.3
Judicial Intervention. If the Parties cannot resolve a challenge without
court intervention, the Challenging Party may file and serve a motion to reduce or
remove the confidentiality designation. Each such motion must be accompanied by a
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competent declaration affirming that the movant has complied with the meet and confer
requirements imposed in the preceding paragraph.
The burden of persuasion in any such challenge proceeding shall be on the
Designating Party. All parties shall continue to afford the material in question the level of
protection to which it is entitled under the Producing Party’s designation until the court
rules on the challenge.
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. When the litigation has been terminated, a Receiving Party
must comply with the provisions of section 14 below (FINAL DISPOSITION).
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” Information or Items. Unless otherwise
ordered by the court or permitted in writing by the Designating Party, a Receiving Party
may disclose any information or item designated “CONFIDENTIAL” only to:
(a) the Receiving Party’s Outside Counsel of Record in this action, as well as
employees of said Outside Counsel of Record to whom it is reasonably necessary to
disclose the information for this litigation;
(b) the officers, directors, and employees (including House Counsel) of the
Receiving Party to whom disclosure is reasonably necessary for this litigation and who
have signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A);
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(c) Experts (as defined in this Order) of the Receiving Party to whom
disclosure is reasonably necessary for this litigation and who have signed the
“Acknowledgment and Agreement to Be Bound” (Exhibit A);
(d) the court and its personnel;
(e) court reporters and their staff, professional jury or trial consultants, and
Professional Vendors to whom disclosure is reasonably necessary for this litigation and
who have signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A);
(f) witnesses providing testimony in connection with the action to whom
disclosure is reasonably necessary if the witness was the author or recipient of a
document containing the information, or a custodian or other person who otherwise
possessed or knew the information. If the witness was not the author or recipient of a
document containing the information and was not a custodian or other person who
otherwise possessed or knew the information, then the party taking the deposition or
testimony may discuss the Protected Material with the witness only if the witness has
signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A) and one of the
following conditions is satisfied: (i) the Protected Material originated from the same
company for which the witness works or an affiliated company; (ii) the Designating Party
provides prior approval, which shall not be unreasonably withheld; or (iii) the Court
grants a request to discuss the information with the witness.
Pages of transcribed deposition testimony or exhibits to depositions that reveal
Protected Material must be separately bound by the court reporter and may not be
disclosed to anyone except as permitted under this Stipulated Protective Order.
(g) the author or recipient of a document containing the information or a
custodian or other person who otherwise possessed or knew the information.
7.3
Disclosure of “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY”
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Information or Items. Unless otherwise ordered by the court or permitted in writing by
the Designating Party, a Receiving Party may disclose any information or item
designated “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” only to:
(a) the Receiving Party’s Outside Counsel of Record in this action, as well as
employees of said Outside Counsel of Record to whom it is reasonably necessary to
disclose the information for this litigation;
(b) Experts of the Receiving Party (1) to whom disclosure is reasonably
necessary for this litigation, (2) who have signed the “Acknowledgment and Agreement
to Be Bound” (Exhibit A), and (3) as to whom the procedures set forth in paragraph
7.4(a)(1), below, have been followed;
(c) the court and its personnel;
(d) court reporters and their staff, professional jury or trial consultants, and
Professional Vendors to whom disclosure is reasonably necessary for this litigation and
who have signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A); and
(e) witnesses providing testimony in connection with the action to whom
disclosure is reasonably necessary if the witness was the author or recipient of a
document containing the information, or a custodian or other person who otherwise
possessed or knew the information. If the witness was not the author or recipient of a
document containing the information and was not a custodian or other person who
otherwise possessed or knew the information, then the party taking the deposition or
testimony may discuss the Protected Material with the witness only if the witness has
signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A) and one of the
following conditions is satisfied: (i) the Protected Material originated from the same
company for which the witness works or an affiliated company; (ii) the Designating Party
provides prior approval, which shall not be unreasonably withheld; or (iii) the Court
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grants a request to discuss the information with the witness.
Pages of transcribed deposition testimony or exhibits to depositions that
reveal Protected Material must be separately bound by the court reporter and may not
be disclosed to anyone except as permitted under this Stipulated Protective Order.
(e) the author or recipient of a document containing the information or a
custodian or other person who otherwise possessed or knew the information.
7.4 Procedures for Approving or Objecting to Disclosure of “HIGHLY
CONFIDENTIAL – ATTORNEYS’ EYES ONLY” Information or Items to Experts.
(a)(1) Unless otherwise ordered by the court or agreed to in writing by the
Designating Party, a Party that seeks to disclose to an Expert (as defined in this Order)
any information or item that has been designated “HIGHLY CONFIDENTIAL –
ATTORNEYS’ EYES ONLY” pursuant to paragraph 7.3(c) first must disclose the Expert
to the Designating Party, including the following information (1) the full name of the
Expert and the city and state of his or her primary residence, (2) a copy of the Expert’s
current resume, (3) the Expert’s current employer(s), (4) to the extent not prohibited by
any confidentiality agreement, each person or entity from whom the Expert has received
compensation or funding for work in his or her areas of expertise or to whom the expert
has provided professional services, including in connection with a litigation, at any time
during the preceding five years,1 and (5) a list of all other cases in which, during the
previous four years, the witness testified as an expert at trial or by deposition.
(b) A Party that makes a request and provides the information specified in the
preceding paragraph may disclose the subject Protected Material to the identified
1
If the Expert believes any of this information is subject to a confidentiality obligation to a third-party, then
the Expert should provide whatever information the Expert believes can be disclosed without violating any
confidentiality agreements, and the Party seeking to disclose to the Expert shall be available to meet and
confer with the Designating Party regarding any such engagement.
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Expert unless, within ten (10) days of delivering the request, the Party receives a written
objection from the Designating Party. Any such objection must be reasonable, and must
set forth in detail the grounds on which it is based.
(c) A Party that receives a timely written objection must meet and confer with
the Designating Party (through direct voice to voice dialogue) to try to resolve the matter
by agreement within seven (7) days of the written objection. If no agreement is reached,
the Party seeking to make the disclosure to the Expert may file a motion within seven
(7) days of the meet and confer seeking permission from the court to do so. Any such
motion must describe the circumstances with specificity, set forth in detail the reasons
why disclosure to the Expert is reasonably necessary, assess the risk of harm that the
disclosure would entail, and suggest any additional means that could be used to reduce
that risk. In addition, any such motion must be accompanied by a competent declaration
describing the parties’ efforts to resolve the matter by agreement (i.e., the extent and
the content of the meet and confer discussions) and setting forth the reasons advanced
by the Designating Party for its refusal to approve the disclosure.
In any such proceeding, the Party opposing disclosure to the Expert shall
bear the burden of proving that the risk of harm that the disclosure would entail (under
the safeguards proposed) outweighs the Receiving Party’s need to disclose the
Protected Material to its Expert.
8.
PROSECUTION BAR
Absent written consent from the Producing Party, any individual who on
behalf of Plaintiff receives access to “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES
ONLY” information shall not be involved in the prosecution of patents or patent
applications relating to fiber optic networks, including without limitation the patents
asserted in this action and any patent or application claiming priority to or otherwise
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related to the patents asserted in this action, before any foreign or domestic agency,
including the United States Patent and Trademark Office (“the Patent Office”). For
purposes of this paragraph, “prosecution” includes directly or indirectly drafting,
amending, advising, or otherwise affecting the scope or maintenance of patent claims.2
This Prosecution Bar shall begin when access to “HIGHLY CONFIDENTIAL –
ATTORNEYS’ EYES ONLY” information is first received by the affected individual and
shall end two (2) years after final termination of this action.3
9.
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 disclosure of any information or items designated in this action as
“CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY,” that
Party must:
(a) promptly notify in writing the Designating Party. Such notification shall
include a copy of the subpoena or court order;
(b) promptly notify in writing the party who caused the subpoena or order to
issue in the other litigation that some or all of the material covered by the subpoena or
order is subject to this Protective Order. Such notification shall include a copy of this
Stipulated Protective Order; and
2
Prosecution includes, for example, original prosecution, reissue and reexamination proceedings.
The parties agree that certain categories of HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY
information including, for example, summary financial information, may not be subject to the “prosecution
bar” defined in Section 8. Accordingly, a receiving party may submit a written request to a producing party
asking that certain outside counsel be permitted access to certain HIGHLY CONFIDENTIAL –
ATTORNEYS’ EYES ONLY documents without being subject to the “prosecution bar” defined in Section 8.
The parties will use best efforts to respond to such requests in a timely manner. In any event, unless and
until the producing party expressly grants, in writing, the request to allow the requested outside counsel
access to such documents without triggering the “prosecution bar,” the prosecution bar will remain in full
force and effect as to such documents. If access is permitted by the producing party, such documents will
still be subject to the restrictions in Section 8 and will be considered to be HIGHLY CONFIDENTIAL –
ATTORNEYS’ EYES ONLY information.
3
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(c) cooperate with respect to all reasonable procedures sought to be pursued
by the Designating Party whose Protected Material may be affected.4
If the Designating Party timely seeks a protective order, the Party served with the
subpoena or court order shall not produce any information designated in this action as
“CONFIDENTIAL,” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” before
a determination by the court from which the subpoena or order issued, unless the Party
has obtained the Designating Party’s permission. The Designating Party shall bear the
burden and expense 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.
A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE PRODUCED IN
THIS LITIGATION
(a) The terms of this Order are applicable to information produced by a Non-
Party in this action and designated as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL –
ATTORNEYS’ EYES ONLY.” Such information produced by Non-Parties in connection
with this litigation is protected by the remedies and relief provided by this Order. Nothing
in these provisions should be construed as prohibiting a Non-Party from seeking
additional protections.
(b) In the event that a Party is required, by a valid discovery request, to
produce a Non-Party’s confidential information in its possession, and the Party is
subject to an agreement with the Non-Party not to produce the Non-Party’s confidential
information, then the Party shall:
1.
promptly notify in writing the Requesting Party and the Non-Party
4
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.
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that some or all of the information requested is subject to a confidentiality
agreement with a Non-Party;
2.
promptly provide the Non-Party with a copy of the Stipulated
Protective Order in this litigation, the relevant discovery request(s), and a
reasonably specific description of the information requested; and
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 shall produce the Non-Party’s confidential information responsive to the discovery
request. If the Non-Party timely seeks a protective order, the Receiving Party shall not
produce any information in its possession or control that is subject to the confidentiality
agreement with the Non-Party before a determination by the court.5 Absent a court
order to the contrary, the Non-Party shall bear the burden and expense of seeking
protection in this court of its Protected Material.
11.
UNAUTHORIZED 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
Stipulated Protective Order, the Receiving Party must immediately (a) notify in writing
the Designating Party of the unauthorized disclosures, (b) use its best efforts to retrieve
all unauthorized copies of the Protected Material, (c) inform the person or persons to
whom unauthorized 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
5
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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Bound” that is attached hereto as Exhibit A.
12.
INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE
PROTECTED MATERIAL
When a Producing Party gives notice to Receiving Parties that certain
inadvertently produced material is subject to a claim of privilege or other protection, the
obligations of the Receiving Parties are those set forth in Federal Rule of Civil
Procedure 26(b)(5)(B). This provision is not intended to modify whatever procedure may
be established in an e-discovery order that provides for production without prior
privilege review. Pursuant to Federal Rule of Evidence 502(d) and (e), insofar as the
Court adopts the Parties’ Stipulation Regarding Electronic Discovery, filed December
24, 2013 (Dkt. 29-1), Paragraph 4 of that agreement is incorporated herein.
A Receiving Party or attorney that receives materials that on their face appear to
be subject to the attorney-client privilege or otherwise confidential, under circumstances
where it is clear they were not intended for the Receiving Party or attorney, should
refrain from examining the materials, notify the sending lawyer and abide by instructions
of the lawyer who sent them.
13.
MISCELLANEOUS
12.1
Right to Further Relief. Nothing in this Order abridges the right of any
person to seek its modification by the court in the future.
12.2
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.
12.3
Export Control. Disclosure of Protected Material shall be subject to all
applicable laws and regulations relating to the export of technical data contained in such
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Protected Material, including the release of such technical data to foreign persons or
nationals in the United States or elsewhere. The Producing Party shall be responsible
for identifying any such controlled technical data, and the Receiving Party shall take
measures necessary to ensure compliance.
12.4
Filing Protected Material. The Parties shall abide by D.C.COLO.LCivR.
7.2 when seeking to file Protected Material.
14.
FINAL DISPOSITION
Within 60 days after the final disposition of this action, as defined in paragraph 4,
each Receiving Party must return all Protected Material to the Producing Party or
destroy such material. As used in this subdivision, “all Protected Material” includes all
copies, abstracts, compilations, summaries, and any other format 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 (1) identifies (by category, where appropriate) all the Protected Material that was
returned or destroyed and (2) affirms that the Receiving Party has not retained any
copies, abstracts, compilations, summaries or any other format reproducing or capturing
any of the Protected Material. Notwithstanding this provision, Counsel are entitled to
retain an archival copy of all pleadings, motion papers, trial, deposition, and hearing
transcripts, legal memoranda, correspondence, deposition and trial exhibits, expert
reports, attorney work product, and consultant and expert 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 in Section 4
(DURATION).
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PURSUANT TO STIPULATION, IT IS SO ORDERED.
Dated January 29, 2014, at Denver, Colorado.
BY THE COURT:
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