AMERICAN SOCIETY FOR TESTING AND MATERIALS et al v. PUBLIC.RESOURCE.ORG, INC.

Filing 31

MOTION for Order of Protection by AMERICAN SOCIETY FOR TESTING AND MATERIALS, AMERICAN SOCIETY OF HEATING, REFRIGERATING, AND AIR-CONDITIONING ENGINEERS, INC., NATIONAL FIRE PROTECTION ASSOCIATION, INC. (Attachments: #1 Exhibit A - Proposed Order, #2 Exhibit B - Declaration of Jordana Rubel, #3 Exhibit B - Declaration Exh. 1, #4 Exhibit B - Declaration Exh. 2, #5 Exhibit B - Declaration Exh. 3, #6 Exhibit B - Declaration Exh. 4, #7 Exhibit B - Declaration Exh. 5, #8 Exhibit B - Declaration Exh. 6, #9 Exhibit B - Declaration Exh. 7, #10 Exhibit B - Declaration Exh. 8, #11 Exhibit B - Declaration Exh. 9, #12 Exhibit B - Declaration Exh. 10, #13 Exhibit B - Declaration Exh. 11, #14 Exhibit B - Declaration Exh. 12, #15 Exhibit B - Declaration Exh. 13, #16 Exhibit B - Declaration Exh. 14, #17 Exhibit B - Declaration Exh. 15, #18 Exhibit B - Declaration Exh. 16, #19 Exhibit B - Declaration Exh. 17, #20 Exhibit B - Declaration Exh. 18, #21 Exhibit B - Declaration Exh. 19, #22 Exhibit B - Declaration Exh. 20, #23 Exhibit B - Declaration Exh. 21, #24 Exhibit B - Declaration Exh. 22, #25 Exhibit B - Declaration Exh. 23, #26 Exhibit B - Declaration Exh. 24, #27 Exhibit C)(Fee, J.)

Exhibit A

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
AMERICAN SOCIETY FOR TESTING
AND MATERIALS d/b/a/ ASTM
INTERNATIONAL;
NATIONAL FIRE PROTECTION
ASSOCIATION, INC.; and
AMERICAN SOCIETY OF HEATING,
REFRIGERATING, AND AIR
CONDITIONING ENGINEERS,

Case No. 1:13-cv-01215-TSC

Plaintiffs/
Counter-Defendants,
v.
PUBLIC.RESOURCE.ORG, INC.,
Defendant/
Counter-Plaintiff.
ORDER REGARDING CONFIDENTIALITY OF DISCOVERY
MATERIAL AND INADVERTENT DISCLOSURE OF PRIVILEGED MATERIAL
Whereas, the parties have stipulated that certain discovery material be treated
as confidential and that certain provisions of Fed. R. Evid. 502 be incorporated in an order, it
is hereby ORDERED by the United States District Court for the District of Columbia:
1.

Designation of Discovery Material as Confidential or Highly Confidential.

All documents produced in the course of discovery, all Answers to Interrogatories, all
Answers to Requests for Admission, all Responses to Requests for Production of
Documents, all expert disclosures, and all deposition testimony, deposition transcripts
and deposition exhibits (hereinafter “Discovery Material”) shall be subject to this Order
concerning confidential and highly confidential information, as set forth below:
(a)

The designation of confidential information shall be made by placing or

affixing on a document, in a manner which will not interfere with its legibility,
the word “CONFIDENTIAL.” One who provides material may designate it as
“CONFIDENTIAL” only when such person in good faith believes that the material
is, in fact, “confidential material.” For purposes of this Order, “confidential
material” is material which is not known or available to the public and which
constitutes technical know-how; confidential research, development or
commercial information; purchase and/or sales data; proprietary commercial,
financial, technical, research, development, or business information; or any
other confidential, private, or proprietary information that is used in the
party’s business. A party shall not routinely designate material as
“CONFIDENTIAL,” or make such a designation without reasonable inquiry to
determine whether the material at issue qualifies for such designation.
(b)

The designation of highly confidential information shall be made by placing

or affixing on a document, in a manner which will not interfere with its legibility,
the wording “HIGHLY CONFIDENTIAL—ATTORNEYS’ EYES ONLY.”
One who provides material may designate it as “HIGHLY CONFIDENTIAL—
ATTORNEYS’ EYES ONLY” only when such person in good faith believes that
the material is, in fact, “highly confidential material.” For purposes of this Order,
“highly confidential material” is material that consists of or contains personal,
technical, scientific, business or financial information, including – without
limitation – trade secrets, sales, business strategy and planning information,
and commercial and financial information, which (i) has not been made public;
(ii) is proprietary or otherwise sensitive; and (iii) is of such nature that

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disclosure to the opposing party could cause substantial harm to the disclosing
party.
(c)

Except for documents produced for inspection prior to copying and during

depositions, the designation of confidential and/or highly confidential information
shall be made prior to or contemporaneously with the production or disclosure of that
information. In the event that documents are produced for inspection at the party's
facilities, such documents may be produced for inspection before being marked
“CONFIDENTIAL” or “HIGHLY CONFIDENTIAL—ATTORNEYS’ EYES
ONLY.” Once specific documents have been designated for copying, any
documents containing confidential or highly confidential information will then
be marked confidential or highly confidential after copying but before delivery to the
party who inspected and designated the documents. There will be no waiver of
confidentiality by the inspection of confidential or highly confidential documents
before they are copied and marked “CONFIDENTIAL” or “HIGHLY
CONFIDENTIAL—ATTORNEYS’ EYES ONLY” pursuant to this procedure.
(d)

Portions of depositions shall be deemed confidential or highly

confidential only if they are designated as such when the deposition is taken or
within thirty days after receipt of the transcript. Any testimony which describes a
document that has been designated as “CONFIDENTIAL” or “HIGHLY
CONFIDENTIAL—ATTORNEYS’ EYES ONLY” shall also be deemed to be
designated “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL—ATTORNEYS’
EYES ONLY” (as the case may be).
(e)

Information or documents designated as “CONFIDENTIAL” or “HIGHLY

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CONFIDENTIAL—ATTORNEYS’ EYES ONLY” under this Order shall not be
used or disclosed by the parties or counsel for the parties or any persons identified
in subparagraph (f) below for any purposes whatsoever other than preparing for
and conducting the litigation in which the information or documents were disclosed
(including appeals).
(f)

The parties and counsel for the parties shall not disclose or permit the

disclosure of any documents or information designated as “CONFIDENTIAL” or
“HIGHLY CONFIDENTIAL—ATTORNEYS’ EYES ONLY” under this Order to
any other person or entity, except that disclosures may be made in the following
circumstances:
(i)

Disclosure of confidential and highly confidential materials may be
made to counsel of record for the parties to this lawsuit, as well as inhouse counsel for the parties to this lawsuit.

(ii)

Disclosure of confidential material may be made only to officers,
principals, directors, and non-legal employees of a party who are
required in good faith to provide assistance in the conduct of the
litigation in which the information was disclosed. Disclosure of highly
confidential material may not be made to non-legal officers, principals,
directors, or employees of a party.

(iii)

Disclosure of confidential and highly confidential material may be
made to court reporters engaged for depositions.

(iv)

Disclosure of confidential and highly confidential materials may be
made to the Court and court personnel and any subsequent appellate

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body to which an appeal is taken in this matter, if filed in accordance
with Paragraph 2 hereof.
(v)

Disclosure of confidential and highly confidential materials may be
made to non-employee consultants, investigators, or experts and their
employees (hereinafter referred to collectively as “experts”) employed by
the parties or counsel for the parties to assist in the preparation and trial
of the lawsuit. Prior to disclosure to any expert, the expert must be
informed of and agree in writing to the terms of this Protective Order
by executing an acknowledgement statement (in the form attached
hereto as Exhibit A), which indicates that he or she has read this
Protective Order and agrees to be bound in all respects by its terms.

(vi)

Disclosure of confidential and highly confidential materials may also
be made to:


Independent support services, including legal interpreters,
document reproduction services, computer imaging services,
jury consultants, and demonstrative exhibit services;



Individuals who authored, or prior to this action, received, the
designated document or material; and



Any other person agreed to by the parties or allowed by this
Court.

(g)

Except as provided in subparagraph (f) above, counsel for the parties shall keep

all documents designated as confidential or highly confidential which are received
under this Order secure within their exclusive possession and shall take reasonable

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efforts to place such documents in a secure area.
(h)

All copies, duplicates, extracts, summaries, or descriptions (hereinafter

referred to collectively as “copies”) of documents or information designated as
“CONFIDENTIAL” or “HIGHLY CONFIDENTIAL—ATTORNEYS’ EYES ONLY”
under this Order, or any portion thereof, shall be immediately affixed with the wording
“CONFIDENTIAL” or “HIGHLY CONFIDENTIAL—ATTORNEYS’ EYES ONLY”
if that wording does not already appear.
2.

Confidential Information Filed with Court. To the extent that any materials

subject to this Order (or any pleading, motion or memorandum disclosing them) are proposed to
be filed or are filed with the Court, those materials and papers, or any portion thereof which
discloses confidential or highly confidential information, shall be filed under seal (by the filing
party) according to the Court’s rules. The Interim Sealing Motion shall be governed by L.R.
5.1(h). Even if the filing party believes that the materials subject to the Confidentiality
Order are not properly classified as confidential or highly confidential, the filing party shall file
the Interim Sealing Motion; provided, however, that the filing of the Interim Sealing Motion shall
be wholly without prejudice to the filing party’s rights under paragraph (3) of this Confidentiality
Order. Where possible, efforts should be taken to limit sealed materials to exhibits, declarations,
or other supplemental filings so that the briefs themselves may remain publicly accessible.
3.

Challenging Designation of Confidentiality or High Confidentiality. A

designation of materials as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL—
ATTORNEYS’ EYES ONLY” may be challenged upon motion. The receiving party shall
notify the designating party, in good faith and in writing, of its challenge to the designated
material as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL—ATTORNEYS’ EYES

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ONLY.” If the parties are unable to agree within ten (10) business days whether or not the
material is appropriately designated, the receiving party may file an appropriate motion
requesting that the Court determine whether the disputed information has been appropriately
designated. The burden of proving that a document is confidential or highly confidential
remains with the party asserting such confidentiality or high confidentiality. The provisions
of Federal Rule of Civil Procedure 37(a)(5) apply to such motions.
4.

Treatment of Discovery Material That is Subpoenaed in Other Litigation. If a

party or non-party bound by the terms of this Order receives a subpoena or other form of
compulsory process requiring it (the “Subpoenaed Party”) to produce confidential or highly
confidential Discovery Material received from a party to this litigation, the Subpoenaed Party
shall promptly notify the disclosing party of the service of such subpoena. If the disclosing party
elects to resist the production of confidential or highly confidential Discovery Material under the
subpoena, it shall promptly notify the Subpoenaed Party and the latter shall cooperate in
affording the disclosing party the opportunity to oppose or limit the Subpoenaed Party’s
production of such Discovery Materials.
5.

Return of Confidential and Highly Confidential Material at Conclusion of

Litigation. Within sixty (60) days of final disposition of the litigation, all material treated
as confidential or highly confidential under this Order and not received in evidence shall
be returned to the disclosing party, except for one copy which may be retained by counsel of
record for archival purposes only, and except for any abstracts or summaries or other
memoranda prepared by persons identified in paragraph 1(f) above who obtained the
confidential or highly confidential material and any part of the official record which is or
contains confidential or highly confidential material. The parties agree that all retained

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confidential or highly confidential material, and any information contained therein, will
continue to be treated as provided in this Protective Order and that such continuing
obligation shall survive the final disposition of this action. The material may be destroyed
instead of being returned. The party returning and/or destroying Confidential and/or
Highly Confidential Material must promptly certify in writing its compliance with the
requirements of this paragraph.
6.

Non-Waiver of Confidentiality for Discovery Material Inadvertently

Produced Without a Confidentiality Designation. Any Discovery Material containing
confidential or highly confidential information that has been inadvertently produced without
identification as to its confidential nature may be so designated by the Disclosing Party through
written notice to counsel for the opposing party which identifies the non-designated Discovery
Material as confidential or highly confidential information within a reasonable time following
the discovery that such information has been produced without a proper confidentiality
designation.
7.

Prohibition on Use of Information and Documents Obtained in Discovery for

Purposes Other than This Litigation. The Parties and their attorneys shall not use
any information or documents obtained during discovery in this matter, regardless of
whether the information and/or documents are designated Confidential, Highly
Confidential, or are not assigned any confidentiality designation, for any purpose other
than preparing for and conducting this litigation, including any appeals.
8.

Non-Waiver of Privilege for Inadvertently Disclosed Material. Pursuant to

Federal Rule of Evidence 502(d), the inadvertent disclosure of any document that is
subject to a legitimate claim that the document is subject to the attorney-client

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privilege, work-product protection, or any other applicable privilege or protection shall
not waive the protection or the privilege for either that document or for the subject matter of
that document.
9.

Return of Inadvertently Disclosed Materials. Regardless of whether the

requesting party disputes the claim, any documents the disclosing party deems to have been
inadvertently disclosed and to be subject to the attorney-client privilege, work-product
protection, or any other applicable privilege shall be, upon written request, promptly returned
to the disclosing party, or destroyed, at the disclosing party’s option.
10.

Procedure for Disputes Regarding Allegedly Inadvertently Disclosed Material. If

the receiving party disputes whether a disclosed document is privileged or is protected work
product, after the receiving party notifies counsel for the disclosing party of the dispute, the
parties shall meet and confer in good faith as to whether such material is privileged or work
product protected. If the parties are unable to reach agreement, the receiving party may, within
twenty (20) days after the parties have met and conferred, file a motion for an appropriate order
from this Court. Any such motion shall be filed under seal with the Court. The disclosing party
shall have the burden of establishing that the material is covered by privilege or work product
protection.
11.

Provision of Advice to Clients. Nothing in this Protective Order shall bar or otherwise

restrict any attorney from rendering advice to his or her client with respect to this action and, in
the course thereof, from generally referring to or relying upon the examination of documents
produced or information revealed in deposition or trial transcripts. In rendering such advice or in
otherwise communicating with his or her client, the attorney shall not disclose the content of any
document, material, or information except as permitted under section 1(f).

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12.

Amendment. This Protective Order may be amended without leave of Court and by

agreement of the parties in the form of a stipulation that shall be filed in this action.
13.

Nothing in this Protective Order Shall Constitute: (a) an agreement by the parties to

produce any document or supply any information or testimony in discovery not otherwise agreed
upon or required by order or this Court; (b) a waiver by any person or party of any right to object
to or seek an additional protective order with respect to any discovery request in this action; or
(c) a waiver of any claim of immunity or privilege with regard to any testimony, documents, or
information.

__________________________________

DATED: _______________

Attorneys for Plaintiff American Society for Testing and Materials
_________________________________

DATED: _______________

Attorneys for Plaintiff National Fire Protection Association, Inc.
_________________________________

DATED:_______________

Attorneys for Plaintiff American Society of Heating, Refrigerating, and Air Conditioning
Engineers
_________________________________

DATED: _______________

Attorneys for Defendant Public.Resource.Org, Inc.
_________________________________

DATED: _______________

Judge Tanya S. Chutkan

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EXHIBIT A
CERTIFICATION TO RECEIVE CONFIDENTIAL MATERIAL

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 Protective
Order that was issued by the United States District Court for the District of Columbia in the case
of American Society for Testing and Materials, et al., v. Public.Resource.Org, Inc.
I agree to comply with and be bound by all the terms of this 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 will not disclose in any manner any information or item
that is subject to this Protective Order to any person or entity except in strict compliance with the
provisions of this Protective Order. I will not use any information or item that is subject to this
Protective Order for any purpose beyond the instant litigation.
I further agree to submit to the jurisdiction of the United States District Court for the
District of Columbia for the purpose of enforcing the terms of this Protective Order, even if such
enforcement proceedings occur after termination of this action.

Date: _________________________
City and State Where Signed: _________________________
Printed name: _________________________
Signature: _________________________

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