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

Filing 33

RESPONSE re #31 MOTION for Order of Protection filed by PUBLIC.RESOURCE.ORG, INC.. (Attachments: #1 Text of Proposed Order (Exhibit A), #2 Declaration of Andrew P. Bridges (Exhibit B), #3 Exhibit B-1, #4 Exhibit B-2, #5 Exhibit B-3, #6 Declaration of Carl Malamud (Exhibit C))(Bridges, Andrew)

EXHIBIT A

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
AMERICAN SOCIETY FOR TESTING AND
MATERIALS d/b/a ASTM INTERNATIONAL;

Case No. 1:13-cv-01215-TSC
Action Filed: May 23, 2014

NATIONAL FIRE PROTECTION
ASSOCIATION, INC.; and
AMERICAN SOCIETY OF HEATING,
REFRIGERATING, AND AIR CONDITIONING
ENGINEERS,
Plaintiffs-Counterdefendants,
v.
PUBLIC.RESOURCE.ORG, INC.,
Defendant-Counterclaimant.
[PROPOSED] ORDER REGARDING CONFIDENTIALITY OF DISCOVERY
MATERIAL AND INADVERTENT DISCLOSURE OF PRIVILEGED MATERIAL
The matter having come before the Court, and for good cause appearing, it is
hereby ORDERED by the United States District Court for the District of Columbia:
1.

Designation of Discovery Material as 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
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)

Except for documents produced for inspection prior to copying and during

depositions, the designation of 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.” Once
specific documents have been designated for copying, any documents
containing confidential information will then be marked 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
documents before they are copied and marked “CONFIDENTIAL” pursuant to
this procedure.
(c)

Portions of depositions shall be deemed confidential only if they are

designated as such when the deposition is taken or within thirty days after receipt of

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the transcript. Any testimony which describes a document that has been
designated as “CONFIDENTIAL” shall also be deemed to be designated
“CONFIDENTIAL”.
(d)

Information or documents designated as “CONFIDENTIAL” 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).
(e)

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

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

Disclosure of confidential materials may be made to counsel of record
for the parties to this lawsuit, as well as in-house 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.

(iii)

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

(iv)

Disclosure of confidential materials may be made to the Court and
court personnel and any subsequent appellate body to which an appeal

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is taken in this matter, if filed in accordance with Paragraph 2 hereof.
(v)

Disclosure of 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 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.

(f)

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

all documents designated as confidential which are received under this Order secure
within their exclusive possession and shall take reasonable efforts to place such
documents in a secure area.
(g)

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

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referred to collectively as “copies”) of documents or information designated as
“CONFIDENTIAL” under this Order, or any portion thereof, shall be immediately
affixed with the wording “CONFIDENTIAL” if that wording does not already appear.
(h)

All materials designated as “CONFIDENTIAL” under this Order must be

accompanied by a statement explaining which specific facts or elements within the
designated material are confidential, and explaining why such designation is warranted.
Where possible, confidential information must be separated from non-confidential material
to limit over-designation.
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 information, shall be filed under seal (by the filing party) according to the
Court’s rules. Even if the filing party believes that the materials subject to the
Confidentiality Order are not properly classified as 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 material to exhibits, declarations,
or other supplemental filings so that the briefs themselves may remain publicly accessible.
3.

Challenging Designation of Confidentiality. A designation of materials as

“CONFIDENTIAL” may be challenged. The receiving party shall notify the designating
party, in good faith and in writing, of its challenge to the designated material as
“CONFIDENTIAL.” The parties will have seven (7) calendar days to confer, and if the
parties are unable to agree,whether or not the material is appropriately designated, after

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fourteen (14) calendar days from the date the designation was challenged the designating
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 remains with the party asserting such 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 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 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 Material at Conclusion of Litigation. Within sixty (60)

days of final disposition of the litigation, all material treated as 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 material and any part of the official record which is
or contains confidential material. The parties agree that all retained 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

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destroying 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 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 information within a reasonable time following the discovery that such information
has been produced without a proper confidentiality designation.
7.

Prohibition on Use of Confidential Information and Documents Obtained in

Discovery for Purposes Other than This Litigation. The Parties and their attorneys
shall not use any information or documents that are obtained during discovery in this
matter and are designated as Confidential by the Disclosing Party 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
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

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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).
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

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(c) a waiver of any claim of immunity or privilege with regard to any testimony, documents, or
information.

_________________________________

DATED: _______________

The Honorable Tanya S. Chutkan
United States District Judge

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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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