AMERICAN EDUCATIONAL RESEARCH ASSOCIATION, INC. et al v. PUBLIC.RESOURCE.ORG, INC.
Filing
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NOTICE of filing of Proposed Order Regarding Confidentiality of Discovery Material and Inadvertent Disclosure of Privileged Material filed by AMERICAN EDUCATIONAL RESEARCH ASSOCIATION, INC., AMERICAN PSYCHOLOGICAL ASSOCIATION, INC., NATIONAL COUNCIL ON MEASUREMENT IN EDUCATION, INC. (Hudis, Jonathan)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
AMERICAN EDUCATIONAL RESEARCH
ASSOCIATION, INC., AMERICAN
PSYCHOLOGICAL ASSOCIATION, INC.,
and NATIONAL COUNCIL ON
MEASUREMENT IN EDUCATION, INC.,
Plaintiffs/Counterclaim Defendants,
v.
PUBLIC.RESOURCE.ORG, INC.,
Defendant/Counterclaimant.
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Civil Action No. 1:14-cv-00857-CRC
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
during 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.
(b)
A party shall not routinely designate material as “CONFIDENTIAL.”
The parties must make a good-faith determination that any information
designated as “CONFIDENTIAL” truly warrants protection under Rule 26(c)
of the Federal Rules of Civil Procedure.
Designations of material as
“CONFIDENTIAL” must be narrowly tailored to include only material for
which there is good cause. A pattern of over-designation may lead to an order
de-designating all or most materials on a wholesale basis.
(c)
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 or documents before they are copied and marked
“CONFIDENTIAL” pursuant to this procedure.
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(d)
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
the transcript.
Any testimony which describes a document that has been
designated as “CONFIDENTIAL” shall also be deemed to be designated
“CONFIDENTIAL.”
(e)
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).
(f)
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 officers, principals, directors, in-house
counsel and other 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.
(ii)
Disclosure of confidential materials may be made to court reporters
engaged for depositions.
(iii)
Disclosure of confidential materials may be made to the Court and
court personnel and any subsequent appellate body to which an appeal is taken in
this matter, if filed in accordance with Paragraph 2 hereof.
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(iv)
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 a Certification (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.
(v)
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.
(g)
Except as provided in subparagraph (f) above, counsel for the parties shall keep
all documents designated as confidential that are received under this Order secure
within their exclusive possession and shall take reasonable 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” under this Order, or any portion thereof, shall be immediately
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affixed with the wording “CONFIDENTIAL” if that wording does not already appear.
(i)
A party who has a document that contains confidential information that the party
believes in good faith is so sensitive that disclosure to the receiving parties could result in
substantial harm to the disclosing party may, after meeting and conferring with the
receiving parties and following all procedures required by the judge or the magistrate
judge assigned to resolve discovery disputes, move for the Court to designate the
document as Highly Confidential and not available for review by any officers, principals,
directors or non-legal employees of the receiving parties except for counsel assisting in
this action.
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. 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, 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.
A designation of materials as
“CONFIDENTIAL” 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
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“CONFIDENTIAL.” If the parties are unable to agree within ten (10) business days whether
or not the material is appropriately designated, after following the procedures required by the
judge or magistrate judge assigned to resolve discovery disputes, 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
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
6
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 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 receiving parties 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 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 or are not
assigned any confidentiality designation, for any purpose other than preparing for and
conducting this litigation, including any appeals.
A party who wishes to use any
information or documents obtained during discovery in this matter for a purpose other
than preparing for and conducting this litigation may, after conferring with the
disclosing party and following the procedures required by the judge or magistrate judge
assigned to resolve discovery disputes, bring a motion for leave to use the information or
documents for such purpose.
8.
Non-Waiver of Privilege for Inadvertently Disclosed Material. Pursuant to
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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
receiving 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
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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 of 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.
14.
This Order shall not be construed to apply to any information that: (a) is available to the
public other than through a breach of this Order or other duty of confidentiality; (b) a receiving
party can demonstrate was already known to the party at the time of disclosure and was not
subject to conditions or confidentiality; or (c) a receiving party can demonstrate was developed
by that party independently of any disclosure by a designating party or nonparty.
IT IS SO ORDERED, THIS ___ DAY OF _______________, 2014
_______________________________
CHRISTOPHER R. COOPER
United States District Judge
{431384US; 11050097_1.DOCX}
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Agreed as to Form and Substance:
OBLON, SPIVAK, McCLELLAND,
MAIER & NEUSTADT,LLP
FENWICK & WEST LLP
/s/ Andrew P. Bridges
Andrew P. Bridges (admitted)
555 California Street, 12th Floor
San Francisco, CA 94104
Tel. (415) 875-2300
Fax (415) 281-1350
E-Mail: abridges@fenwick.com
/s/ Jonathan Hudis
Jonathan Hudis (DC Bar # 418872)
Kathleen Cooney-Porter (DC Bar # 434526)
OBLON, SPIVAK, McCLELLAND,
MAIER & NEUSTADT, LLP
1940 Duke Street
Alexandria, VA 22314
Tel. (703) 413-3000
Fax (703) 413-2220
E-Mail jhudis@oblon.com
E-Mail kcooney-porter@oblon.com
David Halperin (D.C. Bar No. 426078)
1530 P Street NW
Washington, DC 20005
Tel. (202) 905-3434
E-Mail: davidhalperindc@gmail.com
Attorneys for
Plaintiffs-Counterclaim Defendants
AMERICAN EDUCATIONAL RESEARCH
ASSOCIATION, INC., AMERICAN
PSYCHOLOGICAL ASSOCIATION, INC.,
NATIONAL COUNCIL ON
MEASUREMENT IN EDUCATION, INC.
Mitchell L. Stoltz (D.C. Bar No. 978149)
Corynne McSherry (Pro Hac Vice)
ELECTRONIC FRONTIER
FOUNDATION
815 Eddy Street
San Francisco, CA 94109
Tel. (415) 436-9333
Fax (415) 436-9993
E-Mail: mitch@eff.org
E-Mail: corynne@eff.org
October 9, 2014
Attorneys for Defendant-Counterclaimant
PUBLIC.RESOURCE.ORG, INC.
October 9, 2014
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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 Educational Research Association, Inc., et al., v. Public.Resource.Org, Inc., Civil
Action No. 1:14-cv-00857-CRC.
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: _________________________
CERTIFICATE OF SERVICE
I hereby certify that on October 9, 2014, the foregoing PROPOSED ORDER
REGARDING
CONFIDENTIALITY
OF
DISCOVERY
MATERIAL
AND
INADVERTENT DISCLOSURE OF PRIVILEGED MATERIAL was filed using the
CM/ECF system that sent notice of the filing of these documents to all counsel of record, and
was also served via e-mail to:
Andrew P. Bridges
FENWICK & WEST LLP
555 California Street, 112th Floor
San Francisco, CA 94104
abridges@fenwick.com
David Halperin
1530 P Street NW
Washington, DC 20005
davidhalperindc@gmail.com
Mitchell L. Stoltz
Corynne McSherry
ELECTRONIC FRONTIER FOUNDATION
815 Eddy Street
San Francisco, CA 94109
mitch@eff.org
corynne@eff.org
Counsel for Defendant
PUBLIC.RESOURCE.ORG, INC.
/s/ Jonathan Hudis
Jonathan Hudis
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