Andersen Manufacturing Inc. v. Wyers Products Group, Inc.

Filing 39

STIPULATED PROTECTIVE ORDER re 38 Stipulation. Signed by Judge B. Lynn Winmill. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (cjs)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO
ANDERSEN MANUFACTURING INC.,
an Idaho corporation,
Plaintiff,
v.

Case No. 4:16-CV-51-BLW
(Lead Case)

WYERS PRODUCTS GROUP, INC.,
a Colorado corporation,
Defendant.

STIPULATED PROTECTIVE
ORDER

ANDERSEN MANUFACTURING INC.,
an Idaho corporation,
Plaintiff,
v.
WYERS PRODUCTS GROUP, INC.,
a Colorado corporation,
Defendant.

Case No. 4:16-CV-157-BLW

The Court recognizes that at least some of the documents and information (“materials”)
being sought through discovery in the above-captioned action are, for competitive reasons,
normally kept confidential by the parties. The parties have agreed to be bound by the terms of this
Protective Order (“Order”) in this action.
The materials to be exchanged throughout the course of the litigation between the parties
may contain trade secret or other confidential research, technical, cost, price, marketing or other
commercial information, as is contemplated by Federal Rule of Civil Procedure 26(c)(7). The
purpose of this Order is to protect the confidentiality of such materials as much as practical during
the litigation. THEREFORE:
DEFINITIONS
1.

The term “Confidential Information” will mean and include information contained

or disclosed in any materials, including documents, portions of documents, answers to
interrogatories, responses to requests for admissions, trial testimony, deposition testimony, and

Stipulated Protective Order - 1

transcripts of trial testimony and depositions, including data, summaries, and compilations derived
therefrom that is deemed to be Confidential Information by any party to which it belongs.
2.

The term “materials” will include, but is not be limited to: documents;

correspondence; memoranda; bulletins; blueprints; specifications; customer lists or other material
that identify customers or potential customers; price lists or schedules or other matter identifying
pricing; minutes; telegrams; letters; statements; cancelled checks; contracts; invoices; drafts;
books of account; worksheets; notes of conversations; desk diaries; appointment books; expense
accounts; recordings; photographs; motion pictures; compilations from which information can be
obtained and translated into reasonably usable form through detection devices; sketches; drawings;
notes (including laboratory notebooks and records); reports; instructions; disclosures; other
writings; models and prototypes and other physical objects.
3.

The term “counsel” will mean outside counsel of record, and other attorneys,

paralegals, secretaries, and other support staff employed in the law firms identified below:
For Plaintiff/Counterdefendant Andersen Manufacturing Inc.: Knobbe, Martens, Olson &
Bear, LLP and Moffatt, Thomas, Barrett, Rock & Fields, Chartered.
For Defendant/Counterclaimant Wyers Products Group, Inc.: Shaver and Swanson, LLP
and the Patent Law Offices of Rick Martin, P.C.
GENERAL RULES
4.

Each party to this litigation that produces or discloses any materials, answers to

interrogatories, responses to requests for admission, trial testimony, deposition testimony, and
transcripts of trial testimony and depositions, or information that the producing party believes
should be subject to this Protective Order may designate the same as “CONFIDENTIAL” or
“CONFIDENTIAL - FOR COUNSEL ONLY.”
a.

Designation as “CONFIDENTIAL”: Any party may designate information as
“CONFIDENTIAL” only if, in the good faith belief of such party and its counsel,
the unrestricted disclosure of such information could be potentially prejudicial to
the business or operations of such party.
Stipulated Protective Order - 2

Designation as “CONFIDENTIAL - FOR COUNSEL ONLY”: Any party may

b.

designate information as “CONFIDENTIAL - FOR COUNSEL ONLY” only if, in
the good faith belief of such party and its counsel, the information is among that
considered to be most sensitive by the party, including but not limited to trade secret
or other confidential research, development, financial or other commercial
information.
5.

In the event the producing party elects to produce materials for inspection, no

marking need be made by the producing party in advance of the initial inspection. For purposes of
the initial inspection, all materials produced will be considered as “CONFIDENTIAL - FOR
COUNSEL ONLY,” and must be treated as such pursuant to the terms of this Order. Thereafter,
upon selection of specified materials for copying by the inspecting party, the producing party must,
within 14 days of receiving the identification of specified materials for copying, mark the copies
of those materials that contain Confidential Information with the appropriate confidentiality
marking.
6.

Whenever a deposition taken on behalf of any party involves a disclosure of

Confidential Information of any party:
a.

the deposition or portions of the deposition must be designated as containing
Confidential Information subject to the provisions of this Order; such
designation must be made on the record whenever possible, but a party may
designate portions of depositions as containing Confidential Information after
transcription of the proceedings; [A] party will have until fourteen (14) days
after receipt of the deposition transcript to inform the other party or parties to
the action of the portions of the transcript to be designated “CONFIDENTIAL”
or “CONFIDENTIAL - FOR COUNSEL ONLY.”

b.

the disclosing party will have the right to exclude from attendance at the
deposition, during such time as the Confidential Information is to be disclosed,
any person other than the deponent, counsel (including their staff and
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associates), the court reporter, and the person(s) agreed upon pursuant to
paragraph 8 below; and
c.

the originals of the deposition transcripts and all copies of the deposition must
bear the legend “CONFIDENTIAL” or “CONFIDENTIAL - FOR COUNSEL
ONLY,” as appropriate, and the original or any copy ultimately presented to a
court for filing must not be filed unless it can be accomplished under seal,
identified as being subject to this Order, and protected from being opened except
by order of this Court.

7.

All

Confidential

Information

designated

as

“CONFIDENTIAL”

or

“CONFIDENTIAL- FOR COUNSEL ONLY” must not be disclosed by the receiving party to
anyone other than those persons designated within this order and must be handled in the manner
set forth below and, in any event, must not be used for any purpose other than in connection with
this litigation, unless and until such designation is removed either by agreement of the parties, or
by order of the Court.
8.

Information designated “CONFIDENTIAL - FOR COUNSEL ONLY” must be

viewed only by counsel (as defined in paragraph 3) of the receiving party, and by independent
experts under the conditions set forth in this Paragraph. The right of any independent expert to
receive any Confidential Information will be subject to the advance approval of such expert by the
producing party or by permission of the Court. The party seeking approval of an independent
expert must provide the producing party with the name and curriculum vitae of the proposed
independent expert, and an executed copy of the form attached hereto as Exhibit A, in advance of
providing any Confidential Information of the producing party to the expert. Any objection by the
producing party to an independent expert receiving Confidential Information must be made in
writing within fourteen (14) days following receipt of the identification of the proposed expert.
Confidential Information may be disclosed to an independent expert if the fourteen (14) day period
has passed and no objection has been made. The approval of independent experts must not be
unreasonably withheld.
Stipulated Protective Order - 4

9.

Information designated “CONFIDENTIAL” must be viewed only by counsel (as

defined in paragraph 3) of the receiving party, by independent experts (pursuant to the terms of
paragraph 8), and by the additional individuals listed below, provided each such individual has
read this Order in advance of disclosure and has agreed in writing to be bound by its terms:
(a)

Executives who are required to participate in policy decisions with reference to this

(b)

Technical personnel of the parties with whom Counsel for the parties find it

action;

necessary to consult, in the discretion of such counsel, in preparation for trial of this action; and
(c)

Stenographic and clerical employees associated with the individuals identified

10.

With respect to material designated “CONFIDENTIAL” or “CONFIDENTIAL –

above.

FOR COUNSEL ONLY,” any person indicated on the face of the document to be its originator,
author or a recipient of a copy of the document, may be shown the same.
11.

All information which has been designated as “CONFIDENTIAL” or

“CONFIDENTIAL -FOR COUNSEL ONLY” by the producing or disclosing party, and any and
all reproductions of that information, must be retained in the custody of the counsel for the
receiving party identified in paragraph 3, except that independent experts authorized to view such
information under the terms of this Order may retain custody of copies such as are necessary for
their participation in this litigation.
12.

Before any materials produced in discovery, answers to interrogatories, responses

to requests for admissions, deposition transcripts, or other documents which are designated as
Confidential Information are filed with the Court for any purpose, the party seeking to file such
material must seek permission of the Court to file the material under seal.
13.

At any stage of these proceedings, any party may object to a designation of the

materials as Confidential Information. The party objecting to confidentiality must notify, in
writing, counsel for the designating party of the objected-to materials and the grounds for the
objection. If the dispute is not resolved consensually between the parties within seven (7) days of
Stipulated Protective Order - 5

receipt of such a notice of objections, the objecting party may move the Court for a ruling on the
objection. The materials at issue must be treated as Confidential Information, as designated by the
designating party, until the Court has ruled on the objection or the matter has been otherwise
resolved.
14.

All Confidential Information must be held in confidence by those inspecting or

receiving it, and must be used only for purposes of this action. Counsel for each party, and each
person receiving Confidential Information must take reasonable precautions to prevent the
unauthorized or inadvertent disclosure of such information. If Confidential Information is
disclosed to any person other than a person authorized by this Order, the party responsible for the
unauthorized disclosure must immediately bring all pertinent facts relating to the unauthorized
disclosure to the attention of the other parties and, without prejudice to any rights and remedies of
the other parties, make every effort to prevent further disclosure by the party and by the person(s)
receiving the unauthorized disclosure.
15.

No party will be responsible to another party for disclosure of Confidential

Information under this Order if the information in question is not labeled or otherwise identified
as such in accordance with this Order.
16.

If a party, through inadvertence, produces any Confidential Information without

labeling or marking or otherwise designating it as such in accordance with this Order, the
designating party may give written notice to the receiving party that the document or thing
produced is deemed Confidential Information, and that the document or thing produced should be
treated as such in accordance with that designation under this Order. The receiving party must treat
the materials as confidential, once the designating party so notifies the receiving party. If the
receiving party has disclosed the materials before receiving the designation, the receiving party
must notify the designating party in writing of each such disclosure. Counsel for the parties will
agree on a mutually acceptable manner of labeling or marking the inadvertently produced materials
as “CONFIDENTIAL” or “CONFIDENTIAL - FOR COUNSEL ONLY” - SUBJECT TO
PROTECTIVE ORDER.
Stipulated Protective Order - 6

17.

Nothing within this order will prejudice the right of any party to object to the

production of any discovery material on the grounds that the material is protected as privileged or
as attorney work product.
18.

Nothing in this Order will bar counsel from rendering advice to their clients with

respect to this litigation and, in the course thereof, relying upon any information designated as
Confidential Information, provided that the contents of the information must not be disclosed.
19.

This Order will be without prejudice to the right of any party to oppose production

of any information for lack of relevance or any other ground other than the mere presence of
Confidential Information. The existence of this Order must not be used by either party as a basis
for discovery that is otherwise improper under the Federal Rules of Civil Procedure.
20.

Nothing within this order will be construed to prevent disclosure of Confidential

Information if such disclosure is required by law or by order of the Court.
21.

Upon final termination of this action, including any and all appeals, counsel for

each party must, upon request of the producing party, return all Confidential Information to the
party that produced the information, including any copies, excerpts, and summaries of that
information, or must destroy same at the option of the receiving party, and must purge all such
information from all machine-readable media on which it resides. Notwithstanding the foregoing,
counsel for each party may retain all pleadings, briefs, memoranda, motions, and other documents
filed with the Court that refer to or incorporate Confidential Information, and will continue to be
bound by this Order with respect to all such retained information. Further, attorney work product
materials that contain confidential Information need not be destroyed, but, if they are not
destroyed, the person in possession of the attorney work product will continue to be bound by this
Order with respect to all such retained information.
22.

The restrictions and obligations set forth within this order will not apply to any

information that: (a) the parties agree should not be designated Confidential Information; (b) the
parties agree, or the Court rules, is already public knowledge; (c) the parties agree, or the Court
rules, has become public knowledge other than as a result of disclosure by the receiving party, its
Stipulated Protective Order - 7

employees, or its agents in violation of this Order; or (d) has come or will come into the receiving
party’s legitimate knowledge independently of the production by the designating party. Prior
knowledge must be established by pre-production documentation. The restrictions and obligations
within this order will not be deemed to prohibit discussions of any Confidential Information with
anyone if that person already has or obtains legitimate possession of that information.
24.

Transmission by facsimile is acceptable for all notification purposes within this

25.

This Order may be modified by agreement of the parties, subject to approval by the

26.

The Court may modify the terms and conditions of this Order for good cause, or in

order.

Court.

the interest of justice, or on its own order at any time in these proceedings. The parties prefer that
the Court provide them with notice of the Court’s intent to modify the Order and the content of
those modifications, prior to entry of such an order.
PURSUANT TO STIPULATION, IT IS SO ORDERED.

DATED: August 3, 2016

_________________________
B. Lynn Winmill
Chief Judge
United States District Court

Stipulated Protective Order - 8

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO
ANDERSEN MANUFACTURING INC.,
an Idaho corporation,

Case No. 4:16-cv-00051-CWD
[LEAD CASE]

Plaintiff,
AGREEMENT TO BE BOUND BY THE
PROTECTIVE ORDER

v.
WYERS PRODUCTS GROUP, INC.,
a Colorado corporation,
Defendant.
ANDERSEN MANUFACTURING INC.,
an Idaho corporation,

Case No. 4:16-cv-00157-BLW

Plaintiff,
v.
WYERS PRODUCTS GROUP, INC.,
a Colorado corporation,
Defendant.

I, ________________________________, declare and say that:
1.

I am employed as ___________________________________________ by

_________________________________________________________________.
2.

I have read the Protective Order entered in Andersen Manufacturing Inc. v. Wyers

Products Group, Inc., 4:16-cv-00157-BLW, and have received a copy of the Protective Order.
3.

I promise that I will use any and all “Confidential” or “Confidential – For Counsel

Only” information, as defined in the Protective Order, given to me only in a manner authorized
by the Protective Order, and only to assist counsel in the litigation of this matter.
4.

I promise that I will not disclose or discuss such “Confidential” or “Confidential –

For Counsel Only” information with anyone other than the persons described in paragraphs 3, 8
and 9 of the Protective Order.

Stipulated Protective Order - 9

5.

I acknowledge that, by signing this agreement, I am subjecting myself to the

jurisdiction of the United States District Court for the District of Idaho with respect to
enforcement of the Protective Order.
6.

I understand that any disclosure or use of “Confidential” or “Confidential – For

Counsel Only” information in any manner contrary to the provisions of the Protective Order may
subject me to sanctions for contempt of court.
I declare under penalty of perjury that the foregoing is true and correct.

Stipulated Protective Order - 10