Odyssey Electronics Ltd. v. Odyssey Electronics, Inc.

Filing 15

Judge Richard G. Stearns: ORDER entered granting 14 Motion for Protective Order per the parties' joint stipulation (RGS, int2)

Case 1:17-cv-11154-RGS Document 14-1 Filed 03/09/18 Page 1 of 12

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
ODYSSEY ELECTRONICS LTD,
Plaintiff,
v.

Civil Action No. 1:17-cv-11154-RGS

ODYSSEY ELECTRONICS, INC.,
Defendant.

The parties to this Consent Confidentiality Order have agreed to the terms of this Order;
accordingly, it is ORDERED:
1. Scope. All documents produced in the course of discovery, including initial
disclosures, all responses to discovery requests, all deposition testimony and exhibits, other
materials which may be subject to restrictions on disclosure for good cause and information
derived directly therefrom (hereinafter collectively “documents”), shall be subject to this Order
concerning confidential information as set forth below. This Order is subject to the Local Rules
of this District and of the Federal Rules of Civil Procedure on matters of procedure and
calculation of time periods.
2. Form and Timing of Designation. A party may designate documents as confidential
and restricted in disclosure under this Order by placing or affixing the words “CONFIDENTIAL
- SUBJECT TO PROTECTIVE ORDER” on the document in a manner that will not interfere
with the legibility of the document and that will permit complete removal of the
CONFIDENTIAL - SUBJECT TO PROTECTIVE ORDER designation. Documents shall be

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designated CONFIDENTIAL - SUBJECT TO PROTECTIVE ORDER prior to or at the time of
the production or disclosure of the documents. The designation “CONFIDENTIAL - SUBJECT
TO PROTECTIVE ORDER” does not mean that the document has any status or protection by
statute or otherwise except to the extent and for the purposes of this Order.
3. Documents Which May be Designated CONFIDENTIAL - SUBJECT TO
PROTECTIVE ORDER. Any party may designate documents as CONFIDENTIAL SUBJECT TO PROTECTIVE ORDER but only after review of the documents by an attorney
who has in good faith determined that the documents contain information protected from
disclosure by statute or that should be protected from disclosure as confidential personal
information, trade secrets, personnel records, or commercial information. The designation shall
be made subject to the standards of Rule 11 and the sanctions of Rule 37 of the Federal Rules of
Civil Procedure. Information or documents that are available in the public sector may not be
designated as CONFIDENTIAL - SUBJECT TO PROTECTIVE ORDER.
4. Depositions. Deposition testimony shall be deemed CONFIDENTIAL - SUBJECT
TO PROTECTIVE ORDER only if designated as such. Such designation shall be specific as to
the portions to be designated CONFIDENTIAL - SUBJECT TO PROTECTIVE ORDER.
Depositions, in whole or in part, shall be designated on the record as CONFIDENTIAL SUBJECT TO PROTECTIVE ORDER at the time of the deposition. Deposition testimony so
designated shall remain CONFIDENTIAL - SUBJECT TO PROTECTIVE ORDER until ten
(10) business days after delivery of the transcript by the court reporter. Within ten (10) business
days after delivery of the transcript, a designating party may serve a Notice of Designation to all
parties of record as to specific portions of the transcript to be designated CONFIDENTIAL SUBJECT TO PROTECTIVE ORDER. Thereafter, those portions so designated shall be
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protected as CONFIDENTIAL - SUBJECT TO PROTECTIVE ORDER pending objection under
the terms of this Order. The failure to serve a Notice of Designation shall waive the
CONFIDENTIAL - SUBJECT TO PROTECTIVE ORDER designation made on the record of
the deposition. If deposition excerpts have not been designated as confidential pursuant to this
order, they are not to be treated as sealed documents when filed with the court.
5. Protection of Confidential Material.
(a) General Protections. Documents designated CONFIDENTIAL - SUBJECT TO
PROTECTIVE ORDER under this Order shall not be used or disclosed by the parties,
counsel for the parties or any other persons identified in ¶ 5(b) for any purpose
whatsoever other than to prepare for and to conduct discovery and trial in this action,
including any appeal thereof.
(b) Limited Third-Party Disclosures. The parties and counsel for the parties shall not
disclose or permit the disclosure of any CONFIDENTIAL - SUBJECT TO
PROTECTIVE ORDER documents to any third person or entity except as set forth in
subparagraphs (1)-(6). Subject to these requirements, the following categories of persons
may be allowed to review documents that have been designated CONFIDENTIAL SUBJECT TO PROTECTIVE ORDER:
(1) Counsel. Counsel for the parties and employees of counsel who have
responsibility for the preparation and trial of the action;
(2) Parties. Parties and employees of a party to this Order, but only to the extent
counsel determines that the specifically named individual party or employee’s
assistance is reasonably necessary to the conduct of the litigation in which the
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information is disclosed.
(3) Court Reporters and Recorders. Court reporters and recorders engaged for
depositions;
(4) Contractors. Those persons specifically engaged for the limited purpose of
making copies of documents or organizing or processing documents but only after
each such person has completed the certification contained in Attachment A,
Acknowledgment of Understanding and Agreement to Be Bound.
(5) Consultants and Experts. Consultants, investigators, or experts (hereinafter
referred to collectively as “experts”) employed by the parties or counsel for the
parties to assist in the preparation and trial of this action but only after such
persons have completed the certification contained in Attachment A,
Acknowledgment of Understanding and Agreement to Be Bound; and
(6) Others by Consent. Other persons only by written consent of the producing
party or upon order of the Court and on such conditions as may be agreed or
ordered. All such persons shall execute the certification contained in Attachment
A, Acknowledgment of Understanding and Agreement to Be Bound.
(c) Control of Documents. Counsel for the parties shall make reasonable efforts to
prevent unauthorized disclosure of documents designated as CONFIDENTIAL SUBJECT TO PROTECTIVE ORDER pursuant to the terms of this Order. Counsel shall
maintain the originals of the forms signed by persons acknowledging their obligations
under this Order for a period of six years from the date of signing.

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(d) Copies. Prior to production to another party, all copies, electronic images,
duplicates, extracts, summaries or descriptions (hereinafter referred to collectively as
“copies”) of documents designated as CONFIDENTIAL - SUBJECT TO PROTECTIVE
ORDER under this Order, or any individual portion of such a document, shall be affixed
with the designation “CONFIDENTIAL - SUBJECT TO PROTECTIVE ORDER” if the
word does not already appear on the copy. All such copies shall thereafter be entitled to
the protection of this Order. The term “copies” shall not include indices, electronic
databases or lists of documents provided these indices, electronic databases or lists do not
contain substantial portions or images of the text of confidential documents or otherwise
disclose the substance of the confidential information contained in those documents.
6. Filing of CONFIDENTIAL - SUBJECT TO PROTECTIVE ORDER Documents.
Before any document marked as CONFIDENTIAL - SUBJECT TO PROTECTIVE ORDER is
filed with the Clerk the party filing the document shall make reasonable efforts to ensure that the
document is protected from public disclosure or has been redacted to remove nonessential
confidential information. The filing party shall first consult with the party which originally
designated the document as CONFIDENTIAL - SUBJECT TO PROTECTIVE ORDER to
determine whether, with the consent of that party, a redacted document may be filed with the
Court not under seal. Where agreement is not possible or adequate, a confidential document may
be electronically filed under seal only in accordance with Local Rule 7.2. Other than motions to
seal and memoranda governed by Local Rule 7.2, if the confidential contents of
CONFIDENTIAL - SUBJECT TO PROTECTIVE ORDER documents are incorporated into
memoranda or other pleadings filed with the court, counsel shall prepare two versions of the
pleadings, a public and a confidential version. The public version shall contain a redaction of the
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contents of CONFIDENTIAL - SUBJECT TO PROTECTIVE ORDER documents and shall be
filed with the Clerk. The confidential version shall be a full and complete version of the
pleading, including any exhibits which the party maintains should be under seal and shall be filed
with the Clerk attached to a motion to seal filed in accordance with Local Rule 7.2. The public
version shall plainly indicate the exhibits (both by number and description of the exhibit) that
have been filed under seal with the confidential version. In the event the confidential exhibit
must be filed under seal because the parties cannot reach agreement on redaction, the filing
party, if not the party seeking to maintain confidentiality status, shall describe the document and
give it an Exhibit Number, indicating that it will be filed separately under seal by the opposing
party. The party seeking to maintain confidential status shall file a motion to seal in accordance
with Local Rule 7.2 within 3 business days of the filing of the opposing party’s pleading. Failure
to file a timely motion to seal could result in the pleading/exhibit being unsealed by the court
without further notice or hearing.
7. No Greater Protection of Specific Documents. No party may withhold information
from discovery on the ground that it requires protection greater than that afforded by this Order
unless the party moves for an order providing such special protection.
8. Challenges by a Party to Designation as Confidential. Any CONFIDENTIAL SUBJECT TO PROTECTIVE ORDER designation is subject to challenge by any party or nonparty (hereafter “party”). The following procedure shall apply to any such challenge.
(a) Objection to Confidentiality. At any time after the receipt of any document
designated CONFIDENTIAL - SUBJECT TO PROTECTIVE ORDER or of the refusal
to produce a document on the ground of such designation, a party may serve upon the

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designating party an objection to the designation. The objection shall specify the
documents to which the objection is directed and shall set forth the reasons for the
objection as to each document or category of documents. CONFIDENTIAL - SUBJECT
TO PROTECTIVE ORDER documents to which an objection has been made shall
remain CONFIDENTIAL - SUBJECT TO PROTECTIVE ORDER until designated
otherwise by waiver, agreement or order of the Court.
(b) Obligation to Meet and Confer. The objecting party and the party which designated
the documents to which objection has been made shall have fifteen (15) days from
service of the objection to meet and confer in a good faith effort to resolve the objection
by agreement. If agreement is reached confirming or waiving the CONFIDENTIAL SUBJECT TO PROTECTIVE ORDER designation as to any documents subject to the
objection, the designating party shall serve on all parties a notice specifying the
documents and the nature of the agreement.
(c) Obligation to File Motion. If the parties cannot reach agreement as to any documents
designated CONFIDENTIAL - SUBJECT TO PROTECTIVE ORDER, for the purpose
of discovery, the receiving party shall file within 30 days of the service of the objection a
motion to remove the CONFIDENTIAL - SUBJECT TO PROTECTIVE ORDER
designation. The producing party has the burden to show good cause for the
CONFIDENTIAL - SUBJECT TO PROTECTIVE ORDER designation. The failure to
file the motion confirms the CONFIDENTIAL – SUBJECT TO PROTECTIVE ORDER
designation of documents to which an objection was made, but the fact that the parties
have agreed that the document will remain confidential for all purposes other than use in

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court does not mean that the item will necessarily be ordered sealed by the Court, even in
the absence of objection by the opposing party
9. Action by the Court. Applications to the Court for an order relating to documents
designated CONFIDENTIAL - SUBJECT TO PROTECTIVE ORDER shall be by motion.
Nothing in this Order or any action or agreement of a party under this Order limits the Court’s
power to make orders concerning the disclosure of documents produced in discovery or at trial.
10. Use of Confidential Documents or Information at Trial. A party which intends to
present or which anticipates that another party may present at trial CONFIDENTIAL SUBJECT TO PROTECTIVE ORDER documents or information derived therefrom shall
identify the issue, not the information, in the pretrial memorandum. The Court may thereafter
make such orders as are necessary to govern the use of such documents or information at trial.
11. Obligations on Conclusion of Litigation.
(a) Order Remains in Effect. Unless otherwise agreed or ordered, this Order shall
remain in force after dismissal or entry of final judgment not subject to further appeal.
(b) Return of CONFIDENTIAL - SUBJECT TO PROTECTIVE ORDER
Documents. Within thirty days after dismissal or entry of final judgment not subject to
further appeal, all documents treated as CONFIDENTIAL - SUBJECT TO
PROTECTIVE ORDER under this Order, including copies as defined in ¶ 5(d), shall be
returned to the producing party unless: (1) the document has been offered into evidence
or filed without restriction as to disclosure; (2) the parties agree to destruction in lieu of
return; or (3) as to documents bearing the notations, summations, or other mental
impressions of the receiving party, that party elects to destroy the documents and certifies
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to the producing party that it has done so. Notwithstanding the above requirements to
return or destroy documents, counsel may retain deposition and trial transcripts and
exhibits and attorney work product, including an index which refers or relates to
information designated CONFIDENTIAL - SUBJECT TO PROTECTIVE ORDER, so
long as that work product does not duplicate verbatim substantial portions of the text or
images of confidential documents. This work product shall continue to be
CONFIDENTIAL - SUBJECT TO PROTECTIVE ORDER under this Order. An
attorney may use his or her work product in a subsequent litigation provided that its use
does not disclose or use CONFIDENTIAL - SUBJECT TO PROTECTIVE ORDER
documents.
(c) Deletion of Documents Filed under Seal from ECF System. Filings under seal
shall be deleted from the ECF system only upon order of the Court.
12. Order Subject to Modification. This Order shall be subject to modification by the
Court on its own motion or on motion of a party or any other person with standing concerning
the subject matter. Motions to modify this Order shall be served and filed under Local Rule 7.
13. No Prior Judicial Determination. This Order is entered based on the
representations and agreements of the parties and for the purpose of facilitating discovery.
Nothing herein shall be construed or presented as a judicial determination that any documents or
information designated CONFIDENTIAL - SUBJECT TO PROTECTIVE ORDER by counsel
or the parties is subject to protection under Rule 26(c) of the Federal Rules of Civil Procedure or
otherwise until such time as the Court may rule on a specific document or issue.

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14. Persons Bound. This Order shall take effect when entered and shall be binding
upon all counsel and their law firms, the parties, and persons made subject to this Order by its
terms.
15. Inadvertent Production of Confidential or Privileged Material. If a party
determines that it inadvertently failed to properly designate confidential information, it may do
so by giving prompt and timely notice to all parties, who shall thereafter treat the materials
pursuant to the provisions of this Order. The CONFIDENTIAL - SUBJECT TO PROTECTIVE
ORDER designation does not mean that the document has any status or protection by statute or
otherwise except to the extent and for the purposes of this Order.
This Order does not affect or alter a disclosing party’s rights to refuse to disclose
information properly subject to attorney-client privilege or the attorney work product doctrine. If
a party, through inadvertence, produces or provides discovery that it believes is subject to a
claim of attorney-client privilege, work product immunity, or is otherwise protected from
disclosure, the producing party may give prompt and timely written notice to the receiving party
that the material is subject to a claim of attorney-client privilege, work product immunity, or
other protection from disclosure, and request that it be returned to the producing party. The
receiving party shall either return any such material promptly or immediately seek a ruling from
the Court whether it is, in fact, properly subject to a claim of attorney-client privilege, work
product immunity, or other protection from disclosure. A party that returns such material shall
not be foreclosed from moving the Court for an order that such document or thing has been
improperly designated or should be discoverable and/or useable in this action for reasons other
than a waiver caused by inadvertent production.

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Case 1:17-cv-11154-RGS Document 14-1 Filed 03/09/18 Page 12 of 12

ATTACHMENT A
UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
ODYSSEY ELECTRONICS LTD,
Plaintiff,
v.

Civil Action No. 1:17-cv-11154-RGS

ODYSSEY ELECTRONICS, INC.,
Defendant.

ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND
The undersigned hereby acknowledges that he/she has read the Confidentiality Order
dated ____________________________ in the above-captioned action and attached hereto,
understands the terms thereof, and agrees to be bound by its terms. The undersigned submits to
the jurisdiction of the United States District Court for the District of Massachusetts in matters
relating to the Confidentiality Order and understands that the terms of the Confidentiality Order
obligate him/her to use documents designated CONFIDENTIAL - SUBJECT TO PROTECTIVE
ORDER in accordance with the Order solely for the purposes of the above-captioned action, and
not to disclose any such documents or information derived directly therefrom to any other
person, firm or concern.
The undersigned acknowledges that violation of the Confidentiality Order may result in
penalties for contempt of court.
Name:

Employer:

Job Title:

Business Address:

Date

Signature

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