Spooner v. The Associated Press, Inc. et al

Filing 18

PROTECTIVE ORDER: Upon stipulation (Doc. No. [16) of the parties for an order pursuant to Fed. R. Civ. P. 26(c)(G), IT IS HEREBY ORDERED that trade secret or other confidential information be disclosed only in the following designated ways:SEE ORDER FOR DETAILS. Signed by Magistrate Judge Jeffrey J. Keyes on 07/26/2011. (MMP)

IN THE UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA

WILLIAM H. SPOONER,

Civil No. 11cv00642 JRT/JJK

Plaintiff,
PROTECTIVE ORDER

v.
THE ASSOCIATED PRESS, INC.,
and
JON KRAWCZYNSKI,
Defendants.

Upon stipulation (Doc. No. 16) of the parties for an order pursuant to Fed.
R. Civ. P. 26(c)(G), IT IS HEREBY ORDERED that trade secret or other
confidential information be disclosed only in the following designated ways:
1.

As used in the Protective Order, these terms have the following meanings:
“Attorneys” means counsel of record;
“Confidential”

documents

are

documents

designated

pursuant

to

paragraph 2;
“Documents” are all materials within the scope of Fed. R. Civ. P. 34 and
FRE 1001(1);
“Written Assurance” means an executed document in the form attached as
Exhibit A.
2.

By identifying a document “Confidential”, a party may designate any

{00413690;v3}

document, including interrogatory responses, other discovery responses, or
transcripts, that it in good faith contends to constitute or contain trade secret or
other confidential information (including unpublished journalistic information
protected by Minn. Stat. § 595.023).

If documents are sought by release or

authorization, then the party providing the release or authorization may designate
that any documents obtained pursuant to the release or authorization are
“Confidential.” A party may designate “Confidential” according to this paragraph
at any time prior to the final judgment in this matter, regardless of when
produced, unless the material has previously been filed or used in court, not
under seal.
3.

All Confidential documents, along with the information contained in the

documents, shall be used solely for the purpose of this action, and no person
receiving such documents shall, directly or indirectly, transfer, disclose, or
communicate in any way the contents of the documents to any person other than
those specified in paragraph 4. Prohibited purposes include, but are not limited
to, use for competitive purposes, or the prosecution of intellectual property rights,
or the prosecution of any additional civil claims by or against any person.
4.

Access to any Confidential document shall be limited to:
(a) the Court and its officers;
(b) Attorneys and their office associates, legal assistants, and stenographic
and clerical employees, including independent contractors working for the

{00413690;v3}

law firm such as a private investigative firm; plaintiff Spooner; defendant
Krawcynski; a designated person by defendant The Associated Press, Inc.;
(c)

persons shown on the face of the document to have authored or

received it;
(d) court reporters retained to transcribe testimony;
(e) these inside counsel: David Tomlin; Karen Kaiser;
(f) outside independent persons (i.e., persons not currently or formerly
employed by, consulting with, or otherwise associated with any party) who
are retained by a party or its attorneys to furnish technical or expert
services, or to provide assistance as mock jurors or focus group members
or the like, and/or to give testimony in this action;
(g) persons currently or formerly employed by or otherwise associated
with any party who are designated to give testimony in this action, or
designated to participate in settlement negotiations, or preparation for the
same, in this action.
5.

Third parties producing documents in the course of this action may also

designate documents as “Confidential”, subject to the same protections and
constraints as the parties to the action. A copy of the Protective Order shall be
served along with any subpoena served in connection with this action.

All

documents produced by such third parties shall be treated as “Confidential” for a
period of 15 days from the date of their production, and during that period any
{00413690;v3}

party may designate such documents as “Confidential” pursuant to the terms of
the Protective Order.
6.

Each person appropriately designated pursuant to paragraph 4(f) to

receive Confidential information shall execute a “Written Assurance” in the form
attached as Exhibit A. Opposing counsel shall be notified at least 10 days prior
to disclosure to any such person who is known to be an employee or agent of, or
consultant to, any competitor of the party whose designated documents are
sought to be disclosed. Such notice shall provide a reasonable description of the
outside independent person to whom disclosure is sought sufficient to permit
objection to be made. If a party objects in writing to such disclosure within 10
days after receipt of notice, no disclosure shall be made until the party seeking
disclosure obtains the prior approval of the Court or the objecting party.
7.

All depositions or portions of depositions taken in this action that contain

trade secret or other confidential information may be designated “Confidential”
and thereby obtain the protections accorded other “Confidential” documents.
Confidentiality designations for depositions shall be made either on the record or
by written notice to the other party within 10 days of receipt of the transcript.
Unless otherwise agreed, depositions shall be treated as “Confidential” during
the 10-day period following receipt of the transcript.

The deposition of any

witness (or any portion of such deposition) that encompasses Confidential
information shall be taken only in the presence of persons who are qualified to
{00413690;v3}

have access to such information.
8.

Any party who inadvertently fails to identify documents as “Confidential”

shall have 10 days from the discovery of its oversight to correct its failure. Such
failure shall be corrected by providing written notice of the error and substituted
copies of the inadvertently produced documents.

Any party receiving such

inadvertently unmarked documents shall make reasonable efforts to retrieve
documents distributed to persons not entitled to receive documents with the
corrected designation.
9.

Any party who inadvertently discloses documents that are privileged or

otherwise immune from discovery shall, promptly upon discovery of such
inadvertent disclosure, so advise the receiving party and request that the
documents be returned.

The receiving party shall return such inadvertently

produced documents, including all copies, within 10 days of receiving such a
written request. The party returning such inadvertently produced documents may
thereafter seek re-production of any such documents pursuant to applicable law.
10.

If a party files a document containing Confidential information with the

Court, it shall do so in compliance with the Electronic Case Filing Procedures for
the District of Minnesota. Prior to disclosure at trial or a hearing of materials or
information designated “Confidential”, the parties may seek further protections
against public disclosure from the Court. If no protection is sought by the party
who has designated the materials or information as “Confidential” then it will be
{00413690;v3}

presumed that the trial or hearing is public, and that the materials or information
can be discussed with the Court and/or jury, on the Record.
11.

Any party may request a change in the designation of any information

designated “Confidential”. Any such document shall be treated as designated
until the change is completed. If the requested change in designation is not
agreed to, the party seeking the change may move the Court for appropriate
relief, providing notice to any third party whose designation of produced
documents as “Confidential” in the action may be affected. The party asserting
that the material is Confidential shall have the burden of proving that the
information in question is within the scope of protection afforded by Fed. R. Civ.
P. 26(c).
12.

Within 60 days of the termination of this action, including any appeals,

each party shall either destroy or return to the opposing party all documents
designated by the opposing party, or third party, as “Confidential” and all copies
of such documents, and shall destroy all extracts and/or data taken from such
documents.

Each party shall provide a certification as to such return or

destruction as within the 60-day period, upon request. Attorneys shall be entitled
to retain, however, a set of all documents filed with the Court and all
correspondence generated in connection with the action. Prior to termination of
this action, any attorney for any party may apply to the Court for permission to
retain a file copy of one or more documents designated by the opposing party as
{00413690;v3}

“Confidential” and/or extracts and/or data taken from such documents; the
attorney making such an application must make a showing of exceptional
circumstances of the action that warrant retention of a file copy.
13.

Any party may apply to the Court for a modification of the Protective Order,

and nothing in the Protective Order shall be construed to prevent a party from
seeking such further provisions enhancing or limiting confidentiality as may be
appropriate.
14.

No action taken in accordance with the Protective Order shall be

construed as a waiver of any claim or defense in the action or of any position as
to discoverability or admissibility of evidence.
15.

The obligations imposed by the Protective Order shall survive the

termination of this action. Within 60 days following the expiration of the last
period for appeal from any order issued in connection with this action, the parties
shall remove any materials designated “Confidential” from the office of the Clerk
of Court.

Following that 60-day period, the Clerk of Court shall destroy all

“Confidential” materials.
16.

In connection with any motion filed with this Court, only those portions of a

party's submission (e.g., memorandum of law, affidavit, and exhibits) which meet
the requirements for treatment of protection from public filing (e.g., because they
are subject to the attorney-client privilege or work product doctrine, or meet the
standards articulated by Fed. R. Civ. P. 26(c)(1)(G)), shall be filed under seal.
{00413690;v3}

Designation of material as confidential or protected by any party pursuant to a
protective order as the sole basis for filing the material under seal shall not
satisfy this requirement.
With respect to any submission filed with the Court which is sealed and posted
on ECF with a placeholder, the sealed submission shall be sent electronically or hand
delivered to all parties and hand delivered to the Court contemporaneously with the
documents being posted on ECF.

Dated: July 26, 2011

s/ Jeffrey J. Keyes
JEFFREY J. KEYES
United States Magistrate Judge

{00413690;v3}

EXHIBIT A
WRITTEN ASSURANCE

declares that:
I reside at

in the city of

_________________________, county of _______________ , state of
________________________ ;
I am currently employed by ___________________ located at
_________________________________and my current job title is
___________________________________________________.
I have read and believe I understand the terms of the Protective Order dated
July 26, 2011, filed in Civil Action No. 11cv00642 JRT/JJK, pending in the United
States District Court for the District of Minnesota. I agree to comply with and be
bound by the provisions of the Protective Order. I understand that any violation
of the Protective Order may subject me to sanctions by the Court.
I shall not divulge any documents, or copies of documents, designated
“Confidential” obtained pursuant to such Protective Order, or the contents of such
documents, to any person other than those specifically authorized by the
Protective Order. I shall not copy or use such documents except for the
purposes of this action and pursuant to the terms of the Protective Order.
As soon as practical, but no later than 30 days after final termination of this
action, I shall return to the attorney from whom I have received them, any
{00413690;v3}

documents in my possession designated “Confidential”, and all copies, excerpts,
summaries, notes, digests, abstracts, and indices relating to such documents.
I submit myself to the jurisdiction of the United States District Court for the
District of Minnesota for the purpose of enforcing or otherwise providing relief
relating to the Protective Order.
I declare under penalty of perjury that the foregoing is true and correct.

Executed on

________________________
(Date)

{00413690;v3}

(Signature)