East Coast Sheet Metal Fabricating Corp. v. Autodesk, Inc.
Filing
42
SIGNED PROTECTIVE ORDER. So Ordered by Chief Judge Joseph N. Laplante.(cmp)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
East Coast Sheet Metal Fabricating Corp.,
d/b/a EastCoast CAD/CAM,
Plaintiff,
)
)
)
)
)
v.
Case No. 1: 12-cv-00517 -JL
)
)
)
Autodesk, Inc.,
)
)
Defendant.
PROTECTIVE ORDER
WHEREAS, the Plaintiff, East Coast Sheet Metal Fabricating Corp. d/b/a EastCoast
CAD/CAM and the Defendant, Autodesk, Inc., hereafter referred to as "the Parties" believe that
certain information that is or will be encompassed by discovery demands by the Parties involves
the production or disclosure of trade secrets, confidential business information, or other
proprietary information;
WHEREAS, the Parties seek a protective order limiting disclosure thereof in accordance with
Federal Rule of Civil Procedure 26(c):
THEREFORE, it is hereby stipulated among the Parties and ORDERED that:
1. Each Party may designate as confidential for protection under this Order, in whole or in part,
any document, information or material that constitutes or includes, in whole or in part,
confidential or proprietary information or trade secrets of the Party or a Third Party to whom
the Party reasonably believes it owes an obligation of confidentiality with respect to such
document information or material ("Protected Material"). Protected Material shall be
designated by the Party producing it by affixing a legend or stamp on such document,
information or material as follows: "CONFIDENTIAL." The word "CONFIDENTIAL" shall
be placed clearly on each page of the Protected Material (except deposition and hearing
transcripts) for which such protection is sought. For deposition and hearing transcripts, the
word "CONFIDENTIAL" shall be placed on the cover page of the transcript (if not already
present on the cover page of the transcript when received from the court reporter) by each
attorney receiving a copy of the transcript after that attorney receives notice of the
designation of some or all of that transcript as "CONFIDENTIAL."
2. With respect to documents, information or material designated "CONFIDENTIAL" or
"OUTSIDE COUNSEL'S EYES ONLY", 1 subject to the provisions herein and unless
otherwise stated, this Order governs, without limitation: (a) all documents, electronically
stored information, and/or things as defined by the Federal Rules of Civil Procedure; (b) all
pretrial, hearing or deposition testimony, or documents marked as exhibits or for
identification in depositions and hearings; (c) pretrial pleadings, exhibits to pleadings and
other court filings; (d) affidavits; and (e) stipulations. All copies, reproductions, extracts,
digests and complete or partial summaries prepared from any DESIGN ATED MATERIALS
shall also be considered DESIGNATED MATERIAL and treated as such under this Order.
3. A designation of Protected Material (i.e., "CONFIDENTIAL" or "OUTSIDE COUNSEL'S
EYES ONLY") may be made at any time.
Inadvertent or unintentional production of
documents, information or material that has not been designated as DESIGNATED
1
The term DESIGNATED MATERIAL is used throughout this Protective Order to refer to the
class of materials designated as "CONFIDENTIAL" or "OUTSIDE COUNSEL'S EYES
ONLY", both individually and collectively.
MATERIAL shall not be deemed a waiver in whole or in part of a claim for confidential
treatment. Any party that inadvertently or unintentionally produces Protected Material
without designating it as DESIGNATED MATERIAL may request destruction of that
Protected Material by notifying the recipient(s), as soon as reasonably possible after the
producing Party becomes aware of the inadvertent or unintentional disclosure, and providing
replacement Protected Material that is properly designated. The recipient(s) shall then
destroy all copies of the inadvertently or unintentionally produced Protected Materials and
any documents, information or material derived from or based thereon.
4. CONFIDENTIAL documents, information and material may be disclosed only to the
following persons, except upon receipt of the prior written consent of the designating party,
upon order of the Court, or as set forth in paragraph 10 herein:
(a)
outside counsel of record in this Action for the Parties;
(b)
employees of such counsel assigned to and reasonably necessary to assist such
counsel in the litigation ofthis Action;
(c)
in-house counsel for the Parties who either have responsibility for making
decisions dealing directly with the litigation of this Action, or who are assisting
outside counsel in the litigation ofthis Action;
(d)
up to and including three (3) designated representatives of each of the Parties to
the extent reasonably necessary for the litigation of this Action, except that either
party may in good faith request the other party's consent to designate one or more
additional representatives, the other party shall not unreasonably withhold such
consent, and the requesting party may seek leave of Court to designate such
additional representative(s) if the requesting party believes the other party has
unreasonably withheld such consent;
(e)
outside consultants or experts (i.e., not existing employees or affiliates of a Party
or an affiliate of a Party) retained for the purpose of this litigation, provided that:
(1) such consultants or experts are not presently employed by the Parties hereto
for purposes other than this Action; (2) before access is given, the consultant or
expert has completed the Undertaking attached as Exhibit A hereto and the same
is served upon the producing Party with a current curriculum vitae of the
consultant or expert at least ten (I 0) days before access to the Protected Material
is to be given to that consultant or Undertaking to object to and notify the
receiving Party in writing that it objects to disclosure of Protected Material to the
consultant or expert. The Parties agree to promptly confer and use good faith to
resolve any such objection. If the Parties are unable to resolve any objection, the
objecting Party may file a motion with the Court within fifteen (15) days of the
notice, or within such other time as the Parties may agree, seeking a protective
order with respect to the proposed disclosure. The objecting Party shall have the
burden of proving the need for a protective order. No disclosure shall occur until
all such objections are resolved by agreement or Court order;
(f)
independent litigation support services, including persons working for or as court
reporters, graphics or design services, jury or trial consulting services, and
photocopy, document imaging, and database services retained by counsel and
reasonably necessary to assist counsel with the litigation of this Action; and
(g)
the Court and its personnel.
5. A Party shall designate documents, information or material as CONFIDENTIAL only upon a
good faith belief that the documents, information or material contains confidential or
proprietary information or trade secrets of the Party or a Third Party to whom the Party
reasonably believes it owes an obligation of confidentiality with respect to such documents,
information or material.
6. Documents, information or material produced pursuant to any discovery request in this
Action, including but not limited to Protected Material designated as DESIGNATED
MATERIAL, shall be used by the Parties only in the litigation of this Action and shall not be
used for any other purpose. Any person or entity who obtains access to DESIGNATED
MATERIAL or the contents thereof pursuant to this Order shall not make any copies,
duplicates, extracts, summaries or descriptions of such DESIGNATED MATERIAL or any
portion thereof except as may be reasonably necessary in the litigation of this Action. Any
such
copies,
duplicates,
extracts,
summanes
or
descriptions
shall
be
classified
DESIGNATED MATERIALS and subject to all of the terms and conditions of this Order.
7. To the extent a producing Party believes that certain Protected Material qualifying to be
designated CONFIDENTIAL is so sensitive that its dissemination deserves even further
limitation, the producing Party may designate such Protected Material "OUTSIDE
COUNSEL'S EYES ONLY".
8. For Protected Material designated OUTSIDE COUNSEL'S EYES ONLY, access, and
disclosure of, such Protected Material shall be limited to individuals listed in paragraphs 4(ab) and (e-g).
9. Any outside attorney representing a Party and any person associated with a Party and
permitted to receive the other Party's Protected Material that is designated OUTSIDE
COUNSEL'S EYES ONLY who obtains, receives, has access to, or otherwise learns, in
whole or in part, the other Party's OUTSIDE COUNSEL'S EYES ONLY MATERIAL under
this Order shall not prepare, prosecute, supervise, or assist in the preparation or prosecution
of any patent application pertaining to the field of the invention of the patents-in-suit on
behalf of the receiving Party or its acquirer, successor, predecessor, or other affiliate during
the pendency of this Action and for one year after its conclusion, including any appeals. To
ensure compliance with the purpose of this provision, each Party shall create an "Ethical
Wall" between those persons with access to OUTSIDE COUNSEL'S EYES ONLY
MATERIAL and any individuals who, on behalf of the Party or its acquirer, successor,
predecessor, or other affiliate, prepare, prosecute, supervise or assist in the preparation or
prosecution of any patent application pertaining to the field of invention of the patent-in-suit.
10. Nothing in this Order shall require production of documents, information or other material
that a Party contends is protected from disclosure by the attorney-client privilege, the work
product doctrine, or other privilege, doctrine, or immunity. If documents, information or
other material subject to a claim of attorney-client privilege, work product doctrine, or other
privilege, doctrine, or immunity is inadvertently or unintentionally produced, such
production shall in no way prejudice or otherwise constitute a waiver of, or estoppel as to,
any such privilege, doctrine, or immunity. Any Party that inadvertently or unintentionally
produces documents, information or other material it reasonably believes are protected under
the attorney-client privilege, work product doctrine, or other privilege, doctrine, or immunity
may obtain the return of such documents, information or other material by promptly
notifying the recipient(s) and providing a privilege log for the inadvertently or
unintentionally produced documents, information or other material. The recipient(s) shall
gather and return all copies of such documents, information or other material to the
producing Party, except for any pages containing privileged or otherwise protected markings
by the recipient(s), which pages shall instead be destroyed and certified as such to the
producing Party.
11. There shall be no disclosure of any DESIGNATED MATERIAL by any person authorized to
have access thereto to any person who is not authorized for such access under this Order. The
Parties are hereby ORDERED to safeguard all such documents, information and material to
protect against disclosure to any unauthorized persons or entities.
12. Nothing contained herein shall be construed to prejudice any Party's right to use any
DESIGNATED MATERIAL in taking testimony at any deposition or hearing provided that
the DESIGNATED MATERIAL is only disclosed to a person(s) who is: (i) eligible to have
access to the DESIGNATED MATERIAL by virtue of his or her employment with the
designating party, (ii) identified in the DESIGNATED MATERIAL as an author, addressee,
or copy recipient of such information, (iii) although not identified as an author, addressee, or
copy recipient of such DESIGNATED MATERIAL, has, in the ordinary course of business,
seen such DESIGNATED MATERIAL, (iv) a current or former officer, director or employee
of the producing Party or a current or former officer, director or employee of a company
affiliated with the producing Party; (v) counsel for a Party (subject to paragraph 8 of this
Order); (vi) an independent contractor, consultant, and/or expert retained for the purpose of
this litigation; (vii) court reporters and videographers; (viii) the Court; or (ix) other persons
entitled hereunder to access to DE SIGNA TED MATERIAL. DESIGNATED MATERIAL
shall not be disclosed to any other persons unless prior authorization is obtained from counsel
representing the producing Party or from the Court.
13. Parties may, at the deposition or hearing or within thirty (30) days after receipt of a
deposition or hearing transcript, designate the deposition or hearing transcript or any portion
thereof as "CONFIDENTIAL" or "OUTSIDE COUNSEL'S EYES ONLY" pursuant to this
Order. Access to the deposition or hearing transcript so designated shall be limited in
accordance with the terms of this Order. Until expiration of the 30 day period, the entire
deposition or hearing transcript shall be treated as confidential.
14. Any DESIGNATED MATERIAL that is filed with the Court shall be filed under seal and
shall remain under seal until further order of the Court. The filing party shall be responsible
for informing the Clerk of the Court that the filing should be sealed and for placing the
legend "FILED UNDER SEAL PURSUANT TO PROTECTIVE ORDER" above the caption
and conspicuously on each page of the filing. Exhibits to a filing shall conform to the
labeling requirements set forth in this Order. If a pretrial pleading filed with the Court, or an
exhibit thereto, discloses or relies on confidential documents, information or material, such
confidential portions shall be redacted to the extent necessary and the pleading or exhibit
filed publicly with the Court.
15. The Order applies to pretrial discovery. Nothing in this Order shall be deemed to prevent the
Parties from introducing any DESIGNATED MATERIAL into evidence at the trial of this
Action, or from using any information contained in DESIGNATED MATERIAL at the trial
of this Action, subject to any pretrial order issued by this Court.
16. A Party may request in writing to the other Party that the designation given to any
DESIGNATED MATERIAL be modified or withdrawn. If the designating Party does not
agree to redesignation within ten ( 10) days of receipt of the written request, the requesting
Party may apply to the Court for relief. Upon any such application to the Court, the burden
shall be on the designating Party to show why its classification is proper. Such application
shall be treated procedurally as a motion to compel pursuant to Federal Rules of Civil
Procedure 37, subject to the Rule's provisions relating to sanctions. In making such
application, the requirements of the Federal Rules of Civil Procedure and the Local Rules of
the Court shall be met. Pending the Court's determination of the application, the designation
of the designating Party shall be maintained.
17. Each outside consultant or expert to whom DESIGNATED MATERIAL is disclosed in
accordance with the terms of this Order shall be advised by counsel of the terms of this
Order, shall be informed that he or she is subject to the terms and conditions of this Order,
and shall sign an acknowledgment that he or she has received a copy of, has read, and has
agreed to be bound by this Order. A copy of the acknowledgment form is attached as
Appendix A.
18. To the extent that any discovery is taken of persons who are not Parties to this Action ("Third
Parties") and in the event that such Third Parties contended the discovery sought involves
trade secrets, confidential business information, or other proprietary information, then such
Third Parties may agree to be bound by this Order.
19. To the extent that discovery or testimony is taken of Third Parties, the Third Parties may
designate as "CONFIDENTIAL" or "OUTSIDE COUNSEL'S EYES ONLY" any
documents, information or other material, in whole or in part, produced or give by such Third
Parties. The Third Parties shall have ten (1 0) days after production of such documents,
information or other materials to make such a designation. Until that time period lapses or
until such a designation has been made, whichever occurs sooner, all documents, information
or other material so produced or given shall be treated as "CONFIDENTIAL" in accordance
with this Order.
20. Within thirty (30) days of final termination of this Action, including any appeals all
DESIGNATED MATERIAL, including all copies, duplicates, abstracts, indexes, summaries,
descriptions, and excerpts or extracts thereof (excluding excerpts or extracts incorporated
into any privileged memoranda of the Parties and materials which have been admitted into
evidence in this Action), shall at the producing Party's election either be returned to the
producing Party or be destroyed. The receiving Party shall verify the return or destruction by
affidavit furnished to the producing Party, upon the producing Party s request.
21. The failure to designate documents, information or material in accordance with this Order
and the failure to object to a designation at a given time shall not preclude the filing of a
motion at a later date seeking to impose such designation or challenging the propriety
thereof. The entry of this Order and/or the production of documents, information and
material hereunder shall in no way constitute a waiver of any objection to the furnishing
thereof, all such objections being hereby preserved.
22. Any Party knowing or believing that any other party is in violation of or intends to violate
this Order and has raised the question of violation or potential violation with the opposing
party and has been unable to resolve the matter by agreement may move the Court for such
relief as may be appropriate in the circumstances. Pending disposition of the motion by the
Court, the Party alleged to be in violation of or intending to violate this Order shall
discontinue the performance of and/or shall not undertake the further performance of any
action alleged to constitute a violation of this Order.
23. Production of DESIGNATED MATERIAL by each of the Parties shall not be deemed a
publication of the documents, information and material (or the contents thereof) produced so
as to void or make voidable whatever claim the Parties may have as to the proprietary and
confidential nature of the documents, information or other material or its contents.
24. The Parties contemplate that a separate protective order will be negotiated at a later date
concerning the production of source code.
25. Nothing in this Order shall be construed to effect an abrogation, waiver or limitation of any
kind on the rights of each of the Parties to assert any applicable discovery or trial privilege.
26. Each of the Parties shall also retain the right to file a motion with the Court (a) to modify this
Order to allow disclosure of DESIGNATED MATERIAL to additional persons or entities if
reasonably necessary to prepare and present this Action and (b) to apply for additional
protection of DESIGNATED MATERIAL.
SO ORDERED:jt.Entered this
/1
day of
4
/
2013
Hon. Jo eph N. Laplante
Unite States District Judge
Appendix A
ACKNOWLEDGMENTANDAGREEMENT
TO BE BOUND BY PROTECTIVE ORDER
I,
, state:
1.
I reside at ----------------------------------------------
2.
My present employer is -----------------------------------
3.
My present occupation or job description is _ _ _ _ _ _ _ _ _ _ __
4.
I agree to keep confidential all information and material provided to me in the matter of
_____________________ , and to be subject to the authority of the U.S. District Court for
the District of New Hampshire in the event of any violation of this agreement or dispute related
to this agreement.
5.
I have been informed of and/or read the Stipulated Protective Order ("Order") dated
- - - - - - - -,
and understand and will abide by its contents and confidentiality
requirements. I will not divulge any confidential information or material to persons other than
those specifically authorized by the Order. I will not use any confidential information or
material in any manner not expressly allowed by the Order.
6.
I state under penalty of perjury that the foregoing is true and correct.
Executed on - - - - - - - - -, 20 13.
Signature
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