River City Media, LLC et al v. Kromtech Alliance Corporation et al

Filing 77

PROTECTIVE ORDER. Signed by Judge Stanley A Bastian. (SK, Case Administrator)

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FILED IN THE U.S. DISTRICT COURT EASTERN DISTRICT OF WASHINGTON 1 Feb 06, 2018 2 SEAN F. MCAVOY, CLERK 3 4 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WASHINGTON 5 6 7 8 9 10 RIVER CITY MEDIA, LLC, a Wyoming limited liability company, MARK FERRIS, an individual, MATT FERRIS, an individual, and AMBER PAUL, an individual, Protective Order Plaintiffs, 11 12 13 14 15 16 17 18 vs. KROMTECH ALLIANCE CORPORATION, a German corporation, CHRIS VICKERY, an individual, CXO MEDIA, INC., a Massachusetts corporation, INTERNATIONAL DATA GROUP, INC., a Massachusetts corporation, and STEVE RAGAN, an individual, and DOES 1-50, Defendants. 19 20 21 No. 2:17-cv-105-SAB 1. This Order shall govern “CONFIDENTIAL INFORMATION,” which term shall refer to documents, material or information produced in connection with the lawsuit 22 23 24 and designated as “CONFIDENTIAL” or “CONFIDENTIAL-ATTORNEYS’ EYES ONLY” in accordance with this Order, including, but not limited to, any type of document Protective Order ~ 1 1 2 or testimony; any taped, recorded, written or typed matter, including the originals and all marked copies, whether different from the originals by reason of any notation made on 3 4 such copies or otherwise; all deposition testimony; all interrogatories, documents requests, 5 and requests for admission, including all responses thereto; and any physical objects or 6 other items or any other information gained by inspection of any tangible thing. 7 The parties desire that CONFIDENTIAL INFORMATION designated in 8 9 accordance with this Order shall be treated according to the terms of this Order, and the 10 dissemination of the information in the CONFIDENTIAL INFORMATION is restricted as 11 provided herein. 12 2. Each page of CONFIDENTIAL INFORMATION that a party designates shall 13 14 be stamped with the legend “CONFIDENTIAL” or “CONFIDENTIAL-ATTORNEYS’ 15 EYES ONLY” prior to its production or, if inadvertently produced without such legend, 16 by promptly upon discovery furnishing written notice to the receiving party that the 17 information or document shall be treated as “CONFIDENTIAL” or “CONFIDENTIAL- 18 19 20 21 22 23 24 ATTORNEYS’ EYES ONLY” under this Order. Any stamping or marking shall be made so as not to interfere with the legibility of each such stamped or marked document. a. “CONFIDENTIAL”: The “CONFIDENTIAL” designation shall be limited to confidential information that is used by a party in, or pertaining to, its business, which information is generally not known and which that party would normally not reveal to third parties or, if disclosed, would require such third parties to maintain in confidence. “Confidential Information’’ as used herein means: trade secrets or other confidential research, development, or commercial information that Protective Order ~ 2 1 2 the designating party believes to be of a proprietary business, financial, or technical nature, and not readily available to competitors or potential competitors, and information of employees who are not parties to this lawsuit. 3 4 5 6 7 8 9 10 11 b. “CONFIDENTIAL-ATTORNEYS’ EYES ONLY”: The “CONFIDENTIAL-ATTORNEYS’ EYES ONLY” designation shall be limited to highly confidential information of the most sensitive nature, which if disclosed to persons of expertise in the area would reveal significant technical or business advantages of the producing or designating party, and which includes as a major portion subject matter that is believed to be unknown to the opposing party, or any employees of the opposing party, including any confidential personnel or financial information (including any account or credit card information) of a party or thirdparty. 3. CONFIDENTIAL INFORMATION does not include documents, material or information that are: 12 a. independently developed by the receiving party without use of or reliance upon any of the disclosing party’s CONFIDENTIAL INFORMATION; b. rightfully acquired by the receiving party from an independent source, without restrictions as to use or obligations as to confidence; c. prior to disclosure, rightfully in the possession or knowledge of the receiving party without restrictions of confidentiality; d. publicly available in substantially the same form in which it was provided by the disclosing party claiming confidentiality; 21 e. required by law to be made available to third parties; or 22 f. public knowledge by means not in violation of this Order. 13 14 15 16 17 18 19 20 23 4. Documents designated as “CONFIDENTIAL” may be used by the party 24 Protective Order ~ 3 1 2 receiving it only for purposes of this lawsuit and may not be disclosed to any person without the prior written consent of the party producing it or an order of the Court, except that it 3 4 may be disclosed to: 5 a. the Court; 6 b. counsel for the Parties, to be used for purposes of this lawsuit only; c. counsel’s employees, to be used for purposes of this lawsuit only; d. Outside experts or consultants retained or in good faith proposed to be retained for the purpose of assisting counsel in the prosecution or defense of this litigation or testifying at trial, to the extent deemed necessary in good faith by the retaining counsel to enable a consultant or expert to evaluate the proposed retention and/or provide such assistance or testimony (and clerical personnel of each such consultant or expert); provided that the disclosure of Confidential Information to such an expert or consultant shall be made only after counsel desiring to disclose Confidential Information to such an expert or consultant obtains a completed and signed undertaking in the form of Exhibit A attached hereto from the expert or consultant; e. the Parties and their respective members, officers, directors, and employees, to be used for purposes of this lawsuit only; and f. witnesses in depositions and any hearings before the Court, including hearings on motions brought by the Parties, to be used for purposes of this lawsuit only. 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 5. CONFIDENTIAL INFORMATION designated as “CONFIDENTIAL- ATTORNEYS’ EYES ONLY” may be used by the party’s counsel receiving it only for purposes of this lawsuit and may not be disclosed to any person, including the receiving 24 Protective Order ~ 4 1 2 party, without the prior written consent of the party producing it or an order of the Court, except that it may be disclosed to: 3 a. the Court; 5 b. counsel for the Parties, to be used for purposes of this lawsuit only, 6 c. counsel’s employees, to be used for purposes of this lawsuit only, d. Outside experts or consultants retained or in good faith proposed to be retained for the purpose of assisting counsel in the prosecution or defense of this litigation or testifying at trial, to the extent deemed necessary in good faith by the retaining counsel to enable a consultant or expert to evaluate the proposed retention and/or provide such assistance or testimony (and clerical personnel of each such consultant or expert); provided that the disclosure of Confidential Information designated Confidential-Attorneys’ Eyes Only to such an expert or consultant shall be made only after counsel desiring to disclose designated Confidential-Attorneys’ Eyes Only to such an expert or consultant obtains a completed and signed undertaking in the form of Exhibit A attached hereto from the expert or consultant; and e. the specific person(s) who appear(s) on the face of the document to have authored or received it or his, her, or its authorized representative(s), to be used for purposes of this lawsuit only. 4 7 8 9 10 11 12 13 14 15 16 17 18 19 20 6. Any document containing financial account or credit card numbers will be treated as CONFIDENTIAL ATTORNEY'S EYES ONLY regardless of whether marked as such. 21 22 7. Subject to paragraphs 4 and 5, no disclosure of CONFIDENTIAL 23 INFORMATION received from another party shall be made to any person under 24 subparagraphs 4(d), 4(e), 4(f), or 5(d), until such person has been advised of this Order and Protective Order ~ 5 1 2 has signed the Confidentiality Agreement attached hereto as Exhibit “A.” 8. No person who has agreed to be bound, or who is ordered bound, by this Order 3 4 5 6 7 may use or disclose any CONFIDENTIAL INFORMATION, except as provided herein. 9. If documents, material, information or testimony is sought in discovery in this lawsuit from a person (including any business entity) who is not a party, and such person or any party reasonably believes that the information sought is CONFIDENTIAL 8 9 INFORMATION, such person or party may designate such information as 10 “CONFIDENTIAL” or “CONFIDENTIAL-ATTORNEYS’ EYES ONLY” in accordance 11 with the provisions of this Order. 12 10. A party may contest a confidentiality designation by notifying the designating 13 14 person or party, in writing, that the receiving party objects to the particular confidentiality 15 designation. Those involved shall work together in good faith to resolve the objection. If 16 no resolution is reached, the party contesting the designation shall file a motion with the 17 Court within fifteen (15) days of the unsuccessful conference, seeking resolution of the 18 19 20 21 22 objection. 11. A dispute as to confidentiality shall not be grounds for delay of or for a refusal to permit discovery. All of the documents, material, or information that are the subject of the dispute will continue to be subject to this Order unless and until the Court rules 23 24 otherwise. No presumption of confidentiality shall arise merely because of the existence Protective Order ~ 6 1 2 of this Order. 12. Whenever CONFIDENTIAL INFORMATION is to be referred to or 3 4 disclosed in a hearing, deposition, or any other proceeding in this lawsuit, any party 5 claiming confidentiality may seek to exclude from the room any person who is not entitled 6 to receive CONFIDENTIAL INFORMATION and may request that the Court seal any 7 record of such proceedings. 8 9 13. Any party designate a deposition or “CONFIDENTIAL-ATTORNEYS’ portion EYES thereof as ONLY” by 10 “CONFIDENTIAL” 11 denominating by page and line those portions of the deposition which are to be considered 12 or may “CONFIDENTIAL” or “CONFIDENTIAL-ATTORNEYS’ EYES ONLY” within 13 14 fourteen (14) days of receiving the transcript and so informing all other parties of such 15 designation. Each party shall attach a copy of such written statement or statements to the 16 face of the transcript and each copy thereof in its possession, custody, or control. Until the 17 fourteen-day period to designate deposition testimony as “CONFIDENTIAL” or 18 19 “CONFIDENTIAL-ATTORNEYS’ EYES ONLY” has passed, the deposition transcript 20 shall be treated as “CONFIDENTIAL-ATTORNEYS’ EYES ONLY.” Additionally, a 21 Party may orally designate testimony as “CONFIDENTIAL” or “CONFIDENTIAL- 22 ATTORNEYS’ EYES ONLY” during the course of a deposition, in which case the court 23 24 reporter and/or videographer shall transcribe and/or record the testimony so designated in Protective Order ~ 7 1 2 a separate volume marked “CONFIDENTIAL” or “CONFIDENTIAL—ATTORNEY’S EYES ONLY.” Any party noticing a deposition shall provide a copy of this Order to any 3 4 court reporter, videographer, or other person hired to record the deposition. Any portion 5 of a deposition designated as “CONFIDENTIAL” or “CONFIDENTIAL-ATTORNEYS’ 6 EYES ONLY” shall not be filed with the Court, except in accordance with this Order. 7 14. If CONFIDENTIAL INFORMATION is to be filed with the Court, it shall be 8 9 the responsibility of the filing party to move the Court for permission to file such papers 10 under seal. The Court will review the motion and determine whether good cause exists to 11 file the document under seal. 12 15. If CONFIDENTIAL INFORMATION is disclosed in violation of this Order, 13 14 the party who learns of such a disclosure shall (a) inform the other party of the disclosure, 15 including the specific document(s) and information disclosed, when the disclosure occurred, 16 and the identity of the person(s) to whom the disclosure was made; (b) use its best efforts to 17 retrieve all copies of the disclosed document(s); (c) upon request by the producing party, 18 19 request that the person(s) who received the unauthorized disclosure execute the undertaking 20 in the form of Exhibit A attached hereto; and (d) make every effort to prevent any further 21 disclosure in violation of this Order. 22 16. Nothing in this Order prevents any party or other person from seeking 23 24 modification of this Order or from objecting to disclosure or discovery it believes to be Protective Order ~ 8 1 2 otherwise improper. In particular, nothing in this Order precludes any party from seeking and obtaining, on an appropriate showing, such additional protection for any information, 3 4 5 6 7 document, or thing as the party may consider appropriate in the circumstances. 17. Should any court, administrative agency, person, or entity subpoena production of CONFIDENTIAL INFORMATION from a party who obtained such information under the terms of this Order, such party shall promptly notify the designating 8 9 party of the pendency of such subpoena before disclosing such information. If the 10 designator timely seeks a protective order, the party served with the subpoena or court 11 order shall not produce any such CONFIDENTIAL INFORMATION before a 12 determination by the court where the subpoena or order issued, unless the party has 13 14 15 16 17 obtained the designator’s permission 18. Inadvertent or unintentional production of documents, material, or information containing CONFIDENTIAL INFORMATION that are not designated according to this Order is not a waiver in whole or in part of a claim for confidential 18 19 treatment. In addition, CONFIDENTIAL INFORMATION previously produced or 20 disclosed by the Parties may be subsequently designated according to this Order. The 21 receiving party shall have no liability for any disclosure of undesignated CONFIDENTIAL 22 INFORMATION before the receiving party was placed on notice of the producing or 23 24 disclosing party’s designation of such CONFIDENTIAL INFORMATION. Protective Order ~ 9 1 2 19. If information subject to a claim of attorney-client privilege, attorney work product, or any other ground on which production of such information should not be made 3 4 to any party is nevertheless inadvertently produced to a party or parties, Federal Rule of 5 Civil Procedure 26(b)(5)(B) shall apply. If a party moves the Court for an order compelling 6 production of the material, said motion shall not assert as a ground for entering such an 7 order the fact or circumstance of the production of the information. Further, pursuant to 8 9 Federal Rule of Evidence 502(d) and (e), the parties agree that the inadvertent disclosure 10 of a communication or information covered by the attorney-client privilege or work 11 product protection does not constitute a waiver of the attorney-client privilege or work 12 product protection in this proceeding or any other state or federal proceeding. Nothing in 13 14 15 16 17 this provision shall restrict a party from challenging, in any way, the propriety of the privilege claim after the material or information has been returned to the producing party. 20. A party may disclose information that it has designated as CONFIDENTIAL INFORMATION to any person at any time without regard to this Order. 18 19 21. Within thirty (30) days of final disposition of this lawsuit (whether by 20 judgment, settlement or otherwise), including all appeals, each party, at its election, shall 21 either request that all CONFIDENTIAL INFORMATION designated under this Order be 22 returned or destroyed. In response, the other party will either destroy the CONFIDENTIAL 23 24 INFORMATION and provide a letter certifying such destruction or return the Protective Order ~ 10 1 2 CONFIDENTIAL INFORMATION and destroy all copies, extracts, and summaries of such CONFIDENTIAL INFORMATION. For archival purposes, the attorneys in the law 3 4 firms or legal departments representing the Parties may retain one copy of all pleadings, 5 transcripts, exhibits, written discovery responses, documents, including portions 6 designated under this Order, and any written work product that mentions or includes 7 CONFIDENTIAL INFORMATION. 8 9 22. Upon final termination of this lawsuit (whether by judgment, settlement, or 10 otherwise), including all appeals, the provisions of this Order shall continue to be binding, 11 except with respect to those documents, materials, and information that become a matter 12 of public record. 13 14 23. This Order is binding upon the Parties and their attorneys, successors, 15 executors, personal representatives, administrators, heirs, legal representatives, assigns, 16 subsidiaries, divisions, employees, agents, independent contractors, or other persons or 17 organizations over which they have control. 18 19 DATED this 6th day of February 2018 20 21 22 23 Stanley A. Bastian 24 United States District Judge Protective Order ~ 11 1 EXHIBIT A 2 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WASHINGTON 3 4 5 6 7 RIVER CITY MEDIA, LLC, a Wyoming limited liability company, MARK FERRIS, an individual, MATT FERRIS, an individual, and AMBER PAUL, an individual, 8 No. 2:17-cv-105-SAB Confidentiality Agreement Plaintiffs, 9 10 11 12 13 14 15 vs. KROMTECH ALLIANCE CORPORATION, a German corporation, CHRIS VICKERY, an individual, CXO MEDIA, INC., a Massachusetts corporation, INTERNATIONAL DATA GROUP, INC., a Massachusetts corporation, and STEVE RAGAN, an individual, and DOES 1-50, 16 Defendants. 17 18 1. I certify that I have received and have carefully read the Protective Order 19 (“Order”) in the above-captioned civil action and that I fully understand the terms of the 20 Order. I recognize that I am bound by the terms of that Order, and I agree to comply with 21 those terms. 22 23 24 Protective Order ~ 12 1 2 2. 1 understand that the distribution of any material or documents subject to the Order, or the dissemination of any information contained in them, is expressly prohibited, 3 4 5 6 7 except as necessary to discuss such information with the attorneys of record in this case. 3. I agree that I will not distribute or disseminate any such material or documents or any information contained in them, except to the attorneys of record in this case. I agree to deliver to such attorneys any report, summary of expected testimony, or written opinion 8 9 10 11 12 containing information designated as Confidential in a sealed envelope clearly marked, "Confidential-Subject to Order." 4. I understand that the original of this Confidentiality Agreement will be retained by the attorneys of record for [party] and that a copy of this 13 14 15 agreement will be sent to the attorneys of record for Dated: _______________, 201 . 16 [adverse parties]. Signature: Printed Name: _______________________________ 17 18 Affiliation: __________________________________ 19 20 Address: ____________________________________ 21 Address: ____________________________________ 22 23 Telephone: __________________________________ 24 Protective Order ~ 13

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