SUSAN ILLSTON, District Judge.
Discovery in this litigation may involve production of personal, private information, corporate trade secrets or other confidential information for which special protection from public disclosure and from use for any purpose other than prosecuting this litigation would be warranted. Accordingly, the parties hereby stipulate to and petition the Court to enter the following Stipulated Protective Order. The parties acknowledge that this Order does not confer blanket protections on all disclosures or responses to discovery and that the protection it affords extends only to the information or items that are entitled to protection as described herein. The parties further acknowledge, as set forth in Section 12, infra, that this Stipulated Protective Order creates no entitlement to file confidential information under seal; Civil Local Rule 79-5 sets forth the procedures that must be followed and reflects the standards that will be applied when a party seeks permission from the court to file material under seal.
1. For the purposes of this Order, "Confidential Information" means:
2. For the purposes of this Order, "Highly Confidential—Attorneys' Eyes Only Information" means:
3. Each party or non-party that designates information or items for protection under this Order ("Designating Party") must take care to limit any such designation to information that qualifies under the appropriate standards. Mass, indiscriminate, or routinized designations are prohibited.
4. If documents being produced or written discovery responses being served contain Confidential Information or Highly Confidential—Attorneys' Eyes Only Information, counsel for the Designating Party may identify such information or documents as Confidential Information or Highly Confidential—Attorneys' Eyes Only Information by placing or affixing on the first page of the material and on each page of the material, in a manner that will not interfere with the material's legibility, the word "Confidential" or "Highly Confidential— Attorneys' Eyes Only."
5. If Confidential Information or Highly Confidential—Attorneys' Eyes Only Information is used or marked as an exhibit in a deposition, or if deposition questions, testimony, or colloquy discloses Confidential Information or Highly Confidential—Attorneys' Eyes Only Information, counsel for the Designating Party may identify such information or documents as Confidential Information or Highly Confidential—Attorneys' Eyes Only Information by informing counsel for the other parties of the claim of confidentiality in writing within 30 days after having received a copy of the deposition transcript. The court reporter is relieved of any obligation to separately bind the transcript pages and/or stamp each page as "Confidential" or "Highly Confidential—Attorneys' Eyes Only." All testimony designated as "Confidential" or "Highly Confidential—Attorneys' Eyes Only" shall be treated as Confidential Information or Highly Confidential—Attorneys' Eyes Only Information, pursuant to the terms of this Order, except as otherwise agreed in writing by each party claiming confidentiality or as otherwise ordered by the Court.
6. Neither Confidential Information nor Highly Confidential—Attorneys' Eyes Only Information shall not be used or shown, disseminated, copied, or in any way communicated, orally, in writing, or otherwise, by the parties, their counsel, or any of their representatives, agents, expert witnesses, or consultants, to anyone for any purpose whatsoever, other than as reasonably necessary by the parties and their counsel for the preparation and trial of this action. Access to Confidential Information and Highly Confidential—Attorneys' Eyes Only Information shall be limited to those persons designated as "Qualified Persons" in paragraphs 7 and 8 below.
7. Confidential Information may be disclosed only to the following persons (hereinafter referred to as "Qualified Persons"):
8. HIGHLY CONFIDENTIAL—ATTORNEYS' EYES ONLY Information, unless otherwise ordered by the court or permitted in writing by the Designating Party, may be disclosed only to the following Qualified Persons:
9. Prior to disclosure of any material designated "Confidential" or "Highly Confidential—Attorneys' Eyes Only" to any Qualified Person described in paragraph 7 subsections (a) (f)-(i) or paragraphs 8 subsections (d)-(f), such Qualified Person shall be given a copy of this Stipulated Protective Order, and shall agree in writing, in the form attached hereto as Exhibit A or B, whichever applies, to be bound by the terms of this Order and to be subject to the jurisdiction of this Court for the purposes of any proceeding relating to the performance under, compliance with, or violation of this Order. Counsel for each party shall maintain a list of all Qualified Persons to whom they or their client have provided any Confidential Information or Highly Confidential—Attorneys' Eyes Only Information, and that list shall be available for inspection by the Court. In addition, each of the parties and their attorneys expressly stipulates to be subject to the personal jurisdiction of this Court for purposes of any proceeding brought by a Party to this action to enforce this Order.
10. Except to the extent otherwise permitted by this Order, every Qualified Person provided copies of or access to Confidential Information or Highly Confidential—Attorneys' Eyes Only Information pursuant to this Order shall keep all such materials and information, and any copies, notes, extracts, summaries, or descriptions of such material, within their exclusive possession and control, shall treat all such copies, notes, extracts, summaries, or descriptions of the Confidential Information or Highly Confidential—Attorneys' Eyes Only Information or any portion thereof as "Confidential" or "Highly Confidential—Attorneys' Eyes Only," shall take all necessary and prudent measures to maintain the confidentiality of all such materials or information, and shall not disseminate such Confidential Information or Highly Confidential— Attorneys' Eyes Only Information.
11. If any counsel of record distributes copies of material containing Confidential Information or Highly Confidential—Attorneys' Eyes Only Information to one or more Qualified Persons, all such materials, and all copies, notes, extracts, summaries, or descriptions of such material, shall be returned to that counsel of record or destroyed at the completion of the Qualified Person's consultation or representation in this case. Counsel of record shall, upon request by opposing counsel or the Court, execute an affidavit stating that to the best of counsel's knowledge all materials containing Confidential Information or Highly Confidential— Attorneys' Eyes Only Information, and all copies, notes, extracts, summaries, or descriptions of any such material, have been returned or destroyed as required. If any counsel of record distributes copies of material containing Confidential Information or Highly Confidential— Attorneys' Eyes Only Information to one or more Qualified Persons, all such materials, and all copies, notes, extracts, summaries, or descriptions of such material, shall be either destroyed or returned to that counsel of record at the completion of the Qualified Person's consultation or representation in this case. If a Qualified Person destroys such material, rather than returning it to that counsel of record, the Qualified Person shall promptly provide to that counsel of record an affidavit stating that all materials containing Confidential Information or Highly Confidential—Attorneys' Eyes Only Information, and all copies, notes, extracts, summaries, or descriptions of any such material, have been destroyed. That counsel of record shall, upon request by opposing counsel or the Court, provide to opposing counsel (a) an affidavit stating that all materials containing Confidential Information or Highly Confidential—Attorneys' Eyes Only Information, and all copies, notes, extracts, summaries, or descriptions of any such material, have, to the best of that counsel of record's knowledge, been returned or destroyed as required, and (b) all affidavits of Qualified Persons who provided that counsel of record with affidavits pursuant to the provisions of this paragraph.
12. Nothing in this Order shall prevent a party from using at trial any Confidential Information or or Highly Confidential—Attorneys' Eyes Only Information. Absent an order by the Court, such use shall not expand the persons to whom such documents or information may be disclosed pursuant to this Order.
13. Prior to the use of Confidential Information or Highly Confidential—Attorneys' Eyes Only Information at trial, the parties will discuss with the Court appropriate procedures to for the use of Confidential Information or Highly Confidential—Attorneys' Eyes Only Information.
14. If a party wishes to file with the Court a document designated as "Confidential" or "Highly Confidential—Attorneys' Eyes Only", or if a party wishes to refer to information in any papers filed with the Court that has been designated as "Confidential" or "Highly Confidential—Attorneys' Eyes Only," the party submitting the materials shall comply with the procedures set forth in Civil L.R. 79-5.
Any affected party or non-party who wishes to have the document sealed may then follow the appropriate procedures set forth in Civil Local Rule 79-5.
15. Promptly after the termination of this action by entry of a final judgment or order of dismissal, all materials containing Confidential Information or Highly Confidential— Attorneys' Eyes Only Information shall be returned to counsel for the party who produced those materials or shall be destroyed. Notwithstanding this provision, counsel of record may retain one copy of each deposition transcript designated as "Confidential" or "Highly Confidential— Attorneys' Eyes Only," as well as an archival copy of all pleadings, motion papers, transcripts, legal memoranda, correspondence or attorney work product, even if such materials contain materials designated "Confidential." Any such archival copies that contain or constitute Confidential Information or Highly Confidential—Attorneys' Eyes Only Information remain subject to this Protective Order. If material containing Confidential Information or Highly Confidential—Attorneys' Eyes Only Information is destroyed, rather than returned, counsel of record shall promptly provide to opposing counsel of record written confirmation that materials containing such Confidential Information or Highly Confidential—Attorneys' Eyes Only Information have been destroyed consistent with this Order.
16. After the termination of this action by entry of a final judgment or order of dismissal, the provisions of this Order shall continue to be binding. The terms of this Order constitute, and shall be deemed to be, an enforceable agreement between the parties (and their agents and attorneys, to the extent permitted by the California Rules of Professional Conduct), and the terms of this Order may be enforced by specific performance in any court of competent jurisdiction.
17. This Order shall be binding on the parties, their attorneys, and the parties' and their attorneys' successors, executors, personal representatives, administrators, heirs, legal representatives, assigns, subsidiaries, divisions, employees, agents, independent contractors, and other persons or organizations over whom or which the parties have control.
18. This Order does not constitute a waiver or limitation of any party's right to object to discovery on any ground, including the ground that information sought contains trade secrets or other confidential research, development, or commercial information; nor does it constitute a waiver of any party's right to challenge the confidentiality of any redaction or designation. By producing documents for review and inspection, the parties do not waive any objections to relevance for summary judgment or other purposes or to the admissibility at trial of any such document or of any information contained in any such document.
19. This Order does not constitute a waiver or limitation of any party's right to withhold or redact information protected from disclosure by the attorney-client privilege, mediation privilege or other applicable privilege, including the work-product doctrine, or any other protection, law, or regulation, or to seek appropriate protective orders respecting documents asserted to be subject to any such privilege, doctrine, protection, law, or regulation.
20. The entry of this Order shall be without prejudice to the rights of the parties, or any one of them, or of any non-party, to assert or apply for additional or different protection.
Nothing in this Order shall limit any party's right to disclose to any person, or use for any purpose, its own Confidential Information and documents.
22. If a party contends that any document has been erroneously or improperly designated "Confidential" or "Highly Confidential—Attorneys' Eyes Only," it shall nevertheless treat the document as Confidential Information or Highly Confidential—Attorneys' Eyes Only Information until either (a) that party obtains from the Designating Party written permission to do otherwise, or (b) this Court enters an order stating that the document shall not be treated as Confidential Information or Highly Confidential—Attorneys' Eyes Only Information.
23. A party may challenge the designation of a document or other material as "Confidential" or "Highly Confidential—Attorneys' Eyes Only" only as follows:
24. Upon receipt of a subpoena or order requiring production of Confidential
Information or Highly Confidential—Attorneys' Eyes Only Information, the Receiving Party must immediately inform in writing the person who caused the subpoena or order to issue in the other litigation that some or all the material covered by the subpoena or order is the subject of this Protective Order. In addition, the Receiving Party must deliver a copy of this Protective Order promptly to the person in the other action that caused the subpoena or order to issue.
25. The purpose of imposing these duties is to alert the interested parties to the existence of this Protective Order and to afford the Designating Party an opportunity to protect its confidentiality interests in the court from which the subpoena or order issued. The Designating Party shall bear the burden and the expense of seeking protection in that court of its Confidential Information or Highly Confidential—Attorneys' Eyes Only Information and nothing in these provisions should be construed as authorizing or encouraging a Receiving Party in this action to disobey a lawful directive from another court.
26. If counsel for the Receiving Party learns that, by inadvertence or otherwise, he or she has disclosed Confidential Information or Highly Confidential—Attorneys' Eyes Only Information to any person or in any circumstance not authorized under this Protective Order, than counsel for Receiving Party must immediately (a) notify the Designating Party in writing of the unauthorized disclosures; (b) use his or her best efforts to retrieve all copies of the Confidential Information or Highly Confidential—Attorneys' Eyes Only Information, including any copies or reproduction, excerpts, summaries or other documents or media that paraphrase, excerpt or contain the Confidential Information or Highly Confidential—Attorneys' Eyes Only Information; (c) inform the person or persons to whom unauthorized disclosures were made of all the terms of this Protective Order, and (d) request such persons or execute the Agreement To Be Bound By Protective Order.
I, ________________________________________, declare and agree as follows:
1. My address is ________________________________________________ ___________________________________________________________________________.
2. My present employer is ________________________________________ _____________________________________________________________________________.
3. I acknowledge that I may receive information or material, or both, designated as "CONFIDENTIAL" in accordance with the Protective Order ("Order") regarding treatment of Confidential Information entered by the Court in the lawsuit identified in the above caption.
4. I have received a copy of that Order and have read it. I am familiar with its terms and conditions. I agree to comply with and to be bound by each of the terms and conditions of that Order. In particular, I agree to hold in confidence, in accordance with the requirements of the Order, any information and material disclosed to me pursuant to that Order.
5. I understand that the Order has been issued by a court of competent jurisdiction and is enforceable by the power of contempt. I understand fully that my breach of the Order, or any of its terms, may result in sanctions by the Court, contempt proceedings, or other proceedings to enforce the terms of the Order.
6. I agree (a) to notify all stenographic, clerical, or other personnel who are required to assist me in my assigned duties of the terms of the Order, (b) to provide them with a copy of this declaration for their signature, and (c) to obtain and keep the copy of this declaration after it has been properly signed.
7. I agree that I will not show, disseminate, or in any way communicate, orally, in writing, or otherwise, to anyone, or use or copy, for any purpose whatsoever, other than as required for the preparation and trial of this action, any Confidential Information provided to me in connection with this litigation, and I will not reveal any Confidential Information to any person who is not a "Qualified Person" as defined in paragraph 7 of the Order.
I declare under penalty of perjury under the laws of the United States of America that the foregoing is true and correct and represents my understanding of my agreement to be bound to the terms of the Protective Order.
I, ________________________________________, declare and agree as follows:
1 My address is ________________________________________________ ___________________________________________________________________________.
2. My present employer is ________________________________________ _____________________________________________________________________________
3. I acknowledge that I may receive information or material, or both, designated as "HIGHLY CONFIDENTIAL—ATTORNEYS' EYES ONLY" in accordance with the Protective Order ("Order") regarding treatment of Highly Confidential—Attorneys' Eyes Only Information entered by the Court in the lawsuit identified in the above caption.
4. I have received a copy of that Order and have read it. I am familiar with its terms and conditions. I agree to comply with and to be bound by each of the terms and conditions of that Order. In particular, I agree to hold in confidence, in accordance with the requirements of the Order, any information and material disclosed to me pursuant to that Order.
5. I understand that the Order has been issued by a court of competent jurisdiction and is enforceable by the power of contempt. I understand fully that my breach of the Order, or any of its terms, may result in sanctions by the Court, contempt proceedings, or other proceedings to enforce the terms of the Order.
6. I agree (a) to notify all stenographic, clerical, or other personnel who are required to assist me in my assigned duties of the terms of the Order, (b) to provide them with a copy of this declaration for their signature, and (c) to obtain and keep the copy of this declaration after it has been properly signed.
7. I agree that I will not show, disseminate, or in any way communicate, orally, in writing, or otherwise, to anyone, or use or copy, for any purpose whatsoever, other than as required for the preparation and trial of this action, any Highly Confidential—Attorneys' Eyes Only Information provided to me in connection with this litigation, and I will not reveal any Highly Confidential—Attorneys' Eyes Only Information to any person who is not a "Qualified Person" as defined in paragraph 8 of the Order.
I declare under penalty of perjury under the laws of the United States of America that the foregoing is true and correct and represents my understanding of my agreement to be bound to the terms of the Protective Order.
