PATRICK J. WALSH, Magistrate Judge.
WHEREAS, Discovery Information (as defined below) may include documents and information containing or embodying confidential and/or proprietary research, development, or business or commercial information, or that otherwise is entitled to protective treatment under Fed. R. Civ. P. 26(c) (collectively referred to as "Confidential Information");
WHEREAS, Confidential Information may further include documents and information containing or embodying highly proprietary and/or highly competitive/sensitive business information, including without limitation, intellectual property, trade secrets, or highly competitive/sensitive financial or similar information, whose disclosure in each case could reasonably be expected to have a significant adverse competitive impact, or that the Producing Party is otherwise obligated to maintain as confidential with restricted access (collectively referred to as "Highly Confidential Information");
WHEREAS, Discovery Information may include documents and information containing or embodying technical information governed by the International Traffic in Arms Regulations ("ITAR") (22 C.P.R.§§ 120-130), and the Arms Export Control Act (22 U.S.C. § 2778 et seq.) (collectively referred to as "ITAR Controlled Information");
WHEREAS, Discovery Information may include documents and information containing or embodying technical information governed by the Export Administration Act as implemented by Executive Order pursuant to the International Emergency Economic Powers Act (50 U.S.C. § 1701 et seq.) and the Export Administration Regulations (15 C.F.R. §§ 730-774) ("EAR Controlled Information");
WHEREAS, MEASAT Satellite Systems SDN BHD ("MEASAT") and lntelsat have agreed that in order for Intelsat, the Court, mediators, and third parties to disclose ITAR Controlled or EAR Controlled Information to a Foreign National (as defined below), an appropriate Technical Assistance Agreement ("TAA") or other authorization must be obtained;
WHEREAS, MEASAT and Intelsat Corporation ("Intelsat") have agreed that there is good cause for the entry of a protective order pursuant to Federal Rule of Civil Procedure 26(c)(1) to ensure the protection of the Confidential Information, Highly Confidential Information, ITAR Controlled, and EAR Controlled Information in the manner set forth in this proposed Stipulated Protective Order Re: Confidential, Highly Confidential, ITAR Controlled, and EAR Controlled Information ("Order"). Entry of this Order is also in the best interest of all Parties and the Court in that it will facilitate the production of relevant material in a manner that avoids undue injury to the Parties' respective interests by protecting Confidential Information and Highly Confidential Information from public disclosure and prevents unauthorized or unlawful disclosures of ITAR Controlled or EAR Controlled Information, without the need for extensive involvement of this Court in discovery proceedings;
NOW, THEREFORE, pursuant to Fed. R. Civ. P. 26(c), IT IS HEREBY STIPULATED AND AGREED by the respective undersigned counsel for MEASAT and Intelsat, that the following provisions shall govern the pretrial disclosure and use by the Parties of all documents, electronically stored information ("ESI"), testimony, and other information given during the course of discovery in the above-captioned action.
The following definitions shall apply to this Order:
(a) "Confidential Information," as used herein, shall have the meaning set forth in the "WHEREAS" clause above. Except as set forth herein, Discovery Information will not be deemed Confidential Information unless it has been properly and timely designated as such by the Producing Party in accordance with this Stipulation and Order.
(b) "Counsel", without qualifier, as used herein, shall mean Outside Counsel and In-House Counsel (as well as their support staffs and support attorneys).
(c) "Designating Party" as used herein shall mean a Party or Nonparty that designates Discovery Information as Confidential, Highly Confidential, ITAR Controlled, and/or EAR Controlled. It is not necessarily the "Producing Party" (as defined below).
(d) "Discovery Information" shall mean all Documents, items, or other information, regardless of the medium or manner generated, stored, or maintained (including, among other things, testimony, transcripts, or tangible things) that are produced, provided, or generated in disclosures or responses to discovery in this Litigation, or otherwise in connection with this Litigation (including documents given informally to MEASAT and/or to Intelsat, and/or their respective Counsel, by any other person or entity).
(e) "Document," as used herein, is synonymous in meaning and equal in scope to the usage of the term "documents or electronically stored information" in Fed. R. Civ. P. 34(a)(1)(A). Document encompasses, but is not limited to, any type of document (whether in hard-copy or electronic/computerized form) including corporate, intra-corporate, interoffice and intra-office memoranda, correspondence, reports, conversations, any and all other taped, recorded, filmed, magnetic, graphic, computerized, written or typed matters of any kind or description, including the originals and all non-identical copies, whether different from the originals by reason of any notation made on such copies or otherwise, all interrogatory answers, responses to requests for admissions and for production of documents, deposition testimony and deposition exhibits, and any physical objects, samples, or other items produced or obtained from any Party or Non-Party (defined below) in this Litigation.
(f) "EAR Controlled Information," as used herein, shall mean technical information (to include technical data and technology) governed by the Export Administration Act as implemented by Executive Order pursuant to the International Emergency Economic Powers Act (50 U.S.C. § 1701 et seq.) and the Export Administration Regulations (15 C.F.R. §§ 730-774).
(g) "Expert," as used herein, shall mean a person, who is not an owner, director, officer or employee of a Party, who has specialized knowledge or experience in a matter pertinent to this Litigation, including his or her employees and support personnel, who has been retained by a Party or its Counsel to serve as an expert witness or as a consultant in this Litigation. This definition includes, without limitation, professional jury or trial consultants retained in connection with this Litigation.
(h) "Foreign Person," as used herein, is synonymous in meaning and equal in scope to the definition of that term as provided in 22 C.F.R. § 120.16.
(i) "Highly Confidential Information," as used herein, shall have the meaning set forth in the "WHEREAS" clause above. Except as set forth herein, Discovery Information will not be deemed "Highly Confidential Information" unless it has been properly and timely designated as such by the Producing Party in accordance with this Stipulation and Order.
(j) "In-House Counsel," as used herein, shall mean all attorneys, paralegals, and other legal department personnel who are employees of a Party, to whom disclosure of Discovery Information is reasonably necessary for this Litigation.
(k) "ITAR Controlled Information,". as used herein shall, mean technical information (to include technical data and technology) governed by the International Traffic in Arms Regulations ("ITAR") (22 C.F.R. §§ 120-130) and the Arms Export Control Act (22 U.S.C. § 2778 et seq.).
(l) "Legend" shall mean a large, bold stamp or similar insignia designating confidential status or restrictions under this Order.
(m) "Litigation" shall refer to the federal court proceeding entitled MEASAT Satellite Systems SDN BHD v. Intelsat Corporation, No. CV 12-03702 RSWL (PJWx) filed in the Central District of California.
(n) "Nonparty" shall refer to any Person who is not a named in the caption of the Litigation as a plaintiff or defendant.
(o) "Orbital Arbitration" shall refer to the arbitration entitled MEASAT Satellite Systems Sdn. Bhd. v. Orbital Sciences Corporation, before the International Centre for Dispute Resolution of the American Arbitration Association; Case No. 50 132 T 00307.
(p) "Outside Counsel," as used herein, shall mean all attorneys, paralegals and other support personnel who are not employees of a Party, but who are retained to represent or advise a Party in this Litigation.
(q) "Party" shall mean any named party to this action, including all of its officers, directors, employees, consultants, attorneys, Experts, and Counsel (and their support staff).
(r) "Producing Party," as used herein, shall mean a Party or Nonparty that produces Discovery Information in this Litigation.
(s) "Professional Vendors" shall mean persons or entities that provide litigation support services (e.g., photocopying; videotaping; translating; preparing exhibits or demonstratives; organizing; storing; retrieving data in any form or medium) and their employees and subcontractors.
(t) "Protected Material" as used herein shall mean any Discovery Information that is designated as Confidential, Highly Confidential, ITAR Controlled and/or EAR Controlled.
(u) "Receiving Law Firm" means any Party's Outside Counsel that receives Discovery Information designated as Confidential, Highly Confidential, ITAR Controlled and/or EAR Controlled.
(v) "Receiving Party," as used herein, shall mean a Party that receives Discovery Information from a Producing Party in this Litigation.
(w) "U.S. Person," as used herein, is synonymous in meaning and equal in scope to the definition of that term as provided in 22 C.F.R. § 120.15.
(x) "Foreign National," as used herein, and "Foreign Destination," as used herein, means any Person who is not a U.S. Person as that term is defined in 22 C.F.R. § 120.15.
All Confidential, Highly Confidential, ITAR Controlled, or EAR Controlled Information shall be used solely for the purposes of this Litigation, unless otherwise agreed to in advance by and among Parties, but in no event shall any Confidential, Highly Confidential, ITAR Controlled, or EAR Controlled Information be used for any business, manufacturing, or other competitive purpose whatsoever.
(a) This Order shall govern the designation and use of all Confidential, Highly Confidential, ITAR Controlled, and EAR Controlled Information, regardless of how produced, provided, or received.
(b) In the event that additional persons become parties to this Litigation, neither the additional parties nor their Counsel or any person acting on their behalf or retained to assist such additional parties shall have access to any Confidential or Highly Confidential Information unless so ordered by the Court or until such additional party has executed and submitted to the Court a copy of the undertaking for this Order.
(c) In the event that additional persons become parties to this Litigation, neither the additional Parties nor their Counsel or any person acting on their behalf or retained to assist such additional parties shall have access to any ITAR Controlled or EAR Controlled Information unless that additional party and their counsel is a "U.S. Person," and/or is not a "Foreign National" or "Foreign Destination," as the case may be. If the additional person or their counsel is a "Foreign Person," access to ITAR Controlled Information shall not be provided unless and until that "Foreign Person" is authorized to receive access to ITAR Controlled Information pursuant to an appropriate TAA or other authorization, and access to EAR Controlled Information shall not be provided to a "Foreign National" or a "Foreign Destination" unless and until authorized to receive access pursuant to an appropriate license issued by the Bureau of Industry and Security ("BIS").
(d) In the absence of written permission from the Designating Party, material designated as Confidential, Highly Confidential, ITAR Controlled, and/or EAR Controlled, shall be used by the Receiving Party only in connection with the prosecution or defense of this Litigation.
(b)
(i) Discovery Information may be designated as Confidential Information by imprinting the Legend "Confidential" in the manner provided in Paragraphs 4(c)(i)-(iv).
(ii) Discovery Information may be designated as Highly Confidential Information by imprinting the Legend "Highly Confidential" in the manner provided in Paragraphs 4(c)(i)-(iv).
(iii) Discovery Information may be designated as ITAR Controlled Information by imprinting the Legend "ITAR Controlled" and the license or authorization number permitting export and any restrictions that apply to the export of that ITAR Controlled Information in the manner provided in Paragraphs 4(c)(i)-(iv). No ITAR Controlled Information shall be exported to a Foreign Person without a Legend providing the license or authorization number permitting export and any applicable conditions on the authorization to export.
(iv) Discovery Information may be designated as EAR Controlled Information by imprinting the Legend "EAR Controlled" and the license or authorization number permitting export and any restrictions that apply to the export of that EAR Controlled Information in the manner provided in Paragraphs 4(c)(i)-(iv). No EAR Controlled Information shall be exported to a Foreign National or Foreign Destination without a Legend providing the license or authorization number permitting export and any applicable conditions on the authorization to export.
(v) Additional internal record-keeping marks placed on Discovery Information, which may or may not be necessary for export compliance, are not prohibited.
(c)
(i) for produced documents, by imprinting, stamping, or otherwise marking the appropriate Protected Material Legend(s) on the face of each page of a paper Document so designated or in a similarly conspicuous location for non-paper Document materials.
(ii) for written discovery responses, by imprinting, stamping, or otherwise marking the appropriate Protected Material Legend(s) next to or above any response to a discovery request or on each page of a response;
(iii) for depositions, within thirty (30) days of receipt of a transcript or recording of a deposition or other pretrial or trial proceeding, the offering or sponsoring Party or Nonparty may designate such transcript or recording or any portion thereof with the appropriate Protected Material designation(s) by notifying all Parties, in writing, of the specific pages and lines of the transcript or recording that should be treated as Confidential, Highly Confidential, ITAR Controlled, and/or EAR Controlled. All transcripts or recordings of depositions shall be initially treated as Highly Confidential, EAR Controlled, and ITAR Controlled from the time of the deposition until thirty (30) days after receipt of the transcript or recording, or until written notice of a designation is received, whichever occurs first. The Court Reporter shall affix to the top of each such page the Legend "Confidential", "Highly Confidential", "ITAR Controlled", and/or "EAR Controlled" as instructed by the Party or Nonparty offering or sponsoring the witness or presenting the testimony;
(iv) for ESI, either by imprinting, stamping, or otherwise marking the appropriate Protected Material Legend(s) on any disk or storage medium, or on the face of each page of a paper Document so designated, or by designating the production with the appropriate Protected Material designation(s) in the transmittal cover letter.
(d)
(i) Subject to the standards of this Order, a Party or Nonparty (hereinafter an "Upward Designating Party") may upward designate (e.g., revise any Discovery Information previously produced without any designation to a designation of Confidential or Highly Confidential) any Discovery Information previously produced by that Party or Nonparty or by any other Party or Nonparty, provided that said Discovery Information is entitled to such upward protective treatment based on the Upward Designating Party's good faith belief and the terms of this Order, provided, however, that a Nonparty can only upward designate documents it produced.
(ii) If a Document that was previously disclosed in this Litigation's public record is subsequently upward designated to ITAR Controlled and/or EAR Controlled, then, as soon as reasonably possible, the Upward Designating Party shall (a) notify the Court of the change in designation, and (b) take reasonable actions to remove the ITAR Controlled and/or EAR Controlled Document, and any information extracted therefrom, from the public record by filing a Motion to Seal or taking other appropriate action. Each Party shall be independently responsible for determining their own disclosure obligations in the event of any ITAR and/or EAR violations.
(iii) Upward designations shall be made within thirty (30) days of production to the Upward Designating Party, and shall be accomplished by providing written notice to all Parties identifying (by Bates number or other individually identifiable information) the Discovery Information to be re-designated. Failure to upward designate within thirty (30) days of production, alone, will not prevent a Party from obtaining the agreement of all Parties to upward designate certain Discovery Information or from moving the Court for such relief. Nothing in this section shall affect the ability of a Party or Non-Party to correct any failure to properly designate materials as ITAR or EAR Controlled at any time. Any Party may object to the upward designation of Discovery Information pursuant to the procedures set forth in Paragraph 8 regarding challenging designations.
(a)
(i) to MEASAT, its officers, directors, employees, and Counsel, to whom it is reasonably necessary to disclose the information for this Litigation;
(ii) to Intelsat, its officers, directors, employees, and Counsel, to whom it is reasonably necessary to disclose the information for this Litigation;
(iii) to any Expert to whom disclosure is reasonably necessary for this Litigation, who has signed the "Agreement to Be Bound by Protective Order" (attached hereto as Exhibit A);
(iv) to the Court and its personnel in this Litigation, including any relevant appellate court, in the event that any portion of this Litigation is appealed;
(v) to court reporters, their staffs, and professional vendors to whom disclosure is reasonably necessary for this Litigation;
(vi) to any person who Counsel has a good faith basis to believe authored or previously received the material, and who has signed the "Agreement to Be Bound by Protective Order" (attached hereto as Exhibit A);
(vii) to any person who is an employee of the Designating Party, or a former employee of the Designating Party (if he or she was employed by the Designating Party when the Confidential Information was created);
(viii) to any mediators and their staff who assist the Parties in any mediation or other dispute resolution of the claims asserted in this Litigation;
(ix) to other persons designated by mutual agreement of Counsel and who have signed the "Agreement to Be Bound by Protective Order" (attached hereto as Exhibit A); and
(x) third party witnesses who have signed the "Agreement to Be Bound by Protective Order" (attached hereto as Exhibit A).
(b)
(i) to MEASAT's and Intelsat's Outside Counsel;
(ii) to Stephen Chernow, as In-House Counsel for Intelsat, and to Farah Suhanah Ahmad Sarji, as In-House Counsel for MEASAT, provided that each one has signed the "Agreement to Be Bound by Protective Order" (attached hereto as Exhibit A);
(iii) to any Expert to whom disclosure is reasonably necessary for this Litigation, and who has signed the "Agreement to Be Bound by Protective Order" (attached hereto as Exhibit A);
(iv) to the Court and its personnel in this Litigation, including any relevant appellate court, in the event that any portion of this action is appealed;
(v) to court reporters, their staffs, and professional vendors to whom disclosure is reasonably necessary for this Litigation, and who have signed the "Agreement to Be Bound by Protective Order" (attached hereto as Exhibit A);
(vi) to any person who Counsel has a good faith basis to believe authored or previously received the material, and who has signed the "Agreement to Be Bound by Protective Order" (attached hereto as Exhibit A);
(vii) to any person who is an employee of the Designating Party, or a former employee of the Designating Party (if he or she was employed by the Designating Party when the Highly Confidential Discovery Information was created);
(viii) to any mediators and their staff who assist the Parties in any mediation or other dispute resolution of the claims asserted in this Litigation, and who has signed the "Agreement to Be Bound by Protective Order" (attached hereto as Exhibit A); and
(ix) to other persons designated by mutual agreement of Counsel and who have signed the "Agreement to Be Bound by Protective Order" (attached hereto as Exhibit A).
(c)
(i) U.S. Persons, as that term is set forth in 22 C.F.R. § 120.15; and
(ii) Persons or Parties entitled to receive access pursuant to the specific TAA or other authorization granted by the DDTC (including the Court, court personnel and court reporters).
(d)
(i) U.S. Persons, as that term is set forth in 22 C.F.R. §120.15; and
(ii) Persons or Parties entitled to receive access pursuant to the specific license authorization granted by the BIS (including the Court, court personnel and court reporters).
(e)
All Documents marked as ITAR Controlled and/or EAR Controlled shall be treated by the Receiving Law Firm and any Receiving Party in accordance with, as applicable, the International Traffic in Arms Regulations ("ITAR") (22 C.F.R. §§ 120-130), the Arms Export Control Act (22 U.S.C. § 2778 et seq.), the Export Administration Act as implemented by Executive Order pursuant to the International Emergency Economic Powers Act (50 U.S.C. § 1701 et seq.), the Export Administration Regulations (15 C.F.R. §§ 730-774), any TAA or other authorizations granted by the DDTC, and any license authorizations granted by the BIS. The Receiving Party and Receiving Law Finn shall take such steps as may be required by ITAR, EAR and/or any applicable licenses or authorizations, to ensure that ITAR Controlled and EAR Controlled Information is only disclosed to persons who may be given access to such information under the applicable regulations, TAA or other authorization, and any BIS license authorization.
(a) The Receiving Party shall comply with any and all laws and regulations applicable to or governing the Receiving Party's conduct in connection with this Order (including, without limitation, the requirements of the Arms Export Control Act, 22 U.S.C. § 2751 et seq, the International Traffic in Arms Regulations, and the Export Administration Regulations, 50 U.S.C. §§ 1701-1706). The Receiving Party acknowledges that Discovery Information disclosed pursuant to this Order may be subject to transfer and use restrictions under U.S. export laws and regulations and that any use or transfer of such information must be authorized under those laws and regulations. The Receiving Party agrees that it will not use, distribute, transfer, or transmit directly or indirectly Protected Information except in compliance with U.S. export laws and regulations as applicable, and except as permitted under this Order. The Receiving Party represents that its receipt of any Protected Information under this Order will be consistent with and not in violation of, any applicable law, regulation, license, TAA, authorization, or contractual restriction. Except as otherwise provided by federal law or regulation, the Receiving Party is entitled to rely on the designations made or not made by the Producing Party as to whether the Discovery Information produced contains ITAR Controlled or EAR Controlled Information, and it is the Producing Party that bears the burden of making those designations under this Order. If such execution is required by the terms of this Order, the Receiving Party's Outside Counsel shall obtain and retain the original Acknowledgements executed by qualified recipients of Confidential, Highly Confidential Information, ITAR Controlled, and/or EAR Controlled.
(b) If it comes to a Party's or Nonparty's attention that any Discovery Information that it designated for protection does not qualify for protection at all, or does not qualify for the level of protection initially asserted, that Party or Nonparty must promptly notify all other Parties that it is withdrawing the mistaken designation.
(a) Entry of this Order shall be without prejudice to any Party's motion for relief from or modification of the provisions hereof or to any other motion relating to the production, exchange, or use of any Document or other information in the course of this Litigation.
(b) If a Party disagrees with a Designating Party's designation of Discovery Information as Confidential, or Highly Confidential, or disputes the limitations on access to be accorded such information under this Order, the Party contesting the designation or restriction on access shall provide to the Designating Party written notice of its disagreement and specifically identify the Discovery Information or restriction on access in dispute. If, despite good faith effort, the dispute cannot be resolved informally by the Parties within ten (10) days of the Producing Party's receipt of the written notice, the Party contesting the designation or restriction on access may seek a determination from the Court with respect to the propriety of the designation. The Designating Party shall then have five (5) days from the filing of a motion contesting the designation or restriction on access to file an opposition to such motion, following which the contesting party shall be afforded three (3) days to file a reply memorandum. The Confidential or Highly Confidential status of the challenged material shall be maintained until the Court shall rule on the motion. While the challenging Party must initiate the motion before the Court, it is the burden of the Party seeking protection under this Order to demonstrate that the Confidential or Highly Confidential designation is appropriate.
(c) A challenge under this paragraph shall not affect a Party's right of access to Confidential or Highly Confidential material or to disclose information as provided for in this Order. A Party does not waive its right to challenge confidentiality designation by not electing to mount a challenge promptly after the original designation is made or by making a limited challenge and later making another challenge (e.g., challenging one designation and later challenging the other designation, where a multiple designation was made). A Party may change any previously made confidentiality designations at any time, although records must be maintained in accordance with 22 C.P.R.§ 122.5 and 15 C.F.R. § 762.2 to justify the confidentiality designations made with respect to ITAR Controlled or EAR Controlled Information.
(d) The Receiving Party may request that the Designating Party make redactions to a Document designated as Highly Confidential so as to allow the redacted form of the Document to be designated as Confidential. If redactions are requested, the Designating Party has twenty-one (21) days to provide the Receiving Party with a redacted version of the Document containing only Confidential and unrestricted Information thereby allowing the Receiving Party to show the redacted Document to those Persons entitled to receive disclosure of Confidential Information as provided in Paragraph 5(a).
(a)
(b)
(a) Consistent with Federal Rule of Evidence 502, if a Party or Nonparty notifies any other Party that it disclosed Discovery Information that is protected from disclosure under the attorney-client privilege, work-product doctrine, and/or any other applicable privilege or immunity, or the Receiving Party discovers such disclosure, the disclosure shall not be deemed a waiver in whole or in part of the applicable privilege or protection, either as to the specific material or information disclosed or as to any other material or information relating thereto or on the same or related subject matter. If the Receiving Party recognizes that it has received Discovery Information that, based upon a reasonable interpretation, is subject to any of the privileges discussed in this Paragraph, it shall promptly notify the Producing Party.
(b) If a Party or Nonparty requests the return of such Discovery Information pursuant to this Paragraph, the Receiving Party shall destroy or return all copies of such Discovery Information to the Producing Party within five (5) business days of receipt of such notice or discovery, shall provide a certification of Counsel that all such disclosed Discovery Information has been returned or destroyed, and shall not use such items for any purpose until further order of the Court.
(c) Nothing in this Paragraph shall prejudice the right of any Party to challenge any claim of privilege made by another Party.
(a) If a Receiving Party is served with a subpoena or an order issued in separate litigation that would compel disclosure of any information or items designated in this action as Confidential, Highly Confidential, ITAR Controlled, and/or EAR Controlled, the Receiving Party must so notify the Designating Party, in writing (by email or fax, if possible) immediately and in no event more than five (5) court days after receiving the subpoena or order. Such notification must include a copy of the subpoena or court order. The Receiving Party also must immediately inform in writing the party 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 Order. In addition, the Receiving Party must deliver a copy of this Order promptly to the party in the other action that caused the subpoena or order to Issue.
(b) The purpose of imposing these duties is to alert the interested parties to the existence of this Order and to afford the Designating Party in this case an opportunity to protect its confidentiality interest in the court from which the subpoena or order is issued. The Designating Party shall bear the burden and the expense of seeking protection in that court of its Protected Material, 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, except that no export controlled information shall be produced until the Producing Party has confirmed that appropriate authorizations exist for the proposed production.
If a Receiving Party learns that, by inadvertence, it has disclosed Protected Material to any person or in any circumstance not authorized under this Order, or by authorization of either DDTC or BIS, the Receiving Party must immediately (a) notify in writing the Designating Party of the unauthorized disclosures, (b) use its best efforts to retrieve all copies of the Protected Material, (c) inform the person or persons to whom unauthorized disclosures were made of all the terms of this Order, and (d) request such person or persons to execute the Acknowledgment that is attached hereto as Exhibit A. The Receiving Party shall also take all reasonable measures promptly to ensure that no further or greater unauthorized disclosure of the information is made by anyone. The Receiving Party must cooperate and provide the Producing Party all information required for the filing of a voluntary disclosure, including but not limited to identifying all persons with access to such materials disclosed and the circumstances surrounding that access.
(a) All Confidential, Highly Confidential, ITAR Controlled, and/or EAR Controlled Information included with or within any Document or other pleadings submitted to the Court, including, without limitation, any pleading, motion papers, briefs, memoranda, or deposition transcripts, shall only be submitted under seal pursuant to the procedures outlined in Local Rule 79-5.1.
(b) A second copy of the filing, with the Confidential, Highly Confidential, ITAR Controlled, and EAR Controlled Information redacted, shall be filed in the Court's electronic filing system.
A Party who seeks to introduce Confidential, Highly Confidential, ITAR Controlled, and/or EAR Controlled Information at a hearing, pretrial or other Court proceeding shall advise the Court at the time of introduction that the Information sought to be introduced is protected. If the Party who designated the Information as Confidential or Highly Confidential requests the protection be continued, the Court will review the Information to determine if the Information is entitled to continued protection. For Information designated as ITAR Controlled or EAR Controlled, prior to disclosure in Court Proceedings, including any pretrial order or other court filings, the introducing party shall insure that appropriate authorizations for the disclosure are in place. Changes to ITAR or EAR designations may only occur in accordance with the ITAR and EAR. Prior to disclosure of Confidential, Highly Confidential, Information at a hearing, the Producing Party may seek further protections against public disclosure from the Court. No disclosure of ITAR Controlled or EAR Controlled information may occur without appropriate authorization from the Department of State/DDTC, and/or the Department of Commerce/BIS.
Discovery Information produced in this Litigation by a Nonparty, voluntarily or in response to a subpoena, may be designated as Confidential, Highly Confidential, ITAR Controlled, and/or EAR Controlled pursuant to this Protective Order. Nonparty Discovery Information may be designated as Protected Material pursuant to this Protective Order by (i) the Nonparty producing the Discovery Information with Protected Material Legends as provided in paragraph 4; (ii) a Party's written notification, within thirty (30) days of the date of production, to all other Parties and the Nonparty making the production that the Party is designating specifically identified Documents or Discovery Information as Confidential, Highly Confidential, ITAR Controlled, and/or EAR Controlled. All Discovery Information produced by a Nonparty in this Litigation shall be initially treated as Highly Confidential, ITAR Controlled, and EAR Controlled from the time of production until thirty (30) days after production or until written notice of a designation is received, whichever occurs first.
(a) Documents that were previously exchanged or produced in the Orbital Arbitration shall retain any existing protections or confidentiality designations governing those documents, subject to challenge hereunder in the case of Documents produced by MEASAT. MEASAT consents to Orbital Arbitration Documents being produced by Orbital Sciences Corporation in this Litigation so long as those Documents are produced subject to this Order. Any documents exchanged or produced in the Orbital Arbitration that are governed by ITAR and/or EAR shall continue to be governed by ITAR and/or EAR regulations.
(b) Any Party or Nonparty whose Documents were previously exchanged or produced in the Orbital Arbitration and that are subsequently produced by any Nonparty in this Litigation may designate those Documents as Confidential or Highly Confidential within thirty (30) days from the date of production. The Party or Nonparty making such designation shall do so by notifying all Parties, in writing, of the Documents that should be treated as Confidential or Highly Confidential. All Documents previously produced in the Orbital Arbitration and subsequently produced by a Nonparty in this Litigation shall be initially treated as Highly Confidential and/or ITAR Controlled from the time of production until thirty (30) days after production, or until written notice of a designation is received, whichever occurs first.
(a) All provisions of this Order restricting the use of Confidential, Highly Confidential, ITAR Controlled, and EAR Controlled Information shall continue to be binding after the conclusion of this Litigation, unless otherwise agreed or ordered by the Court or by Commodity Jurisdiction as to ITAR Controlled Information.
(b) Within sixty (60) days of the conclusion of the Litigation (whether by entry of a final order of dismissal, judgment, settlement, or disposition on appeal, or otherwise), a Producing Party may request that a person in the possession of the Producing Party's Confidential, Highly Confidential, ITAR Controlled, and/or EAR Controlled Information return or destroy that Information (other than Outside Counsel's copies of documents filed with the Court or Outside Counsel's file copies of documents attached to or information incorporated in attorney work product prepared in connection with this Litigation). If the Receiving Party elects to destroy the Confidential, Highly Confidential, ITAR Controlled, and/or EAR Controlled Information, it shall certify within sixty (60) days that such Information has been destroyed. To the extent any person retains copies of the Confidential, Highly Confidential, ITAR Controlled, and/or EAR Controlled Information pursuant to the terms of this paragraph, such Confidential, Highly Confidential, ITAR Controlled, and/or EAR Controlled Information shall continue to be subject to the protections provided by this Order.
(a) The Parties understand that they have independent obligations for export compliance.
(b) In the event that there is a disagreement as to whether or not Discovery Information contains ITAR Controlled technical data, the Parties will in good faith attempt to resolve the disagreement taking all necessary steps to comply with their respective and applicable TAA(s) or other authorization(s). In the event that resolution cannot be reached, the objecting Party may note its objections in writing.
(c) In the event that there is a disagreement as to or whether or not Discovery Information contains ITAR Controlled technical data that is within the scope of the existing TAA(s) or other authorization(s), the Parties will in good faith attempt to resolve the disagreement taking all necessary steps to comply with their respective and applicable TAA(s) or other authorization(s). In the event that resolution cannot be reached, the objecting Party may note its objections in writing.
(d) In the event that there is a disagreement as to whether or not the redaction of Discovery Information containing ITAR Controlled technical data is appropriate for export compliance, the Parties will in good faith attempt to resolve the disagreement taking all necessary steps to comply with their respective and applicable TAA(s) or other authorization(s). In the event that resolution cannot be reached, the objecting party may note its objections in writing.
(a) Entering into, agreeing to and/or producing or receiving materials or otherwise complying with the terms of this Order shall not:
(i) Operate as an admission by any Party that any particular Discovery Information contains or reflects any confidential matter;
(ii) Prejudice in any way the rights of any Party to object to the disclosure of discovery materials it considers not subject to discovery;
(iii) Prejudice in any way the rights of a Party to seek a Court determination whether particular discovery materials should be produced;
(iv) Prejudice in any way the rights of a Party to apply to the Court for a further protective order relating to any discovery materials;
(v) Prejudice in any way the rights of a Party to object on any ground to introduction or use as evidence of any of the Discovery Information covered by this Order; or
(vi) Otherwise prejudice the right of any Party to apply to the Court for enforcement, modification, or relief from any or all of the provisions of this Order, or such further protective order(s) as justice may require.
(a) Counsel for all Parties in this Litigation agree to take all reasonable precautions to prevent the disclosure of any Protected Material received by them to any persons who are not authorized to receive the Protected Material hereunder.
(b) Nothing in this Protective Order shall limit any Producing Party's use of its own documents or shall prevent any Producing Party from disclosing its Confidential or Highly Confidential Information to any person. Such disclosure shall not affect any designation made pursuant to the terms of this Order so long as the disclosure is made in a manner which is reasonably calculated to maintain the confidentiality of the Confidential or Highly Confidential Information.
(c) The Parties to this Litigation agree that the terms and conditions of this Order are the result of negotiations between their counsel, and that this Order shall not be construed in favor of or against any Party by reason of the extent to which its counsel participated in the drafting of this Order.
(d) The terms of this Order shall survive and continue to be binding on all affected persons after this matter is resolved, subject to any subsequent modifications of this Order by the Court.
(e) Nothing in this Stipulation and Order shall make, or allow a Party or Nonparty to designate, as Confidential or Highly Confidential, Discovery Information that is or was in the public domain. The fact that a document is in the public domain for the purposes of this Order does not affect a Party's or Nonparty's ability to designate Discovery Information as ITAR Controlled Information in accordance with 22 C.F.R. § 120.11. Moreover, nothing herein shall make or allow a Party to designate as Highly Confidential Discovery Information that is or was previously shared by it with the Receiving Party.
(f) This Court shall retain jurisdiction to make such amendments, modifications, and additions to this Stipulation and Order as it may from time to time deem appropriate.
I ____________ [name] _________________, of _[address] ___________________________________ _____________________________________, declare under penalty of perjury that I have ready in its entirety and understand the Stipulated Protective Order that was issued by the United States District Court for the Central District of California in the case of MEASAT Satellite Systems SDN BHD v. Intelsat Corporation, Case No. CV 12-03702 RSWL (PJWx). I agree to comply with and to be bound by all the terms of this Stipulated Protective Order, and I understand and acknowledge that failure to comply could expose me to sanctions and punishment in the nature of contempt. I solemnly promise that I will not disclose in any manner any information or item that is subject to this Stipulated Protective Order to any person or entity except in strict compliance with the provisions of this Order. I further agree to submit to the jurisdiction of the United States District Court for the Central District of California for the purpose of enforcing the terms of this Stipulated Protective Order, even if such enforcement proceedings occur after termination of this case.
In addition, and without limitation to the preceding paragraph, I agree to handle all ITAR Controlled Information in accordance with this Order and all applicable laws. Specifically, and without limitation to the preceding sentence, I agree that any Document designated as ITAR Controlled and any summaries, extracts, charts or notes made therefrom, and any facts or information contained therein or derived therefrom, shall not be disclosed to any person except as authorized by the ITAR (22 C.P.R.§§ 120-130), the Act (22 U.S.C. § 2778 et seq.), the Export Administration Act as implemented by Executive Order pursuant to the International Emergency Economic Powers Act (50 U.S.C. § 1701 et seq.), and TAA or other authorization and shall therefore be restricted to:
(i) the Receiving Party's Outside Counsel of record to whom it is reasonably necessary to disclose the information for this Litigation;
(ii) the Court and court personnel, including court reporters;
(iii) Persons or parties entitled to receive access pursuant to the specific TAA or other authorization granted by the DDTC; and
(iv) U.S. Persons as that term is set forth in 22 C.F.R. § 120.15.
I further agree, without limitation to the preceding paragraphs, to handle all EAR Controlled Information in accordance with the Export Administration Regulations (15 C.P.R.§§ 730-774) and any licenses issued by the BIS and that any EAR Controlled Information and any summaries, extracts, charts, or notes made therefrom, and any facts or information contained therein or derived therefrom, shall not be disclosed to any person except as authorized by the Export Administration Regulations (15 C.F.R. §§ 730-774) and any licenses issued by the BIS and shall therefore be restricted to:
(i) the Receiving Party's Outside Counsel of record to whom it is reasonably necessary to disclose the information for this Litigation;
(ii) the Court and court personnel, including court reporters;
(iii) Persons or parties entitled to receive access pursuant to the specific license authorization granted by the BIS; and
(iv) U.S. Persons as that term is set forth in 22 C.F.R. § 120.15.
In addition, and without limitation to the preceding paragraphs, I further agree that Confidential Information and Highly Confidential Information and any summaries, extracts, charts, or notes made therefrom, and any facts or information contained therein or derived therefrom, shall be handled in strict accordance with this Order and shall not be disclosed to any person except as specified in this Order.
