SUZANNE H. SEGAL, Magistrate Judge.
Defendants respectfully request that the Court endorse and enter the Stipulated Protective Order executed by the parties and attached as Exhibit 1. Plaintiff, through his counsel of record, has stipulated to the attached Protective Order and does not oppose this motion.
In support of the showing of good cause for the Court's entry of the stipulated Protective Order, defendants state as follows:
1. This action arises out of an accident involving a table saw in which claims of design defect have been made.
2. In connection with discovery in this action, documents, information and things will be furnished that constitute, reflect, or contain trade secrets or other non-public, proprietary or business-sensitive information or things, including, without limitation, confidential research, design, development, financial, corporate, or other commercial information (collectively, "Confidential Materials").
3. In order to preserve the proprietary interests of the parties or third parties in the Confidential Materials being furnished, defendants respectfully request that this Court enter the attached Stipulated Protective Order pursuant to Federal Rule of Civil Procedure 26(c)(1).
4. The entry of this Stipulated Protective Order will not put any undue burden on this Court.
5. Plaintiff has stipulated to the Protective Order and does not oppose this motion.
WHEREFORE, the Parties respectfully request that this Court endorse and enter the Stipulated Protective Order attached hereto as Exhibit 1.
IT IS HEREBY STIPULATED AND AGREED by and between the parties hereto, through their undersigned counsel, that:
Good cause exists for the entry of this Protective Order. This Protective Order seeks to shield from disclosure those documents, information, or things that constitute, reflect, or contain trade secrets or other non-public, proprietary, or business-sensitive information or things, which are likely to include research, design, development, financial, corporate, or other commercial information concerning the parties. Plaintiff in this action intends to utilize Dr. Stephen F. Gass as an expert witness. Dr. Gass is a direct competitor of Defendants in the manufacture and design of table saws, and the disclosure of Defendants' trade secret, research, design, development, financial, and other particularly sensitive commercial information to Dr. Gass would result in irreparable harm to Defendants' business. Irreparable harm would further result from the disclosure of Defendants' trade secret, research, design, development, financial, and other particularly sensitive commercial information to the public.
This Protective Order and any amendments or modifications hereto shall govern any documents, information, or thing furnished by any party, including third parties (hereafter termed "conveying party"), to any other party (hereafter termed "receiving party") in connection with the discovery and pretrial phase of this action.
This Protective Order shall not preclude any party from withholding any document, information, or thing on the basis of the attorney-client privilege or attorney work-product doctrine, or otherwise affect any party's claim of privilege with respect to any such document information, or thing. The inadvertent production of any privileged document, information, or thing shall not be deemed a waiver of such privilege or otherwise affect any party's right to seek return of the inadvertently produced document, information, or thing. Further, this Protective Order shall not preclude any party from withholding any document, information, or thing, the disclosure of which might constitute a breach of an agreement with a third party, nor shall it preclude any party from moving the Court for an order directing the disclosure of such materials.
This Protective Order does not govern proceedings during trial, nor does it prohibit any party from seeking a protective order to govern proceedings during trial.
Subject to the terms set forth below, all information produced by a conveying party shall be used by the parties receiving the information solely for the purposes of preparing for and conducting this action or in other related actions in which counsel for Plaintiff herein also represents the plaintiff or plaintiffs and in which the conveying party has been named as a defendant, and the information shall not be used for any other purpose.
"CONFIDENTIAL MATERIALS" are any documents, information, or things that constitute, reflect, or contain trade secrets or other non-public, proprietary, or business-sensitive information or things, including, without limitation, confidential research, design, development, financial, corporate, or other commercial information belonging to or concerning a party or conveying party and that a party or conveying party designates as "CONFIDENTIAL" or "CONFIDENTIAL-2" as described below.
"Confidentiality Pledge" shall mean an undertaking, in the form attached hereto as Exhibit A, to be bound by the provisions of this Protective Order.
"Inadvertent Production" shall mean unintentional or accidental production of privileged documents, information, or things for whatever reason, irrespective of whether: (i) such production was careless, reckless, or negligent; or (ii) the precautions taken to avoid such inadvertent production were inadequate.
a. Documents, information and things produced by a party during the course of this litigation, including but not limited to responses to discovery requests and interrogatories, that are appropriately "CONFIDENTIAL MATERIALS" within the definition provided by Section 2 of this Protective Order may be designated by such party as "CONFIDENTIAL" or "CONFIDENTIAL-2" at the time of production. After such time, a document, information, or thing may be designated as "CONFIDENTIAL" or "CONFIDENTIAL-2" in writing, by any party, provided that any such designation shall be within a reasonable time after disclosure. In addition, within one month of the date of this Protective Order, any party may designate as "CONFIDENTIAL" or "CONFIDENTIAL-2" a document, information, or thing previously produced in this action.
b. Documents, information, and things produced by a party during the course of this litigation, including but not limited to responses to discovery requests and interrogatories, that the producing party has designated as "CONFIDENTIAL" or "CONFIDENTIAL-2" shall be designated by the conveying party as containing "CONFIDENTIAL" or "CONFIDENTIAL-2" information by placing a "CONFIDENTIAL (or CONFIDENTIAL-2) — Subject to Protective Order" legend on each page and each thing, by so indicating in any other reasonable manner appropriate to the form in which the documents, information, or things are made available to the receiving party, or alternatively, by advising the receiving party in writing as to the particular documents, information, or things designated "CONFIDENTIAL" or "CONFIDENTIAL-2."
c. A party may designate information disclosed at a deposition that represents "CONFIDENTIAL MATERIALS" as defined by Section 2 of this Protective Order, including questions, testimony, documents or exhibits, as "CONFIDENTIAL" or "CONFIDENTIAL-2" by requesting that the reporter so designate all or part of the deposition transcript at the time of the deposition or by requesting such designation in writing within a reasonable time after receipt of the deposition transcript. Where only a portion of a deposition transcript contains "CONFIDENTIAL" or "CONFIDENTIAL-2" information, only such portion of the transcript may be so designated. Any portions of a deposition transcript designated "CONFIDENTIAL" or "CONFIDENTIAL-2" and any deposition exhibits so designated shall be bound separately and treated accordingly.
d. Any party invoking "CONFIDENTIAL" or "CONFIDENTIA2" protection during a deposition may exclude from the room any person who is not authorized under this Protective Order to receive information designated "CONFIDENTIAL" or "CONFIDENTIAL-2."
e. Any designation of discovery responses, motion papers, briefs, memoranda or any other papers filed or lodged with the Court and/or served on opposing counsel as "CONFIDENTIAL" or "CONFIDENTIAL-2" shall be made when such papers are filed, lodged and/or served. The filing or lodging with the Court of any document containing "CONFIDENTIAL" or "CONFIDENTIAL-2" information shall be done in conformance with Section 5 of this Protective Order.
f. A party may designate information disclosed at a hearing as "CONFIDENTIAL" or "CONFIDENTIAL-2" by requesting, at the time the information is proffered or adduced, that the Court receive the information in camera and designate the transcript appropriately.
g. In the event that a party's motion papers, briefs, memoranda, discovery requests, requests for admissions, or other papers of any kind contain another party's "CONFIDENTIAL" or "CONFIDENTIAL-2" information, the papers shall be designated as "CONFIDENTIAL" or "CONFIDENTIAL-2" and shall be treated accordingly.
h. All documents, including attorneys notes and abstracts, that contain another party's "CONFIDENTIAL" or "CONFIDENTIAL-2" information shall be treated as if such documents were also designated as "CONFIDENTIAL" or "CONFIDENTIAL-2."
i. The parties shall use reasonable care to avoid designating as "CONFIDENTIAL" or "CONFIDENTIAL-2" any document, information, or thing that is not entitled to such designation under Fed. R. Civ. Pro. 26(c)(7) or that is generally available to the public.
a. Documents, information, or things designated "CONFIDENTIAL" or "CONFIDENTIAL-2" shall not be made public by counselor persons entitled access to such materials under this Protective Order unless such materials become part of the public record of this action other than through a violation of this Protective Order, and shall not be disclosed to anyone other than this Court and the persons entitled access to such materials under this Protective Order.
b. All documents, information and things designated "CONFIDENTIAL" or "CONFIDENTIAL-2" may be used by persons to whom such documents, information, and things are properly disclosed pursuant to this Protective Order solely for purposes of pretrial preparation and proceedings in this action, trial of this action, and any appellate proceedings in this action, or pretrial preparations and proceedings, trial, and any appellate proceedings in any other action in which counsel for Plaintiff herein is also counsel for the plaintiff or plaintiffs and in which the conveying party has been named as a party. Such documents, information, and things shall be used for no other purpose unless and until agreed to in writing by all parties to this action or authorized by order of the Court. No person who receives any such document, information, or thing shall disclose it to any person for any purpose other than for pretrial preparation and proceedings in this action.
Notwithstanding the foregoing, the parties or their counsel may use any documents, information, or things disclosed in this action for purposes of pretrial, trial, or appellate proceedings in any other action in which the conveying party has been named as a Defendant and where the allegations concern design defects in power saws. Further, the parties or their counsel may use any documents, information, or things disclosed in this action which were created by or for (i) the Power Tool Institute ("PTI") joint venture regarding a blade contact injury avoidance system for table saws ("Blade Contact Joint Venture"), (ii) the PTI joint venture regarding mechanical guarding systems for table saws ("Guarding Joint Venture"), or (iii) any other PTI committee, in any other action in which a member of the particular PTI joint venture or committee is a Defendant and where the allegations concern design defects in power saws. Any such use of documents, information, or things in any such action shall be subject to the terms and conditions of this Protective Order unless and until a superseding order is entered.
c. Documents, information and things designated "CONFIDENTIAL" may be disclosed by the receiving party only to: (i) officers and employees of the receiving party who the receiving party reasonably and in good faith believes need to know in order for the receiving party to prepare for this action; (ii) counsel in this action, and such counsel's stenographic, clerical and paralegal employees whose functions require access to such "CONFIDENTIAL" information; (iii) court reporters and stenographers engaged to transcribe depositions or proceedings in this action; (iv) the Court and its employees; (v) employees of the designating party during the course of a deposition or other proceeding in this action; (vi) experts or consultants retained by the receiving party and whose advice and consultation arc being or will be used by the party in connection with this action, provided that such experts and consultants have first executed a Confidentiality Pledge; (vii) any non-party witness or any person reasonably anticipated to be a witness at a deposition or other proceeding in this action provided such person has executed a Confidentiality Pledge; and (viii) any other person, with the prior written approval of the designating party, provided such person has executed a Confidentiality Pledge.
d. Any and all Confidentiality Pledges signed by experts or consultants shall be maintained by the receiving counsel, but need not be produced to opposing counsel absent an order of the Court. All such Confidentiality Pledges shall be maintained by the receiving party's counsel. At such time that the parties identify experts pursuant to order of the Court or by supplementation pursuant to Fed. R. Civ. P. 26, a copy of the Confidentiality Pledge with respect to each identified expert shall be produced to the opposing counsel within ten days. At the conclusion of the litigation, counsel for each party shall deliver to opposing counsel a copy of each and every Confidentiality Pledge it obtained during the course of the litigation.
e. Documents, information and things designated "CONFIDENTIAL-2" may be disclosed by the receiving party as allowed in Sections 4(c) and 4(d) above, except that under no circumstances shall documents, information, or things designated "CONFIDENTIAL-2" or any of the information contained therein be released or disclosed to Stephen Gass or any agent or employee of SawStop, LLC; SawStop, Inc.; SD3, LLC; or any of their parents, subsidiaries, or affiliated companies. Plaintiff agrees to the use of this designation without waiving its right to challenge the withholding of any or all information from Stephen Gass. Such challenge, if any, shall be made by motion to the Court to lift all or part of any restraint from disclosing such information to Gass. See LR 37 Plaintiff agrees to abide by such designation until any such designation or restraint is lifted by consent or court order.
f. In the event that a party esires to provide access to or to disseminate CONFIDENTIAL MATERIALS to any person not otherwise entitled to access under this Protective Order, th party may move the Court for an Order that such person be given access thereto Following LR 37. In the event that the motion is granted, such person may have access to CONFIDENTIAL MATERIALS after first signing a Confidentiality Pledge, a copy of which shall be forwarded promptly thereafter to opposing counsel.
g. Nothing herein shall restrict a party's use of its own materials that it produces in discovery.
h. Nothing herein shall restrict a party's use of information which (i) the conveying party agrees, or the Court rules, is already public knowledge, (ii) the conveying party agrees, or the Court rules, has become public knowledge other than as a result of a violation of this Protective Order or by any other unlawful means, (iii) was already known to the receiving party under conditions such that its use and/or public disclosure by the receiving party would not violate some obligation to another, which knowledge is established by pre-production documentation, or (iv) has come or shall come into the receiving party's legitimate possession independently of the conveying party under conditions such that its use and/or public disclosure by the receiving party would not violate some obligation to another.
i. Nothing herein shall restrict or prohibit discussions with any person about CONFIDENTIAL MATERIALS if said person already has or obtains legitimate possession thereof, without restrictions which would independently prohibit such discussion.
The Court has not authorized in advance the filing of any document under seal. In accordance with Local Rule 79-5.1, if any papers to be filed with the Court contain protected information, the proposed filing shall be accompanied by an application to file the papers, or the portion thereof containing the protected information, under seal and that the application shall be directed to the judge to whom the papers are directed. A redacted copy of any document filed under seal must be filed in the public record.
Any document filed or lodged with the Court in connection with proceedings in this action that constitutes or contains "CONFIDENTIAL" or "CONFIDENTIAL-2" documents, information, or things shall be filed with the Clerk of the Court in a sealed envelope, prominently endorsed with the caption of the case, an indication of the general nature of the contents, and the following legend:
Any motion filed with respect to the protective order or documents, information, or things labeled "CONFIDENTIAL" or "CONFIDENTIAL-2" must comply with Local Rule 37.
In the event that a conveying party inadvertently fails to designate documents, information, or things as "CONFIDENTIAL" or "CONFIDENTIA2," the conveying party may later correct the error by notifying the receiving party of the error in writing and making the appropriate designation in accordance with paragraph 3 above. The receiving party shall thereafter treat the documents, information, or things in accordance with the designation and shall take reasonable steps to ensure that any person to whom the receiving party has previously disclosed the documents, information, or things treats them in accordance with the designation.
If the conveying party chooses to produce new copies of the documents, information, or things with the appropriate "CONFIDENTIAL" or "CONFIDENTIAI-2" designation, the receiving party shall return any copies of the documents, information, or things that were inadvertently produced without the proper "CONFIDENTIAL" or "CONFIDENTIAL-2" designation to the conveying party without retaining any copies thereof. The receiving party shall also make reasonable efforts to obtain and return any improperly designated documents, information, or things and preclude their dissemination and use by any person to whom the receiving party has previously disclosed the improperly designated documents, information, or things.
a. A party may challenge any other party's designation of any document, information, or thing as "CONFIDENTIAL" or "CONFIDENTIAL-2" at any time. Failure of a party expressly to challenge a designation shall not constitute a waiver by such party of the right to assert at a subsequent time that the designation is not appropriate.
b. In case of disagreement with the designation of any document, information, or thing as "CONFIDENTIAL" or "CONFIDENTIAL-2," a party may request in writing that the designating party change the designation.
c. If a party denies a request to change the designation of any document, information, or thing as "CONFIDENTIAL" or "CONFIDENTIAL-2" and the requesting party disagrees with the designating party's reasons for such denial or the designating party fails to respond to the request, the requesting party may apply to the Court, in a manner consistent with the Court's Individual Rules applicable to discovery disputes, for an Order removing or changing the designation in the manner stated in the request. On such application, the designating party shall have the burden of proving that the material in question is within the scope of protection afforded by Rule 26(c) of the Federal Rules of Civil Procedure. No use or disclosure of any document, information, or thing designated "CONFIDENTIAL" or "CONFIDENTIAL-2" shall be made, except as otherwise authorized by this Protective Order, unless and until the parties agree or the Court orders that the designation shall be removed.
a. In the event of an inadvertent disclosure of a party's "CONFIDENTIAL" or "CONFIDENITAL-2" documents, information, or things to a person not authorized by this Protective Order to receive such materials, the party making the inadvertent disclosure shall, upon learning of the disclosure:
To facilitate the timely production of voluminous documents in compliance with the parties' respective requests for production, the inadvertent production of any privileged document, information, or thing shall not be deemed a waiver of such privilege or otherwise affect any party's right to seek return of the inadvertently produced document, information, or thing. The party receiving a document, information, or thing that appears to be privileged shall promptly notify the conveying party upon becoming aware that the document, information, or thing may have been inadvertently produced and, in any event, before making any use of said document, information, or thing in its submissions to the Court or otherwise. The fact that a document, information, or thing is listed on a party's privilege log shall be prima facie evidence that such document, information, or thing has been inadvertently produced, but the failure to list such document, information, or thing shall not preclude the conveying party from claiming that the document, information, or thing is privileged and was inadvertently produced.
In the event documents, information, or things which are claimed to be privileged or subject to the work product doctrine are inadvertently produced during discovery, such documents, information, or things shall be returned by the receiving party within two days of any written request therefor, unless the receiving party challenges the privileged nature of the documents, information, or things in which case the conveying party shall be entitled to make an application to the Court for the return of such documents, information, or things. A claimed lack of privilege (and not the inadvertent production) shall be the sole ground for refusing to return inadvertently produced privileged documents, information, or things and such documents, information, or things shall only be retained while an application to the court is pending. While such application is pending, the receiving party shall not use or divulge the contents of such documents, information, or things except to the Court under seal. If the Court finds that the documents, information, or things in question are privileged, the receiving party shall promptly return all copies of the inadvertently produced documents, information, or things and not retain any copies, notes or summaries of said documents, information, or things. The receiving party shall also make reasonable efforts to obtain and return any inadvertently produced document(s), information, or thing(s) and preclude their dissemination and use by any person to whom the receiving party has previously disclosed the inadvertently produced document(s), information, or thing(s).
Discovery in this proceeding may involve disclosure by a non-party of its "CONFIDENTIAL" or "CONFIDENTIAL-2" documents, information, or things. At the option of a non-party, such documents, information, or things may be produced subject to the provisions of this Protective Order and, in that event, shall provide the non-party, with respect to the information produced by such non-party in connection with the discovery and pre-trial phase of this action, with all of the rights and obligations of a party as created by this Protective Order.
a. In the event any person or party having possession, custody or control of any document, information, or thing designated as "CONFIDENTIAL" or "CONFIDENTIAL-2" by another party pursuant to the terms of this Protective Order receives a subpoena or other process or order to produce the document, information, or thing, the subpoenaed person or party shall promptly (within five business days):
b. If the designating party makes a motion to quash or modify the subpoena, process, or order, the subpoenaed party shall not disclose, pursuant to the subpoena, process, or order, any document, information, or thing designated as "CONFIDENTIAL" or "CONFIDENTIAL-2" by the designating party except as required by an order or other process of the court having jurisdiction over the matter, and then only in accordance with such order or process.
a. Nothing herein shall restrict the power of the Court to modify this Protective Order or any term hereof for good cause shown.
b. Nothing herein shall preclude any party from applying to the Court for relief from this Protective Order, or from applying to the Court for further or additional protective orders, or from agreeing between themselves in writing, to modification of this Protective Order, subject to the approval of this Court.
c. Nothing herein shall preclude any party from enforcing its rights against any other party or any non-party believed to be violating its rights.
Neither the taking of, nor the failure to take, any action to enforce the provisions of this Protective Order, nor the exercise of, or failure to exercise, any rights created by this Protective Order, shall constitute a waiver of any right to seek or obtain protection or relief other than as specified herein or to pursue any claim or defense in this action or any other action. This Protective Order shall not affect the rights of the parties to object to discovery on grounds other than those related to trade secrets or confidential or proprietary information claims, nor shall it relieve a party of its obligation to respond properly to discovery requests.
At the conclusion of this action and all other related actions in which counsel for plaintiff herein also represents the plaintiff or plaintiffs and in which the conveying party has been named as a defendant, each receiving party shall either return all CONFIDENTIAL MATERIALS of a conveying party in its possession, custody or control, and any copies thereof, to counsel for the conveying party, or shall otherwise dispose of such CONFIDENTIAL MATERIALS in a manner agreeable to both parties, except that trial counsel for the receiving party may retain work-product derived from the CONFIDENTIAL MATERIALS of a conveying party. With respect to any such retained work-product, and unless otherwise agreed to, this Protective Order shall survive the final termination of this action and all other related actions as described above in this paragraph, except to the extent that the information in any CONFIDENTIAL MATERIALS is or becomes known to the public through no fault of the receiving party.
Any violation of this Stipulated Protective Order during the pendency of this action or thereafter may be punishable as a contempt of court and may be grounds for a Motion for Sanctions to be filed in the Federal District Court.
a. Upon a written request to any counsel for plaintiff ("Plaintiff's Counsel") seeking documents produced in discovery in any of their power saw actions pending in this Court made by a plaintiff's counsel ("Requesting Counsel") in another pending power saw action in another jurisdiction which involves similar allegations of a design defect in a power saw ("Other Action").
b. When identifying documents they intend to produce to Requesting Counsel, Plaintiffs' Counsel shall limit the intended production as follows: (a) the internal company documents of a particular Defendant may only be identified for production in connection with a pending case against the same Defendant; and (b) documents created by or for (i) the Power Tool Institute ("PTI") joint venture regarding a blade contact injury avoidance system for table saws ("Blade Contact Joint Venture"), (ii) the PTI joint venture regarding mechanical guarding systems for table saws ("Guarding Joint Venture"), or (iii) any other PTI committee, may only be identified for production in connection with a pending case in which a member of the particular PTI joint venture or committee is a Defendant.
c. Plaintiffs' Counsel shall not produce any documents to Requesting Counsel without receiving an executed copy of a stipulated protective order so ordered and entered in the Other Action that is substantially in the same form as the protective order that has been entered by this Court in these power saw actions and provides the same level of protection for documents designated Confidential or Confidential-2 and provides protection for the confidential documents that will be produced by Plaintiffs' Counsel to Requesting Counsel. A copy of such protective order shall be provided to Defendants' Counsel at the same time as the Written Notice.
d. After reviewing the Written Notice, Plaintiffs' Counsel's designation of documents that they intend to produce, and the executed stipulation and protective order entered in the Other Action, Defendants' Counsel shall have 30 days to file a motion objecting to any such disclosure. No production of documents shall be made by Plaintiffs' Counsel to Requesting Counsel until the expiration of this 30-day period and, if such a motion is made by Defendants' Counsel, until further order of this Court.
The parties to this Protective Order agree that they will promptly file a joint motion for entry of this Stipulated Protective Order. The parties further agree that they will tender this Stipulated Protective Order to the Court to be so ordered and that, prior to approval by the Court, this Stipulated Protective Order shall be effective and binding on the parties hereto as if approved by the Court.
SO ORDERED,
I, _________________ declare under penalty of perjury under the laws of the United States that:
1. My present address is _______________________________________________ ________________________________________________________________________.
2. My present employer is _______________________________________________ _____________________________________________ and the address of my present employer is
3. My present occupation or job description is _________________________________________ ________________________________________________________________________.
4. I have received a copy of the Protective Order in this action signed by the Court and dated _________.
5. I have carefully read and understand the provisions of the Protective Order.
6. I will comply with and be bound by all of the provisions of the Protective Order unless and until modified by Order of the Court.
7. I will hold in confidence and will not disclose to anyone not qualified under the Protective Order, and will use only for purposes of this action, any CONFIDENTIAL MATERIALS which are disclosed to me. I will take appropriate steps and assume full responsibility to assure that any other people, e.g., clerical or secretarial personnel, working for me will abide by the Protective Order.
8. I will return all CONFIDENTIAL MATERIALS that come into my possession, and documents or things that I have prepared relating thereto, to counsel for the party by whom I am employed or retained when requested to do so by that counsel.
9. I declare further that I understand that if I violate the provisions of the Protective Order, I may be subject to sanctions by the Court and that any party may assert other remedies against me. I hereby submit to the jurisdiction of this Court for the purpose of enforcement of the Protective Order of this action.
