PAUL L. ABRAMS, Magistrate Judge.
The Court recognizes that there is a possibility that at least some of the documents, electronic data, and information being sought through discovery in the above-captioned action may, for competitive or other reasons, normally kept confidential by the parties.
1. The Parties believe there is good cause for entry of a protective order in this action to protect and safeguard the confidentiality of their material, competitively-sensitive documents.
2. The Parties' contracts with television studios contain sensitive, non-public sales and financial information, revenue-sharing information and contract terms. The Parties have invested time and money to build their contracts with brands and television shows, networks and production companies.
3. The Parties' sales and revenue documents contain competitive and sensitive financial performance and revenue information. Such information includes information on how well (or how poorly) each brand and each product category performs, as well as information about the sales generated from each of the television shows. This information could be valuable to competitors because it could allow them to target the brands, brand categories and shows that are best-performing and could provide them with financial information that could be used to approach and pitch competitors' brands and television shows.
The Parties have agreed to be bound by the terms of this Protective Order ("Order") in this action, subject to entry of this Stipulation and Order by the Court.
The Materials to be exchanged throughout the course of the litigation between the parties may contain trade secret or other confidential research, technical, cost, price, marketing, or other commercial information, as is contemplated by Federal Rule of Civil Procedure 26(c)(7). The purpose of this Order is to protect the confidentiality of such Materials as much as practically possible during the litigation, consistent with the constitutional mandate of open judicial proceedings. NOW THEREFORE:
1. The term "Confidential Information" shall mean and include information disclosed or to be disclosed during this litigation, including without limitation information contained in Materials and information provided in documents, answers to interrogatories, responses to requests for admission, trial testimony and transcripts thereof, deposition testimony and transcripts thereof, including data, summaries, compilations, copies, abstracts, and any other format reproducing or capturing such information or otherwise derived from such information that meets the designation requirements of "CONFIDENTIAL", or "CONFIDENTIAL-OUTSIDE COUNSEL ONLY", as set out below.
2. The term "Materials" shall include but is not limited to documents, agreements, contracts, correspondence, e-mails, memoranda, bulletins, blueprints, specifications, customer or contact lists or other matter that identify customers or potential customers, price lists or schedules or other matter identifying pricing, minutes, telegrams, letters, statements, canceled checks, contracts, invoices, drafts, books of account, worksheets, notes of conversations, desk diaries, appointment books, expense accounts, recordings, photographs, motion pictures, compilations from which information can be obtained and translated into reasonably useable form through detection devices, sketches, drawings, notes (including laboratory notebooks and records), reports, instructions, disclosures, other writings, models and prototypes, and other physical objects.
3. The term "Counsel" shall mean (i) outside counsel who appear in the action in any capacity, whether on the pleadings, on the record in a deposition or in a hearing, or in any other circumstance associated with this action, as counsel for a party, including without limitation, their partners, principals, counsel, associates, employees, and contract attorneys of such outside counsel to whom it is reasonably necessary to disclose the Confidential Information for this action, including supporting personnel employed by the attorneys, such as paralegals, legal secretaries, and law clerks, and/or (ii) independent shorthand reporters retained to record and transcribe testimony in this case and videographers retained to film testimony in this action.
4. The term "Independent Expert" shall mean a person with specialized knowledge or experience in a matter pertinent to the case who has been retained by Counsel to serve as an expert witness or as a litigation consultant in this case, and who is not a current employee of a party or of a competitor of a party and who, at the time of retention, is not anticipated to become an employee of, or a non-litigation consultant of a party or competitor of a party.
5. Each party to this litigation that produces or discloses any Confidential Information and/or Materials, or any other information or Materials that the producing party believes should be subject to this Order, may designate the same as "CONFIDENTIAL", or "CONFIDENTIAL — OUTSIDE COUNSEL ONLY" as set forth herein:
6. Whenever a deposition taken on behalf of any party involves a disclosure of Confidential Information of any party:
7. All Confidential Information designated as "CONFIDENTIAL" or "CONFIDENTIAL-OUTSIDE COUNSEL ONLY" and in the possession of the receiving party solely by reason of the production by the producing party must not be disclosed by the receiving party to anyone other than those persons permitted access in this Order and must be handled in a manner set forth below and, in any event, must not be used for any purpose other than in connection with this litigation, unless and until such designation is removed either by agreement of the parties, or by order of the Court.
8. All Confidential Information designated as "CONFIDENTIAL-OUTSIDE COUNSEL ONLY" and in the possession of the receiving party solely by reason of the production by the producing party may be viewed only by Counsel for the receiving party and by Independent Experts. In advance of disclosing any Confidential Information to any Independent Expert must first provide written notice to Counsel for the producing party, which notice shall include: (a) the individual's name and business title, (b) business address and country of residence, (c) business or profession, (d) the individual's curriculum vitae, (e) any previous or current relationship (personal or professional) with any of the parties, (f) a list of other cases in which the individual has testified (at trial or deposition) within the last six years, (g) a list of all companies with which the individual has consulted or by which the individual has been employed within the last four years and the time period(s) and brief description and subject matter of each consultancy or employment, and (h) an executed copy of the form attached hereto as Exhibit A. Any objection by the producing party to an Independent Expert receiving Confidential Information must be made in writing within ten days after receipt of the identification of proposed Independent Expert, followed by a motion by the party objecting to the Independent Expert within ten days thereafter. Confidential Information may be disclosed to an Independent Expert if the initial ten day period has expired and no objection has been made, or the subsequent ten day period has expired and no motion has been filed and served. The approval of Independent Experts and their access to any Confidential Information shall not be unreasonably withheld, and any party objecting to an Independent Expert, including her/his/its access to any Confidential Information, shall have the burden of proving that the Independent Expert should not be granted access to Confidential Information because there is a material risk that such Independent Expert would improperly use or disclose such Confidential Information.
9. All Confidential Information designated "CONFIDENTIAL" and in the possession of the receiving party solely by reason of the production by the producing party may be viewed only by Counsel for the receiving party, by Independent Experts, and by the additional individuals listed below, provided each such individual has read this Order in advance of disclosure and has agreed in writing to be bound by its terms:
10. With respect to all Confidential Information designated as "CONFIDENTIAL", or "CONFIDENTIAL-OUTSIDE COUNSEL ONLY", any person indicated on the face of the document to be its originator, author or the recipient of a copy of the document, may be shown the same without restriction.
11. All Confidential Information which has been designated as "CONFIDENTIAL" or "CONFIDENTIAL-OUTSIDE COUNSEL ONLY" by the producing or disclosing party, and any and all reproductions of that information and/or Material, must be retained in the custody of the Counsel for the receiving party, except that Independent Experts authorized to view such information under this Order may retain custody of copies such as are necessary for their participation in this litigation.
12. In the event of a dispute regarding the designation or disclosure of confidential information, the procedure for obtaining a decision from the Court is that set forth in Local Rule 37. If the parties want to file the Joint Stipulation required by Local Rule 37 under seal, the parties may file a stipulation to that effect or the moving party may file an ex parte application making the appropriate request. The parties must set forth good cause in the stipulation or ex parte application as to why the Joint Stipulation or portions thereof should be filed under seal, and the party asserting that the information constitutes Confidential Information shall have the burden of proving this to be the case.
13. If Confidential Information is included in any papers to be filed in Court, such papers shall be accompanied by an application to file the papers, or the confidential portion thereof — under seal; the application must show good cause for the under seal filing. The application shall be directed to the judge to whom the papers are directed. Pending the ruling on the application, the papers or portions thereof subject to the sealing application shall be lodged under seal.
14. Once the case proceeds to trial, all of the court-filed information that was designated as confidential and/or kept and maintained pursuant to the terms of the Protective Order becomes public and will be presumptively available to all members of the public, including the press, unless compelling reasons supported by specific factual findings to proceed otherwise are made to the district judge in advance of the trial.
15. All Confidential Information must be held in confidence by those authorized by this Order to inspect or receive it, and must be used only for purposes of this action. Counsel for each party, and each person receiving or accessing Confidential Information must take reasonable precautions to prevent the unauthorized or inadvertent disclosure of such Confidential Information. If Confidential Information is disclosed to any person other than a person authorized by this Order, the party responsible for the unauthorized disclosure must immediately bring all pertinent facts relating to the unauthorized disclosure to the attention of the other parties and, without prejudice to any rights and remedies of the other parties, make every effort to prevent further disclosure by the party and by the person(s) receiving the unauthorized disclosure.
16. No party will be responsible to another party for disclosure of Confidential Information under this Order if the Confidential Information in question is not labeled or otherwise designated in accordance with this Order.
17. If a party, through inadvertence, produced any Confidential Information without labeling or marking or otherwise designating it as such in accordance with this Order, the designating party may give written notice to the receiving party that the document or thing produced is to be designated, as appropriate, "CONFIDENTIAL", or "CONFIDENTIAL-OUTSIDE COUNSEL ONLY", and that the document or thing produced shall be treated as such in accordance with that designation under this Order. The receiving party shall treat such designated Confidential Information in accordance with this Order, once the designating party so notifies the receiving party. If the receiving party has disclosed such Confidential Information before receiving the designation, the receiving party must notify the designating party in writing of each such disclosure, and the receiving party will make every effort to prevent disclosure by the party and by the person(s) receiving such inadvertently produced Confidential Information. Counsel for the parties will agree on a mutually acceptable manner of labeling or marking the inadvertently produced Confidential Information as "CONFIDENTIAL", or "CONFIDENTIAL-OUTSIDE COUNSEL ONLY".
18. Nothing in this Order will prejudice the right of any party to object to the production of any discovery on the grounds that such Confidential Information is protected as privileged or as attorney work product.
19. Nothing in this Order will bar Counsel from rendering advice to their clients with respect to this litigation and, in the course thereof, relying on any Confidential Information designated as "CONFIDENTIAL", or "CONFIDENTIAL — OUTSIDE COUNSEL ONLY", provided that the contents of the Confidential Information must not be disclosed to those not authorized by this Order.
20. This Order shall be without prejudice to the right of any party to oppose production of any Confidential Information for lack of relevance or any other ground other than the mere presence of Confidential Information. The existence of this Order must not be used by either party as a basis for discovery that is otherwise improper under the Federal Rules of Civil Procedure.
21. Nothing in this Order will be construed to prevent disclosure of Confidential Information if such disclosure is required by law or by order of the Court.
22. Nothing in this Order will be construed to conflict with laws regulating the exportation of certain types of information, Materials, or devices outside the United States.
23. Unless otherwise agreed by the parties in writing, within sixty (60) days after the final disposition of this action, as defined below, each receiving party must return all Confidential Information to the producing party or destroy such material. Whether the Confidential Information is returned or destroyed, the receiving party must submit a written certification to the producing party (and, if not the same person or entity, to the designating party) by the 60-day deadline that (1) identifies (by category, where appropriate) all the Confidential Information that was returned or destroyed and (2) affirms that the receiving party has not retained any copies, abstracts, compilations, summaries or any other format reproducing or capturing any of the Confidential Information. Notwithstanding this provision, Counsel are entitled to retain an archival copy of all pleadings, motion papers, trial, deposition, and hearing transcripts, legal memoranda, correspondence, deposition and trial exhibits, expert reports, attorney work product, and consultant and expert work product, even if such materials contain Confidential Information. Any such archival copies that contain or constitute Confidential Information remain subject to this Protective Order as set forth herein. Even after Final Disposition of this litigation, the confidentiality obligations imposed by this Order will remain in effect until a designating party agrees otherwise in writing or a Court otherwise directs. As used herein, "Final Disposition" means the later of (1) dismissal of all claims and defenses in this action, with or without prejudice, and (2) final judgment in this action after the completion and exhaustion of all appeals, rehearings, remands, trials, or reviews of this action, including the time limits for filing any motions or applications for extension of time pursuant to applicable law.
24. The restrictions and obligations set forth in this Order shall not apply to any Confidential Information that (a) the parties mutually agree should not be subject to this Order; (b) the parties mutually agree, or the Court rules, is already public knowledge; (c) the parties mutually, or the Court rules, has become public knowledge other than as a result of disclosure by the receiving party, its employees, or its agents in violation of this Order; or (d) has come or will come into the receiving party's legitimate knowledge independently of the production by the designating party. Prior knowledge must be established by pre-production documentation.
25. The restrictions and obligations in this Order will not be deemed to prohibit discussions of any Confidential Information with anyone if that person already has or obtains legitimate possession of that information.
26. Transmission by facsimile is acceptable for all notification purposes within this Order.
27. This Order may be modified only by written agreement of the parties, subject to approval by the Court.
28. The Court may modify the terms and conditions of this Order for good cause, or in the interest of justice, or on its own order at any time in these proceedings. The parties prefer that the Court provide them with advance notice of the Court's intent to modify this Order and the content of the modifications, prior to entry of such an order.
29. Even after termination of this action, the confidentiality and other obligations imposed by this Order shall remain in effect until the producing party agrees otherwise in writing or the Court otherwise directs. Any Final Disposition of this action as to any or all parties will include a specific provision that the Court will retain jurisdiction to enforce the terms of this Order for a period of two (2) years following such Final Disposition unless otherwise ordered by the Court. The parties, Counsel, and any individual who receives any Confidential Information authorized by this Order consents to the personal jurisdiction of the Court for that purpose.
Based on the foregoing, and good cause appearing therefore,
IT IS SO ORDERED.
I, ______________________ [print or type full name], declare as follows:
1. I am employed as ___________________ by ___________________________.
2. I have received and read a copy of the Protective Order that was issued by the United States District Court for the Central District of California in this action, and understand and agree to abide by its terms.
3. I agree to keep confidential all Confidential Information provided to me in this matter, in accordance with the restrictions in the Protective Order.
4. I acknowledge that by signing this agreement, I am subjecting myself to the jurisdiction of the United States District Court for the Central District of California with respect to enforcement of the Protective Order.
5. I understand that any disclosure or use of Confidential Information in any manner contrary to the provisions of the Protective Order may subject me to sanctions for contempt of court.
6. I authorize ___________________ to accept service of process on my behalf in any action or proceeding for contempt or to enforce the terms of the Protective Order.
I declare under penalty of perjury under the laws of the United States that the foregoing is true and correct.
