CRAIG B. SHAFFER, Magistrate Judge.
The parties to this Agreed Protective Order have agreed to the terms of this Order; accordingly, it is ORDERED:
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(b) The Highly Confidential designation should be used as sparingly as possible, and such designations should be carefully reconsidered, upon request, in order to avoid where reasonably possible the inconveniences and inefficiencies of filing materials under seal. To the extent a receiving party determines in good faith that the assistance of an in-house party representative, such as an officer or in-house counsel of a party, is reasonably necessary to the conduct of the litigation in which the information is disclosed, and that such assistance requires in-house access to Highly Confidential Information, then the Parties shall negotiate in good faith to determine whether and under what terms such limited access should be granted. If the Parties reach agreement in writing, then such agreement will serve to modify this Order for that limited purpose. If, after a period of seven calendar days, the Parties are unable to reach agreement, then the Party seeking access to Highly Confidential Information for an in-house representative may seek relief from the Court.
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(a) A party may designate a Document as Confidential or Highly Confidential for protection under this Order by placing or affixing the appropriate designation (see Section 2 above) on the Document and on all copies in a manner that will not interfere with the legibility of the Document. As used in this Order, "copies" includes electronic images, duplicates, extracts, summaries or descriptions that contain the Confidential Information. The designation shall be applied prior to or at the time the Documents are produced or disclosed. Application of the Confidential or Highly Confidential designation to a Document does not mean that the Document has any status or protection by statute or otherwise except to the extent and for the purposes of this Order. Any copies that are made of any Documents so designated shall also be so marked, except that indices, electronic databases, or lists of Documents that do not contain substantial portions or images of the text of marked Documents and do not otherwise disclose the substance of the Confidential or Highly Confidential Information are not required to be marked.
(b) The designation of a Document as Confidential or Highly Confidential Information is a certification by an attorney or a party appearing pro se that he or she believes, in good faith
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Deposition testimony is protected by this Order only if designated as Confidential or Highly Confidential on the record at the time the testimony is taken (e.g., during the deposition or at the end of the deposition while the court reporter and party representatives are still present). Such designation shall be specific as to the portions that contain Confidential or Highly Confidential Information. Deposition testimony so designated shall be treated as Confidential or Highly Confidential Information protected by this Order until fourteen days (or a longer period, if agreed to in writing by both parties) after delivery of the transcript by the court reporter to any party or the witness. Within fourteen days after delivery of the transcript (or a longer period, if agreed to in writing by both parties), a designating party may serve a Notice of Designation to all parties of record identifying the specific portions of the transcript that are designated Confidential or Highly Confidential Information, and thereafter those portions identified in the Notice of Designation shall be protected under the terms of this Order. The failure to serve a timely Notice of Designation waives any designation of deposition testimony as Confidential or Highly Confidential Information that was made on the record of the deposition, unless otherwise ordered by the Court.
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(a) General Protections. Confidential and Highly Confidential Information shall not be used or disclosed by the parties, counsel for the parties, or any other persons or entities identified in subparagraph (b) for any purpose whatsoever other than in this litigation.
(b) Limited Third-Party Disclosures for Confidential Information. The parties and counsel for the parties shall not disclose or permit the disclosure of any Confidential Information to any third person or entity except as set forth in subparagraphs (1)-(9). Subject to these requirements, the following categories of persons are allowed to review Confidential Information:
(c) Further, prior to disclosing "Confidential Information" or "Highly Confidential Information" to a receiving party's proposed expert or consultant, and in addition to providing a signed Acknowledgment of Understanding and Agreement to Be Bound, the receiving party must provide to the producing party the resume or curriculum vitae of the proposed expert or consultant, the expert or consultant's business affiliation, and any current and past consulting relationships in the industry within the previous five (5) years. The producing party will thereafter have five (5) business days from receipt of the Acknowledgment of Understanding and Agreement to Be Bound and related expert information to object to any proposed individual. The objection must be made for good cause and in writing, stating with particularity the reasons for the objection. Failure to object within five (5) business days constitutes approval. If the parties are unable to resolve any objection, the receiving party may apply to the presiding judge to resolve the matter. There will be no disclosure to any proposed individual during the five (5) business day objection period, unless that period is waived by the producing party, or if any objection is made, until the parties have resolved the objection, or the presiding judge has ruled upon any resultant motion.
(d) Limited Third-Party Disclosures for Highly Confidential Information. The parties and counsel for the parties shall not disclose or permit the disclosure of any Highly Confidential Information to any third party or entity except as set forth in, and subject to the requirements described in, subparagraphs (b)(1) and (b)(3)-(9), provided, however, that Highly Confidential Information filed with the Court under subparagraph (b)(4) should be filed under seal or other appropriate measures should be taken to avoid public disclosure.
(e) Control of Documents. The parties and their counsel shall make reasonable efforts to prevent unauthorized or inadvertent disclosure of Confidential and Highly Confidential Information.
(f) Absent the written consent of the producing Party, any counsel or representative of counsel, or receiving Party or any agent of the receiving Party that sees, reviews, participates in discussions that reveal any of the contents of, or otherwise accesses Technical Information properly designated as Confidential Information or Highly Confidential Information shall not be involved in the prosecution of patents or patent applications relating to roof mount assemblies (including but not limited to any application claiming priority to the asserted patents, any application claiming priority to an application in the family of applications to which the asserted patents claim priority, or any application otherwise related to the patents asserted in this action before any foreign or domestic agency, including the United States Patent and Trademark Office). For purposes of this paragraph, "prosecution" means any involvement for purposes of determination of claim amendments, claim limitations, or claim drafting in original prosecution or reissue proceedings. "Prosecution" does not include participation in inter partes review proceedings. For avoidance of doubt, nothing in this paragraph shall prevent any individual from participation in inter partes review proceedings, or from participating in determining claim amendments in connection with inter partes review proceedings. This prohibition on patent prosecution shall only begin when this Agreed Protective Order has been entered AND Confidential or Highly Confidential Technical information has been received by the affected individual, and shall end one year (1) after the final resolution of this action, including all appeals. This prosecution bar is personal to the person receiving such information and shall not be imputed to any other person or entity.
(g) No person shall submit or disclose any "Confidential" or "Highly Confidential — Outside Counsel Eyes Only" Discovery Material, or information derived therefrom, for purposes other than the prosecution or defense of this action, including, without limitation, for the purposes of preparing, filing or prosecuting any patent application, continuation or divisional patent application, reissue patent application or request for re-examination or in any United States Patent and Trademark Office post-grant proceeding, such as reexamination or inter partes review, or in any proceeding in a foreign patent office. Notwithstanding anything to the contrary in this Agreement, any Party or individual who is subject to this Protective Order and who believes in good faith that he, she, or it has or may have conflicting legal obligations, such as, for example, co-existing obligations to (a) abide by the terms of this Protective Order and (b) disclose Confidential or Highly Confidential material to the USPTO pursuant to a duty of candor or to a third party in response to a valid subpoena, may seek judicial relief (for example, leave from this Court to amend the Protective Order) to try to resolve the conflict or alleged conflict.
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(a) Meet and Confer. A party challenging the designation of Confidential or Highly Confidential Information must do so in good faith and must begin the process by conferring directly with counsel for the designating party. In conferring, the challenging party must explain the basis for its belief that the confidentiality designation was not proper and must give the designating party an opportunity to review the designated material, to reconsider the designation, and, if no change in designation is offered, to explain the basis for the designation. The designating party must respond to the challenge within five (5) business days.
(b) Judicial Intervention. A party that elects to challenge a confidentiality designation may file and serve a motion that identifies the challenged material and sets forth in detail the basis for the challenge. Each such motion must be accompanied by a competent declaration that affirms the movant has complied with the meet and confer requirements of this procedure. The burden of persuasion in any such challenge proceeding shall be on the designating party. Until the Court rules on the challenge, all parties shall continue to treat the materials as Confidential or Highly Confidential Information under the terms of this Order.
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(a) If a receiving party is served with a discovery request, subpoena or an order issued in other litigation that would compel disclosure of any material or Document designated in this action as Confidential Information, the receiving party must so notify the designating party, in writing, immediately and in no event more than five court days after receiving the subpoena or order. Such notification must include a copy of the subpoena or court order.
(b) The receiving party also must immediately, and in no event more than five court days after receiving the discovery request, subpoena or order, inform in writing the party who caused the subpoena or order to issue in the other litigation that some or all of the material covered by the subpoena or order is the subject of this Order. In addition, the receiving party must promptly deliver a copy of this Order to the party in the other action that caused the subpoena to issue.
(c) The purpose of imposing these duties is to alert the interested persons to the existence of this Order and to afford the designating party in this case an opportunity to try to protect its Confidential or Highly Confidential Information in the court from which the subpoena or order issued. The designating party shall bear the burden and the expense of seeking protection in that court of its Confidential or Highly Confidential Information, and nothing in these provisions should be construed as authorizing or encouraging a receiving party in this action to disobey a lawful directive from another court. If a designating party does not take steps to prevent disclosure within fourteen (14) days of the date written notice is given, the Party to whom the subpoena or other request is directed may produce such documents in response thereto so long as they are designated under any applicable protective order in the other litigation at an equivalent or greater level of protection as that afforded by this Order. The party to whom the subpoena or other request is directed also may produce such documents as required to comply with any legal duty or obligation imposed by the court or other judicial, arbitral, administrative, or legislative body.
(d) The obligations set forth in this paragraph remain in effect while the party has in its possession, custody or control Confidential or Highly Confidential Information of the other party to this case.
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(a) Order Continues in Force. Unless otherwise agreed or ordered, this Order shall remain in force after dismissal or entry of final judgment not subject to further appeal.
(b) Obligations at Conclusion of Litigation. Within sixty-three days after dismissal or entry of final judgment not subject to further appeal, all Confidential or Highly Confidential Information, including copies as defined in ¶ 3(a), shall be returned to the producing party unless: (1) the Document has been offered into evidence or filed without restriction as to disclosure; (2) the Parties agree to destruction to the extent practicable in lieu of return; or (3) as to Documents bearing the notations, summations, or other mental impressions of the receiving party, that party elects to destroy the Documents and certifies to the producing party that it has done so; or (4) the receiving party shall destroy Documents containing Confidential or Highly Confidential Information and certify the fact of destruction, and that the receiving party shall not be required to locate, isolate and return e-mails (including attachments to e-mails) that may include Confidential or Highly Confidential Information, or Confidential or Highly Confidential Information contained in deposition transcripts or drafts or final expert reports.
(c)
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So Ordered.
WE SO MOVE and agree to abide by the forms of this Order.
The undersigned hereby acknowledges that he/she has read the Protective Order dated August __, 2015 entered in the above-captioned action and attached hereto, understands the terms thereof, and agrees to be bound by its terms. The undersigned submits to the jurisdiction of the Colorado courts in matters relating to the Protective Order and understands that the terms of the Protective Order obligate him/her to use materials designated as Confidential or Highly Confidential Information in accordance with the Order solely for the purposes of the above-captioned action, and not to disclose any such Confidential or Highly Confidential Information to any other person, firm, or concern.
The undersigned acknowledges that violation of the Protective Order may result in penalties for contempt of court.