STIPULATED CONFIDENTIALITY AND PROTECTIVE ORDER
WENDELIN I. LIPP, Bankruptcy Judge
WHEREAS, Cresta Miller and PAC Services, LLC (collectively" Creditors") and Wade Stout Williams and PAC Outsourcing, LLC ("Debtors") (collectively the "Parties"), have determined that discovery in connection with the Debtors' Disclosure Statement in Connection with Debtors' Amended Joint Plan of Reorganization, filed on October 18, 2010, [Dkt. #190] and Debtors' Amended Joint Plan of Reorganization, filed on October 18, 2010, [Dkt. #189] is needed by the Parties.
WHEREAS, the Parties acknowledge and understand that in order to provide complete responses to discovery, the Parties will necessarily produce certain business, financial and other information which they consider proprietary and/or confidential; and
WHEREAS, the Parties are prepared to respond to the discovery propounded provided that all business, financial and other information which is considered proprietary and/or confidential is protected, used only for the purposes of this litigation, and not disclosed except in accordance with the terms and provisions of this Stipulated Confidentiality and Protective Order; and
WHEREAS, the Parties agree to execute and be bound by the terms and provisions of this Stipulated Confidentiality and Protective Order;
IT IS HEREBY STIPULATED AND AGREED by and between the undersigned parties through their respective officers that the following Stipulated Confidentiality and Protective Order (" Protective Order") be entered and;
IT IS HEREBY ORDERED THAT:
1. The content of (i) any document or thing produced by the Parties; (ii) any deposition testimony of the Parties, and/or their designated officers, directors, employees or representatives; (iii) any exhibit produced and marked by any party at any such deposition referenced in paragraph l(ii); and (iv) any other information, document or thing received from the Parties, in the course of this litigation (hereinafter collectively identified as "Information"), except published information of any origin and non-published information which is publicly available, may be made subject to this Protective Order.
2. If the Parties believe in good faith that any such Information is business, financial, proprietary and/or confidential it shall have the right, through counsel identified in paragraph 8 below (the "Designating Party"), to designate such information as "CONFIDENTIAL" in accordance with Paragraph 3 below. Such designated information shall thereafter be subject to the terms of this Protective Order, and use or disclosure of information so designated shall be restricted as set forth herein.
3. To designate Information as CONFIDENTIAL and thereby subject it to this Protective Order, the Designating Party shall place upon the document, thing, paper or other tangible embodiments of the Information, the legend:
"CONFIDENTIAL"
or a substantially similar legend. Notwithstanding the foregoing, the Parties stipulate and agree that any documents produced by the Parties after execution of this Protective Order but prior to the entry of an order of this court approving this Protective Order, other than public record information, may be subject to the provisions of this Protective Order, provided the Designating Party shall provide written notice to all other parties within ten (10) days of the execution of this Protective Order, identifying the specific documents to be subject to the Protective Order.
4. The Information designated "CONFIDENTIAL" as set forth in Paragraph 3 above, and all tangible embodiments thereof, all copies thereof, the substance thereof, and all Information contained therein ("CONFIDENTIAL Information") and shall not be disclosed or distributed by counsel or any other person receiving, viewing or hearing the CONFIDENTIAL Information ("Receiving Person") except:
(a) to (1) counsel for/the Parties as identified in Paragraph 8 below, (2) partners and regular employees of counsel for a party, (3) consulting experts this and their personnel hired by a party who are assisting counsel in preparation of this action for trial or hearingsLrovided they shall first execute a declaration as required by paragraph 5 below, or otherwise to assist on the administration of these chapter 11 cases (4) court reporters who transcribe deposition testimony, and (5) any mediator appointed to hear the parties' dispute; and (6) any judge or court personnel or staff required to review the same in connection with the pendency of this case;
(b) to witnesses at deposition or at trial who: (1) are employed by the entity from which such "CONFIDENTIAL" Information originated; (2) were employed by such entity at the time such "CONFIDENTIAL" Information was created; (3) who are provided a copy of this Order and agree on the record to be bound by its terms, or (4) having already been given access to "CONFIDENTIAL" Information by the Designating Party and/or the Designating Party's agent, employee and/or representative;
(c) for photocopy, document imaging, or database services, or services related to the creation of demonstrative exhibits or in-court presentation systems engaged by counsel described in paragraph 2(c) hereof and consultants engaged by such counsel to set up, maintain and/or operate litigation databases;
(d) as filed in the United States Bankruptcy Court for the District of Maryland and/of any court-appointed mediator, should filing be desired or required, only in a sealed envelope or container in compliance with the Bankruptcy Rules and shall not be disclosed by the Court and/or the Mediator, or any other person except upon the express stipulation and authorization of all Parties;
(e) to any person not listed in (a)-(e) above, only by mutual written agreement of both Parties.
5. Prior to disclosing any CONFIDENTIAL Information to any person other than as listed in paragraph 4(a)-(e) above, counsel for the Receiving Party shall have the Receiving Person read this Protective Order and shall explain the contents of this Protective Order to that person. The Receiving Person shall agree to be bound by the terms of this Protective Order and, for all persons in the categories identified in subparagraphs 4(a)(4) and (4)(f) of this Protective Order, shall execute a declaration substantially in the form of Exhibit "1" attached hereto. Counsel for the Receiving Party shall maintain the originals of all such declarations until the close of this case, at which time the originals of all such declarations shall be delivered to counsel for the Disclosing Party.
6. It being clearly understood by the Parties that neither Cresta Miller nor Wade Stout Williams are to have access to CONFIDENTIAL Information of each other or their respective businesses as the intent of this Stipulation is to restrict CONFIDENTIAL Information to attorneys eyes only with limited disclosure as needed to each Party's experts.
7. Documents need not be designated as CONFIDENTIAL at the time of a document inspection; however, such documents shall be so designated at the time copies are delivered to the requesting party. Any written answer shall be so designated at or prior to the time the answer is served on a requesting party by placing the appropriate notation prominently on each answer or writing containing information deemed CONFIDENTIAL.
8. All information disclosed at a deposition shall be treated as CONFIDENTIAL for a period of fourteen (14) days after receipt of the transcript of such deposition. The Designating Party may designate information disclosed at such deposition as CONFIDENTIAL only by notification to all of the parties, in writing, within fourteen (14) days of receipt of the transcript of the specific pages and lines of the transcript which are so designated.
8. In accordance with this Protective Agreement, counsel for the Parties is:
(a) In the case of Creditors, Cresta Miller and PAC Services, LLC, Paul Sweeney, Logan, Yumkas, Vidmar and Sweeney, LLC and Lawrence Holzman, Joseph, Greenwald & Laake, P.A.; and
(b) In the case of Debtors, Wade Stout Williams and PAC Outsourcing, LLC, Ronald J. Drescher, Law Offices Ronald J. Drescher, and Brad Rost, Tenenbaum and Saas, P.C.
It is the responsibility of the attorneys of record for the parties to insure that their partners and regular employees who may have access to CONFIDENTIAL Information shall be apprised of and adhere to this Protective Order.
9. The termination of proceedings in this action shall not relieve any person to whom CONFIDENTIAL Information was disclosed from the obligation of maintaining the confidentiality of such Information in accordance with the provisions of this Protective Agreement
10. Upon final termination of this action, each party shall assemble and, as agreed, shall either destroy or return of the election of each adverse party, within ninety (90) days all items designated as CONFIDENTIAL Information except that counsel may retain a single copy for its records. Written verification of destruction shall be given immediately after such destruction, and receipt of material returned to the Designating Party shall be acknowledged in writing. Notwithstanding the above, counsel of record shall be entitled to retain all court papers, trial transcripts, exhibits used in affidavits or declarations, at depositions, or at trial, and attorney work product, provided that any such materials containing CONFIDENTIAL Information are maintained in a manner consistent with this Protective Agreement. Insofar as the provisions of this Protective Agreement restrict the communication or use of the documents produced hereunder, this Protective Agreement shall continue to be binding after the conclusion of this litigation.
11. Any document or testimony transcript designated as CONFIDENTIAL pursuant to this Protective Agreement will be treated pursuant hereto, unless confidentiality is waived in writing by the Trustee, or an Order is obtained in accordance with Paragraph 13. To aid the Court in considering requests pursuant to Paragraph 13, the parties agree that CONFIDENTIAL Information shall not include Information that:
(a) was, is or becomes public knowledge, not in violation of this Protective Agreement, as shown by written documents;
(b) was or is acquired from a third party, lawfully possessing such Information and having no obligation of confidentiality with regard to its disclosure, as shown by written documents; or
(c) was previously known to the Receiving Party or was developed independently by the Receiving Party prior to receipt from the Trustee, as shown by written documents.
However, the fact that the Information described in Paragraphs 11(a)-(c) above was obtained from any party in this litigation or was in any particular document, shall be CONFIDENTIAL unless that fact is or becomes publicly known through such party.
12. Nothing in this Protective Order shall foreclose or limit any party from asserting that any information designated CONFIDENTIAL pursuant to this Protective. Agreement does not meet the terms of Paragraph 2 above, or is excepted from the scope of protectable information pursuant to Paragraph 11 above.
13. In the event that counsel for a party deems it necessary to disclose any Information of the Designating Party as CONFIDENTIAL to any person not specified, said counsel shall notify the Designating Party in writing of (a) the Information or documents to be disclosed, and (b) the person(s) to whom such disclosure is to be made, and shall attempt to reach agreement regarding such disclosure. Notice shall be served via e-mail or facsimile and first class mail. If the Designating Party does not object in writing within ten (10) business days of receipt of notice, the party contemplating disclosure may release the CONFIDENTIAL Information in question to the identified parry, provided that person executes an undertaking in the form of Exhibit 1 hereto, a copy of which shall be provided to the Designating Party upon request. If the Designating Party objects to the contemplated disclosure, the Receiving Party must seek an Order from the Court prior to permitting the disclosure. The disclosure at issue shall be prohibited unless such Order is granted by the Court. In the event of a challenge to an assertion of confidentiality, the party asserting confidentiality shall have the burden of proving that the Information is, in fact, CONFIDENTIAL.
14. The Parties may, by written stipulation, waive all or any part of their rights under this Protective Order and any party may seek an Order of the Court modifying this Protective Order. Any party shall also have the right to apply to the Court for an Order modifying or vacating the strictures on disclosure imposed by this Protective Order as applied to any item or items designated pursuant hereto.
15. Nothing in this Protective Order shall be construed to indicate that any documents are in fact CONFIDENTIAL Information or are entitled to CONFIDENTIAL treatment, unless labeled accordingly. A party shall not be obligated to challenge the propriety of a CONFIDENTIAL designation at the time it is made, and a failure to do so shall not constitute a waiver of objection to proposed treatment. In the event that any party to this litigation objects at any stage of these proceedings to the designation by a producing party of materials designated CONFIDENTIAL, such parties shall try first to resolve such dispute in good faith on an informal basis. If the Parties are unable to resolve the matter after a good faith effort, then the party disputing the confidentiality designation may seek appropriate relief from the Court, with the disputed CONFIDENTIAL Information as originally designated pending resolution by the Court.
16. No party shall be responsible to another for any use made of information produced and not identified as CONFIDENTIAL Information provided that if information is erroneously disclosed by a party or non-party to this litigation without being designated as CONFIDENTIAL Information and the Receiving Party is subsequently notified in writing of the error, then such information shall be considered from the point of notification forward as having been designated CONFIDENTIAL Information.
17. Nothing in this Protective Order requires any party or non-party bound by this Protective Order to refuse to disclose CONFIDENTIAL Information upon receipt of a written request from a local, city, state or Federal governmental agency or body, or as required by law, regulation, subpoena, order of any court or regulatory body, or other legal process, and any parly or non-party may comply with said written request.
18. The United States Bankruptcy Court for the District of Maryland — Greenbelt Division shall retain jurisdiction over the parties for purposes of enforcement of this Protective Agreement.
IN WITNESS WHEREOF, the parties and their counsel have executed or caused this Stipulated Confidentiality and Protective Agreement to be executed by their undersigned duly authorized officers on the date indicted.
DECLARATION AND STIPULATION OF NON-DISCLOSURE
TO WHOM IT MAY CONCERN:
I, _______________ have been provided with and reviewed a copy of the foregoing Stipulated Confidentiality and Protective Order (the "Protective Order"), attached hereto.
I have agreed to be bound by the Protective Order and understand its non-disclosure terms, as evidenced by my signature below.
Date: __________________ _______________________________
Name: _________________________
Address: ______________________
______________________
Phone: _________________________
