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April 14, 2005.


The opinion of the court was delivered by: LEWIS KAPLAN, District Judge

WHEREAS, various parties and non-parties will be responding to discovery requests in this litigation (the "litigation" or "action");

WHEREAS, the parties and certain non-parties desire that discovery provided in this litigation be subject to a confidentiality agreement;

  NOW, THEREFORE, IT IS HEREBY STIPULATED AND AGREED, by and among the undersigned attorneys for the respective parties hereto, subject to further Order of the Court, as follows:
  1. "Party" shall mean any defendant who has been named in these actions at any time, any plaintiffs in 02-CV-7377, and any class member appointed as lead plaintiffs by the Court in 02-C V-3013.

  2. "Producing Party" shall mean any Party or non-party producing documents or other information in these actions. 3. "Documents" shall mean anything that may be considered to be a document or tangible thing under the Federal Rules of Civil Procedure including, but not limited to: interrogatory answers served by any Party to these actions; responses to requests to admit served by any Party to these actions; documents produced by any Producing Party, whether pursuant to formal discovery or by informal agreement; transcripts of and exhibits to depositions taken in these actions; and any portions of any documents filed in these actions that quote from or summarize any of the foregoing documents.

  Designation of Confidentiality

  4. A Producing Party may, at its option, designate as "Confidential" such information as the Producing Party in good faith deems confidential, in accordance with Rule 26 of the Federal Rules of Civil Procedure, on the basis that such in formation constitutes a trade secret or other sensitive research, development or commercial information, employee or labor relations materials or personal information. (Documents that are designated as "Confidential" are hereinafter referred to as "Confidential Documents".) Such designation may be made either by stamping or otherwise inscribing "Confidential," or substantially similar words, upon every page of the document which is confidential. If a Producing Party inadvertently produces documents or other materials that it considers to be "Confidential" without such designation, the Producing Party may subsequently designate such information or documents as "Confidential" by delivering written notice of such designation to the other parties.

  5. To the extent that matter stored or recorded in the form of electronic or magnetic media (including information, files, databases or programs stored on any digital or analog machine-readable devise, computers, discs, networks or tapes) is produced in such form, the Producing Party may designate such material as Confidential by cover letter referring generally to such matter and by affixing (where possible) a label on the media or its casing indicating such designation.

  6. In the event that non-parties produce Documents or information in connection with these actions, the parties and all other persons subject to this Order agree that production by non-parties of such Documents or information shall be made subject to the provisions of this Order.

  Designation of Deposition Transcripts

  7. In the case of depositions, designation of the transcript or portion of the transcript (including exhibits) that contains Confidential information shall be made by a statement by counsel to that effect on the record during the course of the deposition or by written notice, sent by counsel to all parties within ten business days after receiving a copy of the transcript thereof. All deposition transcripts shall be treated as Confidential within the meaning of this Order during the pendency of the ten-day period for giving written notice. If a Confidential designation is made, either on the record at the deposition or by way of written notice as described above, the Court reporter shall be directed to affix the appropriate legend on the cover page and on all appropriate pages of the transcript, and to each copy thereof (the parties may modify this procedure for any particular deposition through agreement on the record at such deposition, without further order of the Court).

  Use of Confidential Information

  8. No Party, including a party's agents, consultants, experts, deponents, witnesses and attorneys, receiving Confidential Documents shall make use of any Confidential Document, or any information contained therein, for any purpose whatsoever other than the prosecution or defense of these actions, nor shall any Confidential Document, or any information contained therein, be disclosed by any such Party except as provided herein. 9. Confidential Documents and information contained in them may be referred to in interrogatory answers, responses to requests to admit, pleadings, motions, briefs, and other documents filed with the Court, and may be marked as deposition exhibits in these actions; provided that any such paper that is filed with the Court and contains or refers to Confidential information shall be filed under seal and kept under seal until further order of the Court, be placed in a scaled envelope that is marked with the title of the action(s) and a brief description of the contents and bears a legend substantially in the form of the following:
This envelope contains documents that are subject to an order governing discovery and the use of confidential information entered by the Court in these actions on [date]. This envelope shall not be opened nor shall the contents hereof be displayed except at the direction of the Court.
  10. Any Confidential Document that is designated by any Party may be offered into evidence in open court at trial unless the Producing Party obtains an appropriate protective order from the Court. Use of any Confidential material in any court proceeding shall not waive the applicability of this Protective Order as to such material. Parties using Confidential material in open court shall use reasonable best efforts to minimize disclosure to persons not authorized to see such material pursuant to paragraph 12 below. In the event that an appellate motion or brief which contains Confidential material is filed in this litigation by any Party to this Stipulation, such Party agrees to consult with the Producing Party concerning the use of such Confidential material prior to making the appellate filing. If the parties are unable to reach an accord as to the use of such Confidential material in the appellate filing, the Producing Party may seek an appropriate order from the appellate court. In any such motion, the Producing Party has the burden of establishing that the appellate brief or motion should be filed under seal. Challenges to Confidential Designation

  11. A Party shall not be obligated to challenge the propriety of a Confidential designation at the time made, and a failure to do so shall not preclude a subsequent challenge thereto. In the event a Party objects to the Confidential designation under this Protective Order by a Producing Party of any document (or part thereof), the objecting party shall consult with the Producing Party to attempt to resolve their differences. If the parties are unable to reach an accord as to the proper designation of the material, the challenging party may move the Court to remove the Confidential designation. In any such motion, the Producing Party has the burden of establishing that the Confidential designation is proper. If a motion is made, any ...

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