The opinion of the court was delivered by: William H. Pauley III, United States District Judge
STIPULATED PROTECTIVE ORDER
CONCERNING CONFIDENTIAL INFORMATION
WHEREAS, the Parties to the above-captioned action (the "Action"), Plaintiffs, Nemoto & Co., Ltd., and United Mineral & Chemical Corporation (collectively, "Nemoto"), and Defendant, Way2Glo, LLC ("Way2Glo"), (each of Nemoto and Way2Glo is a "Party"; together they are the "Parties"), may seek discovery or documents, information or other materials which may contain or relate to confidential or proprietary information, such as commercial processes; pre-suit investigation materials, technical drawings, research and development, and testing information; financial data (such as pricing, profit margins, losses); market data and entry information; customer contacts and requirements; supplier or distributor contacts and requirements; or trade secret information of another party or of a third party;
WHEREAS, the Parties wish to ensure that such confidential information shall be used only for the purposes of this Action and shall not be disclosed or used in any other way; NOW THEREFORE, the Parties have stipulated and agreed to the terms, and jointly moved this Court pursuant to Rule 26(c) of the Federal Rules of Civil Procedure for entry of the following Protective Order, and the Court having found that, in light of the nature of the competitively sensitive information that may be sought in discovery, good cause exists for the entry of the following Protective Order,
IT IS HEREBY ORDERED that the following Protective Order is entered in this Action:
1. Definitions. "Confidential Information" shall mean and include any document (whether in hard copy or computer readable form), thing, deposition testimony, interrogatories and interrogatory answers, requests for admissions and/or production and responses thereto, or other information provided in discovery in this Action ("Discovery Material"), which contains non-public, confidential or proprietary information, whether personal or business-related. Certain limited types of Confidential Information may be further designated, as defined and detailed below, as "Attorney Eyes Only." "Attorney Eyes Only Information" shall be reserved for the following categories: (a) the non-public content of or strategy relating to pending patent applications or drafts of patent applications; (b) trade secrets, know-how or proprietary data, business, financial or commercial information; (c) financial information that is not otherwise publicly available; and (d) information relating to unreleased products or products in development. The Party making the "Confidential" or "Attorney Eyes Only" designations on Discovery Material ("Designating Party") shall do so in good faith at the time of disclosure, production, or tender to the Party receiving the same ("Receiving Party"), or at such other time as permitted by this Protective Order, provided that the inadvertent failure to so designate does not constitute a waiver of such claim, and a Party may so designate such Discovery Material after such inadvertent failure subject to the protections of this Protective Order. Designations of "Confidential" or "Attorney Eyes Only" shall constitute a representation that an attorney for the Designating Party has reviewed such Discovery Material and that there is a valid and good faith basis for such designation.
2. Manner of Designation of Discovery Material. The designation of Discovery Material in the form of documents, interrogatories and interrogatory answers, requests for admissions and/or production and responses thereto, or other tangible materials (including, without limitation, CD-ROMs and tapes) other than depositions or other pretrial testimony, as "Confidential" or "Attorney Eyes Only" shall be made by the Designating Party in the following manner:
a.Documents designated "Confidential" shall be so marked by conspicuously affixing the legend "CONFIDENTIAL" or similar designation on each page containing any Confidential Information (or in the case of computer medium on the medium and its label and/or cover) to which the designation applies. Where such designated Discovery Material is identified by production number, and to the extent practical, the Confidential legend shall be placed near the production number.
b.Documents designated "Attorney Eyes Only" shall be so marked by conspicuously affixing the legend "ATTORNEY EYES ONLY" or similar designation on each page containing any Attorney Eyes Only Information (or in the case of computer medium on the medium and its label and/or cover) to which the designation applies. Where such designated Discovery Material is identified by production number, and to the extent practical, the Attorney Eyes Only legend shall be placed near the production number.
c.If a document has more than one designation, the more restrictive or higher confidential designation applies.
d. Only Discovery Material that the Designating Party shall in good faith deem confidential shall be so designated, but an entire document or materials may be designated as "Confidential" or "Attorney Eyes Only" if any part of it contains, respectively, Confidential Information or Attorney Eyes Only Information, unless the Designating Party elects to designate only portions of the document or material as "Confidential" or "Attorney Eyes Only." The attorneys of record for such Designating Party shall be deemed to have certified that such counsel believes that the designation has been made in good faith.
3. Exclusion from Discovery Materials. Confidential Information and Attorney Eyes Only Information shall not include any Discovery Materials which:
a.Have been or become lawfully in the possession of the Receiving Party through communications other than production or disclosure in this Action, or in other litigation, for example, as a result of legitimate business dealings between the Parties, unless those documents are covered by a separate non-disclosure or confidentiality agreement, in which case the Receiving Party, may continue to use such documents in the course of its business subject to those agreements; or
b.Have been or become part of the public domain by publication or otherwise and not due to any unauthorized act or omission on the part of the Receiving Party. Nothing herein shall impose any restriction on the use or disclosure by a Party of its own documents or information.
4. Access to Confidential Information. Subject to paragraphs 5 and 6 of this Protective Order, "Qualified Persons" in this Action having access to Discovery Material designated "Confidential" under this Protective Order are: LEVI & GRANDINETTI, and its stenographic, clerical, and paralegal ...