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Givaudan SA v. Conagen Inc.

United States District Court, S.D. New York

December 27, 2019

GIVAUDAN SA, Plaintiff,
v.
CONAGEN INC., Defendant. PHYTO TECH CORP. d/b/a BLUE CALIFORNIA, and CONAGEN INC., Plaintiffs,
v.
GIVAUDAN SA, Defendant.

          Katherine A. Helm DECHERT LLP Martin J. Black Attorneys for Phyto Tech Corp. d/b/a/Blue California and Conagen Inc.

          Christopher J. Belter Matthew S. Trokenheim Ryan G. Pitman Attorneys for Givaudan SA

          [PROPOSED] PROTECTIVE ORDER

          DEBRA FREEMAN UNITED STATES MAGISTRATE JUDGE

         Pursuant to Federal Rule of Civil Procedure 26(c) Phyto Tech Corp. d/b/a/ Blue California ("Blue Cal"), Conagen Inc. ("Conagen") (collectively, the "Blue Cal Parties"), and Givaudan SA ("Givaudan"), through their respective counsel, hereby stipulate and agree that discovery in the above-captioned actions are likely to involve the disclosure of certain documents, things and information that constitute or contain trade secrets or other confidential research, development or commercial information within the meaning of Rule 26(c) of the Federal Rules of Civil Procedure ("Fed. R. Civ. P."), which must be protected in order to preserve legitimate business interests. Accordingly, good cause exists for entry of this Protective Order pursuant to Fed.R.Civ.P. 26(c) to protect against improper disclosure or use of confidential information produced or disclosed in this case. The parties therefore further stipulate and agree, subject to approval of the Court, that the terms and conditions of this Protective Order ("Order") shall govern the handling of documents, depositions, pleadings, exhibits and all other information exchanged by the parties in these actions, or provided by or obtained from nonparties in these actions, and this Order shall apply regardless of whether such information was produced prior to or after entry of this Order.

         1. Scope of Protective Order:

         This Protective Order applies to all Discovery Materials (as defined herein) produced by a Producing Party in connection with these actions. In addition, this Protective Order allows for the filing of documents with the Court under seal, subject to any applicable Local Court Rule or CM/ECF procedure, if such documents contain Confidential Information. This Protective Order shall apply regardless of whether such information was produced prior to or after entry of this Protective Order.

         2. Definitions:

         (a) The term "Confidential Information" means any information, whether oral or in documentary or other tangible form, so designated by any Producing Party that it reasonably and in good faith believes is of the type protectable under Rule 26(c)(1)(G) of the Federal Rules of Civil Procedure or is required to be kept Confidential by law or by agreement with a third party or otherwise and that falls within the categories set in the below Any summary, compilation, notes, memoranda, analysis or copy containing Confidential Information and any electronic image or database containing Confidential Information shall be considered Confidential Information to the same extent as the material or information from which such summary, compilation, notes, copy, memoranda, analysis, electronic image, or database is derived.

         The types of information that may be requested in discovery and designated as "Confidential Information" if produced include, :

(i) The names, or other information tending to reveal the identities, of a Party's suppliers, present or prospective customers, or distributors or the personal information of a Party's employees;
(ii) Information relating to pending patent applications;
(iii) Financial information of a Party, including, but not limited to, identifying the number of products sold, total dollar value of products sold, and profit margins for products, both forecasted and actual;
(iv) Information constituting product specifications, formulations and/or regarding the manufacture of the Party's products;
(v) Technical notebooks and technical reports of a Party, including product and manufacturing specifications, schematic diagrams, technical reference manuals, operations manuals, or other similar information;
(vi) Confidential marketing plans, market research and business strategy, including research regarding competitors;
(vii) Information the Producing Party believes is a proprietary trade secret;
(viii) All information relating to a Party's research and development efforts;
(ix) Confidential information of a non-party that the Producing Party is bound by a separate confidentiality agreement or court order to maintain in confidence and that the Producing Party is permitted to produce in these actions, subject to Paragraph 23 herein, and
(x) any other information that the court approves for inclusion in this order.

         (b) The term "disclose" means to show, give, make available or communicate, in any fashion, to any Person (as defined herein), any information, document, information concerning the content of any document, or any portion of the information contained in any document, furnished by any Party or non-party in these actions.

         (c) The term "Discovery Material" means any document or thing, and includes, without limitation, any writings, video or audio tapes, computer-generated or recorded information in any form, materials, oral or written testimony, interrogatories, answers to interrogatories, requests for admission, responses to requests for admission, document requests, responses to document requests, deposition testimony, deposition transcripts and exhibits, and other responses to requests for information or any tangible thing, produced by a Party or non-party in these actions.

         (d) The term "In-house Counsel" means licensed attorneys who are employed by a Party to provide legal advice to the Party, and who do not have responsibility for making business decisions on non-legal matters such as sales, marketing, branding, pricing, product design, research and development, or corporate development.

         (e) The term "Outside Counsel" means litigation counsel of record for the Parties, including associated personnel necessary to assist outside counsel in these actions, such as legal assistants, paralegals, analysts, secretarial, stenographic, information technology and clerical employees actually assisting such counsel; outside vendors that scan, code and/or produce documents at such counsel's request; translation services; computer services; trial consultants, their ...


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