Re: PACER
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Message: Re: PACER
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Doc 130 (Protective Order)
Pursuant to Rule 26(c) of the Federal Rules of Civil Procedure, and based on the Stipulated Motion for Entry of Protective Order of plaintiff digEcor, Inc. and defendants e.Digital Corporation, William Blakely, and Fred Falk and good cause appearing, IT IS HEREBY ORDERED that the following principles and procedures designed to assure the protection of proprietary or confidential documents and information in this matter shall govern the discovery among the parties: 1. Any person involved in the above-captioned civil action (the “Civil Action”), including third parties producing information in the Civil Action, may designate as confidential any documents (and copies thereof) or other material or information authored, generated, or originated by that person, or testimony related thereto, by marking such documents, material or testimony with the word “CONFIDENTIAL” if the person believes in good faith that such documents, material or testimony contains information that is confidential, competitively sensitive or proprietary. Any document, material, or testimony marked “CONFIDENTIAL” shall be deemed confidential and shall be disclosed or disseminated only to “Qualified Persons” as defined and specified herein. Qualified Persons shall keep such information confidential to themselves and shall not further disseminate or disclose it other than as provided herein. The provisions of this Protective Order shall be applicable to any documents, material, or testimony marked “CONFIDENTIAL,” or “CONFIDENTIAL – ATTORNEYS’ EYES ONLY,” the information contained therein, and any notes, abstracts, summaries, or similar materials prepared from, or based upon, such documents, material, or testimony (hereinafter “Confidential Information”). 2. Unless otherwise ordered by the Court or agreed by the parties, Confidential Information shall be used only in this Civil Action for purposes necessary to the litigation of claims between plaintiff and defendants and for no other purpose. Confidential Information shall not be used for any commercial, business, competitive, or other purposes for any reason whatsoever, nor for any other judicial or administrative proceedings, disputes, or cases. No person shall make or permit the making of more copies of any Confidential Information than are reasonably necessary for the litigation of the Civil Action.
3. The designation of items that exist in tangible form shall be achieved by visibly and securely marking the item or the container in which the document is contained, as “CONFIDENTIAL” or “CONFIDENTIAL – ATTORNEYS EYES ONLY.” Multi-page items shall have each page or screen marked with the designation. Designated items that cannot be readily or easily marked in a visible, secure manner shall be marked by the designating party serving a letter upon the receiving party that clearly identifies the item and clearly states the level of protection designated under this Order. This manner of designation shall be completed prior to or concurrent with the disclosure of the item.
4. All Confidential Information filed with the Court shall be filed in sealed envelopes bearing the caption of this action, a brief description of the nature of the contents of the sealed envelope, and the designation “CONFIDENTIAL: FILED UNDER SEAL PURSUANT TO PROTECTIVE ORDER.”
5. A party to this proceeding, or a third party who elects to be covered by this Order who produces or discloses any item, may designate the item as: “CONFIDENTIAL”. Confidential Information may be disclosed only to “Qualified Persons,” defined as follows, solely to the extent necessary to the litigation of the Civil Action: (a) The parties and party representatives (i.e., the named plaintiff and defendants, and their respective officers, directors, partners, principals, and employees who are assisting their counsel in the Civil Action); (b) Counsel for the parties in this Civil Action, including members of such attorney’s staff (e.g., paralegals, legal secretaries, and law clerks), and outside vendors employed by such counsel for purposes of scanning, reproducing, analyzing, searching, or numbering documents, information, or things; (c) Third-party experts or consultants and their employees retained by the parties in this Civil Action for the purpose of assisting in the preparation of this Civil Action for trial; (d) Deponents in this Civil Action; (e) Prospective witnesses who, in the judgment of counsel for a party, require the Confidential Information for the purpose of preparing their testimony; (f) The Court, jury, and court personnel.
6. A party to this proceeding, or a third party who elects to be covered by this Order who produces or discloses any item, may designate the item as: “CONFIDENTIAL – ATTORNEYS EYES ONLY” if such item meets the requirements for designation as “CONFIDENTIAL,” and, in addition, in the good faith judgment of the designating party, contains trade secrets, other highly sensitive or confidential information, or personal financial information. Items designated as “CONFIDENTIAL – ATTORNEYS’ EYES ONLY” shall be restricted to the following Qualified Persons on behalf of the receiving party: (a) Counsel of record to the parties to this proceeding, specifically attorneys designated as referenced counsel of record and their assisting counsel and staff, and outside vendors employed by such counsel for purposes of scanning, reproducing, analyzing, searching, or numbering documents, information, or things; (b) Independent outside experts or consultants and their employees; and (c) The Court, jury, and necessary court personnel.The disclosure of CONFIDENTIAL – ATTORNEYS’ EYES ONLY items to an independent expert or consultant must be reasonably necessary to assist counsel for the purposes of prosecuting or defending this proceeding.
7. Before receiving any “CONFIDENTIAL” or “CONFIDENTIAL – ATTORNEYS’ EYES ONLY” Information, a Qualified Person described 5(c) and (e) or 6(b) herein shall confirm his or her agreement to be bound by the provisions of this Protective Order by executing a copy of the Non Disclosure Certificate attached hereto as Exhibit “A,” which shall be retained by outside counsel affiliated with the Qualified Person pending further order of the Court or for three months following the final termination of this Civil Action.
8. In the event a Qualified Person subject to this Protective Order (a) is subpoenaed in another action, (b) is served with a demand in another action to which the Qualified Person is a party, or (c) is served with any other legal process by one not a party to this Civil Action, that seeks Confidential Information that was designated as confidential, such Qualified Person shall give prompt written notice of the receipt of such subpoena, demand, or legal process to the party who produced or designated the material as confidential, and shall object to its production on the basis of this Protective Order. Should the person seeking access to the Confidential Information take action against the Qualified Person from whom it is sought, or anyone else subject to this Protective Order, to enforce such subpoena, demand, or other legal process, the burden of opposing such efforts will be on the party who designated the information as confidential; however, the Qualified Person shall cooperate with the party who produced or designated the material as confidential in resisting any such efforts by third parties.
9. Counsel for any party may designate deposition testimony or exhibits as Confidential Information by indicating on the record at the deposition that the testimony of the deponent or any exhibits to his or her testimony is to be treated as confidential. Failure of counsel to designate testimony or exhibits as confidential at the deposition, however, shall not constitute a waiver of the confidentiality of the testimony or exhibits, if counsel designates such testimony or exhibits as confidential within 10 business days after receipt of the transcript of the deposition. Within 10 business days after receipt of the transcript of the deposition, counsel shall be entitled to designate specific pages and lines of the transcript or the exhibits as “CONFIDENTIAL” or “CONFIDENTIAL – ATTORNEYS’ EYES ONLY.” To maintain the confidentiality of any deposition testimony or exhibits designated as confidential in accordance with the terms of this Protective Order, the parties' counsel and the court reporter who transcribes the deposition testimony shall make reasonable arrangements, which may include the marking of transcript pages, covers, or exhibits, to limit the availability of Confidential Information to Qualified Persons designated to review the level of protected information in question. No person shall attend those portions of any deposition at which Confidential Information is discussed or utilized as an exhibit, unless such person is a Qualified Person as defined herein.
10. Following the final determination of this Civil Action, whether by judgment, settlement, or otherwise, and including any appeal from a final judgment, any party may request in writing that any person who is in possession of Confidential Information produced by that party return such Confidential Information (except for that contained in pleadings, motions, briefs, memoranda or work product contained in counsel's files) to the person who produced it or to the person's counsel, or destroy it. The person in possession of Confidential Information shall comply with such request within 30 days of receipt of such request. Written confirmation of such return or destruction shall be forwarded to counsel for the person who produced the Confidential Information. Confidential Information in pleadings, motions, briefs, memoranda, or work product contained in counsel's files shall not thereafter be disclosed to any person.
11. If a document, material or testimony which a person intends to designate as confidential is inadvertently disclosed without being marked as confidential in accordance with this Protective Order, the failure to so mark the document, other material, or testimony shall not be deemed a waiver of its confidentiality if the misdesignation is corrected as soon as possible after it discovers the inadvertent disclosure. In any event, when one party informs another, of its intent to designate as confidential a document, other material, or testimony that was inadvertently disclosed without being marked as confidential, all recipients thereof shall thereafter treat the document, other material, or testimony in accordance with the intended designation and shall take prompt steps to assure that it is marked as confidential as appropriate, or returned to the person who disclosed it for confidential designation.
12. Prior to the use of any Confidential Information in open court at any pretrial hearing in this Civil Action, counsel who desires to use such Confidential Information shall provide opposing counsel an opportunity to object to its disclosure and an opportunity to arrange for a setting in which the Confidential Information may be heard by the Court without publicly revealing its confidential contents. The opportunity to object may be given at the hearing at which counsel intends to use such Confidential information and may be given by (1) stating to opposing counsel, immediately before the Confidential Information is used, that counsel intends to use Confidential Information; and (2) doing one of the following: (a) showing the Confidential Information to opposing counsel; or (b) describing the Confidential Information to opposing counsel in a manner sufficient to enable opposing counsel to identify it, but without disclosing its confidential contents.
13. By producing documents or other information in this Civil Action, whether or not designated as Confidential Information, the producing party does not thereby concede their relevance or admissibility.
14. This Protective Order shall survive the final conclusion of this Civil Action and shall continue in full force and effect. The Court shall retain jurisdiction over the parties, and any other person bound by this Protective Order, to enforce this Protective Order.
15. All persons bound by this Protective Order are hereby notified that if this Protective Order is in any manner violated, the person or entity who commits such violation shall, be subject to such sanctions as the Court, on motion and after a hearing, deems just. 16. Nothing contained herein shall be deemed a waiver by any party of its right to object to the other party's designation of any documents, transcripts, evidence or other information as confidential. An objecting party may move the Court at any time for a determination that the information or material should not be deemed Confidential Information. Pending such determination, however, the information or material shall be maintained as Confidential Information in accordance with the terms of this Protective Order.
17. Nothing herein shall limit a party’s right to use or disclose its own documents and other information in any way. Similarly, nothing herein shall prohibit disclosure of Confidential Information to persons who previously had access to such information in the regular course of business.
DATED this _____ day of _____________, 2007. BY THE COURT Ted Stewart
U.S. District Judge for the District of Utah
2 Recommendations
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