Stipulated Protective Order

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF FLORIDA

GAINESVILLE DIVISION

 

REDACTED,

 

Plaintiff, Civil Action No.

v.

 

REDACTED. INC., d/b/a

REDACTED,

 

Defendant.

                                                                        /

 

            STIPULATED PROTECTIVE ORDER

 

To expedite the exchange of discovery material in the above-captioned action (the AAction@), to limit the use of discovery material to this Action, to facilitate the prompt resolution of disputes over confidentiality, and to protect discovery material entitled to be kept confidential, it is, pursuant to the Court=s authority under Fed. R. Civ. P. 26(c) and for good cause shown, hereby ORDERED:

1. Definitions of ADiscovery Material,@ AConfidential@ and AHighly Confidential@.

(a) As used in this Order, Adiscovery material@ means:  (i) any material produced, filed or served by, or otherwise obtained from, any party or person during discovery or otherwise in this Action or (ii) any information included in any such material.  Discovery material may include, but is not limited to, deposition testimony and transcripts, answers to interrogatories, documents and tangible things produced by a party or person (whether produced pursuant to Fed. R. Civ. P. 34, subpoena, or otherwise), and responses to requests for admission.

 

(b) As used in this Order, Aconfidential discovery material@ means any discovery material that the disclosing party or person believes in good faith contains confidential commercial, financial or other information.  A party or person disclosing confidential discovery material shall designate that material Aconfidential@ by stamping or labeling it ACONFIDENTIAL@ in a way that brings attention to a reasonable examiner.  Parties or persons shall limit the Aconfidential@ designation to discovery material that:  (i) if disclosed without restriction, reasonably could result in detriment to the disclosing party or person and (ii) is unavailable from any other source.  Confidential discovery material will be filed with the court in accordance with paragraph 9 of this Order.

 

(c) Confidential discovery material that the disclosing party or person believes in good faith contains personal information, trade secrets, or proprietary business or financial information can be designated as AHIGHLY CONFIDENTIAL.@  In addition to the limitations on the designation of discovery material as Aconfidential@ described in Paragraph 1(b) above, parties or persons shall limit the AHIGHLY CONFIDENTIAL@ designation to discovery material that could reasonably constitute trade secrets or other proprietary, confidential commercial information that, if disclosed to the persons described in Paragraph 3(a)(1), would result in a competitive disadvantage to the disclosing party in the product and geographic market alleged in the Action due to the existence of an actual or potential competitive relationship between the producing party, person, or entity, and other parties to this action and the material=s inclusion of specific, non-public information concerning the producing party, person, or entity=s business strategies, proprietary operational processes, revenues, costs, profits, or other information that might reasonably be used to gain a competitive advantage over the producing party.  Examples of AHIGHLY CONFIDENTIAL@ discovery material, to the extent embraced by the definition above, include, but are not limited to, business plans, market studies or surveys and confidential financial information such as tax returns, cost data and balance sheets showing profits and losses and customer lists.   Information so designated shall be used and disclosed pursuant to Paragraph 4 of this Order.  Any person=s designation of discovery material as AHIGHLY CONFIDENTIAL@ will not operate to prejudice the receiving party=s right to challenge that designation pursuant to Paragraph 6.1 below.

2. Use and Disclosure of Discovery Material.  Without the prior written consent of the party or person producing or otherwise disseminating the discovery material, parties or persons receiving discovery material produced or disseminated in this litigation shall not use  the discovery material for any purpose other than the prosecution or defense of this Action.  Nothing in this Order shall limit a producing person=s or party=s rights to use its own discovery material.

3. Use and Disclosure of Confidential Discovery Material.

(a) Limitations on Disclosure and Use:  Except as further limited in this Order, a party or person receiving confidential discovery material may disclose it only to:

(1) named parties to this Action, and any employee of a party to whom the party=s attorney reasonably believes disclosure is necessary in connection with preparation for discovery or trial in this Action;

(2) non-employee counsel engaged by a party or person, and regular and temporary employees and independent contractors of such counsel;

(3) the Court and court officials involved in this Action (including court reporters or persons operating video equipment at depositions);

(4) any person designated by the Court, administrative agency or similar body of competent jurisdiction in the interest of justice, upon such terms as the Court, administrative agency or similar body of competent jurisdiction may deem proper;

 

(5) witnesses in preparation for or examination at deposition or trial, but only to the extent reasonably necessary to prepare and/or examine such witnesses at deposition or trial;

(6) consultants or experts retained by a party to assist in this Action; and

(7) any other person agreed to in writing by all parties.

(b) Undertaking:  Before disclosure of any confidential discovery material is made to any person described in subparagraphs (1), (4), (5), (6) and (7) of paragraph 3(a), such person shall sign an undertaking in the form attached as Exhibit A to this Order.  The undertakings so obtained shall be deemed work product, and the party or person who obtains them shall retain them during the course of this Action; provided, however, that such undertakings shall be subject to production in any action or proceeding to enforce the terms of this Order or to punish any violation of this Order.  In the event that any person described in subparagraphs (1), (4), (5), (6) and (7) of paragraph 3(a) refuses to sign such certification, counsel seeking to disclose the confidential discovery material may seek written permission from the party or person designating the discovery material as confidential to disclose such material.  The party or person disclosing the confidential discovery material may deny such permission solely on the person=s refusal to sign the required certification.

4. Use and Disclosure of Highly Confidential Discovery Material.

(a) Limitations on Disclosure and Use:  A party or person receiving highly confidential discovery material may disclose it only to:

(1) counsel engaged by the party or person to assist in this Action, and regular and temporary employees and independent contractors of such counsel assisting in this Action;

 

(2) the Court and court officials involved in this Action (including court reporters or persons operating video equipment at depositions);

(3) witnesses in preparation for or examination at deposition or trial, provided that the witness is not also described by paragraph 3(a)(1) above and only to the extent reasonably necessary to prepare and/or examine such witnesses at deposition or trial;

(4) consultants or experts retained by a party to assist in this Action;

(5) any other person agreed to in writing by all parties; and

(6) any person designated by the Court, an administrative agency or similar body of competent jurisdiction in the interest of justice, upon such terms as the Court, agency or body may deem proper.

(b) Undertaking:  Before disclosure of any highly confidential discovery material is made to any person described in subparagraphs (1)-(6) of paragraph 4(a), such person shall sign an undertaking in the form attached as Exhibit A to this Order, and said form shall be served on the person or party that produced the HIGHLY CONFIDENTIAL discovery material no less than twenty days prior to the disclosure of said HIGHLY CONFIDENTIAL discovery material.

(c) Except as otherwise stated, when used in the remaining provisions of this Order, the term Aconfidential information@ applies to both ACONFIDENTIAL@ and AHIGHLY CONFIDENTIAL@ discovery material.

5. Confidential Information in Depositions and Other Discovery.

(a) A deponent may during the deposition be shown, and examined about, confidential discovery material consistent with paragraphs 3 and 4.

 

(b) Parties and deponents may, within ten days after receiving a transcript of a deposition, designate pages of the transcript (and exhibits thereto) as confidential information to the extent the transcript contains material or information entitled to the designations appearing in paragraph 1 above.  Such confidential information within the deposition transcript may be designated only by marking the relevant portions of the pages and inserting on such pages the appropriate designation.  Until the expiration of the 10-day period during which designations may be made, the entire deposition will be treated as subject to protection as HIGHLY CONFIDENTIAL under this Order.  Confidential information appearing in deposition transcripts shall be tendered pursuant to the provisions of paragraph 9 of this Order, separate from the remaining portions of the transcript.  If any depositions are videotaped, those portions of the videotape corresponding to portions of the deposition transcript containing confidential information shall be afforded the same status. If confidential information appears in written responses to discovery requests of any kind, such answers or responses shall be marked CONFIDENTIAL and shall be separately bound.

6.            Declassification of Confidential Discovery Material.

 

(a) Application to strike designation:  Any party seeking to challenge another person=s designation of confidential information may make, at any time until 20 days prior to the final pretrial conference ordered by the Court and in the manner prescribed by the Federal Rules of Civil Procedure and the Local Rules, a motion to strike the designation.  Such motion shall identify with specificity the confidential discovery material that is the subject of the motion, but shall not disclose or reveal the contents of that material except in the manner prescribed by paragraph 9 of this Order.  If such a motion or application is made, all discovery material designated as confidential information shall maintain that status pending the Court=s resolution of the motion.

 

(b) Conference Required:  Any party seeking to challenge another person=s designation of confidential information shall, prior to making a motion to strike such designation, contact the party or person that designated the discovery material and make a good faith effort to resolve any dispute concerning the designation by agreement or stipulation.  A motion to strike shall identify the moving party=s efforts to comply with this subsection and shall state that the parties were unable to resolve the dispute concerning the confidential designation.  A motion to strike a confidential designation made in violation of this paragraph shall be denied

7. Inadvertent Failure to Designate.  The inadvertent failure of a party or person to designate discovery material as confidential shall not operate as a waiver of the discovery material=s confidential status.  A party or person inadvertently producing confidential discovery material without so designating it may designate such information as confidential at any time after its production. Once such a designation has been made, the relevant discovery material shall be treated as confidential in accordance with this Order.  No party or person shall be deemed to have violated this Order if, prior to notification of any later designation, such discovery material has been disclosed or used in a manner inconsistent with the later designation.

 

8. Inadvertent Production of Privileged Discovery Material.  A party=s or person=s inadvertent production of discovery material subject to the attorney-client privilege, the work-product doctrine, or any other applicable privilege or protection from disclosure shall not waive such privilege or protection from disclosure.  Within five days of receiving written notice from the party or person that inadvertently produced the privileged discovery material, any party or person with possession, custody, or control of such discovery material shall (i) promptly return all copies of such discovery material to the party or person originally producing it and (ii) not use that discovery material or the information contained therein for any purpose.  No party or person shall be deemed to have violated this Order if, prior to notification of such a claim of privilege or protection from disclosure, such discovery material has been disclosed or used in a manner inconsistent with the privilege or protection from disclosure.

9. Filing of Confidential Discovery Material. All discovery requests, answers to discovery requests, deposition transcripts, briefs or any other papers that the parties or non‑parties file in this or any other action that attach, quote or refer to claimed confidential information or claimed confidential documents produced by any party or non-party, or portions of deposition transcripts that contain claimed confidential information, and which a party or non-party hereto expressly designates as confidential shall be filed under seal.  Filed material that is subsequently determined not to be confidential will be unsealed.

10. Confidential Documents and Materials at Trial.  The parties shall meet and confer to negotiate a proposal for Court approval addressing the treatment of confidential material at trial.  Such proposal shall be submitted to the Court as a part of or contemporaneously with the Joint Pretrial Statement.  To the extent the parties fail to agree on a proposal addressing the use of confidential material at trial, they may submit alternative proposals to the Court.

11. Application to New Parties and Non-Party Witnesses.

(a) New parties:  The terms of this Order shall be binding upon all current and future parties to this action and their counsel.  Within ten days of a new party=s appearance in this Action, counsel for the party which added the new party shall serve a copy of this Order on such new party=s counsel.

 

(b) Non-party witnesses:  Any non-party producing discovery material or giving deposition testimony in this Action may avail itself of the confidential treatment provided for in this Order for their testimony and discovery material by following the procedures provided herein.

  1. Further Requests for Production.  If, at any time, any confidential discovery material in the possession, custody or control of any person other than the person who originally produced such confidential documents or materials is subpoenaed or requested by any court, administrative agency, or other person or entity, the person to whom the subpoena or request is directed shall immediately provide written notice to the person who originally produced such confidential documents or materials within five business days.  The person to whom the subpoena or request is directed shall not take any position concerning the propriety of such request or subpoena or the discoverability of the information sought thereby that is adverse to the person or persons who originally produced such confidential documents or materials opposing the request for production of such documents or materials.

  2. Preservation of Rights.     Entering into, agreeing to or producing or receiving materials or otherwise complying with the terms of this Order shall not:

(a) Operate as an admission by any party or non-party that any particular discovery material contains or reflects any confidential matter; or

(b) Prejudice in any way the rights of any party or non-party to object to the production of documents it considers not subject to discovery; or

(c) Prejudice in any way the rights of a party or non-party to seek a Court determination whether particular discovery material should be produced.

  1. Termination.  The provisions of this Order shall continue to be binding after final termination of this Action.  Within 90 days after entry of a final judgment in this Action, including any appeals, any party or person who received any discovery material designated for confidential treatment must, at the option of the receiving party or person, (i) return such documents and materials to the party or person who produced them, or (ii) certify in writing to counsel to the producing party or person that the receiving party or person has destroyed those documents and materials and the portions of all other material containing such confidential information.  Confidential information filed under seal with the Court shall at the conclusion of the litigation remain permanently sealed by the Court.  Counsel representing parties to this Action may, at their election, retain a single copy of all documents containing confidential information filed under seal with the Court.

  2. Modification Permitted.  Nothing herein shall prejudice the right of the parties to move to amend or modify this Order to permit the disclosure or use of discovery material produced or otherwise disseminated pursuant hereto for good cause shown and where the proposed disclosure is in the interest of justice.

  3. Responsibility of Attorneys.  The attorneys of record are responsible for employing reasonable measures to control, consistent with this Order, duplication of, access to, and distribution of copies of confidential discovery materials.