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Qwest Corp. v. AT&T Corp.

February 6, 2006

QWEST CORPORATION, PLAINTIFF,
v.
AT&T CORP., ET AL., DEFENDANTS.



The opinion of the court was delivered by: Boyd N. Boland United States Magistrate Judge

STIPULATED PROTECTIVE ORDER

Discovery in this action involves or may involve the disclosure of documents, material, and information potentially entitled to protection under Fed. R. Civ. P. 26(c), including, but not limited to, proprietary business information, financial information, and product information of the parties. Pursuant to Rule 26(c),

IT IS HEREBY ORDERED THAT the following terms and conditions shall apply to all documents, material, and information disclosed in the course of discovery in this action that any party may deem to be potentially entitled to protection under Fed. R. Civ. P. 26(c):

1. Definitions

(a) "Confidential Material" shall mean all documents, material, and information entitled to protection under Fed. R. Civ. P. 26(c) and designated pursuant to paragraphs 2 and 3 hereof, including, but not limited to, interrogatory answers, responses to requests for admission, documents produced during discovery by any party in this action, whether produced voluntarily, in response to an informal request, in response to a formal discovery request, or pursuant to the order of a court of competent jurisdiction, deposition testimony and/or transcripts, and any portions of pleadings, court papers or any other documents that quote from or summarize any of the foregoing.

(b) "Producing Party" means any person, whether or not a party to this Proceeding, who produces Confidential Material in the course of any pretrial activities or settlement of this lawsuit, including but not limited to in response to discovery requests propounded pursuant to Fed. R. Civ. P. Rules 26 through 37 or Rule 45.

(c) "Receiving Party" means any person, whether or not a party to this Proceeding, who has received Confidential Material from a Producing Party in the course of litigation or settlement of this lawsuit.

2. Two Types of "Confidential Material"

Any party may designate any document, material, or information produced by it to any other party as "Confidential Material." There shall be two designations of "Confidential Material": (a) Confidential; and (b) Highly Confidential. Confidential Material shall include documents, information, and material that constitutes or reveals a trade secret or other confidential research, development or commercial information that is subject to protection under Fed. R. Civ. P. 26(c). Producing Parties shall not designate as "Confidential" any material that constitutes information that is publicly available at the time of disclosure. "Highly Confidential" material shall include only particularly sensitive material that constitutes or reveals trade secrets (including, but not limited to, technical information regarding a party's telecommunications and data networks and information regarding products or services), financial information or plans, or business plans. Confidential Material designated as Confidential and Confidential Material designated as Highly Confidential shall be treated in the same manner under this Order, except that Confidential Material designated as Highly Confidential shall be entitled to certain additional protections described below in paragraph 8.

3. Designation of Material as "Confidential Material"

A Producing Party may designate any document, material, or information produced by it to any other party as Confidential Material, pursuant to these procedures:

(a) In the case of documents or other written or recorded information, the Producing Party shall mark the information with the legend "CONFIDENTIAL" or "HIGHLY CONFIDENTIAL," as appropriate, on all pages of any document or on the face of, or in some similar and conspicuous manner, any machine-readable medium of electronic information. A Producing Party shall make the designations permitted hereunder either at the time the material is produced or prior to the time that it is made available for inspection. If a document containing Confidential Material is so designated and marked as a deposition exhibit, such exhibit, if filed, shall be filed under seal.

(b) If testimony concerning Confidential Material is elicited at a deposition, hearing or at trial, such testimony shall be treated as Confidential Material for thirty (30) days. During that thirty (30) day period, counsel for any party may designate the entirety of, or a specified portion of, the transcript of such testimony as Confidential Material. If such a designation as Confidential Material is made, such transcript or such portion thereof shall be so treated and filed under seal. Any transcript of testimony or portion thereof not designated as Confidential Material within the thirty (30) day period shall not be treated as Confidential Material after the expiration of the thirty (30) day period.

(c) Any document, material, or information designated by a party as Confidential Material must be reviewed by an attorney. The designation of any document, material, or information as Confidential Material, in the manner described hereunder, shall constitute a certification by the attorney reviewing the material and making such designation that he or she in good faith believes the material is confidential or otherwise entitled to protection under Fed. R. Civ. P. 26(c)(7). The parties shall endeavor to limit the use of the Confidential and Highly Confidential designations to those documents and materials that genuinely warrant the protection provided under the terms of this Stipulated Protective Order.

(d) Section 3(c) above notwithstanding, the parties acknowledge that material has been designated as Confidential and Highly Confidential prior to the entry of this Order under standards for such designations that may differ from those set forth herein. The parties further acknowledge that no party is obligated to re-designate such previously-designated material under the standards set forth herein. The parties shall, however, have the right, under the standards and procedures set forth herein, to challenge the designation of material as Confidential or Highly Confidential pursuant to the procedures set forth in Section 19 17 below.

4. Inadvertent Failure to Designate

A Producing Party that inadvertently fails to designate its material as Confidential or Highly Confidential may so designate it promptly after discovering the error. The Producing Party shall so designate in writing to every Receiving Party and shall either provide replacement copies of all documents affected by the change bearing the "CONFIDENTIAL" or "HIGHLY CONFIDENTIAL" legend or, if agreeable to the Receiving Party, reimburse the Receiving Party for the actual cost of remarking the affected documents. In that event, and from that time forward, the provisions of this Stipulated Protective Order shall apply to the newly designated material, and the Receiving Party shall make reasonable efforts to return any unmarked Confidential Material to the Producing Party within five (5) business days of any written notice requesting its return, and to retrieve the Confidential Material from those to whom it previously had been disclosed, but shall have no other responsibility or obligation with respect to the earlier dissemination.

The Receiving Party may thereafter challenge the appropriateness of the Producing Party's designation of the Confidential Material as such, but the inadvertent production of the Confidential Material without the confidentiality designation shall not constitute a waiver of any claim of confidentiality.

5. Treatment of Confidential Material

All Confidential Material shall be treated in accordance with the provisions of this Order until such designation has been released by the Producing Party or by order of the Court. Nothing herein, however, shall limit disclosure of Confidential Material by the Producing Party, but such disclosure may be used as evidence of a waiver of a right to protection in any proceeding hereunder challenging such designation.

6. Disclosure of Confidential Material in General

Confidential Material may be disclosed only to the following and solely for the purposes of preparing for, prosecuting, defending, or appealing this action:

(a) Employees and agents of the parties who have been provided with a copy of this Stipulated Protective Order and advised that they are bound by its terms;

(b) Counsel for the parties, including in-house counsel who are involved in prosecuting or defending this case, outside counsel, associates, legal assistants, paralegals, secretarial and clerical employees, and outside services (including, without limitation, copy services, litigation ...


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