United States District Court, D. Colorado
Counsel for Plaintiff Fiber, LLC George G. Matava, Donald E. Lake, III, Thomas A. Dougherty LEWIS BRISBOIS BISGAARD & SMITH LLP, Steven M. Shape LEWIS BRISBOIS BISGAARD & SMITH LLP
Counsel for Defendant Alcatel-Lucent USA Inc. Hiwot Molla Covell, Robert R. Brunelli SHERIDAN ROSS, P.C., Allison H. Altersohn KING & SPALDING LLP
CONFIDENTIALITY AND PROTECTIVE ORDER
R. BROOKE JACKSON UNITED STATES DISTRICT JUDGE
Discovery in this case may involve the production of documents and/or witness testimony containing confidential information. For good cause shown, pursuant to Federal Rules of Civil Procedure 26(c) and 29, IT IS HEREBY ORDERED THAT:
1. This Order governs the handling of all Confidential Material (as defined herein), whether, by way of example and not limitation, it be documents, testimony, transcripts, responses to discovery requests, tangible things, digital information, recordings, whether audio, video or otherwise, or other information, including copies, excerpts, and summaries of such material, that is produced, disclosed, filed, or otherwise provided by Plaintiff Fiber LLC (“Plaintiff” or “Fiber”), Alcatel-Lucent USA Inc. (“Defendant” or “ALU-USA”), or any non-party in connection with discovery or other proceedings in the above-captioned action (hereinafter “action”).
2. Any party or non-party shall have the right for purposes of this Order to designate as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL/ATTORNEYS’ EYES ONLY” any material that it in good faith reasonably believes contains non-public, confidential, personal, proprietary, trade secret, or other commercially and competitively-sensitive information (hereinafter “Confidential Material”). The party or non-party designating such Confidential Material is referenced herein as the “Designating Person.” The party or non-party that receives such Confidential Material is referenced herein as the “Receiving Party.”
3. No information that is in the public domain at the time of disclosure, or becomes part of the public domain as a result of publication not involving a violation of this Order, or which is already known by the Receiving Party through proper means or which is or becomes available to a party from a source other than the party asserting confidentiality, rightfully in possession of such information on a non-confidential basis, shall be deemed or considered to be Confidential Material under this Order.
4. All Confidential Material and the substance and content thereof, including any copies, notes, memoranda, summaries, excerpts, compilations, or other similar documents relating thereto shall be used by a Receiving Party solely for purposes of this action, shall not be used by the Receiving Party for any business, commercial, competitive, personal or other purpose, and shall not be disclosed by the Receiving Party to anyone other than those set forth in Paragraphs 12 and 13 as applicable, unless and until the restrictions herein are removed either by written agreement of counsel for the parties, or by order of the Court. If Confidential Material is disclosed or comes into the possession of any person other than in the manner authorized by this Order, any party having knowledge of the disclosure must immediately inform the producing party (and, if not the same person or entity, the Designating Party) and shall make reasonable efforts to retrieve such Confidential Material and to prevent further disclosures. It is, however, understood that counsel for a party may give advice and opinions to his or her client solely relating to the action based on his or her evaluation of Confidential Material, provided that such advice and opinions shall not reveal the content of such Confidential Material and any information contained therein except by prior written agreement of counsel for the Designating Party, or by order of the Court. Such Confidential Material may not be used or disclosed except as provided in this Order.
5. The designation of Confidential Material for purposes of this Order shall be made as follows:
(a) at the time a Designating Person produces or otherwise provides documents, interrogatory responses, or other written material, the Designating Person shall have the term “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL/ATTORNEYS’ EYES ONLY” stamped in a conspicuous place on each page containing Confidential Material, or otherwise indicated. For protected ESI produced in image format (PDF or TIFF), the production images shall be marked with the appropriate confidentiality designation. For Protected ESI produced in native format, the file name shall contain the appropriate confidentiality designation (e.g., SMITH0001Confidential.xls). The corresponding image placeholder shall also be marked with the appropriate confidentiality designation;
(b) Transcripts of depositions, other pretrial testimony, and exhibits thereto shall be designated as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL/ATTORNEYS’ EYES ONLY” by counsel for the Designating Person either by stating on the record at the time of disclosure that the testimony and/or exhibits are “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL/ATTORNEYS’ EYES ONLY”, or by providing written notice within twenty-one (21) calendar days after receipt of the final transcript that such testimony is “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL/ATTORNEYS’ EYES ONLY” and requesting that the transcript be clearly marked as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL/ATTORNEYS’ EYES ONLY”. All deposition transcripts shall be treated as “HIGHLY CONFIDENTIAL/ATTORNEYS’ EYES ONLY” until the twenty-one (21) day time period within which it may be appropriately designated as provided herein has passed; or
(c) at the time a Designating Person produces or otherwise provides other tangible things, the Designating Person shall have the term “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL/ATTORNEYS’ EYES ONLY” stamped on or otherwise indicated for them in a prominent place.
(d) Any document or other thing marked “ATTORNEYS’ EYES ONLY” shall be considered to mean “HIGHLY CONFIDENTIAL/ATTORNEYS’ EYES ONLY.” 6. Any copies, excerpts, summaries, or other disclosure of the substance or contents of any material that is designated as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL/ATTORNEYS’ EYES ONLY” shall also be treated as having the same designation and shall be appropriately marked with the legend “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL/ATTORNEYS’ EYES ONLY.” 7. In the event that a party or non-party inadvertently omits to apply a “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL/ATTORNEYS’ EYES ONLY” designation to any material at the time it is produced or disclosed, such party or non-party shall have the right to so designate such documents within a reasonable period of time after the omission comes to that person’s attention.
8. In the event that a Receiving Party disagrees with any “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL/ATTORNEYS’ EYES ONLY” designation, the Receiving Party and the Designating Person shall confer, pursuant to Federal Rule of Civil Procedure 37(a)(1) and Local Rule 7.1(a), and attempt in good faith to resolve the disagreement. If, after conferring, the disagreement is not resolved, the Receiving Party shall move the court challenging the designation of a particular item; however, on such motion, the Designating Party shall have the burden of proving the propriety of the designation. Until the Court rules on such a challenge, the material shall be treated as it is designated and subject to the terms of this Order. No party is obligated to challenge the propriety of any designation at the time such designation is made, and a failure to then do so shall not preclude a subsequent challenge to the propriety of such designation.
9. Nothing herein shall prevent disclosure beyond the terms of this Order if the Designating Party specifically consents in advance in writing to such disclosure, or if a court, after notice to all parties, orders such disclosure.
10. Any Designating Person shall not be restricted in any manner with respect to the use and/or disclosure of the Designating Person’s own Confidential Material.
11. Any documents or tangible things designated as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL/ATTORNEYS’ EYES ONLY” that are submitted to the Court in support of or in opposition to a motion or introduced at a hearing or during trial may retain its protected confidential status only by order of the Court, as outlined in the Court’s Practice Standards.
12. Documents and other material designated as “CONFIDENTIAL” pursuant to the terms of this Order may be disclosed only to:
(a) No more than two (2) in-house counsel, or directors, (who are not involved in research or development for the Receiving Party, and who agree not to be involved in research or development for the Receiving Party for a period of 3 (three) years) of a party or its affiliates, as well as any immediate paralegals and staff of the party actually assisting the party’s outside counsel of record or in-house counsel in preparation of this action, to whom the party’s outside counsel of record reasonably believes disclosure is necessary to prepare for discovery, motions, briefs, trial, or appeal in this action, ...