Stipulation Re Confidential Information: Oasis v. West, December 5, 1995

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OASIS PUBLISHING COMPANY, INC.
Plaintiff,
V.
WEST PUBLISHING COMPANY
Defendant.

STIPULATION AND PROTECTIVE ORDER
REGARDING CONFIDENTIAL INFORMATION

Pursuant to Federal Rule of Civil Procedure 26, and it appearing that discovery in the above-entitled action is likely to involve the disclosure of confidential information,

IT IS HEREBY ORDERED as follows:

1. All documents, matrials, items, testimony or information which contain or comprise a trade secret or other confidential, technical, development, financial or commercial information produced or Wed with the Court or produced or served either by a party or by a non-party to or for any of the parties shall be government by this Protective Order.

2. Any documents, materials, items, testimony or information filed with the Court or produced or provided by any party or non-party as part of discovery in this action may be designated by such party or non-party as "Confidential." As a general guideline, materials designated "Confidential" shall be those things of a proprietary business or technical nature which the designating party or non-party does not disclose to third parties in the ordinary course of its business without restriction, and which therefore should be protected from disclosure to the other party in this action and/or third parties. Absent a specific order by this Court, such information, once designation as "Confidential" shall be used by the receiving party in connection with this litigation, and not for any business, competitive or governmental purpose or function, and such information shall not be disclosed to anyone except as provided in this Protective Order.

3. Documents, materials, items, or testimony designated "Confidential" pursuant to this Protective Order, or copies or extracts therefrom, and compilations and summaries thereof, or any written or oral communication or derivative based thereon; and the information therein, may be given, shown. made available to or communicated in any way only to the following persons: (a) counsel of record for the parties in this litigation, including necessary legal assistants assisting such counsel and necessary secretarial and clerical personnel assisting such counsel; (b) qualified persons taking testimony involving such documents or information and necessary stenographic and clerical personnel thereof; (c) experts or consultants employed for the purposes of this litigation and necessary staff assisting such experts or consultants; (d) the Court, the Court's staff, and the Special Master and necessary staff assisting the Special Master; and (e) not more than three other employees or officers of each paM. However, the persons identified in subsections (c) and (e) of this Paragraph shall not be permitted access to materials or information designated "Confidential' unless and until they sign a written acknowledgment that the person has read this Protective Order and agrees to be bound by its terms. Counsel of record shall retain copies of all such executed acknowledgments, shall maintain a log of all documents reviewed, the dates upon which they have been reviewed, and maintain a file with copies of all notes made.

4. Certain documents, materials, items, testimony or information may be designated by a party or non-party as "Confidential - Attorneys' Eyes Only." Documents, testimony, information and other things designated "Confidential - Attorney's Eyes Only" may be disclosed only to the persons identified in Paragraphs 3(a), 3(b) and 3(d) of this Protective Order and to Persons identified in Paragraphs 3(c) of this Protective Order only as Provided in Paragraph 5 below, and shall not be disclosed to any party or other person referred to in Paragraph 3 of this Protective Order or otherwise. The designation 'Confidential - Attorneys' Eyes Only' shall be VOW strictly. Such information may fall into one or more of the following categories: 1. Future Business Plans 2. Current Business Plans 3, New Product Development 4. New Business Development (for old products) S. Trade Secrets 6. competitor market Analyses 7. Customer Lists 8. Internal Financial/Accounting information 9. Operations Information 10. Distributor Agreements and Licenses 11. Agreements With Consultants For Development of Software 12. Agreements With Consultants For Development of CD-ROM and CD-ROM Related Products 13. Agmements With Sales Representatives 14. Prices Charged To Customers 15. Business Relationships With Third Parties 16. Confidential Research

All documents, testimony, information or other things designated 'Confidential - Attorneys' Eyes Only" are included within the meaning of 'Confidential" information as used in this Protective Order and, except with respect to the classes of individuals who may view "Confidential-Attorneys' Eyes Only" information, all the provisions set forth in the Protective Order that apply to "Confidential" information also apply to material designated "Confidential - Attorneys' Eyes Only. 5. The procedure for having a person described in Paragraph 3(c) approved for access to information designated "Confidential - Attorneys' Eyes Only" shall be as follows, a. The party seeking to have a person approved shall provide in writing to each party or non-party who has designated material or information "Confidential - Attorneys' Eyes Only": i) The name of the person; P. 3 ii) The present employer and title of the person;

iii) The person's curriculum vitae,

iv) A written acknowledgment substantially in the form of Exhibit A hereto, signed by, the person for whom approval is sought, that the person has read this Protective Order and agrees to be bound b. Within three business days of receipt of the information and written acknowledgment described in subparagraph 5(a), the designating party or non-party may serve a written captioned notice of objection to the person proposed for approval if facts available to the designating party or non-party give it reason to believe that there is a reasonable likelihood that the proposed person may use information designated "Confidential" for purposes other than the preparation or trial of this case. Failure to serve a written notice of objection within five business days to a person proposed herein shall be deemed approval. c. If an objection to a person proposed for approval pursuant to this Paragraph is not resolved within three days of service of the written notice of objection described in subparagraph 5(b) or such other period of time as shall be agreed to by the parties in the course of attempting to resolve an objection, the party seeking to have the person approved may file a motion with respect to such objection. The disclosure of "Confidential - Attorneys' Eyes Only" information to such proposed person shall be withheld pending the ruling of the Court on any such motion. 6. Any party or non-party wishing to come within the provisions of this Protective Order shall designate the documents. materials, items or information, or portions thereof, which he or she or it considers confidential at the time such documents or items are produced or such information is disclosed, or as soon thereafter as the person or entity seeking protection becomes aware of the nature of the information or materials disclosed and sought to be protected. With respect to documents, the items produced must be marked or stamped "Confidential' or 'Confidential - Attorneys' Eyes Only" by the producing party or non-party. With respect to deposition testimony, the witness under deposition or his counsel, and/or any counsel representing any party at the deposition, shall invoke the provisions of this Protective Order in a timely manner, giving adequate warning to counsel for the party or non-party that testimony about to be given is deemed confidential. The provisions of this Paragraph may be invoked by counsel for a witness with respect to the witness's entire deposition, or any portion thereof, at any time during the deposition. 7. All documents, materials, items or information designated "Confidential" "Confidential - Attorneys' Eyes Only" shall be kept in secure facilities, and access to tho facilities shall be permitted only to those persons set forth in Paragraphs 3 and 4 of this Protective Order as persons properly having access thereto. 8. Documents, materials, items, testimony and information designated 'Confidential' or "Confidential - Attorneys' Eyes Only," where filed with the Court, shall be delivered to the Clerk of the Court and shall not be available to public inspection. Envelopes used to such documents shall carry the notation: "THIS DOCUMENT CONTAINS CONFIDENTIAL BUSINESS INFORMATION AND IS BEING SUBMITTED UNDER SEAL PURSUANT TO A PROTECTIVE ORDER DATED 1995," and shall specify whether the information contained within is "Confidential" and/or "Confidential - Attorneys' Eyes Only" and the whose confidential information is contained therein. Any party may object to such filing under seal within two (2) business days of receiving notice of the filing under seal. In the event the a party so objects, any party may move to maintain the filing under seal within three (3 business days of receipt of the objection, or such other period of time as shall be agreed to by the parties in the course of objection to resolve an objection. If such a motion to maintain the sealing is timely made, documents, materials, items or information filed under seal pursuant to this Paragraph shall remain under seal until such time as the Court orders otherwise. 9, If any document or information designated "Confidential" or 'Confidential -Attorneys' Eyes Only" pursuant to this Protective Order is used during the course of a deposition, the portion of the deposition record reflecting such information shall be sealed and stamped "Confidential" or "Confidential - Attorneys' Eyes Only," whichever is appropriate, and access thereto shall be limited pursuant to the other terms of this Protective Order. 10. A deposition witness may be shown "Confidential" or "Confidential - Attorneys' Eyes Only' materials by an attorney then conducting the examination of that witness in the following conditions without any waiver of its confidential status:

a. any witness may be shown a document in which the witness is identified as a signatory, author, addressee or recipient of a copy;

b. a current officer, director or employee of a party may be shown any document designated as confidential by that party;

c. an officer, director of a party or other witness designated by a party pursuant to Rule 30(b)(6) of the Federal Rules of Civil Procedure may be shown any document designated as confidential by that party;

d. a former officer, director or employee of a party may be shown a document designated as confidential by that party if it appears from the face of the document that the witness previously had access to the document while employed by the party, provided that the witness agrees on the record before looking at the document that he or she will hold in confidence and will not disclose the information contained in the document.

11. A providing party that inadvertently fails to mark an item as "Confidential" or "Confidential - Attorneys' Eyes Only" at the time of the production shall have five (5) business days thereafter in which to correct its failure. Such correction and notice thereof shall be made in writing, accompanied by substitute copies of each item, appropriately marked as confidential. Within five (5) days of receipt of the substitute copies, the receiving party shall return or destroy the previous unmarked items and a copies thereof. Until expiration of the aforesaid five business day period, all items produced shall be considered and treated as "Confidential Attorneys' Eyes Only."

12. Counsel attending a deposition who inadvertently fails to designate any portion of the transcript as 'Confidential' or "Confidential - Attorneys' Eyes Only" on the record at the deposition shall have five (5) business days following receipt of the transcript from the court reporter in which to correct his or her failure. The person receiving the transcript shall immediately notify all other parties of the receipt by facsimile. Such collection and notice thereof shall be made in writing to the reporter. with copies to all other counsel, designating the portion(&) of the transcript that contain confidential information, and directing the reporter to mark that portion of the transcript accordingly.

13. If information designated 'Confidential" or "Confidential - Attorneys' Eyes Only" pursuant to this Protective Order is disclosed to any person other than in the manner authorized by this Protective Order, the party responsible for the disclosure must immediately bring all pertinent facts relating to such disclosure to the attention of all interested parties, to the Court and, without prejudice to other rights and remedies of the designating party, shall make every effort to prevent further disclosure by it or by the person who was the recipient of such information.

14. a. If at any time during the pendency or trial of this action, counsel for any party claims that information produced herein and designated as "Confidential" or "Confidential -Attorneys' Eyes Only' is not appropriately so designated, objecting counsel may serve a captioned notice of objection on all parties and affected entities, identifying with particularity the items as to which the designation is challenged, stating the basis for each challenge, and proposing a new designation for each item. If the designating party does not redesignate material within five (5) business days after service, the objecting entity may file and serve, a motion for an order that the material be redesignated. The burden of proof in such a motion shall be on the party seekng the redesignation. b. Prior to bringing any motion, the parties will confer and agree with the, Special Master upon a schedule of no more than ten (10) days to submit briefs, C. If documents or testimony deemed -Confidential" or "Confidential - Attorneys" Eyes Only" are inadvertently filed by either party without appropriate protection, the parties agree that such filing is not a waiver of any claim of confidentiality and corrective action may be taken. 15. The terms of this Protective Order shall apply to all manner and means Of discovery, including entry onto land or premises and inspection of books, records, documents and tangible things. 16. Unless the parties stipulate otherwise, evidence of the existence or nonexistence of a designation under this Order shall not be admissible for any purpose, nor shall the designation or acceptance of any information designated pursuant to this Order constitute an admission or acknowledgment that the material so designated is in fact proprietary, confidential or a trade secret. 17. Notwithstanding any other provision of this Order to the contrary, the confidentiality obligations of this Order shall not apply or shall cease to apply to any information that: a. At the time of disclosure hereunder, was already in the public domain by publication or otherwise; b. Since the time of disclosure hereunder-, has become, through no act or failure on the pan of the receiving party, part of the public domain by publication or otherwise; C. At the time of disclosure, was alreay in the possession of the receiving party and was not acquired directly or indirectly from the producing party or from any third party under obligation of confidence to the producing party; d. After disclosure hereunder, was acquired by the receiving party from a third party lawfully possessing the same, and having no obligation to the producing party hereunder; or, C. The disclosing party agrees may be disclosed to a third party under no obligation of confidentiality. The party claiming that he or she is relieved of the obligations of this Order by operation. of any of paragraphs 17(a)-(d) shall have the burden of proving that any of the provisions of paragraphs 17(a)-(d) apply. 18. Upon termination of this litigation upon settlement or final judgment including exhaustion of all appeals, the originals and all copies of confidential materials and/or information shall be either destroyed or turned over to the party or non-party who produced such material, or to their respective counsel, within sixty days. However, retained counsel may retain pleadings, attorney and consultant work product and correspondence between counsel. 19. The terms of this Protective Order shall survive termination of this action.

Dated: November 27 , 1995

Respectfully submitted,

SCHATZ PAQUIN
LOCKREDGE GRINDAL & HOLSTEIN P.L.L.P.
Joseph M. Musilek

Monica C. McCarty

Joseph Musilek, #00023
for Defendant
West Publishing Company

9

Dated: November 30, 1995

POPHAM HAIK
SCHNOBRICH & KAUFMAN, LTD.
Bruce Little

Ix Attorneys for Plaintiff
Oasis Publishing ComPany, Inc.

Dated: December 5 , 1995

SO ORDERED

Jonathan Lebedoff
Magistrate Judge

10

EXHIBIT A To Stipulation and Protective Order

I have read the Stipulation and Protective Order Regarding Confidential Information entered by the Court on 1995 in QWs Publishig Company, Inc. v.. West Publishing C No. Civ 3-95-563 (the "Stipulation and Order"). I understand the provisions of the Stipulation and Order and I understand the responsibilities and obligations the Stipulation and Order imposes on persons viewing the confidential material which is subject to the Stipulation and Order. I understand that any violation of the terms of the SEipulation and Order may constitute contempt of a court order. In accordance with Paragraph 5 of the Stipulation and Order, so as to permit me to view materials designated 'Confidential - Attorney's Eyes Only' pursuant to the Stipulation and Order, I hereby agree to be bound by all of its provisions and terms, I further agree to be subject to jurisdiction in the Federal District Court of Minnesota Third Division with respect to any dispute, regarding to my compliance with the provisions and terms of the Stipulation and Order.

- Subscribed and sworn to before

me this --- - day of , 1995. 1

Notary Public