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Appendix D for Managing Intellectual Property Litigationby Lee Carl Bromberg Protecting Intellectual Property Assets © 1997 Lee Carl Bromberg Appendix D United States District Court District of Massachusetts
________________________________
)
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STORAGE SYSTEMS, INC. )
Plaintiff, )
)
) Civil Action No.
v. ) 95-CV-9964
)
)
PACEMAKER FURNITURE, INC., )
Defendant. )
)
________________________________)
STIPULATION AND PROTECTIVE ORDER The parties herein have stipulated that certain information, documents and things of the parties subject to discovery in this action may be claimed to be or contain a trade secret or other confidential research, development or commercial, information hereinafter collectively referred to as "Confidential Information." In the interest of permitting discovery to proceed without delay occasioned by possible disputes regarding such claims of Confidential Information, the parties have further stipulated to provide access to and to accept such information, documents and things subject to certain protective provisions hereinafter set forth. In view of these stipulations, the Court finds that good cause exists for issuance of a protective order. Therefore, pursuant to Fed. R. Civ. P. 26(c), IT IS HEREBY ORDERED: 1. This Stipulation and Protective Order shall apply to all information, documents and things subject to the discovery in this action, including without limitation, self-executing disclosure pursuant to Rule 4:01 of the Civil Justice Expense and Delay Reduction Plan of this Court, testimony adduced at depositions upon oral examination or upon written questions pursuant to Rules 30 and 31, answers to interrogatories pursuant to Rule 33, documents produced pursuant to Rule 34, information obtained from inspection of premises or things pursuant to Rule 34, and answers to requests for admission pursuant to Rule 36. 2. Any information designated as Confidential Information by a disclosing entity during discovery in this litigation, shall be used by the receiving party solely for the purpose of the prosecution or defense of this litigation, and for no other purpose or publication whatsoever, whether directly or indirectly. 3. All documents and things produced herein by each disclosing entity shall bear identifying numbers at the time a copy is given to the receiving party. 4. Each document, or any portion thereof, produced for inspection which discloses information deemed by the disclosing entity in good faith to be Confidential Information subject to the provisions of this protective order shall be so identified by including thereon the legend "CONFIDENTIAL" together with the name of the party claiming confidentiality. 5. Each transcript of a deposition of a disclosing entity1 and exhibits thereto shall be presumptively deemed confidential and subject to the provisions of this protective order for a period of thirty (30) days following receipt of said transcript by counsel for the deponent. At the end of said thirty (30) days, counsel for the deponent may designate certain pages and exhibits as "CONFIDENTIAL" by notifying all counsel of record in writing of said designation, and such pages and exhibits shall be treated as subject to the terms of this protective order. Counsel for each party shall be responsible for marking the designated pages of copies of the transcript and exhibits in their possession with the legend specified in paragraph 3 hereof.
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1Reference hereafter to a "disclosing entity" shall include parties as well as non-party persons or entities subject to discovery. The provisions of this order shall fully apply to Confidential Information provided by such persons or entities._______________________ 6. Information, documents, and things produced or identified as confidential by a disclosing entity shall not be made public by the receiving party or divulged to anyone other than as follows: (a) Attorneys for defendant, the firm of Turnwell & Treadle; (b) Attorneys for plaintiff, the firm of Bromberg & Sunstein LLP; (c) Defendant's and plaintiff's respective "in-house counsel," which shall refer to attorneys who are employees of a party or a related company with whom outside counsel may deem it necessary to consult for the preparation or trial of this case; provided, however, that: (i) Each of the foregoing in-house counsel to whom Confidential Information is disclosed shall, in a written instrument delivered to counsel for the disclosing entity prior to receiving any of the disclosing entity's Confidential Information, acknowledge that he or she is fully familiar with the terms of this Order and that he or she agrees to be bound by this Order until modified by a further Order of the Court. (ii) In-house counsel who execute the aforementioned written instrument of acknowledgment (hereafter the "acknowledgment"), agree to submit to the jurisdiction of this Court for enforcement of this Order and represent and warrant that:
(d) Not more than four (4) independent experts for plaintiff and not more than four (4) independent experts for defendant, who are not regularly employed by or associated with a party hereto and whose advice and consultations are being or will be used by a party hereto only in connection with preparation for trial or trial of this action; provided, however, that: (i) the name, address, and a summary of the background of any such independent expert shall be furnished to the attorneys for the disclosing entity which has claimed the protection of Confidential Information ten (10) days before access to the Confidential Information is to be given to such expert; (ii) if the party receiving such notification serves within ten (10) days thereafter a written objection to such access and states the reasons therefor, the party who gave notification shall not proceed with access but shall be obliged to move this Court for an order permitting such independent expert to be given access to the Confidential Information; and (iii) in the event that no objection to such disclosure is made by counsel for the disclosing entity within ten (10) business days of such notification, counsel for the receiving party may disclose such Confidential Information to such expert(s) so long as each of the foregoing expert(s) shall, in a written instrument delivered to counsel for the disclosing entity prior to receiving any of the disclosing entity's Confidential Information acknowledge that he or she is fully familiar with the terms of this Order and that he or she agrees to be bound by this Order until modified by a further Order of the Court; and (e) Associates, stenographic, clerical and support staff employees of the persons defined in paragraphs 5(a), 5(b), 5(c) and 5(d) hereof whose functions require them to have access to the Confidential Information. 7. Each interrogatory answer or portion thereof, each premise or thing or portion thereof, and each answer to a request for admission or portion thereof which is deemed by a disclosing entity to disclose Confidential Information of that entity will be so identified by using the legend set forth in paragraph 3 above. Such identification shall be made at the time when the answer to the interrogatory or the answer to the request for admission is served, or when a copy of the document is provided to the other party, or when such inspection of premises or things is made. 8. If a party wishes to file Confidential Information with the Court, it shall do everything necessary to ensure that such information is impounded, kept under seal, and unavailable to the public. Each party is directed to the provisions of Local Rule 7.2. Pursuant to Local Rule 7.2(d), any material to be filed with the Court which contains or is based upon Confidential Information may be filed in a sealed envelope or container along with a Motion for Impoundment. Each Motion to Impound shall comply with Local Rule 7.2(a), shall state: (a) that the information contained therein has been deemed by a party to this action to be a trade secret, proprietary, or other sensitive business information; (b) that the material should be impounded until further order of the Court; and (c) that the materials should be returned to the counsel for the parties upon the conclusion of this matter without further order of the Court. 9. All Confidential Information filed with the Court shall be filed in sealed envelopes or containers affixed to which is a copy of this Order and the statement: CONFIDENTIAL This envelope (or container) contains documents, materials, or other things which are impounded until further order of the Court. The contents of this envelope (or container) shall not be displayed or revealed except by Order of the Court. The party filing the Confidential Information shall notify the Clerk that what he has filed should be accorded the treatment required by this Order. 10. All Confidential Information obtained by any party from a disclosing entity in the course of this lawsuit shall be used by the receiving party solely for the preparation and trial of this lawsuit, settlement discussions and negotiations, any form of alternative dispute resolution of this action and for no other purpose. 11. Confidential Information may only be disclosed in testimony or offered in evidence at hearings in this action and the trial of this action subject to such further order as this Court may enter. 12. Acceptance by a party of information, premises, or a thing identified as Confidential Information hereunder shall not constitute a concession that the information, premises or thing is confidential. If, subsequent to the acceptance of information, premises, or things identified as confidential hereunder, a party wishes this Court to rule upon the disclosing entity's claim of confidentiality, that party may move this Court for such determination. In the resolution of such motion, the burden of establishing the confidentiality of the information, premises or thing shall be on the disclosing entity which made the claim of confidentiality. 13. Nothing in this Stipulation and Protective Order shall require disclosure of material which the disclosing entity contends is protected from disclosure by the attorney-client privilege or the work-product immunity or the disclosure of which would breach an express or implied agreement with a third party to maintain such material in confidence. In the latter case, if the requested material otherwise might be produced but for such agreement, the disclosing entity shall be required to take reasonable steps to obtain the permission of the third party to release the material to the requesting party. This shall not preclude any party from moving the Court for an order directing the disclosure of such material. 14. In the event that a party to this action shall desire to provide access to information, documents or things identified as or deemed to be confidential hereunder to any person or category of persons not included in paragraph 5 hereof, and if the disclosing entity objects thereto, the party shall move the Court for an order that such person or category of persons may be given access to the Confidential Information. If the motion is granted, such person or category of persons may have access to the Confidential Information provided that such person or persons have agreed in writing before such access is given to be bound by the terms of this Stipulation and Order. 15. Upon final termination of this action, including all appeals, the attorneys for each party shall, upon request by the attorneys for the disclosing entity, assemble and return to the disclosing entity all documents and things produced by the disclosing entity containing Confidential Information and shall destroy all copies thereof made by the party which the respective parties have in their possession, custody or control. The attorneys for the parties shall be entitled to retain all litigation documents, including exhibits and their own memoranda, containing Confidential Information but such litigation documents and memoranda shall be used only for the purpose of preserving a file on this action, and shall not, without the written permission of the disclosing entity or an order of this Court, be disclosed to anyone other than those to whom such information was actually disclosed, in accordance with this Stipulation and Order, during the course of this action. 16. The restrictions set forth in the preceding paragraphs shall not apply to materials or information which, at or prior to disclosure thereof in this action, is or was a matter of public knowledge, or which, after disclosure thereof, becomes public knowledge other than by act or omission of the receiving party or its agents, experts and attorneys. No party hereto shall be bound by this Stipulation and Protective Order as to any information which it possessed prior to this action, unless that information was obtained under circumstances requiring its treatment as confidential. 17. Nothing in this Stipulation or Order shall bar or otherwise restrict any attorney from rendering advice to his client with respect to this action and, in the course thereof, from generally referring to or relying upon his examination of documents produced. In rendering such advice or in otherwise communicating with his client, the attorney shall not disclose the specific content of any document or information designated as confidential by a disclosing entity where such disclosure would not otherwise be permitted under the terms of this Stipulation and Protective Order. 18. This Stipulation and Protective Order shall be without prejudice to the right of any party to seek a modification hereof, by leave of Court. Assent to the entry of the foregoing Protective Order is hereby given by the parties by and through their attorneys. Dated: June 30, 1997 Plaintiff, STORAGE SYSTEMS, INC., _______________________ Defendant, PACEMAKER FURNITURE, INC., _______________________ SO ORDERED on this _____ day of __________, 1997. United States District Judge Return to "Managing Intellectual Property Litigation" © 2005 Bromberg & Sunstein LLP |
