Case 6:08-cv-00030-LED Document 107 Filed 07/17/08 Page 1 of 22 PageID #: 456
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`UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`TYLER DIVISION
`
`NETWORK-1 SECURITY SOLUTIONS,
`INC.,
`
`Plaintiff,
`
`v.
`
`CISCO SYSTEMS, INC., CISCO-LINKSYS
`LLC, ADTRAN, INC., ENTERASYS
`NETWORKS, INC., EXTREME NETWORKS,
`INC., FOUNDRY NETWORKS, INC.,
`NETGEAR, INC., and 3COM
`CORPORATION,
`
`Defendants.
`
`CIVIL ACTION NO. 6:08 CV 30
`PATENT CASE
`
`STIPULATED PROTECTIVE ORDER
`
`This protective order (“Protective Order”) is issued to expedite the flow of discovery
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`materials, to facilitate the prompt resolution of disputes over confidentiality of discovery
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`materials, to adequately protect information the parties are entitled to keep confidential, to ensure
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`that only materials the parties are entitled to keep confidential are subject to such treatment, and
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`to ensure that the parties are permitted reasonably necessary uses of such materials in preparation
`
`for and in the conduct of trial, pursuant to Fed. R. Civ. P. 26(c) and any other applicable rule of
`
`this Court. Unless modified, superseded or terminated pursuant to the terms contained in this
`
`Order, this Protective Order shall remain in effect through the conclusion of this litigation and
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`thereafter as set forth below.
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`DM_US:21283562_7
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`AVAYA INC. AV-1020
`Avaya Inc. v. Network-1 Security Solutions, Inc.
`IPR2013-00071
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`

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`Case 6:08-cv-00030-LED Document 107 Filed 07/17/08 Page 2 of 22 PageID #: 457
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`In support of this Protective Order, the Court finds that:
`
`1.
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`Documents or information containing confidential research, development,
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`business and/or commercial information and/or trade secrets within the meaning of Rule 26(c)
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`(“Confidential Information”) is likely to be disclosed or produced during the course of discovery
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`in this litigation;
`
`2.
`
`The parties to this litigation may assert that public dissemination and disclosure of
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`Confidential Information could severely injure or damage the party disclosing or producing the
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`Confidential Information and/or could place that party at a competitive disadvantage;
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`3.
`
`Counsel for the party or parties receiving Confidential Information are presently
`
`without sufficient information to accept the representation(s) made by the party or parties
`
`producing Confidential Information as to the confidential, proprietary, and/or trade secret nature
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`of such Confidential Information; and
`
`4.
`
`To protect the respective interests of the parties and to facilitate the progress of
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`disclosure and discovery in this case, the following Protective Order should issue.
`IT IS THEREFORE ORDERED THAT:
`
`1.
`
`This Protective Order shall apply to all information, documents and things subject
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`to discovery in this Action produced either by a party or a non-party in discovery in this Action
`
`(“Action” shall include without limitation this litigation and any adjunct subpoena proceedings
`
`incident hereto before any tribunal) including, without limitation, testimony adduced at
`
`deposition upon oral examination or upon written questions, answers to interrogatories,
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`documents and things produced, information obtained from inspection of premises or things, and
`
`answers to requests for admission, or information disclosed pursuant to subpoena under Fed. R.
`
`Civ. P. 45 (“Discovery Material”).
`
`2.
`
`Each party to this litigation that produces or discloses any materials, answers to
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`2
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`interrogatories, responses to requests for admission, trial testimony, deposition testimony, and
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`transcripts of trial testimony and depositions, or information that the producing party believes
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`should be subject to this Protective Order may designate the same as “CONFIDENTIAL,”
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`“HIGHLY CONFIDENTIAL – OUTSIDE COUNSEL ONLY,” or “HIGHLY CONFIDENTIAL
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`– RESTRICTED SOURCE CODE (referred to collectively as “Confidential Material”). The
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`producing party may use the designation “HIGHLY CONFIDENTIAL – RESTRICTED
`
`SOURCE CODE” to designate computer source code or documents that describe algorithms
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`used in computer source code. Confidential Materials designated as “HIGHLY
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`CONFIDENTIAL – OUTSIDE COUNSEL ONLY” or “HIGHLY CONFIDENTIAL –
`
`RESTRICTED SOURCE CODE” are hereinafter collectively referred to as “HIGHLY
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`CONFIDENTIAL” material.
`
`a.
`
`Designation as “CONFIDENTIAL”: The term “CONFIDENTIAL”
`
`information shall apply to a party’s confidential and nonpublic information, the disclosure of
`
`which the Disclosing Party contends could cause harm to the business operations of the
`
`Disclosing Party or provide improper advantage to others, and that is not otherwise marked or
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`designated by the Disclosing Party as “HIGHLY CONFIDENTIAL – OUTSIDE COUNSEL
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`ONLY,” or as “HIGHLY CONFIDENTIAL – RESTRICTED SOURCE CODE.”
`
`b.
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`Designation as “HIGHLY CONFIDENTIAL – OUTSIDE COUNSEL
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`ONLY”: The term “HIGHLY CONFIDENTIAL – OUTSIDE COUNSEL ONLY” shall apply
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`only to a party’s highly confidential and proprietary business, commercial, competitive,
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`financial, marketing, sales and technical information that the Disclosing Party reasonably and in
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`good faith believes is so highly sensitive that its disclosure to an employee of a Discovering
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`Party would reveal significant business, commercial, competitive, financial, marketing, sales or
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`technical advantages of the Disclosing Party. The term “HIGHLY CONFIDENTIAL –
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`3
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`OUTSIDE COUNSEL ONLY” information shall include, but is not limited to, (1) current
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`business/strategic plans, (2) sales, cost and price information including future sales/financial
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`projections, (3) non-public marketing information including future marketing plans, (4) detailed
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`sales and financial data that includes costs and profits information, (5) customer lists, (6)
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`licensing, licensing policies, and licensing negotiations, (7) non-public source code,
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`specifications, schematics and other documents used in connection with generating such source
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`code, and other non-public technical specifications, schematics and documents showing the
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`Disclosing Party’s product functionality, features and operation and (8) other information of
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`business, commercial, competitive, financial, marketing, sales and technical significance
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`comparable to the items listed in this paragraph. For purposes of this Order, the term “source
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`code” shall include human-readable and machine-readable program codes, as well as executable
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`code and electronically created design files such as CAD files.
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`3.
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`In determining the scope of information which a party may designate as its
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`Confidential Material, each party acknowledges the importance of client access to information
`
`necessary to client decision-making in the prosecution or defense of litigation, and therefore
`
`agrees that designations of information as Confidential Material and responses to requests to
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`permit further disclosure of Confidential Material shall be made in good faith and not (1) to
`
`impose burden or delay on an opposing party or (2) for tactical or other advantage in litigation.
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`No published documents shall be designated as CONFIDENTIAL or HIGHLY
`
`CONFIDENTIAL, even if the published documents are attachments to, or intermingled with,
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`documents properly designated as CONFIDENTIAL or HIGHLY CONFIDENTIAL.
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`4.
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`The labeling or marking of a document or tangible thing with the designation
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`“CONFIDENTIAL” or “HIGHLY CONFIDENTIAL” shall be made when a copy of the
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`document or thing is provided to the receiving party by placing the legend “CONFIDENTIAL,”
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`4
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`“HIGHLY CONFIDENTIAL – OUTSIDE COUNSEL ONLY,” or “HIGHLY CONFIDENTIAL
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`– RESTRICTED SOURCE CODE” on the face of each such document or thing. Any such
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`designation that is inadvertently omitted or misdesignated may be corrected by written
`
`notification to counsel for the receiving party, and the receiving party shall thereafter mark and
`
`treat the materials as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL,” as appropriate, and
`
`such material shall be subject to this Protective Order as if it had been initially so designated. If,
`
`prior to receiving such notice, the receiving party has disseminated the Confidential Material to
`
`individuals not authorized to receive it hereunder, it shall make a reasonable effort to retrieve the
`
`Confidential Material or to otherwise assure that the recipient(s) properly mark the Confidential
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`Material and maintain the confidentiality of the Confidential Material, but shall have no other
`
`responsibility or obligation with respect to the information disseminated.
`
`5.
`
`In the case of deposition upon oral examination or written questions, such
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`testimony shall be deemed “CONFIDENTIAL” until the expiration of thirty (30) days after the
`
`deposition unless otherwise designated at the time of the deposition or during the thirty (30) day
`
`period. Pages or entire transcripts of testimony given at a deposition or hearing may be
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`designated as containing “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL” information by
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`an appropriate statement either at the time of the giving of such testimony or by written
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`notification within thirty (30) days after the deposition. If the testimony is not otherwise
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`designated at the time of the deposition or during the thirty (30) day period after the deposition,
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`the testimony will be deemed to be “non-confidential.” Within 15 days of the delivery of the
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`transcript of any such deposition or hearing, any person who designated information in the
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`transcript as CONFIDENTIAL or HIGHLY CONFIDENTIAL shall serve a first redacted
`
`version that omits only such HIGHLY CONFIDENTIAL materials, so that persons with
`
`CONFIDENTIAL information access may review the remainder of the discovery responses, and
`
`5
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`a second redacted version that omits only the CONFIDENTIAL and HIGHLY CONFIDENTIAL
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`information.
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`6.
`
`In the case of written discovery responses and the information contained therein,
`
`the responses may be designated as containing “CONFIDENTIAL” or “HIGHLY
`
`CONFIDENTIAL” information by means of a statement at the conclusion of each response that
`
`contains such information specifying the level of designation of the Confidential Information and
`
`by placing a legend of the front page of such discovery responses stating: “CONTAINS
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`CONFIDENTIAL INFORMATION/[the highest level of designation contained in the answers].”
`
`Any such designation that is inadvertently omitted or mis-designated may be corrected within
`
`thirty (30) days of service of such discovery responses by written notification to counsel for the
`
`receiving party, and the receiving party shall thereafter mark and treat the materials as
`
`“CONFIDENTIAL” or “HIGHLY CONFIDENTIAL,” as appropriate, and such material shall be
`
`subject to this Protective Order as if it had been initially so designated. If, prior to receiving such
`
`notice, the receiving party has disseminated the Confidential Material to individuals not
`
`authorized to receive it hereunder, it shall make a reasonable effort to retrieve the Confidential
`
`Material or to otherwise assure that the recipient(s) properly mark and maintain the
`
`confidentiality of the Confidential Material, but shall have no other responsibility or obligation
`
`with respect to the information disseminated. Within 10 days of the service of any such
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`discovery responses designated as including CONFIDENTIAL or HIGHLY CONFIDENTIAL
`
`information, the person so designating the information shall serve a first redacted version that
`
`omits only such HIGHLY CONFIDENTIAL materials, so that persons with CONFIDENTIAL
`
`information access may review the remainder of the discovery responses, and a second redacted
`
`version that omits only the CONFIDENTIAL and HIGHLY CONFIDENTIAL information.
`
`7.
`
`In the case of Confidential Information not reduced to documentary or tangible
`
`6
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`form or which cannot be conveniently designated as set forth above, such information may be
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`designated “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL” information by informing the
`
`receiving party of the designation in writing either at the time of transfer of such information or
`
`within thirty (30) days after the transfer of such information.
`
`8.
`
`Any documents or tangible things made available for inspection prior to
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`producing copies of selected items shall initially be deemed “CONFIDENTIAL” unless
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`otherwise designated at the time of inspection and shall be subject to this Protective Order.
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`Thereafter, the producing party shall have a reasonable time to review and designate the
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`documents as set forth in paragraph 6 above prior to furnishing copies to the receiving party.
`Disclosure of CONFIDENTIAL Material. CONFIDENTIAL material and any
`information contained therein shall be disclosed only to the following persons:
`
`9.
`
`a.
`
`Counsel of record in this action for the receiving party, counsel of record for
`
`the parties involved in this action, including both local and trial counsel, provided such persons
`
`agree to be bound by this Protective Order.
`
`b.
`
`Employees and agents of such counsel of record including paralegals,
`
`litigation support services, secretarial and clerical staff as well as the following categories of
`
`persons provided that such persons have no involvement in addressing any matter regarding the
`
`substantive issues in the case: independent legal translators retained to translate in connection
`
`with this action; independent stenographic reporters and videographers retained to record and
`
`transcribe testimony in connection with this action; graphics, translation, or design services
`
`retained by counsel of record for purposes of preparing demonstrative or other exhibits for
`
`deposition, trial, or other court proceedings in this action; and non–technical jury or trial
`
`consulting services; provided all such individuals agree to be bound by this Protective Order; and
`
`mock jurors who are not regularly employed by any party to this litigation and who have signed
`
`7
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`the undertaking attached as exhibit A;
`
`c.
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`The Court, its personnel and stenographic reporters (with such
`
`CONFIDENTIAL Material having been filed under seal or with other suitable precautions as
`
`determined by the Court);
`
`d.
`
`At a deposition or at trial, any person who authored or previously received
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`the Confidential Material and, subject to timely objection including objection that such person is
`
`not internally authorized to receive such information, any person currently employed by the
`
`designating party; and
`
`e.
`
`Any experts or consultants, and employees and assistants under the control
`
`of such expert or consultant, who (1) is engaged by counsel of record in this action, whether or
`
`not such expert or consultant is paid directly by a party, and (2) is not regularly employed by a
`
`party hereto, other than by the designating party, provided however that disclosure to such
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`persons shall be made only on the conditions set forth in paragraphs 12 and 13 below.
`
`f.
`
`No more than two (2) in-house counsel who act in a legal capacity for the
`
`receiving party and who are responsible for supervising this Action, and their subordinate
`
`paralegals, litigation support services, secretarial and clerical staff.
`Disclosure of HIGHLY CONFIDENTIAL – OUTSIDE COUNSEL ONLY
`10.
`Material. HIGHLY CONFIDENTIAL – OUTSIDE COUNSEL ONLY material and any
`information contained therein shall be disclosed only to the following persons:
`
`a.
`
`Counsel of record in this action for the receiving party, counsel of record for
`
`the parties involved in this action, including both local and trial counsel, provided such persons
`
`agree to be bound by this Protective Order.
`
`b.
`
`Employees and agents of such counsel of record including paralegals,
`
`litigation support services, secretarial and clerical staff as well as the following categories of
`
`8
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`persons provided that such persons have no involvement in addressing any matter regarding the
`
`substantive issues in the case: independent legal translators retained to translate in connection
`
`with this action; independent stenographic reporters and videographers retained to record and
`
`transcribe testimony in connection with this action; graphics, translation, or design services
`
`retained by counsel of record for purposes of preparing demonstrative or other exhibits for
`
`deposition, trial, or other court proceedings in this action; and non–technical jury or trial
`
`consulting services; provided all such individuals agree to be bound by this Protective Order; and
`
`mock jurors who are not regularly employed by any party to this litigation and who have signed
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`the undertaking attached as exhibit A;
`
`c.
`
`The Court, its personnel and stenographic reporters (with such
`
`CONFIDENTIAL Material having been filed under seal or with other suitable precautions as
`
`determined by the Court);
`
`d.
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`At a deposition or at trial, any person who authored or previously received
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`the Confidential Material and, subject to timely objection including objection that such person is
`
`not internally authorized to receive such information, any person currently employed by the
`
`designating party; and
`
`e.
`
`Any experts or consultants retained by the plaintiff or the producing
`
`defendant, and employees and assistants under the control of such expert or consultant, who (1)
`
`is engaged by counsel of record in this action, whether or not such expert or consultant is paid
`
`directly by a party, and (2) is not regularly employed by a party hereto, other than by the
`
`designating party, provided however that disclosure to such persons shall be made only on the
`
`conditions set forth in paragraphs 12 and 13 below.
`Disclosure of HIGHLY CONFIDENTIAL – RESTRICTED SOURCE CODE
`11.
`
`Material. HIGHLY RESTRICTED CONFIDENTIAL – RESTRICTED SOURCE CODE
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`9
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`material and any information contained therein may be disclosed only to the following persons
`
`and in strict accordance with the following procedures:
`a. HIGHLY CONFIDENTIAL – RESTRICTED SOURCE CODE
`material, to the extent in electronic format, will be provided on a standalone computer with all
`
`ports, software and other avenues that could be used to copy or transfer such data blocked
`
`(“Standalone Computer”). The Standalone Computer shall be maintained in the sole control and
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`custody of counsel of record for the producing party and shall be maintained in the United States
`
`at an office of counsel of record for the producing party or at such other location as shall be
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`mutually agreed to by the parties.
`
`b.
`
`HIGHLY CONFIDENTIAL – RESTRICTED SOURCE CODE material, to
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`the extent not in electronic format, shall be designated using the same processes applied to
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`HIGHLY CONFIDENTIAL -- OUTSIDE COUNSEL ONLY materials described in paragraphs
`
`2 – 10 above.
`
`c.
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`Only persons designated under paragraph 10(a) and 10(e) above shall have
`
`access to the Standalone Computer provided however that the following additional restrictions
`
`shall apply to such access:
`
`(i)
`
`at least ten (10) business days prior to the date on which access is
`
`sought to such Standalone Computer (ten day notice period), counsel of record for the receiving
`
`party shall provide a list of individuals including attorneys seeking to access such Standalone
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`Computer and the designating party shall have the right to object to such access in accordance
`
`with paragraph 14 herein;
`
`(ii)
`
`during the pendency of the ten day notice period, no listed individual
`
`shall have access to the Standalone Computer;
`
`(iii)
`
`If an objection to any specific listed individual is made, that
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`10
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`individual shall not have access to the Standalone Computer until resolution of such objection;
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`and
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`(iv) Each time a person accesses the Standalone Computer, the person
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`shall sign a sign-in sheet prior to, and a sign-out sheet subsequent to, accessing the Standalone
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`Computer including the name of the person accessing, the date and time in and out, and whether
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`any hard copies were made.
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`d.
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`The receiving party shall not have the right to, and agrees not to, copy,
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`transmit or duplicate HIGHLY CONFIDENTIAL - RESTRICTED SOURCE CODE materials in
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`any manner, including scanning or otherwise creating an electronic image of the HIGHLY
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`CONFIDENTIAL – RESTRICTED SOURCE CODE materials, except as set forth herein.
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`(i) A printer shall be attached to the Standalone Computer and the
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`receiving party shall make no more than 500 total pages of hard copies of HIGHLY
`
`CONFIDENTIAL - RESTRICTED SOURCE CODE material they in good faith consider to be
`
`necessary to proving elements of their case.
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`(ii) Whenever hard copies are made, copies of the hard copies shall be
`
`provided to counsel for the producing party along with an identification of when the copies were
`
`made and who made them.
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`(iii) Any hard copies shall be conspicuously marked HIGHLY
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`CONFIDENTIAL - RESTRICTED SOURCE CODE in conformity with paragraphs 6 – 11
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`above.
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`(iv) Receiving party shall keep a log including: (a) the custodian of each
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`copy of any HIGHLY CONFIDENTIAL - RESTRICTED SOURCE CODE materials; (b) the
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`name of all persons accessing the HIGHLY CONFIDENTIAL - RESTRICTED SOURCE
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`CODE materials; and (c) the date and time of access of the HIGHLY CONFIDENTIAL -
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`11
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`RESTRICTED SOURCE CODE materials.
`
`e.
`
`All HIGHLY CONFIDENTIAL - RESTRICTED SOURCE CODE
`
`materials, including all copies, in the possession of the receiving party shall be maintained in a
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`secured, locked area.
`
`f.
`
`All HIGHLY CONFIDENTIAL - RESTRICTED SOURCE CODE
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`materials utilized during a deposition or marked as an exhibit at a deposition will be retrieved by
`
`the party conducting the deposition at the end of each day. At no time, will any HIGHLY
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`CONFIDENTIAL material be given to or left with the Court Reporter or any other individual.
`
`g.
`
`Receiving party shall not convert any of the information contained in the
`
`hard copies into an electronic format, except when reproducing excerpts of the information in an
`
`expert report or a court filing, and then only according to the additional restrictions on HIGHLY
`
`CONFIDENTIAL - RESTRICTED SOURCE CODE materials contained in this Order.
`
`h.
`
`Export Control Requirements: Notwithstanding anything to the contrary
`
`contained herein, the following additional requirements apply to HIGHLY CONFIDENTIAL
`
`source code:
`
`(i)
`
`The receiving party acknowledges that the HIGHLY
`
`CONFIDENTIAL - RESTRICTED SOURCE CODE source code received under this Protective
`
`Order may be subject to export controls under the laws of the United States and other applicable
`
`laws. The receiving party shall comply with such laws and agrees not to knowingly export, re-
`
`export or transfer HIGHLY CONFIDENTIAL - RESTRICTED SOURCE CODE source code of
`
`the producing party without first obtaining all required United States or any other applicable
`
`authorizations or licenses. The receiving party acknowledges that HIGHLY CONFIDENTIAL -
`
`RESTRICTED SOURCE CODE source code disclosed by the producing party may be subject
`
`to, including but not limited to, the U.S. Export Administration Regulations (EAR), Export
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`12
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`Control Classification Number (ECCN) 5E001 pertaining to Dynamic Adaptive Routing, Optical
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`Switching, SS7, non-aggregated port speed data transfer rates exceeding 15Gbps; and ECCN
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`5E002 cryptography.
`
`(ii) The receiving party agrees to maintain adequate controls to prevent
`
`nationals of countries listed in the EAR, Part 740 Supplement No. 1, Country Group D:1 or E
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`from accessing the producing party’s HIGHLY CONFIDENTIAL - RESTRICTED SOURCE
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`CODE source code, subject to ECCN 5E001; or nationals outside the U.S. and Canada from
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`accessing such HIGHLY CONFIDENTIAL - RESTRICTED SOURCE CODE source code,
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`subject to ECCN 5E002 -- without U.S. Government authorization. The receiving party
`
`furthermore, agrees to notify the producing party prior to granting a foreign national, of countries
`
`listed in the groups D:1 or E, access to the Standalone Computer, access to hard copes of
`
`HIGHLY CONFIDENTIAL - RESTRICTED SOURCE CODE source code, or placement on a
`
`project requiring receipt or review of the producing party’s HIGHLY CONFIDENTIAL -
`
`RESTRICTED SOURCE CODE source code. The term "national" is defined as any person who
`
`is not a U.S. person or national/citizen, lawful permanent resident, person granted asylee or
`
`refugee status, or temporary resident granted amnesty.
`
`12.
`
`The Plaintiff, any attorney representing Plaintiff, whether in-house or outside
`
`counsel, and any person retained by Plaintiff or attorneys of Plaintiff who obtains, receives, has
`
`access to, or otherwise learns, in whole or in part, technical information designated
`
`CONFIDENTIAL or HIGHLY CONFIDENTIAL under this Protective Order shall not prepare,
`
`prosecute, supervise, or assist in the prosecution of any patent application pertaining to the
`
`subject matter of the patent-in-suit within two (2) years from disclosure of the technical
`
`information or one (1) year after conclusion of the litigation (including any appeals), whichever
`
`period is longer. To ensure compliance with the purpose of this provision, Plaintiff shall create
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`13
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`an ethical wall between those persons with access to technical information designated
`
`CONFIDENTIAL or HIGHLY CONFIDENTIAL and those individuals who prepare, prosecute,
`
`supervise, or assist in the prosecution of any patent application pertaining to the same or
`
`substantially the same subject matter of the patent(s)-in-suit. Without limiting the foregoing,
`
`outside litigation counsel for plaintiff and defendants who obtain, receive, have access to, or
`
`otherwise learn of, in whole or in part, technical information designated CONFIDENTIAL or
`
`HIGHLY CONFIDENTIAL may not participate in any aspect of any reexamination proceedings
`
`involving any patent at issue in this litigation, except that outside counsel for plaintiff and
`
`defendants may forward to reexamination counsel the prior art references themselves that are
`
`produced during the course of this litigation.
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`13.
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`Trial counsel desiring to disclose Confidential Materials to in-house counsel,
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`experts or consultants specified in paragraphs 9(e), 9(f), or 10(e) above shall first obtain a signed
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`undertaking, in the form of Exhibit A attached hereto, from each such in-house counsel, expert or
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`consultant, and such counsel shall retain in his/her files the original of each such signed
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`undertaking. A copy of the proposed undertaking shall be forwarded to opposing counsel with
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`the current curriculum vitae for such expert or consultant. No Confidential Materials shall be
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`disclosed to such in-house counsel, expert or consultant until after the expiration of a seven (7)
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`business day period commencing with the service of a copy of the proposed undertaking and (in
`
`the case of experts or consultants) curriculum vitae, provided, however, that if during that seven
`
`(7) business day period opposing counsel makes an objection to such disclosure, there shall be no
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`disclosure of Confidential Materials to such in-house counsel, expert or consultant, except by
`
`mutual agreement of the parties or further order of the Court. The party desiring disclosure of
`
`such Confidential Materials shall have the burden of filing a motion with the Court seeking leave
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`to make such disclosure.
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`Case 6:08-cv-00030-LED Document 107 Filed 07/17/08 Page 15 of 22 PageID #: 470
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`14.
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`The restrictions on the use of Confidential Materials established by this Protective
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`Order are applicable only to the use of information received by a party from another party or
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`from a nonparty. A party is free to use its own information as it pleases.
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`15.
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`Any party may file or lodge with the Court documents or tangible items
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`designated as CONFIDENTIAL or HIGHLY CONFIDENTIAL. Any briefs, transcripts,
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`exhibits, depositions, or documents which are filed with the Court which comprise, embody,
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`summarize, discuss, or quote from documents or tangible things designated as CONFIDENTIAL
`
`or HIGHLY CONFIDENTIAL material shall be sealed, unless the parties otherwise agree in
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`writing or the Court otherwise orders. Where reasonably practicable, only the portions of
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`documents consisting of such items or information shall be lodged under seal. Filing or lodging
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`such information or items under seal shall be made in compliance with Local Rules of the Court.
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`Such items or information shall be filed or lodged in sealed envelopes or other appropriate sealed
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`containers. Each sealed envelope or container shall be endorsed with the title and case number
`
`of this action, and a statement in substantially the following form:
`
`CONFIDENTIAL - SUBJECT TO PROTECTIVE ORDER. THE
`MATERIALS
`CONTAINED HEREIN HAVE
`BEEN
`DESIGNATED AS CONFIDENTIAL [CONFIDENTIAL or
`HIGHLY CONFIDENTIAL] PURSUANT TO PROTECTIVE
`ORDER AND MAY NOT BE EXAMINED OR COPIED
`EXCEPT BY THE COURT OR PURSUANT TO COURT
`ORDER.
`Within 10 days of the filing or lodging of any documents or tangible items under seal, the
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`lodging party shall file and serve on all parties a first redacted version that omits only the
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`CONFIDENTIAL or HIGHLY CONFIDENTIAL materials, and includes all other portions of
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`the document or tangible item, for the public record.
`
`16.
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`The acceptance by a party of documents designated as CONFIDENTIAL or
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`HIGHLY CONFIDENTIAL shall not constitute an agreement, admission or concession, or
`
`15
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`Case 6:08-cv-00030-LED Document 107 Filed 07/17/08 Page 16 of 22 PageID #: 471
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`permit an inference, that the material(s) are in fact properly the subject for protection under Fed.
`
`R. Civ. P.26 (c), or some other basis. Documents designated CONFIDENTIAL or HIGHLY
`
`CONFIDENTIAL shall be treated in accordance with the provisions of this Protective Order,
`
`except that any party may at any time seek an Order from the Court determining that specified
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`information or categories of information are not properly designated as CONFIDENTIAL or
`
`HIGHLY CONFIDENTIAL, provided that prior to making such a motion the parties shall meet
`
`and confer in good faith to resolve any differences over the designation. In response to the filing
`
`of such a motion, the party challenging confidentiality shall have the burden of proving that the
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`Confidential Material in question is not protectable under Fed. R. Civ. P.26 (c) or some other
`
`basis, or, as the case may be, that the designation of CONFIDENTIAL or HIGHLY
`
`CONFIDENTIAL is NOT necessary under the circumstances. A party shall not be obligated to
`
`challenge the propriety of a designation of Confidential Material at the time made, and failure to
`
`do so shall not preclude subsequent challenge. Should any party (or non-party) seek an Order
`
`from the Court to determine whether specified information or categories of information are not
`
`properly designated as CONFIDENTIAL or HIGHLY CONFIDENTIAL, the claimed
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`designation shall remain operative and respected by all the parties and non-parties pending the
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`Court’s ruling.
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`17. Nothing in this Protective Order shall require disclosure of material that a party
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`contends is protected from disclosure by the attorney-client privilege or the attorney work-
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`product immunity or any other applicable privilege. This shall not