Case 1:18-cv-01854-RGA Document 35 Filed 01/10/20 Page 1 of 27 PageID #: 345
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF DELAWARE
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`GEMAK TRUST,
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`Plaintiff,
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`V.
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`CHURCH & DWIGHT CO., INC.,
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`Defendant.
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`C.A. No . 18-1854-RGA
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`JURY TRIAL DEMANDED
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`~ STIPULATED PROTECTIVE ORDER
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`WHEREAS Plaintiff GEMAK Trust ("GEMAK" or "Plaintiff') and Defendant Church &
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`Dwight Co., Inc. ("Church & Dwight" or "Defendant" and together with GEMAK, "Parties") may
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`seek in this action discovery of documents, information or other materials that may constitute or
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`contain confidential or proprietary information or trade secrets, including secret, confidential or
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`sensitive research, development, commercial, or business information, of the Parties or non-parties;
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`WHEREAS such confidential or proprietary information and trade secrets must be
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`protected in order to preserve the legitimate business interests of the Parties or non-parties;
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`WHEREAS Plaintiff and Defendant believe it would facilitate discovery to produce such
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`information under a protective order pursuant to Federal Rule of Civil Procedure 26(c), and have
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`therefore, through counsel, stipulated to the entry of this Stipulated Protective Order ("Order");
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`WHEREAS the Parties recognize that CONFIDENTIAL, HIGHLY CONFIDENTIAL -
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`ATTORNEYS ' EYES ONLY, and PROPRIETARY - OUTSIDE COUNSELS ' EYES ONLY
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`information are being produced only for use in GEMA K Trust v. Church & Dwight Co., Inc., No.
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`18-1854-RGA (D. Del.) ("this Action") and any appeals arising from this Action; and
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`WHEREAS the Parties have established good cause for entry of this Order;
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`NOW THEREFORE, pursuant to Federal Rule of Civil Procedure 26(c), upon the
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`stipulation and consent of the Parties and for good cause shown, the Court hereby ORDERS that:
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`I.
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`SCOPE
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`This Order shall govern the disclosure, production and use of Discovery Material ( as
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`defined below) produced in connection with this Action. The protections conferred by this Order
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`cover not only Protected Material (as defined herein), but also any information copied or extracted
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`therefrom, as well as all copies, excerpts, summaries, notes, memoranda, analysis, or compilations
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`thereof, plus testimony, conversations, or presentations by the Parties or counsel to the Parties in
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`court or in other settings that might reveal Protected Material. This Order shall apply to Discovery
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`Material produced in connection with this Action regardless of whether such Discovery Material
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`was produced prior to or after entry of this Order.
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`II.
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`DEFINITIONS
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`A.
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`"CONFIDENTIAL" information shall mean any information (including documents,
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`things, and oral testimony, regardless of how it is generated, stored, or maintained) or tangible
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`thing that constitutes or pertains to confidential or proprietary information or trade secrets,
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`including secret, confidential or sensitive research, development, commercial, or business
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`information, including information received from a non-party, that qualifies for protection under
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`standards developed under Fed. R. Civ. P. 26(c) and other applicable law.
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`B.
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`"HIGHLY CONFIDENTIAL - ATTORNEYS ' EYES ONLY" information shall
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`mean any highly sensitive CONFIDENTIAL information, the disclosure of which to another Party
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`or non-party would create a substantial risk of serious harm that could not be avoided by less
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`restrictive means. The tem1 "HIGHLY CONFIDENTIAL - ATTORNEYS ' EYES ONLY
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`INFORMATION" may include the Designating Party' s commercial information (including, for
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`example, business plans, business strategies, negotiations, and license agreements), technical
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`information (including, for example, confidential product specifications, production information,
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`research and development information, and product testing), sensitive financial information
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`(including, for example, detailed profit and loss statements), and personnel information (including,
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`for example, compensation, evaluations and other employment information).
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`C.
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`"PROPRIETARY - OUTSIDE COUNSELS' EYES ONLY" information shall
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`mean information the Designating Party regards as or has a good faith basis to believe is a
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`proprietary trade secret.
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`D.
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`The term "disclose" means to show, give, make available or communicate, in any
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`fashion, to any Person (as defined herein), any Discovery Material (as defined herein), information
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`concerning the content of any Discovery Material, or any portion of the information contained in
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`any Discovery Material, furnished by any Party or non-party in this Action.
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`E.
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`The term "Discovery Material" means all items or information, regardless of the
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`medium or manner generated, stored, or maintained, and includes, without limitation, any writings,
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`video or audio tapes, computer-generated or recorded information in any form, materials, oral or
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`written testimony, interrogatories, answers to interrogatories, requests for admission, responses to
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`requests for admission, document requests, responses to document requests, deposition testimony,
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`subpoenas, declarations, affidavits, transcripts and exhibits, other responses to requests for
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`information, and any tangible thing, produced or generated in disclosures or responses to discovery
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`in this Action by a Party or non-party.
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`F.
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`The term "Outside Counsel" means outside litigation counsel of record for the
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`Parties in this Action, including their associated partners, associates, attorneys, and personnel
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`necessary to assist outside counsel in this Action, such as legal assistants, paralegals, analysts,
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`secretarial, stenographic, information technology and clerical employees actually assisting such
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`counsel.
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`G.
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`H.
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`Counsel.
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`The term "In-House Counsel" means attorneys who are employees of a Party.
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`The term "Counsel" (without qualifier) shall mean Outside Counsel and In-House
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`I.
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`The term "Party" means Plaintiff GEMAK Trust and/or Defendant Church &
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`Dwight Co., Inc.
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`J.
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`The term "Person" means any natural person or any business, legal or governmental
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`entity or association.
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`K.
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`The term "Producing Party" means a Party, Person, or non-party, including its
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`counsel, retained experts, directors, officers, employees, or agents, that produces Discovery
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`Material in this Action.
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`L.
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`The term "Professional Vendors" means any Person that provides litigation support
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`services (e.g., photocopying; videotaping; translating; preparing exhibits or demonstrations;
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`organizing, storing, or retrieving data in any form or medium; etc.) and their employees and
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`subcontractors.
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`M.
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`The tenn "Protected Material" means any Discovery Material that is designated as
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`"CONFIDENTIAL," "HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY" or
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`"PROPRIETARY -OUTSIDE COUNSELS ' EYES ONLY."
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`N.
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`The term "Protected Material" shall not include:
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`1.
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`Discovery Material that is publicly available at the time of disclosure, not in
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`violation of this Order;
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`2.
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`Discovery Material which after disclosure becomes publicly available,
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`through no fault of a Receiving Party, but only after it becomes publicly
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`available, not in violation of this Order;
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`3.
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`Discovery Material that was in the possession of a Receiving Party without
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`any confidentiality obligations prior to the time of disclosure by the
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`Producing Party, where such information was received from a source that
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`possessed the right to disclose it without any confidentiality obligations;
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`4.
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`Discovery Material disclosed by a non-party that is not subject to any
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`confidentiality obligations at the time of the disclosure;
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`5.
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`Discovery Material that is discovered independently by the Receiving Party
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`by means that do not constitute a violation of this Order; or
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`6.
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`Discovery Material that was, is, or becomes expressly released from being
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`designated as Protected Material, by the Designating Party or by order of the
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`Court.
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`0 .
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`The term "Receiving Party" means a Party, including its counsel, retained experts,
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`directors, officers, employees, or agents, that receives Discovery Material from a Producing Party
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`in this Action.
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`P.
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`The term "Designating Party" means a Party, Person, or non-party that designates
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`Discovery Material in this Action as "CONFIDENTIAL," "HIGHLY CONFIDENTIAL -
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`ATTORNEYS' EYES ONLY," or "PROPRIETARY -OUTSIDE COUNSELS ' EYES ONLY."
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`Q.
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`The term "Expert" means a person with specialized knowledge or experience in
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`a matter pertinent to this Action who has been retained by a Party or its counsel to serve as an
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`expert witness or as a consultant in this Action. This definition includes an expert's employees
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`and subcontractors as well as a professional jury or trial consultant retained in connection with
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`this Action and her or his employees and subcontractors.
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`R.
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`Any other term not defined herein shall carry its ordinary meaning.
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`III. DESIGNATION OF PROTECTED MATERIAL
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`A.
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`Each Party or non-party that designates information or items for protection under
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`this Order must do so in good faith.
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`B.
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`Each Producing Party which produces information in documentary form (apart from
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`transcripts of depositions or other pretrial or trial proceedings) or other tangible things that it
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`believes contains or comprises CONFIDENTIAL, HIGHLY CONFIDENTIAL-ATTORNEYS '
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`EYES ONLY, or PROPRIETARY - OUTSIDE COUNSELS ' EYES ONLY information shall
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`affix the legend "CONFIDENTIAL," "HIGHLY CONFIDENTIAL - ATTORNEYS ' EYES
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`ONLY," or "PROPRIETARY - OUTSIDE COUNSELS ' EYES ONLY" on each page of, the
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`cover of, or in a prominent place on the exterior of the docun1ent or other tangible thing containing
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`the CONFIDENTIAL, HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY, or
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`PROPRIETARY - OUTSIDE COUNSELS ' EYES ONLY information prior to or at the time of
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`the production of the document or tangible thing. However, a Party or non-party that makes
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`original documents or other tangible things available for inspection need not designate them for
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`protection until after the inspecting Party has indicated which of these material(s) it would like
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`copied and produced. All such materials made available for inspection shall be deemed "HIGHLY
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`CONFIDENTIAL - ATTORNEYS ' EYES ONLY" during the inspection and until the production
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`and designation of such materials. For clarity, all such inspections of original documents or other
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`tangible things shall be conducted by outside counsel for the parties and/or their Experts.
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`C.
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`If any CONFIDENTIAL, HIGHLY CONFIDENTIAL - ATTORNEYS ' EYES
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`ONLY, or PROPRIETARY - OUTSIDE COUNSELS ' EYES ONLY information is produced by
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`a non-party to this Action, such non-party shall be considered a Producing Party within the meaning
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`of that term as it is used in the context of this Order and all Parties should be treated as Receiving
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`Parties. The Parties recognize that during the course of this Action, CONFIDENTIAL, HIGHLY
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`CONFIDENTIAL
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`- ATTORNEYS ' EYES ONLY, or PROPRIETARY - OUTSIDE
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`COUNSELS ' EYES ONLY information that originated with a non-party and for which there exists
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`an obligation of confidentiality may be produced.
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`D.
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`All information and testimony disclosed at a deposition shall be automatically
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`treated as HIGHLY CONFIDENTIAL - ATTORNEYS ' EYES ONLY from the time of the
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`deposition until thirty (30) days1 after the Designating Party' s receipt of the final deposition
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`transcript. Thereafter, the information contained in the final deposition transcript will no longer
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`be deemed CONFIDENTIAL, HIGHLY CONFIDENTIAL - ATTORNEYS ' EYES ONLY, or
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`PROPRIETARY - OUTSIDE COUNSELS ' EYES ONLY unless the Designating Party identifies
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`in writing sent to counsel for the Receiving Party before the expiration of the thirty (30) day period
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`the portions of the testimony for which protection is sought and specify the level of protection
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`1 All references to "days" in this Order shall be construed as calendar days and any
`deadlines shall be computed in accordance with Rule 6( a) of the Federal Rules of Civil Procedure,
`unless specified otherwise herein.
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`being asserted.
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`E.
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`At least the first page of any correspondence, any written discovery request or
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`response (including interrogatories, document requests, and requests for admission), documents
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`filed with the Court, or any report of an expert witness that constitutes or contains
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`CONFIDENTIAL, HIGHLY CONFIDENTIAL
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`- ATTORNEYS' EYES ONLY, or
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`PROPRIETARY -OUTSIDE COUNSELS' EYES ONLY information shall be labeled or marked
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`as "CONFIDENTIAL," "HIGHLY CONFIDENTIAL - ATTORNEYS ' EYES ONLY," or
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`PROPRIETARY -OUTSIDE COUNSELS ' EYES ONLY when served on the Receiving Party.
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`F.
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`An inadvertent failure to designate Discovery Materials that qualify for protection
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`as CONFIDENTIAL, HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY, or
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`PROPRIETARY - OUTSIDE COUNSELS ' EYES ONLY does not waive the Designating Party's
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`right to secure protection under this Order for such materials. In the event a Designating Party
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`discovers, after such materials have been produced, that it has inadvertently failed to correctly
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`designate such materials, the Designating Party may redesignate the materials by a subsequent
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`notice in writing to the Receiving Party, which specifically identifies the Discovery Materials being
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`redesignated. Upon receiving such written notice, the Receiving Party shall treat such materials in
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`accordance with the provisions of this Order, and shall undertake reasonable efforts to correct any
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`disclosure of such information contrary to the redesignation.
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`IV.
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`CHALLENGES TO CONFIDENTIALITY DESIGNATIONS
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`A Receiving Party ' s acceptance of information designated CONFIDENTIAL, HIGHLY
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`CONFIDENTIAL
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`- ATTORNEYS' EYES ONLY, or PROPRIETARY - OUTSIDE
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`COUNSELS ' EYES ONLY from a Producing Party shall not constitute an admission, or create an
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`inference, that the material is in fact CONFIDENTIAL, HIGHLY CONFIDENTIAL -
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`ATTORNEYS' EYES ONLY or PROPRIETARY - OUTSIDE COUNSELS ' EYES ONLY as
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`defined in this Order, and shall not foreclose any Party from moving for an order by the Court that
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`such information does not qualify for the protections set forth in this Order.
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`A Party that elects to initiate a challenge to a Designating Party' s confidentiality
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`designation must do so in good faith and must begin the process by sending counsel for the
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`Designating Party a request in writing to change or remove its designation. This written request
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`must explain the basis for the challenging Party' s belief that the confidentiality designation was
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`not proper. If the Designating Party refuses to change its designation within seven (7) days, the
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`Parties shall then meet and confer in accordance with D. Del. L.R. 7.1.1.
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`In conferring, the
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`challenging Party must give the Designating Party an opportunity to review the designated material
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`and reconsider the designation. If no change in designation is offered, the Designating Party
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`must explain the basis for the chosen designation. A challenging Party may move for judicial
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`intervention only if it has engaged in this meet and confer process first. If this meet and confer
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`process is completed and an agreement cannot be reached, the challenging Party may move for a
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`Court order to change or remove the designation in accordance with the Court's discovery dispute
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`resolution procedures. Such motion shall identify the challenged material and set forth in detail
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`the basis for the challenge. Nothing in this section shall shift the burden of persuasion otherwise
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`applicable to such a challenge. Moreover, until the Court rules on the challenge, all Parties
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`shall continue to afford the material in question the level of protection to which it is
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`entitled under the Designating Party's designation.
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`V.
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`ACCESS TO AND USE OF PROTECTED MATERIAL
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`A.
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`A Receiving Party may use Protected Material that is disclosed or produced
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`by another Party or by a non-party in connection with this Action only for prosecuting,
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`defending, or attempting to settle this Action (including appeals, if any), and may not use
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`such Protected Material for any other legal purpose, or for any business, commercial, regulatory,
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`competitive or personal purpose, in the U.S. or in a foreign country, or in any co-pending inter
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`partes review. Such Protected Material may be disclosed only to the categories of persons
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`and under the conditions described in this Order. When this Action has been terminated,
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`a Receiving Party must comply with the provisions of Section XII, below.
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`B.
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`Protected Material must be stored and maintained by a Receiving Party at a
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`location and in a secure manner that ensures that access is limited to the persons authorized
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`under this Protective Order.
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`C.
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`Unless otherwise ordered by the Court or permitted in writing by the Designating
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`Party ( or on the record at a deposition), a Receiving Party may disclose any information or item
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`designated CONFIDENTIAL only to:
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`1.
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`2.
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`the Receiving Party's Outside Counsel in this Action;
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`up to three officers, directors, and employees (in addition to the In-House
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`Counsel identified in Section V(D) below) of the Receiving Party to whom
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`disclosure is reasonably necessary for this Action and who havy signed the
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`Undertaking attached hereto as Exhibit A:
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`For Plaintiff: Gerald Thomas Hinton and Elizabeth
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`Hinton
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`For Defendant: To be provided to Plaintiff at a later date
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`3.
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`Experts (as defined in this Order) of the Receiving Party to whom disclosure
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`is reasonably necessary for this Action and who have signed the Undertaking
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`attached hereto as Exhibit A;
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`4.
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`5.
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`the Court and its personnel;
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`court reporters, their staffs, and Professional Vendors to whom disclosure is
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`reasonably necessary;
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`6.
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`during their depositions, witnesses in this Action to whom disclosure is
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`reasonably necessary and who have signed the Undertaking attached hereto
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`as Exhibit A;
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`7.
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`the author of the document or the original source of the information.
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`D.
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`Unless otherwise ordered by the Court or permitted in writing by the
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`Designating Party (or on the record at a deposition), a Receiving Party may disclose any
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`information or item designated HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY
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`only to:
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`1.
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`2.
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`the Receiving Party ' s Outside Counsel in this Action;
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`the following two In-House Counsel of the Receiving Party with
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`responsibility for oversight of this Action who have signed the
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`Undertaking attached hereto as Exhibit A:
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`For Plaintiff: NIA
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`For Defendant: Moira Brophy, Esq. and Paul Fair,
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`Esq.
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`3.
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`Experts (as defined in this Order) of the Receiving Party (1) to whom
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`disclosure is reasonably necessary for this Action, (2) who have signed
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`the Undertaking attached hereto as Exhibit A, and (3) as to whom the
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`procedures set forth in Section V(F), below, have been followed;
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`4.
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`the Court and its personnel;
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`5.
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`court reporters, their staffs, and Professional Vendors to whom
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`disclosure is reasonably necessary; and
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`6.
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`the author of the document or the original source of the information.
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`E.
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`Unless otherwise ordered by the Court or permitted in writing by the Designating
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`Party (or on the record at a deposition), a Receiving Party may disclose any information or item
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`designated PROPRIETARY - OUTSIDE COUNSELS ' EYES ONLY only to:
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`1.
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`2.
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`3.
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`4.
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`the Receiving Party ' s Outside Counsel in this Action;
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`Experts (as defined in this Order) of the Receiving Party (1) to whom
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`disclosure is reasonably necessary for this Action, (2) who have signed
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`the Undertaking attached hereto as Exhibit A, and (3) as to whom the
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`procedures set forth in Section V(F), below, have been followed;
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`the Court and its personnel;
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`court reporters, their staffs, and Professional Vendors to whom
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`disclosure is reasonably necessary; and
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`5.
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`the author of the document or the original source of the information.
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`F.
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`Unless otherwise ordered by the Court or agreed in writing by the Designating Party
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`(or on the record at a deposition), the following procedures shall apply where a Receiving Party
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`seeks to disclose to an Expert any information or item that has been designated HIGHLY
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`CONFIDENTIAL - ATTORNEYS' EYES ONLY or PROPRIETARY - OUTSIDE COUNSELS '
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`EYES ONLY by another Party or non-party:
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`1.
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`Such Expert shall first read this Order and sign the Undertaking attached hereto as
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`Exhibit A.
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`2. At least five (5) business days prior to disclosing such information or items to the
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`Expert, the Receiving Party shall deliver in writing (by electronic mail) to the
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`Designating Party the Expert's full name and the city and state of his or her primary
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`residence; the name of the Expert's current employer(s); a copy of the Expert's
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`signed Undertaking; a copy of the Expert's current resume or curriculum vitae; and
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`a listing of each action, by case name and number, in which the Expert acted as a
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`testifying expert during the previous four ( 4) years. A Receiving Party that provides
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`the information specified in this paragraph to the Designating Party and does not
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`receive an objection to the proposed disclosure of the HIGHLY CONFIDENTIAL
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`- ATTORNEYS ' EYES ONLY or PROPRIETARY - OUTSIDE COUNSELS '
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`EYES ONLY information to this Expert within five (5) business days of providing
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`this information may disclose this information to the identified Expert.
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`3.
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`If the Designating Party has a good faith basis for believing it would be harmed by
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`the Receiving Party's proposed disclosure of HIGHLY CONFIDENTIAL -
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`ATTORNEYS ' EYES ONLY or PROPRIETARY - OUTSIDE COUNSELS '
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`EYES ONLY information to this Expert, the Designating Party shall be entitled to
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`object to such disclosure within five (5) business days after service of the
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`information called for in the preceding paragraph. Such objections must be in
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`writing and state with particularity the basis for the objection.
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`4. A Receiving Party that receives a timely objection to the proposed disclosure of
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`HIGHLY CONFIDENTIAL-ATTORNEYS ' EYES ONLY or PROPRIETARY -
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`OUTSIDE COUNSELS ' EYES ONLY information to an Expert must meet and
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`confer with the Designating Party within five (5) business days to attempt to resolve
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`the concerns giving rise to the objection. If the Parties are unable to reach an
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`agreement regarding such disclosure, the Party seeking to make the disclosure to
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`the Expert may file a motion seeking permission from the Court to do so, in
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`accordance with the Court's discovery dispute resolution procedures. Nothing in
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`this section shall shift the burden of persuasion otherwise applicable to such a
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`challenge. Moreover, until the Court rules on the motion, no disclosure of
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`HIGHLY CONFIDENTIAL - ATTORNEYS ' EYES ONLY or PROPRIETARY -
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`OUTSIDE COUNSELS ' EYES ONLY information shall be made to that Expert.
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`The filing and pendency of such a motion shall not limit, delay, or defer any
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`disclosures of Protected Material to persons as to whom no such objection has been
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`made.
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`G.
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`The following applies for each designated officer, director, employee and In-House
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`Counsel of a Receiving Party in Paragraphs V(C) and V(D) above to whom CONFIDENTIAL or
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`HIGHLY CONFIDENTIAL - ATTORNEYS ' EYES ONLY information is to be given, shown,
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`disclosed, made available or communicated in any way :
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`1. A Party may (i) replace a designated officer, director, employee or In-House
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`Counsel that ceases to be employed by the Party during the course of this litigation
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`or if consent is given by the opposing Party, and (ii) may add a designated officer,
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`director, employee, or In-House Counsel by notifying the other Party of the reason
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`for the addition and requesting that Party' s consent. Such consent shall not be
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`unreasonably withheld. In either case, (a) the proposed additional or substitute
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`officer, director, employee, or In-House Counsel must agree to be bound by the
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`terms of the Protective Order and to follow the procedures outlined in this Protective
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`Order; and (b) the Party seeking addition or substitution must provide the other
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`Party written notice of the proposed addition or substitution, including the name of
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`the proposed addition or substitute, and the reason(s) for a proposed substitution.
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`H.
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`Counsel for each Receiving Party shall keep in his or her files a copy of each
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`executed Undertaking he or she receives until sixty (60) calendar days after the final termination
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`of this Action. Upon final termination of this Action and at the written request of a Designating
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`Party, copies of all such executed agreements shall be provided to the Designating Party.
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`I.
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`Consistent with other provisions of this Order, when Protected Material is discussed
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`or disclosed during a deposition, the Designating Party may exclude any Person not authorized
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`under this Order to have access to the Protected Material from the deposition while the Protected
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`Material is disclosed or discussed. Parties shall work in good faith to give the other Parties notice
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`if they reasonably expect a deposition to include Protected Material so that the other Parties can
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`ensure that only authorized individuals are present at that deposition. The use of a document as an
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`exhibit at a deposition shall not in any way affect its designation as "CONFIDENTIAL,"
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`"HIGHLY CONFIDENTIAL - ATTORNEYS ' EYES ONLY," or "PROPRIETARY - OUTSIDE
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`COUNSELS ' EYES ONLY" information.
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`VI.
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`UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL
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`A.
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`In the event of disclosure of any information designated as CONFIDENTIAL,
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`HIGHLY CONFIDENTIAL-ATTORNEYS ' EYES ONLY, or PROPRIETARY - OUTSIDE
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`COUNSELS ' EYES ONLY to a Person not authorized to have access to such material, whether
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`inadvertent or otherwise, the Party responsible for having made, and any Party with knowledge of,
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`such disclosure shall, within two (2) business days of the discovery of such disclosure:
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`1.
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`notify in writing the Designating Party of the unauthorized disclosure, including
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`identifying the Person to whom the unauthorized disclosure was made and
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`identifying the specific unauthorized materials that were disclosed;
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`2.
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`use its best efforts to obtain the return from such Person of any such information
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`that should not have been disclosed, and all copies thereof; and
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`3.
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`request such Person to execute the Undertaking in the form attached hereto as
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`Exhibit A, except that the first sentence of Paragraph 4 of the Undertaking shall be
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`stricken prior to its execution. The executed Undertaking shall be served upon
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`counsel for the Designating Party within five (5) business days of its execution.
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`VII. COURT FILINGS
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`Without written permission from the Designating Party or a court order secured after
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`appropriate notice to all interested Persons, a Party may not file in the public record in this Action
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`any Protected Material, but rather must seek to file under seal any Protected Material in compliance
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`with the Court's rules and CM/ECF Procedures.
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`VIII. ATTORNEY ADVICE TO CLIENT
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`Nothing in this Order shall bar or otherwise restrict any Counsel from rendering advice to
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`his or her Party-client related to this Action or, in the course thereof, relying upon his or her
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`knowledge of CONFIDENTIAL, HIGHLY CONFIDENTIAL -ATTORNEYS' EYES ONLY, or
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`PROPRIETARY - OUTSIDE COUNSELS ' EYES ONLY information, provided, however, that
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`in rendering such advice the attorney shall not disclose any CONFIDENTIAL, HIGHLY
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`CONFIDENTIAL - ATTORNEYS' EYES ONLY, or PROPRIETARY - OUTSIDE
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`COUNSELS' EYES ONLY infom1ation received from the other Party or non-parties to
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`unauthorized Persons, except with prior written agreement of counsel for the Designating Party, or
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`by order of the Court.
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`IX. OTHER PROCEEDINGS
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`A.
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`By entering this Order and limiting the disclosure of Protected Material produced
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`in this Action, the Court does not intend to preclude another court from finding that information
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`may be relevant and subject to disclosure in another case. Any Person or Party subject to this Order
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`who becomes subject to a subpoena, discovery request, motion, or an order issued in other litigation
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`that may lead to disclosure of any information or items designated in this Action as
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`CONFIDENTIAL, HIGHLY CONFIDENTIAL
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`- ATTORNEYS' EYES ONLY, or
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`PROPRIETARY - OUTSIDE COUNSELS ' EYES ONLY by another Party or non-party shall
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`promptly notify the Designating Party in writing that such disclosure is sought, and in no event
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`more than ten (10) business days after receiving the subpoena, discovery request, motion, or order.
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`Such notification must include a copy of the subpoena, discovery request, motion, or court order.
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`B.
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`The Person or Party served with such a subpoena, discovery request, motion, or
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`order must also immediately inform in writing the party who caused the subpoena, discovery
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`request, or order to issue or made the motion in the other litigation that some or all the material
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`covered by the subpoena, discovery request, motion or order is the subject of this Protective Order.
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`In addition, the Person or Party served must deliver a copy of this Protective Order promptly to the
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`party in the other action that caused the subpoena or order to issue.
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`C.
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`The Person or Party served with such a subpoena, discovery request, motion, or
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`order shall, unless otherwise precluded from doing so by law or court order, (i) cooperate to the
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`extent necessary to permit the Designating Party to seek to quash such process or discovery request
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`and/or object to such motion or order; and (ii) not produce or disclose the Protected Material until
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`the Designating Party consents in writing to such production or disclosure, or the Person or Party
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`is ordered by a court of competent jurisdiction to produce or disclose the Protected Material, so
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`long as the order is not stayed prior to the date set for production or disclosure. In the event that
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`Protected Material is produced to a non-party, such material shall continue to be treated as
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`Protected Material pursuant to this Order.
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`D.
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`The purpose of imposing the duties set forth in this Section is to alert the
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`interested parties to the existence of this Order and to afford the Designating Party in this case
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`an opportunity to try to protect its confidentiality interests in other actions. Nothing in these
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`provisions should be construed as authorizing or encouraging a Receiving Party in this Action
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`to disobey a lawful directive from another court.
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`X.
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`INFORMATION FROM NON-PARTIES
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`If a non-party provides Discovery Materials to any Party, such non-party may adopt the
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`terms of this Order with regard
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`to
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`the production of CONFIDENTIAL, HIGHLY
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`CONFIDENTIAL - ATTORNEYS ' EYES ONLY, or PROPRIETARY - OUTSIDE
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`COUNSELS ' EYES ONLY information by executing a Notice of Election to Adopt Stipulated
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`Order on Confidentiality Agreement and Protective Order ("Notice of Election") in the form
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`attached hereto as Exhibit B. In the event of such election, the provisions of