Opinion
Case No. 2:05-CV-00252 TS.
August 12, 2005
Stephen J. Trayner, Michael J. Miller, STRONG HANNI, Salt Lake City, UT, Attorneys for Defendant, Cooper Tire Rubber Company.
COHNE, RAPPAPORT SEGAL, Jeffrey R. Oritt, Attorneys for Plaintiff.
EISENBERG GILCHRIST, David A. Cutt, Attorneys for Plaintiff.
PROTECTIVE ORDER OF CONFIDENTIALITY
PROTECTIVE ORDER OF CONFIDENTIALITY
1. "Confidential Material." As used in this Protective Order of Confidentiality, confidential material shall refer to information and records of Defendant Cooper Tire Rubber Company, hereinafter referred to as "Defendant," protected as trade secrets or confidential information pursuant to state and federal law. All confidential material is the exclusive, inalienable property of Defendant.
2. "Records." As used in this Protective Order of Confidentiality, records shall mean information, both discrete and cumulative, that is inscribed or otherwise recorded on a tangible medium or that is stored in an electronic or other medium and is retrievable in perceivable form. Records includes both electronic records and printed, typewritten, and other tangible records.
3. Scope. This Protective Order of Confidentiality shall govern confidential material produced or disclosed by this Defendant in response to formal or informal discovery conducted in this matter. Nothing in this Protective Order of Confidentiality shall be deemed to preclude this Defendant's right to: (a) oppose discovery on grounds not addressed under the terms of this Protective Order of Confidentiality, or (b) object on any ground to the admission of any confidential material into evidence at trial. Further, nothing contained in this Protective Order of Confidentiality shall prejudice the right of any party to contest the alleged relevancy, admissibility, or discoverability of the confidential material sought.
4. Designation of Confidential Material. Defendant may designate all or any portion of documents, things, and information it produces formally or informally to other parties to this litigation as confidential material. The designation of confidential material shall be made by any practicable means, including placing on the thing so designated, such that it will not interfere with its legibility, an appropriate notice such as the following: "confidential" or "confidential material." Confidential material will be Bates stamped, if appropriate. All materials designated as confidential material shall be treated as such pursuant to the terms of this Protective Order of Confidentiality until further order by the Court.
5. The inadvertent, unintentional, or in camera production of any confidential material shall not, under any circumstances, be deemed a waiver, in whole or in part, of the confidentiality of the confidential material in question. If Defendant should inadvertently produce any confidential material not responsive to a formal request for production and/or an order of the Court, the recipient shall immediately return the confidential material, including all copies thereof, to Defendant, and shall make no use of the confidential material for any purpose.
6. Objection to Designation. If any party objects to the designation of any record as confidential material, that party shall promptly notify all other parties in writing within thirty (30) days receipt of the confidential material, specifying the factual and legal basis for the objection. If a dispute arises that cannot be resolved by agreement, then the dispute will be submitted to the Court. Pending such determination (or the expiration of the period in which Defendant may make a challenge to an adverse ruling), the records shall be maintained as confidential material.
7. Access to Confidential Material. Access to confidential material shall be limited to authorized persons, solely in the performance of their duties in connection with trial preparation of this case. Authorized persons are:
(a) Counsel of record for the parties to this civil action;
(b) Paralegal, secretarial, administrative, and legal personnel working under the direction and control of those counsel of record and who have consented to this Protective Order of Confidentiality and have signed the Promise of Confidentiality;
(c) Outside forensic experts and consultants retained by counsel of record who have first consented to this Protective Order of Confidentiality and signed the Promise of Confidentiality (specifically excluding attorneys who are not counsel of record for the parties to this civil action); and
(d) Further access may be agreed to by the parties documented in writing or requested by any party by motion filed with this Court and approved by this Court.
Access to confidential material shall not be given to any person or entity not specifically described above, including to members of the general public. However, nothing in this Protective Order of Confidentiality shall prohibit Defendant from utilizing the confidential material as it deems appropriate, and any such use by Defendant shall not destroy the confidentiality of the confidential material in question.
Authorized persons shall not include any organization or entity, or any representative thereof, that regularly maintains and/or disseminates documents or information regarding documents, including abstracts or summaries, or any other records as a service to its members, subscribers, or others.
Under no circumstances shall access to confidential material be granted to any employee of any competitor of Defendant, or any person who, within the past two years, has been affiliated with, employed by, or consulted with a competitor (or an entity in privity with a competitor) of Defendant regarding research, development, production, or testing of tires or, over the following two years, expects to be involved in any such employment, affiliation, or consultation. 8. Promises of Confidentiality. Each authorized person who receives access to any confidential material shall first be given a copy of this Protective Order of Confidentiality and advised by the trial counsel making the disclosure that such person must not divulge any confidential material to any other person except in the preparation or trial of this lawsuit, and that such disclosure is limited to authorized persons. In accord with Hartman v. Remington Arms Co., 143 F.R.D. 673, 693 (W.D. Mo. 1992), a Promise of Confidentiality is attached as Exhibit A. This Promise of Confidentiality must be signed by each authorized person receiving any confidential material in advance of receipt. The signed original of each such Promise of Confidentiality shall be provided to counsel of record for Defendant within ten (10) days of execution. In the case of consulting forensic experts, the signed original shall be maintained by the disclosing counsel and provided to counsel of record for Defendant by the earlier of: (a) ten (10) days after the consulting forensic expert is designated as a testifying expert in this lawsuit; or (b) thirty (30) days after the final termination of this action (the earlier of execution of a settlement agreement or entry of a judgment) if the consulting forensic expert is not designated as a testifying expert.
9. Storage of Confidential Material. Authorized persons shall maintain all confidential material in a secure location. Confidential material may not be entered onto any electronic storage system, other than a floppy 3.5" disk or compact disc, and may not be transmitted via e-mail or other similar media. Authorized persons shall maintain a record, by Bates number designation, of the quantity of all copies or other reproductions made of each item of confidential material.
10. Use of Confidential Material. All confidential material shall be used for the purpose of this lawsuit only.
(a) No confidential material will be produced, disclosed, or otherwise utilized in any other litigation, whether or not that litigation involves parties to this case. Further, no confidential material shall be disseminated to or shared with any organization or entity, or any representative thereof, that regularly disseminates documents or information regarding documents, including abstracts or summaries, or any other records as a service to its members, subscribers, or others, or the representative of such an organization or entity.
(b) If any subpoenas, requests for production, or other forms of discovery in connection with other litigation are served on any party to this Protective Order of Confidentiality, or any authorized person defined hereunder, that party will immediately notify Defendant's counsel of record, provide Defendant's counsel with a copy of the subpoena or other discovery request, and will consent to and assist in obtaining an order from the appropriate court protecting the confidential material from being disseminated outside the scope of this Protective Order of Confidentiality.
11. Court Records. In the event that any confidential material is in any way disclosed in any pleading, motion, deposition transcript, videotape, exhibit, photograph, or other material filed with any court, the confidential material shall be filed in an attached sealed separate envelope containing the style of the case marked "CONFIDENTIAL MATERIAL Protected by Court Order," dated and kept under seal by the clerk of that court until further court order. Such confidential material shall, however, remain available to personnel authorized by that court and to authorized persons. When practicable, however, only the confidential portion of the pleadings filed with the court will be filed in a separate sealed envelope. If any confidential material is furnished to any court by any party, a duplicate copy with the discrete confidential material deleted may be substituted in the public record, if appropriate.
12. Depositions. If any confidential material is used or referred to during any deposition, counsel for Defendant may require that only its representatives, authorized persons, the deponent, the court reporter, and the camera operator (if the deposition is videotaped) shall be present for the portion of the deposition dealing with confidential material. Counsel for Defendant may also serve a copy of this Protective Order of Confidentiality upon the deponent, the court reporter, and camera operator, and require that each sign the Promise of Confidentiality (Exhibit A) prior to further questioning. Within forty-five (45) days of receipt of the completed deposition transcript, counsel for Defendant shall designate by page and line the portions for which such claim is made, and give written notice of this designation to the court reporter and all other parties. This designation shall be placed on the first page in the original and all copies of the deposition by the court reporter and by counsel for the parties. Pending such designation, the deposition and all exhibits shall be treated in its entirety as confidential material. Those portions of the deposition which are designated as confidential material shall be bound separately under seal and prominently marked " confidential material subject to Protective Order." The portions of each deposition so designated shall be returned to trial counsel for Defendant within thirty (30) day of final termination of this action (the earlier of execution of a settlement agreement or entry of a judgment).
Under no circumstances shall any confidential material be viewed by any deponent who is an employee of any competitor of Defendant, or any person who, within the past two years, has been affiliated with, employed by, or consulted with a competitor (or an entity in privity with a competitor) of Defendant's regarding research, development, production, or testing of tires or, over the following two years, expects to be involved in any such employment, affiliation, or consultation.
13. Evidence at Trial. Confidential material may be introduced into evidence at trial, if otherwise admissible, provided that the party seeking to do so shall give sufficient advance notice to the Court and to the parties to allow arrangements to be made for in camera treatment of the confidential material. In the event that a transcript of the trial is prepared, any party may request that certain portions thereof, which contain trade secrets or other confidential material, be filed under seal.
14. Inadvertent Disclosure. Should any confidential material be disclosed to any unauthorized persons, through inadvertence of a party or through the act or omission of any person, the unauthorized person (a) shall be informed promptly of the provisions of this Protective Order of Confidentiality by the party who first learns of the disclosure, and upon such notice shall be subject to the terms of this Protective Order of Confidentiality; (b) shall be identified immediately to counsel of record for Defendant; and (c) shall be directed if within control of a party, or otherwise asked, to sign the Promise of Confidentiality (Exhibit A). At Defendant's sole discretion, such unauthorized person may be required to surrender to Defendant all copies of confidential material in such unauthorized person's possession. The person or entity whose inadvertence caused the unauthorized disclosure shall be responsible for securing the unauthorized person's assent to the Promise of Confidentiality and for all reasonable attorneys' fees, costs, and expenses associated with enforcement of this Protective Order of Confidentiality.
15. Return of Confidential Material. Within thirty (30) days of final termination of this action (the earlier of execution of a settlement agreement or entry of a judgment), counsel for record for each party shall assemble and return to counsel of record for Defendant all confidential material produced, including all copies, notes, summaries, indices, renderings, photographs, recordings, floppy discs, compact discs, other magnetic or electronic media, and physical or electronic reproductions of every kind of such confidential material, whether in the possession of said counsel or in the possession of any authorized person who gained access to the confidential material. Any confidential material entered on a computer database or other electronic media forbidden by Paragraph 9 of the Protective Order of Confidentiality shall also be deleted and written over or reformatted. Any direct quote from or description of confidential material will also be returned to counsel of record for Defendant within thirty (30) days of final termination of this action (the earlier of execution of a settlement agreement or entry of a judgment). Accompanying the return of all confidential material, counsel for all parties shall provide to counsel for Defendant executed Certifications in the form attached hereto as Exhibit B (executed by each Counsel for the Claimants) and Exhibit C (executed by each expert and anyone else who had access to such confidential material). At Defendant's option, counsel for Defendant may inspect the confidential material in the offices of the counsel for the returning party before accepting return of the confidential material in order to confirm that all confidential material is present. If any confidential material is not present, counsel for the returning party shall execute an affidavit providing: (a) the Bates numbers of all confidential material produced to said counsel in this lawsuit; (b) the Bates numbers of the missing confidential material; and (c) a detailed explanation for the failure to return the missing confidential material. All signed Promises of Confidentiality shall also be forwarded to counsel of record for Defendant as provided in Paragraph 8.
16. No provision of this Protective Order is intended to limit the right of any party, counsel for any party or any recipient of confidential material from seeking to modify the terms of this Protective Order at any time in the future or from seeking relief from the restrictions imposed by this Protective Order concerning particular confidential material.
ORDERED.
EXHIBIT A
Stephen J. Trayner, #4928 Michael J. Miller, #9217 STRONG HANNI Attorneys for Defendant Cooper Tire Rubber Company
3 Triad Center, Suite 500 Salt Lake City, UT 84180 Telephone: (801) 532-7080 Facsimile: (801) 596-1508
IN THE UNITED STATES DISTRICT COURT DISTRICT OF UTAH
) EDWARD MURRELL, an individual ) ) PROTECTIVE ORDER OF Plaintiff, ) CONFIDENTIALITY ) vs. ) Case No. 2:05-CV-00252 TS ) COOPER TIRE RUBBER ) Judge Ted Stewart COMPANY, a Delaware corporation, ) ) Magistrate Judge Samuel Alba Defendant. )
PROMISE OF CONFIDENTIALITY
State of _________
§§ County of ________ §
1. My name is _______________. I live at ____________________. I am employed as _________________ by ________________.
2. I am aware that a Protective Order of Confidentiality has been entered in the above-referenced lawsuit and a copy of that Protective Order of Confidentiality has been given to me.
3. I promise that I will use the confidential material as defined under that Protective Order of Confidentiality only in connection with assisting counsel of record for the Plaintiff or Defendant in preparing for litigation of this matter.
4. I promise that I will not disclose or discuss such confidential material with any person other than counsel of record for the parties or members of their staff who are actively engaged in the preparation of this case.
5. I understand that I am prohibited by the terms of the Protective Order of Confidentiality from entering any confidential material onto any electronic storage system, other than a floppy 3.5" disk or compact disc. Specifically, I am prohibited from entering any confidential material onto any computer database and/or computer hard drive. I am also prohibited from transmitting confidential material via e-mail or other similar media.
6. I promise that I will not attempt or assist in any attempt to seek permission from any other court to access the confidential material produced in this matter for use in other litigation or for any other purpose.
7. I understand that any use of the confidential material I obtain, in any manner contrary to the provisions of the Protective Order of Confidentiality or this Promise of Confidentiality may subject me to sanctions by this Court, and I agree to the jurisdiction of this Court to enforce any such Order.
8. I expressly consent to the jurisdiction of this Court with respect to matters within the scope of the Protective Order of Confidentiality.
9. I understand that violating the terms of the Protective Order of Confidentiality or this Promise of Confidentiality could result in civil sanctions levied by the Court, as well as criminal penalties under state law and the federal Economic Espionage Act of 1996, 18 U.S.C. §§ 1831 et seq., including imprisonment for a period of up to ten (10) years.
10. Within twenty (20) days of final termination of this action (the earlier of execution of a settlement agreement or entry of a judgment), I will return to Cooper Tire Rubber Company, through delivery to counsel of record representing Plaintiff or Defendant in this case, all confidential material or any portion or summary thereof, along with my notarized affidavit confirming the return of said confidential material and listing the bates number of each document returned. I promise that under no circumstance will I retain any originals or duplicate of any such confidential material. I assume all responsibility for returning the confidential material to Cooper Tire Rubber Company, as set forth herein, and I bear all risks associated with the purported loss, destruction, or inadvertent disclosure of such confidential material that has been entrusted to my care. My failure to return all such confidential material and/or to provide the notarized affidavit described above will be deemed a disclosure of the confidential information in violation of the Protective Order of Confidentiality and this Promise of Confidentiality, which may subject me to sanctions. I expressly agree to pay all reasonable attorneys' fees, costs, and expenses associated with enforcement of this paragraph in order to obtain my compliance with it, in addition to any sanctions the Court may impose.
_____________________ _______________ Signature Date
EXHIBIT B
Stephen J. Trayner, #4928 Michael J. Miller, #9217 STRONG HANNI Attorneys for Defendant Cooper Tire Rubber Company
3 Triad Center, Suite 500 Salt Lake City, UT 84180 Telephone: (801) 532-7080 Facsimile: (801) 596-1508
IN THE UNITED STATES DISTRICT COURT DISTRICT OF UTAH
EDWARD MURRELL, an individual ) ) PROTECTIVE ORDER OF Plaintiff, ) CONFIDENTIALITY ) vs. ) Case No. 2:05-CV-00252 TS ) COOPER TIRE RUBBER ) Judge Ted Stewart COMPANY, a Delaware corporation, ) ) Magistrate Judge Samuel Alba Defendant. )
Attorney's Certification of Confidential Document Return
1. My name is _______________. I am counsel of record for Plaintiff in the case styled ______________ (the "Lawsuit").
2. Pursuant to the requirements set forth in the Protective Order of Confidentiality, both I and my co-counsel for Plaintiff have fulfilled each of our obligations imposed thereby, specifically:
A. We have returned to counsel of record for Cooper Tire Rubber Company ("Cooper") all items produced by Cooper subject to the Protective Order of Confidentiality in the Lawsuit and all confidential portions of deposition transcripts taken in the Lawsuit, and all copies, notes, summaries, indices, renderings, photographs, recordings and reproductions of any kind thereof of same (collectively referred to herein as "Confidential Material"), as required by the Protective Order of Confidentiality.
B. In compliance with Paragraph 9 of the Protective Order of Confidentiality, we have confirmed that no Confidential Material was intentionally or inadvertently entered on portable electronic or magnetic media (including without limitation, floppy discs and/or compact discs), computer databases and/or computer hard drives. If we discovered that Confidential Material was entered on such media, databases, and/or hard drives, we confirm that such Confidential Material was immediately deleted and written over and destroyed.
C. As part of our return of Confidential Material, we have gathered from each person to whom we have given access all copies of Confidential Material in such person's possession. Each such person has executed his own certification attesting that (1) all copies of Confidential Material have been returned to us, and that (2) the person in question did not make Confidential Material available to any other person or entity. Those certifications are attached hereto.
D. We have not made any Confidential Material, any copies thereof, or any document that reflects or contains Confidential Material, available to any other person or entity.
3. We understand that we have a continuing obligation under the Protective Order of Confidentiality to locate and immediately return any Confidential Material or copies thereof that were produced to us by Cooper in this lawsuit.
4. We understand that any breach of our obligations under the Protective Order of Confidentiality will subject us to all common law and statutory remedies, as well as civil sanctions levied by this Court.
Date: _____________
Signature: ________________________
EXHIBIT C
Stephen J. Trayner, #4928 Michael J. Miller, #9217 STRONG HANNI Attorneys for Defendant Cooper Tire Rubber Company
3 Triad Center, Suite 500 Salt Lake City, UT 84180 Telephone: (801) 532-7080 Facsimile: (801) 596-1508
IN THE UNITED STATES DISTRICT COURT DISTRICT OF UTAH
EDWARD MURRELL, an individual ) ) PROTECTIVE ORDER OF Plaintiff, ) CONFIDENTIALITY ) vs. ) Case No. 2:05-CV-00252 TS ) COOPER TIRE RUBBER ) Judge Ted Stewart COMPANY, a Delaware corporation, ) ) Magistrate Judge Samuel Alba Defendant. )
Expert's/Authorized Person's Certification of Confidential Document Return
1. My name is ______________. I work at ________________________________.
2. I have received access to materials (including documents and confidential depositions) protected by the Protective Order of Confidentiality ("Confidential Material") entered in the case styled __________________________ (the "Lawsuit").
3. Pursuant to Plaintiff's counsel's request, I have returned all Confidential Material and all copies, notes, summaries, indices, renderings, photographs, recordings and reproductions of any kind thereof of same to ______________________________.
4. In compliance with Paragraph 9 of the Protective Order of Confidentiality, I have confirmed that no Confidential Material was intentionally or inadvertently entered on portable electronic or magnetic media (including without limitation, floppy discs and/or compact discs), computer databases and/or computer hard drives. If I discovered that Confidential Material was entered on such media, databases, and/or hard drives, I confirm that such Confidential Material was immediately deleted and written over and destroyed.
5. I have not made any Confidential Material, any copies thereof, or any document that reflects or contains Confidential Material, available to any other person or entity.
6. I understand that I have a continuing obligation under the Protective Order of Confidentiality to locate and immediately return any Confidential Material or copies thereof that were produced by Cooper in this lawsuit.
7. I understand that any breach of our obligations under the Protective Order of Confidentiality will subject me to all common law and statutory remedies, as well as civil sanctions levied this Court.
Date: _____________
Signature: _____________________