AMENDED STIPULATED PROTECTIVE ORDER
ALKA SAGAR, Magistrate Judge.
Pursuant to Fed. R. Civ. P. 26(c)(1)(G), Plaintiff Cara Shapiro ("Plaintiff"), on the one hand, and Le Creuset of America, Inc. and Schiller Stores Inc. ("Defendants"), on the other hand (collectively, "the Parties"), hereby stipulate that, subject to the Court's approval, the following procedures shall be followed in this action.
PURPOSES AND LIMITATIONS
Disclosure and discovery activity in this action are likely to involve production of confidential, proprietary, and/or private information for which special protection from public disclosure or improper use may be warranted. This Protective Order is entered for the purpose of facilitating the exchange of documents and information between the parties to this action without involving the Court unnecessarily in the process. Nothing in this Protective Order, nor the production of any information or document under the terms of this Protective Order, nor any proceedings pursuant to this Protective Order shall be deemed to have the effect of an admission or waiver by any Party. The Parties further acknowledge, as set forth below in Section 10, below, that this Stipulated Amended Protective Order does not entitle them to file confidential information under seal; Civil Local Rule 79-5 sets forth the procedures that must be followed and the standards that will be applied when a party seeks permission from the court to file material under seal.
GOOD CAUSE STATEMENT
This action is likely to involve trade secrets, customer lists, personal identifying information, personal financial information, and other valuable research, development, commercial, financial, technical and/or proprietary information for which special protection from public disclosure and from use for any purpose other than prosecution of this action is warranted. Such confidential and proprietary materials and information consist of, among other things, personal identifying information, personal financial information, confidential business or financial information, information regarding confidential business practices, or other confidential research, development, or commercial information (including information implicating privacy rights of third parties, current and/or former customers and/or current and/or former employees), information otherwise generally unavailable to the public, or which may be privileged or otherwise protected from disclosure under state or federal statutes, court rules, case decisions, or common law. Accordingly, to expedite the flow of information, to facilitate the prompt resolution of disputes over confidentiality of discovery materials, to adequately protect information the Parties are entitled to keep confidential, to ensure that the Parties are permitted reasonable necessary uses of such material in preparation for and in the conduct of trial, to address their handling at the end of the litigation, and serve the ends of justice, a protective order for such information is justified in this matter. It is the intent of the Parties that information will not be designated as confidential for tactical reasons and that nothing be so designated without a good faith belief that it has been maintained in a confidential, non-public manner, and there is good cause why it should not be part of the public record of this case.
(a) a Party or an officer, director, agent, or employee of a Party, or a regularly-engaged contractor or vendor of a party, deemed necessary by counsel to aid in the prosecution, defense, or settlement of this action;
(b) Experts or consultants (together with their clerical staff), as defined in section 2.9 below, retained by counsel to assist in the prosecution, defense, or settlement of this action;
(c) Professional vendor(s), as defined in section 2.10 below, employed in this action;
(d) a witness at any deposition or other proceeding in this action;
(e) the author of the document or the original source of the information;
(f) any other person as to whom the Parties may agree in writing.
With the exception of a Party and Outside Counsel for a Party, each "qualified person" shall be provided with a copy of this Protective Order and shall execute a nondisclosure agreement in the form of Exhibit A, the original of which shall be maintained in the files of the Outside Counsel of the Party making the disclosure to such qualified person.
Material designated as "Confidential" under this Protective Order, the information contained therein, and any summaries, copies, abstracts, or other documents derived in whole or in part therefrom shall be used only for the prosecution, defense, and settlement of this action. However, the restrictions and obligations set forth within this Protective Order will not apply to any information that: (a) the Parties agree, or the Court rules, should not be designated as Protected Material; (b) the Parties agree, or the Court rules, is already public knowledge; (c) the Parties agree, or the Court rules, has become public knowledge other than as a result of disclosure by the Receiving Party, its employees, or its agents in violation of this Protective Order; or (d) has come into the Receiving Party's legitimate knowledge independently of the production by the Designating Party.
DESIGNATING PROTECTED MATERIAL
5.1 Designation in conformity with this Protective Order requires:
CHALLENGING CONFIDENTIALITY DESIGNATIONS
This Protective Order shall be without prejudice to the right of the Parties (i) to bring before the Court at any time the question of whether any particular document or information is "Confidential" or whether its use should be restricted; or (ii) to present a motion to the Court under Federal Rule of Civil Procedure Rule 26(c) for a separate protective order as to any particular document or information, including restrictions differing from those specified herein. This Protective Order shall not be deemed to prejudice the Parties in any way in the further application for modification of this Protective Order.
Notwithstanding the requirements of Civil Local Rule 37, which applies to discovery disputes generally, if a dispute involves the issue of whether documents or other materials are appropriately designated as "Confidential," the following procedures shall apply:
(a) Counsel for the objecting party shall serve on the Designating Party or non-party a written objection to such designation, which shall describe with particularity the documents or information in question and shall state the grounds for objection. Counsel for the Designating Party or non-party shall respond in writing to such objection within seven (7) days of receipt of the objection, and shall state with particularity the grounds for asserting that the document or information qualifies as "Confidential" under the provisions of this Protective Order. If the Designating Party or nonparty makes a timely response to such objection asserting the propriety of the designation, counsel shall then confer in good faith in an effort to resolve the dispute within seven (7) days of receipt of the response to the objection.
(b) If a dispute as to a "Confidential" designation of a document or item of information cannot be resolved by agreement, the Designating Party or non-party shall present the dispute to the Court by way of Joint Stipulation as provided in Civil Local Rule 37 within twenty-one (21) days of the conference of counsel, or if no response to an objection is given, within twenty-one (21) days of the deadline for a response. If Counsel for the Designating Party or non-party fails to provide a timely response to an objection or fails to timely present the dispute to the Court as outlined herein, the document or item of information shall lose its designation. If the matter is brought to the Court's attention, the Designating Party or non-party shall bear the burden of proving that the material was properly designated.
The Court may modify the terms and conditions of this Order for good cause, or in the interests of justice, or on its own order, at any time in these proceedings.
ACCESS TO AND USE OF PROTECTED MATERIAL
Protected Material must be stored and maintained by a Receiving Party at a location and in a secure manner that ensures that access is limited to the persons authorized under this Order.
PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED IN OTHER LITIGATION
If a Receiving Party is served with a subpoena or an order issued in other litigation that would compel disclosure of any information or items designated in this action as "Confidential," the Receiving Party must so notify the Designating Party in writing before the scheduled date for production. Such notification must include a copy of the subpoena or court order.
The purpose of imposing these duties is to alert the interested parties to the existence of this Protective Order and to afford the Designating Party in this case an opportunity to try to protect its confidentiality interests in the court from which the subpoena or order issued. The Designating Party shall bear the burdens and the expenses of seeking protection in that court of its Protected Material, and nothing in this Protective Order should be construed as authorizing or encouraging a Receiving Party in this action to disobey a lawful directive from another court.
UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL
If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed Protected Material to any person or in any circumstance not authorized under this Protective Order, the Receiving Party must immediately (a) notify the Designating Party in writing of the unauthorized disclosures, (b) use its best efforts to retrieve all copies of the Protected Material, (c) inform the person or persons to whom unauthorized disclosures were made of the terms of this Protective Order, and (d) request such person or persons to execute the "Acknowledgment and Agreement to Be Bound" that is attached hereto as Exhibit A.
FILING PROTECTED MATERIAL
Without written permission from the Designating Party or a court order secured after appropriate notice to all interested persons, a Party may not file in the public record in this action any Protected Material. A Party that seeks to file under seal any Protected Material must comply with Civil Local Rule 79-5. Protected Material may only be filed under seal pursuant to a court order authorizing the sealing of the specific document(s) at issue. If a Party's request to file Protected Material under seal is denied by the court, then the Receiving Party may file the information in the public record unless otherwise instructed by the court. Denial of a Receiving Party's request to file Protected Material shall not result from Receiving Party's technical failure to conform to Civil Local Rule 79-5 or any other applicable rule.
DURATION AND FINAL DISPOSITION
This Protective Order shall survive the final termination of this action, to the extent that the information contained in Protected Material is not or does not become known to the public, and the Court shall retain jurisdiction to resolve any dispute concerning the use of information disclosed hereunder. Within 60 days of the final termination of this case such that no appeal or writ may be taken, counsel for the Parties shall assemble and return to each other all Protected Material received from the other Parties, and all copies of the same, or shall certify the destruction thereof. Notwithstanding this provision, counsel are entitled to retain an archival copy of all pleadings, motion papers, transcripts, legal memoranda, correspondence, or attorney work product, even if such materials contain Protected Material. Any such archival copies that contain or constitute Protected Material remain subject to this Protective Order.
INADVERTENT DISCLOSURE OF PRIVILEGED INFORMATION
Under Rule 502 of the Federal Rules of Evidence and Rule 26(b)(5)(B) of the Federal Rules of Civil Procedure, incorporated herein by reference, the inadvertent or unintentional disclosure by the Producing Party or non-party of information subject to the attorney-client privilege or work-product doctrine, or any other applicable privilege or immunity, shall not be deemed a waiver in whole or in part of the Party's or nonparty's claim of privilege or work-product immunity, either as to the specific information disclosed or as to any other information relating thereto or on the same or related subject matter. If a Party or non-party has inadvertently produced information subject to a claim of immunity or privilege, the Parties shall comply with their obligations under Fed. R. Evid. 502 and Fed. R. Civ. P. 26(b)(5)(B).
I, _____________________________, in connection with the above-caption lawsuit, hereby acknowledge that I am to be provided access to confidential information supplied by other parties and/or non-parties, as defined in the Amended Stipulated Protective Order dated _________________.
My address is _____________________________________________________________________.
I certify my understanding that the confidential information is being provided to me pursuant to the terms and restrictions of the aforesaid Amended Stipulated Protective Order and that I have been given a copy of and have read and understood my obligations under that Amended Stipulated Protective Order. I hereby agree to be bound by the terms of the Amended Stipulated Protective Order. I understand that the confidential information and my copies or notes relating thereto may be disclosed to or discussed with only those persons permitted by the Amended Stipulated Protective Order to receive such information.
I will return on request all materials containing confidential information, copies thereof and notes that I have prepared relating thereto, to outside counsel of record for the party with whom I am associated or from whom I received information or material designated as "Confidential."
I hereby submit to the jurisdiction of this Court for the purpose of enforcement of the Protective Order and waive any and all objections to jurisdiction and venue.