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Nutech Ventures v. Syngenta Seeds, Inc.

United States District Court, Eighth Circuit

June 14, 2013

NUTECH VENTURES, Plaintiff and Counterclaim Defendant,
v.
SYNGENTA SEEDS, INC. and TRENTON AGRI PRODUCTS LLC, Defendants and Counterclaim Plaintiff Syngenta Seeds, Inc.

PROTECTIVE ORDER

F.A. GOSSETT, Magistrate Judge.

Plaintiff NUtech Ventures ("NUtech") and Defendants Syngenta Seeds, Inc. and Trenton Agri Products LLC (collectively "Defendants") have stipulated to the entry of this Protective Order. (Filing 80.) This Protective Order is issued to facilitate document disclosure and production under the Local Rules of this Court and the Federal Rules of Civil Procedure. Unless modified pursuant to the terms contained in this Order, this Order shall remain in effect through and after the conclusion of this litigation. This Protective Order applies to documents or things which contain confidential proprietary and business information and/or trade secrets ("Confidential Information") that are likely to be disclosed or produced during the course of discovery in this litigation. The parties to this litigation identified above ("Parties" or individually a "Party") may assert that public dissemination and disclosure of Confidential Information could injure or damage the Party disclosing or producing the Confidential Information and could place that Party at a competitive disadvantage. This Protective Order is intended to protect the respective interests of the Parties during discovery and to facilitate the progress of disclosure and discovery in this case.

INFORMATION SUBJECT TO THIS ORDER

1. Documents, physical objects, testimony and discovery responses containing Confidential Information disclosed or produced by any Party in this litigation are referred to as "Protected Documents, " whether in paper or electronic form. Except as otherwise indicated below, all documents, physical objects, testimony and discovery responses designated by the producing Party as "CONFIDENTIAL" or "HIGHLY CONFIDENTIAL - OUTSIDE COUNSEL ONLY" and which are disclosed or produced to an attorney for the other Parties to this litigation are Protected Documents and are entitled to confidential treatment as described below.

2. The use of any Protected Documents and/or Confidential Information obtained by any Party from any person pursuant to discovery in this litigation shall be limited to and used solely for purposes of this litigation.

3. Any document or tangible thing containing or including any Confidential Information may be designated as such by marking it "CONFIDENTIAL" "HIGHLY CONFIDENTIAL - OUTSIDE COUNSEL ONLY" (as the case may be) prior to or at the time copies are furnished to the receiving Party.

4. All Confidential Information not reduced to documentary, tangible, or physical form, or which cannot be conveniently designated, shall be designated by the producing Party by informing the receiving Party of the designation in writing.

5. To the extent that Protected Documents and/or Confidential Information are used in depositions or at hearings, such documents or information shall remain subject to the provisions of this Order, along with the transcript pages of the deposition testimony referring to the Protected Documents and/or Confidential Information. Any deposition transcript, in whole or in part, may be designated "CONFIDENTIAL" or "HIGHLY CONFIDENTIAL - OUTSIDE COUNSEL ONLY" by an appropriate statement at the time such testimony is given or thereafter by notifying the other Parties in writing of the portions of such testimony to be so designated within thirty (30) days from the date of the deposition. Upon such request, the reporter shall mark the original and all copies of the transcript as designated. Unless the Parties otherwise agree, the entire transcript of all depositions shall be deemed designated as "HIGHLY CONFIDENTIAL" for thirty (30) days from the date of the deposition. After such date, absent written notification that certain portions are to be designated as "CONFIDENTIAL" or "HIGHLY CONFIDENTIAL - OUTSIDE COUNSEL ONLY, " the transcript shall be deemed non-confidential. Any portions so designated shall thereafter be treated in accordance with the terms of this Order. Counsel for the Party whose Protected Documents and/or Confidential Information is being discussed, used, or otherwise disclosed at a deposition or hearing, may request that all persons other than the court reporter, videographer, the Court and its personnel, witness, and others authorized to view the Protected Documents and/or Confidential Information leave the deposition or hearing.

6. In the event a deposition disclosing or discussing Protected Documents and/or Confidential Information is videotaped or recorded by other video means, the original and all copies of the videotape or other media containing the video shall be marked by the video technician to indicate that the contents of the videotape or other media containing the video are subject to this Protective Order, substantially as set forth below:

This videotape contains confidential testimony subject to Protective Order in Civil Action No. 8:12-CV-00289-LSC-FG3 (D. Neb.) and is not to be viewed or the contents thereof to be displayed or revealed except in accord with such Protective Order, by order of the Court, or pursuant to written stipulation of the parties to the litigation.

7. Any court reporter or transcriber who reports or transcribes testimony in this action shall agree that all information designated as "CONFIDENTIAL" or "HIGHLY CONFIDENTIAL - OUTSIDE COUNSEL ONLY" under this Order shall remain confidential and shall not be disclosed by them, except pursuant to the terms of this Order, and that any notes or transcriptions of such testimony (and any accompanying exhibits) will be retained by the reporter or delivered to counsel of record.

8. By way of non-limiting example, Protected Documents and/or Confidential Information in one or more of the following categories may qualify for the "CONFIDENTIAL" designation: information that (i) has not been made public; or (ii) concerns confidential research, development, or commercial information the disclosure of which the disclosing Party reasonably believes could cause harm to the business operations of the disclosing Party or provide improper business or commercial advantage to others.

9. By way of non-limiting example, Protected Documents in one or more of the following categories may qualify for the "HIGHLY CONFIDENTIAL - OUTSIDE COUNSEL ONLY" designation: (i) trade secrets; (ii) nonpublic technical information, including schematic diagrams, manufacturing and engineering drawings, engineering notebooks, specifications, research notes and materials, technical reference materials, and other non-public technical descriptions and/or depictions of the relevant technology; (iii) non-public damage-related information ( e.g., the number of products sold, total dollar value of sales products, costs, discounts, and profit margins); (iv) non-public financial information; (v) non-public business and/or marketing plans; (vi) non-public price lists and/or pricing information; and (vii) information obtained from a non-Party pursuant to a current Non-Disclosure Agreement ("NDA"). Nothing herein shall prejudice or waive in any way the rights of Parties to object to the production of documents they consider not subject to discovery for any reason or operate as a consent to any discovery.

10. Any documents (including physical objects) made available for inspection by counsel for the receiving Party prior to producing copies of selected items shall initially be considered, as a whole, to constitute "HIGHLY CONFIDENTIAL - OUTSIDE COUNSEL ONLY" information and shall be subject to this Order. Thereafter, the producing Party shall have a reasonable time to review and designate the appropriate documents as "CONFIDENTIAL" or "HIGHLY CONFIDENTIAL - OUTSIDE COUNSEL ONLY" prior to furnishing copies to the receiving Party. At the initial (or any subsequent) inspection of the documents or things, the receiving Party shall not make copies of the documents produced. Copies of documents and copies of photographs and things requested by the receiving Party shall be made, Bates labeled, and delivered to the receiving Party by the producing Party. Such process shall be performed as promptly as reasonably practical and shall not await the production or inspection of other documents or things.

NO WAIVER

11. Inadvertent or unintentional production of Protected Documents and/or Confidential Information which are not designated "CONFIDENTIAL" or "HIGHLY CONFIDENTIAL - OUTSIDE COUNSEL ONLY" shall not be deemed a waiver in whole or in part of a claim for confidential treatment. Upon request by the producing Party, the receiving Party shall immediately destroy or return all copies of such inadvertently produced document(s). The producing Party shall have the opportunity to reproduce or designate the returned documents with any of the aforementioned CONFIDENTIAL designations. Any receiving Party will also make all reasonable efforts to retrieve any documents from anyone who had received the documents prior to the notification to the receiving Party of the inadvertent failure to designate the material "CONFIDENTIAL" or "HIGHLY CONFIDENTIAL - OUTSIDE COUNSEL ONLY" and who is no longer permitted to access the documents under the new designation. The receipt of documents or information will not operate as an admission by the receiving Party that any particular "CONFIDENTIAL" or "HIGHLY CONFIDENTIAL - OUTSIDE COUNSEL ONLY" information contains (or does not contain) or reflects (or does not reflect) trade secrets or any other type of confidential or proprietary information.

12. The designation (or lack thereof) of Protected Documents and/or Confidential Information as "CONFIDENTIAL" or "HIGHLY CONFIDENTIAL - OUTSIDE COUNSEL ONLY" shall not operate to prejudice or waive any claim or defense in this Action.

13. Nothing herein shall prejudice or waive in any way the rights of any Party to object to the authenticity or admissibility into evidence of any document, testimony or other evidence subject to this Protective Order.

CHALLENGES TO CONFIDENTIALITY DESIGNATIONS

14. Nothing herein shall prejudice or waive in any way the rights of a Party to seek determination by the Court whether any Protected Documents and/or Confidential Information should or should not be subject to the terms of this Protective Order. At any time after the delivery of Protected Documents and/or Confidential Information, counsel for the Party or Parties receiving the Protected Documents and/or Confidential Information may challenge the confidential designation of all or any portion thereof. A receiving Party that elects to initiate a challenge to a producing Party's confidential designation must do so in good faith and serve a written objection, including a statement of the grounds for the objection, on the designating party or non-party. The producing Party will have five (5) business days following the receipt of the objection to withdraw its CONFIDENTIAL designation or to withdraw or modify its designation of "HIGHLY CONFIDENTIAL - OUTSIDE COUNSEL ONLY". If the "CONFIDENTIAL" designation is not withdrawn or if the "HIGHLY CONFIDENTIAL - OUTSIDE COUNSEL ONLY" designation is not withdrawn or modified as requested, the challenging Party may move the Court for an order removing the "CONFIDENTIAL" designation, and/or removing or modifying the "HIGHLY CONFIDENTIAL - OUTSIDE COUNSEL ONLY" designation. Notwithstanding any such dispute over any designation, including the filing of any related Motion, while any such dispute is ongoing, the receiving Parties will maintain the confidentiality of the information consistent with the other provisions of this Order until the issue is resolved by the Court or agreement is reached with the Producing Party. In any court proceeding regarding the propriety of the designation of Protected Documents, the burden of proof with respect to the proprietary or correctness of the designation of information as Protected Documents shall rest upon the designating party.

15. No Party shall be obligated to challenge the propriety of any designation, and failure to do so shall not preclude a subsequent ...


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