IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS 247 247 Plaintiff 247 247 v. 247 CIVIL ACTION NO. 247 247 Defendant 247 CONFIDENTIALITY AND PROTECTIVE ORDER Before the court is the joint motion of the parties for the entry of a confidentiality and protective order (223Protective Order224). After careful consideration, it is hereby ORDERED as follows: 1. Classified Information 223Classified Information224 means any information of any type, kind, or character that is designated as 223Confidential224, 223For Counsel Only224, or 223Attorneys Eyes Only224 by any of the supplying or receiving persons, whether it be a document, information contained in a document, information revealed during a deposition, information revealed in an interrogatory answer, or otherwise. 2. Qualified Persons 223Qualified Persons224 means: a. For Counsel or Attorneys Only information: i. retained counsel for the parties in this litigation and their respective staff; ii. actual or potential independent experts or consultants (and their administrative or clerical staff) engaged in connection with this litigation (which shall not include the current employees, officers, members, or agents of parties or affiliates of parties) who, prior to any disclosure of Classified Information to such person, have signed a document agreeing to be bound by the terms of this Protective Order (such signed document to be maintained by the attorney retaining such person) and have been American LegalNet, Inc. www.FormsWorkFlow.com designated in writing by notice to all counsel; iii. this court and its staff and any other tribunal or dispute resolution officer duly appointed or assigned in connection with this litigation. b. For Confidential information: i. the persons identified in subparagraph 2(a); ii. the party, if a natural person; iii. if the party is an entity, such officers or employees of the party who are actively involved in the prosecution or defense of this case who, prior to any disclosure of Confidential information to such person, have been designated in writing by notice to all counsel and have signed a document agreeing to be bound by the terms of this Protective Order (such signed document to be maintained by the attorney designating such person); iv. litigation vendors, court reporters, and other litigation support personnel; v. any person who was an author, addressee, or intended or authorized recipient of the Confidential information and who agrees to keep the information confidential, provided that such persons may see and use the Confidential information but not retain a copy. c. Such other person as this court may designate after notice and an opportunity to be heard. 3. Designation Criteria a. Nonclassified Information. Classified Information shall not include information that either: i. is in the public domain at the time of disclosure, as evidenced by a written document; ii. becomes part of the public domain through no fault of the recipient, as evidenced by a written document; iii. the receiving party can show by written document was in its rightful and lawful possession at the time of disclosure; or iv. lawfully comes into the recipient222s possession subsequent to the time of disclosure from another source without restriction as to disclosure, provided such third party has the right to make the disclosure to the receiving party. b. Classified Information. A party shall designate as Classified Information only American LegalNet, Inc. www.FormsWorkFlow.com such information that the party in good faith believes in fact is confidential. Information that is generally available to the public, such as public filings, catalogues, advertising materials, and the like, shall not be designated as Classified. Information and documents that may be designated as Classified Information include, but are not limited to, trade secrets, confidential or proprietary financial information, operational data, business plans, and competitive analyses, personnel files, personal information that is protected by law, and other sensitive information that, if not restricted as set forth in this order, may subject the producing or disclosing person to competitive or financial injury or potential legal liability to third parties. Correspondence and other communications between the parties or with nonparties may be designated as Classified Information if the communication was made with the understanding or reasonable expectation that the information would not become generally available to the public. c. For Counsel or Attorneys Only. The designation 223For Counsel Only224 or 223Attorneys Eyes Only224 shall be reserved for information that is believed to be unknown to the opposing party or parties, or any of the employees of a corporate party. For purposes of this order, so-designated information includes, but is not limited to, product formula information, design information, non-public financial information, pricing information, customer identification data, and certain study methodologies. d. Ultrasensitive Information. At this point, the parties do not anticipate the need for higher levels of confidentiality as to ultrasensitive documents or information. However, in the event that a court orders that ultrasensitive documents or information be produced, the parties will negotiate and ask the court to enter an ultrasensitive information protocol in advance of production to further protect such information. 4. Use of Classified Information All Classified Information provided by any party or nonparty in the course of this American LegalNet, Inc. www.FormsWorkFlow.com litigation shall be used solely for the purpose of preparation, trial, and appeal of this litigation and for no other purpose, and shall not be disclosed except in accordance with the terms hereof. 5. Marking of Documents Documents provided in this litigation may be designated by the producing person or by any party as Classified Information by marking each page of the documents so designated with a stamp indicating that the information is 223Confidential224, 223For Counsel Only224, or 223Attorneys Eyes Only224. In lieu of marking the original of a document, if the original is not provided, the designating party may mark the copies that are provided. Originals shall be preserved for inspection. 6. Disclosure at Depositions Information disclosed at (a) the deposition of a party or one of its present or former officers, directors, employees, agents, consultants, representatives, or independent experts retained by counsel for the purpose of this litigation, or (b) the deposition of a nonparty may be designated by any party as Classified Information by indicating on the record at the deposition that the testimony is 223Confidential224 or 223For Counsel Only224 and is subject to the provisions of this Order. Any party also may designate information disclosed at a deposition as Classified Information by notifying all parties in writing not later than 30 days of receipt of the transcript of the specific pages and lines of the transcript that should be treated as Classified Information thereafter. Each party shall attach a copy of each such written notice to the face of the transcript and each copy thereof in that party222s possession, custody, or control. All deposition transcripts shall be treated as For Counsel Only for a period of 30 days after initial receipt of the transcript. To the extent possible, the court reporter shall segregate into separate transcripts information designated as Classified Information with blank, consecutively numbered pages being provided in a nondesignated main transcript. The separate transcript containing Classified Information shall have page numbers that correspond to the blank pages in the main transcript. Counsel for a party or a nonparty witness shall have the right to exclude from depositions American LegalNet, Inc. www.FormsWorkFlow.com any person who is not authorized to receive Classified Information pursuant to this Protective Order, but such right of exclusion shall be applicable only during periods of examination or testimony during which Classified Information is being u