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Artskills, Inc. v. Royal Consumer Products, LLC

United States District Court, D. Connecticut

July 6, 2018

ARTSKILLS, INC., Plaintiff,
v.
ROYAL CONSUMER PRODUCTS, LLC, Defendant.

          STIPULATED PROTECTIVE ORDER

          VICTOR A. BOLDEN, UNITED STATES DISTRICT JUDGE.

         On September 14, 2017, ArtSkills, Inc. (“Plaintiff”), filed a Complaint against Royal Consumer Products, LLC (“Defendant” or “RCP”), claiming that RCP infringed on two of ArtSkills's patents. Compl., ECF No. 1. The parties have now conferred and agreed upon the terms of and have moved for the Court to issue a Stipulated Protective Order. ECF No. 50.

         Federal Rule of Civil Procedure 26(c)(1) provides:

A party or any person from whom discovery is sought may move for a protective order in the court where the action is pending. . . . The motion must include a certification that the movant has in good faith conferred or attempted to confer with other affected parties in an effort to resolve the dispute without court action. The court may, for good cause, issue an order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense, including one or more of the following: . . .
(G) requiring that a trade secret or other confidential research, development, or commercial information not be revealed or be revealed only in a specified way[.]

         The Court agrees that good cause exists to protect the parties from the disclosure of trade secrets or other confidential research, development, or commercial information. The Court therefore issues the following protective order:

         1. Scope of Protection

         1.1 This Protective Order shall govern any record of information, designated under ¶ 3 of this Protective Order, produced in this action, including, without limitation, all designated deposition testimony, all designated testimony taken at a hearing or other proceeding, all designated interrogatory answers, documents and other discovery materials, whether produced informally or in response to interrogatories, requests for admissions, requests for production of documents or other formal methods of discovery.

         1.2 This Protective Order shall also govern any designated record of information produced, exchanged, or served in this action consistent with required disclosures under any federal procedural rule or District of Connecticut Local Rules, and any supplementary disclosures thereto.

         1.3 This Protective Order shall apply to the parties and any non-party from whom discovery may be sought and who desires the protection of this Protective Order. If an additional party unrelated to ArtSkills Inc. or Royal Consumer Products LLC, (or a successor in interest to any of them) joins or is joined in this action, the newly joined party shall not have access to documents or other information produced under protection of this Protective Order until the parties agree to a supplemental protective order.

         2. Definitions.

         2.1 As used herein, the terms “CONFIDENTIAL” and “CONFIDENTIAL INFORMATION” (which are used herein interchangeably and are synonymous with one another) mean any information used by a party or non-party in or pertaining to its business, which information is not publicly known, including any form of trade secret or other confidential research, development, marketing, or commercial information within the meaning of Fed.R.Civ.P. 26(c)(1)(G). The designation of “CONFIDENTIAL” or “CONFIDENTIAL INFORMATION” by a party or non-party who seeks to invoke protection under this Protective Order (“Producing Party”) constitutes its representation that it reasonably and in good faith believes that the designated material constitutes or contains information as described above.

         2.2 As used herein, the terms “HIGHLY CONFIDENTIAL” and “HIGHLY CONFIDENTIAL INFORMATION” (which are used herein interchangeably and are synonymous with one another) shall be designated if, and only if, that information is “CONFIDENTIAL” as set forth in or ¶ 2.1 above and constitutes or reflects sensitive financial, business, or commercial information that could harm the producing party's financial, business, or commercial interests, including but not limited to information regarding vendors, customers, sales, costs, profits, forecasts and financial assumptions.

         2.3 CONFIDENTIAL INFORMATION or HIGHLY CONFIDENTIAL INFORMATION, respectively, shall include: (a) all copies, extracts, and complete or partial summaries prepared from such CONFIDENTIAL INFORMATION or HIGHLY CONFIDENTIAL INFORMATION; (b) portions of deposition transcripts and exhibits thereto that contain, summarize, or reflect the content of any such CONFIDENTIAL INFORMATION or HIGHLY CONFIDENTIAL INFORMATION; (c) portions of briefs, memoranda, or any other writings filed with the Court and exhibits thereto that contain, summarize, or reflect the content of any such CONFIDENTIAL INFORMATION or HIGHLY CONFIDENTIAL INFORMATION; (d) written discovery responses, answers, and/or contentions that contain, summarize, or reflect the content of any such CONFIDENTIAL INFORMATION or HIGHLY CONFIDENTIAL INFORMATION; and (e) deposition testimony designated in accordance with the paragraphs below.

         3. Designation.

         Each party shall have the right to designate information as CONFIDENTIAL or HIGHLY CONFIDENTIAL, subject to this Protective Order. It shall be the duty of the Producing Party to give notice, in accordance with the provisions of this Protective Order, of the information designated to be covered by this Protective Order. To the extent that material is marked CONFIDENTIAL or HIGHLY CONFIDENTIAL, such material shall only be revealed to or used by limited categories of individuals, as provided for herein, and shall not be communicated in any manner, either directly or indirectly, to any person or entity not permitted disclosure under this Protective Order. Any copies of such material, abstracts, summaries or information derived therefrom, and any notes or other records regarding the contents thereof, shall also be deemed CONFIDENTIAL or HIGHLY CONFIDENTIAL accordingly, and the same terms regarding confidentiality of these materials shall apply as apply to the originals.

         4. Marked Documents and Things.

         4.1 Each page of a document and each thing that constitutes or contains CONFIDENTIAL INFORMATION shall be labeled or marked with the legend “CONFIDENTIAL” or “CONFIDENTIAL INFORMATION” when the document or thing is produced to the receiving parties. Likewise, each page of a document and each thing that constitutes or contains HIGHLY CONFIDENTIAL INFORMATION shall be labeled or marked with the legend “HIGHLY CONFIDENTIAL - OUTSIDE COUNSEL'S EYES ONLY” or “HIGHLY CONFIDENTIAL INFORMATION - OUTSIDE COUNSEL'S EYES ONLY” or “HIGHLY CONFIDENTIAL - AEO” when the document or thing is produced to the receiving parties. Anything that cannot be so labeled or marked on its face shall be labeled or marked by placing the appropriate legend on a container or package in which it is produced or on a tag attached thereto. Material produced without any such legend clearly indicating that it is subject to this Protective Order shall not be subject to the protections afforded to such information under this Protective Order unless otherwise agreed by the parties, ordered by the Court, or designated in accordance with ¶ 17 of this Protective Order.

         4.2 Should a party opt to make materials available for inspection in response to a discovery request, such inspection shall be conducted on an outside-counsel-eyes-only basis. Once produced, such materials shall be treated by the receiving parties in accordance with any confidentiality designation made at the time of their production.

         4.3 Documents and things produced or made available for inspection may be subject to redaction, in good faith by the producing party, of information that is neither relevant to the subject of this litigation nor reasonably calculated to lead to the discovery of admissible evidence, or is subject to the attorney-client privilege or to work-product immunity. Each such redaction, regardless of size, shall be clearly labeled as redacted. Information involving the privacy interests of one or more individuals or subject to data privacy restrictions (such as social security numbers, dates of birth, private addresses or telephone numbers, or other personal information) can be redacted in accordance with the provisions of this paragraph. This paragraph shall not be construed as a waiver of any party's right to seek disclosure of redacted information. All documents redacted based on attorney-client privilege or work-product immunity shall be listed on a privilege log in accordance with Federal Rule of Civil Procedure 26(b)(5).

         5. Limit on Use And Disclosure Of Designated Information.

         5.1 The production of CONFIDENTIAL INFORMATION or HIGHLY CONFIDENTIAL INFORMATION by a party under the terms of this Protective Order shall not be construed to mean that the Producing Party has waived any objection to the production, relevancy or admissibility of such information. Nothing contained herein shall preclude any party from opposing any discovery on any basis. Further, nothing in this Protective Order constitutes an admission by any party that any specific item of CONFIDENTIAL INFORMATION and/or HIGHLY CONFIDENTIAL INFORMATION is a trade secret or otherwise confidential and proprietary to a party.

         5.2 Each party and all persons bound by the terms of this Protective Order shall use any information or document designated CONFIDENTIAL or HIGHLY CONFIDENTIAL only in connection with the prosecution or defense of this action, except by consent of the parties or order of the Court. Such use includes, but is not limited to, offering evidence and testimony at trial and/or other hearings, preparing for and conducting discovery, preparing for trial, and supporting or opposing any motion in this action. Except as provided for in this Order, no party or other person shall disclose or release any information or document governed by this Protective Order to any person not authorized under this Protective Order to receive such information or document.

         5.3 Material designated CONFIDENTIAL or HIGHLY CONFIDENTIAL, and all information derived therefrom, shall be used only by persons permitted access to such information under this Protective Order, shall not be disclosed by the receiving parties to any party or person not entitled under this Protective Order to have access to such material, and shall not be used by the receiving parties for any purpose other than in connection with this action, including without limitation for any research, development, manufacture, patent prosecution, financial, commercial, marketing, regulatory, business, or other competitive purpose (except for settlement of the above-captioned case).

         5.4 Absent consent of the producing parties and/or further order of this Court, all persons receiving information designated CONFIDENTIAL or HIGHLY CONFIDENTIAL under this Protective Order from an opposing party in this action are expressly prohibited from using or disclosing such information in connection with any practice before or communication with the United States Patent and Trademark Office or the Patent Trial and Appeal Board, and are expressly prohibited from using or disclosing such information in connection with any other civil action.

         5.5 Prosecution Bar. Absent consent of the producing parties and/or further order of this Court, any person who receives information designated CONFIDENTIAL INFORMATION or HIGHLY CONFIDENTIAL INFORMATION under this Protective Order, in the case of an individual representing or affiliated with a party, shall not, thereafter during the course of this action and continuing for two years following final termination of this action, work on or participate in, directly or indirectly, the drafting or editing of any patent application (foreign or domestic), claim, or claim amendment that is directed to any poster board products and poster board accessory products, including without limitation the uses of any such products or the method of manufacturing any such product before any foreign or domestic agency, including the United States Patent and Trademark Office. These prohibitions are not intended to and shall not preclude counsel from participating in reexamination, inter partes review, post-grant proceedings, or reissue proceedings on behalf of a party, provided that counsel is not engaged, directly or indirectly, in the drafting, editing, or amending of any patent or patent application (foreign or domestic), claim, or claim amendment.

         5.6 If a party opts to produce documents containing CONFIDENTIAL or HIGHLY CONFIDENTIAL INFORMATION in hard copy, then any complete hard copy production sets shall be maintained at the offices of outside counsel only. To be clear, although any individual documents produced containing HIGHLY CONFIDENTIAL INFORMATION should be maintained at the offices of outside counsel only, nothing in this Protective Order requires that individual documents containing CONFIDENTIAL INFORMATION be maintained at the offices of outside counsel.

         5.7 It is understood that counsel for a party may give advice and opinions to his or her client based on his or her evaluation of designated CONFIDENTIAL INFORMATION or HIGHLY CONFIDENTIAL INFORMATION received by the party, provided that such rendering of advice and opinions shall not reveal the content of such information, other than in summary form, except by prior written agreement with counsel for the Producing Party.

         5.8 The attorneys of record for the parties and other persons receiving information governed by this Protective Order shall exercise reasonable care to ensure that the information and documents governed by this Protective Order are (a) used only for the purposes specified herein, and (b) disclosed only to authorized persons.

         5.9 The parties agree to meet and confer in good faith prior to trial to establish procedures concerning the use of CONFIDENTIAL and HIGHLY CONFIDENTIAL INFORMATION at trial. Nothing in this Protective Order shall preclude any party from moving the Court to seal the courtroom, trial exhibits, or the trial transcript in order to preserve the confidential nature of any CONFIDENTIAL INFORMATION or HIGHLY CONFIDENTIAL INFORMATION used at trial.

         6. Disclosure of ...


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