Case 1:07-cv-01096-SEB-TAB Document 34 Filed 02/27/2008 Page 1 of 18
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
MDG INTERNATIONAL, INC., )
)
Plaintiff, )
)
vs. ) Civil Action No. 1:07-cv-1096-SEB-TAB
)
AUSTRALIAN GOLD, INC., )
)
Defendant. )
PROPOSED AGREED PROTECTIVE ORDER
The parties consider certain information in their possession to be commercially
proprietary or otherwise confidential and thus seek a Protective Order limiting disclosure
thereof pursuant to Citizens First Nat'l Bank of Princeton v. Cincinnati Ins., 178 F.3d 943
(7th Cir. 1999), and its progeny. See, e.g., Union Oil Co. of Cal. v. Leavell, 220 F.3d 562
(7th Cir. 2000); Baxter Int'l v. Abbott Lab., 297 F.3d 544 (7th Cir. 2002). Accordingly,
the parties named below, by their respective counsel, stipulate and agree, subject to the
Court’s approval and pursuant to Federal Rule of Civil Procedure 26(c)(7), that the
following provisions of this proposed Agreed Protective Order (“Order”) shall govern the
handling of such confidential information and documents in this proceeding.
1. As used herein, the term “Party” or “Parties” shall refer to Plaintiff MDG
International, Inc. and Defendant Australian Gold, Inc.
2. As used herein, the term “Confidential Information” means trade secrets
and other information that is non-public, proprietary and confidential information, the
value of which arises from its secrecy, and the disclosure of which (whether separately
or in conjunction with other information being produced) is believed in good faith by the
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producing Party to have the potential for causing competitive harm to it or giving a
competitive advantage to others. FED. R. CIV. P. 26(c)(7).
3. As used in this Order, “trade secret” means information that:
(a) Derives independent economic value, actual or
potential, from not being generally known to, and not
being readily ascertainable by proper means by, other
persons who can obtain economic value from its
disclosure or use; and
(b) Is the subject of efforts that are reasonable under the
circumstances to maintain its secrecy.
IND. CODE § 24-2-3-2.
4. Therefore, the Parties submit that the following categories of information
are likely to be relevant in this case, may qualify as trade secrets or confidential
information, and may be designated as Confidential Information, regardless of the form
such information may take, including but not limited to documents, interrogatory
answers, deposition testimony, responses to other discovery demands, as well as all
notes, extracts and summaries of such information:
(a) Customers, partners or collaborators in the distribution chain. See
Star Scientific, Inc. v. Carter, 204 F.R.D. 410, 414-15 (S.D. Ind.
2001); Titus v. Rheitone, 758 N.E.2d 85, 95 (Ind. Ct. App. 2001);
Hydraulic Exch. & Repair, Inc. v. KM Specialty Pumps, Inc., 690
N.E.2d 782, 786 (Ind. Ct. App. 1998); Woodward Ins., Inc. v. White,
437 N.E.2d 59, 67 (Ind. 1982).
(b) Financial data. See Am. Standard, Inc. v. Pfizer, Inc., 828 F.2d 734,
741 (Fed. Cir. 1987), cert. denied 396 U.S. 820 (1996).
Confidential financial data can include, but is not limited to,
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development and manufacturing costs, Am. Standard, 828 F.2d at
741, and overhead and labor rates, Hydraulic Exch., 690 N.E.2d at
786.
(c) Market data and market entry decisions. See Am. Standard, 828
F.2d at 740-41.
(d) Pricing and financial information, including prices, sales, profits,
overhead, labor rates, balance sheets, financial statements, and
other financial information. See Ackerman v. Kimball Int’l Inc., 652
N.E.2d 507, 509 (Ind. 1995); Hydraulic Exch., 690 N.E.2d at 786.
(e) Product ingredients and formulas. See Michels v. Dyna-Kote
Indus., Inc., 497 N.E.2d 586, 588-89 (Ind. Ct. App. 1986); KFC
Corp. v. Marion-Kay Co., Inc., 620 F. Supp. 1160, 1172 (S.D. Ind.
1985); Mangren Research & Dev. Corp. v. Nat'l Chem. Co., Inc.,
1995 W.L. 33102, *2-3 (N.D. Ill. Jan. 26, 1995).
5. Nothing shall be regarded as Confidential Information if it is information
that either:
(a) Is in the public domain at the time of disclosure;
(b) Becomes a part of the public domain through no fault of the other
party;
(c) The receiving party can show was in its rightful and lawful
possession at the time of disclosure; or
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(d) The receiving party lawfully received from a third party without
restriction as to disclosure, provided such third party had the right
to make the disclosure to the receiving party.
6. The term "Designated Confidential Information" means any Confidential
Information designated in the manner set out in paragraph 13 below so as to make such
Confidential Information subject to the restrictions set out in this Order. With respect to
any information designated as Designated Confidential Information:
(a) The term "Designating Party" means the party, parties, or non-party
who designated the information; and
(b) The term "Receiving Party" means the party or parties to whom
such information was produced or otherwise disclosed.
7. The term "Qualified Persons" means:
(a) Attorneys for a party (in-house or outside counsel) who are working
for a party and who are working directly on this litigation, and the
law clerks, paralegals, clerical, secretarial or administrative staff of
the attorneys to whom it is appropriate that the material be shown
for purposes of this litigation;
(b) The Court, personnel of the Court (including personnel in the
Clerk's office), deposition stenographers, and deposition
videographers;
(c) The Parties, including their agents and employees, only if they are
assisting their attorneys in the litigation and have signed a
document in the form of Exhibit A;
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(d) Independent technical experts or consultants, who are working with
or assisting counsel for a party in this litigation, who have signed a
document in the form of Exhibit A, and returned the signed form to
the Receiving Party before Confidential Information is disclosed to
that person;
(e) Authors, addressees, and recipients of copies of documents
containing Designated Confidential Information with respect to only
those documents for which they are authors, addressees or
recipients;
(f) Witnesses and deponents who are being questioned concerning
Designated Confidential Information, subject to the requirements of
paragraph 28 of this Order;
(g) Such other persons as may be designated by written agreement of
the Parties to this proceeding; and
(h) Any other person(s) designated as a “Qualified Person” by Order of
this Court, after notice to all parties.
Restrictions on Disclosure and Use of Designated Confidential Information
8. Designated Confidential Information produced or exchanged in the course
of this litigation shall be used solely for the purpose of preparation and trial of this
litigation and related settlement negotiations, and for no other purpose whatsoever,
including without limitation any commercial use, and shall not be disclosed to any
person except in accordance with the terms of this Order. No recipient of Designated
Confidential Information may use any Designated Confidential Information for any
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purpose outside of this litigation without the written consent of the party designating the
material as Confidential.
9. Designated Confidential Information shall not be disclosed or made
available by the Receiving Party to persons other than Qualified Persons. Any
circulation of Designated Confidential Information shall be restricted to Qualified
Persons. If any person having access to the Designated Confidential Information
violates this Order, he or she will be subject to sanctions by the Court.
10. Any person in possession of Confidential Information shall exercise
reasonably appropriate care with regard to storage, custody, or use of such Confidential
Information in order to ensure that its confidentiality is maintained.
11. Nothing in this Order shall prevent disclosure beyond the terms of this
Order if the Designating Party consents to such disclosure, or if the Court, after notice to
all affected parties, orders such disclosure.
12. As governed by paragraphs 26 through 30, nothing in this Order shall
prevent any counsel of record from utilizing Designated Confidential Information during
a deposition or a hearing in the direct or cross examination of: (a) any person who is
indicated on the document as being an author, source of, or recipient of the Designated
Confidential Information, irrespective of which party produced such information; or (b) a
past or present officer, director, employee, or agent of the party or that party's
predecessor who generated or produced the Designated Confidential Information.
Designation Procedure
13. Confidential Information should be designated as such by marking the
document or response “CONFIDENTIAL” prior to or at the time the document or
response is produced. This language, or similar language, shall be placed on each
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such page or portion of the Confidential Information designated for protection or, in the
case of electronic information, on any storage media (such as diskette or CD) on which
a copy of the information is produced. If copies of documents are not to be provided
initially to the inspecting Party, and the documents are to be produced for inspection,
then the producing Party may advise counsel inspecting the documents of their
confidential status without marking the documents as provided herein. If copies are
later made, they shall be marked as provided herein to indicate their confidential status.
In lieu of marking the original of a document, if the original is not produced, the
designating Party may mark the copies that are exchanged or produced. Tangible
objects may be designated as subject to this Protective Order by affixing to the object or
its container the legend “CONFIDENTIAL”.
14. Confidential Information contained in responses to interrogatories,
requests for admission, in other written disclosures shall be designated as such by
marking the relevant pages or portions “CONFIDENTIAL” as described in paragraph 13
above.
15. Any party may designate Confidential Information disclosed in a
deposition as Designated Confidential Information by indicating on the record at the
deposition that the testimony is Confidential Information and is subject to the provisions
of this Order.
16. Each deposition transcript in this action shall be provisionally deemed
Designated Confidential Information for a period (“Provisional Designation Period”) from
the date of the deposition through thirty (30) days after all parties have received the
transcript. The Provisional Designation Period for any deposition transcript may be
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lengthened or shortened by agreement of the parties or by order of the Court for good
cause shown.
17. Prior to the end of the Provisional Designation Period, any party may
designate Confidential Information disclosed in a deposition as Designated Confidential
Information by notifying all of the parties, in writing, of the specific pages and lines of the
transcript that contain the Confidential Information. If such a designation is made, the
parties shall attach a copy of such written notice or notices to the face of the transcript
and each copy of the transcript in their possession, custody or control and shall mark
the designated pages of the transcript and copies as provided in Paragraph 13 above.
18. If a party discovers that it has inadvertently disclosed Confidential
Information to another party without designating it as Designated Confidential
Information, the producing party shall promptly notify the receiving party in writing,
specifically identifying the information at issue and shall provide to the receiving party
replacement documents marked as required in this Order to designate the Confidential
Information at issue as Designated Confidential Information. The receiving party shall
return or destroy all originals and copies of the materials containing the inadvertently
disclosed Confidential Information, treat the inadvertently disclosed Confidential
Information as Designated Confidential Information, and promptly notify any non-
Qualified Persons who may have reviewed the inadvertently disclosed Confidential
Information before the notice was received that such information shall be treated as
Designated Confidential Information.
19. The inadvertent production of any document or information during
discovery in the litigation shall be without prejudice to any claim that such material is
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privileged under the attorney-client privilege or other privilege, or protected from
discovery as work product. No party or entity shall be held to have waived any rights by
such inadvertent production so long as the Receiving Party is notified within five (5)
days of the discovery that there has been such an inadvertent production. Upon written
request by the inadvertently producing party, the Receiving Party shall (even if the
Receiving Party disagrees that the document is privileged) return all copies of the
document and not use the information in the document for any purpose until further
order of the Court.
20. A non-party responding to a subpoena in this cause shall be entitled, but
is not required, to designate deposition testimony or documents as "Designated
Confidential Information" pursuant to this Order, with the same protection and
obligations under this Order as if such non-party were a party in the cause, provided
that the non-party first executes, files and serves in this cause a "Certificate of Consent
by Non-Party to Be Bound by Protective Order" which states that the non-party agrees
to be bound by the terms and conditions of this Order, has a copy of it, and has read
and understands its terms and conditions.
Challenges to the Designation of Information as Designated Confidential
Information
21. A Receiving Party may object to the designation of information as
Designated Confidential Information at any time. In the event that a Receiving Party
disagrees at any stage of these proceedings with the designation ("Disputed
Designation") of any information as Designated Confidential Information, the Receiving
Party and the Designating Party shall first try to resolve such dispute in good faith on an
informal basis pursuant to S.D. Ind. L.R. 37.1. The Receiving Party shall provide written
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notice to the Designating Party and state the grounds for the objection. If the dispute
remains unresolved after fifteen (15) days, the Receiving Party may move the Court to
revoke the Disputed Designation. The Designating Party carries the burden of
establishing the confidential or secret nature of the information. Unless and until the
objection is resolved, the information or document shall continue to be treated as
Designated Confidential Information.
22. Nothing in this Order shall prohibit an interested member of the public
from challenging the confidentiality of any document filed under seal with this Court. If
an interested member of the public makes such a challenge, the Party who designated
the material as Confidential Information shall be allowed to oppose any such challenge.
23. Any party may seek an order of this Court modifying this Order.
24. Receipt by a Party of information designated as Confidential Information in
accordance with this Protective Order shall not (a) constitute a concession that such
Confidential Information in fact is or includes confidential or privileged information, or (b)
constitute agreement or admission with respect to the competency, relevancy or
materiality of any such Confidential Information.
25. Neither the taking of, nor the failure to take, any action to enforce the
provisions of this Protective Order, nor the failure to object to any designation, shall
constitute a waiver of any Party’s claim or defense in this action or any other action
including, but not limited to, the claim or defense that any information is or is not
confidential, is or is not entitled to particular protection, or embodies or does not
embody Confidential Information.
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Usage of Designated Confidential Information in Court
26. The Clerk of this Court is directed to maintain under seal all Designated
Confidential Information that is filed in Court in this litigation.
27. In the event that a party wishes to use any Designated Confidential
Information in any affidavits, briefs, memoranda of law, or other papers filed in Court in
this litigation, such Designated Confidential Information shall be filed in a sealed
envelope bearing the following designation and shall otherwise comply with Local Rule
5.3 of the United States District Court, Southern District of Indiana:
CONFIDENTIAL - SUBJECT TO PROTECTIVE ORDER
IN ACCORDANCE WITH THE PROTECTIVE ORDER OF
THE COURT, THE CONTENTS OF THIS ENVELOPE
SHALL BE TREATED AS CONFIDENTIAL AND MUST NOT
BE SHOWN TO A PERSON OTHER THAN COURT
PERSONNEL AND COUNSEL OF RECORD IN THIS
ACTION.
The sealed envelope containing the Designated Confidential Information shall be
maintained under seal by the Court.
28. Whenever Designated Confidential Information is introduced or used at a
deposition, hearing, or other proceeding, excluding trial, the portions of the proceeding
that concern such Designated Confidential Information shall be conducted under
circumstances to ensure that only those persons duly authorized by this Order to have
access to such Designated Confidential Information shall be present. Upon the request
of any party, the portions of the transcript of any such proceeding, along with associated
exhibits, that concern Designated Confidential Information shall be sealed and kept
confidential pursuant to the provisions of this Order.
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29. If counsel for any party believes that it is reasonably necessary for trial
preparation to disclose or otherwise reveal any Designated Confidential Information to
any person other than those authorized to receive such Designated Confidential
Information under Paragraph 7 of this Order, such counsel shall submit a written
request for disclosure to counsel for the Designating Party. The written request for
disclosure shall (a) identify each person to whom disclosure is desired, (b) identify with
particularity the document, discovery response or deposition testimony to be disclosed,
and (c) state the reasons why counsel believes the disclosure to be necessary.
Counsel for the Designating Party shall respond in writing to the written request for
additional disclosures within five (5) business days after receipt of the written request.
Failure to respond to the request within five (5) business days shall be considered
agreement to the requested disclosure. If counsel for the parties do not agree that
disclosure may be made, the party seeking the additional disclosure may seek an order
from this Court to permit the disclosure.
30. Subject to the Federal Rules of Civil Procedure and the Federal Rules of
Evidence, Confidential Information may be offered in evidence at any Court hearing or
trial, provided that the proponent of the evidence gives advance notice to counsel for
the Party or Non-Party producing the document or information. Any Party or Non-Party
may move the Court for an order that the evidence be received in camera or under
other conditions to prevent unnecessary disclosure. The Court will then determine
whether the proffered evidence should continue to be treated as Confidential
Information and, if so, what protection, if any, may be afforded to such information at the
hearing or trial.
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31. Nothing in this Protective Order shall be construed as a waiver by a Party
of any objections that might be raised as to discoverability or to admissibility at trial of
any evidentiary materials.
32. Any person who receives Confidential Information in connection with this
Action and is served with a subpoena or other notice compelling the production of
Confidential Information shall give prompt written notice to the producing party as far in
advance of the requested production date as possible, and, if possible, no less than
fourteen (14) days prior to production.
Handling of Designated Confidential Information after Conclusion of This Action
33. Except as hereinafter provided or as agreed to by the Parties, within sixty
(60) days after the conclusion of this litigation, all originals and all copies of all
documents constituting or containing Confidential Information shall be returned to the
producing Party or shall be destroyed by the receiving Party. Counsel for each Party
may, however, retain (subject to the provisions of this Order) one copy of any papers
filed with the Court, any deposition and trial transcripts, any deposition and trial exhibits,
any written discovery requests or responses, its correspondence file, its consultant and
expert witness files, and any attorneys’ notes, memoranda or other work product.
34. Insofar as the provisions of this Order restrict the disclosure and use of
information produced, this Order shall continue to be binding after the conclusion of this
litigation except that (a) there shall be no restriction on documents that are admitted as
exhibits in Court on a non-confidential basis, and (b) a Party may seek the written
permission of the producing Party or further Order of this Court with respect to
dissolution or modification of this Protective Order.
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35. Nothing in this Order shall bar or otherwise restrict any qualified attorney
in this case from rendering advice to his client with respect to this litigation and, in the
course thereof, relying upon his or her examination of Confidential Information, provided
that such advice does not entail disclosure to anyone other than to “Qualified Persons”
of the substance of any such Confidential Information.
36. Nothing in this Order shall preclude any Party from applying to the Court
for modification of the terms of this Order as may be appropriate; provided, however,
that prior to any such application, the Parties shall confer and make a good faith effort to
resolve the matter by agreement.
37. Nothing in this Order shall preclude any Party from applying to the Court
for a Protective Order pursuant to Fed. R. Civ. P. 26(c) regarding the production of
specific information or documents not otherwise subject to the provisions of this Order.
FINDINGS:
38. The Court is satisfied, and therefore finds, that the Parties understand
what a trade secret is, and are acting in good faith in deciding which documents or
information are trade secrets or confidential information.
39. The Court further finds that there is good cause for the Parties to treat as
confidential the documents and/or information which is confidential, as provided in this
Order. Further, the Court finds that the Parties are familiar with the provisions of Local
Rule 5.3 governing the sealing of documents filed with the Court.
SO ORDERED:
Date: 02/27/2008 _______________________________
United
Tim States
A. BakerMagistrate Judge
Southern
United District of Indiana
States Magistrate Judge
Southern District of Indiana
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APPROVED AS TO FORM AND SUBSTANCE:
Date: February 22, 2008
/s/ Peter J. Prettyman
Thomas F. O’Gara, Attorney No. 19678-49
Richard A. Kempf, Attorney No. 11597-49
Peter J. Prettyman, Attorney No. 25057-49
SOMMER BARNARD PC
One Indiana Square, Suite 3500
Indianapolis, IN 46204
/s/ Edward O. DeLaney
Edward O. DeLaney
Elizabeth A. Schuerman
Kathleen A. DeLaney
DELANEY & DELANEY LLC
3646 North Washington Boulevard
Indianapolis, IN 46205
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Distribution to:
[email protected]
[email protected]
[email protected]
[email protected]
[email protected]
[email protected]
707747
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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
MDG INTERNATIONAL, INC., )
)
Plaintiff, )
)
vs. ) Civil Action No. 1:07-cv-1096-SEB-TAB
)
AUSTRALIAN GOLD, INC., )
)
Defendant. )
CONFIDENTIALITY AGREEMENT
I hereby acknowledge that I have read the Agreed Protective Order executed by
the attorneys of record for the parties and entered by the Court in the above-captioned
action, understand the terms of the Agreed Protective Order, and agree to be bound by
such terms.
I will hold in confidence and not disclose to anyone not authorized under the
Agreed Protective Order any materials containing Confidential Information disclosed to
me. I further agree that neither I nor anyone assisting me will use or rely on
Confidential Information disclosed to me for any purpose, including any commercial use,
not authorized under the Agreed Protective Order. Without limiting the generality of this
paragraph, I understand that it would be improper to use or rely on Confidential
Information in communicating in any way with any person not authorized under the
Agreed Protective Order.
At the conclusion of this case, I will return all materials containing Confidential
Information which came into my possession, and documents or things which I have
EXHIBIT A
Case 1:07-cv-01096-SEB-TAB Document 34 Filed 02/27/2008 Page 18 of 18
prepared relating thereto, to counsel for the party who provided such Confidential
Information to me.
I hereby submit to the jurisdiction of this Court for the purpose of enforcement of
the Protective Order in this case.
DATED:________________________
Signature
Printed Name
EXHIBIT A
