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Garmin Switzerland GmbH v. FLIR Maritime US, Inc.

United States District Court, D. Kansas

March 24, 2017

Garmin Switzerland GmbH; and Garmin Corporation, Plaintiffs,
v.
FLIR Maritime US, Inc., Defendant.

          Aaron Hankel B. Trent Webb Aaron Hankel Ryan Schletzbaum (admitted pro hac vice) Lauren Douville (admitted pro hac vice)

          SHOOK, HARDY & BACON LLP ATTORNEYS FOR PLAINTIFFS

          MCDONALD TINKER PA Erin Sommer Good

          WEIL, GOTSHAL & MANGES LLP Brian E. Ferguson (admitted pro hac vice)

          Anish R. Desai (admitted pro hac vice) Stephen Bosco (admitted pro hac vice) Matthew Sieger (admitted pro hac vice) ATTORNEYS FOR DEFENDANT

          STIPULATED PROTECTIVE ORDER

          James P. O'Hara United States Magistrate Judge

         WHEREAS Plaintiffs Garmin Switzerland GmbH and Garmin Corporation and Defendant FLIR Maritime US, Inc. (collectively, the “Parties”) believe that certain materials, information and things discoverable in this case, both from the Parties and Third-Parties, may consist of trade secrets, proprietary information, confidential research and development information, and/or otherwise commercially valuable information that the respective Parties or Third-Parties maintain in confidence in the ordinary course of business;

         WHEREAS, the Parties reasonably believe that public disclosure of materials, information and things determined to be confidential could cause irreparable financial and competitive harms to the disclosing Party or Third-Party;

         WHEREAS, the Parties believe that good cause exists for the entry of a Protective Order that is narrowly tailored to protect the aforementioned confidential material, information and things of the Parties and any Third-Parties from whom confidential material, information or things are sought.

         By reason of the foregoing, the Parties, by their counsel, pursuant to Fed.R.Civ.P. 26(c) and subject to the approval of the Court, request entry of a Protective Order in the action.

         1. Designation of Confidential Material.

         (a) General. Any documents, materials, tangible things, items, testimony or other information produced or provided by any Party in connection with discovery in this litigation (hereinafter, the “Producing Party” or “Designating Party”) to another Party (hereinafter, the “Receiving Party”) may be designated “Confidential” or “Confidential - Outside Attorneys' Eyes Only, ” subject to the limitations and guidelines set forth herein. For purposes of this Order, “Confidential” information shall mean all information that qualifies for protection under the standards developed under Fed.R.Civ.P. 26(c). Confidential information includes, among other things, confidential technical, business, or financial information including abstracts, summaries, or information derived therefrom. The “Confidential - Outside Attorneys' Eyes Only” designation is reserved for extremely sensitive “Confidential” information whose disclosure to another Party or non-Party would create a substantial risk of harm to the competitive position of the Producing Party. “Confidential - Outside Attorneys' Eyes Only” information includes, among other things, trade secrets, pending patent applications, research and development or other highly sensitive technical information, or highly-sensitive business-related financial information or information derived therefrom. Any material constituting or containing non-public source code of a Party's software or computer applications may be designated “Confidential Source Code - Outside Attorneys' Eyes Only.” All of the foregoing forms of information and all material derived from it, including copies, recordings, summaries, abstracts, excerpts, analyses or the like, constitute “Designated Material” under this Protective Order.

         (b) Designated Material. Designated Material shall be so designated for the purposes of protecting the Producing Party's proprietary, confidential, commercially or competitively sensitive technical, business, financial or trade secret information, the confidential, personal or financial affairs of its employees or Third-Parties, or other information not publicly known. Examples of properly Designated Material include source code, trade secrets, non-public technical information, practices or methods, non-public marketing drafts, plans or strategies, product data or projections, non-public financial data, strategic business materials, or relationships with Third-Parties, including any agreement documenting the terms of any such relationship. The preceding examples are listed for exemplary purposes only and are not intended to limit or restrict a Producing Party from designating other information “Confidential, ” “Confidential - Outside Attorneys' Eyes Only, ” or “Confidential Source Code - Outside Attorney's Eyes Only” in good faith.

         (c) Limits on Designated Material. No item shall be designated or deemed to be Designated Material if it is available to the public at the time of disclosure or becomes publicly known through means not constituting a breach of this Protective Order by the Receiving Party. This Protective Order shall not be construed to protect information that the Receiving Party can show was already known to it or was received by the Receiving Party after the time of disclosure hereunder from a Third-Party having the right to make such a disclosure.

         (d) Designation Procedure. Designation shall be made, where practicable, by conspicuously marking each page of a document, each separate part or component of a thing, or each separate item of other material with the legend “Confidential, ” “Confidential - Outside Attorneys' Eyes Only” or “Confidential Source Code - Outside Attorneys' Eyes Only.” If marking the Designated Material is not practicable, designation may be made on a container for or tag attached to the Designated Material, if feasible, or otherwise by way of communication from one Party to the other. A Party wishing to invoke the provisions of this Protective Order shall designate the documents, materials, items, or information, or portions thereof, at the time such information is disclosed, or when the Party seeking protection becomes aware of the nature of the information disclosed and sought to be protected. In the case of information produced for inspection, but not yet provided to the inspecting Party, such information shall presumptively be deemed “Confidential - Outside Attorneys' Eyes Only, ” regardless of whether so identified, until copies thereof are produced to the inspecting Party, except that material constituting or reflecting source code shall be presumptively deemed “Confidential Source Code - Outside Attorneys' Eyes Only” and treated in accordance with the procedures of Paragraph 6 below.

         (e) Designation Procedure for Deposition Testimony. With respect to deposition testimony, the witness under deposition, or his/her counsel, or any counsel representing any person or Party at the deposition, may designate such testimony as “Confidential, ” “Confidential - Outside Attorneys' Eyes Only” or “Confidential Source Code - Outside Attorneys' Eyes Only, ” as appropriate, either on the record at the deposition or in writing to all Parties within thirty (30) days after the mailing of the deposition transcript by the court reporter. The provisions of this paragraph may be invoked with respect to the witness's entire deposition, or any portion thereof, at any time during the deposition or within thirty (30) days thereafter. Each Party in receipt of a copy of a deposition transcript designated under this paragraph shall mark each copy of each portion of such Designated Material therein not already marked by the reporter “Confidential, ” “Confidential - Outside Attorneys' Eyes Only” or “Confidential Source Code - Outside Attorneys' Eyes Only, ” as provided for in Paragraph 1(d) above, and will thereafter destroy any unmarked copies of the transcript in its possession, custody or control. Until thirty (30) days after mailing of the transcript by the court reporter has passed, the entire transcript shall be treated as “Confidential - Outside Attorneys' Eyes Only, ” except that any portion of any transcript reflecting material designated “Confidential Source Code - Outside Attorneys' Eyes Only” shall be presumptively treated in accordance with the procedures of Paragraph 6 below.

         (f) Deposition Conduct. If Designated Material is referred to during the course of a deposition in this action, or if any question asked, answer given, or answer about to be given contains or is reasonably likely to contain Designated Material, then, in the case of material designated “Confidential, ” any person who is not designated in Paragraph 4 below and is not the deponent, the deponent's counsel, the reporter or the videographer must leave the room during such portion of the deposition; in the case of material designated “Confidential - Outside Attorneys' Eyes Only” or “Confidential Source Code - Outside Attorneys' Eyes Only, ” any person who is not designated in Paragraph 5 below with regard to “Confidential - Outside Attorneys' Eyes Only” information or in Paragraph 6 below with regard to “Confidential Source Code - Outside Attorneys' Eyes Only” information, and is not the deponent, the deponent's counsel, the reporter or the videographer must leave the room during such portion of the deposition. This paragraph shall not be interpreted to authorize disclosure of Designated Material to any person to whom disclosure is prohibited by this Protective Order.

         2. Limits on Use of Designated Material.

         Designated Material shall be used by a Receiving Party only for purposes of litigating or defending this action. Designated Material shall not be used for any other purpose and, specifically, shall not be used by a Receiving Party for any business or competitive purpose. No Designated Material shall, without prior written consent of the Producing Party, be disclosed by a Receiving Party to anyone other than the personnel specified in ¶¶4-6 below or in any manner other than as described in this Protective Order. Designated Material shall be carefully maintained so as to preclude access by persons who are not entitled to receive such information. Nothing in this Protective Order shall preclude any Party or its counsel of record from disclosing or using, in any manner or for any purpose, any information or documents from the Party's own files that the Party itself has designated “Confidential, ” “Confidential - Outside Attorneys' Eyes Only” or “Confidential Source Code - Outside Attorneys' Eyes Only.”

         3. Patent Prosecution.

         In no event shall a Receiving Party use Designated Material of a Producing Party for the purpose of preparing or prosecuting any patent application, or in connection with any other proceeding before the U.S. Patent and Trademark Office or any foreign or international patent office. During the pendency of this litigation and for a period of two (2) years after its conclusion, including any appeals, any individual who accesses or reviews material designated “Confidential - Outside Attorneys' Eyes Only” (other than non-technical information potentially relevant to damages issues and/or settlement negotiations) or “Confidential Source Code - Outside Attorneys' Eyes Only” pursuant to ¶¶4-6 below, shall not themselves prepare, or counsel or assist others with the preparation, filing, or prosecution of any patent application of the Receiving Party who employed or retained such individual, or an affiliate thereof, that is in the same patent family of any of the Receiving Party's patents-in-suit in this action or that is related to marine navigation. Notwithstanding anything to the contrary in the foregoing, this prosecution bar does not extend to any patent reissue or reexamination proceeding, or any post-grant and/or inter partes review, except that such persons may not directly or indirectly assist in drafting, amending or proposing for substitution patent claims of a Receiving Party that are directed to marine navigation.

         The Parties may, on a case by case basis and in their sole discretion, by written agreement between the Producing Party and the Receiving Party, provide for disclosure of specified Designated Material to specified individual(s) in a manner that shall be exempt from the application of the prosecution bar of this section and/or from any additional restrictions under Section 5(j).

         4. Access to Material Designated “Confidential.

         Material designated “Confidential” and all information and material derived from it, including copies, recordings, summaries, abstracts, excerpts, analyses, compilations or the like, may, without the written consent of the Producing Party, be given, shown, made available or communicated in any way by the Receiving Party only to:

(a) outside litigation attorneys for the Parties who are employed by the firms of record in this case, their staff, and professional litigation support vendors (including jury consultants) retained by them or by the Parties;
(b) independent consultants or experts engaged by counsel or by the Parties in this litigation and their staffs, whether or not such experts are paid directly by a Party, if cleared by the Parties pursuant to Paragraph 7 of this Protective Order;
(c) independent persons or firms retained by any Party for the purpose of producing graphic or visual aids;
(d) professional court reporters and videographers to the extent Designated Material is disclosed at a deposition such person is transcribing or recording;
(e) at a deposition, with respect to documentary material, any deponent who authored or has previously received the particular Designated Material sought to be disclosed to that person, if the document on its face or the deponent's testimony indicates that person authored or received the document;
(f) at a deposition, any deponent employed at the time of the deposition by the party that designated the ...

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