In Novell, the parties have reached agreement on a Stipulated Protective Order [PDF], and Judge Kimball has signed the Order [PDF]. This document illustrates an important point, because it shows what attorneys are really good for. Abraham Lincoln once said that a really good attorney is the one that keeps you out of court, and as you read this agreement, you'll see how carefully it's crafted to try to foresee every possible issue that could arise, so the agreement can cover what will happen without needing to litigate the matter. It's sort of like I see in coding, if A ...then B, etc. The better the lawyer, the more possibilities will be thought of and handled. This is the kind of document that law schools will likely use as a template to teach contract law, in my opinion. Companies don't just try something and see if the company gets sued by anybody. They plan to avoid lawsuits, with a lawyer's advice, and that is what programmers should do too. There's no reason not to learn from the SCO saga the importance of talking to a lawyer, not some message board or your best friend, *before* there is a problem, so you can avoid one, hopefully. It's tons cheaper, and you won't lose all your hair that way from stress.
The purpose of the protective order is to establish guidelines to prevent disclosure of "trade secret, proprietary, technical, scientific,
business, or financial information regarded as confidential." In other words, they will do discovery, but we won't get to see all of it. Some documents and deposition transcripts will be redacted or sealed, and at trial, if confidential matters come up, they will remove the public from the courtroom first. There is a protective order in IBM as well, of course. It's typical. But what is a little unusual is that there is a cross pollination here: When, in this action, SCO produces information that it marked Confidential in The SCO
Group Inc. v. International Business Machines Corp., Case No. 2:03CV294 DAK, D. Utah
(“SCO v. IBM case”), such information may be used for purposes of this action and disclosed to
those persons identified in Paragraph 4 of this Order, provided that such use and disclosure is in
compliance with the terms and conditions of the Protective Order entered in the SCO v. IBM
case. Confidential information produced by Novell in this action may be used and disclosed in
the SCO v. IBM case, provided that such information is used and disclosed in compliance with
the terms and conditions of this Order. I found that interesting, that if anything juicy turns up in the Novell discovery, it can be used in the IBM case, although that seems a bit unlikely to be helpful to SCO at this point. Now, Novell isn't a party to the IBM case, at least not at this point. And IBM isn't a party here. So I asked myself when reading this paragraph, does this agreement, which says that confidential materials from the Novell case "may be used" in the IBM litigation, mean IBM can use it, from a Novell handoff? Or only SCO? It doesn't specifically say, and IBM is not a signatory to this stipulated order, yet the wording does seem to leave that door open. I wondered for a minute if the Novell team had dropped a stitch, but then I noticed that paragraph 19 says that any party is free to reveal its *own* confidential materials and this order doesn't block that, so presumably if Novell wanted to -- not implying it necessarily does -- but from that paragraph I see that Novell could let IBM see Novell's own confidential materials. The wording isn't 100% clear to me even yet as to what would happen if IBM tried to use it, so we might see some motion practice down the road to clarify, if IBM ever does use any confidential materials. Or maybe I'm missing something obvious because I'm rushing a bit today, due to other necessary tasks of the day, but it reads to me like what lawyers do when they don't want to address something straight up or can't, or no agreement was believed to be possible, so they write as favorably as is possible, so that if that contigency arises, they are in the best strategic position possible. And it does say that confidential materials can be used in IBM; it just doesn't precisely list by whom. I guess the fact that IBM is not a party here to the agreement limits what can be agreed to, now that I think of it. So that may be the simplest explanation. I note that use in either litigation is dependent on complying with the pertinent protective order, and they are not identical. You will recall that in April, the parties in IBM agreed to amend their protective order [PDF] to add a special designation that some materials could be designated for outside counsel only. I see nothing like that here. Paragraph 4 just lists the folks you'd expect to be able to see confidential materials, like lawyers and support staff and outside experts, and it specifically allows inhouse counsel to see confidential materials. So that is one difference they'll have to keep in mind. Interestingly, Novell has a way to try to introduce materials into the arbitration: Novell's
execution of this Stipulated Protective Order does not waive its right to seek modification of this
Order so that Confidential Information produced by the parties in this action may be used in the
matter of SUSE Linux GMBH v. SCO, International Court of Arbitration of the International Chamber of Commerce, Case No. 14320/FM. I don't see that SCO asked for the same, although it's stated that either party can seek to modify, but here Novell was taking that extra step of clarifying in advance that signing this stipulated protective order does not signify a waiver of its rights to seek modification to allow it to use what it finds in the arbitration. Like I say, lawyers try to think of everything. Here's the part about you having to leave the courtroom, if a confidential matters comes up at trial, and yes, they have the right to do that, subject to any challenges to the protective order from the media or other interested third parties: b. Unless otherwise agreed to by the parties in writing or on the record, no
individual not qualified hereunder to receive Confidential information shall be in attendance at
that portion of a deposition during which Confidential information of another party is being
testified to. The designating party shall have the right to exclude from attendance at said
deposition, during such time as Confidential information is to be disclosed, any person other
than the deponent, Counsel, court reporter, videographer (if any), and other individuals
authorized to receive such information as otherwise provided by this order. Persons shall not be
excluded from attendance at said deposition from those portions during which information is
disclosed to which they are otherwise authorized access under this Order. ...
11. Disclosure During Trial or Hearings in Open Court.
Should the need arise during the trial or any hearing for the parties to disclose
Confidential information, such disclosure may only be made after the designating party has had
the opportunity to request in camera review or other safeguards from the Court. The party
seeking to make such disclosure shall provide reasonable notice of its intent to the designating
party, and shall not object to reasonable requests for such safeguards. At trial, no party, witness
or attorney shall refer in the presence of the jury to this Protective Order or to any confidentiality
designation made pursuant to this Order, unless the Court first provides the jury with a brief
explanation of the nature and purpose of the Order. In no event shall any party, witness or
attorney argue or suggest in the presence of the jury that a designating party acted wrongfully in
designating material as Confidential.
In the SCO v. IBM case, by the way, the parties stipulated [PDF] to a mild scheduling change. According to the Order [PDF], which was signed by Magistrate Judge Brooke Wells, the parties each have until August 18 to respond to the other side's Requests for Admissions. And IBM gets until August 14 to answer SCO's Objections to Order Granting in part IBM’s Motion to Limit SCO’s Claims, and then SCO has until the 28th to reply. **************************************************
IN THE UNITED STATES DISTRICT COURT
DISTRICT OF UTAH, CENTRAL DIVISION
__________________________________________
THE SCO GROUP, INC., a Delaware
corporation,
Plaintiff/Counterclaim-Defendant,
vs.
NOVELL, INC., a Delaware corporation,
Defendant/Counterclaim-Plaintiff.
_______________________________________
STIPULATED PROTECTIVE ORDER
Case No. 2:04CV00139
Judge Dale A. Kimball
______________________________________
IT IS HEREBY STIPULATED AND AGREED by and between Plaintiff/Counterclaim-Defendant The SCO Group, Inc. and Defendant/Counterclaim-Plaintiff Novell, Inc. that, in view
of the fact that this action may involve disclosure of trade secret, proprietary, technical,
scientific, business, or financial information regarded as confidential, the following Protective
Order be entered pursuant to Federal Rule of Civil Procedure 26(c), subject to the approval of the
Court.
IT IS HEREBY AGREED AND ORDERED THAT:
1. "Confidential" Information.
a. A party may designate as "Confidential" those materials that it, as the
designating party, in good faith believes contain information that is (a) confidential, sensitive,
competitive, or potentially invasive of an individual's privacy interests, (b) not generally known,
1
and (c) not normally revealed to the public or third parties or, if disclosed to third parties, would
require such third parties to maintain the information in confidence.
b. For purposes of this Stipulated Protective Order, Confidential information
may include any writings, drawings, graphs, charts, photographs, phone records, records,
exhibits, reports, samples, transcripts, oral testimony, video or audio recordings, affidavits,
briefs, summaries, notes, abstracts, drawings, company records and reports, databases, version
control systems, communications, letters, electronic and hard-copy correspondence, e-mails and
attachments thereto, source code and object code, answers to interrogatories, responses to
requests for admissions, or motions, and/or any other document or thing which may be delivered
from or on behalf of a designating party to another in connection with the Action including,
without limitation, copies, or information stored on any storage device or computer.
2. Effect of Designation.
The designation of information as Confidential shall constitute a representation that an
attorney believes that there is a valid basis for such designation. The designation or failure to
designate information as Confidential may not be used against the producing party, however, as
an admission or concession that the designated information is or is not, in fact, confidential,
proprietary, a trade secret, or otherwise sensitive.
3. Scope of Order.
a. Information to be covered by this Stipulated Protective Order shall include
Confidential information, as defined above, that is set forth, revealed, or provided: (a) in
response to discovery requests made under Federal Rule of Civil Procedure 31, 33, or 36; (b) in
any documents, things, or premises made available for inspection or produced to the discovering
party pursuant to Federal Rule of Civil Procedure 26, 33, or 34 or in response to a subpoena
2
under Federal Rule of Civil Procedure 45; (c) during depositions upon oral or written
examination under Federal Rule of Civil Procedure 30 or 31; (d) in connection with any other
discovery taken in this action, whether pursuant to the Federal Rules of Civil Procedure,
informally, or by agreement; (e) in or accompanying correspondence to the receiving party; (f) in
submissions to or before the Court, including testimony, briefs, exhibits, and declarations; and
(g) in response to any Order of the Court.
b. Information to be covered by this Stipulated Protective Order also shall
include privileged information, as discussed below.
4. Disclosure and Use of Confidential Information.
Subject to Paragraphs 5, 16, 18-19, 21, and 23 below, Confidential information shall be
disclosed only to the following persons:
a. Counsel: In-house counsel and outside counsel of record for the
parties to this Action, together with those attorneys' stenographic,
clerical, secretarial, paralegal and other employees whose duties and
responsibilities are to assist counsel in this Action and who require
access to Confidential information to complete these job duties;
b. In-House Employees: In-house employees of the parties requiring
access to the Confidential information for purposes of maintaining or
defending the Action and specifically assigned to support counsel in
this regard, so long as those employees complete and sign a
Declaration and Acknowledgement in the form attached hereto as
Exhibit A, a copy of which shall be provided to counsel for the parties
prior to any disclosure of any Confidential information, subject to the
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disclosing party's right to object in writing and in good faith and on
reasonable grounds within five (5) business days of receiving the
Declaration and Acknowledgement and raise and resolve said
objection with the Court;
c. Litigation Support Services: Outside litigation support services
retained by the outside counsel of record, to the extent necessary to
assist such counsel in this litigation, including copy services,
document production services, exhibit-making and legal graphics
services, translation services, coding services, database services,
scanning services, computer animation and video services, jury
consultants and their support, administrative, and clerical staff, and
mock jurors.
d. Court Personnel: Officers of this Court (including the jury) and
their supporting personnel, or officers of any appellate court to which
any appeal may be taken or in which review is sought and their
supporting personnel;
e. Court Reporters: Stenographers and videographers who take, record
or transcribe testimony in this Action, at deposition, a hearing, or trial,
to the extent necessary to carry out their services;
f. Outside Experts or Consultants: Subject to the conditions set forth
in paragraph 7, outside experts or outside consultants, including their
administrative and clerical staff retained by the parties for purposes of
this litigation;
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g. Drafters or Recipients: Any person having written or received such
document during the course of his or her employment or consultancy, but
disclosure shall be limited only to the specific document(s) which the
person in question wrote or received.
h. Others Specifically Authorized: Other persons to whom the Court
specifically allows disclosure, after application by the party seeking such
disclosure and an opportunity to reply by the designating party; and other
persons whom the designating party specifically and in writing allows
disclosure.
When, in this action, SCO produces information that it marked Confidential in The SCO
Group Inc. v. International Business Machines Corp., Case No. 2:03CV294 DAK, D. Utah
("SCO v. IBM case"), such information may be used for purposes of this action and disclosed to
those persons identified in Paragraph 4 of this Order, provided that such use and disclosure is in
compliance with the terms and conditions of the Protective Order entered in the SCO v. IBM
case. Confidential information produced by Novell in this action may be used and disclosed in
the SCO v. IBM case, provided that such information is used and disclosed in compliance with
the terms and conditions of this Order.
5. Use During Examination or Cross-Examination.
Nothing herein shall limit a party's ability to use Confidential information to examine or
cross-examine deposition or trial witnesses (a) who are current officers, employees, experts, or
attorneys of a party from which the Confidential information originated or was received, (b)
who are former officers, agents, employees, experts, or attorneys of a party from which the
Confidential information originated or was received and that originated or was created during or
5
prior to the period or periods of employment or retention for such individuals, and (c) whom the
producing party has designated under Federal Rule of Civil Procedure 30(b)(6), if the
Confidential information at issue originated or was created during or prior to the designees'
employment with the producing party. A party desiring to use Confidential information to
examine or cross-examine deposition or trial witnesses other than those persons identified in (a)
through (c) of this Paragraph, or other than those persons specifically authorized under Paragraph
4, may only do so provided that these witnesses are advised at the time of questioning that the
subject information is Confidential, that this Confidential information is subject to a protective
order, and that they are required to keep the information confidential by the terms of this
Protective Order.
6. Handling of Confidential Materials.
Any person in possession of Confidential materials shall exercise reasonable and
appropriate care with regard to the storage, custody, or use of such materials to ensure that their
confidential nature is maintained.
7. Outside Experts or Consultants.
a. A party desiring to disclose Confidential information to an outside expert
or consultant under Paragraph 4(f) first shall give written notice to the designating party whose
information it desires to disclose, who shall have five (5) business days after such notice is
received to object in writing. The notice shall contain the following information about the
proposed expert or consultant: (a) business address; (b) business title; (c) business or profession;
(d) any and all professional relationship(s) with any of the parties, or any known competitors of
the adverse party, or any of their related entities, either currently or in the past; and (e) a
curriculum vitae showing employment/consulting history, publications, and prior testimony. The
6
notice also shall include a Declaration and Acknowledgement form attached hereto as Exhibit A,
completed and signed by the proposed expert or consultant.
b. Any objection under this paragraph shall be made in good faith and on
reasonable grounds. Should the parties be unable to resolve the objection, the objecting party
shall raise this matter with the Court and request an Order restricting such individual's access to
the objecting party's Confidential information. Failure to object within five (5) business days of
receiving notice, or failure to raise this matter with the Court within ten business days after
service of the objection, shall be deemed approval, and such person shall thereafter be qualified
to have access to the objecting party's Confidential information pursuant to the terms and
conditions of this Protective Order;
c. The proposing party shall not disclose any Confidential information of
the objecting party to the proposed expert or consultant during the period for objection, nor
during the pendency of any request made to the Court in accordance with this paragraph.
Consent to the disclosure of information shall not unreasonably be withheld.
d. The administrative and clerical staff of an outside consultant or expert
under Paragraph 4(f) shall be deemed to have signed the Declaration and Acknowledgement
form of Exhibit A when the outside expert or consultant supervising such individuals has
executed the form.
8. Designating Confidential Information.
a. If, in the course of this Action, a party discloses information that it in good
faith contends is Confidential information, this party (the "designating party") may designate
such information as such by marking each page of each document so designated:
7
"Confidential - Subject to Protective Order, SCO v. Novell,
Civil Case No. 2:04CV00139 DAK"
b. If any Confidential Information cannot be labeled with the
aforementioned marking, it shall be placed in a sealed envelope or other container that is in turn
marked "Confidential" in a manner agreed upon by the disclosing and requesting parties.
c. When files and records are produced for inspection, no marking need be
made in advance of the inspection. For purposes of the initial inspection, all documents in any
produced files shall be considered marked as Confidential. Thereafter, upon selection of
specified documents for copying by the inspecting party, the producing party shall mark the
copies of such documents with the appropriate confidentiality marking at the time that the copies
are produced to the inspecting party.
d. If a party believes in good faith that the inspection, measuring, testing,
sampling, or photographing of its processes, products, equipment, premises, or other property,
pursuant to Federal Rule of Civil Procedure 34, will reveal or disclose Confidential information,
then that party shall advise the requesting party that the inspection, measuring, testing, sampling,
or photographing will be permitted only on a Confidential information basis. In such an event,
the inspection, measuring, testing, sampling, or photographing may only be performed by those
permitted to have access to Confidential information, under this Order, and information derived
from such activities shall be treated as Confidential information.
e. An exhibit to a deposition shall be treated in accordance with the
confidentiality designation already given to it or, if the exhibit has not been previously produced,
given to it on the record at the time of the deposition. The designation of a deposition as
8
Confidential information or the de-designation of a deposition as Confidential information shall
not affect the confidentiality status of exhibits presented at the deposition.
9. Deposition, Trial, or Other Testimony.
a. If information to be treated in confidence is contained in deposition, trial,
or other testimony, the transcript may be designated as containing Confidential information by
so notifying the other parties on the record, at the time of the testimony, or by notifying the other
parties in writing, within fourteen (14) days of receipt of the transcript of the specific pages and
lines of the transcript which contain such Confidential information. After such fourteen (14)
day period has expired and in the absence of any written notice concerning the specific portions
of the transcript that the producing party believes contain Confidential information, the
transcript of testimony shall be treated as designated on the record at the time of testimony, or if
no designations were made, then the transcript of testimony shall be treated as a public
document.
b. Unless otherwise agreed to by the parties in writing or on the record, no
individual not qualified hereunder to receive Confidential information shall be in attendance at
that portion of a deposition during which Confidential information of another party is being
testified to. The designating party shall have the right to exclude from attendance at said
deposition, during such time as Confidential information is to be disclosed, any person other
than the deponent, Counsel, court reporter, videographer (if any), and other individuals
authorized to receive such information as otherwise provided by this order. Persons shall not be
excluded from attendance at said deposition from those portions during which information is
disclosed to which they are otherwise authorized access under this Order.
9
10. Sealing Procedures.
Any information designated as Confidential information that is included with, or its
contents are in any way disclosed in, any pleading, motion, deposition transcript, or other papers
filed with the Clerk of the Court shall be filed in sealed envelopes, or other appropriately sealed
containers, prominently marked with the following notations:
(i) The case number (Civil Case No. 2:04CV00139 DAK);
(ii) The name of the filing party;
(iii) An indication of the filing's contents, such as the title of the filing; and
(iv) A statement substantially similar to the following:
FILED UNDER SEAL
CONTAINS CONFIDENTIAL INFORMATION
SUBJECT TO PROTECTIVE ORDER
11. Disclosure During Trial or Hearings in Open Court.
Should the need arise during the trial or any hearing for the parties to disclose
Confidential information, such disclosure may only be made after the designating party has had
the opportunity to request in camera review or other safeguards from the Court. The party
seeking to make such disclosure shall provide reasonable notice of its intent to the designating
party, and shall not object to reasonable requests for such safeguards. At trial, no party, witness
or attorney shall refer in the presence of the jury to this Protective Order or to any confidentiality
designation made pursuant to this Order, unless the Court first provides the jury with a brief
explanation of the nature and purpose of the Order. In no event shall any party, witness or
attorney argue or suggest in the presence of the jury that a designating party acted wrongfully in
designating material as Confidential.
10
12. Inadvertent or Unintentional Disclosure of Confidential Information by
Producing Party.
a. If a party to this Order inadvertently fails to designate information as
Confidential information, such failure shall not constitute a waiver of the producing party's right
to so designate such information. In the event that such an inadvertent failure occurs, the
producing party shall upon discovery of the failure promptly notify in writing all parties known
to have received the information in question, and provide them with appropriately marked
substitute copies of the affected information. Until a receiving party receives such notification,
any disclosure made by that party of the information to those not permitted by this Order to have
access to the information shall not constitute a violation of this Order. Moreover, no person or
party shall incur liability with respect to any disclosure by the receiving party of Confidential
information that was inadvertently disclosed without proper designation by the producing party,
provided the disclosure by the receiving party occurred prior to the receipt by the receiving party
of a notice of the inadvertent disclosure without proper designation. However, upon receiving
such notification, the receiving party shall request all parties to whom the information was
disclosed by the receiving party, but who are not permitted to have access to such information
under the terms of this Order, to return the information to the receiving party. The receiving
party shall also destroy all copies of the incorrectly labeled information and replace them with
the substitute copies provided by the producing party.
b. The inadvertent or unintentional disclosure by the producing party of
Confidential information, either by way of document production or deposition testimony, shall
not be deemed a waiver in whole or in part of a claim of confidentiality, either as to the specific
information disclosed or as to any other information relating thereto on the same or related
11
subject matter so long as such inadvertent or unintentional disclosure was not the result of
recklessness or gross negligence on the part of the producing party. Any such inadvertently or
unintentionally disclosed Confidential information not designated as such pursuant to Paragraph
8(a) shall be so designated, by giving written notice to all parties, as soon as reasonably possible
after the producing party becomes aware of the inadvertent or unintentional disclosure. Within
fourteen (14) days of such notice and receipt of substitute copies bearing the appropriate
confidentiality marking, the receiving party shall return said documents and things and not retain
copies thereof, destroy said documents and things, or raise this matter with the Court and request
an Order permitting the receiving party to retain the originally disclosed information. Unless the
receiving party is opposing the return or destruction of such information, the receiving party also
shall use good faith efforts to arrange for the return or destruction of said documents and things
from parties and individuals to whom it may have distributed the documents or things but who
were not authorized to receive Confidential documents under this Protective Order. If the
receiving party opposes the return or destruction of such information, it shall, after receiving
notice from the producing party, nonetheless use good faith efforts to avoid any further
distribution of such information to unauthorized parties or individuals, pending resolution of the
issue by the Court. The receiving party's disclosures, prior to the receipt of notice from the
producing party of a new designation, of Confidential information to unauthorized parties or
individuals shall not be deemed a violation of this Protective Order. If the receiving party is
unable to arrange for the return or destruction of such documents and things from such
unauthorized parties or individuals, the receiving party shall notify the producing party within
fourteen (14) days of notice from the producing party of the identity of such unauthorized parties
or individuals and the efforts made to secure the return or destruction of such documents and
12
things. Upon the redesignation of information under this paragraph, upon agreement of the
parties, or by Court order, said information shall thereafter be treated as Confidential, as
designated by the producing party.
13. Inadvertent or Unintentional Disclosure of Confidential Information by
Receiving Party.
Should any information already designated Confidential be disclosed inadvertently or
unintentionally by the receiving party to any person not authorized under this Stipulated
Protective Order, the receiving party shall use its best efforts to bind such person to the terms of
this Order; and the receiving party shall: (a) promptly inform such person of all the provisions of
this Order; (b) immediately identify such person and the Confidential information disclosed to
the party or non-party that designated the document as containing Confidential information; (c)
request such person to sign a Declaration and Acknowledgement in the form attached as
Exhibit A; and (d) retrieve all copies of documents containing the inadvertently disclosed
information. The executed Declaration and Acknowledgement shall be provided promptly to the
party or non-party that designated the document or information as Confidential.
14. Inadvertent or Unintentional Disclosure of Privileged Information.
a. In the event that a producing party inadvertently or unintentionally
produces materials that otherwise are not discoverable for reasons of the attorney-client
privilege, work product immunity, or other privilege, doctrine, or immunity, such party shall
upon discovering such inadvertent disclosure promptly give written notice to the receiving party.
Immediately upon receiving such notice, outside counsel for the receiving party shall sequester
in its offices all identified information, including any and all copies made, and return it to the
13
producing party, which need not demonstrate that the production was inadvertent or
unintentional.
b. Nothing herein shall preclude the receiving party from challenging the
privilege or immunity claimed by the producing party regarding the inadvertently produced
document or information, so long as the receiving party seeks relief from the Court within
fourteen (14) days of its receipt of written notice of inadvertent disclosure. The receiving party
may use the inadvertently produced document or information that is claimed to be privileged or
work product in a submission to the Court when challenging the privilege or immunity claimed
by the producing party.
15. Challenges to Designation.
A party shall not be obligated to challenge the propriety of a confidentiality designation
at the time made, and a failure to do so shall not preclude a subsequent challenge thereto. A
party may apply to the Court for an order that information labeled Confidential is not, in fact,
confidential. Prior to so applying, the party seeking to reclassify Confidential information shall
seek the producing party's agreement. If the parties cannot agree on the appropriate
classification of the information in question, the party seeking reclassification may request the
Court for such reclassification. In any request, the producing party shall ultimately have the
burden of establishing the need for classification as Confidential. Until the matter is resolved by
the parties or the Court, the information in question shall continue to be treated according to its
designation under the terms of this Order.
16. Third Party Subpoenas or Demands.
If any receiving party is (a) subpoenaed in another action, (b) served with a demand in
another action to which it is a party, or (c) served with any other legal process by one not a party
14
to this action, seeking information which was produced or designated as Confidential by
someone other than the receiving party, the receiving party shall transmit a copy of such
subpoena, demand, or legal process, by hand or facsimile transmission, within five (5) business
days of receipt of such subpoena, demand or legal process, to those who produced or designated
the material Confidential and shall reasonably cooperate with the producing party in preparing
timely objections to its production. Should the person seeking access to the Confidential
information take action against the receiving party or anyone else covered by this Order to
enforce such a subpoena, demand or other legal process, the receiving party shall respond by
setting forth the existence of this Order. Nothing herein shall be construed as requiring the
receiving party or anyone else covered by this Order to challenge or appeal any order requiring
production of Confidential information covered by this Order, or to subject itself to any
penalties for noncompliance with any legal process or order, or to seek any relief from this
Court.
17. Confidentiality Interests of Third Parties.
A party may temporarily withhold production of otherwise discoverable information
pursuant to a subpoena, deposition question, or discovery request, if the party is under an
obligation to a third party not to disclose such information. In such an event, the objecting party
shall:
a. Promptly provide to the person or entity whose confidentiality interests are
implicated (1) notice of its intention to disclose the information in question and (2) a copy of this
Order; and
b. Within thirty (30) business days of the notice sent pursuant to
subparagraph (a) above, produce the requested information in question in compliance with this
15
Order, unless the request is otherwise objectionable, or the person or entity whose confidentiality
interests are implicated moves for or obtains a protective order precluding such disclosure from
this Court within that time.
18. Use of Independently Obtained, Unrestricted, Public, or Produced
Information.
This Stipulated Protective Order shall not impose any restrictions on the use or disclosure
by a party of information or material properly obtained by such party independently of discovery
in the Action, whether or not such material is also obtained through discovery in this Action, or
from disclosing its own Confidential information as it deems appropriate. Further, this
Stipulated Protective Order shall not apply to information which (a) was properly known to the
receiving party before disclosure hereunder, (b) is or becomes part of public knowledge through
no breach of the provisions of this Stipulated Protective Order, (c) is independently developed by
the receiving party without access to the Confidential information disclosed hereunder, or (d) is
disclosed to the receiving party by a third party without restriction as to disclosure, provided
such third party has the right to make the disclosure to the receiving party.
19. Disclosure of a Party's Own Information.
The terms of this Stipulated Protective Order shall in no way restrict a designating party's
right to reveal or disclose to anyone any materials designated by that party as Confidential
information so long as such disclosure does not violate a designation by another party of
information as Confidential.
20. No Waiver of Rights.
This Stipulated Protective Order shall not be deemed a waiver of (a) any party's or
producing entity's right to object to any discovery requests on any ground; (b) any party's right
16
to seek an order compelling discovery with respect to any discovery requests; (c) any party's
right to object to the admission of evidence on any ground; (d) any party's or producing entity's
right to use its own documents, testimony, transcripts, and/or other materials or things within its
own discretion; (e) the attorney-client privilege or protection of the work product doctrine; or
(f) any party's right to seek additional protection for certain materials or information. In the
event that a party seeks such additional protection, that party shall first confer with the opposing
party to reach agreement with respect to such additional protection before filing a motion with
the Court.
21. Disclosure Beyond the Terms of this Order.
Nothing shall prevent disclosure beyond the terms of this Protective Order if the party
designating the information as Confidential information consents to such disclosure in writing
or on the record, or if the Court, after notice to all affected parties, orders such disclosure.
22. Designation by Non-Parties.
A non-party to this Action that produces information to a party in connection with this
Action, whether or not pursuant to a subpoena, may avail itself of the protections afforded by this
Order to the parties, by placing the Confidential marking identified in paragraph 8(a) on such
information.
23. No Summaries.
Confidential information shall not be disclosed or summarized, in writing or orally, to
anyone other than persons permitted to have access to such information under this Order.
Notwithstanding the foregoing, nothing in this Order prohibits counsel for either party from
advising their respective clients of the presence or absence of evidence supporting or refuting the
claims or defenses in this Action.
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24. Return or Destruction Upon Termination of Action.
Unless counsel agree otherwise in writing, within ninety (90) calendar days of the final
disposition of this Action, the attorneys for the parties and experts and consultants shall destroy
or return to the designating party all materials, other than attorney work product, that have been
designated Confidential information and certify in writing that they have destroyed or deleted
the same, including all copies provided by a receiving party to any other person and all copies
made thereof. Notwithstanding the foregoing, outside counsel for the parties shall be permitted
to retain: (a) attorney work product created during the course of the Action; (b) work product of
non-testifying consultants/experts; (c) materials made part of the Court record, or which have
been filed under seal with the Clerk of the Court; and (d) file copies of all depositions and Court
transcripts, including exhibits. Such file copies must be maintained subject to the terms of this
Order.
25. Survival of Litigation.
This Stipulated Protective Order shall survive the termination of this litigation. The
Court shall retain jurisdiction, even after termination of this lawsuit, to enforce this Protective
Order and to make such amendments and modifications to this Order as may be appropriate.
26. Modifications to Protective Order.
Any party may, on motion or other request to the Court and for good cause shown, seek a
modification of this Stipulated Protective Order, and, by its agreement to this Order, no party
shall be deemed to have waived the right to modifications later sought by such party. Novell's
execution of this Stipulated Protective Order does not waive its right to seek modification of this
Order so that Confidential Information produced by the parties in this action may be used in the
matter of SUSE Linux GMBH v. SCO, International Court of Arbitration of the International
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Chamber of Commerce, Case No. 14320/FM. No modification in this Stipulated Protective
Order that adversely affects the protection of any document produced or given by a non-party in
this case shall be made without giving to that nonparty appropriate notice and opportunity to be
heard by the Court.
STIPULATION
Dated: July 31, 2006 HATCH, JAMES & DODGE, P.C.
By: /s/ Brent O. Hatch
(Signed by filing attorney with
permission of Brent O. Hatch)
Attorneys for The SCO Group
[addrress]
ANDERSON & KARRENBERG
By: /s/ Heather M. Sneddon
Attorneys for Novell, Inc.
[address]
ORDER
DATED: _______________
____________________
Hon. Dale A. Kimball
United States District Court Judge
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EXHIBIT A
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH
________________________________________
THE SCO GROUP, INC., a Delaware
corporation,
Plaintiff/Counterclaim-Defendant,
vs.
NOVELL, INC., a Delaware corporation,
Defendant/Counterclaim-Plaintiff.
_________________________________________
Civil No. 2:04CV-00139 DAK
DECLARATION AND
ACKNOWLEDGMENT OF
___________________________
I, ________________________________________, state that:
1. My address is __________________________________________________
__________________________________________________________________________.
2. My current employer is and the address of my present employment is
__________________________________________________________________________.
3. My current occupation or job description is ___________________________
__________________________________________________________________________.
4. I have received a copy of the Stipulated Protective Order in the above-captioned action. I have carefully read and understand the provisions of the Stipulated
Protective Order.
5. I will comply with all of the provisions of the Stipulated Protective Order. I
will hold in confidence, will not disclose to anyone not qualified under the Stipulated
A-1
20
Protective Order, and will use only for purposes of this action any information marked
Confidential that is disclosed to me.
6. Promptly upon termination of this action, I will return or destroy all materials
containing information marked Confidential that came into my possession, and all
documents and things that I have prepared relating thereto, to the outside attorneys for the
party by whom I am employed or retained, or who noticed my deposition.
7. I hereby submit to the jurisdiction of this Court for the purpose of
enforcement of the Stipulated Protective Order in this action.
I declare under penalty of perjury, under the laws of the United States of America, that
the foregoing is true and correct.
Date:______________________
Place:______________________
A-2
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