Here is the Protective Order the various parties were talking about at the oral arguments in the SCO v. IBM lawsuit on Friday the 5th. Thanks to Thomas Frayne for transcribing it. You can read the legal definition of 'protective order' here.
Sometimes persons who are not parties to a lawsuit, typically the press, feel they have an interest in contesting a protective order. Here is an example of an instance where tons of folks opposed a motion for a protective order to close depositions and bar Internet posting of testimony in Universal v. Reimerdes. In that case, the court worked out a way to allow the public to have access to the information after a few days and to post it online, although the media was not allowed to be present during the depositions:
"THE COURT: Let's leave it this way: the nonconfidential portions of the videotapes, the nondesignated portions, will become public at the end of the period we are designating "Confidential" under the protective order, three days in the case of Attaway, Eisner and Valenti, ten days in the case of others, unless an application is made to me within that time period as to a nonconfidential portion of the videotape, in which case it remains nonpublic until I rule, which will be promptly."
While you can contest, truly confidential material is going to be protected. At the same time, the public has a right to access to the courts. It's up to the judge, after hearing the parties, to decide what qualifies for a protective order and where to draw the line.
I have been puzzling over why McBride would want to paint the Linux community as outlaws, zealots, criminals, and jailbirds. It's deeply insulting and also deeply puzzling.
I think I might have it figured out. I had a Eureka moment when I read the motion in the MPAA v. 2600 case. I was looking for an example of a protective order to show you, so you'd see how the process plays out during a contest, and I remembered that issue came up in that case. Here is what the motion argued constituted "good cause" for the entry of a protective order:
"Public dissemination of the deposition materials would be harmful to the deponents themselves, the discovery process, and to plaintiffs. Indeed, since plaintiffs filed this lawsuit and the Court entered its preliminary injunction order, the MPAA has been barraged with harassing, profane, threatening . . .e-mail messages, evidently in response to (retaliation for) plaintiffs' attempt to enforce their rights against defendants under the Digital Millennium Copyright Act. . . . The public dissemination of information from deposition transcripts, especially over the Internet, will only serve to facilitate further harassment of plaintiffs, their witnesses, and other persons who may be identified during the depositions, and to facilitate efforts to compromise and defeat plaintiffs' anti-piracy activities."
Does it seem possible SCO might try something similar, to collect examples of any strong language or threatening-sounding emails and comments -- or have friendly journalists collect them for them and write articles based on them -- to attach as exhibits to support just such a motion?
My Eureka moment included understanding something about the very first troll on Groklaw. I'm not sure if troll is quite the right word, but here is what happened. Way back when Groklaw was new, still a blog, we had someone show up who at first made pro-SCO remarks. He was either politely ignored or long, sincere explanations would be offered. Then he started telling us that he had seen the light, thanks to Groklaw, and he began making anti-SCO comments. I posted friendly warnings, asking him to tone things down. The blogging software I was using then didn't have the ability to delete comments, as far as I knew, so all I could do was request compliance. He said he would be more careful.
One day I noticed he seemed to be trying to whip up anti-SCO feelings again, and this time he asked everybody to write to SCO, by certified letter no less, telling them what "we" thought of them. At that point, I posted a comment fast, saying I hoped no one listened to any such suggestion and that in my view, no one should do anything in a legal situation without the advice of an attorney. I also told him that I knew he was a Salt Lake City resident and asked him if he was connected to SCO. I can't remember his answer word for word, except he said something about Salt Lake City being a big place, and it was meant as a denial. But I wondered if he was an agent provocateur. That was the last time he posted on the blog. Anyway, when I read the motion, it all fell into place. My Eureka moment. Time will tell if I'm on target or not.
It isn't just the media that can contest a protective order, by the way. The parties can too. IBM can contest as the lawsuit moves along. I don't know what the media or other interested parties will do in this case, only what they could do.
With that introduction, here is the Protective Order in the SCO v. IBM case.
SNELL & WILMER LLP
Alan L.Sullivan (3152)
Todd M. Shaughnessy (6651)
[address, phone, fax]
CRAVATH, SWAINE & MOORE LLP
Evan R. Chesler (admitted pro hac vice)
Thomas G. Rafferty (admitted pro hac vice)
David R. Marriott (7572)
Attorneys for Defendant/Counterclaim-Plaintiff
International Business Machines Corporation
IN THE UNITED STATES DISTRICT COURT OF UTAH
THE SCO GROUP, INC.
INTERNATIONAL BUSINESS MACHINES CORPORATION
STIPULATED PROTECTIVE ORDER
Civil No. 2:03cv0294
Honorable Dale A. Kimball
Magistrate Judge Brooke Wells
Whereas, the parties in the above-captioned action (the "Action") believe that discovery
may involve the disclosure of confidential, trade secret, proprietary, technical, scientific, business,
or financial information of a party or of a non-party;
Whereas, the parties desire to establish a mechanism to protect the disclosure of such
information in this Action; and
Whereas, the Court, mindful both of the parties' interest in maintaining the confidentiality
of sensitive information and of the public's interest in public access to the courts, wishes to
manage this Action efficiently.
Therefore, pursuant to Rule 26(c) of the Federal Rules of Civil Procedure,
IT IS HEREBY ORDERED THAT:
1. Definitions: For purposes of this Protective Order, the following definitions
A. The term "DOCUMENT" shall include any writings, drawings, graphs, charts, photographs, phonorecords, 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, 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 Disclosing Party to another in connection with the Action including, without limitation, copies, or information stored on any storage device or computer.
B. The term "DISCLOSING PARTY" is defined herein as any party or nonparty who is requested to produce or produces DOCUMENTS or testimony through discovery in this Action.
C. The term "CONFIDENTIAL INFORMATION" is defined herein as
information or DOCUMENTS or other materials that the DISCLOSING PARTY in good
faith believes is not publicly known that would be valuable to third parties,
including but not limited to the DISCLOSING PARTY'S actual and potential
competitors, and that the DISCLOSING PARTY would not normally reveal, and has
not revealed, to third parties without an agreement to maintain it in
D. "CONFIDENTIALITY LEGEND" is defined herein as a label placed upon material that contains CONFIDENTIAL INFORMATION and clearly designates the information as "CONFIDENTIAL", pursuant to the provisions of this Order. Such CONFIDENTIALITY LEGEND and any other mark or version control number (e.g., Bates number) added to DOCUMENTS shall not obscure or deface any information contained within the DOCUMENT.
E. "COURT" is defined herein as encompassing the trial court that issued this Order and any appellate court that hear this Action on appeal.
F. "SUPPORT STAFF" is defined herein as employees and independent contractors of counsel for the parties including experts or consultants and their staff retained by such counsel to assist in this Action, paralegals, clerical personnel and secretarial personnel, and employees of the parties specifically assigned to support counsel in this Action so long as those employed sign a declaration and acknowledgment in the form attached hereto as Exhibit A. Upon written request, counsel will provide copies of the declaration and acknowledgments signed by employees of the parties specifically assigned to support counsel in this Action.
G. "LITIGATION SUPPORT SERVICES" is defined herein as encompassing copy services, documents production services, exhibit-making services, translation services, coding services, scanning services, animation services, jury consultants and mock jurors.
2. Applicability of this Order: All CONFIDENTIAL INFORMATION, and all copies,
excerpts and summaries thereof and material containing information derived
therefrom, filed with the Court, submitted to the Court in connection with a
hearing or trial, or produced or served either by a party or by a non-party, to
or for any of the other parties, shall be governed by this Protective Order and
used only for the purposes of this Action and not for any other purpose
or function, including without limitation any business, patent prosecution,
competitive or governmental purpose or function. No person who prosecutes
patents relating to the technology claimed in the patents in suit shall have
access to CONFIDENTIAL INFORMATION. The terms of this Protective Order shall
apply to all manner and means of discovery, including without limitation oral
testimony, entry onto land or premises, and production and/or inspection of
books, records, DOCUMENTS and tangible things.
3. Designating Information: If, in the course of this Action, a DISCLOSING PARTY
discloses information that the DISCLOSING PARTY in good faith contends is
CONFIDENTIAL INFORMATION, that DISCLOSING PARTY may designate such information
as such by applying to the material that contains the information the
CONFIDENTIALITY LEGEND, which shall read "CONFIDENTIAL".
A. If any CONFIDENTIAL INFORMATION cannot be labeled with the
CONFIDENTIALITY LEGEND, 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
B. Initial Inspections of Materials: In the event materials are to be subject to
an initial inspection, e.g., in order for the requesting party to decide whether to copy all or only
parts of a production, the materials shall be treated as containing CONFIDENTIAL
INFORMATION for purposes of the initial inspection, thereby limiting those who may conduct
such an initial inspection to those permitted by Section 4 to view CONFIDENTIAL
INFORMATION. After the initial inspection, the DISCLOSING PARTY may, if appropriate,
prior to or contemporaneously with the copying of the materials, designate the inspected materials
as CONFIDENTIAL INFORMATION.
C. Inspections of Property, etc.: If a DISCLOSING 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 the DISCLOSING 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.
D. Depositions: Counsel for the deponent or for a party may designate any part
or all of a deposition as confidential by notifying all counsel of record prior
to or during the deposition of the confidentiality designation. If a deposition
concerns CONFIDENTIAL INFORMATION, counsel for the deponent or for a party shall
have the right to exclude from the portion of the deposition concerning such
information any person not authorized to have access to CONFIDENTIAL INFORMATION
under this Protective Order. A party designating a portion of the testimony as
CONFIDENTIAL INFORMATION may also request that the affected portions be bound
separately from the rest of the transcript. In accordance with Section 14 of
this Protective Order the non-designating party may request that the designating
party review a particular designation, in which event the designating party
shall review the designation in question and shall have the option of changing
it and shall give notice to the other party in writing if a change is made.
E. Deposition Exhibits: 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 CONFIDENTIAL INFORMATION
or the de-designation of a deposition from CONFIDENTIAL INFORMATION shall not
affect the confidentiality status of exhibits presented at the deposition.
F. Inadvertent Failure to Designate: If a party to this Order inadvertently
fails to designate information as CONFIDENTIAL INFORMATION such failure shall not
constitute a waiver of the DISCLOSING PARTY'S right to so designate such information. In the
event that such an inadvertent failure occurs, the DISCLOSING PARTY shall upon discovery of
the inadvertent 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. 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 DISCLOSING PARTY. The receiving party shall also destroy all
copies of the incorrectly labeled information and replace them with the substitute copies provided
by the DISCLOSING PARTY.
4. Persons Permitted to Access Confidential Information: Access to information that
has been designated as CONFIDENTIAL INFORMATION shall be limited to the
A. The Court, and its support staff and other authorized Court personnel, and
jurors and alternate jurors, if any;
B. Counsel (in-house and outside) for the parties to this Action and their
C. Stenographers and videographers who take, record or transcribe testimony in
this Action, either at deposition or at a hearing or trial, to the extent
necessary to carry out their services;
D. LITIGATION SUPPORT SERVICES, as defined in Section 1, to the extent necessary
to carry out their services [sic]
E. Any individual who previously had rightful access to the CONFIDENTIAL
INFORMATION in question, as authorized by the DISCLOSING PARTY, in the form that
the CONFIDENTIAL INFORMATION was produced by the DISCLOSING PARTY, in the
ordinary course of business or employment, so long as the provision of
CONFIDENTIAL INFORMATION under this paragraph is subject to the same limits set
forth in paragraph 4.F;
F. A witness in the above-captioned case not otherwise authorized to view the
CONFIDENTIAL INFORMATION in question, during that witness' testimony at a deposition,
hearing, or trial in the above-captioned case, provided that: (1) the disclosure is made solely for
the purpose of directly advancing the questioning party's claims or defenses, and for no other
purposes whatsoever; (2) counsel for the questioning party endeavors in good faith to redact or
handle the CONFIDENTIAL INFORMATION in such a manner as to disclose no more
confidential information as is reasonably necessary in order to examine the witness; (3) the
witness is not permitted to retain the CONFIDENTIAL INFORMATION after the witness is
examined regarding the CONFIDENTIAL INFORMATION; and (4) the witness is explicitly
informed that this Protective Order forbids him or her to disclose the CONFIDENTIAL
INFORMATION except as permitted under this Protective Order and that he or she is subject to
the Court's jurisdiction for the purposes of enforcing this Protective Order, and the witness signs
the Declaration and Acknowledgement form that is attached hereto as Exhibit A. A deposition
witness may review the entire deposition transcript and exhibits thereto in order to review and sign
pursuant to Fed. R. Civ. P. 30(e); however, the DISCLOSING PARTY may object to the deponent
further reviewing a CONFIDENTIAL deposition exhibit. If such an objection is raised, any party
may seek relief from the Court, and the disclosure may not be made until the Court rules or the
DISCLOSING PARTY withdraws its objection;
G. A witness whose testimony at deposition, hearing, or trial has been formally
noticed (but who is not otherwise authorized to view CONFIDENTIAL INFORMATION),
provided that (1) the disclosure is made solely for the purpose of preparing the witness to testify;
(2) the party that intends to make the disclosure provides written notice to the DISCLOSING
PARTY, at least five business days in advance of the disclosure, specifying the documents to be
disclosed and the person to whom the disclosure is to be made; and (3) the DISCLOSING PARTY
has not objected, in writing, within five business days of receiving the notice of intended
disclosure. If the DISCLOSING PARTY does object, any party may seek relief from the Court,
and the disclosure may not be made until the Court rules or the DISCLOSING PARTY withdraws
H. Other persons to whom the Court specifically allows disclosure, after
application by the party seeking such disclosure and an opportunity to reply by the DISCLOSING
PARTY OR PARTIES; and
I. Other persons to whom the DISCLOSING PARTY specifically and in
writing allows disclosure.
5. Storage and Custody: Counsel for each party to this Protective Order shall use
the same care and discretion to avoid disclosure of CONFIDENTIAL INFORMATION as the
receiving party uses with its own similar information that it does not wish to disclose to prevent
the unauthorized or inadvertent disclosure of any information designated as CONFIDENTIAL
INFORMATION under this Protective Order.
6. Filing Under Seal: 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
A. The style of the Action and case number (Civil No. 2:03CV-0294 DAK);
B. The name of the filing party;
C. An indication of the filing's contents, such as the title of the filing; and
D. A statement substantially similar to the following:
CONFIDENTIAL INFORMATION - SUBJECT TO COURT ORDER THIS ENVELOPE
SHALL NOT TO BE OPENED AND THE CONTENTS SHALL NOT BE DISPLAYED,
COPIED OR REVEALED EXCEPT BY COURT ORDER OR BY THE WRITTEN
AGREEMENT OF THE PARTIES.
7. No Summaries: CONFIDENTIAL INFORMATION shall not be disclosed or
summarized, either 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.
8. Challenging a Designation: At any time, a party to this Order may challenge
the designation of information as CONFIDENTIAL INFORMATION by notifying the
DISCLOSING PARTY in writing of the information that the challenging party in
good faith believes should not have been given a designation of CONFIDENTIAL
INFORMATION. The parties shall then confer within five (5) business days to try
to resolve the matter, and if unable to resolve the matter, may thereafter seek
the Court's assistance. The burden of proof shall be on the DISCLOSING PARTY to
show that the designation is appropriate under this Order. 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. By
failing to object to the designation of information upon its production, a party
does not waive its right to object at a future time to that designation.
9. Designation by Non-Parties: A non-party to this Action that produces
information to any party to this Action in connection with this Action, whether or not pursuant to a
subpoena, may avail itself of the protections afforded by this Order, by placing a
CONFIDENTIALITY LEGEND on such information.
10. Confidentiality Interests of Third Parties: A party may refuse to produce
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 (i) notice of its intention to disclose the information in question and (ii) a copy of this
B. Within thirty (30) business days of the notice sent pursuant to (A), produce
the requested information in question in compliance with this 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
11. No Waiver of Rights: This Order shall not be deemed (a) a waiver of any
party's or producing entity's right to object to any discovery requests on any
ground; (b) a waiver of any party's right to seek an order compelling discovery
with respect to any discovery requests; (c) a waiver of any party's right to
object to the admission of evidence on any ground; (d) a waiver of 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) any waiver of
the attorney-client privilege or protection of the work product doctrine; or (f)
a waiver of any party's right to seek additional protection for certain
materials or information. In the event that either party seeks such additional
protection, that party shall first confer with the opposing party to reach
agreement with respect to such additional protection. If the parties are unable
to reach agreement, the party seeking such additional protection shall, within
10 business days after the parties have conferred and failed to reach agreement,
file a motion or application with this Court for an additional Protective
12. 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
13. Inadvertent Disclosure: Should any designated information be disclosed,
through inadvertence or otherwise, to any person or party in violation of this
Order, then the party responsible for the inadvertent disclosure shall use
reasonable efforts to bind such person to the terms of this Order, and shall (a)
promptly inform such person of all the provisions of this Order, (b) request
such person to sign the Declaration and Acknowledgement (attached hereto as
Exhibit A), (and, if such person does not agree to sign the Declaration and
Acknowledgement, use reasonable efforts to retrieve the designated information
promptly); and (c) identify such person immediately to the DISCLOSING PARTY that
designated the document as CONFIDENTIAL INFORMATION. The executed agreement
shall promptly be served upon the DISCLOSING
14. Disclosure of a Party's Own Information: The terms of this Order shall in
no way restrict a DISCLOSING PARTY'S right to reveal or disclose to anyone any
DOCUMENTS or information designated by that party as CONFIDENTIAL INFORMATION.
15. Final Disposition: Unless counsel agree otherwise in writing, within sixty (60)
calendar days of the final disposition of this Action, the attorneys for the parties and experts and
consultants shall return promptly, to the DISCLOSING PARTY or witness from whom they were
obtained, all DOCUMENTS, other than attorney work-product, that have been designated
CONFIDENTIAL INFORMATION or certify in writing that they have destroyed or deleted the
same, including all DOCUMENTS or 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 one copy of (1) materials created during the course of the Action, including
attorney annotations and other work product; (2) work product of non-testifying
consultants/experts; (3) materials made part of the Court record, or which have been filed under
seal with the Clerk of the Court; (4) all depositions and Court transcripts, including exhibits; and
(5) summaries of depositions. Such file copies must be maintained subject to the terms of this
Order. Use of CONFIDENTIAL INFORMATION at Trial: If a trial is scheduled, the parties
shall confer in good faith to determine a method for introducing at trial material which has been
designated as "Confidential." The parties shall submit their proposed method to the Court for
approval. 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
DISCLOSING PARTY acted wrongfully in designating material as CONFIDENTIAL.
16. Modification, Relief and Retention of Jurisdiction: This Order will remain in
full force and effect unless modified by an order of the Court or by the written stipulation of the
parties hereto filed with the Court. The parties to this Action reserve all rights to apply to the
Court at any time, before or after termination of this Action, for an order: (i) modifying this
Protective Order, (ii) seeking further protection against discovery or use of designated
information, or (iii) seeking further production, discovery, disclosure, or use of claimed designated
information or other DOCUMENTS or information in this Action. Without limiting the
foregoing, this Order survives and remains in full force and effect, and this Court shall retain
jurisdiction to enforce all provisions of this Order, after termination of this Action.
17. No Liability for Innocent Disclosures: It is understood that 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
DISCLOSING 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.
18. No Effect on Other Litigation: The existence or nonexistence of a designation
under this Protective Order shall have no effect or bearing on any other litigation.
19. No Admissions: Unless the parties stipulate otherwise, the designation or
acceptance of any information designated pursuant to this Protective Order shall not constitute an
admission or acknowledgment that the material so designated is in fact proprietary, confidential or
a trade secret.
20. No Effect on Existing Confidentiality Restrictions: A designation of
CONFIDENTIAL INFORMATION under this Protective Order shall have no effect on existing
confidentiality restrictions governing information previously exchanged between the Parties,[sic]
Existing confidentiality restrictions, if any, that govern use and/or disclosure of information
previously exchanged between the parties shall take precedence over this Protective Order when
the terms of the former are less restrictive than those of the latter.
Dated: September 15, 2003
HATCH, JAMES & DODGE, P.C.
By [signature of Hatch]
A member of the Firm
Attorneys for The SCO Group
SNELL & WILMER L.L.P.
A member of the Firm
Attorneys for International
Business Machines Corporation
Dated: September 16, 2003
[signed by Dale A. Kimball]
United States District Court Judge
Attachments to this document have not been scanned.
Please see the case file.