Form 5-8

NOTICE: THIS DOCUMENT
CONTAINS SENSITIVE DATA

[Caption. See § 3 of the Introduction in volume 1 of this manual.]

Confidentiality Order

The parties to this order seek the entry of a protective order governing the documents produced in this action and other documents, information, or testimony provided in connec­tion with pretrial proceedings or the trial of this action. A protective order in the form set forth below is necessary because discovery in this action and the trial of this action are likely to involve sensitive personal, financial, and business information, the disclosure of which could cause injury to the producing party. The Court finds that good cause has been shown, and IT IS ORDERED THAT:

Definitions

The following definitions apply in this order:

“Document,” whether used in the singular or the plural, means any kind of written, graphic, or recorded matter, however produced, reproduced, or electronically stored, of any kind or description, including originals, copies, and drafts, and both sides thereof.

“Confidential information” means information that constitutes or contains a trade secret or is subject to the lawyer-client privilege, the spousal privilege, the clergyman privilege, the physician-patient privilege, or the confidentiality of mental health information privilege, as those terms are defined in rules 501 through 510 of the Texas Rules of Evidence. “Confiden­tial information” also means any document, oral communication, or other information of the parties, the improper use of which is likely to cause injury to the producing party.

“Producing party” means any party to this order who responds to a discovery request or otherwise provides information to a party to this action or to the Court in connection with this action.

“Producing third party” means any person or entity not a party to this suit who responds to a discovery request or otherwise provides information to a party to this action or to the Court in connection with this action.

“Requesting party” means any party to this action other than the producing party.

“Termination of the action” means the final termination of this action by any means including without limitation entry of a final judgment or dismissal. If an appeal is taken from any judgment or order entered in this action, the “termination of the action” shall not occur until all appellate proceedings have been finally concluded, as well as any proceeding in con­nection with any remand.

“Party” means any person who is a party to this action.

Limitations on the Disclosure and Use of Confidential Information

No confidential information produced in this action shall be disclosed in any manner except to (1) a party to this action; (2) counsel involved in this action and their paralegal, com­puter, clerical, secretarial, and other employees and contract workers engaged in the prepara­tion for the trial of this action; (3) consultants or experts retained by a party to this action or its counsel to whom disclosure is necessary for the preparation of this action for trial; (4) a wit­ness whose testimony is being taken either during deposition or at trial; and (5) as evidence in a trial or hearing in this action.

Confidential information shall be used solely for the purpose of conducting this action and not for any other purpose whatever. This order not only prohibits disclosure of confiden­tial information or testimony but also prohibits the discussion of confidential information with any person not specifically authorized to receive such information under this order.

Counsel shall advise their paralegal, computer, secretarial, clerical, and other employ­ees and contract workers of the requirements imposed by this order.

Procedure for Designating Confidential Information

To designate a document containing confidential information, a party shall mark the document with the legend “CONFIDENTIAL.”

To designate one or more answers to interrogatories or answers to requests for admis­sions as containing confidential information, a party shall submit those answers in a separate document and mark each page of those answers with the legend “CONFIDENTIAL.”

If a producing party elects to produce files and records for inspection and a requesting party desires to inspect these files and records, the producing party shall identify its files as “CONFIDENTIAL” before producing the documents.

Filing of Confidential Information

Any motions, pleadings, affidavits, briefs, or other documents submitted to or filed with the Court that contain, reproduce, quote, paraphrase, or otherwise reveal any confidential information shall be filed in a sealed envelope marked on the outside with the title of the action, an identification of each document or other item within, and a statement substantially in the following form:

“CONFIDENTIAL—SUBJECT TO PROTECTIVE ORDER

This envelope containing the above-identified papers by [name of party] is not to be opened, nor are its contents to be displayed, except by court order or by agree­ment of the parties . . .”

The clerk of the Court shall maintain under seal such confidential documents, information, or testimony, which shall be made available only to the Court and to counsel for the parties in this action until further order of this Court.

Objections to the Designation of Information as Confidential

Any objection to the designation of an item of information as confidential shall be made in writing to counsel for the producing party or the producing third party. If the objec­tion cannot be resolved by agreement within ten business days of the date of service of the objection, the objecting party may move the Court to determine the propriety of the designa­tion. The objecting party shall set forth in its motion the basis on which it believes that (1) the information does not contain or consist of confidential information, the disclosure of which could adversely affect the producing party, and (2) the material constitutes relevant, admissi­ble evidence. The information that is the subject of the motion shall be treated in accordance with its designation status pending resolution of the motion. Attorney’s fees and costs may be assessed if information that was identified as confidential is later found by the Court not to be confidential.

Use of Confidential Information at Hearings or at Trial

The parties shall undertake in good faith to negotiate mutually acceptable procedures to present to the Court to protect against the disclosure of confidential information in connection with any hearing regarding this action or the trial of this action. By agreeing to do so, no party waives its right to demand a trial by jury.

Service of Written Objections and Notices

Written objections and notices shall be served on the attorney for a party.

Duration

This order shall remain in full force and effect and survive the termination of this litiga­tion unless modified by an order of this Court or by the written stipulation of all parties and any affected third party filed with the Court.

Independently Obtained Information

Nothing in this order shall in any way restrict the right of a party to use or disclose information obtained from any source other than from a producing party or producing third party during the litigation of this action, whether or not such independently obtained informa­tion is identical to information designated as confidential by the producing party or producing third party.

Cumulative Provisions

The procedures established by this order are intended to be cumulative and in addition to any party’s right to seek any further or different protection from the Court for any docu­ment or information deemed to be confidential.

This order is without prejudice to the right of any party to apply to the Court at any time, on reasonable notice to the other parties and the affected third party, to request that the Court for good cause modify the provisions of this order.

Successors and Assigns

This Confidentiality Order shall be binding on and inure to the benefit of all successors and assigns of the parties to the order.

SIGNED on ________________________________.

   
JUDGE PRESIDING

APPROVED:

___________________________________
[Name], Petitioner

___________________________________
[Name], Respondent

___________________________________
[Name], Attorney for Petitioner

___________________________________
[Name], Attorney for Respondent