PROTECTIVE ORDER [PROPOSED] 1 NEWMAN & NEWMAN, ATTORNEYS AT LAW, LLP

505 Fifth Avenue South, Suite 610

Seattle, Washington 98150

phone: (206) 274-2827

fax: (206) 274-2801

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THE HONORABLE JOHN C. COUGHENOUR

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT SEATTLE

JAMES S. GORDON, Jr., a married 

individual, d/b/a 

‘GORDONWORKS.COM’; OMNI 

INNOVATIONS, LLC., a Washington 

limited liability company;

Plaintiffs,

v.

VIRTUMUNDO, INC, a Delaware 

corporation d/b/a 

ADNOWLEDGEMAIL.COM; 

ADKNOWLEDGE, INC., a Delaware 

corporation, d/b/a 

ADKNOWLEDGEMAIL.COM; 

SCOTT LYNN, an individual; and 

JOHN DOES, 1-X,

Defendants.

No. CV06-0204JCC

PROTECTIVE ORDER [PROPOSED]

STIPULATION

The preparation and trial of this action may involve the discovery of documents, 

information, and other materials that contain confidential and trade secret information 

belonging to Plaintiff and other parties, which, if disclosed to the public, the parties’ 

Case 2:06-cv-00204-JCC Document 29 Filed 08/24/2006 Page 1 of 10

Gordon v. Virtumundo Inc et al Doc. 29

Dockets.Justia.com
PROTECTIVE ORDER [PROPOSED] 2 NEWMAN & NEWMAN, ATTORNEYS AT LAW, LLP

505 Fifth Avenue South, Suite 610

Seattle, Washington 98150

phone: (206) 274-2827

fax: (206) 274-2801

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competitors, and, in some cases, to the parties themselves, may unfairly and adversely affect 

competition. To expedite the flow of discovery material, facilitate the prompt resolution of 

disputes over confidentiality, protect material entitled to be kept confidential, the parties 

hereby stipulate and agree there is a need for a Protective Order in this case, and they further 

consent and agree to entry of the following protective order pursuant to the Court’s authority 

under Fed. R. Civ. P. 26(c).

DATED this 24th day of August, 2006.

NEWMAN & NEWMAN, LLP MERKLE SIEGEL & FRIEDRICHSEN, 

P.C.

Attorneys for Defendants Attorneys for Plaintiffs

 /s/ Robert Siegel with authorization

By By

Derek A. Newman, WSBA # 26967 Robert J. Siegel WSBA# 17312

 Roger M. Townsend, WSBA # 25525

PROTECTIVE ORDER

Pursuant to stipulation of counsel, and Fed. R. Civ. P. 26(c); it is hereby ORDERED, as 

follows:

1. Except as otherwise ordered by this Court, this Order shall apply to all 

documents, interrogatories, testimony, information and pleadings produced, given or filed in 

this action which are designated by a party, including any third party, as “CONFIDENTIAL 

INFORMATION” in accordance with the terms hereof.

2. Any party, including third parties, may designate as “CONFIDENTIAL 

INFORMATION” pursuant to the terms of this Order:

Case 2:06-cv-00204-JCC Document 29 Filed 08/24/2006 Page 2 of 10
PROTECTIVE ORDER [PROPOSED] 3 NEWMAN & NEWMAN, ATTORNEYS AT LAW, LLP

505 Fifth Avenue South, Suite 610

Seattle, Washington 98150

phone: (206) 274-2827

fax: (206) 274-2801

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(a) Information contained in a document, answer to interrogatory, 

answer to request for admission, response to request for 

production of documents or other writing may be designated by 

stamping or otherwise marking (in such a manner as will not 

interfere with the legibility of the document) the first page of the 

document containing confidential information with an 

appropriate notation substantially in the form:

“CONFIDENTIAL INFORMATION”

Unless a party intends to designate all of the information 

contained within the document as “CONFIDENTIAL 

INFORMATION,” the party should indicate in a clear fashion 

that portion of the document which the party intends to designate 

as containing “CONFIDENTIAL INFORMATION.” In any 

court filing or written discovery response, the supplying party 

shall note on the cover page of the document that all or a portion 

of the document contains “CONFIDENTIAL INFORMATION” 

designated pursuant to this Order and shall furnish such 

information to the Clerk under seal pursuant to Paragraph (6) 

hereof.

(b) Information contained or revealed in a deposition whether in a 

question, answer or exhibit, may be designated by noting a claim 

of confidentiality pursuant to this Order on the record at the time 

of the depositions, whenever reasonably possible. The 

confidential portion shall be identified as such in the caption or 

title of the transcript and on each page, as CONFIDENTIAL. 

The claimant of confidentiality or the person obligated to 

maintain and protect confidentiality under this Order shall, on the 

record, advise all persons present at the deposition that the 

information is confidential and is subject to a Protective Order 

governing its use. Before the disclosure of previously designated 

CONFIDENTIAL INFORMATION in a deposition, all persons 

who have not theretofore been made subject to this Order shall 

be given a copy of this Order and shall acknowledge on the 

record of such deposition that he or she has read the Order and 

agrees to be bound by its terms. When the claim of 

confidentiality is not made in advance of disclosure or at the time 

of the deposition, it may be made within a reasonable time 

thereafter, at which point the designated material shall be 

accorded confidential treatment pursuant to this Order and 

counsel for the party making the claim of confidentiality shall 

ensure that the preceding provisions of this subparagraph 

concerning the transcription and identification of confidential 

material are complied with.

Case 2:06-cv-00204-JCC Document 29 Filed 08/24/2006 Page 3 of 10
PROTECTIVE ORDER [PROPOSED] 4 NEWMAN & NEWMAN, ATTORNEYS AT LAW, LLP

505 Fifth Avenue South, Suite 610

Seattle, Washington 98150

phone: (206) 274-2827

fax: (206) 274-2801

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3. The following types of information, if discoverable because such information is 

necessary or essential to any claims or defenses in the action, shall be regarded as 

“CONFIDENTIAL INFORMATION”:

(a) Any personally identifying information, including but not limited 

to telephone numbers and e-mail addresses.

(b) Any agreements between Defendants, their vendors, customers or 

other third parties, any financial or other terms therein, or the fact 

of their existence.

(c) Any passwords to any accounts, intranet sites, FTP sites, domain 

names or the like.

(d) To the extent discoverable, any information about, concerning, or 

pertaining to Defendants’s business plans, assessment of the 

market, its competition, its plans or strategies for meeting 

competition, its prospective clients or customers, its marketing or 

advertising plans, or any budget or other information about its 

current, or planned or expected revenue, pricing policies, or costs 

of operation.

(e) To the extent discoverable, any document that a party, including 

any third party, designates as “CONFIDENTIAL 

INFORMATION” subject to the right of a party to challenge 

such CONFIDENTIAL INFORMATION designation pursuant to 

paragraph 10 of this Order.

4. “CONFIDENTIAL INFORMATION” subject to this Order shall be used solely 

and exclusively for purposes of this case in accordance with the provisions of this Order. Such 

information shall not be used in or for other cases, proceedings, or disputes, or for any 

personal, commercial, business, competitive, or other purpose whatever.

5. It is the responsibility of counsel for each party to this action to maintain 

materials containing CONFIDENTIAL INFORMATION obtained from a party in a secure and 

Case 2:06-cv-00204-JCC Document 29 Filed 08/24/2006 Page 4 of 10
PROTECTIVE ORDER [PROPOSED] 5 NEWMAN & NEWMAN, ATTORNEYS AT LAW, LLP

505 Fifth Avenue South, Suite 610

Seattle, Washington 98150

phone: (206) 274-2827

fax: (206) 274-2801

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appropriate manner so as to allow access to CONFIDENTIAL INFORMATION only to such 

persons as permitted pursuant to Paragraphs 7, 8 and 9 of this Order.

6. To the extent that CONFIDENTIAL INFORMATION is contained in or 

attached to materials filed with the Court, such materials shall be filed under seal and shall be 

maintained in a secure, segregated facility. No one, other than the Court, its agent and 

employees, and persons authorized by this Order or any subsequent order of the Court or 

agreement of the parties, shall have access to such sealed materials.

7. Except with the prior written consent of the party asserting confidential 

treatment or prior Order of Court, after notice as provided hereunder, any CONFIDENTIAL 

INFORMATION, and any information contained in, or derived from, any such information, 

may not be disclosed other than in accordance with this Order and may not be disclosed to any 

person other than:

(a) No more than three (3) employees of each party, solely for the purpose 

of the prosecution, defense, and/or appeal of this action, provided that 

the requirements of paragraph 8 are met. The two identified employees 

of each party cannot be changed during the pendency of the litigation 

unless their employment terminates, in which case they may be replaced 

by another employee of the relevant party.

(b) Counsel for the parties, including in-house counsel, counsel for 

any insurer, indemnitor, indemnitee, or other counsel in which 

the communication is privileged. Counsel, as used in this 

Protective Order, shall include partners, associates, paralegals, 

and secretarial and clerical employees of such counsel who have 

a need to know CONFIDENTIAL INFORMATION for purposes 

of this litigation only, and who shall be required to abide by the 

terms of this Protective Order.

(c) Bona fide independent experts who are not employed by a party 

in this litigation and who have agreed to be bound by the terms of 

this Protective Order.

Case 2:06-cv-00204-JCC Document 29 Filed 08/24/2006 Page 5 of 10
PROTECTIVE ORDER [PROPOSED] 6 NEWMAN & NEWMAN, ATTORNEYS AT LAW, LLP

505 Fifth Avenue South, Suite 610

Seattle, Washington 98150

phone: (206) 274-2827

fax: (206) 274-2801

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(d) The Court and Court Personnel under such safeguards as the 

Court may direct so as to preserve and protect the confidentiality 

of information designated by any party and to prevent harm to 

any party.

(e) Any deposition or trial witnesses and their counsel of record, but 

only to the extent that such CONFIDENTIAL INFORMATION 

was written by or to such witness, refers to such witness or his 

employer, and where counsel believes in good faith that 

disclosure is necessary in connection with the examination or 

preparation of such witnesses.

ALL PERSONS TO WHOM CONFIDENTIAL INFORMATION AND/OR 

DOCUMENTS ARE DISCLOSED ARE HEREBY ENJOINED from using same except in 

the preparation for trial and trial of this action (under such safeguards as the Court may 

require) and from disclosing same to any other person except as provided herein. No 

person receiving or reviewing such CONFIDENTIAL INFORMATION shall disclose it or 

its contents to any person other than those described in this paragraph and for the purposes 

specified and in no event shall such person make any other use of such document or 

transcript.

8. Any person who is given access to Confidential Information pursuant to 

paragraph 7 shall, prior to being given any such material, be informed of the provisions of this 

Order, read this Order, and execute a sworn declaration, in the form annexed hereto as Exhibit 

A, indicating that he or she has read this Order and will abide by its terms. The original of 

such sworn statements shall be retained by counsel for each party who intends to or does 

provide such persons any such material, until the conclusion of this action, including any 

appeals. At such time, counsel for each party shall serve a copy of such declarations upon 

counsel for each other party. The parties agree not to use these declarations for any purpose 

other than monitoring and enforcing compliance with this Order. The parties further agree to 

treat the declarations as "Confidential" material within the meaning of this Order.

9. If a producing party desires to obtain confidentiality protections other than those 

provided by this Order with respect to specific information or categories of information, it shall 

advise the obtaining party of the protections desired and the information to which the same 

Case 2:06-cv-00204-JCC Document 29 Filed 08/24/2006 Page 6 of 10
PROTECTIVE ORDER [PROPOSED] 7 NEWMAN & NEWMAN, ATTORNEYS AT LAW, LLP

505 Fifth Avenue South, Suite 610

Seattle, Washington 98150

phone: (206) 274-2827

fax: (206) 274-2801

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shall be applicable. If the parties fail to agree concerning the confidential treatment sought, 

after conferring in good faith with respect thereto, then the parties shall proceed in accordance 

with Paragraphs 10 or 11 of this Order and the subject information shall be produced in 

accordance with the Order of Court resulting from such procedures.

10. Any party shall be free to move to modify this Order.

11. Any party who wishes to challenge another party’s designation of information 

as “CONFIDENTIAL INFORMATION” may proceed as follows:

(a) Counsel for such parties shall confer in a good faith effort to 

resolve by agreement any differences as to the use or designation 

of information as “CONFIDENTIAL INFORMATION”;

(b) Failing agreement of the parties, the objecting party may file an 

appropriate motion with the Court with respect to the information 

in question and shall:

(i) Certify that he or she has sought in good faith to confer 

with opposing counsel and has been unable to resolve the 

dispute by agreement;

(ii) Identify by category or document number the information 

as to which relief is sought; and

(iii) Identify the reasons why such information is not or 

should not be treated as CONFIDENTIAL 

INFORMATION pursuant to the terms of this Order.

(c) Within seven business days, the party designating such 

information as CONFIDENTIAL shall respond to the motion by:

(i) Showing with particularity with respect to each 

challenged item of confidential information the reasons 

why such information has been properly designated as 

“CONFIDENTIAL INFORMATION”; and

(ii) Showing why the further disclosure or use of the 

particular information might result in harm or injury to 

the designating party.

Case 2:06-cv-00204-JCC Document 29 Filed 08/24/2006 Page 7 of 10
PROTECTIVE ORDER [PROPOSED] 8 NEWMAN & NEWMAN, ATTORNEYS AT LAW, LLP

505 Fifth Avenue South, Suite 610

Seattle, Washington 98150

phone: (206) 274-2827

fax: (206) 274-2801

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(d) If a response is timely made as provided in Paragraph 9(c), until 

the application for modification with respect to specific 

“CONFIDENTIAL INFORMATION” is ruled upon by the 

Court, the designation of confidentiality shall remain in full force 

and effect and the information shall continue to be accorded the 

treatment required by this Order.

12. A failure to challenge the propriety of a designation of confidentiality at the 

time the designation is made shall not preclude or detract from a subsequent challenge thereto.

13. All materials containing CONFIDENTIAL INFORMATION that are submitted 

to the Court or used in any pretrial proceeding before this Court shall remain confidential and 

shall be accorded in camera treatment.

14. Within ten (10) days after the conclusion of this case, including any appellate 

proceedings, all confidential materials obtained (including copies thereof) shall be destroyed or 

returned to the producing party, at the election of the opposing party. All notes, drafts, 

memoranda, work papers and other materials that contain confidential information obtained 

from a party (whether prepared by outside counsel, in-house attorneys, or other persons 

specified in this Order), may be destroyed or retained by outside counsel for the obtaining 

party, and, if so retained, shall be preserved as confidential in accordance with the terms of this 

Order. Compliance with this paragraph shall be confirmed in an affidavit.

15. The inadvertent or unintentional disclosure of confidential information shall not 

be construed to be a waiver, in whole or in part, of:

(a) The supplying party’s claims of confidentiality either as to the specific 

information disclosed or as to any other information relating thereto;

(b) The obtaining party claims of confidentiality for its information pursuant 

to this Order.

Case 2:06-cv-00204-JCC Document 29 Filed 08/24/2006 Page 8 of 10
PROTECTIVE ORDER [PROPOSED] 9 NEWMAN & NEWMAN, ATTORNEYS AT LAW, LLP

505 Fifth Avenue South, Suite 610

Seattle, Washington 98150

phone: (206) 274-2827

fax: (206) 274-2801

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16. A breach of the provisions of this Protective Order shall be subject to sanctions, 

in the discretion of the Court, as authorized by any statute, rule or inherent power of the Court, 

or as otherwise provided by law.

17. The provisions of this Order shall survive and remain in full force and effect 

after the entry of final judgment (including any appellate proceedings) in this case, whether by 

settlement or litigation.

18. The agreement of the parties embodied in this Order does not constitute an 

admission or agreement that any document or information is subject to discovery, or is 

admissible as evidence, in this case. Designation of any information as subject to this Order 

shall have no meaning or effect whatsoever with respect to the substantive issues in this 

proceeding or the claims or defenses of any party hereto.

19. This Court retains jurisdiction, both before and after the entry of final judgment 

in this case (whether by settlement or litigation), to construe, enforce and amend the provisions 

of this order. The treatment of confidential information to be introduced at trial shall be the 

subject of a later order.

20. This Protective Order is entirely without prejudice to the rights of any nonparty 

to apply to the Court for any further Protective Order relating to any CONFIDENTIAL 

INFORMATION, or for an order permitting the disclosure of any CONFIDENTIAL 

INFORMATION.

Case 2:06-cv-00204-JCC Document 29 Filed 08/24/2006 Page 9 of 10
PROTECTIVE ORDER [PROPOSED] 10 NEWMAN & NEWMAN, ATTORNEYS AT LAW, LLP

505 Fifth Avenue South, Suite 610

Seattle, Washington 98150

phone: (206) 274-2827

fax: (206) 274-2801

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DATED this ____ day of _________, 2006.

THE HONORABLE JOHN C. COUGHENOUR

UNITED STATES DISTRICT JUDGE

Presented by:

MERKLE SIEGEL & FRIEDRICHSEN, P.C.

Attorneys for Plaintiff

By: /s/ Robert Siegel with authorization

Robert J. Siegel WSBA# 17312

NEWMAN & NEWMAN, LLP

Attorneys for Defendants 

By: 

Derek A. Newman, WSBA # 26967

Roger M. Townsend, WSBA # 25525

Case 2:06-cv-00204-JCC Document 29 Filed 08/24/2006 Page 10 of 10