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UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF NEW HAMPSHIRE 

WINDHAM ENVIRONMENTAL ) 

CORPORATION, ET AL. ) 

 ) 

Plaintiffs, ) Docket No. 1:06-CV-367-JM 

) 

v. ) 

) 

UNITED STATES FIDELITY AND ) 

GUARANTY CO., ET AL. ) 

 ) 

 Defendants. ) 

STIPULATED PROTECTIVE ORDER

Good cause having been found, and the parties having so stipulated, IT IS HEREBY 

ORDERED that: 

1. The following terms are used in this Order, and shall have the meanings below: 

a. “Producing Party” means a party to this action or a non-party to this action 

that produces information, including documents, responses to interrogatories and requests for 

admissions, and deposition testimony, in connection with discovery taken in this action. 

b. “Designating Party” means a Producing Party that elects to designate 

information, pursuant to this Agreement, as “Confidential Material.” 

c. “Confidential Material” means [1] all documents produced pursuant to the 

Court’s Order dated May 31, 2007, including but not limited to legal fee and cost bills, and [2] 

any other sensitive business or proprietary information, including but not limited to protectible 

trade secrets, the disclosure of which might adversely affect a party’s or a Producing Party’s 

competitive position or business operations, or might adversely affect or prejudice the position 

taken by plaintiff in its defense of any underlying claim or action. The term “Confidential 

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Material” also encompasses filings that are presented to the Court or to any alternative dispute 

resolution proceeding that discuss, contain or otherwise refer to Confidential Material. 

2. A Producing Party may designate information as Confidential Material using the 

following protocols: 

a. In case of documents and the information contained therein, designation 

shall be made by stamping each page with a confidential designation. 

b. In the case of responses to interrogatories or requests for admissions and 

the information contained therein, designation shall be made by means of a statement at the 

conclusion of such responses specifying the responses or parts thereof which are designated as 

confidential. An appropriate legend shall be placed on each page of any set of responses to 

interrogatories or requests for admissions which contains information designated as confidential. 

c. In the case of depositions of persons who are currently or previously 

associated with or employed by a Producing Party, or persons who otherwise had or have access 

to Confidential Material, and the information contained in such depositions (including exhibits), 

designation of the portion of the transcript (including exhibits) which contains Confidential 

Material shall be made by a statement to such effect on the record in the course of the deposition, 

or within 45 days following receipt of the transcript either by the deposing party’s counsel, or by 

counsel for the Designating Party whose Confidential Material was the subject of the deposition. 

d. To the extent that a confidential designation is made with respect to 

deposition or other testimony that is recorded by stenographic means, the court reporter shall 

place a legend of confidentiality on the original and each copy of the transcript together with a 

statement identifying the pages or portions of the pages of the depositions which are designated 

as confidential. To the extent that a confidential designation is made with respect to deposition 

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or other testimony that is recorded by videographic means, the videographer shall place a legend 

of confidentiality on the outside of the video, and each copy thereof, together with a statement 

identifying the portions of the video which are designated confidential. 

3. All material produced in discovery in this action shall be used solely for purposes 

of this action, including any appeals. Except to the extent that it is required to be disclosed by 

judicial decision, all Confidential Material subject to this Order shall be kept in a confidential 

manner, with appropriate safeguards against dissemination, and may be disclosed to and 

disseminated among the following persons only: 

a. The parties’ attorneys, and the employees under the direct supervision of 

the parties’ attorneys, who are working on this action; 

b. Any person not employed by a party who is expressly retained by the 

party’s attorneys, to assist in the conduct of this litigation; 

c. Any director, officer, employee, auditor, taxing or regulatory authority or 

representative of a party who in the normal course of business would have access to the 

Confidential Material but for its confidential designation, or a reinsurer or any other person to 

whom a party has a business or legal obligation to provide such information; 

d. Any employee of a party who is required by such party to work directly on 

this litigation, but only in connection with such work; 

e. Any person from whom testimony is taken or may be taken in this 

litigation, except that such person may only see and retain copies of Confidential Material in 

preparation for or during his or her testimony; and 

f. The Court, court personnel, and court reporters involved in this litigation. 

4. Any person who makes any disclosure of Confidential Material permitted by this 

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Order shall advise each person to whom such disclosure is made of the terms of this Order and 

shall request assurances from that person that he or she will comply with the terms of this Order. 

5. Nothing herein shall prevent disclosure of Confidential Material as required by 

law or as compelled by order of any court. Nothing herein shall restrict any Producing Party’s 

use of its own Confidential Material. Nothing in this Order shall be construed in any way to 

control the use, dissemination, publication, or disposition by any party of documents or 

information that are received by that party outside of the discovery process in this action. 

6. A party may utilize Confidential Material in support of motions, briefs or other 

papers filed in this action, so long as appropriate steps are taken to ensure that such Confidential 

Material is treated in a manner consistent with this Order and that the Uniform Rules on 

Impoundment Procedure are followed. A party may utilize Confidential Material in connection 

with any hearing or other proceeding before the Court and may introduce such Confidential 

Material at trial. A party who intends to use Confidential Material at trial or hearing shall 

exercise best efforts to notify the Producing Party of its intent to do so at least fourteen (14) days 

prior to the trial or hearing, or as soon as practically possible before the trial or hearing at which 

the use of Confidential Material is contemplated. Confidential Material that is utilized in 

connection with briefs, motions or other papers filed with the Court, or that is utilized in trial or 

hearings before the Court, shall not lose its confidential status through such use. 

7. With respect to any Confidential Material designated in conformance with this 

Order, a party’s counsel may at any time serve a written “Notice of Objection” to such 

designation upon the Designating Party’s counsel (with copies to counsel for every other party). 

The Notice of Objection shall specify the materials which that objecting party believes are not 

properly classified as Confidential Material, and shall specify the reasons for declassification. 

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The Notice of Objection may state either that declassification is desired generally, or that it is 

desired for a specific purpose. 

8. Within 15 days of receipt of a Notice of Objection under Paragraph 7, above, the 

Designating Party shall review the material whose declassification is sought, and shall provide 

written notice to every party stating whether the Designating Party will agree to the 

declassification of such material or any part thereof. The objecting party and the Designating 

Party shall make a good faith attempt to resolve the dispute through personal consultation and 

reasonable attempts to resolve their differences in accordance with the Massachusetts Rules of 

Civil Procedure and the rules of this Court. Should these efforts prove unsuccessful in resolving 

the dispute, any party shall be free to seek declassification of the specified material by motion 

addressed to the Court. Such motion shall set forth a description of the nature of the designated 

material in question and the reasons why the movant believes it should be declassified. The 

Designating Party shall have the burden of demonstrating that the Confidential Material for 

which declassification is sought is in fact entitled to such designation under this Order. The 

designated material in question shall continue to be treated as Confidential Material subject to 

the terms of this Order until the Court acts on the motion, and thereafter, if the Court’s ruling 

does not declassify the material. 

9. A Producing Party’s failure to designate any particular information as 

Confidential Material in accordance with the terms of this Order shall constitute a waiver of that 

party’s assertion of confidentiality with respect to such information only if the producing party 

fails to designate such material as Confidential within thirty (30) days after being notified by 

another party that the material has not been designated confidential. At any time, and 

notwithstanding any other provision of this Order, a Producing Party may stipulate in writing, 

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with the assent of the other parties to this action, that particular information, inadvertently 

omitted from confidential designation, is in fact Confidential Material. 

10. Within thirty (30) days following the conclusion of this action and any appeals 

therefrom, the parties agree to return all Confidential Materials, including copies thereof, to the 

party by whom that Confidential Material was produced; or, at the receiving party’s election, to 

destroy all such materials and copies thereof. Within thirty (30) days thereafter, the Producing 

Party may, at its option, require any party hereto to submit a certification attesting to the fact that 

it has complied with the provisions of the preceding sentence. However, nothing in this Order 

shall limit an insurer’s right to maintain Confidential Materials necessary to the resolution of any 

reinsurance or regulatory proceedings. In the event an insurer needs to maintain Confidential 

Materials for reinsurance or regulatory purposes, that insurer shall, if requested, so notify the 

requesting party of the need to maintain the Confidential Materials. Any Confidential Materials 

retained for reinsurance or regulatory purposes shall be returned or destroyed once the 

Confidential Materials are no longer needed for reinsurance or regulatory purposes. 

11. The terms of this Order shall not be modified, supplemented or terminated except 

by agreement of all parties hereto. Should any party to this litigation, or any Producing Party, 

desire to modify, supplement or terminate this Order, all parties shall attempt, in good faith, to 

reach agreement as to such modification, supplementation or termination. Should such 

agreement not be reached, the party desiring modification, supplementation, or termination may 

seek appropriate relief from this Court. 

12. If information subject to a claim of privilege or any other ground on which 

production of such information should not be made to any party is inadvertently produced, such 

production shall in no way prejudice or otherwise constitute a waiver of, or estoppel as to, any 

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claim of privilege, work product or other ground for withholding production to which the 

producing party would otherwise be entitled, provided that the producing party gives written 

notice to the other party, within twenty-one (21) days of the date of learning of the inadvertent 

production, that the producing party claims the document or a portion thereof contains privileged 

information. The notice must state the nature of the privilege. 

13. Upon receipt of timely notice under Paragraph 12, above, the recipient of 

inadvertently produced material shall promptly return to the claiming party that material (or the 

portion thereof) as to which the claim of inadvertent production has been made, including any 

copies that are not destroyed. In the event that only part of the document is claimed to be 

privileged, the producing party shall furnish redacted copies of the document, redacting only the 

portion(s) claimed to be privileged, together with written notice. The party returning such 

material may then move the Court for an order compelling production of the material, but said 

motion shall not assert as a ground for entering such an order the fact or circumstances of the 

inadvertent production unless the producing party did not provide timely notice of the 

document’s inadvertent production. 

14. If any party to this Order receives from any third party a request or demand for 

production or disclosure of any Confidential Material (including, but not limited to, a subpoena, 

document request, or court order), the receiving party shall promptly give notice of that request 

or demand and furnish a copy thereof to the Designating Party and all other parties to this Order, 

so that any interested party may take appropriate steps to protect the confidentiality of the 

Confidential Material that is being sought. 

SO ORDERED: 

This _____ day of June, 2007. 

James R. Muirhead

25th

U.S. Magistrate Judge 

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