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United States v. Philip Morris Inc.

November 15, 2000

UNITED STATES OF AMERICA,
PLAINTIFF,
V.
PHILIP MORRIS INCORPORATED, ET AL.,
DEFENDANTS.



The opinion of the court was delivered by: Gladys Kessler, U.S. District Judge

ORDER #36*fn1

Addendum to Protective Order for Highly Sensitive Information

Upon consideration of the parties' numerous submissions regarding the provision of additional protection for highly sensitive materials, the oral representations of counsel, and the entire record herein, it is this 15th day of November 2000, ORDERED that:

1. This Addendum shall supplement the Court's Protective Order Governing Confidential Information (Order #7, filed March 3, 2000) ("Protective Order"), to provide additional protection for Highly Sensitive Trade Secret Material and Information. All of the terms described in the present Addendum shall have the same meaning and applicability as those used in the Protective Order, except to the extent that this Addendum specifically provides further protection to certain material and information.

2. The further protections of this Addendum are strictly limited to material and information which are both Trade Secrets and Highly Sensitive.

"Trade Secret" shall be as defined in Paragraph 3 of the Protective Order: i.e., information, including a formula, pattern, compilation, program, device, method, technique or process that

(a) derives independent economic value, actual or potential, from not being generally known to the public or to other persons who can obtain economic value from its disclosure and use; and

(b) is the subject of efforts that are reasonable under the circumstances to maintain its secrecy.

"Highly Sensitive" shall be defined as material or information which is so proprietary or competitively sensitive that its disclosure to a competitor would cause irreparable competitive injury. For purposes of this Addendum, Highly Sensitive Trade Secret Material and Information shall be divided into two categories: Category II (Formula Information, as defined in Paragraph 10 herein) and Category I (all other information).

3. Any party may designate material or information as Highly Sensitive Trade Secret upon a good faith basis after reasonable due diligence that the material or information meets the criteria of Paragraph 2 of this Addendum. Nothing in this Addendum, however, creates a presumption or implies that any material or information designated by a party as Highly Sensitive Trade Secret actually meets the criteria of Paragraph 2, and such determination may be made at a later time by this Court.

4. Unless the additional protections of Paragraph 10 of the Addendum are sought (i.e., the material or information is Category II), the producing party shall designate material or information as Highly Sensitive Trade Secret by placing or affixing on the material or information in a manner which will not interfere with its legibility the words "[INITIALS OF DESIGNATING PARTY] - CONFIDENTIAL - CATEGORY I: US v. PM, 99CV2496."

5. Category I material or information shall be produced in the following manner:

a. The producing defendant shall produce one true and correct copy of such material or information to a Designated Attorney or Designated Staff person. A "Designated Attorney" is defined as an attorney who is a full-time employee of the Department of Justice, who represents the United States in the present litigation, and who has a need to review Category I information for purposes of the present litigation. A "Designated Staff" person is defined as a non-attorney who is a full-time employee of the Department of Justice, who is assisting a Designated Attorney in the present litigation, and who has a need to review Category I information for purposes of the present litigation.

b. Such material or information shall be produced and maintained in a locked, windowless, and otherwise secure room, on premises exclusively occupied by Department of Justice personnel. Such premises may consist of any floor, area, or suite of offices in a building so long as such area, floor, or suite of offices are exclusively occupied by Department of Justice personnel. Access to such premises shall also require key card access, and shall be limited to Designated Attorneys and Designated Staff persons.

c. All offices of Designated Attorneys and Designated Staff persons shall be made sufficiently secure and isolated from other Department of Justice personnel, so as to prevent the accidental release of such information. Designated Attorneys and Designated Staff persons may remove and make as many copies as they deem appropriate of Category I material or information, provided that such copies remain at all times in the secure offices of Designated Attorneys or Designated Staff persons, or are removed from the premises pursuant to another provision of this Addendum.

d. Only Designated Attorneys, and not more than fifteen (15) Designated Staff persons, shall have access to copies of Category I material and information.

6. No person shall disclose or permit the disclosure, in any form whatsoever, of any Category I material or information to any other person or entity, except in the following circumstances:

a. Disclosure may be made to the Court and its personnel without restriction. Paragraph 11 of the Protective Order shall apply in its entirety to any such filing of a document containing Category I information or information derived from Category I information, except that the cover page of the filed document shall be marked: "[INITIALS OF DESIGNATING PARTY] - CONFIDENTIAL - CATEGORY I: US v. PM, 99CV2496."

b. Disclosure may be made to counsel in this action and staff persons employed by such counsel, provided that prior to disclosure, each such person must agree to be bound by the terms of the Protective Order and this Addendum by executing the Confidentiality Agreement annexed hereto as Exhibit A.

c. Disclosure may be made to any officer, director, or employee of any party who is providing assistance in connection with this litigation, to the extent necessary to render such assistance, provided that:

i. Prior to disclosure, each such person must agree to be bound by the terms of the Protective Order and this Addendum by executing the Confidentiality Agreement annexed hereto as Exhibit A; and

ii. Disclosure may not be made to any officer, director, or employee of any party which is a manufacturer of cigarettes, or which is currently a corporate affiliate of a manufacturer of cigarettes, absent agreement of the party producing and designating the Category I material or information or order of the Court for good cause shown.

d. Disclosure may be made to persons whose depositions are taken by any party so long as such disclosure is made during the course of the deposition, provided that:

i. Prior to disclosure, each such person must agree to be bound by the terms of the Protective Order and this Addendum by executing the Confidentiality Agreement annexed hereto as Exhibit A; and

ii. Disclosure of Category I material or information produced by one party may not be made to any deponent who is currently an officer, director, or employee of any other party which is a manufacturer of cigarettes, or which is currently a corporate affiliate of a manufacturer of cigarettes, absent agreement of the party producing and designating the Category I material or information or order of the Court for good cause shown.

e. Disclosure may be made to consultants, investigators, or experts (collectively "experts") employed by the parties or their counsel to assist in the preparation and trial of this litigation, provided that:

i. Prior to disclosure, each such person must agree to be bound by the terms of the Protective Order and this Addendum by executing the Confidentiality Agreement annexed hereto as Exhibit A; and

ii. Disclosure of Category I material or information produced by one party may not be made to any expert who is currently an officer, director, or employee of any other party which is a corporate affiliate of a manufacturer of cigarettes, absent agreement of the party producing and designating the Category I material or information of the Court for good cause shown; and

iii. Disclosure of Category I material or information may not be made to any expert who has been determined by a Court or other competent tribunal to have violated the terms ...


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