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Visuals Unlimited, Inc. v. John Wiley & Sons

February 8, 2012

VISUALS UNLIMITED, INC.
v.
JOHN WILEY & SONS, INC. AND JOHN DOE PRINTER 1-10



The opinion of the court was delivered by: Landya McCafferty United States Magistrate Judge

ORDER

Before the court are the parties' competing, proposed protective orders (doc. nos. 18-3 and 18-14). The dispute between the parties concerns whether the party who makes the designation that material is confidential under the protective order ("designating party") or the party who challenges the designation ("objecting party") should bear the initial burden of bringing a dispute about a designation before the court. Having considered the arguments made by counsel at the pretrial conference and the memoranda filed since that conference, the court concludes that the objecting party shall bear the initial burden of bringing any dispute regarding designation before the court.

The following process shall govern any such filing:

a. The objecting party shall notify the designating party in writing of any objection to the designation and the grounds therefor.

b. Within ten (10) days following the designating party's receipt of a written objection, the parties shall meet and confer and attempt to reach a resolution without court intervention.

c. To the extent an agreement cannot be reached, the designating party shall forward to the objecting party a detailed written explanation for each separate document (or category of documents) justifying the legal basis for the designation. The written explanation shall contain more than mere boilerplate; it shall provide meaningful, substantive justifications for the designation(s) at issue. This written explanation shall be forwarded to the objecting party no more than ten (10) days following the meet and confer.

d. Upon receipt of the designating party's written explanation, the objecting party may thereafter file a motion bringing the dispute before the court.

e. Once the objecting party has filed its motion, the designating party may then file a motion supporting the designation. Upon request, the court will permit the objecting party to file a reply to the designating party's motion.

f. The designating party shall bear the burden of persuasion on the question of whether good cause exists for the disputed material to continue to be treated as confidential.

g. Until the court issues a ruling, the disputed document(s) shall be treated as confidential under the terms of the protective order.

With the exception of paragraphs 12, 13, and 18, the parties' proposed protective order (doc. no. 18-5) is approved.*fn1

Accordingly, the court has issued a protective order on this date.

SO ...


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