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The CONFIDENTIAL Stamp

The CONFIDENTIAL Stamp. In litigation, each side produces* documents* in response to the other side’s discovery* requests. NB: Not all documents are discoverable. Some are privileged* and must be LISTED* but need not be produced (usually).* Produced documents

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The CONFIDENTIAL Stamp

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  1. The CONFIDENTIAL Stamp • In litigation, each side produces* documents* in response to the other side’s discovery* requests. • NB: Not all documents are discoverable. Some are privileged* and must be LISTED* but need not be produced (usually).* • Produced documents are stamped “CONFIDENTIAL” if they are protected by a Protective Order issued by the Court. * Ask me about the *s JULIA KRIPKE - CONFIDENTIAL STAMPS

  2. What is a protective order? • A protective order prohibits the disclosure or discovery of documents subject to it. (FRCP 26(c)(1)(A) 3rd sentence): “The court may … issue an order to protect a party … from annoyance, embarrassment, oppresion, or undue burden or expense… specifying terms … for the disclosure ….” • A standard TERM is that sensitive information such as company financial records and trade secrets (e.g., customer lists) will be stamped “confidential” and can be seen only by attorneys. Sometimes a higher level confidential stamp limits disclosure to outside counsel* only. JULIA KRIPKE - CONFIDENTIAL STAMPS

  3. The confidential stamp on the Fontirroche file history • The Fontirroche file histories are public record. They cannot be subject to a protective order. • The Fontirroche lawyers mis-stamped these documents as confidential. • Details for aspiring litigators: • Maybe these documents from the files of an attorney or executive, all of whose documents were routinely being stamped confidential. • If a public record document like a file history had handwritten notes by, e.g., an attorney or inventor, THOSE notes might be confidential or even privileged. How then to produce it? [A] Produce a CLEAN copy of the file history from whoever has one; &/or [B] Make a redacted* copy from the annotated one, and stamp it ‘REDACTED.’ (If asked, counsel must be honest about where this copy came from.) AND: Produce the annotated copy with a CONFIDENTIAL stamp – OR - List the annotated copy on a PRIVILEGED document list. depending on the nature of the annotations. JULIA KRIPKE - CONFIDENTIAL STAMPS

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