1. 10/13/08JULIA KRIPKE - CONFIDENTIAL STAMPS1 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

2. 10/13/08JULIA KRIPKE - CONFIDENTIAL STAMPS2 What is a protective order? A protective order prohibits the disclosure or discovery of documents subject to it. (FRCP 26(c)(1)(A) 3 rd sentence):FRCP 26(c)(1)(A) “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.

3. 10/13/08JULIA KRIPKE - CONFIDENTIAL STAMPS3 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.