COOPER v. IBM PERSONAL PENSION PLAN

G. PATRICK MURPHY, Chief Judge, District

Upon consideration of defendants' motion for entry of a protective order, it is hereby ORDERED that:

1. All Non-public documents made available by the parties, Wyatt or Mercer in connection with this litigation in response to interrogatories, document requests, subpoenas or other discovery requests, as deposition exhibits or as proposed trial exhibits, which contain Trade Secrets or Private Employee Information, may be designated as confidential. (Hereinafter "Confidential Documents.")

a. "Non-public" includes all documents or information produced by IBM, Wyatt, or Mercer that are not freely disseminated to the public (e.g., press releases or annual reports), filed with and readily obtainable from a government body or agency, or available upon demand to IBM shareholders or pension plan participants.

b. The term "Trade Secrets" as used herein includes all documents or information produced by IBM, Wyatt or Mercer that meet the definition of "Trade secret" contained in section 2(d) of the Illinois Trade Secrets Act. That Act defines "Trade secrets" as:

[I]nformation, including but not limited to, technical or non-technical data, a formula, pattern, compilation, program, device, method, technique, drawing, process, financial data or list of actual or potential customers or suppliers that:

(i) is sufficiently secret to derive economic value, actual or potential, from not being generally known to other persons who can obtain economic value from its disclosure or use; and

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

c. "Private Employee Information" includes individual name, address, phone number, social security number, serial number, compensation information, and benefit information for IBM employees.

2. When a party to this agreement has a good faith belief that a document contains Trade Secrets the document shall be designated as confidential by marking the words "Confidential" or "Confidential Cooper v. IBM" on the face of the document in a conspicuous location, and on each page of any document that contains such confidential information. Because documents containing Private Employee Information are readily identifiable, any such document is deemed confidential without regard to whether it has been so marked.

3. The designation "Confidential" or "Confidential Cooper v. IBM" may be made at the time of copying of documents for production to the receiving party, and need not be made before the documents are made available for inspection. Any confidential designation that is inadvertently omitted at the time of copying may be corrected by written notification to counsel for all receiving parties, and all receiving parties shall thereafter mark and treat all copies of the material as Confidential Documents. Materials designated as confidential after copying shall be fully subject to this Stipulation and Protective Order as if they had been initially so designated.

4. Any deposition testimony that addresses Trade Secrets or Private Employee Information may be designated as confidential if an attorney representing the parties, Wyatt or Mercer states on the record during the deposition that the testimony given is confidential, or by designating the deposition transcript or portions thereof as "Confidential" within thirty (30) days after that counsel has received the deposition transcript. All information disclosed during the deposition shall be deemed to be confidential until the expiration of that thirty (30) day period, whether or not any portion of the transcript has been so designated previously. (Hereinafter "Confidential Deposition Testimony.")

5. The parties, Wyatt and Mercer shall not use Confidential Documents or Confidential Deposition Testimony (collectively "Confidential Litigation Materials") except in connection with this litigation and shall not disclose the Confidential Litigation Materials to any person except as provided in Paragraph 6.

6. With the exception of court personnel and court reporters, inspection and review of Confidential Litigation Materials shall be limited to the named parties, Wyatt, Mercer, their counsel, their employees and consultants or experts retained by the parties to assist in the preparation of this case for trial. This paragraph shall not, however, preclude the showing of any document or the disclosure of any information to a non-party witness during deposition or trial, provided such witness is not given a copy of any such document to take from the place of deposition or trial.

7. The use of confidential documents or information derived therefrom by persons entitled to access pursuant to Paragraph 6 above shall be limited solely and exclusively to the prosecution of this litigation and for no other purpose. Nothing in this order shall preclude the parties from submitting Confidential Litigation Materials to the Court as deposition or trial exhibits or in connection with motions or other papers filed with the Court.

8. Prior to providing an expert or consultant with access to Confidential Litigation Materials pursuant to the provisions of this Stipulation and Protective Order, the parties to this agreement shall require that the expert or consultant to be given access to the material execute a written acknowledgement that he or she understands the terms of the Stipulation and Protective Order and agrees to abide by them. This written acknowledgement should be in the form prescribed in Exhibit A, attached hereto.

9. No part or parts of the restrictions imposed by paragraphs 1 through 8 above may be terminated except by a written stipulation by the parties hereto or by an Order of this Court for good cause shown.

10. Nothing in this Stipulation and Protective Order shall be deemed to preclude a party to this agreement from seeking and obtaining, upon an appropriate showing, such additional protection with respect to any Confidential Litigation Materials as it may deem appropriate. At the time of a filing or written ten (10) days thereafter, a party may file a motion to seal filings containing Confidential Litigation Materials that the moving party demonstrates to be private employee information or trade secrets as defined by section 2(d) of the Illinois Trade Secrets Act, and the opposing party and/or any interested member of the public may oppose any such motion within 10 days of filing, or within such other time period approved by the Court.

11. A party (or aggrieved entity permitted by the court to intervene for such purpose) may apply to the court for a ruling that a document (or category of documents) marked as confidential is not entitled to such status and protection under the law. The party or other person that designated the document as confidential shall be given notice of the application and an opportunity to respond. To maintain confidential status, the proponent of confidentiality must show by a preponderance of the evidence that there is good cause for the document to have such protection under the law.

12. After the final termination of these proceedings, the provisions hereof relating to the access and use of Confidential Litigation Materials shall continue to be binding upon all persons entitled to access under the terms of this Stipulation and Protective Order. Confidential Litigation Materials, and all copies, summaries, and notes thereof, whether in the possession of a named party, Wyatt, Mercer or in the possession of their counsel or any experts or consultants retained by them, shall be returned to the party producing the discovery.

13. If any person produces in discovery any information subject to attorney-client privilege, work product immunity, or any other privilege or protection from discovery, the producing person may (promptly upon learning of such production) notify the receiving party(ies) of such production. Upon such notification: the receiving party(ies) shall promptly return to the producing person all such information (including, without limitation, any documents containing or comprising such information); the information (including, without limitation, any documents containing or comprising such information) shall continue to be privileged, protected, and/or immune; and no use shall be made of such information (including, without limitation, any documents containing or comprising such information) by the receiving party(ies), nor shall it be disclosed to anyone by the receiving party(ies). Nothing herein shall be construed to preclude any party from arguing that information is not privileged or protected, but the possibility of such an argument shall not relieve a party of its obligation to comply with this paragraph.

14. Nothing herein shall be construed to prevent Wyatt or Mercer from using their own documents to carry on their business.

IT IS SO ORDERED.

Exhibit A Agreement Concerning Confidential Litigation Materials

I hereby acknowledge that: I have read the attached Stipulation and Protective Order entered in the United States District Court for the Southern District of Illinois in the Cooper v. IBM litigation, Civil Action No. 99-829-GPM; I understand the terms of the Stipulation and Protective Order and agree to comply with an be bound by those terms; I understand that a violation of those terms could be punishable as a contempt of court.

I consent to the jurisdiction of the United States District Court for the Southern District of Illinois for enforcement of the Stipulation and Protective Order.

Date: _________________ __________________________ Signature

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