Plaintiff AHPW, Inc. ("AHPW"), has moved for a protective order under Rule 26(c) of the FSM Rules of Civil Procedure. The FSM and Pohnpei have filed a joint response.
AHPW asks for restrictions on how its confidential customer lists are to be disclosed to the defendants under item 23 of the FSM's discovery request filed on October 19, 2000. Rule 26(c)(7) provides that the court may order "that a trade secret or other confidential . . . commercial information not be disclosed or be disclosed only in a designated way." The crafting of an appropriate order to protect the disclosure of confidential information lies within the trial court's discretion. Centurion Indus., Inc. v. Warren Steurer & Assocs., 665 F.2d 323, 326 (10th Cir. 1981). Specifically, in Turmenne v. White Consolidated Industries, Inc., 266 F. Supp. 35, 37 (D. Mass. 1967), the court held that customer information "be revealed only to defense counsel active in this case and to persons selected by them to assist them in handling this case and may be used by them and their assistants only for purposes of this litigation." An additional protective measure employed by the court in United States v. International Business Machines Corp., 82 F.R.D. 183, 184 (S.D.N.Y. 1979) was to require each person permitted access to confidential information to submit an affidavit stating that he or she would abide by the terms of the protective order.
The material requested by the FSM under item 23 of its discovery request filed on October 19, 2000, will be disclosed on the following terms. No later than 30 days from the date hereof, the requested discovery will be submitted to Mr. Anthony Welch, attorney for the FSM. Initially, access to the discovery materials will be limited to Mr. Welch, and he will make no further disclosure of the information at that time. He will review the material and submit to the court a list of the individuals who require access to the information, and for what general purposes. He will also apprise the court generally of the quantity of material involved. If the proposed further disclosure to those persons appears reasonable under all the circumstances, the court will direct the named individuals to submit affidavits to the court. In their affidavits they will state that they will use the information only for the limited purpose of this litigation; and that they agree not to disclose the information to or discuss it with persons other than Mr. Welch and the persons appearing on the list that Mr. Welch submits to the court.
All persons given access to the confidential information are to be aware from the outset that if
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they violate the protective order, they will be subject to sanction.
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