040811protectiveorder

UNITED STATES OF AMRICA FEDERA TRAE COMMSSION OFFICE OF ADMISTRATIV LAW JUGES In the Matter of BASIC RESEARCH, LLC AG. WATERHOUSE, LLC KLEIN-BECKER USA, LLC NUTRASPORT, LLC SOY AGE DERMOGIC LABORATORIES, LLC BAN, LLC d//a BASIC RESEARCH, LLC OLD BASIC RESEARCH, LLC BASIC RESEARCH, AG. WATERHOUSE KLEIN-BECKER USA, NUTRA SPORT, and SOY AGE DERMOGIC LABORATORIS DENNIS GAY DANIEL B. MOWRY d//a AMRICAN PHYTOTHERAY RESEARCH LABORATORY, and MITCHELL K. FRIDLANER Respondents. nr. . r.\" ,j\ oJ' M;tfl"- \ \ .III.)$. 8!" ?!:Ctr\ir-r1 f)0. NTS 1'04' . , : 1 2DO . SfCRETAR'f Docket No. 9318 PROTECTIVE ORDER GOVERNING DISCOVERY MATERIAL F or the purose of protecting the interests of the paries and third paries in the above captioned matter against improper use and disclosure of confidential inormation submitted produced in connection with this matter: IT IS HEREBY ORDERED THAT this Protective Order Governing Confidential Material ("Protective Order ) shall govern the handling of all Discovery Material, as hereafter defmed. DEFINTIONS 1. "Matter" means the matter captioned In the Matter of Basic Research, LLC; A. G. Waterhouse, LLC; Klein-Becker USA, LLC; Nutrasport, LLC' Sovage Dermalogic Laboratories, LLC; BAN, LLC; Dennis Gay; Daniel B. Mowrey; and Mitchell K Friedlander Docket Number 9318, pending before the Federal Trade Commission, and all subsequent appellate or other review proceedings related thereto. 2. "Commission" or "FTC" means the Federal Trade Commssion, or any of its employees, agents, attorneys, and all other persons acting on its behalf, excluding persons retained as consultants or experts for puroses of ths Matter. 3. "Basic Research" means Basic Research, L.L.C., a limited liability company, existing, and doing business under and by virte of the State of Utah, with its principal place of business at 5742 West Harold Gatt Drive, Salt Lake City, UT 84116. 4. "AG. Waterhouse" means A.G. Waterhouse, L.L.C., a limited liability company, existing, and doing business under and by virte of the State of Utah, with its pricipal place of business at 5742 West Harold Gatt Drive, Salt Lake City, UT 84116. 5. "Klein-Becker" means Klein-Becker USA, L.L.C., a limited liability company, existing, and doing business under and by virte ofthe State of Utah, with its pricipal place of business at 5742 West Harold Gatty Drive, Salt Lake City, UT 84116. 6. "Nutrasport" means Nutrasport, L.L.C., a limited liability company, existing, and doing business under and by virte of the State of Utah, with its pricipal place of business 5742 West Harold Gatt Drive, Salt Lake City, UT 84116. 7. "Sovage" means Sovage Dermalogic Laboratories, L.L.c., a limited liability company, existing, and doing business under and by virue of the State of Utah, with its principal place of business at 5742 West Harold Gatt Drive, Salt Lake City, UT 84116. 8. "BAN" means BAN, L.L.C., a limited liability company, existing, and doing business under and by virte of the State of Utah, with its principal place of business at 5742 West Harold Gatt Drive, Salt Lake City, UT 84116 9. "Gay" means Denns Gay. 10. "Mowrey" means Danel B. Mowrey. 11. "Friedlander" means Mitchell K. Friedlander. 12. "Respondents" means Basic Research, A.G. Waterhouse, Klein-Becker, Nutrasport Savage, BAN, Gay, Mowrey, and Friedlander. 13. "Outside Counsel" means the law firms that are counsel of record for Respondents in ths Matter and their associated attorneys; or other persons regularly employed by such law firms including legal assistants, clerical staff, and inormation management personnel and temporar personnel retained by such la fmn(s) to perform legal or clerical duties, or to provide logistical litigation support with regard to this Matter. The term Outside Counsel does not include persons retained as consultants or experts for the puroses of this Matter. 14. "Counsel of Record" means counsel who have filed notices of appearance in this matter. 15. "Producing Pary" means a Par or Thd Par that produced or intends to produce Confidential Discovery Material to any of the Paries. For puroses of Confidential Discovery Material of a Thid Par that either is in the possession, custody or control of the FTC or has been produced by the FTC in this Matter, the Producing Par shall mean the Third Par that originally provided the Confidential Discovery Material to the FTC. The Producing Par shall also mean the FTC for puroses of any document or material prepared by, or on behalf of the FTC. 16. "Third Pary" means any natual person, parnership, corporation, association, or other legal entity not named as a par to ths Matter and their employees, directors, officers attorneys and agents. 17. "ExpertConsultant" means experts or other persons who are retained to assist Complaint Counselor Respondents' Counsel in preparation for trial or to give testimony at trial. 18. "Document" means the complete original or a tre, correct, and complete copy and any non-identical copies of any written or graphic matter, no matter how produced, recorded stored or reproduced, including, but not limited to, any writing, letter, envelope, telegraph meeting minute, memorandUm statement, affidavit, declaration, book, record, surey, map, study, handwritten note, workig paper, char, index, tabulation, graph, tariff, tape, data sheet, data processing card, pritout, microfilm, index, computer readable media or other electronically stored data, appointment book, diar, diar entry, calendar, desk pad, telephone message slip, note of interview or communcation or any other data compilation, including all drafts of all such documents. "Document" also includes every writing, drawing, graph, char, photograph, phono record, tape, compact disk, video tape, and other data compilations from which information can be obtained, and includes all drafts and all copies of every such writing or record that contain any commentar, notes, or marking whatsoever not appearing on the original. 19. "Discovery Material" includes without limitation deposition testimony, deposition exhbits, interrogatory responses, admssions, affidavits, declarations, documents produced pursuant to compulsory process or voluntarily in lieu thereof, and any other documents or inormation produced or given to one Par by another Par or by a Third Par in connection with discovery in this Matter. 20. "Confidential Discovery Material" means all Discovery Material that is designated by a Producing Par as confidential and that is covered by Section 6(f) of the Federal Trade Commssion Act, 15 U. C. 46(f), and Commssion Rule of Practice 10(a)(2), 16 C. R. 10(a)(2); or Section 26(c)(7) of the Federal Rules of Civil Procedure and precedents thereunder. Confidential Discovery Material shall include non-public commercial information the disclosure of which to Respondents or Thid Paries would cause substantial commercial har or personal embarassment to the disclosing pary. The following is a nonexhaustive list of examples of information that likely will qualify for treatment as Confidential Discovery Material: customer names; customer contact information; consumer complaints received by the Federal Trade Commission; strategic plans (involving pricing, marketing, research and development product roadmaps, corporate allances, or mergers and acquisitions) that have not been fully implemented or revealed to the public; trade secrets; customer-specific evaluations or data (e. prices, volumes, or revenues); personnel fies and evaluations; inormation subject to confidentiality or non-disclosure agreements; proprietar techncal or engineering information; proprietar or personal financial data or projections; any customer complaints received by the FTC or entities that forward these complaints to the FTC; and proprietar consumer, customer or market research or analyses applicable to curent or futue market conditions, the disclosure of which could reveal Confidential Discovery Material. 21. "Complaint Counsel" means Counsel of Record for the Federal Trade Commission and the Commission and its employees as needed in connection with their professional responsibilities. The term Complaint Counsel does not include persons retained as consultants or experts for the puroses of this Matter. TERMS AND CONDITIONS OF PROTECTIVE ORDER 1. ,Discovery Material , , or infonnation derived therefrom, shall be used solely byJhe , : , . .. .:. ; , ; _ 1- ' , ': - t. " " I , , - -I " , Paffi s for puroses 6ftfls Mattei, and shafI not be used :foi' oth r puro incl)idmg' with6'lt : .: , , " " 0: , , : ,, , ,: : : , . ; , , . . : . , , , 1 : " . . llriit tionany business or c6l1et.c",1 purose, except thafWiilnoti.ce tothe PrddllcingPar, a , , .. , , . . . I, ' . . , , ,:,. . Party may apply to theAdinistfativ Law Judge for approvarofthejl e ()tdisclosure of any . . ., . . , . , ,: 1 ' .. , . . , j.. , . . , . , ! , . ,. , . , - I : . .. , , . Discovery Material, or inormation derived therefrom, for aryother proceeding. Provided however, that in the event that the Par seeking to use Discovery Material in any other proceeding is granted leave to do so by the Administrative Law Judge, it will be required to take appropriate steps to preserve the confidentiality of such material. Additionally, in such event, the Commission may only use or disclose Discovery Material as provided by (1) its Rules of Practice, Sections 6(f) and 21 of the Federal Trade Commssion Act and any cases so construing them; and (2) any other legal obligation imposed upon the Commission. The Paries, in condiiCtmg discovery froinThird Paries , shall attach to such discovery requests a copy of this Protective Order and'a cover letter that will apprise such Third Paries of their rights hereunder. , v, 2. ' Thsi'iaragniph concerns the designation ofmaIeriiil as " Confidential Restricted Confidential, Attorney Eyes Only," and "Restricted Confidential, Attorney of Record Eyes Only. " (a) Designation of Documents as CONFIDENTIAL - FTC Docket No. 9318. Discovery Material may be designated as Confidential Discovery Material byProducing Parties by placingoll or affixing, in such maner as will not interfere with the legibility thereof the notation "CONFIDENTIA - FTC DocketNo. 9318" (or other similar notation containing a reference to this Matter) to the first page of a docUJent containing such Confidential Discovery Material, or, by Paries by instructing the court reporter to denote each page of a transcript containing such Confidential Discovery Material as Confidential. Such designations shall be made within foureen days from the intial production or deposition and constitute a good-faith representation by counsel for the Par or Third Par makg the designations that the document constitutes or contains Confidential Discovery Material. (b) Designation of Documents as "RESTRICTED CONFIDENTIA ATTORNEY EYES ONLY - FTC Docket No. 9318. In order to permit Producing Paries to provide additional protection for a limited number of documents that contain highly sensitive commercial information, Producing Paries may designate documents as "RESTRICTED CONFIDENTIA, ATTORNY EYES ONLY - FTC Docket No. 9318" by placing on or affixing such legend on; each page of the document. It is anticipated that documents to be designated Restricted Confidential, Attorney Eyes Only may include certain marketing plans, sales forecasts, revenue and profit data, business plans, distribution arangements and agreements, the fmancial terms of contracts, operating plans, pricing and cost data, price terms, analyses of pricing or competition inormation, and limited proprietar personnel information; and that this paricularly restrctive designation is be utilized for a limited number of documents. Documents designated Restricted Confidential Attorney Eyes Only may be disclosed to witnesses or deponents at trial or deposition, Outside Counsel, Complaint Counsel, and to Experts/Consultants (paragraph 4( c), hereof). Such materials may not be disclosed to Experts/Consultants or to witnesses or deponents at trial or deposition (paragraph 4( d) hereof), except in accordance with subsection (d) of this paragraph 2. In all other respects, Restricted Confidential, Attorney Eyes Only material shall be treated as Confidential Discovery Material and all references in this Protective Order,and in the exhbit hereto to Confidential Discovery Material shall include documents designated Restricted Confidential, Attorney Eyes Only. (c) Disclosure of Restrcted Confidential, Attorney Eyes Only Material to Witnesses or Deponents at Trial or Deposition If any Pary desires to discl,?se Restrcted Confidential, Attorney Eyes Only material , witnesses or deponents at trial or deposition, the disclosing Par shall notify the Producing Pary of its desire to disclose such material. ' Such notice shall identify the specific individual to whom the Restricted Confidential, Attorney Eyes Only material is to be disclosed. Such identification shall include, but not be limited to, the full name and professional address and/or affiliation of the identified individual. The Producing Par may object to the disclosure of the Restricted Confidential, Attorney Eyes Only material within five business days of receiving notice of an intent to disclose the Restricted Confidential, Attorney Eyes Only material to an individual by providing the disclosing Pary with a written statement of the reasons for objection. If the Producing Par timely objects, the disclosing Par shall not disclose the Restricted Confidential, Attorney Eyes Only material to the identified individual, absent a written agreement with the Producing Par, order of the Adminstrative Law Judge or ruing on appeal. The Producing Pary lodging an objection and the disclosing Par shall meet and confer in good faith in an attempt to determine the terms of disclosure to the identified individual. If at the end of five business days of negotiating the paries have not resolved their differences or if counsel determine in good faith that negotiations have failed, the disclosing Par may make written application to the Adminstrative Law Judge as provided by paragraph 6(b) of this Protective Order. Ifthe Producing Par does not object to the disclosure of Restricted Confidential Attorney Eyes Only material to the identified individual within five business days, the disclosing Par may disclose the Restrcted Confidential, Attorney Eyes Only material to the identified individual. (d) Disputes Concernng Designation or Disclosure of Restricted Confidential, Attorney Eyes Only Material. Disputes concernng the designation or disclosure of Restricted Confidential, Attorney Eyes Only material shall be resolved in accordance with the provisions of paragraph 6. (e) No Presumption or Inference. No presumption or other inference shall be drawn that material designated Restricted Confidential, Attorney Eyes Only is entitled to the protections of this paragraph. (f) Due Process Savings Clause. Nothng herein shall be used to argue that a Par' s right to attend the trial of, or other proceedings in, this Matter is affected in any way by the designation of material as Restricted Confidential, Attorney Eyes Only. 3. All documents heretofore obtained by the. Commission through compulsory process or voluntarily from any Par or Third Par, regardless of whether designated confidential by the Par or Thid Par, and transcripts of any investigational hearings, interviews and depositions that were obtained during the pre-Complaint stage of ths Matter shall be treated as Confidential " in accordance with paragraph 2(a) of this Order. Complaint Counsel and Outside Counsel wil continue to confer on the most efficient procedure for Paries and Third Paries to designate documents or materials that the Commission obtained during the pre-Complaint investigation as Restricted Confidential, Attorney Eyes Only in an effort to avoid imposing a burden that might prove to be unecessar. In any event, Complaint Counsel and Outside Counsel shall confer on this subject again no later than thirt days from the date of ths Order. At that time or later, if either Complaint Counselor Outside Counsel conclude that they canot reach an agreement on a procedure, then the paries wil jointly set forth their positions on amending the protective order on this issue for the Administrative Law Judge s review. Both counsel agree that resolution of the procedures set forth in paragraph shall not delay or affect discovery deadlines and compliance. 4. Confidential Discovery Material shall not, directly or indirectly, be disclosed or otherwse provided to anyone except to: (a) Complaint Counsel and the Commission, as permitted by the Commission s Rules of Practice; (b) (c) Outside Counsel; Experts/Consultants (in accordance with paragraphs 5 and 7 hereto); (d) witnesses or deponents at trial or deposition (in accordance with paragraph 7 hereto); (e) (f) the Administrative Law Judge and personnel assisting him; cour reporters and deposition transcript reporters; (g) judges and other cour personnel of any cour having jurisdiction over any appeal proceedings involving ths Matter; and (h) any author or recipient of the Confidential Discovery Material (as indicated on the face of the document, record or material), and any individual who was in the direct chain of supervision of the author at the time the Confidential Discovery Material was created or received. 5. Confidential Discovery Material, including material designated as "Confidential" and Restricted Confidential, Attorney Eyes Only," shall not, directly or indirectly, be disclosed or otherwise provided to an ExpertConsultant, uness such ExpertConsultant agrees in writing: (a) (b) (c) (d) to maintain'such Confidential Discovery Material in separate locked rooms or locked cabinet(s) when such Confidential Discovery Material is not being reviewed; to return such Confidential Discovery Material to Complaint Counselor Respondents' Outside Counsel , as appropriate, upon the conclusion of the ExpertConsultant's assignment or retention or the conclusion of ths Matter; to not disclose such Confidential Discovery Material to anyone except as permitted by the Protective Order; and to use such Confidential Discovery Material and the information contained therein solely for the purose of rendering consulting services to a Par to this Matter, including providing testimony in judicial or admstrative proceedings arising out of this Matter. 6. This paragraph governs the procedures for the following specified disclosures and challenges to designations of confidentiality: (a) Challenges to Confidentiality Designations. If any Par seeks to challenge a Producing Pary s designation of material as Confidential Discovery Material or any other restriction contained within this Protective Order, the challenging Par shall notify the Producing Par and all Paries to this action of the challenge to such designation. Such notice shall identify with specificity (i. , by document control numbers deposition transcript page and line reference, or other means sufficient to locate easily such materials) the designation being challenged. The Producing Par may preserve its designation within five business days of receiving notice of the confidentiality challenge by providing the challenging Pary and all Paries to this action with a written statement of the reasons for the designation. If the Producing Par timely preserves its rights, the Paries shall continue to treat the challenged material as Confidential Discovery Material, absent a written agreement with the Producing Par or order of the Administrative Law Judge. The Producing Pary, preserving its rights, and the challenging Part shall meet and confer in good faith in an attempt to negotiate changes to any challenged designation. If at the end of five business days of negotiating the paries have not resolved their differences or if counsel determine in good faith that negotiations have failed, the challenging Par may make written application to the Admnistrative Law Judge as provided by paragraph 6(b) of this Protective Order. If the Producing Par does not preserve its rights within five business days, the challenging Par may alter the designation as contained in the notice. The challenging Par shall notify the Producing Par and the other Paries to this action of any changes in confidentiality designations. Regardless of confidential designation, copies of published magazine or newspaper aricles, excerpts from published books, publicly available tariffs, and public documents filed with the Securities and Exchange Commission or other governental entity may be used by any Par without reference to the procedures of this subparagraph. (b) Resolution of Disclosure or Confidentiality Disputes. Ifnegotiations under subparagraph 6(a) of ths Protective Order have failed to resolve the issues, a Par seeking to disclose Confidential Discovery Material or challenging a confidentiality designation or any other restriction contained withn this Protective Order may make written application to the Adminstrative Law Judge for relief. Such application shall be served on the Producing Pary and the other Pary, and be accompamed by a certification that the meet and confer obligations ofthis paragraph have been met, but that good faith negotiations have failed to resolve outstanding issues. The Producing Par and any other Paries shall have five business days to respond to the application. Whle an application is pending, the Paries shall maintain the pre-application status of the Confidential Discovery Material. Nothing in this Protective Order shall create a presumption or alter the burden of persuading the Administrative, Law Judge of the proprietar of a requested disclosure or change in designation. 7. Confidential Discovery Material shall not be disclosed to any person described in subparagraphs 4(c) and 4(d) of ths Protective Order until such person has executed and transmitted to Respondents' Counsel or Complaint Counsel , as the case may be, a declaration or declarations, as applicable, in the form attached hereto as Exhbit " " which is incorporated herein by reference. Respondents' Counsel and Complaint Counsel shall maintain a fie of all such declarations for the duration of the litigation. Confidential Discovery Material shall not be copied or reproduced for use in this Matter except to the extent such copying or reproduction is reasonably necessar to the conduct of this Matter, and all such copies or reproductions shall be subject to the terms ofthis Protective Order. If the duplication process by which copies or reproductions of Confidential Discovery Material are made does not preserve the confidentiality designations that appear on the original documents, all such copies or reproductions shall be stamped "CONFIDENTIAL - FTC Docket No. 9318. 8. The Paries shall not be obligated to challenge the propriety of any designation or treatment of information as confidential and the failure to do so promptly shall not preclude any subsequent objection to such designation or treatment, or any motion seeking permission to disclose such material to persons not referred to in paragraph 4. If Confidential Discovery Material is produced without the legend attached, such document shall be treated as Confidential from the time the Producing Par advises Complaint Counsel and Respondents' Counsel in writing that such material should be so designated and provides all the Paries with an appropriately labeled replacement. The Paries shall retu promptly or destroy the unarked documents. 9. If the FTC: (a) receives a discovery request that may require the disclosure by it of a Third Par' s Confidential Discovery Material; or (b) intends to or is required to disclose voluntarily or involuntarly, a Third Par's Confidential Discovery Material (whether or not such disclosure is in response to a discovery request), the FTC promptly shall notify the Third Par of either receipt of such request or its intention to disclose such material. Such notification shall be in writing and shall be provided by facsimile or electronic mail and by federal express or other overnight courier service to the Thid Par at least five business days before production, and shall include a copy of this Protective Order and a cover letter that wil apprise the Thrd Par of its rights hereunder. 10. If any person, including the Commission, receives a discovery request or a subpoena (excluding investigative subpoenas from a federal or state law enforcement agency) in another proceeding that may require the disclosure of a Producing Par' s Confidential Discovery Material, the par receiving the discovery request or subpoena promptly shall notify the Producing Par of receipt of such request. Such notification shall be in writing and shall be provided by facsimile or electronic mail by federal express or other overnght courier service by the Producing Par at least five business days before production, and shall include a copy of ths Protective Order and a cover letter that wil apprise the Producing Par of its rights hereunder. The Producing Par shall be solely responsible for asserting any objection to the requested production. Nothing herein shall be constred as requirg the recipient of the subpoena or discovery request or anyone else covered by this Order to challenge or appeal any such order requiring production of Confidential Discovery Material, or to subj ect itself to any penalties for noncompliance with any such order, or to seek any relief from the Admnistrative Law Judge or the Commssion. 11. This Order governs the disclosure of information durg the course of discovery and does not constitute an in camera order as provided in Section 3.45 of the Commission s Rules of Practice, 16 C. R. ~ 3.45. 12. Nothing in this Protective Order shall be constred to conflict with the provisions of Sections 6, 10, and 21 of the Federal Trade Commission Act, 15 U. C. ~~ 46, 50, 57b- , or with Rules 3. 3.45 or 4. 11 (b)-(e), 16 C.F.R. 9~ 3.22, 3.45 and 4. 11 (b)-(e). Any Par or Producing Pary may move at any time for in camera treatment of any Confidential Discovery Material or any portion of the proceedings in this Matter to the extent necessar for proper disposition of the Matter. An application for in camera treatment must meet the standards set forth in 16 C. R. ~ 3.45 and explained in In re Dura Lube Corp. 1999 FTC LEXIS 255 (Dec. 23 , 1999) and In re Hoechst Marion Roussel, Inc. 2000 FTC LEXIS 157 (Nov. 2000) and 2000 FTC LEXIS 138 (Sept. 19 2000) and must be supported by a declaration or affidavit by aperson qualified to explain the natue of the dpc11erits. 13. At the conclusion of this Matter, Respondents' Counsel shall retu to the Producing Par, or destroy all originals and copies of documents and all notes, memoranda, or other papers containing Confidential Discovery Material which have not been made par of the public record in this Matter. Complaint Counsel shall dispose of all documents in accordance with Rule 4. 16 C. R. ~ 4. 12. 14. The provisions of this Protective Order, insofar as they restrict the communcation and use of Confidential Discovery Material shall, without written permission of the Producing Par or fuher order of the Admistrative Law Judge hearing this Matter, continue to be binding after the conclusion of this Matter. 15. This Protective Order shall not restrct in any way the disclosure by a Producing Par or its Counsel of such Producing Pary s Confidential Discovery MateriaL ! Tht; right of the Administrative Law Judge, the Commssion, and reviewig cours to disclose information afforded in camera treatment or Confidential Discovery Material, to the extent necessar for proper disposition of the proceeding, is specifically reserved pursuant to Rule 3.45, 16 C. R. ~ 3.45. 16. The production or disclosure of any Discovery Material made after entry of this Protective Order which a Producing Par claims was inadvertent and should not have been produced or disclosed because of a privilege will not automatically be deemed to be a waiver of any privilege to which the Producing Par would have been entitled had the privileged Discovery Material not inadvertently been produced or disclosed. In the event of such claimed inadvertent production or disclosure, the following procedures shall be followed: (a) The Producing Pary may request the retu of any such Discovery Material within twenty days of discovering that it was inadvertently produced or disclosed (or inadvertently produced or disclosed without redacting the privileged content). A request for the retu of any Discovery Material shall identify the specific Discovery Material and the basis for asserting that the specific Discovery Material (or portions thereof) is subject to the attorney-client privilege or the work product doctrine and the date of discovery thatthere had been an inadvertent prod ction or disclos (b) If a Producing Par requests the retu, pursuant to this paragraph, of any such Discovery Material from another Par, the Par to whom the request is made shall retur immediately to the Producing Par all copies of the Discovery Material withi its possession; custody, or control-including all copies in the possession of experts, consultants, or others to whom the Discovery Material was provided-uness the Para,sked tQ retu the Discovery Material in good faith reasonably believes that the Discovery Material is not privileged. Such good faith belief shall be based on either (i) a facial review of the Discov ry Material, or (ii) the inadequacy of any explanations provided by the Producing Par, and shall not be based on an arguent that production or disclosure of the Discovery Material waived any privilege. In the event that only portions of the Discovery Material contain privileged subject matter, the Producing Par shall substitute Cl redacted version of the Discovery Material at the time of makng the request for the retu ofthe requested Discovery Material. (c) Should the Par contesting the request to retur the Discovery Material pursuant to this paragraph decline to retu the Discovery Material, the Producing Par seeking retu of the Discovery Material may thereafter move for an order compelling the retu of the I)iscovery Material. In any such motion, the Producing Par shall have the burden of showig that the Discovery Material is privileged and that the production was inadvertent. Such motion shall be fied within five business days of the refuSal of the contesting par to retu the Discovery Material in question. Upon notice of the claim of privilege, the contesting Pary shall make no fuer use and shall not fuher disclose the material in question, until the lapse of this five business day period without a motion being filed or until resolution of the motion by the Adminstrative Law Judge. 17. Entr of the foregoing Protective Order is without' prejudice to the right of the Paries or Third Paries to apply for fuher protective orders or for modification of any provisions of this Protective Order. ORDERED: ephen J. McGui Chief Adminstrative Law Judge August 11 , 2004