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ORDER re: Clarification of311 Order, in accordance with the oral pronouncement of this court, it is clear that no third party should be in possession of any of NASCAR or ISC's documents containing confidential or highly confidential information. Additionally, no third party should be in possession of the depositions of NASCAR and ISC's witnesses. Further, no third party should be in possession of NASCAR and ISC's expert reports. Finally, in accordance with this court's order of 7/1/04, no third party should be in possession of NASCAR and ISC's briefs. Concerning briefs, although the original confidentiality order appeared to exclude them from protection, the court finds that the agreement reached on the record on 7/1/04 supplementing the confidentiality order was intended to include briefs as well. Although it does not appear that any third party has possession of such materials, if a third party did possess the same, that third party would be in violation of this court's order. Kentucky Speedway is not entitled to obtain such wrongfully retained information. However, neither this court's Confidentiality Stipulation and Order nor this court's oral order preclude NASCAR and ISC from producing deposition transcripts (to the extent they exist) of their respective witnesses from the Ferko case to Kentucky Speedway, except that if the deposition transcripts have appended to them SMI's Confidential or Highly Confidential documents, the such Confidential or Highly Confidential documents should be redacted or deleted. Further, any of NASCAR and ISC's relevant documents, pleadings and expert reports from the Ferko case (to the extent they exist) which are in the possession of NASCAR and ISC should be produced to Kentucky Speedway; however, any information pertaining to SMI should be redacted or deleted. This court's rulings are subject to any relevancy objections to be raised in the US District Court for the Eastern District of Kentucky. Signed by Judge Richard A. Schell on 2/1/07. (ttm, )
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