Daniel Defense, Inc v. Remington Outdoor Company, Inc. et al

Filing 30

Stipulated Protective ORDER granting 29 Joint MOTION for Entry of Stipulated Protective Order. Signed by Magistrate Judge G. R. Smith on 12/7/15. (wwp)

Case 4:15-cv-00135-JRH-GRS Document 20-1 Filed 07/27/15 Page 1 of 15

UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF GEORGIA
SAVANNAH DIVISION

DANIEL DEFENSE, INC.,
Plaintiff,
Civil Action No. 4:15-cv-00135-JRH-GRS

vs.
REMINGTON ARMS COMPANY, LLC,
Defendant.

STIPULATED PROTECTIVE ORDER
Pursuant to agreement between Plaintiff Daniel Defense, Inc. and Defendant
Remington Arms Company, LLC and with the approval of the Court, this Protective
Order shall govern the production of documents, deposition testimony, and information
designated as Confidential by a party in this action.

I.

PURPOSE OF THE PROTECTIVE ORDER
The purpose of this Protective Order is to provide a means for limiting access to,

and the use and disclosure of, Confidential documents, deposition testimony, and
information produced in this action.

II.

DESIGNATION OF CONFIDENTIAL DOCUMENTS, DEPOSITION
TESTIMONY, AND INFORMATION
Any party or non-party who either produces documents or information, provides

written discovery responses, or gives deposition testimony in this action may designate
such documents, responses, deposition testimony or information as "Confidential" or
"Confidential - Attorneys' Eyes Only" in accordance with the provisions of this
Paragraph II. The parties and any non-party shall limit to whatever extent possible
designating information as "Confidential" or "Confidential - Attorneys' Eyes Only."

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A.

Criteria For Classification

1.

"Confidential" documents, deposition testimony, or information. A party or

non-party may designate documents, deposition testimony, or information as
"Confidential" if the party or non-party making such designation reasonably believes that
the documents, deposition testimony, or information contains or discloses trade secrets
or other confidential technical or commercial information that has not been made public.
"Confidential - Attorneys' Eyes Only" documents, deposition testimony, or
information. A party or non-party may designate documents, deposition testimony, or
information as "Confidential - Attorneys' Eyes Only" if: (a) the party or non-party making
such designation reasonably believes that the documents, deposition testimony, or
information satisfy the criteria for designating such documents, deposition testimony, or
information as "Confidential" pursuant to Paragraph ll(A)(1) above; and (b) the
designating party believes, in good faith, the disclosure of the documents, deposition
testimony, or information is likely to cause harm to the competitive position of the
designating party or non-party holding proprietary rights thereto. Such "Confidential Attorneys' Eyes Only" documents, deposition testimony, and information may include,
without limitation, source code, trade secrets, confidential technical information,
technical practices, methods, or other know-how, minutes of board meetings, pricing
data, financial data, sales information, customer-confidential information, agreements or
relationships with non-parties, market projections or forecasts, strategic business plans,
selling or marketing strategies, or new product development, testing, manufacturing
costs, or information about employees.

B.

Time Of Designation

Unless otherwise agreed between counsels for the parties, the designation of
"Confidential" or "Confidential - Attorneys' Eyes Only" documents, deposition testimony,
and information shall be made at the following times:
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1.

For documents or things, prior to providing the receiving party with a copy

of any requested document or thing. Documents and things produced for inspection
shall be inspected only by persons entitled to receive "Confidential - Attorneys' Eyes
Only" documents, deposition testimony, and information pursuant to Paragraph 111(B)
below. Between the time of inspection and the time of receipt of a copy of any
requested document or thing, the information contained therein shall be treated as
"Confidential - Attorneys' Eyes Only" documents, deposition testimony, or information
and shall not be disclosed or used, except in accordance with the provisions of this
Protective Order governing "Confidential - Attorneys' Eyes Only" documents, deposition
testimony, and information;
2.

For declarations, written discovery responses, and pleadings, at the time

of the service or filing, whichever occurs first; and
3.

For deposition testimony, at the time such deposition testimony is given,

by a statement designating the deposition testimony as "Confidential" or "Confidential Attorneys' Eyes Only" made on the record or as set forth in Paragraph ll(C)(4) below.
To the extent a party or non-party does not timely designate documents,
deposition testimony, or information as "Confidential" or "Confidential - Attorneys' Eyes
Only" such party or non-party may so designate documents, deposition testimony, or
information as provided under Paragraph 11(D), below.

C.

Manner Of Designation

The designation of "Confidential" or "Confidential - Attorneys' Eyes Only"
documents, deposition testimony, or information shall be made in the following manner:
1.

For documents, placing the notation "Confidential" or "Confidential -

Attorneys' Eyes Only" on each page of such document containing such "Confidential" or
"Confidential - Attorneys' Eyes Only" information;

3

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2.

For tangible items, by placing the notation "Confidential" or "Confidential -

Attorneys' Eyes Only" on the object or container thereof or if impracticable, as otherwise
agreed by the parties;
3.

For declarations, written discovery responses, court filings or pleadings,

by placing the notation "Confidential" or "Confidential - Attorneys' Eyes Only" both on
the face of such document and on any particular designated pages of such document;
and
4.

For deposition testimony, by orally designating such deposition testimony

as being "Confidential" or "Confidential - Attorneys' Eyes Only" at the time the
deposition testimony is given. Thereafter, the original and all copies of the "Confidential"
or "Confidential - Attorneys' Eyes Only" portions of the transcript of any such deposition
testimony shall be separately bound and marked by the Court Reporter with the legend
"CONFIDENTIAL' OR 'CONFIDENTIAL - ATTORNEYS' EYES ONLY." Such transcript
and deposition testimony shall be disclosed and used only in accordance with the
provisions of this Protective Order. At the request of Counsel for the designating party
supplying the "Confidential" or "Confidential - Attorneys' Eyes Only" documents,
deposition testimony, or information, only persons entitled under Paragraph 111(A)
hereinafter as to "Confidential" and/or Paragraph 111(B) hereinafter as to "Confidential Attorneys' Eyes Only" information shall be permitted to attend that portion of a
deposition wherever or whenever any such "Confidential" or "Confidential - Attorneys'
Eyes Only" documents, deposition testimony, or information of such designating party is
used or elicited from the deponent.
In addition to the above, counsel for any party or non-party may designate a
deposition as "Confidential" or "Confidential - Attorneys' Eyes Only" by serving upon
counsel for each party a written list of the specific portions as to which such status is
claimed. Such written list must be served within ten (10) business days after transmittal
to counsel of the transcript of such testimony. All deposition testimony shall be treated

ri

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as "Confidential - Attorneys' Eyes Only" until the expiration of the ten (10) business day
period and, if the aforesaid written list is served upon counsel, shall be treated as
"Confidential" or "Confidential - Attorneys' Eyes Only" as so designated.

D.

Subsequent Designation

Failure to designate and/or mark any document, deposition testimony or
information as "Confidential" or "Confidential - Attorneys' Eyes Only" shall not preclude
the designating party from thereafter in good faith making such a designation and
requesting the receiving party to so mark and treat such documents, deposition
testimony, or information so designated. Such designation and request shall be made in
writing. Once notified of the designation, the receiving party, must make reasonable
efforts to assure that the document, deposition testimony, or information is thereafter
treated in accordance with the provisions of this Order, including making reasonable
efforts to recover and return to the designating party all non-designated versions of any
document, deposition testimony, or information that contains "Confidential" and/or
"Confidential - Attorneys' Eyes Only" information, and to notify all receivers of the nondesignated versions of document, deposition testimony, or information of the
designation. After such designation, such documents, deposition testimony, or
information shall be fully subject to this Protective Order. Provided the receiving party
and its counsel act in good faith to secure compliance with the terms of this Protective
Order with respect to such "Confidential" and/or "Confidential - Attorneys' Eyes Only"
information following its designation, the receiving party and its counsel, shall incur no
liability for disclosures made prior to notice of such designation. The designating party
may request in writing, and the receiving party shall within ten (10) days of such a
request provide, an identification in writing of all persons not qualified under this
Protective Order who have received the "Confidential" and/or "Confidential - Attorneys'
Eyes Only" information prior to the time it was so designated.

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E.

Resolution Of Disputes Regarding Designation

The acceptance by a party of "Confidential" or "Confidential - Attorneys' Eyes
Only" documents, deposition testimony, or information shall not constitute an admission
or concession or permit an inference that such "Confidential" or "Confidential Attorneys' Eyes Only" documents, deposition testimony, or information are, in fact,
"Confidential" or "Confidential - Attorneys' Eyes Only." However, the documents,
deposition testimony, or information will be treated as designated unless the receiving
party follows the procedures to remove, change, or otherwise declassify the designation
as set forth in this Paragraph.
If a receiving party, at any time, wishes to have the "Confidential" or "Confidential
- Attorneys' Eyes Only" designation of any particular documents, deposition testimony,
or information removed or changed, that party shall first request in writing that the
designating party or non-party remove its designation and state the reason therefor.
Within ten (10) business days of the service of such request, counsel for the party or
nonparty seeking confidential treatment shall serve its response in writing to any such
notification by either: (I) withdrawing such designation, or (ii) sending a meet and confer
letter, explaining why the party or non-party designating the particular documents,
deposition testimony, or information believes it is entitled to the designation. If after a
meet and confer conference the parties do not otherwise resolve the dispute, counsel
for the party or nonparty seeking confidential treatment may seek permission of the
Court to so designate the particular documents, deposition testimony, or information.
Unless otherwise extended by consent of the parties, the designating party or nonparty
shall file its ex parte application or joint stipulation within 14 days of the meet and confer
conference. The designating party or nonparty shall have the burden of proving that
such particular documents, deposition testimony, or information are properly designated
as "Confidential" or "Confidential - Attorneys' Eyes Only" pursuant to Article II. If such
application or motion is timely made, the parties shall treat the document, deposition

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testimony, or information as originally designated until the motion is decided by the
Court.

Ill. PERSONS TO WHOM CONFIDENTIAL DOCUMENTS, DEPOSITION
TESTIMONY, AND INFORMATION MAY BE DISCLOSED

A.

Disclosure Of Documents, Deposition Testimony, and Information
Designated As "Confidential"

Documents, deposition testimony, or information designated by a party as
"Confidential" may be disclosed and copies may be provided by the receiving party only
to:
1.

The receiving party's in-house counsel and outside counsel, their

associate counsel within their law firms, and such counsels' support staff, legal
assistants, and clerical personnel;
2.

Any non-party support services including, but not limited to, outside

copying services, and document imaging and database services, graphics or design
services, jury or trial consulting services, outside court reporting services and court
reporters as may be reasonably necessary in connection with the preparation or
conduct of this action;
3.

Expert witnesses or consultants retained by the receiving party or its

respective attorneys in connection with this action, and the employees of such experts
or consultants who are assisting them, only to the extent the information disclosed is
pertinent to the expert witness' or consultant's opinions;
4.

The Court, its clerks, assistants, and secretaries, and any court reporter

retained to record proceedings before the Court; and

VA

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5.

Up to five (5) party representatives (and such party representatives'

support and clerical staff), to be designated by each party by written notice prior to the
disclosure of "Confidential" information to such representative.

B.

Disclosure Of Documents, Deposition Testimony, and Information
Designated As "Confidential - Attorneys' Eyes Only"

Documents, deposition testimony, and information designated as "Confidential Attorneys' Eyes Only" may be disclosed and copies may be provided by the receiving
party only to:
1.

The receiving party's in-house counsel and outside counsel, and such

counsel's associate counsel within their law firms, and support staff, legal assistants
and clerical personnel;
2.

Any non-party support services including, but not limited to, outside

copying services, and document imaging and database services, graphics or design
services, jury or trial consulting services, outside court reporting services and court
reporters as may be reasonably necessary in connection with the preparation or
conduct of this action;
3.

Expert witnesses or consultants, and the employees of such experts or

consultants who are assisting them, retained by the receiving party or its respective
attorneys in connection with this action, only to the extent the information disclosed is
pertinent to the expert witness' or consultant's opinions;
4.

The Court, its clerks, assistants, and secretaries, and any court reporter

retained to record proceedings before the Court in which event such information shall
be submitted for filing under seal pursuant. Nothing herein shall preclude the receiving
party's outside counsel of record from providing advice to its clients based on
"Confidential" or "Confidential - Attorneys' Eyes Only" documents, deposition testimony,

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and information, without disclosing the substance of the "Confidential" or "Confidential Attorneys' Eyes Only" documents, deposition testimony, and information.

C.

Additional Authorized Disclosure Of Documents, Deposition
Testimony, or Information Designated As "Confidential" or
"Confidential - Attorneys' Eyes Only"

Notwithstanding anything to the contrary in Paragraphs 111(A) or 111(B) above,
particular documents, deposition testimony, and information that have been designated
as "Confidential" or "Confidential - Attorneys' Eyes Only" may be disclosed and copies
may be provided:
To persons who can be shown from the face of the document to have
authored, prepared, reviewed, or received the document or for whom, at deposition
testimony, a proper foundation has been laid establishing that the witness was a
recipient of the document or the information contained within it;
2.

To any other persons with the prior written consent of the party or non-

party that designated such particular document, deposition testimony and information as
"Confidential" or "Confidential - Attorneys' Eyes Only;" and
3.

To any other persons with the prior authorization of the Court.

IV. USE OF "CONFIDENTIAL" OR "CONFIDENTIAL - ATTORNEYS' EYES
ONLY" DOCUMENTS, DEPOSITION TESTIMONY, AND INFORMATION

A.

Use Of Designated Documents and Information
"Confidential" or "Confidential - Attorneys' Eyes Only" documents,

deposition testimony, and information shall be used by the receiving parties, their
respective agents, and any other persons to whom such documents, deposition
testimony, and information may be disclosed pursuant to the Protective Order, for no
purpose other than: (a) the prosecution or defense of this action; or (b) as otherwise

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compelled by lawful process (provided the designating other party is given reasonable
notice to object);
2.

(C)

as otherwise required by law; or (d) as permitted by the Court.

Notwithstanding the parties' designation of "Confidential" or "Confidential -

Attorneys' Eyes Only" documents, deposition testimony, or information, any Court
hearing that refers to or describes "Confidential" or "Confidential - Attorneys' Eyes Only"
documents, deposition testimony, or information may be held in open court with records
unsealed, provided the designating party is afforded reasonable notice of the receiving
party's intent to disclose such "Confidential" or "Confidential - Attorneys' Eyes Only"
documents, deposition testimony, and information in open court, so that the designating
party has a reasonable opportunity to seek to maintain the confidentiality of the
"Confidential" or "Confidential - Attorneys' Eyes Only" documents, deposition testimony,
or information. However, any party may request that the proceedings be conducted in
camera out of the presence of any unqualified persons, and any transcript relating
thereto be designated as "Confidential" or "Confidential - Attorneys' Eyes Only" and
prepared in accordance with the provisions of Paragraph 11(C) above.
3.

The parties shall provide each other with a list of "Confidential" or

"Confidential - Attorneys' Eyes Only" documents, deposition testimony, or information to
be used at trial at such time as the list of exhibits is ordered by the court to be
exchanged among the parties to enable the designating party sufficient opportunity to
seek a protective order. Any such "Confidential" or "Confidential - Attorneys' Eyes Only"
documents, deposition testimony, or information which is designated by any party to be
introduced at trial may be offered into evidence in open court unless the opposing party
obtains an appropriate protective order from the Court before its introduction. Should a
party at trial determine that reference to previously unlisted "Confidential" or
"Confidential - Attorneys' Eyes Only" documents, deposition testimony, or information is
necessary for impeachment or due to surprise, the provisions of Paragraph IV(A)(2)
shall be applied.
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4.

Nothing in this Protective Order shall affect the admissibility of

"Confidential" or "Confidential - Attorneys' Eyes Only" documents, deposition testimony,
or information, or abridge the rights of any person to seek judicial review or to pursue
other appropriate judicial action with respect to any ruling made by the Court concerning
the issue of the status of "Confidential" or "Confidential - Attorneys' Eyes Only"
documents, deposition testimony, or information. This Protective Order is without
prejudice to any party seeking an Order from this Court imposing further restrictions on
the dissemination of "Confidential" or "Confidential - Attorneys' Eyes Only" documents,
deposition testimony, or information, or seeking to rescind, modify, alter, or amend this
Protective Order with respect to specific information.
5.

In the event any person in receipt of "Confidential" or "Confidential -

Attorneys' Eyes Only" documents, deposition testimony, or information shall receive a
written request, subpoena, or Court Order seeking disclosure of another party's
"Confidential" or "Confidential - Attorneys' Eyes Only" documents, deposition testimony,
or information, such person shall immediately upon receipt of such request, subpoena,
or Court Order, notify counsel for the designating party of the request, subpoena, or
Court Order, and shall provide counsel for the designating party with a copy of the
same, unless prohibited by law.
6.

A party producing any document or thing for inspection may retain the

original of such document or thing which is subject to this Protective Order, but the
receiving party, by its counsel of record, shall have the right to examine the original, to
be provided with a full and complete copy thereof at its expense, and to call for
production of the original at the trial of this action, if reasonably necessary.

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V.

DOCUMENTS, DEPOSITION TESTIMONY, AND INFORMATION EXCLUDED
FROM PROTECTIVE ORDER
The obligations relating to any document, deposition testimony, or information

subject to this Protective Order shall not apply to any document, deposition testimony,
or information designated as being subject to this Protective Order which: (a) was
lawfully in the receiving party's possession prior to the receipt from the supplying party;
(b) became public knowledge by means not in violation of the provisions of this
Protective Order; (c) was, or is hereafter, obtained from a source or sources not under
an obligation of secrecy to the other party; (d) is discovered independently by the
receiving party; or (e) is exempted from the provisions of this Protective Order by written
consent of the party producing such "Confidential" or "Confidential - Attorneys' Eyes
Only" documents, deposition testimony, or information.
Notwithstanding the provisions of Article Ill above, nothing herein shall prevent
any producing party from using or disclosing its own "Confidential" or "Confidential Attorneys' Eyes Only" documents, deposition testimony, or information as it deems
appropriate. Nothing in this Order shall preclude any party from showing an employee of
a designating party at a deposition of that employee any "Confidential" or "Confidential Attorneys' Eyes Only" documents, deposition testimony, or information of the
designating party.

VI.

RETURN OF DOCUMENTS, DEPOSITION TESTIMONY, OR INFORMATION
Within sixty (60) days after conclusion of litigation, outside counsel for each

receiving party or other individual subject to this Protective Order (which does not
include the Court and Court personnel) shall be under an obligation to assemble and
return to the designating party, or to destroy (and certify the destruction) should the
designating party so permit, any document, deposition testimony and information
subject to this Protective Order and all copies thereof. Any copy of any document,
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deposition testimony or information designated by the opposing party as "Confidential"
or "Confidential - Attorneys' Eyes Only" containing notes of outside counsel may be
destroyed rather than returned. Notice of the return or destruction of any "Confidential"
or "Confidential - Attorneys' Eyes Only" document, deposition testimony or information
shall be made in writing, and notice of receipt thereof shall be acknowledged in writing.
Notwithstanding the foregoing provisions of this Paragraph, outside counsel shall be
entitled to retain all memoranda or reports prepared by them or any expert witness or
consultant which contain "Confidential" or "Confidential - Attorneys' Eyes Only"
documents, deposition testimony, or information and litigation documents containing
"Confidential" or "Confidential - Attorneys' Eyes Only" documents, deposition testimony,
or information which become part of the record of this action, including pleadings, briefs,
deposition transcripts and exhibits, but such litigation documents shall be used only for
the purpose of preserving a record of the action, and shall not, without the written
permission of the opposing party or an order of this Court, be disclosed to anyone other
than those to whom such information was actually disclosed, in accordance with this
Protective Order, during the course of this action.

VII.

SURVIVAL
All obligations and duties arising under this Protective Order shall survive the

termination of this action. The Court retains jurisdiction over the parties hereto
indefinitely with respect to any dispute regarding the improper use of "Confidential" or
"Confidential - Attorneys' Eyes Only" documents, deposition testimony, or information
disclosed under protection of this Protective Order.

VIII.

INADVERTENT PRODUCTION
The inadvertent or mistaken disclosure of any "Confidential" or "Confidential -

Attorneys' Eyes Only" documents, deposition testimony, or information by a producing

13

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party, without the designation required under Article II, above, shall not constitute a
waiver of any claim that the inadvertently disclosed material is entitled to protection
under this Order, if such inadvertent or mistaken disclosure is brought to the attention of
the receiving party promptly after the producing party's discovery of such disclosure.
Along with notice of inadvertent or mistaken disclosure, the producing party shall
provide properly marked documents to each party to whom "Confidential" or
"Confidential - Attorneys' Eyes Only" documents, deposition testimony, or information
was inadvertently disclosed; and upon receipt of these properly marked documents, the
receiving party shall return to the producing party, or destroy, the improperly marked
documents that were initially produced, along with any copies or duplicates thereof.
If a party through inadvertence produces or provides discovery which it believes
is subject to a claim of attorney-client privilege or work product immunity, the producing
party may give written notice to the receiving party or parties that the document or thing
is subject to a claim of attorney-client privilege or work product immunity and request
that the document or thing be returned to the producing party. The receiving party or
parties shall promptly return to the producing party such document or thing, including all
copies of such document or thing, and portions thereof, and shall not retain any copies
thereof. Return of the document by the receiving party shall not constitute an admission
or concession, or permit any inference, that the returned document or thing is, in fact,
properly subject to a claim of attorney-client privilege or work product immunity nor shall
it foreclose any party from moving the Court for any order that such document or thing
has been improperly designated or should be producible for reasons other than a waiver
caused by the inadvertent production.

IX. NO IMPLIED WAIVER OR ADMISSION
No party shall be obligated to challenge the propriety of any designation of
"Confidential" or "Confidential - Attorneys' Eyes Only" documents, deposition testimony,
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Case 4:15-cv-00135-JRH-GRS Document 20-1 Filed 07/27/15

or information by another party or non-party, and the failure to do so shall not constitute
a waiver or otherwise preclude a subsequent challenge to the designation.

X.

NOTICE AND SERVICE
For purposes of any provisions in this Protective Order requiring or permitting

service of a notice, objections, requests, responses, designations or the like, service
shall be accomplished either by email or by overnight delivery via a commercial delivery
service to all counsel of record. When served via email, service shall be deemed
complete on the date of transmission if the electronic transmission occurs before 6:00
p.m. Eastern time; otherwise, service shall be deemed complete the next business day.
Service via overnight delivery shall be deemed complete upon delivery.
IT IS SO ORDERED this

7

, 2015.

th day of

Honora eR. Smith
U.S. Ma1strate Judge
Order prepared by:
Is! Jason C. Pedigo
Jason C. Pedigo
Georgia Bar No. 140989
Counsel for Defendants
P0 Box 9946
Savannah, GA 31412
T: [phone]
ped iqo(epra-Iaw.com
Order stipulated to by:
Is! Justin C. Ward
Justin Charles Ward
Georgia Bar No. 746408
Attorney for Plaintiff
101 Warfighter Way
Black Creek, GA 31308
T: [phone]
ward(dan ieldefense.com

15
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