Cook et al v. Estes Express Lines, Corp. et al

Filing 45

Judge Richard G. Stearns: ORDER entered granting 44 Motion for Protective Order pursuant to the parties' joint motion. (RGS, int2)

Case 1:16-cv-11538-RGS Document 44-1 Filed 07/26/17 Page 1 of 8

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
GCC MOVING, LLC and
GARY COOK d/b/a GCC MOVING
Plaintiff,
vs.
ESTES EXPRESS LINES, CORP. d/b/a, alias,
BIG E TRANSPORTATION; and
BIG E TRANSPORTATION, LLC d/b/a, alias,
ESTES EXPRESS LINES;
JOHN DOES 1-10, JANE DOES 1-10 and
XYZ CORPORATIONS 1-10
Defendants

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) C.A. No. 1:16-cv-11538-RGS
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PROTECTIVE ORDER
Pursuant to Rule 26 of the Federal Rules of Civil Procedure and as requested by the
Parties, who have agreed that good cause exists for a protective order, the Court enters this
Protective Order to preserve and maintain the confidentiality of certain limited confidential
and/or proprietary information that may be disclosed or obtained by Estes Express Lines or Big
E Transportation, LLC (“Defendants”) and/or GCC Moving, LLC and Gary Cook (“Plaintiffs”),
including information on Defendants’ customers, such as customer contracts and account
information, company financial information, strategies, and costs information not known to the
general public, and confidential information concerning the Plaintiffs, such as their tax returns.
The Court specifically finds that good cause exists for this Protective Order.
1.

As used herein, the following definitions apply:
a.

“Confidential” means any documents (regardless whether in electronic or

hard copy format) or information that contains:

Case 1:16-cv-11538-RGS Document 44-1 Filed 07/26/17 Page 2 of 8

i.

Personal or private or confidential information relating to any

party, the parties’ employees, managers, or agents, such as personal financial and
tax information; and
ii.

Proprietary and confidential business information including

Defendants’ customer contracts and account information, company financial
information, strategies, and costs information not known to the general public.
2.

Confidential information produced by any party shall be maintained in confidence

by all parties and by other recipients qualified to receive it (“Qualified Recipients,” as further
defined herein). Confidential information shall be used solely for the purposes of prosecution
and defense of claims in this litigation.
3.

Documents containing Confidential Information shall be identified by marking

them with the legend “CONFIDENTIAL.”

Any party may designate a document as

“CONFIDENTIAL,” but such designations must be made in the good-faith belief that the
documents contain Confidential information as defined above. Any party may challenge another
party’s designation of a document as “Confidential” and shall do so by first seeking to resolve
the dispute through discussions with the disclosing party. If the parties are unable to resolve the
dispute, the challenging party may then, upon proper notice to the disclosing party, seek an
appropriate order from the Court challenging such designation. If the Court agrees with the
person or party challenging the designation, the disclosing person or party shall pay the
reasonable attorney's fees incurred as a result of the challenge.
4.

Neither the receiving party nor its representatives shall disclose documents

designated as CONFIDENTIAL, other than to the following persons (“Qualified Recipients”):

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a.

Designated counsel of record in this action (including law clerks, legal

assistants, technical assistants, secretaries and clerks of such counsel);
b.

Any individual who is a party of record in this action, along with

employees of the Defendants who are actively assisting in the preparation and trial of this
litigation;
c.

Independent experts and consultants retained by any party whose

assistance is necessary for the preparation of trial of this specific action; and
d.

At any deposition, hearing or trial in this matter, witnesses for any party

provided that such witnesses expressly agree to comply with the terms of this Protective
Order and provided that such witnesses shall be allowed to review documents or
information designated CONFIDENTIAL but shall not be provided with copies of the
CONFIDENTIAL documents or information.
e.

The Court (including any agent of the Court) and any court reporter used

during depositions.
5.

Nothing contained in this Order shall prevent any party from using Confidential

Documents to examine witnesses at deposition or trial, provided that if at deposition, the part of
the transcript will be marked as confidential after being so designated by a party’s counsel.
6.

The parties and their designated representatives expressly agree to maintain the

confidentiality associated with those documents designated as CONFIDENTIAL and agree that
they will not disclose or otherwise share such information with anyone other than Qualified
Recipients. To the extent CONFIDENTIAL documents are used as exhibits or attachments to
any filing with the Court in the above-captioned litigation, the party so using the
CONFIDENTIAL documents will file the documents with the Court in accordance with Local

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Case 1:16-cv-11538-RGS Document 44-1 Filed 07/26/17 Page 4 of 8

Rules 5.4 and 7.2 and Subsection L of the Case Management/Electronic Case Filing
Administrative Procedures for the District of Massachusetts with documents appropriately
designated.
7.

Disclosure shall be made to Qualified Recipients only as necessary for this

litigation, and only after the person to whom disclosure is made has been informed of the
Protective Order, and has agreed in writing to be bound by it, by signing the form of
acknowledgment attached to this Protective Order as Exhibit A – Acknowledgment. The terms of
this Protective Order shall be explained to such persons by the persons disclosing the
confidential material or information it contains. The executed acknowledgment shall be retained
by counsel disclosing the confidential material or information. Confidential information shall not
be disclosed to any person in any manner not specified in this Protective Order.
8.

Nothing in this Protective Order shall be construed as precluding a party from

seeking additional protection from the Court against the disclosure or production of any other
confidential information, including an order that such information not be disclosed or that it be
disclosed only in a designated manner or challenging another party’s designation.
9.

Nothing in this Agreed Protective Order precludes or limits a party from viewing

its own confidential or attorney’s eyes only documents.
10.

The use of CONFIDENTIAL documents or information at trial or hearing shall be

addressed in any pre-trial or pre-hearing order or by a stipulation submitted by the parties to
comport with the Court's pre-trial or pre-hearing filing deadlines.
11.

The agreement of the parties subject to this Protective Order shall not be

construed as an agreement or admission: (i) that any material or document designated as
confidential is, in fact, confidential; (ii) as to the correctness or truth of any allegation made or

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position taken relative to any matter designated as confidential; or (iii) with respect to the
authenticity, competency, relevance or materiality of any document or thing designated as
confidential.
12.

A party shall designate all other Confidential Information disclosed during any

deposition in this matter as “CONFIDENTIAL” by notifying all parties either during the
deposition or, in writing, within 30 days of receipt of the transcript or entry of this Order
whichever comes later, of the specific pages and lines of the transcript which contain
Confidential Information. Each party shall attach a copy of such written notice to the face of the
transcript and each copy thereof in its possession, custody or control.
13.

Nothing shall prevent disclosure beyond the terms of this Protective Order if any

party expressly consents to such disclosure, either in writing or in the record of any proceeding
in this litigation, or if the Court, after notice to all affected parties, orders such disclosure.
14.

The attorneys of record are responsible for employing reasonable measures to

control access to and distribution of confidential items.
15.

Upon the termination of this litigation, the provisions of this Protective Order

shall continue to be binding, except with respect to those documents and information that
become a matter of public record.
16.

Upon written request by counsel for the disclosing party or person, the party or

witness having received any documents or information subject to this Protective Order shall
return or destroy these items at the close of this litigation, at the option of the disclosing party.
17.

If a producing party inadvertently or unintentionally produces to a receiving party

any documents or information subject to a claim of privilege or immunity from discovery
(including but not limited to attorney-client privilege, work product immunity, and immunities

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Case 1:16-cv-11538-RGS Document 44-1 Filed 07/26/17 Page 6 of 8

created by federal or state statute or regulation), the producing party shall, within fifteen (15)
days of the discovery of the inadvertent production, give notice to the receiving party in writing
of the producing party's claim of privilege or immunity from discovery.

Thereafter, the

receiving party shall immediately return to the producing party the original and all copies of the
privileged materials, including copies of the protected materials disseminated to other persons by
the receiving party. The receiving party shall also immediately destroy all summaries, abstracts,
written digests, or other recordings of such documents and information. Such inadvertent or
unintentional disclosure shall not be deemed a waiver in whole or in part of the producing party's
claim of privilege or immunity from discovery either as to specific documents and information
disclosed or on the same or related subject matter.
18.

In the event that the receiving party disagrees with the producing party's claim of

privilege or immunity from discovery of the inadvertently disclosed documents or information,
then the receiving party shall notify the producing party within fifteen (15) business days of
receipt of the producing party's written notice of claim of privilege, and shall set forth the precise
grounds upon which the receiving party's position rests. If the parties cannot resolve the matter,
then the dispute will be presented to the Court by motion or otherwise. During the pendency of
any such motion, the receiving party shall not copy, distribute, or otherwise use in any manner
the disputed documents or information, and shall instruct all persons to whom the receiving party
has disseminated a copy of the documents or information that the documents or information are
subject to this Order and may not be copied, distributed, or otherwise used pending the motion
and further notice from the Court.

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Case 1:16-cv-11538-RGS Document 44-1 Filed 07/26/17 Page 7 of 8

SO ORDERED: _______________________
7/26/2017

/s/ Richard G. Stearns
Richard G. Stearns
JUDGE, United States District Court
District of Massachusetts
Distribution to:
Braden K. Core
[e-mail]
James T. Spolyar
[e-mail]
Judith A. Leggett
[e-mail]
David A. Woodward
[e-mail]
Geoffrey R. Bok
[e-mail]
Michael E. Levinson
[e-mail]
Eric S. Brainsky
[e-mail]

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Case 1:16-cv-11538-RGS Document 44-1 Filed 07/26/17 Page 8 of 8

EXHIBIT A
ACKNOWLEDGEMENT AND AGREEMENT TO BE BOUND
I,

[print or type full name], of
[print or type full address],

declare under penalty of perjury that I have read in its entirety and understand the Protective
Order that was issued by the United States District Court for the District of Massachusetts in the
case of GCC Moving, LLC, et al. v. Estes Express Lines, et al., Case No. 1:16-cv-11538-RGS. I
agree to comply with and to be bound by all the terms of this Agreed Protective Order, and I
understand and acknowledge that failure to so comply could expose me to sanctions and
punishment in the nature of contempt. I solemnly promise that I will not disclose in any manner
any information or item that is subject to this Protective Order to any person or entity except in
strict compliance with the provisions of this Order.
I further agree to submit to the jurisdiction of the United States District Court for the
District of Massachusetts for the purpose of enforcing the terms of this Protective Order, even if
such enforcement proceedings occur after termination of this action.
I hereby appoint

[print or type full name] of
[print or type full address and telephone

number] as my Massachusetts agent for service of process in connection with this action or any
proceedings related to enforcement of this Agreed Protective Order.
Date: ______________________
City and State where sworn and signed:
Printed name:
Signature:
4837-2619-7580, v. 2