Alexander Associates, Incorporated v. Whirlaway Corporation

Filing 18

STIPULATED PROTECTIVE ORDER Signed by District Judge Robert H. Cleland. (LWag)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
ALEXANDER ASSOCIATES, INC.,
Plaintiff,
v.
WHIRLAWAY CORP.,
Defendant.

Randall J. Gillary (P 29905)
Kevin P. Albus (P 53668)
RANDALL J. GILLARY, P.C.
Attorneys for Plaintiff
201 W. Big Beaver Road, Ste. 1020
Troy, MI 48084
[phone]

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Case No.: 2:12-CV-10226
Honorable Robert H. Cleland
Magistrate Judge Mona K. Majzoub

Patrick McLain (P25458)
Daniel J. Ferris (P69633)
KERR, RUSSELL AND WEBER, PLC
Attorneys for Defendant
500 Woodward Avenue, Suite 2500
Detroit, MI 48226
[phone]
Allan V. Hallquist
Michael T. Crabb
HUSCH BLACKWELL LLP
Attorneys for Defendant
4801 Main Street, Suite 1000
Kansas City, MO 64112
[phone]

STIPULATED PROTECTIVE ORDER
Pursuant to Rule 26(c) of the Federal Rules of Civil Procedure, the following Protective
Order is hereby entered by the Court. A protective order is appropriate in this matter because the
parties are likely to engage in discovery that may require the production of sensitive confidential
information that should not be revealed in a manner other than contemplated by a protective
order. Specifically, this matter involves the sale of parts and products to third-party customers in

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a competitive industry. The very nature of these causes of action may require the exchange of
information that the producing party believes should be protected from public dissemination.
For the foregoing reasons, a protective order is appropriate pursuant to Rule 26(c) of the Federal
Rules of Civil Procedure.
Proceedings and Information Governed.
1.

This Order and any amendments or modifications hereto (“Protective Order”)

shall govern any document, information or other thing furnished by any party, to any other party,
and includes non-parties who receive a subpoena in connection with this action. The information
protected includes documents and things which are designated by the producing party as
“Confidential Information” in accordance with this Protective Order which may include, without
limitation, answers to interrogatories, answers to requests for admission, responses to requests
for production of documents, deposition transcripts and videotapes, deposition exhibits, and
other writings or things produced, given or filed in this action, as well as any copies, excerpts,
abstracts, analyses, summaries, descriptions, or other forms of recorded information containing,
reflecting, or disclosing such information.
Designation and Maintenance of Information.
2.

For purposes of this Protective Order, the “Confidential Information” designation

shall mean that the document is comprised of trade secrets or commercial information that is not
publicly known and is of technical or commercial advantage to its possessor, or other
information required by law or agreement to be kept confidential. Confidential Information does
not include, and this Protective Order shall not apply to, information that is already in the
knowledge or possession of the party to whom disclosure is made unless that party is already
bound by agreement not to disclose such information, or information that has been disclosed to
the public or third persons in a manner making such information no longer confidential.

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3.

Documents and things produced during the course of this litigation within the

scope of paragraph 2 above, may be designated by the producing party as containing
Confidential Information by placing on each page and each thing a legend substantially as
follows:
CONFIDENTIAL INFORMATION SUBJECT TO PROTECTIVE ORDER
A party may designate information disclosed at a deposition as Confidential Information
by requesting the reporter to so designate the transcript or any portion thereof at the time of the
deposition. If no such designation is made at the time of the deposition, any party shall have ten
(10) calendar days after the date of the deposition to designate, in writing to the other parties and
to the court reporter, whether the transcript is to be designated as Confidential Information. If no
such designation is made at the deposition or within such ten (10) calendar day period (during
which period, the transcript shall be treated as Confidential Information), the entire deposition
will be considered devoid of Confidential Information. Each party and the court reporter shall
attach a copy of any final and timely written designation notice to the transcript and each copy
thereof in its possession, custody or control, and the portions designated in such notice shall
thereafter be treated in accordance with this Protective Order.
It is the responsibility of counsel for each party to maintain materials containing
Confidential Information in a secure manner and appropriately identified so as to allow access to
such information only to such persons and under such terms as is permitted under this Protective
Order.
Inadvertent Failure to Designate.
4.

The inadvertent failure to designate or withhold any information as confidential or

privileged will not be deemed to waive a later claim as to its confidential or privileged nature, or
to stop the producing party from designating such information as confidential at a later date in

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writing and with particularity.

The information shall be treated by the receiving party as

confidential from the time the receiving party is notified in writing of the change in the
designation.
Challenge to Designations.
5.

A receiving party may challenge a producing party’s designation at any time.

Any receiving party disagreeing with a designation may request in writing that the producing
party change the designation. The producing party shall then have seven (7) calendar days after
receipt of a challenge notice to advise the receiving party whether or not it will change the
designation. If the parties are unable to reach agreement after the expiration of this seven (7)
calendar day time frame, the receiving party may at any time thereafter seek a Court Order to
alter the confidential status of the designated information. Until any dispute under this paragraph
is ruled upon by the Court, the designation shall remain in full force and effect, and the
information shall continue to be accorded the confidential treatment required by this Protective
Order.
Disclosure and Use of Confidential Information.
6.

Information designated as Confidential Information may only be used for

purposes of preparation, trial, and appeal of this action. Confidential Information may not be
used under any circumstances for any other purpose.

The provisions of any mutually

agreed-upon “clawback” agreement relating to the inadvertent disclosure of privileged
information shall apply in all cases governed by this Protective Order.
7.

Subject to paragraph 8 below, Confidential Information may be disclosed by the

receiving party only to the following individuals provided that such individuals are informed of
the terms of this Protective Order: (a) employees of the receiving party who are required in good
faith to provide assistance in the conduct of this litigation, including any settlement discussions;

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(b) in-house counsel; (c) outside counsel for the receiving party; (d) supporting personnel
employed by (b) and (c), such as paralegals, legal secretaries, data entry clerks, legal clerks and
private photocopying services; (e) experts or consultants; and (f) any persons requested by
counsel to furnish services such as document coding, image scanning, mock trial, jury profiling,
translation services, court reporting services, demonstrative exhibit preparation, or the creation of
any computer database from documents. Confidential Information may be also disclosed by the
receiving party to Court personnel and any mediator agreed to by the parties or appointed by the
Court.
8.

Prior to disclosing Confidential Information to a receiving party’s proposed expert

or consultant, the receiving party shall obtain from such proposed expert or consultant a signed
Confidentiality Agreement in the form attached as Exhibit A.
9.

Counsel shall be responsible for the adherence by third-party vendors to the terms

and conditions of this Protective Order. Counsel may fulfill this obligation by obtaining a signed
Confidentiality Agreement in a form agreed to by counsel.
10.

Confidential Information may be disclosed to a person, not already allowed access

to such information under this Protective Order, if:
(a)

the information was previously received or authored by the person or was

authored or received by a director, officer, employee or agent of the company for which the
person is testifying as a Rule 30(b)(6) designee;
(b)

the designating party is the person or is a party for whom the person is a

director, officer, employee, consultant, or agent; or
(c)

counsel for the party designating the material agrees that the material may

be disclosed to the person.

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In the event of disclosure under this paragraph, only the reporter, the person, his or her
counsel, the judge and persons to whom disclosure may be made, and who are bound by the
Protective Order, may be present during the disclosure or discussion of Confidential Information.
Disclosure of material pursuant to this paragraph shall not constitute a waiver of the confidential
status of the material so disclosed.
Non-Party Information.
11.

The existence of this Protective Order shall be disclosed to any person producing

documents, tangible things or testimony in this action who may reasonably be expected to desire
confidential treatment for such documents, tangible things or testimony. Any such person may
designate documents, tangible things or testimony confidential pursuant to this Protective Order.
Filing Documents With the Court.
12.

In the event that any party wishes to submit Confidential Information to the Court,

such Confidential Information shall be filed under seal.
No Prejudice.
13.

Producing or receiving confidential information, or otherwise complying with the

terms of this Protective Order, shall not (a) operate as an admission by any party that any
particular Confidential Information contains or reflects trade secrets or any other type of
confidential or proprietary information; (b) prejudice the rights of a party to object to the
production of information or material that the party does not consider to be within the scope of
discovery; (c) prejudice the rights of a party to seek a determination by the Court that particular
materials be produced; (d) prejudice the rights of a party to apply to the Court for further
protective orders; or (e) prevent the parties from agreeing in writing to alter or waive the
provisions or protections provided for herein with respect to any particular information or
material.

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Conclusion of Litigation.
14.

Upon written request by the producing party after final judgment in this action,

including the exhaustion of all appeals, or after dismissal pursuant to a settlement agreement, a
receiving party or other person subject to the terms of this Protective Order shall destroy or
return to the producing party all materials and documents containing Confidential Information,
and certify to the producing party such destruction or return. However, outside counsel for any
party shall be entitled to retain all court papers, trial transcripts, exhibits and attorney work
provided that any such materials are maintained and protected in accordance with the terms of
this Protective Order.
Other Proceedings.
15.

By entering this Order and limiting the disclosure of information in this case, the

Court does not intend to preclude another court from finding that information may be relevant
and subject to disclosure in another case. Any person or parties subject to this Protective Order
that may be subject to a motion to disclose another party’s information designated Confidential
pursuant to this Protective Order, shall promptly notify that party of the motion so that it may
have an opportunity to appear and be heard on whether that information should be disclosed.
16.

Any party may petition the Court for good cause shown, in the event such party

desires relief from a term or condition of this Order.
IT IS SO ORDERED.
Dated this 12th day of July 2012.

s/Robert H. Cleland
Honorable Robert H. Cleland

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Submitted and Agreed To:

/s/ Randall J. Gillary
Randall J. Gillary
Kevin P. Albus
Randall J. Gillary, P.C.
201 W. Big Beaver Road, Suite 1020
Troy, MI 48084
Telephone: [phone]
Email: [e-mail]
[e-mail]
Attorneys for Plaintiff

/s/ Daniel J. Ferris
Patrick McLain (P25458)
Daniel J. Ferris (P69633)
Kerr, Russell and Weber, PLC
500 Woodward Avenue, Suite 2500
Detroit, MI 48226
Telephone: [phone]
Fax: [phone]
Email: [e-mail]
[e-mail]

/s/ Allan V. Hallquist
Allan V. Hallquist
Michael T. Crabb
Husch Blackwell LLP
Suite 1000
Kansas City, MO 64112
Telephone: [phone]
Email: [e-mail]
[e-mail]
Attorneys for Defendants

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EXHIBIT A
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
ALEXANDER ASSOCIATES, INC.,
Plaintiff,
v.
WHIRLAWAY CORP.,
Defendant.

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Case No.: 2:12-CV-10226
Honorable Robert H. Cleland
Magistrate Judge Mona K. Majzoub

CONFIDENTIALITY AGREEMENT FOR EXPERT,
CONSULTANT OR EMPLOYEES OF ANY PARTY
I HEREBY AFFIRM THAT:
INFORMATION, INCLUDING DOCUMENTS AND THINGS, DESIGNATED AS
“CONFIDENTIAL INFORMATION,” AS DEFINED IN THE PROTECTIVE ORDER
ENTERED IN THE ABOVE-CAPTIONED ACTION (HEREINAFTER “PROTECTIVE
ORDER”), IS BEING PROVIDED TO ME PURSUANT TO THE TERMS AND
RESTRICTIONS OF THE PROTECTIVE ORDER.
I HAVE BEEN GIVEN A COPY OF AND HAVE READ THE PROTECTIVE ORDER.
I AM FAMILIAR WITH THE TERMS OF THE PROTECTIVE ORDER, AND I
AGREE TO COMPLY WITH AND TO BE BOUND BY SUCH TERMS.
I SUBMIT TO THE JURISDICTION OF THIS COURT FOR ENFORCEMENT OF
THE PROTECTIVE ORDER.
I AGREE NOT TO USE ANY CONFIDENTIAL INFORMATION DISCLOSED TO
ME PURSUANT TO THE PROTECTIVE ORDER EXCEPT FOR PURPOSES OF THE
ABOVE-CAPTIONED LITIGATION AND NOT TO DISCLOSE ANY SUCH
INFORMATION TO PERSONS OTHER THAN THOSE SPECIFICALLY AUTHORIZED BY
SAID PROTECTIVE ORDER, WITHOUT THE EXPRESS WRITTEN CONSENT OF THE
PARTY WHO DESIGNATED SUCH INFORMATION AS CONFIDENTIAL OR BY ORDER
OF THIS COURT. I ALSO AGREE TO NOTIFY ANY STENOGRAPHIC, CLERICAL OR
TECHNICAL PERSONNEL WHO ARE REQUIRED TO ASSIST ME OF THE TERMS OF
THIS PROTECTIVE ORDER AND OF ITS BINDING EFFECT ON THEM AND ME.

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I UNDERSTAND THAT I AM TO RETAIN ALL DOCUMENTS OR MATERIALS
DESIGNATED AS OR CONTAINING CONFIDENTIAL INFORMATION IN A SECURE
MANNER, AND THAT ALL SUCH DOCUMENTS AND MATERIALS ARE TO REMAIN
IN MY PERSONAL CUSTODY UNTIL THE COMPLETION OF MY ASSIGNED DUTIES
IN THIS MATTER, WHEREUPON ALL SUCH DOCUMENTS AND MATERIALS,
INCLUDING ALL COPIES THEREOF, AND ANY WRITINGS PREPARED BY ME
CONTAINING ANY CONFIDENTIAL INFORMATION ARE TO BE RETURNED TO
COUNSEL WHO PROVIDED ME WITH SUCH DOCUMENTS AND MATERIALS.
SIGNED:
PRINT NAME:
DATED:

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