Nexteer Automotive Corporation v. Korea Delphi Automotive Systems Corporation

Filing 16

STIPULATED PROTECTIVE ORDER Signed by District Judge George Caram Steeh. (MBea)

UNITED STATES DISTRICT COURT
IN THE EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
Case No.: 2:13-cv-15189-GCS-LJM

NEXTEER AUTOMOTIVE
CORPORATION,

Hon. George Caram Steeh
Plaintiff,
Magistrate Judge Laurie J. Michelson
v.
KOREA DELPHI AUTOMOTIVE
SYSTEMS CORPORATION,
Defendant.
__________________________________________________________________/
STIPULATED PROTECTIVE ORDER
This matter having come before the Court pursuant to the stipulation of the
parties, as evidenced by the signatures below, and the Court being otherwise fully
advised of the premises;
IT IS HEREBY STIPULATED AND AGREED by and between counsel for
NEXTEER

AUTOMOTIVE

CORPORATION

and

KOREA

DELPHI

AUTOMOTIVE SYSTEMS CORPORATION (collectively, “the Parties”), for
good cause shown and subject to the approval of this Court, that documents and
exhibits which each side may submit to the Court in connection with the pending
Motion for Preliminary Injunction may contain confidential and proprietary
information and trade secrets, which will not be used or disclosed by the Parties

and their respective counsel except under the terms of the following Stipulated
Protective Order (“Protective Order”).
IT IS HEREBY STIPULATED, AGREED AND ORDERED THAT:
1.

This Protective Order shall govern the use of information included

within the Parties’ submissions (briefs, presentations, exhibits, etc.) with regard to
the pending Motion for Preliminary Injunction. Should the matter proceed beyond
the scheduled hearing of January 27, 2014, the Parties will confer regarding the
need for a protective order of broader application to these proceedings and to the
transcript thereof.
2.

Plaintiff, Defendant, and/or third parties may designate in the course

of this litigation as “CONFIDENTIAL” any material reasonably believed in good
faith to constitute material used by them in, or pertaining to, their business which
information is not generally known and which that party would not normally reveal
to third parties or would cause third parties to maintain in confidence including
information that is commercially sensitive, confidential, proprietary or trade secrets
in the manner set forth below, or by written agreement of the parties at any time.
The term “CONFIDENTIAL” shall include the material so designated, all copies
thereof, and any information appearing therein.
3.

All or any part of a document or tangible item that is disclosed by

Plaintiff or Defendant with regard to the pending Motion for Preliminary
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Injunction may be designated as “CONFIDENTIAL” by the disclosing party by
marking or stamping the words “CONFIDENTIAL” on the face of the writing so
designated, except that in the case of multi-page documents bound together by
staple or other permanent binding, the legend “CONFIDENTIAL” need only be
marked or stamped on the first page of the document in order for the entire
document to be treated as “CONFIDENTIAL” material.
4.

Except by the prior written consent of Plaintiff and/or Defendant

asserting “CONFIDENTIAL” treatment or upon further order of this Court, all or
any portion of the document or tangible item that is marked “CONFIDENTIAL”
shall be used solely for purposes of this litigation and in accordance with the
provisions of this Protective Order.
5.

Other than court personnel or as provided below, access to items

marked “CONFIDENTIAL” shall be limited to:
a.

The parties and their employees to the extent necessary to
litigate the claims;

b.

Counsel of record for the parties and such counsel's employees
assigned to and necessary to assist such counsel in this
litigation;

c.

Experts and consultants, including independent experts and
consultants and employees or clerical assistants of said experts
who are employed, retained, or otherwise consulted by counsel
for the purpose of analyzing data, conducting studies, or
providing opinions to assist, in any way, in this litigation;
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d.

e.

Court reporters who record relevant testimony; and

f.

6.

Employees of outside copy services used to make copies of
materials;

Persons as hereinafter may be designated by written stipulation
of all parties or by further order of the Court, on motion by any
party to the extent reasonably necessary for the prosecution or
defense of this litigation.

“CONFIDENTIAL” material or other papers which contain or make

reference to “CONFIDENTIAL” material may be disclosed by a party to the Court
in connection with any filing or proceeding in this litigation, but such party shall
cause the “CONFIDENTIAL” material to be filed under seal with the Clerk of the
Court. The following form shall be endorsed on the cover: “CONFIDENTIAL
MATERIAL-SUBJECT TO PROTECTIVE ORDER.”

A copy of the papers

submitted for filing to the Court may also be submitted to the judge, provided that
the judge is advised of the “CONFIDENTIAL” status of the papers, contents, or
portions and is requested to dispose of the same in a manner consistent with the
protections afforded by this Protective Order.
7.

Plaintiff and/or Defendant shall not copy or reproduce any

“CONFIDENTIAL” material, except insofar as copies are reasonably necessary for
purposes of this litigation.

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8.

The Parties will work with the Court to safeguard the discussion of

CONFIDENTIAL materials in open court as part of the hearing scheduled for
January 27, 2014 or thereafter.
9.

Each individual who receives any “CONFIDENTIAL” material

hereby agrees to subject himself/herself to the jurisdiction of the United States
District Court for the Eastern District of Michigan, for the purpose of any
proceeding related to the performance under, compliance with, or violation of this
Protective Order.
10.

Plaintiff and/or Defendant shall have the right at any time, after

receiving “CONFIDENTIAL” material, to challenge/object to any information or
material designated as “CONFIDENTIAL” material.

Should Plaintiffs and/or

Defendants object to the designation of the information as “CONFIDENTIAL”
material, based upon a good faith belief that the material is not entitled to
protection, counsel for the objecting party shall state the objection by letter to
counsel for the party making the designation. Thereafter, counsels shall promptly
confer in a good faith effort to resolve any dispute concerning the designation of
any such “CONFIDENTIAL” material for a period not to exceed three (3) days.
Failing resolution, counsel for the party objecting to the designation may apply to
the Court, on motion, for a ruling that the information or material shall not be so
treated. The party designating the information as “CONFIDENTIAL” shall have
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the burden of proof demonstrating good cause for the classification of the material
as “CONFIDENTIAL.” Unless and until this Court enters an order to the contrary,
the information or material shall be treated as “CONFIDENTIAL.”
11.

Nothing in this Order shall be construed in any way as a finding on

the issue of whether the “CONFIDENTIAL” material does or does not constitute
or contain confidential or proprietary information or trade secrets.
12.

Inadvertent or unintentional production of any “CONFIDENTIAL”

material without it being marked “CONFIDENTIAL” shall not itself be deemed a
waiver of any claim of confidentiality, proprietary or trade secrets as to such
matter, and the same may thereafter be corrected as soon as reasonably possible
after the producing party becomes aware of the inadvertent or unintentional
disclosure by supplemental written notice. After receipt of such written notice, the
designated material shall thereafter be treated in accordance with this Protective
Order, but the parties receiving such notice shall have no obligation with respect to
the disclosure of the material made prior to such written notice.
13.

The inadvertent production of documents subject to the attorney-client

privilege, the attorney-work product privilege or any other privilege or doctrine
(collectively “privilege”) will not waive the privilege; provided, however, that this
Protective Order shall not prevent any party from moving to compel production of
allegedly privileged Document on any grounds other than the inadvertent
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production of such Documents. Upon a request from a party that has inadvertently
produced any Document that it believes may be subject to privilege any Party
receiving said document shall immediately return it to the producing Party.
14.

The independent production of any document or information without

the proper designation of confidentiality will not be deemed to waive a later claim
as to its confidential nature or stop Plaintiffs and/or Defendants from designating
said document or information as “CONFIDENTIAL.”
15.

Plaintiff and/or Defendant, their respective counsel of record, and

individuals bound by this Protective Order shall exercise reasonable measures so
that all materials designated as “CONFIDENTIAL” are maintained in such a
manner as to prevent any disclosure thereof, except in accordance with the terms of
this Protective Order.
16.

Should any “CONFIDENTIAL” material be disclosed, through

inadvertence or otherwise, to any person or persons not authorized under this
Protective Order, then, in addition to any penalties for violation of this Protective
Order to which the disclosing party may be subject, the disclosing party shall use
his or her best efforts to bind such unauthorized person to the terms of this
Protective Order, and the disclosing party shall (a) promptly inform such person of
all the provisions of this Protective Order; (b) identify immediately such person
and the “CONFIDENTIAL” material disclosed to the party that designated the
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information as “CONFIDENTIAL”; and (c) retrieve all copies of documents and
things containing the inadvertently disclosed information.
17.

This Protective Order shall in no way constitute a waiver of the right

of the parties to raise or assert any defenses or objections, including, but not
limited to, the use, relevance or admissibility of any information, testimony or
documents.
18.

This Protective Order has no effect upon, and shall not apply to, the

parties’ use of their own “CONFIDENTIAL” material for any purpose.
19.
by

a

Nothing herein shall impose any restrictions on the use or disclosure

party

of

documents,

material

or

information

designated

as

“CONFIDENTIAL” that was, is or becomes public record not in violation of this
Protective Order, is acquired by the non-designating party from a third party
having the right to disclose such information or material, or was obtained lawfully
by such party independently of discovery in this action.
20.

Upon the final determination of this action, including appeals, if any,

all “CONFIDENTIAL” material which has been submitted to the Court during the
course of this action, including “CONFIDENTIAL” material submitted for
identification and/or into evidence at the trial of the action, may be the subject of a
withdrawal request addressed to this Court and the consent of all parties to such
request shall not be withheld without good cause.
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21.

Within forty-five (45) days after the conclusion of this litigation,

including all appeals, if any, counsel for each party shall return to counsel for the
producing party all documents and information designated as “CONFIDENTIAL”
and all copies thereof (including, without limitation, copies provided to testifying
or consulting experts), covered by this Protective Order, or the party's counsel shall
certify that all such materials and copies have been destroyed.

As to those

materials containing “CONFIDENTIAL” material, which constitute counsel's work
product or counsel's file copies of materials served in this matter or submitted to
the Court in connection with this litigation, counsel may retain such materials
provided that counsel otherwise complies with this Protective Order with respect to
such materials. Counsel for any party shall, if requested by counsel for another
party, certify that the terms of this paragraph have been complied with to the best
of his or her knowledge and belief.
22.

The terms of this Protective Order shall be binding upon all current

and future parties to this Action and their counsel.
23.

Written notice provided pursuant to this Protective Order shall be

made to the counsels of record identified below at the addresses listed.
24.

This Protective Order and the agreements embodied herein shall

survive the termination of this action and shall continue thereafter in full force and
effect.
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25.

This Protective Order may be modified or amended by further order

of the Court for good cause shown.
IT IS SO ORDERED, with the consent of the parties, this 16th day of
January, 2014.

s/George Caram Steeh
U.S. DISTRICT JUDGE

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STIPULATED AND AGREED:
/s/

John R. Trentacosta (P31856)
Scott T. Seabolt (P55890)
Irina Kashcheyeva (P72575)
FOLEY & LARDNER LLP
500 Woodward Ave., Ste. 2700
Detroit, Michigan 48226
[phone]
[e-mail]
[e-mail]
[e-mail]

/s/
_______________
Daniel D. Quick (P48109)
James M. Martone (P77601)
DICKINSON WRIGHT PLLC
2600 West Big Beaver Road, Suite 300
Troy, MI 48084
248-433-7200
[e-mail]
[e-mail]
Attorneys for Defendants

Attorneys for Plaintiff

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