JAC Products, Inc. v. Yakima Products, Inc.

Filing 18

Stipulated PROTECTIVE ORDER. Signed by District Judge Terrence G. Berg. (AChu)

Case 2:21-cv-10633-TGB-CI ECF No. 18, PageID.270 Filed 11/17/21 Page 1 of 14

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
JAC PRODUCTS, INC.,
Case No.: 21-cv-10633-TGB-CI
Hon. Terrence G. Berg
Hon Magistrate Curtis Ivy, Jr.

Plaintiff,
vs.
YAKIMA PRODUCTS, INC.,
Defendant.

STIPULATED PROTECTIVE ORDER
Plaintiff JAC Products, Inc. and Defendant Yakima Products, Inc., (each
individually a “Party” and together the “Parties”), believe that certain information
that is or will be encompassed by discovery requests by the Parties might require the
production or disclosure of trade secrets, confidential business information, or other
proprietary information.
It is thus stipulated among the Parties and ORDERED that:
1.

Each Party may, if it determines in good faith, designate as confidential

for protection under this Order, in whole or in part, any document, information, or
material that constitutes or includes, in whole or in part, confidential and/or
proprietary information, research, development, financial and/or competitive
information, and/or trade secrets of the Party or a third party to whom the Party

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reasonably believes it owes an obligation of confidentiality with respect to such
document, information, or material (“Protected Material”). Protected Material shall
be designated by the Party producing it by affixing a “CONFIDENTIAL” legend or
stamp on such document, information, or material. The legend or stamp shall be
placed clearly on each page of the Protected Material or, if the production does not
allow for such designation, by designating the production as Confidential in
correspondence accompanying production of such Protected Material (except
deposition and hearing transcripts) for which such protection is sought.
2.

With respect to deposition and/or hearing transcripts, the Party seeking

to designate a transcript as confidential shall on the record at the deposition or
hearing, or within thirty days after receipt of a deposition or hearing transcript,
designate the deposition or hearing transcript or any portion thereof as
“CONFIDENTIAL” pursuant to this Order. For deposition and hearing transcripts,
the legend or stamp shall be placed on the cover page of the transcript (if not already
present on the cover page of the transcript when received from the court reporter) by
each attorney receiving a copy of the transcript after that attorney receives notice of
the designation of some or all of that transcript as CONFIDENTIAL.
3.

With respect to documents, information, or material designated

CONFIDENTIAL (collectively, “Designated Material”), subject to the provisions
herein and unless otherwise stated, this Order governs, without limitation: (a) all

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documents, electronically stored information, and/or things as defined by the Federal
Rules of Civil Procedure; (b) all pretrial, hearing, or deposition testimony, or
documents marked as exhibits or for identification in depositions and hearings; (c)
pretrial pleadings, exhibits to pleadings and other court filings; (d) affidavits; and (e)
stipulations. All copies, reproductions, extracts, digests and complete or partial
summaries prepared from any Designated Materials shall also be considered
Designated Material and treated as such under this Order.
4.

A designation of Protected Material as Confidential may be made at

any time. The inadvertent or unintentional disclosure of Protected Material that has
not been designated as Designated Material shall not be deemed a waiver in whole
or in part of a Party’s claim for confidential treatment. Any party that inadvertently
or unintentionally produces Protected Material without designating it as Designated
Material may request destruction of that Protected Material by notifying the
recipient(s) as soon as reasonably possible after the producing Party becomes aware
of the inadvertent or unintentional disclosure, and providing replacement Protected
Material that is properly designated. The recipient(s) shall then destroy or return, at
the designating Party’s option, all copies of the inadvertently or unintentionally
produced Protected Materials and any documents, information, or material derived
from or based thereon. If discovery material has been disclosed and is subsequently
designated as “CONFIDENTIAL,” the disclosing Party shall make good faith efforts

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to preserve the confidential nature of such material and to obtain compliance with
this Order from any person to whom such Protected Material was disclosed.
5.

Unless otherwise agreed to in writing by both Parties or upon order of

the Court, CONFIDENTIAL documents, information, and material may be
disclosed only to the following persons:
a.

Counsel for the Parties;

b.

Employees of such counsel assigned to and reasonably necessary

to assist such counsel in the litigation of this action;
c.

In-house counsel for the Parties who either have responsibility

for making decisions dealing directly with the litigation of this action, or who
are assisting outside counsel in the litigation of this action;
d.

Experts, consultants (including independent experts), and

investigators, including the employees of such experts, consultants, or
investigators, who are employed, retained, or otherwise consulted by counsel
or a party for the purpose of analyzing data, conducting studies, or providing
opinions to assist, in any way, in this matter. Access to confidential material
shall be limited to what is reasonably required in the role of expert, consultant,
and investigator. Such persons must agree in writing to be bound by the terms
of this order;
e.

Independent litigation support services, including persons

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working for or as court reporters, graphics or design services, jury or trial
consulting services, and photocopy, document imaging, and database services
retained by counsel and reasonably necessary to assist counsel with the
litigation of this action;
f.
g.

The Court and its personnel; and

h.
6.

Witnesses in connection with the action;

Any other person with the written consent of the Parties.

Each person other than counsel (and the partners, associates and

employees of such counsel to the extent reasonably necessary to render professional
services in the litigation), in-house counsel, Court personnel (including
stenographers), commercial photocopying firms, litigation support firms, deposition
witnesses, and witnesses anticipated to testify at either hearings or trial to whom
disclosure of Designated Material is to be made shall be provided with a copy of this
Order and will be required as a condition precedent to disclosure to sign a
confidentiality agreement in the form attached as “Exhibit A.”
7.

Documents, information, or material produced pursuant to any

discovery request in this action including, but not limited to, Protected Material
designated as Designated Material, shall be used by the Parties only in the litigation
of this action and shall not be used for any other purpose. Any person or entity who
obtains access to Designated Material or the contents thereof pursuant to this Order

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shall not make any copies, duplicates, extracts, summaries or descriptions of such
Designated Material or any portion thereof except as may be reasonably necessary
in the litigation of this action. Any such copies, duplicates, extracts, summaries or
descriptions shall be classified Designated Material and shall be subject to all of the
terms and conditions of this Order.
8.

There shall be no disclosure of any Designated Material by any person

authorized to have access thereto to any person who is not authorized for such access
under this Order. The Parties are hereby ORDERED to safeguard all such
documents, information, and material to protect against disclosure to any
unauthorized persons or entities.
9.

Nothing contained herein shall be construed to prejudice any Party’s

right to use any Designated Material in taking testimony at any deposition or hearing
provided that the Designated Material is only disclosed to a person(s) who is: (a)
eligible to have access to the Designated Material by virtue of his or her employment
with the designating party; (b) identified in the Designated Material as an author,
addressee, or copy recipient of such information; (c) although not identified as an
author, addressee, or copy recipient of such Designated Material, has, in the ordinary
course of business, seen such Designated Material; (d) a current or former officer,
director or employee of the producing Party or a current or former officer, director
or employee of a company affiliated with the producing Party; (e) counsel for a

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Party; (f) an independent contractor, consultant, and/or expert retained for the
purpose of this litigation; (g) court reporters and videographers; (h) the Court; or (i)
other persons entitled hereunder to access Designated Material. Designated Material
shall not be shown, disseminated, copied, disclosed, or in any way communicated to
any other persons unless prior authorization is obtained from counsel representing
the producing Party or from the Court. To the extent Designated Material is to be
filed on the record due to its use in court under this paragraph, the parties shall use
all reasonable efforts to redact the Designated Material before it is publically filed
or to otherwise have the Designated Material filed under seal.
10.

Parties may, at the deposition or hearing or within thirty days after

receipt of a deposition or hearing transcript, designate the deposition or hearing
transcript or any portion thereof as CONFIDENTIAL pursuant to this Order. Access
to the deposition or hearing transcript so designated shall be limited in accordance
with the terms of this Order. Until expiration of the 30-day period, or unless
designated earlier, the entire deposition or hearing transcript shall be treated as
CONFIDENTIAL. The Parties, through their counsel, shall make a good faith effort
to limit any designation of transcripts as CONFIDENTIAL to only those portions of
the transcript that contain information falling within the designation categories as
described above in paragraph 6.
11.

Materials marked CONFIDENTIAL pursuant to this Stipulated

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Protective Order or that contain information that has been derived from materials
marked CONFIDENTIAL shall be filed under seal in accordance with the Procedure
for Moving to File Under Seal, outlined in Local Rule 5.3(b)(3), and the Discovery
Practice Guidelines for the Hon. Terrance G. Berg.

If a filing containing

CONFIDENTIAL material must be made before a Motion to File Under Seal can be
filed and/or is ruled on by the Court, then the filing may have redactions in
accordance with the requirements outlined in Local Rule 5.3(b)(3)(A)(v).
12.

Nothing in this Order shall be deemed to prevent the Parties from

disclosing or using, in any manner, any Designated Material at the trial of this action,
subject to any trial order issued by this Court.
13.

A Party may request, in writing to the other Party, that the designation

given to any Designated Material be modified or withdrawn. The Parties must confer
in good faith in an attempt to reach an agreement regarding the status of the redesignation. However, if the designating Party does not agree to re-designation
within ten days of receipt of the written request, the requesting Party may apply to
the Court for relief. Upon any such application to the Court, the burden shall be on
the designating Party to show why its classification is proper. Such application shall
be treated procedurally as a motion to compel pursuant to Federal Rules of Civil
Procedure 37, subject to the Rule’s provisions relating to sanctions. In making such
application, the requirements of the Federal Rules of Civil Procedure and the Local

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Rules of the Court shall be met. Pending the Court’s determination of the
application, the designation of the designating Party shall be maintained.
14.

A nonparty that produces documents or other information in this matter

pursuant to a subpoena may produce said documents or other information according
to the provisions set forth herein. Any Party may also designate such documents or
other information produced by a nonparty as CONFIDENTIAL.
15.

Within sixty days of final termination of this action, including any

appeals and time for appeals, all Designated Material and copies thereof shall be
returned to the producing Party or be destroyed, at the producing Party’s option. The
receiving Party shall verify the return or destruction by declaration furnished to the
producing Party upon the producing Party’s request. In addition, for archival
purposes, outside counsel for each Party may retain pleadings and other papers filed
with the Court, attorney and consultant work product, excerpts or extracts of
Designated Material incorporated into work product, deposition transcripts and
exhibits, and materials which have been admitted into evidence in this litigation. To
the extent the provisions of this Order and any other protective orders entered in this
action restrict the communication and use of Designated Material, such orders shall
continue to be binding after the conclusion of this litigation, except that there shall
be no restriction on documents that are used as exhibits in Court unless such exhibits
were filed under seal, and a Party may seek the written permission of the producing

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Party or order of the Court with respect to dissolution or modification of such
protective orders.
16.

Production of Designated Material by each of the Parties shall not be

deemed a publication of the documents, information, and material (or the contents
thereof) produced so as to void or make voidable whatever claim the Parties may
have as to the proprietary and confidential nature of the documents, information, or
other material or its contents.
17.

Each of the Parties shall also retain the right to file a motion with the

Court (a) to modify this Order to allow disclosure of Designated Material to
additional persons or entities if reasonably necessary to prepare and present this
action and (b) to apply for additional protection of Designated Material.
18.

Nothing in this Order shall prevent or otherwise restrict counsel from

rendering advice to their clients and, in the course thereof, relying generally on
Designated Material.
19.

Nothing in this Order shall restrict a Party’s use and disclosure of its

own materials and information, nor create any obligation for a Party to share or
disclose any materials or information whether privileged or not.
20.

This Order shall not he deemed a waiver of: (a) any Party’s right to

object to any discovery request on any ground; or (b) any Party’s right in any
proceeding in this lawsuit to object to the admission of any evidence on any ground.

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21.

This Stipulated Protective Order shall survive and continue to be

binding after the conclusion of this action. The Court shall retain jurisdiction to
enforce this Order.
Date: November 17, 2021

/s/Terrence G. Berg______________
Hon. Terrence G. Berg
U.S. District Court Judge

The undersigned stipulate to the form, substance, and entry of the above order.
Dated: November 11, 2021

By: /s/Rebecca El Badaoui (w/ permission)
Joseph J. Shannon (P38041)
Rebecca El Badaoui (P84488)
Bodman PLC
1901 St. Antoine St.
6th Floor at Ford Field
Detroit, Michigan 48226
Attorneys for Plaintiff

Dated: November 11, 2021

By: /s/Adam T. Ratliff
Adam T. Ratliff (P79892)
Warner Norcross + Judd LLP
2715 Woodward Avenue, Suite 300
Detroit, Michigan 48201
Attorneys for Defendant

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EXHIBIT A

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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
JAC PRODUCTS, INC.,
Case No.: 21-cv-10633-TGB-CI
Hon. Terrence G. Berg
Hon Magistrate Curtis Ivy, Jr.

Plaintiff,
vs.
YAKIMA PRODUCTS, INC.,
Defendant.

CONFIDENTIALITY AGREEMENT
I, ____________________________________________, declare that:
1.

My address is ______________________________________.

2.

My current employer is ____________________________________.

3.

My current occupation is ___________________________________.

4.

The address of my current employer is ________________________.

5.

I have received a copy of the Stipulated Protective Order in this action.

6.

I have carefully read and understand the provisions of the Stipulated

Protective Order, and will comply with all of its provisions.
7.

I will hold in confidence, will not disclose to anyone not qualified under

the Stipulated Protective Order, and will use only for purposes of this action any
information designated as CONFIDENTIAL that is disclosed to me.

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8.

Promptly upon termination of these actions, I will return all documents

and things designated as CONFIDENTIAL that came into my possession, including
all documents and things that I have prepared relating thereto, to counsel for one of
the Parties.
9.

I hereby submit to the jurisdiction of this Court for the purpose of

enforcement of the Stipulated Protective Order in this action.

I declare under penalty of perjury that the foregoing is true and correct.
Signature ________________________________________
Date ____________________________________________

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