Evrythng Limited v. Avery Dennison Retail Information Services LLC et al

Filing 37

PROTECTIVE ORDER...regarding procedures to be followed that shall govern the handling of confidential material... SO ORDERED. Motions terminated: 36 SECOND LETTER MOTION for Leave to File Protective Order addressed to Judge Lewis J. Liman from Seth Harrington dated June 4, 2021. filed by Evrythng limited. (Signed by Judge Lewis J. Liman on 6/4/2021) (vfr)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
EVRYTHNG LIMITED,

Civil Action No. 1:21-cv-04411 (LJL)

Plaintiff,
-against-

PROTECTIVE ORDER

AVERY DENNISON RETAIL
INFORMATION SERVICES, LLC and
AVERY DENNISON RFID COMPANY,
Defendants.
LEWIS J. LIMAN, United States District Judge:
WHEREAS all of the parties to this action (collectively, the “Parties,” and individually, a
“Party”) request that this Court issue a protective order pursuant to Federal Rule of Civil
Procedure 26(c) to protect the confidentiality of certain nonpublic and confidential material that
will be exchanged pursuant to and during the course of discovery in this case;
WHEREAS, the Parties, through counsel, agree to the following terms;
WHEREAS, the Parties acknowledge that this Protective Order does not confer blanket
protections on all disclosures or responses to discovery and that the protection it affords only
extends to the limited information or items that are entitled, under the applicable legal principles,
to confidential treatment;
WHEREAS, the Parties further acknowledge that this Protective Order does not create
entitlement to file confidential information under seal; and
WHEREAS, in light of these acknowledgements, and based on the representations of the
Parties that discovery in this case will involve confidential documents or information the public
disclosure of which will cause harm to the producing person and/or third party to whom a duty of
confidentiality is owed, and to protect against injury caused by dissemination of confidential
documents and information, this Court finds good cause for issuance of an appropriately tailored
confidentiality order governing the pretrial phase of this action;
IT IS HEREBY ORDERED that any person subject to this Protective Order—including
without limitation the parties to this action, their representatives, agents, experts and consultants,
all third parties providing discovery in this action, and all other interested persons with actual or
constructive notice of this Protective Order—shall adhere to the following terms:

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1.
Any person subject to this Protective Order who receives from any other person
subject to this Protective Order any “Discovery Material” (i.e., information of any kind produced
or disclosed pursuant to and in course of discovery in this action) that is designated as
“Confidential,” “Highly Confidential,” or “Attorneys Eyes Only” pursuant to the terms of this
Protective Order (hereinafter “Confidential Discovery Material”) shall not disclose such
Confidential Discovery Material to anyone else except as expressly permitted hereunder.
2.
The person producing any given Discovery Material may designate as
Confidential only such portion of such material the public disclosure of which is either restricted
by law or will cause harm to the business, commercial, financial or personal interests of the
producing person and/or a third party to whom a duty of confidentiality is used and that consists
of:
(a) previously nondisclosed financial information (including without limitation
profitability reports or estimates, percentage fees, design fees, royalty rates, minimum
guarantee payments, sales reports, sale margins, and pricing);
(b) previously nondisclosed technological information (including without
limitation software whether in source or executable code, techniques, methods, processes,
and related documentation);
(c)previously nondisclosed material relating to ownership or control of any
non-public company;
(d) previously nondisclosed business plans, product development information,
or marketing plans (including without limitation customer lists and prospective customer
lists);
(e) any information of a personal or intimate nature regarding any individual; or
(f) any other category of information hereinafter given confidential status by
the Court.
The person producing any given Discovery Material may designate as “Highly
Confidential” only such portion(s) of such material that contains confidential information that is
especially sensitive.
The person producing any given Discovery Material may designate as “Attorneys Eyes
Only” only such portion(s) of such material that contains confidential information that implicates
third-party confidentiality obligations, competitive business information, business strategy
information, trade secret information, or other information reasonably likely to cause a
competitive harm to the producing person or a third-party should such information be viewed by
employee(s) of a Party.
3.
With respect to the Confidential or Highly Confidential portion of any Discovery
Material other than deposition transcripts and exhibits, the producing person or that person’s
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counsel may designate such portion as “Confidential” by: (a) stamping or otherwise clearly
marking as “Confidential” or “Highly Confidential” the protected portion in a manner that will
not interfere with legibility or audibility; and (b) producing for future public use another copy of
said Discovery Material with the confidential information redacted.
4.
With respect to deposition transcripts, a producing person or that person’s counsel
may designate such portion as Confidential or Highly Confidential either by (a) indicating on the
record during the deposition that a question calls for Confidential or Highly Confidential
information, in which case the reporter will bind the transcript of the designated testimony
(consisting of question and answer) in a separate volume and mark it as “Confidential
Information Governed by Protective Order”; or (b) notifying the reporter and all counsel of
record, in writing, within 30 days after a deposition has concluded, of the specific pages and lines
of the transcript and/or the specific exhibits that are to be designated Confidential or Highly
Confidential, in which case all counsel receiving the transcript will be responsible for marking the
copies of the designated transcript or exhibit (as the case may be), in their possession or under
their control as directed by the producing person or that person’s counsel by the reporter. During
the 30-day period following the conclusion of a deposition, the entire deposition transcript will
be treated as if it had been designated Confidential.
5.
If at any time prior to the trial of this action, a producing person realizes that some
portion(s) of Discovery Material that she, he, or it had previously produced without limitation
should be designated as Confidential or Highly Confidential, she, he, or it may so designate by so
apprising all prior recipients of the Discovery Material in writing, and thereafter such designated
portion(s) of the Discovery Material will thereafter be deemed to be and treated as Confidential
or Highly Confidential under the terms of this Protective Order.
6.
No person subject to this Protective Order other than the producing person shall
disclose any of the Discovery Material designated by the producing person as Confidential to any
other person whomsoever, except to:
(a) the Parties to this action, their insurers, and counsel to their insurers;
(b) counsel retained specifically for this action, including any paralegal,
clerical and other assistant employed by such counsel and assigned to this matter;
(c) outside vendors or service providers (such as copy-service providers
and document-management consultants, graphic production services or other litigation
support services) that counsel hire and assign to this matter, including computer service
personnel performing duties in relation to a computerized litigation system;
(d) any mediator or arbitrator that the Parties engage in this matter or that this
Court appoints, provided such person has first executed a Non-Disclosure Agreement in the form
annexed as an Exhibit hereto;

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(e) as to any document, its author, its addressee, and any other person indicated
on the face of the document as having received a copy;
(f) any witness who counsel for a Party in good faith believes may be called to
testify at trial or deposition in this action, provided such person has first executed a NonDisclosure Agreement in the form annexed as an Exhibit hereto;
(g) any person retained by a Party to serve as an expert witness or otherwise
provide specialized advice to counsel in connection with this action, provided such person has
first executed a Non-Disclosure Agreement in the form annexed as an Exhibit hereto;
(h) stenographers engaged to transcribe depositions conducted in this action; and
(i) this Court, including any appellate court, and the court reporters and
support personnel for the same.
7.
No person subject to this Protective Order other than the producing person shall
disclose any of the Discovery Material designated by the producing person as Highly
Confidential to any other person whomsoever, except to:
(a) up to four employees of a Party that have been disclosed to the producing
person, such disclosure including the name of the employee, their title, and a brief description of
their job responsibilities. The Parties shall have two (2) business days to object to a particular
employee being under this Protective order if that person’s job responsibilities are such that
receipt of Highly Confidential Discovery Material by that employee could reasonably cause
competitive harm to the objecting Party. The Parties shall promptly meet and confer regarding
the objection. The burden of persuasion shall be on the objecting Party to justify the objection.
If the Parties cannot reach agreement promptly, counsel for all Parties will address their dispute
to this Court in accordance with Paragraph 1(B) of this Court’s Individual Practices in Civil
Cases.
(b) counsel retained specifically for this action, including any paralegal,
clerical and other assistant employed by such counsel and assigned to this matter;
(c) outside vendors or service providers (such as copy-service providers
and document-management consultants, graphic production services or other litigation
support services) that counsel hire and assign to this matter, including computer service
personnel performing duties in relation to a computerized litigation system;
(d) any mediator or arbitrator that the Parties engage in this matter or that this
Court appoints, provided such person has first executed a Non-Disclosure Agreement in the form
annexed as an Exhibit hereto;
(e) as to any document, its author, its addressee, and any other person indicated
on the face of the document as having received a copy;
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(f) any witness who counsel for a Party in good faith believes may be called to
testify at trial or deposition in this action, provided such person has first executed a NonDisclosure Agreement in the form annexed as an Exhibit hereto;
(g) any person retained by a Party to serve as an expert witness or otherwise
provide specialized advice to counsel in connection with this action, provided such person has
first executed a Non-Disclosure Agreement in the form annexed as an Exhibit hereto;
(h) stenographers engaged to transcribe depositions conducted in this action; and
(i) this Court, including any appellate court, and the court reporters and
support personnel for the same.
8.
No person subject to this Protective Order other than the producing person shall
disclose any of the Discovery Material designated by the producing person as Attorneys Eyes
Only to any other person whomsoever, except to:
(a) counsel retained specifically for this action, including any paralegal,
clerical and other assistant employed by such counsel and assigned to this matter;
(b) outside vendors or service providers (such as copy-service providers
and document-management consultants, graphic production services or other litigation
support services) that counsel hire and assign to this matter, including computer service
personnel performing duties in relation to a computerized litigation system;
(c) any mediator or arbitrator that the Parties engage in this matter or that this
Court appoints, provided such person has first executed a Non-Disclosure Agreement in the form
annexed as an Exhibit hereto;
(d) as to any document, its author, its addressee, and any other person indicated
on the face of the document as having received a copy;
(e) any person retained by a Party to serve as an expert witness or otherwise
provide specialized advice to counsel in connection with this action, provided such person has
first executed a Non-Disclosure Agreement in the form annexed as an Exhibit hereto;
(f) stenographers engaged to transcribe depositions conducted in this action;
and
(g) this Court, including any appellate court, and the court reporters and
support personnel for the same.
9.
Prior to any disclosure of any Confidential Discovery Material to any person
referred to in subparagraphs 6(d), 6(f) or 6(g), 7(a), 7(d), 7(f), 7(g), 8(c), or 8(e) above, such
person shall be provided by counsel with a copy of this Protective Order and shall sign a NonDisclosure Agreement in the form annexed as an Exhibit hereto stating that that person has read
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this Protective Order and agrees to be bound by its terms. Said counsel shall retain each signed
Non-Disclosure Agreement, hold it in escrow, and produce it to opposing counsel either prior to
such person being permitted to testify (at deposition or trial) or at the conclusion of the case,
whichever comes first.
10. Any Party who objects to any designation of confidentiality may at any time prior
to the trial of this action serve upon counsel for the designating person a written notice stating
with particularity the grounds of the objection. If the Parties cannot reach agreement promptly,
counsel for all Parties will address their dispute to this Court in accordance with Paragraph 1(B)
of this Court’s Individual Practices in Civil Cases.
11. Any Party who disputes whether the designation of Discovery Material as
“Confidential,” “Highly Confidential,” or “Attorneys Eyes Only” is appropriate pursuant to
Paragraph 2 shall indicate its objections to such designation in writing to the producing person.
The Party disputing the designation and the producing person shall promptly meet and confer
regarding the designation. The burden of persuasion shall be on the producing party to justify
the designation under Paragraph 2. If the Parties cannot reach agreement promptly, counsel for
all Parties will address their dispute to this Court in accordance with Paragraph 1(B) of this
Court’s Individual Practices in Civil Cases. The Parties have agreed that presently computer
source code is not the subject of any discovery requests. If computer source code is later
requested in this action, the Parties respectfully request to submit additional protections that
would apply to any source code inspection and obligations with respect to source code for the
Court’s consideration.
12. A Party may be requested to produce Discovery Material that is subject to
contractual or other obligations of confidentiality owed to a third party. Within two business days
of receiving the request, the receiving Party subject to such obligation shall inform the third party
of the request and that the third party may seek a protective order or other relief from this Court.
If neither the third party nor the receiving Party seeks a protective order or other relief from this
Court within 21 days of that notice, the receiving Party shall produce the information responsive
to the discovery request but may affix the appropriate controlling designation.
13. Recipients of Confidential Discovery Material under this Protective Order may
use such material solely for the prosecution and defense of this action and any appeals thereto,
and specifically (and by way of example and not limitations) may not use Confidential
Discovery Material for any business, commercial, or competitive purpose. Nothing contained in
this Protective Order, however, will affect or restrict the rights of any person with respect to its
own documents or information produced in this action. Nor does anything contained in this
Protective Order limit or restrict the rights of any person to use or disclose information or
material obtained independently from and not through or pursuant to the Federal Rules of Civil
Procedure.
14. The production by any person of any Discovery Material constituting or including
privileged or otherwise protected or exempted information shall not be deemed a waiver or
impairment of any claim of privilege or protection, including, but not limited to, the attorney6

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client privilege, the protection afforded to work product materials, or the subject matter thereof,
or the confidential nature of any such information. When a Producing Party gives notice to
Receiving Parties that certain inadvertently produced material is subject to a claim of privilege
or other protection, the obligations of the Receiving Parties are those set forth in Federal Rule of
Civil Procedure 26(b)(5)(B). This Order shall be interpreted to provide the maximum protection
allowed by Federal Rule of Evidence 502(d).
15. Nothing in this Protective Order will prevent any person subject to it from
producing any Confidential Discovery Material in its possession in response to a lawful subpoena
or other compulsory process, or if required to produce by law or by any government agency
having jurisdiction, provided, however, that such person receiving a request, will provide written
notice to the producing person before disclosure and as soon as reasonably possible, and, if
permitted by the time allowed under the request, at least 10 days before any disclosure. Upon
receiving such notice, the producing person will have the right to oppose compliance with the
subpoena, other compulsory process, or other legal notice if the producing person deems it
appropriate to do so.
16. All persons seeking to file redacted documents or documents under seal with the
Court shall follow Rule 2(G) of this Court’s Individual Practices in Civil Cases. No person may
file with the Court redacted documents or documents under seal without first seeking leave to
file such papers. All persons producing Confidential Discovery Material are deemed to be on
notice that the Second Circuit puts limitations on the documents or information that may be filed
in redacted form or under seal and that the Court retains discretion not to afford confidential
treatment to any Confidential Discovery Material submitted to the Court or presented in
connection with any motion, application or proceeding that may result in an order and/or
decision by the Court unless it is able to make the specific findings required by law in order to
retain the confidential nature of such material. Notwithstanding its designation, there is no
presumption that Confidential Discovery Material will be filed with the Court under seal. The
Parties will use their best efforts to minimize such sealing.
17. All persons are hereby placed on notice that the Court is unlikely to seal or
otherwise afford confidential treatment to any Discovery Material introduced in evidence at trial
or supporting or refuting any motion for summary judgment, even if such material has
previously been sealed or designated as Confidential.
18. Any Party filing a motion or any other papers with the Court under seal shall also
publicly file a redacted copy of the same, via the Court’s Electronic Case Filing system, that
redacts only the Confidential Discovery Material itself, and not text that in no material way
reveals the Confidential Discovery Material.
19. Each person who has access to Discovery Material that has been designated as
Confidential shall take all due precautions to prevent the unauthorized or inadvertent disclosure
of such material.
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20. Any Personally Identifying Information (“PII”) (e.g., social security numbers,
financial account numbers, passwords, and information that may be used for identity theft)
exchanged in discovery shall be maintained by the persons who receive such information and are
bound by this Protective Order in a manner that is secure and confidential. In the event that the
person receiving PII experiences a data breach, she, he, or it shall immediately notify the
producing person of the same and cooperate with the producing person to address and remedy
the breach. Nothing herein shall preclude the producing person from asserting legal claims or
constitute a waiver of legal rights or defenses in the event of litigation arising out of the
receiving person’s failure to appropriately protect PII from unauthorized disclosure.
21. This Protective Order shall survive the termination of the litigation. Within 30
days of the final disposition of this action, all Discovery Material designated as “Confidential,”
and all copies thereof, shall be promptly returned to the producing person, or, upon permission
of the producing person, destroyed.
20.
All persons subject to this Protective Order acknowledge that willful violation of
this Protective Order could subject them to punishment for contempt of Court. This Court shall
retain jurisdiction over all persons subject to this Protective Order to the extent necessary to
enforce any obligations arising hereunder or to impose sanctions for any contempt thereof.
SO STIPULATED AND AGREED.

/s/ Seth Harrington
Dated: June 4, 2021

/s/ Michael J. Bonella*
Dated: June 4, 2021

Seth Harrington
Orrick Herrington & Sutcliffe LLP
222 Berkeley Street
Suite 2000
Boston, MA 02116
[phone]
[e-mail]

Michael J. Bonella
Flaster Greenberg P.C.
1835 Market Street, Suite 1050
Philadelphia, PA 19103
[phone]
[e-mail]
Attorneys for Defendants
Avery Dennison Retail Information
Services, LLC et al.

Attorneys for Plaintiff
EVRYTHNG Limited

*With authorization

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SO ORDERED.

Dated:

6/4/2021
New York, New York
LEWIS J. LIMAN
United States District Judge

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
EVRYTHNG LIMITED,

Civil Action No. 1:21-cv-04411 (LJL)

Plaintiff,
-against-

NON-DISCLOSURE AGREEMENT

AVERY DENNISON RETAIL
INFORMATION SERVICES, LLC and
AVERY DENNISON RFID COMPANY,
Defendants.

LEWIS J. LIMAN, United States District Judge:
I, ____________________________ , acknowledge that I have read and understand the
Protective Order in this action governing the non-disclosure of those portions of Discovery
Material that have been designated as Confidential or Highly Confidential. I agree that I will not
disclose such Confidential or Highly Confidential Discovery Material to anyone other than for
purposes of this litigation, and I will not use information from portions of Discovery Material
designated Confidential of Highly Confidential for any purpose(s) outside of this litigation. I
agree that at the conclusion of the litigation I will either return all discovery information to the
party or attorney from whom I received it, or upon permission of the producing party, destroy
such discovery information. By acknowledging these obligations under the Protective Order, I
understand that I am submitting myself to the jurisdiction of the United States District Court for
the Southern District of New York for the purpose of any issue or dispute arising hereunder and
that my willful violation of any term of the Protective Order could subject me to punishment for
contempt of Court.

Dated: __________________

____________________________________

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