Cape Hatteras Electric Membership Corp. v. Nationwide Mutual Insurance Company

Filing 25

CONSENT PROTECTIVE ORDER - Signed by US Magistrate Judge James E. Gates on 2/20/2018. (Briggeman, N.)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
NORTHERN DIVISION
CASE NO. 2:17-CV-56
CAPE HATTERAS ELECTRIC MEMBERSHIP
CORPORATION, an electric membership corporation
organized and existing pursuant to N.C. Gen. Stat.
Chapter 117,
Plaintiff,
v.

)
)

)
)
)

CONSENT
PROTECTIVE ORDER
(AS MODIFIED)

)
)

)

NATIONWIDE MUTUAL INSURANCE COMPANY,

)
)

Defendant.

)
)

Plaintiff and Defendant (the "Parties") agree that the above action may involve the
production or disclosure of confidential, sensitive or proprietary business information, or trade
secrets (collectively referred to as "Confidential Information"), and hereby stipulate, subject to
approval by the Court, to the following as a Protective Order which shall govern the production or
disclosure of Confidential Information to ensure continued confidentiality during the case.
This Protective Order governs the production or disclosure of all Confidential Information
produced by the parties during the course of discovery, hearings, or trial in this action.
Additionally, any portion of a deposition transcript, pleading, or other document into which
Confidential Information is placed or quoted shall also be considered Confidential Information.

NPRALl :953097 . l

DESIGNATION
In connection with this action, any non-public document, material, or information may be
designated as "CONFIDENTIAL". The producing party shall be obligated to designate only
documents or information which it believes in good faith to be information within the scope of
Rule 26(c) of the Federal Rules of Civil Procedure.
The term "CONFIDENTIAL" applies to information, testimony, documents, and data
which is determined by the producing party, acting in good faith, to be non-public and to be
proprietary, financial, business confidential information. The term "document" means all written,
recorded, graphic, computer maintained, electronic, or digital data or material, regardless of its
means of transmittal.

NOTICE AND MARKINGS
Any documents, material or information may be designated "CONFIDENTIAL" by
furnishing a separate written notice to the receiving party specifically identifying the items or their
designation, or by stamping the legend "CONFIDENTIAL" on each page of the documents,
material, or information prior to production.
Any party may designate any portion or all of a deposition as Confidential Information by
notifying the other parties on the record during the deposition or in writing within 15 days of the
receipt of the transcript. Until expiration of the 15 day period, the entire deposition will be treated
as subject to protection against disclosure under this Order. Deponents shall not retain or copy
portions of the transcript of their depositions that contain Confidential Information not provided
by them or the entities they represent or are associated with unless the deponent first executes a
written "Acknowledgement" in the form attached. A deponent who is not a party or a

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NPRALI :953097.1

representative of a party shall be furnished a copy of this Order before being examined about
Confidential Information.

INADVERTENT FAILURE TO DESIGNATE
Failure to designate or stamp as "CONFIDENTIAL" at the time of production shall not be
a waiver of the protection for Confidential Information, provided that counsel promptly notifies
the receiving party upon realizing the failure . However, the receiving party shall not be in violation
of this Protective Order for any disclosure of information made prior to receiving such notice.

OBJECTION TO DESIGNATION
If a party receiving designated Confidential Information objects to the designation, it shall

treat the information as it is designated until the parties resolve the dispute by agreement or by
order of the Court.

USE OF CONFIDENTIAL INFORMATION
All Confidential Information as defined herein shall be used solely for the purpose of this
action, or any related appellate proceeding, and not for any other purpose whatsoever, including
without limitation any other litigation, or any business or competitive purpose or function.
Confidential Information which has been designated "CONFIDENTIAL" shall be
disclosed only to:
(1)

The counsel for any party in this action and the counsel's employees or contractors

(such as photocopy services) who are assisting them in this action, and to any party' s employees,
to the extent strictly necessary to prepare this case for this litigation;
(2)

Consultants and expert witnesses who have been retained by the party or its

attorneys for this action,

provided that each such person first

executes a written

"Acknowledgement" in the form attached;

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NPRALI :953097. 1

(3)

Directors, officers, or employees of the parties and their parent companies who

require the information to assist in the prosecution or defense of this action, including in-house
counsel of any party hereto;
(4)

The Court and persons associated with or employed by the Court whose duties

require access to the information;
(5)

Persons having personal knowledge of any such record by virtue of their having

prepared, received and/or reviewed that record prior to this litigation;
(6)

Any non-party witness, but only to the extent that such witness' testimony involves

the matters governed or otherwise affected by information or documents designated as
Confidential

material,

provided

that

each

such

witness

first

executes

a

written

"Acknowledgement" in the form attached ;
(7)

The officer taking, reporting or videotaping a deposition and employees of such

officer to the extent necessary to prepare the transcript of the deposition;
(8)

Any designated mediator who is assigned to hear this matter, and his or her staff;

(9)

Jurors and prospective jurors.

and

Nothing herein shall restrict the persons identified above from making working copies for
use in the case, which working copies shall be automatically designated as "CONFIDENTIAL".
As to those persons who sign the Acknowledgement form, the party providing the
Confidential

Information

to

such

is

persons

responsible

for

obtaining

the

signed

Acknowledgement and shall have the obligation to maintain the Acknowledgement record.
If Confidential Information designed by a Party as "CONFIDENTIAL" is sought to be

filed by that Party under seal, or if Confidential Information designated by the other party as

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NPRALI :953097. 1

"CONFIDENTIAL" is sought to be filed by the non-designating Party, counsel for the filing Party
shall do so in compliance with Local Rule 79.2 and Section V.G.1 of the CM/ECF Policy Manual.
If Confidential Information designated by either party as "CONFIDENTIAL" is sought to

be used or introduced at a hearing or trial of this action, counsel for the party seeking to use or
introduce such Confidential Information shall so advise the Court and request that the Court take
such steps as it deems appropriate to protect the confidentiality of the information.
All Confidential Information designated as "CONFIDENTIAL", any copies thereof, and
the information contained therein, shall not be given, shown, made available to, or communicated
in any way to anyone, except those persons listed above, unless ordered by the Court or done with
the prior written consent of producing party's counsel, or as required by law.
The parties to this Order expressly reserve the right to seek any appropriate order
modifying this Order or imposing additional restrictions on discovery in this action, including an
order that production not be had.
If Confidential Information designated as "CONFIDENTIAL" is disclosed to any person

other than in the manner authorized by this Order, the party or counsel responsible for the improper
disclosure must immediately bring all pertinent facts relating to such disclosure to the attention of
the other Parties and their counsel, and without prejudice to the rights and remedies of the other
parties and their respective counsel, shall make every reasonable effort to prevent further
disclosure by them or by the person who was the recipient of such information.
Nothing in this Protective Order shall restrict in any way a designating party's use or
disclosure of its own Confidential Information. Such disclosure shall not waive the protection of
this Protective Order and shall not entitle other parties or their attorneys to disclose such
information in violation of it.

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NPRALI :95 3097 .1

INADVERTENT DISCLOSURE OF PRIVILEGED INFORMATION
If a producing party inadvertently discloses to the receiving party information that is

privileged or otherwise immune from discovery, said producing party shall promptly upon
discovery of such disclosure so advise the receiving party in writing and request that the item or
items of information be returned. It is further agreed that the receiving party will promptly return
such inadvertently produced item or items of information and all copies thereof upon either (a)
discovery by the receiving party of its inadvertent production, or (b) receiving a written request
for the return of such item or items of information. The party having returned such inadvertently
produced item or items of information may thereafter seek production of any such documents in
accordance with the Federal Rules of Civil Procedure.

OBLIGATIONS OF PARTIES
Each of the parties named above and their counsel of record undertakes to abide by and be
bound by the provisions of this Order and to use due care to see that its provisions are known and
adhered to by those under its supervision or control. Nothing in this Protective Order shall bar
counsel from rendering advice to their client with respect to this litigation, and in the course
thereof, relying upon any Confidential Information, provided that in rendering such advice and
otherwise communicating with such clients, counsel shall not make specific disclosure of any item
so designated except as otherwise permitted by this Order.

TERMINATION OF LITIGATION
Within thirty (30) days of the final conclusion or final settlement of this litigation and any
appeal thereof, all parties subject to the terms hereof shall either (a) assemble and return to the
designating party all Confidential Information upon the request and at the option of the party
making the confidentiality designation or (b) destroy all Confidential Information, or the producing

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NPRALI :953097 . I

party may waive the requirements of this sentence. The terms of this Protective Order shall survive
and remain in full force after the termination of this lawsuit and the Court shall have jurisdiction
over the parties, the non-parties who have signed and filed the Acknowledgement, their respective
attorneys, and all persons to whom Confidential Information has been disclosed for the purpose of
enforcing the terms of this Protective Order and/or redressing any violation thereof. If the parties
need court intervention about the requirements of this paragraph, the ultimate disposition of the
Confidential Information shall be subject to a final order of the Court on the completion of the
litigation.

ADDITIONAL PROTECTION
Nothing in the foregoing provisions of this Protective Order shall be deemed to preclude
any party from seeking and obtaining, on an appropriate showing, additional protection with
respect to the confidentiality of documents or other discovery material, or relief from this
Protective Order with respect to particular material designated hereunder.
The United States District Court for the Eastern District of North Carolina is responsible
for the interpretation and enforcement of this Protective Order.

All disputes concerning

Confidential Information produced under the protection of this Protective Order shall be resolved
by the United States District Court for the Eastern District of North Carolina. Every individual
who receives any Confidential Information agrees to subject himself or herself to the jurisdiction
of this Court for the purpose of any proceedings related to performance under, compliance with,
or violation of this Order.

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NPRALI :953097. 1

AGREED AND STIPULATED TO:
Respectfully submitted, this the 19th day of January, 2018.

NEXSEN PRUET, PLLC

Isl James W . Bryan
James W. Bryan
[e-mail]
N.C. State Bar No. 16575
NEXSEN PRUET, PLLC
701 Green Valley Road, Suite 100
Post Office Box 3463
Greensboro, NC 27402
Telephone: [phone]
Facsimile: [phone]
Attorney for Plaintiff

BROWN, CRUMP, VANORE &
TIERNEY, L.L.P.

Isl R. Scott Brown
R. Scott Brown
sbrown@bcvtlaw .com
N.C. State Bar No. 13435
BROWN, CRUMP, V ANORE &
TIERNEY, L.L.P.
Post Office Box 1729
Raleigh, NC 27602
Telephone: [phone]
Facsimile: [phone]
Attorney for Defendant

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NPRALI :953097 .1

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
NORTHERN DIVISION
CASE NO. 2:17-CV-56
CAPE HATTERAS ELECTRIC MEMBERSHIP
CORPORATION, an electric membership corporation
organized and existing pursuant to N.C. Gen. Stat.
Chapter 117,

)
)
)
)
)

Plaintiff,

)

v.

)

)

NATIONWIDE MUTUAL INSURANCE COMPANY,

)
)

Defendant.

)
ACKNOWLEDGEMENT

_ _ _ _ _ _ _ _ _ _ _ _ _ , being duly sworn, deposes and says:
1.

_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ (Statement of Employment)

2.
I have read the Consent Protective Order filed
, _ _ , as entered
into by the parties in connection with Civil Action No. 2: l 7-CV-56, Eastern District of North
Carolina. I fully understand and agree to the restrictions on my use of the documents, records,
and other materials described in that Consent Protective Order and the information contained
herein. I agree to be bound by that Consent Protective Order.
3.
I understand that unauthorized disclosure of confidential information constitutes
contempt of court and may subject me to sanctions and damages.
4.
I declare under penalty of perjury under the laws of the United States of America;
that the foregoing is true and correct.
Executed on: _ _ _ _ _ _ _ _ _ __

(Name - Print)

(Name - Corporate Non-Party)

(Signature)

BY: _ _ _ _ _ _ _ _ _ __
(Title)
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NPRALI :953097. 1

**********************
COURT'S APPROVAL AND MODIFICATIONS

This Consent Protective Order is the subject of the parties' motion (D.E. 22) for entry
thereof in the form proposed at D.E. 22-1. The court hereby ALLOWS the motion, and
APPROVES and ADOPTS the foregoing terms of the Consent Protective Order, subject to the
following modifications:
1.
The return of trial exhibits by the court shall be governed by Local Civil Rule
79.1 , E.D.N.C., notwithstanding any contrary terms in this Consent Protective Order, including
any such terms in the paragraph on pages 6-7 entitled "Termination of Litigation."
2.
Notwithstanding any contrary provisions in the paragraph on pages 6-7 entitled
"Termination of Litigation," the extent to which this court retains jurisdiction over this litigation
for enforcement of the provisions of this Consent Protective Order following the final resolution
of this litigation shall be determined in accordance with law.
SO ORDERED, this 20th day of February 2018 .

J~

United States Magistrate Judge

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