Johnson v. Breg, Inc.

Filing 34

PROTECTIVE ORDER - Counsel should read Order in its entirety for critcial information. Signed by US Magistrate Judge James E. Gates on 10/20/11. (Tripp, S.)

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF NORTH CAROLINA

Case No. 4:1l-ev-00010·D

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TESffiA DENISE JOHNSON,
Plaintiff,

v.

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BREC. INC.,

AGREED PROTECTIVE ORDER

FOR THE PROTECTION OF
CONFIDENTIAL INFORMATION

AS MODIFIED
Defendant.

ORDER

WHEREAS, the parties hereto have stipulated to the signing and entry of this
Confidentiality Agreement for the Discovery of Confidential Information ("Confidentiality
Agreement" or "Agreementll), and for good cause shown, IT IS HEREBY PeGREED t,hat eacll
of the parties and their respective counsel shall be governed by the following tem1S and
conditions conceming Confidential Information in the above-captioned action and the parties
acknowledge all provisions are subject to FRCP 26(c)(1)(0).
NOW, THEREFORE, IT IS HEREBY ORDERED THAT:

1.

This Agreed Protective Order applies to all confidential Discovery Material

produced by any party pursuant to the requirements of any court order, or pursuant to requests
under the applicable Federal Rules of Civil Procedure. including but not limited to, docwncnts
and other products of discovery. ID1d all infoimation derived thereof,' answers to Requests for
Admissions, Answers to IntelTogatories and Requests for Production of Documents. documents
subpoenaed and transcripts of depositions where the party has designated the contents to be or
to contain

confidential, proprietary

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trade secret infollnation, (hereafter "Confidential

Discovery Material",)
2.

The parties have agreed that Confidential Discovery Material will be used only

in the above-captioned lawsuit ("this lawsuit''), including any appeals of this Litigation.
Confidential Discovery Material will not be disclosed except in accordance with paragraph 3
below.
3.

Confidential Discovery Material shall not be disclosed to anyone other than the

following categories of persons:
a. The parties' counsel, including any attorneys and their staff who are assisting in
connection with this lawsuit;
b. The CoUlt (including courts of review)
c. Court reporters and videogl'aphers;
d. Retained experts, advisors and consultants.

(i). If any party or his counsel wishes to disclose Confidential Discovery
Material to an expert, advisor, or consultant who is cUlTently an
employee, officer, director, contractor, subcontractor or consultant of
any entity that is presently engaged in the research for the purpose of
development, development, manufacttu'e or sale of any product that
competes with the products manufactured or distl'ibuted by defendant
BREO, INC., said party's counsel shall promptly so notify cOWIsel and
provide a copy of the expert's resume before disclosing any Confidential
Discovery Material to that expert, advisor or consultant.
(ii). Within ~ve (5) business days of receiving such notification, counsel
shall advise the. notifying party's counsel of any objections to the
disclosure of Confidential Discovery Material to that expert, advisor or
consultant.
(iii). If an objection is made and not resolved by the parties, the party objecting
to disclosw'e shall apply to the Court in writing in support of that objection
within seven (7) business days of the objection. Under no circumstances
shall Confidential Discovery Material be disclosed to said expert,

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advisor, or consultant unless and until the ,pEuties resolve the matter. the
objection is withdrawn, or the Court permits its disclosure.
e. TI1e author 01' recipient ofthe Confidential DiscovelY Material.
£ The Jury

g. Mediators, Arbitrators

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any other neutral in connection with Alternative

Dispute Resolution.
h. Any person whose testimony has been noticed

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subpoenaed, or who has been

designated as a witness at a deposition or at trial.

4.

Any person who is a retained expe11, advisor

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consultant pursuant to

Pal'agraph 3(d) or is designated as a witness pursuant to Paragraph 3(t) shall be given a copy
and shall sign this Agreed Protective Order in the space provided on Exhibit A before
receiving or being shown and Confidential Discovery Material.

By signing the Agreed

Protective Order, that person agrees to be bound by the terms of the order. The counsel
obtaining the signature on Exhibit A shall retain the signed copy while this lawsuit and any
appeal from it is pending.
S.

. Any party may designate as confidential any matelial containing trade secrets or

other confidential or proprietary research, development, manufactwing, complaint, marketing
sales, commercial information or other sensitive material ("Confidential Discovery Material",)
6. a. If the Confidential Discovery Material is in a writing, before producing the

writing, the producing party will stamp the document with the following language:
TillS CONFIDENTIAL DOCUMENT BELONGS TO
(INSERT PARTY NAME) AND IS PRODUCED PURSUANT
TO A PROTECTIVE ORDER IN TIlE CASE OF TESHIA
JOHNSON V. BREG, INC., UNITED STATES DISTRICT
COURT FOR THR EASTERN DISTRICf OF NORTH
CAROLINA CASE NO. 4:11-ev-00010-D THIS DOCUMENT
CONTAINS CONFIDENTIAL INFORMATION AND MAY
ONLY BE US~D, DISSEMINATED AND REPRODUCED IN
~
THE TERMS
OF THE
ACCORDANCE
PROTECTIVE ORDER

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b.

In the case of deposition testimony, confidentiality designations shall be

made within thirty (30) days after the transcript has been received by counsel making the
designation, and shall specify the testimony being designated confidential by page and line
number(s). Until the expiration of such 30-day period, the entire text of the deposition
testimony and exhibits thereto shall be treated as confidential under this Agreed Protective
Order. After the expiration of the 3D-day period, only the specific p'age(s) and line number(s)
and exhibits. designated as being confidential, if any, shall be treated as confidential.
c. In the event that a party inadvertently fails to designate Discovery Material as
confidential, That party may make such a designation later by notifying all parties to whom
such Discovery Matelial was produced. in writing. as soon as practicable. After receipt of such
notification, the parties to whom production has been made shall treat the designated Discovery
Material as confidential.
7.

Disclosure of Confidential Discovery Matelial other than in accordance with the

terms of this Agreed Protective Order may subject the disclosing person to such sanctions and
remedies as the Cow·t may deem appropriate.
8. a.

If at any time a party wishes to dispute the designation of Discovery

Material as confidential. such party shall notify the designating patty of s\.\ch dispute in writing,
specifYing the Discovery Material in dispute and the nature of the dispute. If within seven (7)
business days of receiving such written notice the patties are unable to resolve the dispute, the
disputing patty may apply to the Cowt for relief by written motioll on notice challenging the
validity of the claim of confidentiality for the Discovery'Materiai.
b. All Discovery Material designated confidential by any party shall retain that
designation and be treated as confidential unless and until:

(i). That party agrees in writing to withdmw the confidentiality designation; or
(ii). The Court rules that the Discovery Material is not entitled to confidential
status,
9.

The entry of this Protective Order shall be without prejudice to the rights of the

parties, or anyone of them. or of any

non~party

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to assert or apply

fOI'

additional or different

protection at their discretion.
10.

The teons of this Order shall survive and l'Cmain in effect ailel' the termination

of this lawsuit. The parties shall take such measures as are necessary and appropriate to prevent
the public disclosure of Confidential Discovery Material, through inadvertence

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otherwise,

after the conclusion of this case. In the event of a change in counsel, retiring counsel shall
advise new counsel of the existence of a Protective Order and provide new counsel with a copy
of the Protective Order.
11,

Within thirty (30) days of the termination of this case, including all appeals, the

parties shall return to counsel all Confidential Discovery Material in the manner originally
produced and all copies, reproductions, images, summaries or memoranda concerning the
contents thereof. Altematively, the parties may agree upon appropriate methods of destroying
all such docwnents,
12.

Inadvertent production of documents subject to the work-product privilege,

attomey-client privilege 01' other legal privilege protecting information from discovery shall not
constitute a waiver of the privilege pmvided that the producing party shall promptly notify the
receiving P81ty in writing of such inadvertent prod1.1ction. If reasonably prompt notification is
made, such inadve11ently produced documents and all copies thereof shall be refilmed to the
producing party or destroyed, upon request, and such retu1'11ed or destroyed material shell be
deleted from any litigation-support

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other database. No use shall be made of such documents

during deposition or at uial
13,

This Order does not restrict 01' limit the use of Confidential Discovery Matel;a] at

any hewing 01' trial and does not prevent any pwty from seeking an appropriate protective order
to govern such use of Confidential Discovery Material at a hearing or trial.
14.

This Confidentiality Agreement may be signed in counterparts.

III
III
III

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AGREED AS TO FORM ONLY:

WATTS GUERRA & CRAFf, LLP

BY~

MORRIS POLICH & PURDY, LLP

BY_~---'-

Attorney for Plaintiff

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-+---:-r­

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This the 18th day of October, 201 1.

/s/ Leslie C. Packer
Leslie C. Packer (N.C. Bar No, 13640)
ELLIS & WINTERS LLP
P.O. Box 33550
Raleigh, North Carolina 27636
Telephone: [phone]
Facsimile: (919) 865·7010
[e-mail]

Attorneyfor Defendant Breg, Inc.
/s/ Carmaletta 1. Henson

Carmaletta L. Henson (N.C. Bar No. 26494)

Henson & Fuerst, P.A.

P.O. Box 7008
Rocky Mount, NC 27804
Telephone: [phone]
Facsimile: [phone]
[e-mail]

Attorneyfor PlaintiffTeshia Denise Johnson

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The court hereby APPROVES and ADOPTS this Agreed Protective Order for the Protection
of Confidential Information, subject to the following modifications:
The provisions of Local Civil Rule 79.2, E.D.N.C. regarding sealed documents shall
supersede any contrary terms above, including any such terms in Paragraph 8.

Any person

submitting documents under seal pursuant to this Agreed Protective Order shall submit with them
a motion to seal and shall otherwise comply with Local Civil Rule 79.2. The motion shall be
accompanied by a supporting memorandum showing that the documents may properly be sealed.

See, e.g, Stone v. University of Maryland Medical System Corp., 855 F.2d 178, 180-81 (4th Cir.
1988).
The return of trial exhibits by the court shall be governed by Local Civil Rule 79,1
notwithstanding any contrary terms above, including any such terms in Paragraph 11.
SO ORDERED, this the 2-Dday of October 2011.

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United States Magistrate Judge

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