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.)

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IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NORTH CAROLINA Case No. 4:1l-ev-00010·D ) ) ) ) ) ) TESffiA DENISE JOHNSON, Plaintiff, v. ) 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 Ol' 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, 2 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 01' any other neutral in connection with Alternative Dispute Resolution. h. Any person whose testimony has been noticed 01' subpoenaed, or who has been designated as a witness at a deposition or at trial. 4. Any person who is a retained expe11, advisor 01' 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 3 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 4 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 01' 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 01' 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 5 AGREED AS TO FORM ONLY: WATTS GUERRA & CRAFf, LLP BY~ MORRIS POLICH & PURDY, LLP BY_~---'- Attorney for Plaintiff 6 -+---:-r­ _ 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: (919) 865-7000 Facsimile: (919) 865·7010 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: (252) 443-2111 Facsimile: (252) 443-9429 Attorneyfor PlaintiffTeshia Denise Johnson 7 ********************** 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. ~~_. United States Magistrate Judge 7A

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