Sirsi Corporation v. Craven-Pamlico-Carteret Regional Library System

Filing 28

Proposed Order re 26 MOTION for Protective Order filed by Sirsi Corporation. (Attachments: # 1 Exhibit Agreement to Be Bound by Protective Order and Confidentiality Agreement) (Numbers, Robert)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
EASTERN DIVISION
Civil Action No. 4:11-cv-00059-BO
Sirsi Corporation d/b/a SirsiDynix,
Plaintiff,
v.

Protective Order

Craven-Pamlico-Carteret Regional
Library System,
Defendant.

The Court is informed that Plaintiff Sirsi Corporation d/b/a SirsiDynix (“SirsiDynix”) and
Defendant Craven-Pamlico-Carteret Regional Library System (“CPC Regional”) (SirsiDynix &
CPC Regional may collectively be referred to as “Parties”) expect to produce during discovery or
through agreement certain information considered to be confidential, proprietary, or containing
trade secrets.

The Parties desire to protect the confidential nature of these documents or

information through a protective order.
The Parties agree to enter into this Order for the purpose of facilitating and expediting the
discovery process (to include information discovery and production of documents by agreement)
and to prevent the Court from having to conduct hearings on each document or category of
documents sought to be protected.
Upon consideration of the Parties’ Motion, the Court finds good cause for a protective
order to protect confidential, proprietary, or trade secret documents and information pursuant to
Rule 26(c) of the Federal Rules of Civil Procedure.

THEREFORE, IT IS ORDERED that the Parties and any other third-parties involved in
discovery in this matter abide by the following terms in handling the production and disclosure of
confidential information:
1.

Designation of Confidential Information. Confidential Information may be

designated as such by placing the legend “CONFIDENTIAL” on each page of such document or
on the face of such thing.
a.

A document or piece of information shall only be considered by the parties

or the Court as Confidential Information if, as provided in Federal Rule of Civil
Procedure 26(c)(1)(G), it is a trade secret; confidential research, development, or
commercial information; or personnel records.
b.

A document or piece of information shall not be considered by the parties

or the Court as Confidential Information if it:
i.

Is or was at any time obtainable from a third-party not subject to a

confidentiality agreement or restriction prohibiting the release of the document or
information;
ii.

Is or was at any time disclosed by the designating party to a third

party not subject to a legally enforceable confidentiality agreement or order
prohibiting the release of the document or information;

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iii.

Was previously disclosed to the receiving party by the designating

party at a time when the receiving party was not subject to a confidentiality
agreement or restriction prohibiting the release of the document or information;
iv.

Is, was, or becomes disclosed to the receiving party from a source

other than the designating party through means that do not constitute a violation of
this Order or any other confidentiality agreement or restriction prohibiting the
release of the document or information;
v.

Is, was, or becomes available to the public or in the public domain;

vi.

Is, was, or becomes subject to the federal Freedom of Information

Act disclosure requirements and/or a state equivalent of said disclosure
requirements; or
c.

Any Party may designate Confidential Information as such under the terms

of this Order if such party reasonably and in good faith believes that such information or
material is entitled to confidentiality under the terms of this Order. Moreover, the Parties
shall be obligated to make specific designations to the extent reasonably possible and to
avoid overbroad designations.
d.

Any Party may designate as Confidential Information any information or

document that belongs or relates to any party; or that is in the possession, custody, or
control of any professional services firm that has been or may in the future be engaged by
any party to render services related to the subject matter of this litigation; or that is
produced by a non-party for use in this litigation. The portions of interrogatory answers,
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responses to requests for admission, deposition transcripts and exhibits, and affidavits
that quote, summarize, or contain information or materials entitled to protection may be
designated as Confidential Information.
2.

Disclosure of Confidential Information. Information or documents designated

as Confidential Information (excluding such information as is derived lawfully from an
independent source without reference to or reliance on the designated information) shall not be
disclosed, given, shown, made available or communicated in any way to any person or entity
other than:
a.

The Parties and their respective outside and in-house counsel who are

actively engaged in the conduct of this litigation, as well as their clerical, paralegal, or
other support staff (including copy and electronic discovery vendors used by the Parties);
b.

The Court, Court personnel, staff, witnesses and jurors, if any, in the trial

of this action;
c.

Court reporters, videographers, and members of their firms involved in

depositions in connection with this litigation;
d.

Deponents and counsel for deponents;

e.

Consultants or expert witnesses, whether testifying or non-testifying,

retained for the purpose of assisting with this litigation, provided that no material
designated as Confidential Information shall be disclosed to any such person unless that
person first reads this Protective Order, agrees to be bound thereby, and executes an

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Agreement to be Bound by Protective Order in the form attached hereto as Exhibit A,
which shall be maintained by the disclosing party, and subject to production only upon
order of the Court;
f.

Potential witnesses or persons with prior knowledge of the Confidential

Information contained in the documents, to the extent reasonably necessary to conduct
discovery and prepare for trial, provided that no material designated as Confidential
Information shall be disclosed to any such person unless that person first reads this
Protective Order, agrees to be bound thereby, and executes a Agreement to be Bound by
Protective Order in the form attached hereto as Exhibit A, which shall be maintained by
the disclosing party, and subject to production only upon order of the Court; and,
g.

Any other person or entity agreed to in writing by the Parties or as the

Court may direct.
3.

Designation of Attorneys’ Eyes Only Information.

Attorneys’ Eyes Only

Information may be designated as such by placing the legend “ATTORNEYS’ EYES ONLY” on
each page of such document or on the face of such thing.
a.

A designation of Attorneys’ Eyes Only Information indicates that the

document contains the disclosing party’s trade secrets or confidential business
information and that the disclosure of the document or information beyond the
individuals listed in Paragraph 4 below would cause material harm to the designating
party.

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b.

Any Party may designate Attorneys’ Eyes Only Information as such under

the terms of this Order if such party reasonably and in good faith believes that such
information or material is entitled to confidentiality under the terms of this Order.
Moreover, the Parties shall be obligated to make specific designations to the extent
reasonably possible and to avoid overbroad designations.
c.

Any Party may designate as Attorneys’ Eyes Only Information any

information or document that belongs or relates to any party; or that is in the possession,
custody, or control of any professional services firm that has been or may in the future be
engaged by any party to render services related to the subject matter of this litigation; or
that is produced by a non-party for use in this litigation. The portions of interrogatory
answers, responses to requests for admission, deposition transcripts and exhibits, and
affidavits that quote, summarize, or contain information or materials entitled to protection
may be designated as Attorneys Eyes Only Information.
4.

Disclosure of Attorneys’ Eyes Only Information. Information or documents

designated as Attorneys’ Eyes Only Information (excluding such information as is derived
lawfully from an independent source without reference to or reliance on the designated
information) shall not be disclosed, given, shown, made available or communicated in any way
to any person or entity other than:
a.

Counsel for the parties to this action as well as their clerical, paralegal, or

other support staff (including copy and electronic discovery vendors used by the Parties);

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b.

The Court, Court personnel, staff, witnesses and jurors, if any, in the trial

of this action;
c.

Court reporters, videographers, and members of their firms involved in

this litigation;
d.

Deponents and the deponent’s counsel;

e.

Consultants or expert witnesses, whether testifying or non-testifying,

retained for the purpose of assisting with this litigation, provided that no material
designated as Attorneys’ Eyes Only Information shall be disclosed to any such person
unless that person first reads this Protective Order, agrees to be bound thereby, and
executes a Agreement to be Bound by Protective Order in the form attached hereto as
Exhibit A, which shall be maintained by the disclosing party, and subject to production
only upon order of the Court;
f.

Potential witnesses or persons with prior knowledge of the Attorneys Eyes

Only Information contained in the documents, to the extent reasonably necessary to
conduct discovery and prepare for trial, provided that no material designated as Attorneys
Eyes Only Information shall be disclosed to any such person unless that person first reads
this Protective Order and executes an Agreement to be Bound by Protective Order in the
form attached hereto as Exhibit A, which shall be maintained by the disclosing party, and
subject to production only upon order of the Court; and,
g.

Any other person or entity agreed to in writing by the Parties or as the

Court may direct.
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5.

Declassification.

After consulting with the designating party in an effort to

resolve any disagreement, a party (or aggrieved entity permitted by the Court to intervene for
such purpose) may apply to the Court at any time for a ruling that information designated as
Confidential Information or Attorneys’ Eyes Only Information is not entitled to such status and
protection. The designating party shall be given notice of the application and an opportunity to
respond. To maintain confidential status, the proponent of confidentiality must show that there is
good cause for the information to have such protection. No Party shall be obligated to challenge
the propriety of any designation of information as confidential and a failure to do so shall not
preclude a subsequent attack on the propriety of such designation.
6.

Confidential Information in Depositions.
a.

Should counsel of record for any Party introduce or use any Confidential

Information or Attorneys Eyes Only Information in a deposition, or believe that any
question to a witness at deposition upon oral examination will disclose Confidential
Information or Attorneys Eyes Only Information, or that answers to any question will
require such disclosure, or if documents designated as containing Confidential
Information or Attorneys Eyes Only Information will be used as exhibits during
examination, counsel of record introducing or using such Confidential Information or
Attorneys Eyes Only Information shall have a duty to identify on the record that he or she
is asking questions concerning designated Confidential Information or Attorneys’ Eyes
Only Information, and any related testimony shall be equally subject to this Stipulated
Protective Order, and subject to disclosure only under the terms and provisions set forth
in this Protective Order. Unless otherwise ordered by this Court, the designating party or
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the receiving party shall have the right to have all persons, except the person testifying in
the deposition and his or her counsel, counsel of record for the Parties, the court reporter,
and such other persons as are permitted under the terms of this Order to have access to
Confidential Information or Attorneys’ Eyes Only Information, excluded from a
deposition during the taking of the portion of the testimony involving documents or
information subject to this Order.
b.

Deponents shall not retain or copy portions of the transcript of their

depositions that contain Confidential Information or Attorneys’ Eyes Only Information
not provided by them or the entities they represent unless they sign the Agreement to Be
Bound by Protective Order attached hereto as Exhibit A. A deponent who is not a party
or a representative of a party shall be furnished a copy of this Order before being asked to
review potentially confidential documents.
c.

Parties and deponents may, within thirty calendar days after receiving a

deposition transcript, designate pages of the transcript (and exhibits thereto) as
Confidential Information or Attorneys’ Eyes Only Information. Confidential Information
or Attorneys’ Eyes Only Information within the deposition transcript may be designated
by: underlining the portions of the pages that are confidential; marking such pages with
the following legend:

“CONFIDENTIAL INFORMATION – SUBJECT TO

PROTECTIVE ORDER” or “ATTORNEYS’ EYES ONLY – SUBJECT TO
PROTECTIVE ORDER”; and serving a copy of the marked deposition transcript on all
other Parties to the litigation, the deponent, and the court reporter. Until expiration of the
thirty day period, the entire deposition will be treated as subject to protection against
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disclosure under this Order. If no party or deponent timely designates Confidential
Information or Attorneys Eyes Only Information in a deposition, then none of the
transcript or its exhibits will be treated as Confidential Information or Attorneys Eyes
Only Information; if a timely designation is made, the confidential portions and exhibits
shall be retained by the court reporter under seal separate from the portions and exhibits
not so marked.
d.

This Order shall not require any party to notify or obtain permission from

another party before examining witnesses about materials designated Confidential
Information or Attorneys Eyes Only Information during depositions, beyond the notice
required by the Federal Rules of Civil Procedure, local court rules, or order of the Court.
7.

Filing. If documents containing Confidential Information or Attorneys Eyes Only

Information are filed with the Court, such documents or excerpts thereof shall be filed with the
Court under seal and shall remain sealed while in the office of the clerk so long as they retain
their status as confidential documents. If motions, briefs, or other pleadings contain Confidential
Information or Attorneys Eyes Only Information, one copy of the complete pleading shall be
filed under seal and a separate copy of the pleading with the Confidential Information or
Attorneys Eyes Only Information redacted shall be filed unsealed.
8.

Confidential Information or Attorneys Eyes Only Information at Trial.

Confidential Information or Attorneys Eyes Only Information may be offered in evidence at trial
and/or any court hearing, subject to such restrictions as the Court may apply to protect the
confidential nature of such information or document(s). This Order shall not require any party to
notify or obtain permission from any other party before introducing materials designated
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Confidential Information or Attorneys Eyes Only Information at trial or examining witnesses
about materials designated Confidential Information or Attorneys Eyes Only Information during
trial, beyond the notice required by the Federal Rules of Civil Procedure, local court rules, or
order of the Court.
9.

Subpoena by Other Courts or Agencies. If another court, regulatory body, or an

administrative agency subpoenas or orders production of Confidential Information or Attorneys
Eyes Only Information or document(s) that a party has obtained under the terms of this Order,
such party shall promptly notify the party who designated the information or document(s) as
Confidential Information or Attorneys Eyes Only Information of the pendency of such subpoena
or order.
10.

Conclusion of Action. At the conclusion of this action, including any appeals,

the ultimate disposition of all Confidential Information or Attorneys Eyes Only Information
furnished pursuant to this Order, and all copies thereof, is subject to a final order of the Court. In
the event the Court does not issue an order regarding the ultimate disposition of materials
furnished pursuant to this Order, within 120 days after final conclusion of all aspects of this
litigation, including appeals, Confidential Information or Attorneys Eyes Only Information and
all copies of same (other than exhibits of record) shall be returned to the party that produced such
documents or, at the option of the producing party, destroyed by counsel of the receiving party.
This paragraph shall not be construed to require the return or destruction of any regularly
maintained litigation files held by the attorneys for each party as archival records or other
attorney work-product created for any party, but each attorney shall continue to treat the material
as Confidential Information or Attorneys Eyes Only Information.
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Each counsel shall be

responsible for retrieving all copies of Confidential Information or Attorneys Eyes Only
Information which it provided to experts. All counsel of record shall make certification of
compliance herewith and shall deliver the same to counsel for the party who produced the
documents and not more than 150 days after final termination of this litigation. The provisions
of this Order insofar as it restricts the disclosure, communication of and use of Confidential
Information and Attorneys’ Eyes Only Information produced hereunder shall continue to be
binding after the conclusion of this action.
11.

Modification Permitted. Nothing in this Order shall prevent any party from

seeking modification of this Order or from objecting to discovery that it believes to be otherwise
improper.
12.

No Waiver.
a.

Review of the Confidential Information or Attorneys Eyes Only

Information by those so authorized pursuant to Paragraph 2 or 4, respectively, shall not
waive the confidentiality of the documents or objections to production.
b.

The inadvertent, unintentional, or in camera disclosure of Confidential

Information or Attorneys Eyes Only Information or failure to designate as such, shall not,
under any circumstances, be deemed a waiver, in whole or in part, of any party’s claims
of confidentiality. If the foregoing occurs, the disclosing party may provide notice to the
receiving party that the document or information does not, but should, bear such
designation, and the documents or information in question shall thereafter be treated as if
they carried such designation and, if requested, replacement copies stamped Confidential

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Information or Attorneys Eyes Only Information shall be provided at the expense of the
disclosing party.
c.

Nothing contained in this Order and no action taken pursuant to it shall

waive or prejudice the right of any party to contest the alleged relevancy, admissibility, or
discoverability of the Confidential Information or Attorneys Eyes Only Information
sought or provided in discovery.
13.

Claw-Back Agreement.

In order to facilitate discovery, the inadvertent

disclosure of documents or other information subject to a privilege or other immunity from
production shall be handled as follows:
a.

From time to time during the course of discovery, one or more of the

Parties may inadvertently disclose documents or other information subject to a privilege
or other immunity from production. Any such disclosure shall not be deemed a waiver of
the privileged or immune nature of that document or information, or of any related
subject matter.
b.

To that end, if a producing party, through inadvertence, error or oversight,

produces any document(s) or information that it believes is immune from discovery
pursuant to any attorney-client privilege, attorney work product immunity or any other
privilege or immunity, such production shall not be deemed a waiver, and the producing
party may give written notice to the receiving party that the document(s) or information
so produced is deemed privileged and that the return of the document(s) or information is
requested. Upon receipt of such written notice, the receiving party shall immediately

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undertake to gather the original and all such copies to the producing party, and shall
promptly destroy any newly created derivative document such as a summary of or
comment on the inadvertently produced information. Return of such document(s) or
information to the producing party shall not preclude the receiving party from later
moving to compel production of the returned document(s) or information, but the motion
shall not assert as a ground for production the fact of or circumstances surrounding the
inadvertent production.
c.

In addition, if a party concludes that any document(s) or information that it

has received from another party is immune from discovery pursuant to any attorney-client
privilege, attorney work product immunity or any other privilege or immunity from
production, that party shall promptly bring the potentially privileged document(s) or
information to the attention of the producing party. The producing party then may give
written notice to the receiving party that the document(s) or information so produced is
deemed privileged and that the return of the document(s) or information is requested.
Upon receipt of such written notice, the receiving party shall immediately undertake to
gather the original and all such copies to the producing party, and shall promptly destroy
any newly created derivative document such as a summary of or comment on the
inadvertently produced information. Return of such document(s) or information to the
producing party shall not preclude the receiving party from later moving to compel
production of the returned document(s) or information, but the motion shall not assert as
a ground for production the fact of or circumstances surrounding the inadvertent
production.

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14.

No Effect on Disclosing Party. Nothing in this Order shall be deemed to restrict

in any way any party, non-party, or their attorneys from handling or disclosing that party’s or
non-party’s own documents, materials, or information.
15.

No Effect on Admissibility. Neither this Order nor the designation of any items

as Confidential Information or Attorneys Eyes Only Information shall be construed as an
admission that such material, or any testimony in respect to such material in a deposition or
otherwise, would be admissible in evidence in this litigation or in any other proceeding. In
addition, this Order does not, of itself, require the production of any information or documents.
16.

Applicability to Subpoenaed Documents. Third-parties required to produce

documents in response to a subpoena issued under Rule 45 of the Federal Rules of Civil
Procedure may designate documents as Confidential Information or Attorneys Eyes Only
Information in the same manner as a party to this action. Any Party to this action may challenge
a designation by a third-party pursuant to the procedure outlined in Paragraph 5.
Dated: December 23, 2011

Agreed to:
/s/ Robert T. Numbers II_______________
ROBERT T. NUMBERS, II (Bar No. 34134)
Womble Carlyle Sandridge & Rice, PLLC
150 Fayetteville Street, Suite 2100
Raleigh, North Carolina 27602
[phone]
[phone] (facsimile)
[e-mail]
Attorney for Plaintiff

/s/ Lee W. Bettis, Jr.
Lee W. Bettis, Jr. (Bar No. 32214)
The Bettis Law Firm
P. O. Box 848
New Bern, NC 28560
252-649-1710
252-649-1711
Email: [e-mail]
Attorney for Defendant

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CERTIFICATE OF SERVICE
This is to certify that a copy of the foregoing was filed electronically with the Clerk of
Court using the CM/ECF system, which will send notification of such filing to the following:
Lee W. Bettis , Jr.
The Bettis Law Firm
P. O. Box 848
New Bern, NC 28560
Email: [e-mail]
Attorney for Defendant

Dated: December 23, 2011.

WOMBLE CARLYLE SANDRIDGE & RICE
A Limited Liability Partnership
By:

/s/ Robert T. Numbers II____________
ROBERT T. NUMBERS, II (State Bar No. 34134)
150 Fayetteville Street, Suite 2100
Post Office Box 831
Raleigh, North Carolina 27602
[phone]
[phone] (facsimile)
Attorney for Plaintiff