Universal Mania, Inc. v. Otter Products, LLC

Filing 29

CONSENT PROTECTIVE ORDER - Signed by District Judge Louise Wood Flanagan on 07/30/2013. (Baker, C.)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
WESTERN DIVISION
Civil Action No.: 5:13-cv-00094-FL
UNIVERSAL MANIA, INC., a North Carolina
corporation,
Plaintiff,
v.
OTTER PRODUCTS, LLC, a Colorado Limited
Liability Company,
Defendant,
v.
DOES 1 – 10, Inclusive,
Third-Party Defendants.

CONSENT PROTECTIVE ORDER
This case is before the Court for entry of a Protective Order pursuant to Rule 26(c) of the
Federal Rules of Civil Procedure and Local Civil Rule 79.2, EDNC. The Parties have informed
the Court that they mutually agree that this action may involve the production or disclosure of
confidential, sensitive, or proprietary business information, or trade secrets, including, but not
limited to, information relating to Plaintiff and Defendant’s finances, marketing research,
customer lists, sales information, anti-counterfeiting measures, non-public agreements, and
communications with non-parties and the results of, as well as correspondence relating to private
investigations and clearance searches. The Parties have agreed to the entry of this Protective
Order to govern the production or disclosure of such information to ensure the continued
confidentiality and that no competitive advantage is obtained by any person.

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The Court believes that entry of this Protective Order is in the interest of all Parties and in
the fair and efficient administration of justice. Therefore, until further order of this Court, it is
hereby ordered as follows:
1.

The following definitions shall apply in this Order:

A.

"CONFIDENTIAL" means non-public testimony, information, documents, and

data that constitute confidential business or technical information.
B.

"ATTORNEY'S EYES ONLY" means non-public testimony, information,

documents, and data that constitute confidential business or technical information which is
reasonably considered by the parties to be highly sensitive because at the time the documents or
information are produced they contain competitive business information such as customer lists,
trade secrets, product design information, marketing or sales planning information or cost, price,
profitability or other similar financial information.
C.

“Producing Party” means the party to this lawsuit who produced a document or

provided information designated as "CONFIDENTIAL" or "ATTORNEY'S EYES ONLY"
pursuant to this Order.
D.

“Receiving Party” means the party to this lawsuit who has received from the other

a document or information designated as "CONFIDENTIAL" or "ATTORNEY'S EYES ONLY"
pursuant to this Order.
2.

No Receiving Party or their counsel shall use documents or information

designated as CONFIDENTIAL or ATTORNEY’S EYES ONLY for any purpose other than
prosecution or defenses of this action.
3.

In connection with discovery proceedings in this action, any party may designate

any non-public document or information as CONFIDENTIAL or ATTORNEY'S EYES ONLY

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by stamping the legend CONFIDENTIAL or ATTORNEY'S EYES ONLY on each page of the
documents or information prior to production. With the exception of deposition testimony and
transcripts, which are discussed below, designations shall be made at the time of production.
4.

Any party may designate any portion or all of a deposition as CONFIDENTIAL

or ATTORNEY'S EYES ONLY by notifying the other parties on the record during the
deposition or in writing within ten (10) days after the receipt of the deposition transcript in final
form.

The parties shall automatically treat all information disclosed at a deposition as

ATTORNEYS’ EYES ONLY for ten (10) days after receipt of the transcript.
5.

If the Receiving Party believes that any item designated as CONFIDENTIAL or

ATTORNEY’S EYES ONLY has been improperly designated and should be excluded from the
scope of this Protective Order, that party through counsel shall meet and confer with counsel for
the Producing Party to resolve the disagreement. If the parties are unable to resolve their
differences, the Receiving Party may apply to the Court for a declaration as to whether the
particular item should be within the scope of this Protective Order.
6.

If a Receiving Party objects to a designation, it shall treat the information as it is

designated until the parties resolve the dispute by agreement or by order of the Court.
7.

The parties shall designate information and documents as CONFIDENTIAL or

ATTORNEY’S EYES ONLY in good faith and not for the purpose of harassing the other party
or for the purpose of unnecessarily restricting the other party’s access to information regarding
the lawsuit.
8.

Failure to designate or stamp as CONFIDENTIAL or ATTORNEY'S EYES

ONLY at the time of production shall not be a waiver of the protection for the document or
information provided that counsel promptly notifies the receiving party upon realizing the

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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.
9.

No person other than the Producing Party or its counsel of record shall disclose to

any other person documents or information designated as CONFIDENTIAL or ATTORNEY’S
EYES ONLY unless all terms and conditions in this Order are satisfied. Upon satisfaction of
such terms and conditions, the information or documents designated as CONFIDENTIAL or
ATTORNEY’S EYES ONLY shall be disclosed only as follows:
A.

Information or documents that have been designated “CONFIDENTIAL” shall be

disclosed only to:
(1)

Counsel of record for the Receiving Party and the employees of such

counsel who are assisting them;
(2)

Officers, directors, or employees of the Receiving Party who require the

information to assist in, or evaluate, this action;
(3)

Persons specifically retained or consulted by the Receiving Party to assist

in, evaluate, or prepare for a hearing or trial in this matter (such as consultants or expert
witnesses);
(4)

Employees of any liability insurance carrier providing coverage or a

defense to the Receiving Party;
(5)

Any deposition or trial witness at a deposition, hearing, or trial to the

extent that it is necessary to tender the document or elicit testimony relevant to the matters at
issue in this case;
(6)

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

such officer to the extent necessary to prepare the transcript of the deposition; and

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(7)

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

duties require access to the information; and
B.

Information or documents that have been designated "ATTORNEY'S EYES

ONLY " shall be disclosed only to:
(1)

Outside legal counsel of record for the Receiving Party and the employees

of such counsel who are assisting them;
(2)

Independent experts (with independent meaning not currently or formerly

employed by, affiliated with, or a consultant to the Receiving Party outside of this litigation) who
have been retained by the Receiving Party or its attorneys for this action;
(3)

Any deposition or trial witness at a deposition, hearing or trial to the

extent that it is necessary to tender the document or elicit testimony relevant to the matters at
issue in this case;
(4)

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

such officer to the extent necessary to prepare the transcript of the deposition; and
(5)

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

duties require access to the information.
10.

Before any person (except outside counsel of record and the employees of the

firms that are assisting them in this matter) is given access to documents or information
designated as CONFIDENTIAL or ATTORNEY’S EYES ONLY, the Receiving Party shall
provide each such person with a copy of this Order and require such person to execute a written
declaration (attached hereto as Exhibit A), declaring that he or she understands the terms of this
Order and agrees to abide by them. In the case of a deposition or trial witness, it shall be
sufficient to provide the witness with a copy of the Order and obtain his or her acknowledgement

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one time prior to commencement of the deposition or testimony, and it shall not be necessary to
repeat the process each time the witness is shown additional documents or information that have
been designated pursuant to this Order.

A copy of any such written declaration shall be

furnished to counsel for the Producing Party upon request. In the event any non-party deponent
or trial witness refuses to execute such written declaration, such deponent or trial witness may be
shown documents or information designated as CONFIDENTIAL or ATTORNEY’S EYES
ONLY only during his or her actual testimony and may not retain a copy of such documents or
information.
11.

Each person given access to CONFIDENTIAL or ATTORNEY’S EYES ONLY

documents or information pursuant to this Order shall keep such material strictly secure, and
refrain from disclosing in any manner any such documents or information, and shall keep such
documents and information confidential except as otherwise provided by the terms of this Order.
12.

Before filing any information that has been designated CONFIDENTIAL or

ATTORNEY’S EYES ONLY with the Court, or any pleadings, motions or other papers that
disclose any such information, the Receiving Party shall confer with counsel for the Producing
Party about how it should be filed. If the Producing Party desires that the materials be filed
under seal, then the filing party shall file the materials in accordance with Local Civil Rule
79.2(e), EDNC, with notice served upon the Producing Party. The filing of the materials under
seal shall not be binding on the Court, however. Each time a party seeks to file under seal
documents or information designated as CONFIDENTIAL or ATTORNEY’S EYES ONLY,
said party shall accompany the request with a motion to seal and a supporting memorandum of
law specifying: (a) the exact documents, things, and/or information, or portions thereof, for
which filing under seal is requested; (b) where it is necessary for the Court to determine the

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source of the public’s right to access before a request to seal may be evaluated, whether any such
request to seal seeks to overcome the common law or the First Amendment presumption to
access; (c) the specific qualities of the material at issue which justify sealing such material,
taking into account the balance of competing interests in access; (d) the reasons why alternatives
to sealing are inadequate; and, (e) whether there is consent to the motion. Finally, in addition to
the motion and supporting memorandum, said party must set out such findings in a proposed
order to seal for the Court. When a party seeks to file documents or information designated as
CONFIDENTIAL or ATTORNEY’S EYES ONLY, including portions of any transcript, a party
shall submit such materials to the Court, when possible, using the procedures for filing
information and documents under seal through CM/ECF or, alternatively, in a sealed envelope or
other appropriate sealed container, which covering shall be endorsed with the title of this action
and a statement substantially in the following form: “Filed Under Seal Pursuant to Protective
Order.” Before ruling on any motion to seal the Court will give the public notice of the motion
and a reasonable opportunity to challenge it. While individual notice is unwarranted, the Court
will docket the motion reasonably in advance of deciding the issue, or where applicable, the
Court will notify persons present in courtroom proceedings of the motion. The Court will rule
favorably upon any motion to seal only after carefully weighing the interests advanced by the
movant and those interests favoring public access to judicial documents and records, and only
upon finding that the interests advanced by the movant override any constitutional or common
law right of public access which may attach to the documents, things, or information at issue.
Documents submitted under seal in accordance with this paragraph will remain under seal
pending the Court’s ruling. If the party desiring that the information be maintained under seal

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does not timely file a motion to seal, then the materials will be deemed unsealed, without need
for order of the Court.
13.

Within ninety (90) days of the conclusion or final settlement of this litigation,

including all appeals, all persons subject to the terms hereof shall (i) destroy or assemble and
return to the Producing Party all CONFIDENTIAL and ATTORNEY’S EYES ONLY
documents and information, and (ii) shall destroy any outlines, summaries, abstracts,
compilations, memoranda, documents and the like which constitute, embody, contain, or disclose
the contents of such CONFIDENTIAL or ATTORNEY’S EYES ONLY documents and
information; except that counsel of record may retain file copies of any of the foregoing, as well
as one archival copy of court filings and one copy of deposition and trial transcripts (including
one copy of exhibits thereto) containing CONFIDENTIAL or ATTORNEY’S EYES ONLY
documents and information, which materials will remain subject to this Protective Order. 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, their attorneys, and all persons to
whom CONFIDENTIAL or ATTORNEY’S EYES ONLY documents and information have been
disclosed for the purpose of enforcing the terms of this Protective Order and/or redressing any
violation thereof.
14.

Nothing herein shall: (i) preclude a Producing Party from seeking and obtaining,

on an appropriate showing, such additional protection with respect to the confidentiality of
document or other discovery material as it may deem appropriate; (ii) preclude any party from
objecting to the discoverability of any documents or information on appropriate grounds; (iii)
limit a party’s or its counsel’s use of its own documents or any documents legally obtained

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outside the discovery process in this action; or (iv) waive a party’s right to object to the
admissibility of documents or discovery materials.
15.

The parties shall confer among themselves concerning measures that should be

taken during trial of this cause to satisfy the requirements of confidentiality consistent with the
right of all parties to present all admissible evidence necessary for a proper resolution of this
case.
16.

This Order may be modified by the Court upon application of any party for good

cause shown.
So Ordered this the ____ day of _________ 2013.
30th
July

__________________________________________
United States District Judge
WE CONSENT:
/s/ Robert A. Meynardie
Robert A. Meynardie
Meynardie & Nanney, PLLC
2840 Plaza Place, Suite 200
Raleigh, NC 27612
Telephone: [phone]
Facsimile: [phone]
E-mail: [e-mail]
/s/ Ben T. Lila
Gordon E. Gray, III
Ben T. Lila
Mandour & Associates, APC
16870 W. Bernado Drive, Suite 400
San Diego, CA 92127
Telephone: [phone]
Facsimile: [phone]
E-mail: [e-mail]

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/s/ Christopher Q. Pham
Christopher Q. Pham
CA State Bar No. 206697
Ani S. Garibyan
CA State Bar No. 274846
Attorneys for Defendant
JOHNSON & PHAM, LLP
6355 Topanga Canyon Boulevard, Suite 326
Woodland Hills, CA 91367
Telephone: [phone]
Facsimile: [phone]
E-mail: [e-mail]
[e-mail]
/s/ J. Christopher Jackson
W. Swain Wood
NC State Bar No. 32037
J. Christopher Jackson
NC State Bar No. 26916
John T. Kivus
NC State Bar No. 42977
Attorneys for Defendant
WOOD JACKSON PLLC
1330 St. Mary’s Street, Suite 460
Raleigh, NC 27605
Telephone: [phone]
Facsimile: [phone]
Email: [e-mail]
[e-mail] [e-mail]

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IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
WESTERN DIVISION
Civil Action No.: 5:13-cv-00094-FL
UNIVERSAL MANIA, INC., a North Carolina
corporation,
Plaintiff,
v.
OTTER PRODUCTS, LLC, a Colorado Limited
Liability Company,
Defendant,
v.
DOES 1 – 10, Inclusive,
Third-Party Defendants.

I, _____________________________, hereby acknowledge receipt of a copy of the
Consent Protective Order ("Order") in the above captioned action. I am familiar with the
provisions of the Order and agree to be bound by it. I agree not to copy or to use any documents
or information designated as CONFIDENTIAL or ATTORNEY’S EYES ONLY for any purpose
other than in connection with the instant action, and agree not to reveal any or all such
documents or information to any person not authorized by the Order.
I further acknowledge and understand that for any violation of the provisions of said
Order I am subject to the penalties of the Court and any and all penalties imposed upon me by
law. I hereby submit to the jurisdiction of the Federal District Court for the Eastern District of
North Carolina for the purpose of enforcement of the Order and waive any and all objections to
jurisdiction and venue with regard to the same.
Executed this _____ day of _______________ 201___.
______________________________________
Signature

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