Liberty Mutual Fire Insurance Company v. KB Home, Inc. et al

Filing 109

CONSENT PROTECTIVE ORDER. Signed by Magistrate Judge Kimberly A. Swank on 6/9/2015. (Marsh, K)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
WESTERN DIVISION
LIBERTY MUTUAL FIRE
INSURANCE COMPANY,

Case No.: 5:13-cv-00831-BR
Plaintiff,

v.
KB HOME, KB HOME RALEIGHDURHAM INC., and STOCK BUILDING
SUPPLY, LLC,
Defendants.

CONSENT PROTECTIVE ORDER
This matter came on before the Court on the Motion to Intervene and for Protective Order
[DE #70]. A hearing on that Motion and others was held on April 30, 2015, and the Court issued
an order dated May 4, 2015 [DE #106]. Pursuant to the order, the parties were to confer and
jointly submit a proposed protective order. Plaintiff Liberty Mutual Fire Insurance Company
(“Liberty Mutual”), Defendants KB Home and KB Home Raleigh-Durham Inc. (“KB Home”),
and Intervenor Stock Building Supply, LLC (“Stock”) (each referred to as a “Party” or
collectively as the “Parties”) all conferred and submitted this Consent Protective Order.
Therefore, for good cause shown, the Court ORDERS as follows:
1.

DEFINITIONS

Throughout this Order, these terms shall have the following meanings:
1.1.

Confidential Material: Any Disclosure or Discovery Material (whether

produced by a Party or non-party) believed in good faith to contain, reflect or concern
(i) confidential information; (ii) trade secrets within the scope of Rule 26(c)(1)(G)(iii) of the

Federal Rules of Civil Procedure; (iii) business plans and confidential sales or marketing
information; (iv) confidential technical know-how; or (v) other highly-sensitive proprietary,
commercial, and financial information that would be competitively harmful if made public or
disclosed to a Party or non-parties to this Action. Confidential Material encompasses both the
physical document, transcript, pleading, recording, thing, etc., and the information contained
therein. Confidential Material shall not include documents, materials, testimony or information
that:
(a)

is already public knowledge; or

(b)

becomes public knowledge through disclosure by the Producing

Party or through the Producing Party’s failure to use reasonable efforts to prevent disclosure; or
(c)

has come or shall come into the Receiving Party’s legitimate

possession from some source other than a Producing Party.
1.2.

Counsel: Attorneys who are retained to represent or advise a Party or non-

party in this action (including in-house counsel).
1.3.

Designating Party: A Party or non-party that designates as “Confidential”

information or items that it produces in disclosure or in responses to discovery.
1.4.

Disclosure or Discovery Material: All items or information, regardless of

the medium or manner generated, stored, or maintained (including, among other things,
testimony, transcripts, or tangible things) that are produced or generated in disclosures or
responses to discovery in this matter.
1.5.

Expert: A person with specialized knowledge or experience in a matter

pertinent to the litigation who has been retained by a Party or a non-party or its counsel to serve

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as an expert witness or as a consultant in this action. This definition includes a professional jury
or trial consultant retained in connection with this litigation.
1.6.

Party: Any party to this action, including all of its officers, directors,

employees, and counsel (and their support staff).
1.7.

Producing Party: A Party or non-party that produces Disclosure or

Discovery Material in this action.
1.8.

Professional Vendors: Persons or entities that provide litigation support

services (e.g., photocopying; videotaping; translating; preparing exhibits or demonstrations;
organizing, storing, retrieving data in any form or medium; etc.) and their employees and
subcontractors.
1.9.

Receiving Party: A Party, Counsel, Expert, or Professional Vendor that

receives Disclosure or Discovery Material from a Producing Party.
2.

DURATION
Even after the termination of this litigation, the confidentiality obligations

imposed by this Order shall remain in effect until a Designating Party agrees otherwise in writing
or a court order otherwise directs.
3.

DESIGNATING PROTECTED MATERIAL
3.1.

Exercise of Restraint and Care in Designating Material Confidential.

Each Party or non-party that designates information or items for protection under
this Order must take care to limit any such designation to specific material that qualifies for
“Confidential” treatment. A Confidential designation constitutes a representation to the Court
that the Designating Party (and counsel, if any) in good faith believes that the information so
designated constitutes Confidential Material as defined herein.

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If it comes to a Party’s or a non-party’s attention that information or items that it
designated as Confidential do not qualify for “Confidential” protection, that Party or non-party
must promptly notify all other Parties that it is withdrawing the mistaken designation.
Designations shall not give rise to any legal presumptions or admissions. The fact
that information has been designated as Confidential or Protected Material may not be used as
evidence to support any claim or defense.
3.2.

Manner and Timing of Designations. Except as otherwise provided in this

Order, or as otherwise stipulated or ordered, material that qualifies for protection under this
Order must be clearly so designated before the material is disclosed or produced. Designation in
conformity with this Order requires:
(a)

For information in documentary form (apart from transcripts of

depositions or other pretrial or trial proceedings), that the Producing Party affix the legend
“CONFIDENTIAL — SUBJECT TO PROTECTIVE ORDER” on each page that contains
protected material. When the information is in such form that a stamp or mark cannot be
reasonably placed thereon, then such information may be designated as “Confidential” in such a
manner as is reasonable under the circumstances to place the Parties on notice of the confidential
nature of the information.
(b)

For testimony given in deposition or in other pretrial or trial

proceedings, that the Party or non-party offering or sponsoring the testimony identify all
protected testimony by: (1) declaring the same on the record before the close of the deposition,
hearing, or other proceeding, or (2) in the case of a deposition, designating specific lines and
pages as “Confidential” and serving such designations within ten (10) days of receipt of the
deposition transcript in which the designations are made. The entirety of all deposition

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transcripts shall be treated as “Confidential” for the ten-day period following receipt of the
transcript. After the ten-10 day period, only those portions of the testimony that are appropriately
designated for protection shall be covered by the provisions of this Protective Order.
Transcript pages containing Confidential Material must be separately bound by
the court reporter, who must affix to the top of each such page the legend “CONFIDENTIAL —
SUBJECT TO PROTECTIVE ORDER,” as instructed by the Party or non-party making the
designation.
(c)

For information produced in some form other than documentary,

and for any other tangible items, that the Producing Party affix in a prominent place on the
exterior of the container or containers in which the information or item is stored the legend
“CONFIDENTIAL—SUBJECT TO PROTECTIVE ORDER.” If only portions of the
information or item warrant protection, the Producing Party, to the extent practicable, shall
identify the protected portions.
3.3.

Inadvertent Failures to Designate. If corrected within a reasonable time of

disclosure, an inadvertent failure to designate qualified information or items as “Confidential”
does not, standing alone, waive the Designating Party’s right to secure protection under this
Order for such material. If material is appropriately designated as “Confidential” after the
material was initially produced, the Receiving Party, on timely notification of the designation,
must make reasonable efforts to assure that the material is treated in accordance with the
provisions of this Order, but shall not be deemed in violation of this Order for any use of the
information prior to the Designating party’s “Confidential” designation.

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4.

CHALLENGING CONFIDENTIALITY DESIGNATIONS
4.1.

Timing of Challenges. The Parties are not obligated to challenge the

propriety of any designation or treatment of information as Confidential, and the failure to do so
promptly shall not preclude any subsequent objection to such designation or treatment, or any
motion seeking permission to disclose such material to persons not otherwise entitled to access
under the terms of this Order.
4.2.

Meet and Confer. A Party that elects to initiate a challenge to a

Designating Party’s Confidential designation, whether to an entire document or thing, or to a
portion of a document or thing, must begin the process by meeting and conferring in good faith
with counsel for the Designating Party. In conferring, the challenging Party must give the
Designating Party five (5) business days to reconsider the circumstances, and, if no change in
designation is offered, to explain the basis for the chosen designation. A challenging Party may
proceed to the next stage of the challenge process only if it has engaged in this meet-and-confer
process first.
4.3.

Judicial Intervention. A Party that elects to press a challenge to a

confidentiality designation (subject to Section 4.2 above) may file and serve a motion that
identifies the challenged material and sets forth the basis for the challenge. Each such motion
must be accompanied by a competent declaration that affirms that the movant has complied with
the meet-and-confer requirements imposed in the preceding paragraph.
The burden of persuasion in any such challenge proceeding shall be on the
Designating Party, who must show that the designation was supported by good cause. If the
Court concludes that the “CONFIDENTIAL” designation or the challenge to that designation
was improper, the Court in its discretion may award attorneys’ fees to the prevailing party. Until

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the Court rules on the challenge, all parties shall continue to treat the material in question as
Confidential.
5.

ACCESS TO AND USE OF CONFIDENTIAL MATERIAL
5.1.

Storage of Confidential Material. Confidential Material must be stored and

maintained by a Receiving Party at a location and in a secure manner that reasonably ensures that
access is limited to the persons authorized under this Order.
5.2.

Disclosure of Confidential Material. Unless otherwise ordered by the

Court or permitted in writing by the Designating Party, a Receiving Party may disclose
Confidential Material only to:
(a)

The Receiving Party’s Counsel of record in this action, as well as

employees of said Counsel to whom it is reasonably necessary to disclose the information for
this litigation;
(b)

The Receiving Party and the officers, directors, and employees

(including in-house counsel) of the Receiving Party to whom disclosure is reasonably necessary
for this litigation and who have signed the “Acknowledgment and Agreement to Be Bound”
(Exhibit A);
(c)

Experts and/or Professional Vendors (as defined in this Order) of

the Receiving Party to whom disclosure is made in connection with their engagement who have
signed the “Acknowledgement and Agreement to Be Bound” (Exhibit A);
(d)

The Court and its personnel;

(e)

Court reporters and their staffs;

(f)

Witnesses in the action to whom disclosure is reasonably necessary

and who have signed the “Acknowledgement and Agreement to Be Bound” (Exhibit A). If any

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Confidential Material is to be disclosed during a deposition, the agreement to be bound and
subject to jurisdiction may be made on the record and under oath, rather than in writing, and any
objection may also be made orally. If the deponent refuses to sign Exhibit A and if the
questioning counsel reasonably believes that the disclosure of Confidential Material is necessary
for the prosecution or defense of this lawsuit, then the questioning counsel may disclose the
Confidential information to the deponent after providing a copy of this Order to the deponent and
advising the deponent that he or she is subject to the provisions of this Order.
(g)

The author of the document or the original source of the

(h)

Any designated mediator who is assigned to hear this matter, or

information.

who has been selected by the Parties, and his or her staff, who have signed the
“Acknowledgment and Agreement to Be Bound” (Exhibit A).
5.3.

Use of Confidential Material. All Confidential Material produced during

the discovery in this action shall be used by a Receiving Party only for the prosecution or
defense of this action and shall not be used or employed by a Receiving Party for any other
purpose whatsoever.

Nothing in this Order shall limit any person’s use or disclosure of

his/her/its own information, regardless of the designation of that information as Confidential.
5.4.

Nothing in this Order shall bar or otherwise prevent any attorney from

rendering advice to his or her client with respect to this lawsuit or from prosecuting or defending
this lawsuit in reliance on his or her examination or knowledge of Confidential Material; except
that in doing so, the attorney shall not disclose the contents of any Confidential Material to any
person not authorized to receive it under the terms of this Order.
5.5.

All executed copies of Exhibit A shall be retained by the Receiving Party.

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6.

CONFIDENTIAL MATERIAL SUBPOENAED OR ORDERED PRODUCED

IN OTHER LITIGATION
If a Receiving Party is served with a subpoena, document request, or an order
issued in other litigation that would compel disclosure of any information or items designated in
this action as “CONFIDENTIAL,” the Receiving Party must so notify the Designating Party, in
writing (by confirmed fax or overnight courier) immediately and in no event more than five (5)
business days after receiving the subpoena, document request, or order. Such notification must
include a copy of the subpoena, document request, or court order.
The Receiving Party also must immediately inform in writing the party who
caused the subpoena, document request, or order to issue in the other litigation that some or all
the material covered by the subpoena, document request, or order is the subject of this Protective
Order. In addition, the Receiving Party must deliver a copy of this Protective Order promptly to
the party in the other action that caused the subpoena, document request, or order to issue.
The purpose of imposing these duties is to alert the interested parties to the
existence of this Protective Order and to afford the Designating Party in this case an opportunity
to try to protect its confidentiality interests in the court from which the subpoena, document
request, or order issued. The Designating Party shall bear the burdens and the expenses of
seeking protection in that court of its confidential material. Nothing in these provisions should be
construed as authorizing or encouraging a Receiving Party in this action to disobey a lawful
directive from another court.
7.

UNAUTHORIZED DISCLOSURE OF CONFIDENTIAL MATERIAL
If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed

Confidential Material to any person or in any circumstance not authorized under this Protective

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Order, the Receiving Party must immediately: (a) notify in writing the Designating Party of the
unauthorized disclosures; (b) use its best efforts to retrieve all copies of the Confidential
Material; (c) inform the person or persons to whom unauthorized disclosures were made of all
the terms of this Order; and (d) request such person or persons to execute the “Acknowledgment
and Agreement to Be Bound” that is attached hereto as Exhibit A.
8.

FILING PROTECTED MATERIAL
No Party or non-party may file in the public record in this action any Confidential

Material. Rather, all Confidential Materials must be filed under seal in accordance with the Local
Rules of the United States District Court for the Eastern District of North Carolina. A redacted
version of all documents filed under seal must be filed in the public record.
In accordance with Section T(1)(a) of the Court’s Electronic Case Filing
Administrative Policies and Procedures Manual, each time a Party or non-party seeks to file any
material under seal, the Party or non-party shall accompany the request with a motion to seal.
The motion to seal may be filed without a supporting memorandum only if the filing Party or
non-party can cite a statute or rule (federal, local or standing order) that requires the filing to be
sealed. Absent such authority, the filing Party or non-party must submit a supporting
memorandum that specifies:
(i) the exact document or item, or portions thereof, for which filing under seal is
requested;
(ii) how such request to seal overcomes the common law or the First Amendment
presumption to access;
(iii) the specific qualities of the material at issue which justify sealing such
material, taking into account the balance of competing interest in access;

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(iv) the reasons why alternatives to sealing are inadequate; and
(v) whether there is consent to the motion.
In addition to the motion and supporting memorandum, the filing Party or non-party must set out
such findings in a proposed order to seal.
With respect to Confidential Material designated by a Party or non-party other than the
filing Party or non-party, the Designating Party shall have the burden of persuasion on the issues
in subsections (ii), (iii), and (iv), above. The Designating Party may brief these issues in
response to the motion to seal, in accordance with the Local Rules of this Court.
This procedure for filing Confidential Material under seal shall apply to all
filings, including filings made to challenge designations.
In the event that a filing Party or non-party fails to comply with this procedure
and causes Confidential Material to be filed unsealed, then the filing Party or non-party shall
immediately take reasonable steps to correct the non-compliance. The failure of a Party or nonparty to comply with this procedure with respect to its own Confidential Material alone shall
neither impair the Confidential status of the material nor constitute a waiver of, or estoppel as to,
any claim of confidentiality. The failure of one Party or non-party to comply with this procedure
with respect to the Confidential Material of another Party or non-party shall in no way impair the
Confidential status of the material.
9.

FINAL DISPOSITION
Unless otherwise ordered or agreed in writing by the Producing Party, within

sixty (60) days after the final termination of this action, each Receiving Party must return all
Confidential Material to the Producing Party or destroy it, at the election of the Receiving Party.
As used in this section, “all Confidential Material” includes all copies, abstracts, compilations,

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summaries or any other form of reproducing or capturing any of the Confidential Material.
Whether the Confidential Material is returned or destroyed, an authorized representative of the
Receiving Party must submit a written certification to the Producing Party (and, if not the same
person or entity, to the Designating Party) by the sixty-day deadline that certifies that all the
Confidential Material was returned or destroyed and that affirms that the Receiving Party has not
retained any copies, abstracts, compilations, summaries or other forms of reproducing or
capturing any of the Confidential Material. Notwithstanding this provision, Counsel are entitled
to retain an archival copy of all pleadings, motion papers, transcripts, legal memoranda,
correspondence or attorney work product, even if such materials contain Confidential Material.
Any such archival copies that contain or constitute Confidential Material remain subject to this
Protective Order as set forth in Section 2 (DURATION) above.
10.

PRODUCTION OF PRIVILEGED DOCUMENTS OR INFORMATION
Disclosure (including production) of information that a Producing Party later

claims should not have been disclosed because of a privilege, including, but not limited to, the
attorney-client privilege or work product doctrine (“Privileged Information”), shall not constitute
a waiver of, or estoppel as to, any claim of attorney-client privilege, attorney work-product, or
other ground for withholding production as to which the Producing Party would be entitled in the
litigation or any other federal or state proceeding. This Order is intended to provide the full
protection afforded by Federal Rule of Evidence 502(d), providing that “A Federal court may
order that the privilege or protection is not waived by disclosure connected with the litigation
pending before the court — in which event the disclosure also is not a waiver in any other
Federal or State proceeding.” Upon discovery by a Producing Party (or upon receipt of notice
from another Party) that he/she/it may have produced Privileged Information, the Producing

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Party shall, promptly upon such discovery, request the return of such information in writing by
identifying the Privileged Information and stating the basis on which the Privileged Information
should be withheld from production. After being notified, all other Parties (or non-parties, if
applicable) must promptly return, sequester, or destroy the Privileged Information and any copies
he/she/it has; must not use or disclose the information until the claim is resolved; and must take
reasonable steps to retrieve the Privileged Information if he/she/it disclosed the Privileged
Information before being notified. If any Party (or non-party, if applicable) disputes the privilege
claim (“Objecting Party”), that Objecting Party shall notify the Producing Party of the dispute
and the basis therefore in writing within ten (10) days of receipt of the request for the return of
the Privileged Information. The Parties (or non-parties, if applicable) thereafter shall meet and
confer in good faith regarding the disputed claim within ten (10) days. In the event that the
Parties or non-parties do not resolve their dispute, any Party or nonparty may bring a motion for
a determination of whether a privilege applies. If such a motion is made, the Producing Party
shall submit to the Court for in camera review under seal a copy of the disputed information in
connection with its motion papers. The submission to the Court shall not constitute a waiver of
any privilege or protection. The Producing Party must preserve the information claimed to be
privileged or otherwise protected until the claim is resolved.
Except as expressly set forth herein, nothing in this provision shall limit the bases
on which the Objecting Party may challenge the assertion of any privilege or protection by the
Producing Party.
11.

MISCELLANEOUS
11.1.

Right to Further Relief. Nothing in this Order abridges the right of any

person to seek modification of this Order by the Court in the future.

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11.2.

Right to Assert Other Objections. By stipulating to the entry of this

Protective Order no Party or non-party waives any right it otherwise would have to object to
disclosing or producing any information or item on any ground not addressed in this Protective
Order. Similarly, no Party or non-party waives any right to object on any ground to use in
evidence any of the material covered by this Protective Order. Nothing in the Protective Order,
including the designation of any material as Confidential Material, shall be construed as a waiver
of any claim or defense that any Party or nonparty may have in this action.
IT IS SO ORDERED this _____ day of _____, 2015.
9th
June

______________________________________
KIMBERLY A. SWANK
United States Magistrate Judge

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EXHIBIT A
ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND
__________________ of ____________________, declare under penalty of
perjury that I have read in its entirety and understand the Protective Order that was issued by the
United States District Court, Eastern District of North Carolina in Case No. 5:13-cv-00831-BR, I
agree to comply with and to be bound by all the terms of this Stipulated Protective Order and I
understand and acknowledge that failure to so comply could expose me to sanctions and
punishment in the nature of contempt. I solemnly promise that I will not disclose in any manner
any information or item that is subject to this Protective Order to any person or entity except in
strict compliance with the provisions of this Order.
I further agree to submit to the jurisdiction of the United States District Court for
the Eastern District of North Carolina for the purpose of enforcing the terms of this Protective
Order, even if such enforcement proceedings occur after termination of this action.
Date:
Printed name:
Signature
[signature]

~#4822-6019-2033~

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