Trana Discovery, Inc. v. Southern Research Institute

Filing 35

PROTECTIVE ORDER. Signed by Magistrate Judge Robert B. Jones, Jr. on 5/14/2015. (Grady, B.)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
WESTERN DIVISION

TRANA DISCOVERY, INC.
Plaintiff,
vs.
SOUTHERN RESEARCH INSTITUTUE
Defendant.

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Civil Action No. 5:13-cv-00848-F

STIPULATION AND ORDER GOVERNING THE PRODUCTION AND
EXCHANGE OF CONFIDENTIAL INFORMATION

WHEREAS, Plaintiff Trana Discovery, Inc. ("Trana") and Defendant Southern Research
Institute ("Southern Research") (collectively the "Parties" and each a "Party") may engage in
discovery proceedings for the above-captioned action (the "Litigation"), which include, among
other things, taking depositions and producing documents; and
WHEREAS, those discovery proceedings will necessarily involve the production of
certain information that the Parties believe to be confidential and sensitive commercial, financial,
or business information;
IT IS HEREBY STIPULATED AND AGREED, by the Parties hereto, through their
undersigned counsel, subject to the approval of the Court and pursuant to Federal Rule of Civil
Procedure 26( c), that this Stipulation and Order for the Production and Exchange of Confidential
Information (the "Stipulation") will govern the handling of documents, deposition testimony,
deposition exhibits, deposition transcripts, written discovery requests, interrogatory responses,
responses to requests to admit, and responses to requests for documents, and any other

information or material produced, gtven or exchanged, including any information contained
therein or derived therefrom ("Discovery Material") by or among any Party or non-party
providing Discovery Material (each a "Producing Party") in this Litigation.
1.

Any Producing Party may designate any Discovery Material as "Confidential"

under the terms of this Stipulation if such party in good faith believes that such Discovery
Material contains non-public, confidential, proprietary, or commercially sensitive information
that requires the protections provided in this Stipulation and Order ("Confidential Discovery
Material").
2.

The designation of Discovery Material as Confidential Discovery Material shall

be made in the following manner:
A.

In the case of documents or other materials (apart from depositions or other pretrial testimony): (i) by affixing the legend "Confidential" to each page containing
any Confidential Discovery Material; or (ii) in the case of electronically stored
information produced in native format, by including "Confidential" on a cover
sheet to the native file, in the file or directory name, or by affixing the legend
"Confidential" to the media containing the Discovery Material (e.g., CD-ROM,
floppy disk, DVD).

B.

In the case of depositions or other pre-trial testimony: (i) by a statement on the
record, by counsel, at the time of such disclosure or before the conclusion of the
deposition or testimony; or (ii) by written notice, sent to all Parties within 10
business days of the deposition or other pre-trial testimony; provided that only

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those portions of the transcript designated as Confidential Discovery Material shall
be deemed Confidential Discovery Material. The Parties may modify this
procedure for any particular deposition or other pre-trial testimony, through
agreement on the record at such deposition or testimony, without further order of
the Court.
C.

In the case of any other Discovery Material, by written notice that the Discovery
Material constitutes Confidential Discovery Material.

3.

The designation of Discovery Material as Confidential Discovery Material shall

constitute a representation that such Discovery Material has been reviewed by an attorney
representing the Producing Party making the designation, and that there is a good faith basis for
such designation.
4.

Inadvertent failure to designate Discovery Material as Confidential Discovery

Material shall not constitute a waiver of such claim and may be corrected. A Producing Party may
designate as Confidential any Discovery Material that has already been produced, including
Discovery Material that the Producing Party inadvertently failed to designate as Confidential, (i)
by notifying in writing the Party to whom the production has been made that the Discovery
Material constitutes Confidential Discovery Material, or (ii) in a manner consistent with
Paragraph 2. Upon receiving such supplemental notice, the Parties shall thereafter mark and treat
the Discovery Material so designated as Confidential Discovery Material, and such Discovery
Material shall be fully subject to this Stipulation from the date of such supplemental notice
forward. The Party receiving such notice shall make a reasonable, good-faith effort to ensure that

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any analyses, memoranda, notes, or other such materials generated based upon such newly
designated information are immediately treated as containing Confidential Discovery Material. In
addition, upon receiving such supplemental written notice, any receiving Party that disclosed the
Discovery Material prior to its designation as "Confidential" shall exercise its best efforts (i) to
ensure the return or destruction of such Discovery Material, (ii) to ensure that any documents or
other materials derived from such Discovery Material are treated as if the Discovery Material
had been designated as "Confidential" when originally produced, (iii) to ensure that such
Discovery Material is not further disclosed except in accordance with the terms of this
Stipulation and Order, and (iv) to ensure that any such Discovery Material, and any information
derived therefrom, is used solely for the purposes described in Paragraph 7 of this Stipulation
and Order.
5.

Confidential

Discovery

Material

may

be

disclosed,

summarized,

described, characterized, or otherwise communicated or made available in whole or in part only
to the following persons:
A.

The Parties and the directors, officers, employees, general partners, and limited
partners of the Parties, or any subsidiary or affiliate thereof, who are assisting
with or making decisions concerning the Litigation, to the extent deemed
reasonably necessary by counsel of record for the purpose of assisting in the
prosecution or defense of the Litigation for use in accordance with this
Stipulation;

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B.

Counsel who represent the Parties to this Stipulation (including in-house counsel),
and the partners, associates, paralegals, secretaries, clerical, regular and temporary
employees, and service vendors of such counsel (including outside copying and
litigation support services) who are assisting with the Litigation for use in
accordance with this Stipulation.

C.

Subject to Paragraph 7, experts or consultants assisting counsel for the Parties,
and partners, associates, paralegals, secretaries, clerical, regular and temporary
employees, and service vendors of such experts or consultants (including outside
copying services and outside support services) who are assisting with the
Litigation;

D.

Subject to Paragraph 8, witnesses or deponents, and their counsel, only to the
extent necessary to conduct or prepare for depositions or testimony in this
Litigation;

E.

Any person indicated on the face of a document or accompanying covering letter,
email, or other communication to be the author, addressee, or an actual or
intended recipient ofthe document, or, in the case of meeting minutes, an attendee
of the meeting, or a person who has previously viewed any such document or has
previously viewed the confidential information in such a document;

F.

The Court, persons employed by the Court, and court reporters transcribing any
hearing, trial, or deposition in this Litigation or any appeal therefrom; and

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G.

Any other person only upon (i) order of the Court entered upon notice to the
Parties, or (ii) written stipulation of, or statement on the record by, the Producing
Party who provided the Discovery Material being disclosed, provided that such
person signs an undertaking in the form attached as Exhibit A hereto.

6.

To the extent that testimony is sought concerning Confidential Discovery Material

during any deposition or in any other pre-trial venue, any Party may exclude any person from the
deposition or other venue during such testimony if the Confidential Discovery Material may not
be disclosed to such person under the terms of this Stipulation.
7.

Notwithstanding Paragraph 5(C) above, Confidential Discovery Material may be

provided to persons listed therein only to the extent necessary for such expert or consultant to
prepare a written opinion, to prepare to testify, or to assist counsel in this Litigation. Discovery
Material shall only be used by any expert or consultant solely in connection with this Litigation;
and, prior to the disclosure of any Discovery Material to any expert or consultant, each expert or
consultant must agree to be bound by the terms of this Stipulation by signing an undertaking in
the form attached as Exhibit A hereto. Counsel for the Party showing, providing, or disclosing
Confidential Discovery Material to any person required to execute an undertaking pursuant to
this paragraph shall be responsible for obtaining such signed undertaking and retaining the
original, executed copy thereof.
8.

Notwithstanding Paragraph 5(D) above, Confidential Discovery Material may be

provided to persons listed therein only after (i) they confirm their understanding and agreement
to abide by the terms of this Stipulation by making such a statement on the record, and/or by
signing an undertaking in the form attached as Exhibit A hereto, or (ii) a court of competent

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jurisdiction orders them to abide by the terms of the Stipulation. Counsel for the Party showing
Confidential Discovery Material to any person required to execute an undertaking pursuant to
this paragraph shall be responsible for obtaining such signed undertaking and retaining the
original, executed copy thereof.
9.

Discovery Material shall be used solely for purposes of this Litigation and shall

not be used for any other purpose, including, without limitation, any business or commercial
purpose, or any other litigation or proceeding; provided, however, that the foregoing shall not
apply to Discovery Material that is or becomes part of the public record.
10.

Every person to whom Discovery Material is disclosed, summarized, described,

characterized, or otherwise communicated or made available, in whole or in part, shall be advised
that the information is being disclosed pursuant and subject to the terms of this Stipulation and
may not be disclosed or used for purposes other than those permitted hereunder. Each such person
shall maintain the Discovery Material, or information derived therefrom, in a manner reasonably
calculated to prevent unauthorized disclosure. Any Party issuing a subpoena to a non-Party shall
enclose a copy of this Stipulation and notify the non-Party that the protections of this Stipulation
are available to such non-Party.
11.

During the pendency of this Litigation, any Party objecting to the designation of

any Discovery Material or testimony as Confidential Discovery Material may, after making a
good-faith effort to resolve any such objection, move on reasonable notice for an order vacating
the designation. While such an application is pending, the Discovery Material or testimony in
question shall be treated as Confidential Discovery Material pursuant to this Stipulation. The
provisions of this Stipulation are not intended to shift any burdens of proof, including the burden
of establishing that any Discovery Material validly constitutes Confidential Discovery Material,

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which burden remains on the party that designates such Discovery Material or testimony as
Confidential.
12.

The Parties reserve the right to apply, pursuant to Rule 26(c), upon short notice,

for an order seeking additional safeguards with respect to the use and handling of Discovery
Material or to modify the terms of this Stipulation. This includes, but is in no way limited to,
seeking an additional protective order, pursuant to Rule 26( c), prior to the disclosure or
production of certain third-party proprietary, confidential, or otherwise commercially sensitive
information, or information for which a Party is obligated under contract not to disclose.
13.

Subject to Paragraph 15, if a non-Producing Party intends to file with the Court

any Confidential Discovery Material produced by a Producing Party, that non-Producing Party
must follow the procedures for "Sealed Documents" outlined in this Court's Local Rule 79.2.
The non-Producing Party may rely solely upon the terms of this Stipulated Order and the
Producing Party's designation of Confidential Discovery Material as grounds for moving to file a
document under seal. Should the Producing Party have grounds over and above this Stipulated
Order and the Producing Party's designation of Confidential Discovery Material for seeking
protection of a document under seal, the burden lies exclusively with the Producing Party to
assert such grounds as a joinder or supplement to any papers filed by the non-Producing Party
pursuant to this Court's Local Rule 79.2.
14.

Entering into this Stipulation, or agreemg to and/or producing or rece1vmg

Discovery Material or otherwise complying with the terms of this Stipulation, shall not:
A.

Prejudice in any way the rights of any Party to (i) seek production of documents
or information it considers subject to discovery, or (ii) object to the production of
documents or information it considers not subject to discovery;

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B.

Prejudice in any way the rights of any Party to object to the authenticity or
admissibility into evidence of any Discovery Material;

C.

Operate as an admission by any Party that any particular Discovery Material
constitutes Confidential Discovery Material or contains or reflects trade secrets or
any other type of confidential information;

D.

Prejudice in any way the rights of any Party to (i) petition the Court for a further
protective order relating to any purportedly Confidential Discovery Material, or
(ii) seek a determination by the Court whether any Discovery Material or
Confidential Discovery Material should be subject to the terms of this Stipulation;

E.

Prevent any Party from agreeing in writing to alter or waive the provisions or
protections provided herein with respect to any particular Discovery Material;

F.

Prejudice in any way the rights of any Party to object to the relevance,
authenticity, use, or admissibility into evidence of any document, testimony, or
other evidence subject to this Stipulation and Order;

G.

Preclude any Party from objecting to discovery that it believes to be otherwise
Improper; or

H.

Operate as a waiver of any attorney-client, work product, business strategy, trade
secret, or other privilege.

15.

This Stipulation has no effect upon, and shall not apply to, a Producing Party's

use or disclosure of its own Discovery Material for any purpose. Nothing herein shall: (i) prevent
a Producing Party from disclosing its own Discovery Material; or (ii) impose any restrictions on
the use or disclosure by any person of documents, materials, or information designated as

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Confidential Discovery Material obtained lawfully by such person independently of the
discovery proceedings in this Litigation, and not otherwise subject to confidentiality restrictions.
16.

If Discovery Material is subject to a claim of attorney-client privilege, attorney

work product, or any other applicable privilege or immunity, the Producing Party will submit an
appropriate privilege log to the other Party at the time of producing the Discovery Material.
17.

If Discovery Material that is subject to a claim of attorney-client privilege,

attorney work product, or any other applicable privilege or immunity or ground on which
production of that information should not be made to any Party ("Inadvertent Production
Material") is inadvertently produced to that Party or Parties, such inadvertent production shall in
no way prejudice or otherwise constitute a waiver of, or estoppel as to, any claim of attorneyclient privilege, work product, or other applicable privilege or immunity.
A.

A

claim

of

inadvertent

production

shall

constitute

a

representation by that Producing .Party that the Inadvertent Production Material
has been reviewed by an attorney for such Producing Party and that there is a
good faith basis for such claim of inadvertent production.
B.

If a claim of inadvertent production is made pursuant to this Stipulation, with
respect to Discovery Material then in the custody of another Party, the Party
possessing the Inadvertent Production Material shall: (i) refrain from any further
examination or disclosure of the claimed Inadvertent Production Material; (ii) if
requested, and if no motion is made pursuant to clause (iv) of this Paragraph
promptly make a good-faith effort to return the claimed Inadvertent Production
Material and all copies thereof (including summaries and excerpts) to counsel for
the Producing Party, or destroy all such claimed Inadvertent Production Material

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(including summaries and excerpts) and all copies thereof, and certify in writing
to that fact; and (iii) not use the Inadvertent Production Material for any purpose
until further order of the Court; or (iv) within ten (10) days of receiving a claim of
inadvertent production, move the Court for a determination as to whether the
Discovery Material is subject to the claimed privilege, which the Producing Party
shall bear the burden to show.
18.

While a motion pursuant to Paragraph 17(B)(iv) is pending, the Discovery

Material in question shall be treated as Inadvertent Production Material, and such motion may
not assert as a ground for entering such an order the fact or circumstance of the inadvertent
production, nor shall such motion include or otherwise disclose, as an attachment, exhibit, or
otherwise, the Inadvertent Production Material (or any portion thereof) that is the subject of such
motion.
19.

Nothing herein shall be deemed to waive any applicable common law or statutory

privilege or work product protection.
20.

In the event (a) additional parties to this Litigation are allowed to engage m

discovery proceedings or (b) additional parties are joined in the Litigation, they shall not have
access to Confidential Discovery Material until that party by its counsel has executed and filed
with the Court its agreement to be fully bound by this Stipulation.
21.

The Parties agree to be bound by the terms of this Stipulation pending the entry

by the Court of this Stipulation, and any violation of its terms shall be subject to the same
sanctions and penalties as if this Stipulation had been entered by the Court.
22.

The provisions of this Stipulation shall, absent written permission of the

Producing Party or further order of the Court, continue to be binding throughout and after the

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conclusion of the Litigation, including, without limitation, any appeals therefrom, except as
provided in Paragraph 23.
23.

In the event that any Confidential Discovery Material is used in open court during

any court proceeding or filed as a trial exhibit, the material shall lose its confidential status and
become part of the public record, unless the Producing Party applies for and obtains an order from
this Court specifically maintaining the confidential status of particular material. Prior to any
court proceeding in which Confidential Discovery Material is to be used, counsel shall confer in
good faith on such procedures that may be necessary or advisable to protect the confidentiality of
any such Discovery Material.
24.

Within

30

days

after

rece1vmg

notice

of the

entry

of an

order,

judgment, or decree finally disposing of this Litigation, or any other proceeding in which
Confidential Discovery Material is permitted to be used, including the exhaustion of all possible
appeals, and upon the written request of the Producing Party, all persons having received
Confidential Discovery Material shall either (i) make a good-faith and reasonable effort to return
such material and all copies thereof (including summaries, excerpts, and derivative works) to
counsel for the Producing Party; or (ii) make a good-faith and reasonable effort to destroy all
such Confidential Discovery Material, and certify to that fact in writing to counsel for the
Producing Party. However, counsel for the Parties shall be entitled to retain court papers,
deposition and trial transcripts, and litigation files (including attorney work product and
discovery material containing Confidential Discovery Material), provided that such counsel, and
employees of such counsel, shall maintain the confidentiality thereof and shall not disclose such
court papers, depositions and trial transcripts, and litigation files (including attorney work
product and discovery material containing Confidential Discovery Material) to any person except

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pursuant to a court order or agreement by the Producing Party or except as otherwise required by
law. All materials returned to the Parties or their counsel by the Court likewise shall be disposed
of in accordance with this paragraph.
25.

If any person in possession of Confidential Discovery Material (the "Receiver")

receives a subpoena or other compulsory process seeking the production or other disclosure of
Confidential Discovery Material produced or designated as "Confidential" by a Producing Party
other than the Receiver (collectively, a "Demand"), the Receiver shall give written notice (by
hand, email, or facsimile transmission) to counsel for the Producing Party within three business
days of receipt of such Demand (or if a response to the Demand is due in less than three business
days, at least 24 hours prior to the deadline for a response to the Demand), identifying the
Confidential Discovery Material sought and enclosing a copy of the Demand, and must object to
the production of the Confidential Discovery Material on the grounds of the existence of this
Stipulation. The burden of opposing the enforcement of the Demand will fall on the Producing
Party. Nothing herein shall be construed as requiring the Receiver or anyone else covered by this
Stipulation to challenge or appeal any order requiring production of Confidential Discovery
Material covered by this Stipulation, or to subject itself to any penalties for noncompliance with
any legal process or order, or to seek any relief from this Court or any other court. Compliance
by the Receiver with any order directing production pursuant to a Demand of any Confidential
Discovery Material will not constitute a violation of this Stipulation.
26.

No Receiver shall reveal any Confidential Discovery Material, or the information

contained therein, to anyone not entitled to receive such Confidential Discovery Material under
the terms of this Stipulation. In the event that Confidential Discovery Material is disclosed to any
person other than in the manner authorized by this Stipulation, or that any information comes to

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the Receiver's attention that may indicate there was or is likely to be a loss of confidentiality of
any Confidential Discovery Material, the Receiver responsible for the disclosure or loss of
confidentiality shall immediately inform the Producing Party of all pertinent facts relating to the
disclosure or loss of confidentiality, including, if known, the name, address, and employer of
each person to whom the disclosure was made. The Receiver responsible for the disclosure or
loss of confidentiality shall also make reasonable efforts to prevent disclosure of Confidential
Discovery Material by each unauthorized person who receives the information.
27.

The Parties agree that the production of any Discovery Material by

any non-party shall be subject to and governed by the terms of this Order.
Respectfully submitted by Counsel,
SOUTHERN RESEARCH INSTITUTE

TRANA DISCOVERY, INC.

Is/ Mark E. Anderson
Mark E. Anderson
NC State Bar No. 15764
[e-mail]
McGUIREWOODS LLC
434 Fayetteville Street, Suite 2600
Raleigh, NC 27601
Phone: [phone]

Is/ W. Cory Reiss
W. Cory Reiss
N.C. State BarNo. 41549
creiss@shipmanlaw .com
Gary K. Shipman
N.C. State Bar No. 9464
[e-mail]
SHIPMAN & WRIGHT, LLP
575 Military Cutoff, Suite 106
Wilmington, NC 28405
Phone: [phone]
Fax: [phone]

Thomas W. Thagard III (pro hac vice)
tthagard@maynardcooper .com
J. Ethan McDaniel (pro hac vice)
[e-mail]
James C. Lester (pro hac vice)
[e-mail]
MAYNARD COOPER & GALE P.C.
1901 Sixth Avenue North
2400 Regions Harbert Plaza
Birmingham, AL 35203
Phone: [phone]
Fax: [phone]

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SOORDEREDthis

JL/

dayofMay,2015.

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IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
WESTERN DIVISION

TRANA DISCOVERY, INC.
Plaintiff,
vs.
SOUTHERN RESEARCH INSTITUTUE
Defendant.

)
)
)
)
)
)
)
)
)
)
)

Civil Action No. 5:13-cv-00848-F

EXHIBIT A TO STIPULATION AND ORDER GOVERNING THE PRODUCTION AND
EXCHANGE OF CONFIDENTIAL INFORMATION

I,
, have read the Stipulated Order Governing the Production
and Exchange of Confidential Information (the "Protective Order") entered in Trana Discovery Inc.
v. Southern Research Institute, Civil Action No. 5: 13-cv-00848-F, currently pending in the United
States District Court for the Eastern District of North Carolina. I agree to be bound by the
Protective Order, and I agree not to disclose information protected by the Protective Order to any
person not authorized to receive it. I agree to keep any documents or information provided to
me under this undertaking segregated and secure, and I shall refrain from disclosing the
information in any manner other than in accordance with the terms of the Protective Order. I
further consent to the jurisdiction of the United States District Court for the Eastern District of
North Carolina for enforcement of the Protective Order, and I understand that I may be subject
contempt or other sanctions for the failure to obey the Protective Order.

Signed:
(Name)
(Date)

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