NOA, LLC, et al v. Atlantic Clothing, LLC, et al

Filing 53

CONSENT PROTECTIVE ORDER - Signed by District Judge Louise Wood Flanagan on 10/16/2014. (Baker, C.)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
WESTERN DIVISION
Civil Action No. 5:14-cv-00100-FL
NOA, LLC, and INSAF NEHME,
Plaintiffs,
v.
ATLANTIC CLOTHING, LLC, and
INTERNATIONAL RAGS, LTD.,
Defendants.

)
)
)
)
)
)
)
)
)
)
)

CONSENT PROTECTIVE ORDER

THIS CAUSE came on to be heard upon the joint motion of Plaintiff s. NOA, LLC and
Insaf Nehme (“Plaintiffs”) and Defendant International Rags, Ltd. (“Defendant”); and it
appearing to the Court that discovery and the trial in this action may involve the production and
disclosure of confidential, proprietary, or sensitive information requiring protection against
unrestricted disclosure or use;
THEREFORE, IT IS HEREBY STIPULATED, AGREED, AND ORDERED that,
pursuant to Rule 26(c) of the Federal Rules of Civil Procedure, the following confidentiality
provisions shall govern all information and documents disclosed in discovery in this action:
1.

Certain information and documents to be produced by Plaintiffs and Defendant

during discovery in this litigation may contain trade secrets or other proprietary, confidential
research, development, financial, or commercial information that should be considered
confidential and protected from unreasonable disclosure pursuant to Fed. R. Civ. P. 26(c).
2.

The information and documents to be considered as confidential and disclosed

only in accordance with the terms of this Consent Protective Order (“this Order”) shall include,
without limitation, all documents or information whether in hard copy or electronic form

designated in accordance with the terms of this Order and supplied in response to the demands or
requests of either party, formal or informal, regardless of whether said information is produced
or disclosed by a party to this action or any third or non-party.
3.

All information designated “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL

- ATTORNEYS EYES ONLY” in accordance with the terms of this Order and disclosed in
discovery in this action shall be used solely for purposes of prosecuting or defending this
litigation and shall not be used for any other purpose.
4.

“Discovery Material” shall mean and include any document (whether in hard

copy or computer readable form), thing, deposition testimony, interrogatory answers, responses
to requests for admissions and/or production, or other information provided in discovery in this
action. For purposes of this proceeding, parties and nonparties may designate material as
"CONFIDENTIAL" or "HIGHLY CONFIDENTIAL - ATTORNEYS EYES ONLY" Such
designation shall constitute a representation to the Court that counsel believes in good faith that
the information (1) constitutes information subject to protection under Rule 26(c) and (2) that
there is good cause for the same to be protected from public disclosure.
Discovery Material designated “CONFIDENTIAL” shall mean and include all
information subject to protection under Fed. R. Civ. P. 26. Certain limited types of
“CONFIDENTIAL” information may be alternatively designated, as defined and detailed below,
as “HIGHLY CONFIDENTIAL - ATTORNEYS EYES ONLY.” The “HIGHLY
CONFIDENTIAL - ATTORNEYS EYES ONLY” designation shall be reserved for confidential
information that constitutes, reflects, or concerns trade secrets, know-how or proprietary data,
and business, financial, or commercial information, the disclosure of which is likely to cause
harm to the competitive position of the party making the confidential designations of Discovery
2

Material. “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL - ATTORNEYS EYES ONLY”
information, as used in this Order, shall refer to any information so designated. Each Party or
Non-party that designates information or items for protection under this Order as either
“CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEY’S EYES ONLY” must use
good faith efforts to limit any such designation to specific material that qualifies under the
appropriate standards. A Designating Party must use good faith efforts to designate for
protection only those parts of material, documents, items, or oral or written communications that
qualify – so that other portions of the material, documents, items, or communications for which
protection is not warranted are not swept unjustifiably within the ambit of this Order. Mass,
indiscriminate, or routine designations are strictly prohibited.
5.

All information designated “CONFIDENTIAL” shall be maintained in confidence

by the parties to whom such information is produced or given, shall be used solely for the
purposes of this litigation, and shall not be disclosed to any person except:
(a)

The Court (including court reporters, stenographic reporters and

videographers, and court personnel);
(b)

The attorneys of record, their partners, employees, and associates of

outside counsel (collectively hereafter referred to as “Outside Counsel”);
(c)

Officers or employees of Plaintiffs in this action, and officers and

employees of Defendant in this action; provided, that such officers or employees shall receive
such “CONFIDENTIAL” information solely on a “need to know” basis for purposes of
prosecuting or defending this litigation and for no other purposes;
(d)

Subject to the terms of Paragraph 13 below, experts and their staff,

contractors, and litigation support personnel and their staff retained by Outside Counsel in this
3

litigation; and
(e)

Any other person as to whom the producing party agrees in writing prior

to such disclosure.
6.

All information designated as “HIGHLY CONFIDENTIAL - ATTORNEYS

EYES ONLY” shall be maintained in confidence for use by the attorneys of the parties, shall be
used solely for the purposes of this litigation, and shall not be disclosed to any person except
those listed in subparagraphs 5(a), (b), (d) and (e) above.
7.

Nothing in the Order shall be taken as assent by a non-producing party that designated

information is in fact “CONFIDENTIAL,” “HIGHLY CONFIDENTIAL - ATTORNEYS EYES
ONLY,” or is entitled to protection under Rule 26(c) of the Federal Rules of Civil Procedure The
Party or Non-party designating information or items as protected bears the burden of
establishing good cause for the confidentiality of all such information or items. Within twenty
one (21) days of a party’s determination that a challenge to a designating party’s confidentiality
designation is necessary, the challenging party must provide written notice of the objection to the
designating party and schedule the Meet and Confer described below. Within ten (10) days of
providing notification, the Party that elects to initiate a challenge to a designating party’s
confidentiality designation must confer directly with counsel for the designating party. In
conferring, the challenging party must explain the basis for its belief that the confidentiality
designation was not proper and must give the designating party ten (10) business days to review
the designated material, 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.
If, after engaging in the meet and confer process, a challenging party still contends that a
4

confidentiality designation was not proper, the challenging party may at any time give written
notice by way of a letter to the designating party stating its objection to the confidentiality
designation. The designating party has ten (10) business days from receipt of such written notice
to apply to the Court for an order specifically designating the Disclosure or Discovery Material
at issue as “Protected Material”. The Party seeking such an order has the burden of establishing
good cause for the Disclosure or Discovery Material to be treated as “Protected Material”.
Notwithstanding any challenge to the designation of Disclosure or Discovery Material as
Protected Material, all materials designated as such must be treated as such and subject to this
order until one of the following occurs:
a.

the Designating Party withdraws its confidentiality designation in writing;

b.

the Designating Party fails to apply to the Court for an order designating the

material Protected Material within the time period specified above after receipt of a written
challenge to such designation; or
c.

the Court decides the material at issue is not subject to protection as Protected

Material..
8.

Nothing in this Order shall preclude any party from applying to this Court for

relief from any provision hereof, or from asserting that certain discovery materials should receive
greater confidentiality protection than that provided herein, in accordance with Rule 26(c) of the
Federal Rules of Civil Procedure.
9.

For information in documentary form (apart from transcripts of depositions or

other pretrial or trial proceedings), no designation of documents as “CONFIDENTIAL” or
“HIGHLY CONFIDENTIAL - ATTORNEYS EYES ONLY” shall be effective unless there is
placed or affixed on such document a “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL 5

ATTORNEYS EYES ONLY” notice or the equivalent. Where practicable, such notice shall be
placed near the Bates number. In the case of computer, audiovisual, or other electronic or
magnetic medium, such notice shall be placed on the medium and its protective cover, if any.
Testimony given at a deposition or hearing may be designated “CONFIDENTIAL” or “HIGHLY
CONFIDENTIAL - ATTORNEYS EYES ONLY” in accordance with the provisions of
Paragraph 17 of this Order. Any designation that is inadvertently omitted from a document or
testimony may be corrected by written notification to opposing counsel, but any disclosure prior
to such notification shall not be a violation of this Order. A party or non-party that makes
original documents or materials available for inspection need not designate them for protection
until after the inspecting party has indicated which material it would like copied and
produced. During the inspection and before the designation, all of the material made available
for inspection shall be deemed HIGHLY CONFIDENTIAL-ATTORNEY’S EYES
ONLY. After the inspecting party has identified the documents it wants copied and produced,
the producing party must determine which documents, or portions thereof, qualify for protection
under this Order, then, before producing the specified documents, the producing party must affix
the legend “CONFIDENTIAL” or “CONFIDENTIAL – ATTORNEYS’ EYES ONLY” at the
bottom of each page that contains Protected Material. If only a portion of the material on a page
qualifies for protection, the producing party also must clearly identify the protected portion(s)
(e.g., by making appropriate markings in the margins, but not over text).
10.

All “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL - ATTORNEYS EYES

ONLY” information shall be maintained under the control of Outside Counsel, who shall be
responsible for preventing any disclosure thereof except in accordance with the terms of this
Order.
6

11.

Before filing any information that has been designated “CONFIDENTIAL” or

“HIGHLY CONFIDENTIAL - ATTORNEYS EYES ONLY” with the Court, the filing Party
must comply with the procedures in section T (1) of the Courts Electronic Case Filing
Administrative Policies and Procedures Manual (Rev. Jan. 25, 2010) (“ECF Manual”). Each
time a party seeks to file under seal confidential documents, things, and/or information, 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 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. However, in the event that a party seeking to
file confidential information is not the party who designated that material as “CONFIDENTIAL”
or “HIGHLY CONFIDENTIAL - ATTORNEYS EYES ONLY”, then the filing party and the
designating party shall follow the procedures set forth in section T (1)(a)(6) of the Court’s ECF

7

Manual. Further proceedings with respect to a motion to seal will be governed by the Court’s
Case Management Order.
12.

Information produced by non-parties during the course of this action may be

designated under this Order by such non-party or by a party as “CONFIDENTIAL” or
“HIGHLY CONFIDENTIAL - ATTORNEYS EYES ONLY” by following the procedures set
forth herein or may be deemed so confidential as not to be disclosed under any circumstances.
Information so designated and produced by third parties shall thereafter be treated by the parties
in the same manner as if produced with such designation by a party. A producing non-party shall
have all the rights of a producing party with respect to protection of information under the terms
of this Order. The provisions of this Order for challenging the designation by a party are
applicable to challenges to designations by non-parties.
13.

Prior to disclosure of “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL -

ATTORNEYS EYES ONLY” information to any third parties, to include persons employed to
act as outside consultants or experts, translators, or interpreters in this action, counsel for the
party seeking disclosure shall require such persons to read this Order and execute a
Nondisclosure Agreement in the form attached hereto as Exhibit A, the original of which shall be
promptly provided to opposing counsel and a copy thereof served on all other counsel. In
addition, counsel for the party seeking disclosure shall comply with the following:
(a)

Nothing in this Order shall be construed as requiring: i) that routine

outside suppliers of litigation support services such as photocopying, scanning, or coding execute
the attached Nondisclosure Agreement; or ii) that the opposing party utilizing such services must
disclose the identity of such service suppliers to the opposing party or counsel.
(b)

Nothing in this Order shall be construed as requiring that the identity of
8

witness preparation consultants, jury consultants, or trial presentation consultants be disclosed to
the opposing party or counsel.
14.

Nothing in this Order shall prevent or restrict any person from using or disclosing

in any manner its own “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL - ATTORNEYS
EYES ONLY” information that it has produced or disclosed in this litigation.
15.

Nothing in this Order shall prevent disclosure beyond the terms of this Order of

any “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL - ATTORNEYS EYES ONLY”
information if the parties to this action and, if applicable, the non-party from which the material
originated, consent, or if the Court, on motion filed by the party seeking to make disclosure,
orders that disclosure be made. Any party may at any time request the Court, after notice to the
opposing party and to the non-party from which the material originated, if applicable, to modify
or grant relief from any provision of this Order or to place additional restrictions on the use of
any “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL - ATTORNEYS EYES ONLY”
information.
16.

Nothing herein shall prohibit a party, or its counsel, from disclosing any

document designated “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL - ATTORNEYS
EYES ONLY” to the person the document identifies as an author or recipient of such document,
or to any person that evidence shows to have already viewed the document or been told of its
contents.
17.

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.

9

For testimony given in deposition or in other pretrial or trial proceedings. All
depositions or portions of depositions taken in this action that contain confidential information
may be designated as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL - ATTORNEYS
EYES ONLY” and thereby obtain the protections afforded other “CONFIDENTIAL” or
“HIGHLY CONFIDENTIAL - ATTORNEYS EYES ONLY” documents. Confidentiality
designations for depositions shall be made either on the record or by written notice to the other
party within twenty (20) days of receipt of the transcript. Unless otherwise agreed, depositions
shall be treated as “HIGHLY CONFIDENTIAL - ATTORNEYS EYES ONLY” during the 20
day period following receipt of the transcript. With regard to all testimony presented on other
pretrial or trial proceedings, the Party or Non-party offering or sponsoring the testimony must
identify on the record, before the hearing, or other pretrial proceeding, all protected testimony by
page and line number. When it is impractical to identify separately each portion of testimony
that is entitled to protection, and when it appears that substantial portions of the testimony may
qualify for protection, the Party or Non-party that sponsors, offers, or gives the testimony may
invoke on the record (before the proceeding is concluded) a right to have up to 20 days following
preparation and delivery of the preliminary transcript to identify the specific portions of the
testimony as to which protection is sought. Only those portions of the testimony that are
appropriately designated for protection within the 20 days following preparation and delivery of
the preliminary transcript shall be covered by the provisions of this Stipulated Protective Order.
Transcript pages containing Protected Material must be separately bound by the court
reporter, who must affix to the bottom of each such page the legend “CONFIDENTIAL” or
“HIGHLY CONFIDENTIAL – ATTORNEY’S EYES ONLY” as instructed by the Party or
Non-Party offering or sponsoring the witness or presenting the testimony. If only a portion of
10

the material on a page qualifies for protection, the Producing Party also must clearly identify the
protected portion(s) (e.g., by making appropriate markings in the margins, but not over text).
Nothing in this Order shall prevent a party from using at trial any information or
materials designated “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEY’S
EYES ONLY.”
18.

Violation by any person of any term of this Order or of the Nondisclosure

Agreement may be punishable as contempt of court. Any person or entity that produces
“CONFIDENTIAL” or “HIGHLY CONFIDENTIAL - ATTORNEYS EYES ONLY”
information in response to a discovery request or subpoena in this action is intended to be a
beneficiary of this Order and of the Nondisclosure Agreement, and may pursue all remedies
available for violation thereof. No provision of this Order shall be deemed to require any person
or entity not a party to this action to respond to any discovery request or subpoena, except as
may otherwise be required by law. Nothing in this Order shall prevent or prohibit any party or
non-party from seeking such additional or further protection as it deems necessary to protect
documents or information subject to discovery in this action.
19.

Nothing herein and no action taken under this Order shall constitute a waiver or

admission that any specific document, material, testimony, or thing: (1) is relevant and subject
to discovery; (2) is or is not a trade secret or confidential proprietary information; (3) constitutes
or does not constitute confidential records; or (4) is or is not admissible in evidence at trial or at
any hearing. The production of any documents or information that the producing party claims to
be privileged shall be governed by the facts and applicable law.
20.

Upon the final termination of this litigation, including any appeals, the parties

have sixty (60) days within which they may petition the Clerk of Court to return to the party that
11

filed them all “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL - ATTORNEYS EYES
ONLY” information, and documents and things containing “CONFIDENTIAL” or “HIGHLY
CONFIDENTIAL - ATTORNEYS EYES ONLY” information that have been filed under seal
with the Court. Any and all originals and copies of Discovery Materials designated
“CONFIDENTIAL” or “HIGHLY CONFIDENTIAL - ATTORNEYS EYES ONLY” shall, at
the request of the producing party, be returned to the party within sixty (60) days after a final
judgment herein or settlement of this action, or, at the option of the producing party, destroyed in
that time frame, except that Outside Counsel for each party may maintain in its files one copy of
each pleading filed with the Court, each deposition transcript together with the exhibits marked
at the deposition, and documents constituting work product which were internally generated
based upon or which include “CONFIDENTIAL” information or “HIGHLY CONFIDENTIAL ATTORNEYS EYES ONLY” information. Upon receipt of any subpoena for such information,
the party receiving the subpoena shall immediately notify Outside Counsel for the producing
party of the subpoena so that the latter may protect its interests. In the event that documents are
returned to or destroyed at the request of the producing party, the other party or its Outside
Counsel shall certify in writing that all such documents have been returned or destroyed, as the
case may be. The parties should agree to reasonable extensions of time to complete the return of
the “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL - ATTORNEYS EYES ONLY”
information, if necessary.
21.

The restrictions set forth in any of the preceding paragraphs of this Order shall not

apply to information that:
(a)

was, is, or becomes public knowledge not in violation of this Order; or

(b)

was lawfully possessed by the non-designating party prior to the date of
12

this Order.
22.

This Order shall continue in full force and effect after the termination of this

litigation, including all appeals, and the Court shall retain jurisdiction as necessary to enforce the
terms of this Order. This Order shall be subject to revocation or modification by order of the
Court, upon written stipulation of the parties, or upon motion and reasonable notice, including
opportunity for a hearing and presentation of evidence should the Court so decide.
23.

The parties agree to submit this Order for entry by the Court and to be bound by

the terms prior to entry by the Court.
16th
October
So ORDERED this the _____ day of _____________, 2014.

____________________________________
LOUISE W. FLANAGAN
United States District Judge for the
Eastern District of North Carolina

13

CONSENTED TO:
WILLIAMS MULLEN

MORRIS, MANNING & MARTIN, LLP

By: /s/ Camden R. Webb
Camden R. Webb
N.C. State Bar No. 22374
Elizabeth C. Stone
N.C. State Bar No. 36690
301 Fayetteville Street, Suite 1700
Raleigh, NC 27601
Telephone: [phone]
Facsimile: [phone]
Email: [e-mail]
[e-mail]

By: /s/ Caren D. Enloe
Caren D. Enloe
N.C. State Bar No. 12768
P.O. Box 12768
Research Triangle Park, NC 27709
Telephone: [phone]
Facsimile: [phone]
Email: [e-mail]
Attorneys for Defendant, International Rags, Ltd
Local 83.1 Local Counsel

Attorneys for Plaintiffs

14

EXHIBIT A
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
WESTERN DIVISION
Civil Action No. 5:14-cv-00100-FL
NOA, LLC, and INSAF NEHME,
Plaintiffs,
v.
ATLANTIC CLOTHING, LLC, and
INTERNATIONAL RAGS, LTD.,
Defendants.

)
)
)
)
)
)
)
)
)
)
)

NONDISCLOSURE AGREEMENT
UNDER
CONSENT PROTECTIVE ORDER

The undersigned, having read the Consent Protective Order (the “Protective Order”)
entered in this action, understands the terms thereof, and intending to be legally bound thereby,
agrees as follows:
1.

All information and documents disclosed to the undersigned pursuant to the

Protective Order shall be used only in connection with the above-captioned action (the
“Litigation”) and shall not be used for any business or other purpose.
2.

Such information and documents shall be disclosed to and discussed only with the

parties' outside counsel and other persons so authorized pursuant to the terms of the Protective
Order, who have in accordance with the provisions of the Protective Order executed a similar
Nondisclosure Agreement. Neither such documents or information nor information acquired or
extracted from such documents or information will be divulged or made accessible to any other
person, company, firm, news organization, or any other person or entity whatsoever, except in
15

compliance with the Protective Order and this Nondisclosure Agreement. This Nondisclosure
Agreement does not limit the right of the signatory to testify at trial in this action or to prepare
documents or other materials for submission at trial in this action.
3.

The undersigned agrees to take all appropriate and necessary precautions to avoid

loss or inadvertent disclosure of documents or information covered by the Protective Order.
4.

The undersigned further agrees to return all information and documents in his or

her possession or control (including all abstracts, summaries, descriptions, lists, synopses,
pleadings, or other writings reflecting or revealing such information) and covered by the
Protective Order, to the attorney from whom he or she received such documents and information
within thirty (30) days after the termination of this Litigation, including all appeals, or within
thirty (30) days after the undersigned is no longer associated with this Litigation, whichever
comes first.
5.

The undersigned acknowledges that a violation of the terms of the Protective

Order may subject the undersigned and/or his/her employer to sanctions, including, but not
limited to, punishment for civil contempt.
Dated: ______________________________

_________________________________
Signature
_________________________________
Printed Name
_________________________________
Title
_________________________________
Employers(s)
_________________________________
_________________________________
_________________________________
Address

9057013 v1

16