Thompson Automotive Labs, LLC v. Illinois Tool Works, Inc.

Filing 75

AMENDED PROTECTIVE ORDER FOR THE PROTECTION OF CONFIDENTIAL INFORMATION - Signed by District Judge Louise Wood Flanagan on 5/23/2017. (Baker, C.)

UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
WESTERN DIVISION
No. 5:15-CV-00282-FL
THOMPSON AUTOMOTIVE LABS, LLC

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Plaintiff,
v.
ILLINOIS TOOL WORKS INC.
Defendant.

AMENDED PROTECTIVE
ORDER FOR THE PROTECTION
OF CONFIDENTIAL
INFORMATION

WHEREAS, in the course of pre-trial discovery relating to the claims and defenses in this
case, disclosure may be sought of technical, marketing, actual or prospective vendors or
customers, personnel, pricing, margins, financial and other business information (collectively
“Confidential Information”) that contains highly confidential, trade secret or other proprietary
information of the parties and non-parties, which the parties or non-parties have taken reasonable
steps to maintain as confidential prior to this litigation;
WHEREAS, the parties agree that the disclosures that the parties may request during
discovery in this case identified above may contain Confidential Information, the disclosure of
which the parties believe could substantially injure the disclosing party and/or provide a
significant competitive advantage for competitors of the disclosing party, potentially including
the non-disclosing party;
WHEREAS, to expedite the flow of pre-trial discovery materials, protect the
confidentiality of the Confidential Information, ensure that protection is afforded only to
materials so entitled, facilitate the prompt resolution of disputes over confidentiality, and
1

eliminate the need for repeated requests that the Court become directly involved in the discovery
process, the Court entered a Protective Order for the Protection of Confidential Information on
October 3, 2016 [DE 66] (the “Protective Order”);
WHEREAS, the parties have determined that disclosure may be sought in discovery of
extremely sensitive computer source code, associated comments, and related materials,
disclosure of which would create a serious risk of harm to the producing party in the absence of
protective measures in addition to those provided in the Protective Order; and
WHEREAS, the parties have agreed to the terms of this Amended Protective Order for
the Protection of Confidential Information in order to facilitate the disclosure of such source
code materials in discovery while providing additional measures to protect against serious harm
to the producing party through unauthorized disclosure;
NOW THEREFORE, pursuant to Rule 26 of the Federal Rules of Civil Procedure, IT IS
HEREBY ORDRERED that the Protective Order entered in this case on October 3, 2016 [DE 66]
is hereby superseded by the following Amended Protective Order for the Protection of
Confidential Information and that this Amended Protective Order (“Amended Protective Order”)
shall govern the handling of all information, testimony, things or documents filed with the Court
or produced or given (either by a party or non-party) as part of discovery in this action. This
Amended Protective Order permits the parties, and non-parties, to designate certain material as
“CONFIDENTIAL”,

“CONFIDENTIAL

–

ATTORNEYS’

EYES

ONLY”

or

“CONFIDENTIAL – SOURCE CODE” (hereinafter collectively referred to as “Confidential
Material”). The party or non-party that makes such a designation shall hereafter be referred to as
a “Designated Party.” The party or non-party producing documents in this litigation shall
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hereafter be referred to as a “Producing Party.” The party or non-party that receives documents
produced in this litigation shall hereafter be referred to as a “Receiving Party”:
I.

DESIGNATION OF DOCUMENTS
1.

CONFIDENTIAL Designation.

A party or non-party may designate as

“CONFIDENTIAL” any non-public Covered Matter when such materials contain Confidential
Information or information qualifying for protection under Rule 26(c)(1) of the Federal Rules of
Civil Procedure.
2.

CONFIDENTIAL – ATTORNEYS’ EYES ONLY Designation. A party or

non-party may designate as “CONFIDENTIAL – ATTORNEYS’ EYES ONLY” that portion of
any Covered Matter that is or contains, reflects or otherwise discloses a trade secret or other
highly confidential information, such as: structure and operation of the products at issue; licenses
and business relationships with third-parties; detailed product cost, sales, pricing and profitability
information; technical know-how, formulae, processes, designs and passwords; future product
development plans; strategic marketing, research, design, engineering, manufacturing and
development information; personnel information; or other confidential information which, if
disclosed to another party or non-party, would create a substantial risk of serious harm that could
not be avoided by less restrictive means.
3.

CONFIDENTIAL – SOURCE CODE Designation. A party or a non-party

may designate as CONFIDENTIAL – SOURCE CODE that portion of Confidential Material that
is, contains, reflects or otherwise discloses confidential, proprietary or trade secret computer
code or associated comments, revision histories, formulas, engineering specifications, or
schematics that define or otherwise describe in detail the algorithms or structure of software, the
disclosure of which to the other party or a non-party would create a substantial risk of serious
harm that could not be avoided by less restrictive means.
4.

Good Faith Determination.

Prior to designating any Covered Matter as
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“CONFIDENTIAL”

or

“CONFIDENTIAL

–

ATTORNEYS’

EYES

ONLY”

or

“CONFIDENTIAL – SOURCE CODE” under this Amended Protective Order, counsel for the
Designating Party shall:
a)

make a good faith particularized determination that the particular

protection is warranted under Federal Rule of Civil Procedure 26(c); and
b)

make a good faith particularized determination that the disclosure directly

to the opposing party or its employees will create a substantial risk of serious harm to the
Designating Party, and that there is no less restrictive way to prevent such harm other than
through the use of designations as set forth herein.
5.

Use of Designations.

The parties shall use the “CONFIDENTIAL” or

“CONFIDENTIAL – ATTORNEYS’ EYES ONLY” or “CONFIDENTIAL – SOURCE CODE”
designations only as appropriate.
II.

LIMITATIONS ON USE AND DISCLOSURE OF COVERED MATTER
1.

Designation and Marking Confidential Material. Parties, non-parties, and their

counsel shall designate CONFIDENTIAL, CONFIDENTIAL – ATTORNEYS’ EYES ONLY
and CONFIDENTIAL – SOURCE CODE material as follows:
a)

In the case of documents or other tangible materials that are produced as

part of discovery or are responsive to any discovery request, which includes, but is not limited to,
responses to interrogatories, requests for production of documents, subpoenas for the production
of documents and requests for admission, and any attachments or exhibits to any of the foregoing
documents referenced in this provision, such documents shall be stamped or otherwise labeled:
“CONFIDENTIAL”

or

“CONFIDENTIAL

–

ATTORNEYS’

EYES

ONLY”

or

“CONFIDENTIAL – SOURCE CODE”;
b)

In the case of materials produced in the form of electronic or magnetic

media (including information, files, databases, or programs stored on any digital analog
4

machine-readable device, computers, discs, networks, or tapes), such materials may be
designated as “CONFIDENTIAL” or “CONFIDENTIAL – ATTORNEYS’ EYES ONLY” or
“CONFIDENTIAL – SOURCE CODE” by identifying specific electronically stored information
if possible, or if not possible, by cover letter referring generally to such matter and by affixing
(where possible) a label on the media or casing indicating such designation or by placing the
designation in a suitably revised file name.
2.

In the case of depositions, counsel for a party or non-party may designate portions

of the transcript (including exhibits) as “CONFIDENTIAL” or “CONFIDENTIAL –
ATTORNEYS’ EYES ONLY” or “CONFIDENTIAL – SOURCE CODE” during the deposition
by (1) making a statement to that effect on the record; or (2) by written notice, sent by counsel to
all parties within fourteen (14) calendar days after receiving a copy of the final transcript thereof;
and in both of the foregoing instances, by directing the court reporter that the appropriate
confidentiality legend be affixed to the first page and all portions of the original and all copies of
the transcript containing any CONFIDENTIAL or CONFIDENTIAL – ATTORNEYS’ EYES
ONLY or CONFIDENTIAL – SOURCE CODE information. All deposition and other pretrial
testimony shall be deemed to be CONFIDENTIAL – ATTORNEYS’ EYES ONLY information
until the expiration of fourteen (14) calendar days after counsel receives a copy of the final
transcript thereof, after which time the transcript shall be treated as actually designated. The
parties and any non-party may modify this procedure for any particular deposition, through
agreement on the record at such deposition or otherwise, without further order of the Court.
3.

Disclosure of Confidential Material at Deposition. During any deposition

taken in this action at which Confidential Material is disclosed or discussed, any party or nonparty may exclude from attendance at the deposition during such disclosure or discussion any
person other than the deponent, court reporter, videographer and persons to whom the
information and/or documents may be disclosed under the terms of this Amended Protective
5

Order.
4.

Challenging Designation of Confidential Material.

A party shall not be

obligated to challenge the propriety of a CONFIDENTIAL or CONFIDENTIAL –
ATTORNEYS’ EYES ONLY or CONFIDENTIAL – SOURCE CODE designation at the time
made, and failure to do so shall not preclude a subsequent challenge. A party may challenge the
designation of Confidential Material only as follows:
a)

If at any time any party disagrees with a designation of CONFIDENTIAL

or CONFIDENTIAL – ATTORNEYS’ EYES ONLY or CONFIDENTIAL – SOURCE CODE,
that person shall provide written or e-mail notice of its disagreement to the Designating Party.
To avoid ambiguity as to whether a challenge has been made, the written notice must recite that
the challenge to confidentiality is being made in accordance with this specific paragraph of the
Amended Protective Order. The parties shall make a good faith effort to resolve the dispute by
conferring directly within seven (7) calendar days of the date of service of notice. 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 an opportunity 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.
b)

If the dispute cannot be informally resolved within five (5) calendar days

following written notice by the challenging party, the challenging party may file and serve a
motion to remove or modify the designation or may request other appropriate relief from the
Court. The burden of persuasion in any such challenge proceeding shall be on the Designating
Party. All parties shall continue to afford the material in question the level of protection to
which it is entitled pursuant to the Designating Party’s designation until the Court rules on the
challenge. The challenging party is not obligated to seek immediate relief from the Court and
any delay in seeking relief shall not in any way preclude a party from subsequently challenging
6

any such designation.
5.

Use of Confidential Material. Each party and all persons bound by the terms of

this Protective Order shall use Confidential Material only in connection with the prosecution or
defense of this action, except by written consent of the Designating Party or by order of the
Court.

CONFIDENTIAL or CONFIDENTIAL – ATTORNEYS EYES’ ONLY or

CONFIDENTIAL – SOURCE CODE information and/or documents may be disclosed or
released only to those persons entitled to receive such information and/or documents under this
Amended Protective Order.
a)

Inadvertent Misdesignation or Failure to Designate. Documents will

be treated in accordance with their designation under this Protective Order. However, failure of
a party or non-party to properly designate material CONFIDENTIAL or CONFIDENTIAL –
ATTORNEYS’ EYES ONLY or CONFIDENTIAL – SOURCE CODE shall not be deemed or
construed to constitute an admission that such material is not confidential or deserving of the
protections provided for under this Amended Protective Order. If a party or non-party discovers
that it has inadvertently failed properly to designate material as CONFIDENTIAL or
CONFIDENTIAL – ATTORNEYS’ EYES ONLY or CONFIDENTIAL – SOURCE CODE,
such party or non-party may promptly designate the material as CONFIDENTIAL or
CONFIDENTIAL – ATTORNEYS’ EYES ONLY or CONFIDENTIAL – SOURCE CODE.
The parties agree to treat such newly designated or re-designated Confidential Material in
accordance with its modified confidentiality designation absent a successful challenge to the
designation.
b)

Inadvertent Disclosure of Privileged Materials. If information subject

to a claim of attorney-client privilege, work-product immunity, or other privilege, doctrine, right
or immunity is inadvertently or unintentionally produced, such production shall in no way
prejudice or otherwise constitute a waiver or estoppel as to any such privilege, doctrine, right, or
7

immunity. If at any time the Producing Party notifies the Receiving Party in writing that it has
inadvertently or unintentionally produced information protected from disclosure under any
applicable privilege, doctrine, right, or immunity, the Receiving Party shall immediately refrain
from examining the materials and shall destroy or return to the Producing Party all copies of such
documents and/or things, including all copies stored on any electronic database or media within
five (5) calendar days of receipt of such notice and shall not further disclose or use such items for
any purpose until any further order of the Court. If a Receiving Party discovers materials that
bear a legend or other marking indicating that the materials are subject to an attorney-client
privilege, work product protection or other privilege or immunity, the Receiving Party must
refrain from examining the materials, and shall immediately notify the Producing Party in
writing that he or she possesses material that appears to be privileged. Within ten (10) calendar
days of the original notice, the Producing Party shall provide: (i) in the case of an inadvertently
produced document that the Producing Party believes is subject to any applicable privilege,
doctrine, right, or immunity, a privilege log identifying such document; and (ii) for an
inadvertently produced document that requires redaction only, a redacted version of the
document. The return of any discovery item shall not preclude the Receiving Party from moving
the Court for a ruling based on information independent of the content of the asserted privileged
material that either the document was never privileged or otherwise immune from disclosure
and/or that any applicable privilege or immunity has been waived on grounds other than the
inadvertent or unintentional disclosure in this litigation. Unless and until the Court rules in favor
of the Receiving Party on such motion, the Receiving Party shall not use or refer to the asserted
privileged information or material, including in deposition or at trial, or in any Court filing.
c)

Inspection of Source Code. Any source code or associated comments

produced in discovery (including source code produced by a non-party) shall be inspected by the
Receiving Party only in electronic format in a secured room at the offices of the Designating
8

Party’s counsel on a stand-alone, secured computer with no internet access or network access to
another computer or storage medium. The Receiving Party may install tool(s) customarily used
for review of source code but shall not copy, remove or otherwise transfer source code or any
portion thereof or associated comments to any recordable media or recording device. The
Designating Party may visually monitor the activities of the Receiving Party’s representatives
during any source code review, but only to ensure that there is no unauthorized recording,
copying or transmission of the source code or associated comments.
d)

Paper Copies of Source Code. The Receiving Party may request from

the Designating Party paper copies of limited portions of source code as may be reasonably
necessary for preparation of court filings, pleadings, expert reports, or other papers, or for
deposition or for trial, but the Receiving Party shall not request paper copies of the source code
for the purpose of reviewing the source code in the first instance other than electronically as set
forth in paragraph 5(c). The Designating Party shall provide all such source code in paper form
including bates numbers and the legend CONFIDENTIAL – SOURCE CODE. The Designating
Party may challenge the amount of source code requested in hard copy form pursuant to the
procedure and timeframes set forth in paragraph 4, whereby the Producing Party is the
challenging party and the Receiving Party is the Designating Party for purposes of the procedure
in paragraph 4. The Receiving Party shall not make paper copies of any source code received
from a non-party in electronic format. The Receiving Party shall direct to the Designating Party
pursuant to this paragraph 5(d) any request for paper copies of source code received from a nonparty in electronic format.
6.

Tracking of Source Code Received.

The Receiving Party shall maintain a

record of all source code received in discovery (including from a non-party) and a record of any
individual who has inspected any portion of such source code in any form. The Receiving Party
shall maintain in a secure, locked area all paper copies of any printed portion of the source code
9

received pursuant to paragraph 5(d). The Receiving Party shall not create any electronic or other
images of the paper copies and shall not convert any of the information contained in the paper
copies into any electronic format unless the Receiving Party must create an electronic copy for
purposes of filing the same under seal with the Court. The Receiving Party may make additional
paper copies only if such additional copies are (1) necessary to prepare court filings, pleadings or
other papers (including a testifying expert’s report); (2) necessary for deposition; or (3)
otherwise necessary for the preparation for its case. Unless marked as an exhibit at a deposition,
any paper copies used during a deposition shall be retrieved by the Designating Party at the end
of each day and must not be given or left with a court reporter or any other individual. The
Receiving Party shall maintain in a secure, locked area any portion of source code received in
discovery in electronic format. The Retrieving Party may not make electronic copies of any
portion of source code received in discovery in electronic format and shall not allow access to
any electronic file containing such source code to persons other than the Receiving Party’s
outside attorneys of record and staff.
7.

Use of CONFIDENTIAL or CONFIDENTIAL – ATTORNEYS’ EYES

ONLY or CONFIDENTIAL – SOURCE CODE Material.
a)

Information designated as CONFIDENTIAL may be disclosed only to

the following persons:
1.

The outside attorneys of record and corporate in-house attorneys

that represent the parties in this action, and any paralegal, stenographic, and clerical employees
working under the direct supervision of such attorneys, provided, however, that no person who is
a party or a director, officer, managing agent, or other employee of a party may be retained as a
paralegal, stenographic, or clerical employee within the meaning of this paragraph;
2.

Ten (10) business people for each of the parties who have been

previously identified and consented to by the Producing Party (including the following former
10

employees, to which the parties have previously consented); for Illinois Tool Works Inc.: David
Prange, William Crowe, and Mark Hischier; and for Thompson Automotive Labs, LLC: John
Thompson, Eric Horlbeck, and Art Mealer; additional former employees may be added by either
party by written agreement of the parties without the need to modify this order), provided that
paragraphs 7, 9, 10, and 13 of this Protective Order are complied with;
3.

Experts (including consultants, investigators, and jury research and

analysis consultants) retained by any party or counsel to any party to assist in this action, but
only to the extent necessary to perform such work and provided that paragraphs 7, 9, 10, and 13
of this Protective Order are complied with;
4.

Personnel of third party vendors engaged by a party or by counsel

for a party to assist counsel in (i) the copying, coding, imaging or other management of
documents produced in discovery in this litigation or of associated databases or (ii) in the
preparation of demonstrative exhibits or other visual aids for presentation at a hearing or trial;
5.

Court reporters and videographers retained by any party to record a

6.

Any mediator who is assigned or retained by the parties to mediate

deposition in the case;

the matter, and his or her staff, subject to their agreement to maintain confidentiality to at least
the same degree required by this Protective Order; and
7.

The Court, Court personnel, and court reporters in connection with

this action.
b)

Information designated as CONFIDENTIAL – ATTORNEYS’ EYES

ONLY may be disclosed only to the following persons:
1.

The outside attorneys of record and corporate in-house attorneys

that represent the parties in this action, and any paralegal, stenographic, and clerical employees
working under the direct supervision of such attorneys, provided, however, that no person who is
11

a party or a director, officer, managing agent, or other employee of a party may be retained as a
paralegal, stenographic, or clerical employee within the meaning of this paragraph;
2.

Experts (including consultants, investigators, and jury research and

analysis consultants) retained by any party or counsel to any party to assist in this action, but
only to the extent necessary to perform such work and provided that paragraphs 7, 9, 10, and 13
of this Protective Order are complied with;
3.

Personnel of third party vendors engaged by a party or by counsel

for a party to assist counsel in (i) the copying, coding, imaging or other management of
documents produced in discovery in this litigation or of associated databases or (ii) in the
preparation of demonstrative exhibits or other visual aids for presentation at a hearing or trial;
4.

Court reporters and videographers retained by any party to record a

5.

Any mediator who is assigned or retained by the parties to mediate

deposition in the case;

the matter, and his or her staff, subject to their agreement to maintain confidentiality to at least
the same degree required by this Protective Order; and
6.

The Court, Court personnel, and court reporters in connection with

this action.
c)

Subject to paragraphs 5(c), 5(d) and 6, information designated as

CONFIDENTIAL – SOURCE CODE may be disclosed only to the following persons:
1.

The outside attorneys of record that represent the parties in this

action, and any paralegal, stenographic, and clerical employees working under the direct
supervision of such attorneys, provided, however, that no person who is a party or a director,
officer, managing agent, or other employee of a party may be retained as a paralegal,
stenographic, or clerical employee within the meaning of this paragraph;
2.

Experts (including consultants, investigators, and jury research and
12

analysis consultants) retained by any party or counsel to any party to assist in this action, but
only to the extent necessary to perform such work and provided that paragraphs 7, 9, 10, and 13
of this Protective Order are complied with;
3.

Personnel of third party vendors engaged by a party or by counsel

for a party to assist counsel in (i) the copying, coding, imaging or other management of
documents produced in discovery in this litigation or of associated databases or (ii) in the
preparation of demonstrative exhibits or other visual aids for presentation at a hearing or trial;
4.

Court reporters and videographers retained by any party to record a

5.

Any mediator who is assigned or retained by the parties to mediate

deposition in the case;

the matter, and his or her staff, subject to their agreement to maintain confidentiality to at least
the same degree required by this Amended Protective Order; and
6.

The Court, Court personnel, and court reporters in connection with

this action.
8.

Clearance of Consultants and Experts to Receive Confidential Materials.
a)

For each expert (including consultants and investigators, but not including

jury research and jury analysis consultants) to whom any party desires to disclose
CONFIDENTIAL or CONFIDENTIAL – ATTORNEYS’ EYES ONLY or CONFIDENTIAL –
SOURCE CODE information and/or documents, such party must first identify in writing to the
attorneys for the Designating Party the following information: the expert’s full name,
professional address, educational background, all present employment and consultancies, the
expert’s curriculum vitae, which shall include a list of prior publications, all prior full-time
employment and consultancies within the last four years, any previous or current relationship
(personal or professional) with any of the parties or with any of the witnesses identified in the
parties’ initial disclosures, and a list of all cases in which the expert or consultant has testified at
13

a deposition or in a tribunal within the last six years. The party shall also include a copy of the
proposed expert or consultant’s signed ACKNOWLEDGEMENT in the form attached to this
Amended Protective Order indicating that the expert has read and agreed to be bound by the
terms of this Amended Protective Order.
b)

Counsel for the Designating Party shall have seven (7) calendar days from

receipt of such notice and ACKNOWLEDGEMENT to object to disclosure of CONFIDENTIAL
or CONFIDENTIAL – ATTORNEYS’ EYES ONLY or CONFIDENTIAL – SOURCE CODE
information and/or documents to such expert. Any and all such objections must be made in
writing with all such grounds stated with specificity. The parties shall attempt to resolve such
objections informally. If any objection cannot be resolved within seven (7) calendar days after
notice by the objecting party, the party seeking to disclose the CONFIDENIAL or
CONFIDENTIAL – ATTORNEYS’ EYES ONLY or CONFIDENTIAL – SOURCE CODE
information and/or documents to the expert may move the Court for an order allowing the
disclosure. In the event that an objection is made and not resolved between and among the
parties, disclosure of the CONFIDENTIAL or CONFIDENTIAL – ATTORNEYS’ EYES
ONLY or CONFIDENTIAL – SOURCE CODE information and/or documents shall not be made
except by order of the Court (or to any limited extent upon which the parties may agree).
c)

Each

expert

or

consultant

must

sign

a

copy

of

the

ACKNOWLEDGEMENT attached to this Amended Protective Order indicating that they have
read and agree to be bound by the terms of this Amended Protective Order.
9.

Consultations with Client Concerning Another Party’s or a Non-Party’s

Confidential Material. It is understood that counsel for a party may give advice and opinions to
his or her client based on his or her evaluation of Confidential Material received by the party,
provided that such rendering of advice and opinions shall not reveal the content of Confidential
Material to which the recipient of advice or opinions is not otherwise entitled, except by prior
14

written agreement with counsel for the Designating Party.
10.

Records of Persons with Access to Confidential Materials and Use Limits.

Except for the outside attorneys of record and corporate in-house attorneys that represent the
parties in this action, and any paralegal, stenographic, and clerical employees working under the
direct supervision of such attorneys; and the Court, Court personnel, and court reporters in
connection with this action, the persons described in paragraph 6 shall be allowed access to the
Confidential Material only after they have read this Amended Protective Order and signed a copy
of the attached ACKNOWLEDGEMENT. The undersigned counsel shall maintain a list of
persons to whom Confidential Material is disclosed, and such list shall be available for
inspection by the Court.

The persons receiving Confidential Material are enjoined from

disclosing it to any other person, except as permitted by this Amended Protective Order, and are
further enjoined from using such material for any purpose other than the prosecution or defense
of this action, except by consent of the Designating Party or by order of the Court.
11.

Submission to Court’s Jurisdiction.

Each individual who receives any

Confidential Material agrees to subject himself or herself to the jurisdiction of this Court for the
purpose of any proceedings relating to performance under, compliance with, or violation of this
Amended Protective Order.
12.

Submission of Confidential Material to the Court. A party seeking to submit

documents or information to the Court which have been designated as Confidential Material
shall comply with Local Civil Rule 79.2 and Section T.1(a) of the Electronic Case Filing
Administrative Policies and Procedures Manual adopted by this Court (the “ECF Manual”). Any
request to file under seal confidential documents, things and/or information shall follow the
procedures set forth in Stone v. University of Maryland, 855 F.2d 178, 180-81 (4th Cir. 1988).
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
15

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. Where a party chooses not to seek an order sealing documents or
information submitted to the Court containing its own Confidential Material within the time set
forth in Section T.1(a) of the ECF Manual and the documents or information are thereupon
deemed unsealed, the material will no longer qualify for protection and subsequent treatment as
Confidential Material under this Amended Protective Order.
13.

Use of Confidential Materials During Court Proceedings. In the event that

any Confidential Material is used in any Court pre-trial proceeding in this litigation (including
but not limited to conferences, oral arguments, or hearings), the Confidential Material shall not
thereby lose its status as Confidential Material through such use, and the party using the
Confidential Material in such pre-trial proceeding shall take all steps reasonably required to
protect the confidentiality of the Confidential Material during such use, including, but not limited
to, requesting in camera proceedings. The parties agree to meet and confer in good faith prior to
trial to establish procedures for the use of Confidential Material at trial.
14.

Protecting Confidential Material. Any person who receives any Confidential

Material shall maintain such material in a secure and safe manner and shall exercise due and
proper care with respect to the storage, custody, use, and/or dissemination of such material.
15.

Improper Disclosure of Confidential Materials. If any Confidential Material is
16

disclosed to any person other than in a manner authorized by this Protective Order, the party
responsible for the disclosure or knowledgeable of such disclosure, upon discovery of the
disclosure, shall immediately inform the Designating Party of all facts pertinent to the disclosure
that, after due diligence and prompt investigation, are known to the party responsible for the
disclosure or knowledgeable of the disclosure (including the name, address and employer of the
person to whom the disclosure was made), and shall immediately make all reasonable efforts to
prevent further disclosure by each unauthorized person who received such information.
16.

Non-Restricted Uses of Covered Matter. Nothing in this Protective Order shall

preclude a party or its attorneys from:
a)

Showing

information

designated

as

CONFIDENTIAL

or

CONFIDENTIAL – ATTORNEYS’ EYES ONLY or CONFIDENTIAL – SOURCE CODE that
is or becomes publicly known through no fault or act of such party;
b)

Showing

information

designated

as

CONFIDENTIAL

or

CONFIDENTIAL – ATTORNEYS’ EYES ONLY or CONFIDENTIAL – SOURCE CODE that
such party rightfully received from a third party that has authority to provide such information
without restriction as to disclosure;
c)

Showing

a

document

designated

as

CONFIDENTIAL

or

CONFIDENTIAL – ATTORNEYS’ EYES ONLY or CONFIDENTIAL – SOURCE CODE to
an individual identified as an author or recipient of the document or by sworn testimony as
having prepared, received or reviewed the document prior to the filing of this lawsuit;
d)

Showing

a

document

designated

as

CONFIDENTIAL

or

CONFIDENTIAL – ATTORNEYS’ EYES ONLY or CONFIDENTIAL – SOURCE CODE
produced in discovery by a Designating Party to a director, officer, managing agent or employee
of the Designating Party during the questioning of such person in a deposition, hearing or trial in
this litigation;
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e)

Using or disclosing, in any manner or for any purpose, any information or

documents legally obtained other than through discovery in this action, even though the same
information or documents may have been produced in discovery in this litigation and designated
CONFIDENTIAL or CONFIDENTIAL – ATTORNEYS’ EYES ONLY or CONFIDENTIAL –
SOURCE CODE; or
f)

Disclosing or using for any purpose any information or documents from

the party’s own files which the party itself has designated as CONFIDENTIAL or
CONFIDENTIAL – ATTORNEYS’ EYES ONLY or CONFIDENTIAL – SOURCE CODE.
17.

Production of Protected Material.

In the event that information in the

possession or control of a party involves the confidentiality rights of a non-party or its disclosure
would violate a Protective Order issued in another action, the party with possession or control of
the information will in good faith attempt to obtain the consent of the non-party to disclose the
information under this Order. If the non-party objects to such production, then either the party in
possession or control of the information or the non-party may seek a protective order from this
Court, and no production of the non-party’s Confidential Material shall be made pending the
resolution of such a motion. If no such motion is made within fourteen (14) calendar days after
notice to the non-party, then such objections shall be deemed waived and the party in possession
or control of the information may produce the non-party’s Confidential Material. If the consent
of the non-party cannot be obtained, the party in possession of the non-party’s Confidential
Material will notify the party seeking discovery of:
a)

The existence of the information without producing such information and;

b)

The identity of the non-party.

The party seeking discovery may then make further application to the non-party or seek
an order from the appropriate Court compelling production of the protected material.
18.

Non-Party Production Under This Protective Order. Non-parties may provide
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or otherwise disclose Confidential Material pursuant to the terms of this Amended Protective
Order by executing the attached ACKNOWLEDGEMENT. Once a non-party has executed the
ACKNOWLEDGEMENT, such non-party shall be entitled to the remedies and relief provided
by this Amended Protective Order.
19.

Disposition of Confidential Material After Final Resolution of this Matter.

Unless otherwise agreed to by the parties or by order of the Court, within ninety (90) days of the
final resolution of this action and of any and all appeals of this action, all Confidential Material,
and all copies thereof, shall be (1) upon request, returned to the party that produced it, or (2)
destroyed. However, counsel of record for the parties may continue to maintain for their files a
copy of any motion, brief, affidavit, expert report, discovery response, transcript, trial exhibit,
and/or memoranda, which contains Confidential Material within the document or as an exhibit
thereto.

Counsel for the parties shall certify in writing that they have complied with this

paragraph.
20.

Objections to Discovery Not Covered. This Amended Protective Order is not

intended to address discovery objections to produce, answer, or respond on the grounds of
attorney-client privilege or work product immunity, or to preclude either party from seeking
further relief or protective orders from the Court as may be appropriate under the Federal Rules
of Civil Procedure.
21.

Survival.

Except as specifically provided herein, the terms, conditions, and

limitations of this Amended Protective Order shall survive the termination of this action.
22.

Modification of Amended Protective Order. This Amended Protective Order is

without prejudice to the right of any party or non-party to seek further protection and/or relief
from the Court, upon good cause shown, with respect to any of the provisions hereof.
23.

Agreement Pending Entry. The parties agree to be bound by the terms of this

Amended Protective Order pending its entry by the Court.
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IT IS SO ORDERED.

This ___ day of ________________, 2017.
23rd
May

__________________________________
LOUISE W. FLANAGAN
U.S. DISTRICT COURT JUDGE

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UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
WESTERN DIVISION
No. 5:15-CV-00282-FL
THOMPSON AUTOMOTIVE LABS, LLC

)
)
)
)
)
)
)
)
)
)

Plaintiff,
v.
ILLINOIS TOOL WORKS INC.
Defendant.

ACKNOWLEDGEMENT

I , __________________________________________, hereby acknowledge that I have
read and understand the provisions of the attached Amended Protective Order for Protection of
Confidential Information (“Amended Protective Order”) entered by the Court in the abovecaptioned matter with respect to the non-disclosure of CONFIDENTIAL,r CONFIDENTIAL –
ATTORNEYS’ EYES ONLY, or CONFIDENTIAL – SOURCE CODE information and/or
documents (the “Confidential Material”), and I agree to abide by and be bound by its terms. I
will not reveal the Confidential Material to anyone, except as allowed by the Amended
Protective Order. I will maintain all Confidential Material, including copies, notes, or other
transcriptions made therefrom, in a secure manner to prevent unauthorized access to it. No later
than ninety (90) days after the conclusion of this action, I will return the Amended Confidential
Material to the counsel who provided me with the Confidential Material. I hereby submit to the
jurisdiction of the United States District Court for the Eastern District of North Carolina for the
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purpose of enforcing the Amended Protective Order, and this Acknowledgement, by contempt
proceedings or other appropriate judicial remedies.

Executed on _______________________

By: ________________________________

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