Velocitel, Inc. v. Hardy, et al

Filing 57

ORDER granting 54 Consent Motion to Amend Stipulated Protective Order. Counsel is reminded to read the order in its entirety for critical deadlines and information. Signed by District Judge Louise Wood Flanagan on 8/9/2017. (Collins, S.)

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NORTH CAROLINA
WESTERN DIVISION
CIVIL ACTION NO: 5:15 cv 624-FL
VELOCITEL, INC, d/b/a FDH
VELOCITEL,

)
)
)
Plaintiff,
)
)
vs.
)
)
CORBIN HARDY, WAVE INSPECTION )
TECHNOLOGIES, INC. and SHANE
)
BOONE, PH.D.,
)
)
Defendants.
)

AMENDED STIPULATED
PROTECTIVE ORDER GOVERNING
DISCLOSURE OF CONFIDENTIAL
AND/OR PROPRIETARY
INFORMATION

This Amended Stipulated Protective Order is made and entered into by and between
Plaintiff VELOCITEL, INC. d/b/a FDH VELOCITEL (“Plaintiff”) and Defendant Shane
Boone, Ph.D. (“Defendant”) by and through their respective counsel of record.
1.

As used in this Order, the following words and phrases shall have the following
meanings:
a.

“Party” or “Parties” mean any or all parties to this action, any signatories to this
Order, their employees, agents and representatives.

b.

“Document” shall be construed in its broadest sense and shall include but not be
limited to every original (and every copy of any original or copy which differs in
any way from any original) of any written, printed, typed, recorded, photographic,
transcribed, or graphic or digital matter however produced or reproduced,
including film impressions, magnetic tape, sound or mechanical reproductions,
audiotapes, videotapes and/or any information contained within computer hard

drives, storage discs, or any other means of storage or maintenance of electronic
media.
c.

“Confidential Material” means all documents, or portions of documents, as
well as any copies, summaries, abstracts, testimony, electronically stored
information, or any other items, derived from or containing information which a
Party in good faith believes reveals confidential business or personal information
of a sensitive nature that the Party designates as “CONFIDENTIAL” in
accordance with this Order.

2.

The nature of the disputes in this action are such that confidential and/or proprietary
information, including but not limited to documents, electronically stored information
and other materials concerning the business or personal affairs of the Parties is likely to
be the subject of discovery.

3.

During the pendency of this action, unless otherwise ordered by the Court, the following
procedures shall govern the discovery and exchange of documents and information in
the above-captioned action:
a.

Documents and other material claimed to be Confidential Material shall, prior to
production, be marked by the producing party as “CONFIDENTIAL” or by
otherwise notifying counsel of this designation in writing.

Copies, extracts,

summaries, notes, and other derivatives of Confidential Material also shall be
deemed Confidential Material and shall be subject to the provisions of this Order.
b.

Stamping, printing or writing “CONFIDENTIAL” on the cover or first page of
any multi-page document shall designate all pages of the document, unless
otherwise specifically indicated by the producing party.
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c.

Documents and other material produced that are not identified as
“CONFIDENTIAL” at the time of production by the producing Party may
thereafter be identified as such by the producing Party, or by the Party or Parties
receiving the production of such documents or material, by written notice served
on each Party. Each Party who receives such written notice shall endeavor to
retrieve any Confidential Material that may have been disseminated, shall affix the
appropriate designation to it, shall notify all persons to whom such Confidential
Material was disseminated of the restrictions on the use and dissemination of
such information, and shall thereafter distribute it only as allowed by this Order;
however no distribution prior to the receipt of such written notice shall be
deemed a violation of this Agreement.

4.

The Parties also agree that the responding Party may designate as “ATTORNEYS’
EYES ONLY” any information or material that is extremely sensitive and/or highly
confidential, the disclosure of which would create a substantial risk of injury to the
proprietary, business, competitive, security, and/or privacy interests of the Parties
and/or nonparties, which injury could not be avoided by less restrictive means.

5.

The Parties further agree that this Amended Stipulated Protective Order may be
applicable to documents and testimony provided by any non-party from whom discovery
is sought in this action. Such non-party may obtain the protections of the Amended
Stipulated Protective Order by giving written notice to the Parties that its production of
documents or testimony as applicable is being designated CONFIDENTIAL or
ATTORNEY’S EYES ONLY. The non-party may itself stamp or otherwise mark
documents with the legend “CONFIDENTIAL” or “ATTORNEY’S EYES ONLY” in
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a manner that will not interfere with their legibility and that does not cover any text or
content of a document, or may request either Party to do so on their behalf. To the
extent the non-party does not mark the documents with either legend, and a Party
determines that such documents should be designated as either CONFIDENTIAL or
ATTORNEYS EYES ONLY, any Party in the case may designate the documents
produced by the non-party as CONFIDENTIAL or ATTORNEYS EYES ONLY
within twenty-one (21) days of their production, or the Party’s receipt of such
documents, whichever is later.
6.

Material in any form designated as CONFIDENTIAL or ATTORNEYS EYES ONLY
may only be used by the non-designating Party for purposes of this litigation and shall
not be used for any other purpose or disclosed to any other person or entity except as
specifically provided herein. Except for use by counsel for the Parties hereto in the
course of this litigation, no person granted access to Confidential Material and/or
Attorneys Eyes Only material shall make any copies, reproductions, transcripts,
transmissions or facsimiles of the same or any portion thereof.

Specifically, such

information shall not be used, attempted to be used, or disclosed for any business
purpose in competition with or adverse to the Party to whom the information belongs.
7.

Unless otherwise ordered by the Court or permitted in writing by the designating Party:
a.

material designated as CONFIDENTIAL shall only be revealed to: i) the Parties
to this Action; ii) Counsel for the Parties and their staff; iii) the Court and Court
staff; and iv) Employees of a Party or Deponents/witnesses designated by a
Party, including external retained experts, provided such person has been
determined by counsel for the Party providing access to the material to be
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necessary to review such information for purposes of this litigation, a record is
kept by counsel indicating to whom such information has been revealed, and the
person to whom such information is revealed signs a Non-Disclosure Agreement
in the form attached hereto, stating that they have read this Consent Order and
agree to be bound by its terms.
b.

material designated “ATTORNEYS’ EYES ONLY” may only be viewed and
inspected by: (i) counsel of record and their staff; (ii) in house counsel for the
corporate Parties provided that in house counsel maintains the material on a
separate server or external hard-drive that cannot be accessed by any officer,
employee or any other person affiliated with the non-disclosing party and does
not otherwise share the material with any of the foregoing; (iii) external retained
experts, provided such person has been determined by counsel for the Party
providing access to the material to be necessary to review such information for
purposes of this litigation, a record is kept by counsel indicating to whom such
information has been revealed, and the person to whom such information is
revealed signs a Non-Disclosure Agreement in the form attached hereto, stating
that they have read this Consent Order and agree to be bound by its terms; and
(iv) the Court and its staff.

Counsel shall retain each such signed Non-

Disclosure Agreement and shall produce a copy to opposing counsel upon
request.
8.

If at any time a Party objects to the designation of a document or information as
CONFIDENTIAL or ATTORNEYS EYES ONLY, the objecting party shall notify the
designating party in writing.

The objecting Party shall identify the information or
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document in question, and shall specify in reasonable detail the reason or reasons for the
objection. If the Parties cannot resolve their differences, either Party may apply to the
Court for a ruling.

The CONFIDENTIAL and/or ATTORNEYS EYES ONLY

designation shall be maintained until the Court rules otherwise.
9.

The Parties agree for purposes of this Order that an inadvertent disclosure of
CONFIDENTIAL, ATTORNEYS EYES ONLY, privileged or trial-preparation
materials (absent a clear indication of the intent to waive such privilege or protection),
including but not limited to metadata and other such information, shall not be deemed a
waiver or forfeiture of such privilege or protection provided that the party making the
production or disclosure promptly identifies any such documents and/or metadata
mistakenly produced after discovery of the inadvertent production. The Parties further
agree that, upon request, any such mistakenly-produced documents/metadata shall be
returned. In the event of a dispute over use of any privileged materials, the receiving
Party must sequester or destroy all copies, and may not use or disseminate the
information contained therein until such time as the dispute over the claim of privilege is
resolved by the Court.

10.

Except for use by counsel for the Parties hereto in the course of this litigation, for Court
and deposition copies, and for such use as is expressly permitted under the terms hereof,
no person granted access to Confidential Material shall make any copies, reproductions,
transcripts, or facsimiles of the same or any portion thereof.

11.

A designation of CONFIDENTIAL or ATTORNEYS EYES ONLY shall not preclude
the use of such information in any hearing or Court proceeding, provided such
documents are filed under seal in accordance with the Rules of this Court. Any Party
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seeking to file documents or information under seal shall comply with those
requirements set forth by the Fourth Circuit Court of Appeals. See, e.g., Ashcraft v.
Conoco, Inc., 218 F.3d 288, 302 (4th Cir. 2000).
12.

The Parties reserve the right to seek guidance from the Court regarding the specification
of appropriate safeguards concerning evidence at trial or may do so by later agreement at
or before trial.

13.

After the final termination of this litigation by judgment, appeal, settlement, or
otherwise, all information produced in discovery and all excerpts and copies thereof
which were marked “CONFIDENTIAL” or “ATTORNEYS EYES ONLY” shall be
returned to the producing Party or destroyed by the receiving Party except that counsel
of record may retain one copy of such information and may retain their respective work
product that contains Confidential Material, provided that Confidential Material shall not
be disclosed or used for any purpose except as may be required by subpoena or court
order, in which case the attorney required to disclose such information shall promptly
provide the designating Party with written notice of the demand for disclosure and shall
refrain from disclosing such information for a period of no less than ten (10) days from
issuance of such subpoena or court order, or such shorter period as specified in a court
order, to enable the designating Party to seek relief from the appropriate court.

14.

Neither the termination of this action nor the termination of the employment,
engagement, or agency of any person who had access to any Confidential Material shall
relieve any person from the obligation of maintaining both the confidentiality and the
restrictions on the use of any Confidential Material disclosed pursuant to this Agreement.

15.

The restrictions set forth in this Agreement shall not apply to information that:
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a.

is in the public domain at the time of disclosure as evidenced by a written
document,

b.

becomes part of the public domain, other than through violation of this Order,
or

c.

can be shown by the receiving Party to have been lawfully in its possession at the
time of the disclosure as evidenced by a written document.

16.

Nothing in this Order or done by the Parties pursuant to this Order shall constitute an
admission by any Party, or shall be used as evidence in any subsequent proceeding, that
information designated as Confidential Material actually is Confidential Material and
nothing herein shall preclude the Parties from raising any available objection, or seeking
any available protection, including but not limited to the grounds of the admissibility,
materiality, trial preparation materials, and privilege.

17.

The Parties agree that no failure or delay in exercising any right, power or privilege
granted in this Order shall operate as a waiver of any such right, power or privilege
granted in this Order.

18.

The Parties stipulate and agree that this Order shall be effective once entered, and
retroactive to the date it was agreed by counsel.

19.

This Order may be modified only by further Order.
9th
IT IS SO ORDERED this _______ day of August, 2017.
__________________________________
LOUISE W. FLANAGAN
United States District Judge

AGREED:
/s/ Lora A. Brzezynski

/s/ Charles E. Raynal
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Lora A. Brzezynski.
Claire M. Maddox
Dentons US LLP
1900 K Street, NW
Washington, DC 20006
[e-mail]
[e-mail]
Attorneys for Defendant

Charles E. Raynal, IV
Parker Poe Adams & Bernstein LLP
PNC Plaza
301 Fayetteville Street, Suite 1400
Raleigh, NC 27601
[e-mail]
Attorneys for Defendant
/s/ M. Robin Davis
M. ROBIN DAVIS
N. C. State Bar No. 21655
JASON V. FEDERMACK
N. C. State Bar No. 46014
Attorneys for Plaintiff
3737 Glenwood Avenue, Suite 450
Raleigh, NC 27612
Telephone: [phone]
Facsimile: [phone]
E-Mail: [e-mail]
Email: [e-mail]

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IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NORTH CAROLINA
WESTERN DIVISION
CIVIL ACTION NO: 5:15-cv-624-FL
VELOCITEL, INC. d/b/a FDH
VELOCITEL,
Plaintiff,
v.
CORBIN HARDY, WAVE
INSPECTION TECHNOLOGIES,
INC., & SHANE BOONE, PH.D,
Defendants.

)
)
)
)
)
)
)
)
)
)
)

NON-DISCLOSURE AGREEMENT

I, ______________________ , acknowledge that I have read and understand the
Consent Order in the above captioned matter (the “Litigation") governing the non-disclosure of
those portions of discovery material that have been designated as Confidential and/or Attorneys
Eyes Only (“Materials”). I understand that my review of these Materials has been determined by the
attorney for the Plaintiff/Defendants (circle one) to be necessary for purposes of this Litigation. I
expressly agree that I will not disclose such Materials to anyone other than those persons expressly
permitted under the Consent Order, and only for purposes of this Litigation. I further agree that at
the conclusion of the Litigation, I will return all such Materials to the attorney from whom I
received it. By acknowledging these obligations under the Consent Order, I understand that I am
bound by the Consent Order for the purpose of any issue or dispute arising hereunder and that my
violation of any term of the Consent Order could subject me to civil liability.
DATE: ____________

____________________________________________
Printed Name: _________________________________

104499929\V-1

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