Moore v. Innovative Systems, LLC

Filing 18

CONSENT CONFIDENTIALITY AND PROTECTIVE ORDER (as Modified) - Signed by United States Magistrate Judge James E. Gates on 6/12/2017. (Briggeman, N.)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
WESTERN DIVISION
PAUL B. MOORE, JR.

)
)

Plaintiff,

)
)

v.

)
)

INNOVATIVE SYSTEMS , LLC,

Case No.: 5:16-cv-851-D

)

)
Defendant.

)

CONSENT CONFIDENTIALITY AND PROTECTIVE ORDER
(AS MODIFIED)
Pursuant to Fed. R. Civ. P. 26(c) and in order to protect the parties from disclosure of
proprietary or confidential information, the undersigned hereby stipulate and agree to this Consent
Confidentiality and Protective Order (the "Stipulation") and agree that a protective order may be
entered, as set forth herein.
In the course of this action, Plaintiff may request production of documents and information
related to Defendant's current or former employees and/or Defendant's projected sales, and
Defendant may use such documents and information in its defense. Portions of such documents
and information are protected from disclosure absent a lawfully issued judicial order or subpoena.
The parties have an interest in limiting disclosure of the records and information for any purposes
other than the litigation process of this case. The parties shall be permitted to designate as
confidential only documents or information which they believe in good faith to be or contain
information within the scope of Rule 26(c) of the Federal Rules of Civil Procedure. Moreover, the
parties shall be obligated to make specific designations to the extent reasonably possible and to
avoid overbroad designations.

IT IS HEREBY ORDERED that:
l.

Documents produced and testimony given in this case shall be used solely for

purposes of the preparation and trial of this liti gation, mediation and any related appellate
proceeding and for no other purpose.
2.

Each party may identify and desi gnate documents and things produced by it, and

answers to interrogatories and responses to other discovery demands as "Confidential" to the extent
that such party in good faith believes such documents, things, answers and responses contain
confidential information, including, but not limited to, trade secrets, confidential or proprietary
business plans, forecasts or data; confidential or proprietary financial plans, forecasts or data;
confidential or proprietary operational plans, forecasts or data; or sensitive commercial , financial ,
customer, or personal information; or if it is of a type deemed privileged or confidential by any
state or federal statute or regulation. This Order does not apply to documents or things which may
be covered by the attorney work product privilege or the attorney-client communication privilege.
Such material shall be handled by the parties in accordance with applicable law. Documents that
are designated by the parties as Confidential may be produced pursuant to this Stipulation for
Protective Order. All such documents shall be marked as "Confidential."
3.

Material deemed or designated "Confidential" and any material obtained or derived

therefrom (collectively, "Confidential Information") shall be inspected or used solely by:
(a)

counsel for the parties to this liti gation and persons in their employ who are

assisting in the conduct of this litigation, including outside contractors;

(b)

the parties to this I itigation and the officers, directors, partners, principals

and employees, whether past, present, or future, of such parties who are involved in the preparation
of this action (collectively, "Party Representatives");
( c)

experts retained to testify at trial, or consultants retained or engaged by a

party in preparation for trial (co llectively, "Consultants"), each of whom has signed an undertaking
in the form of Exhibit A, as provided in paragraph 5 below;
(d)

persons who prepared or who have previously received particular

documents, provided that the inspection or use of Confidential Information by such persons is
limited only to those documents prepared or previously received ;
(e)

insurers that provide or are requested to provide coverage for the claims

asserted in this case, and their counsel;

(f)

judicial officers and personnel (including stenographic reporters); and

(g)

any other person, including any witnesses in this matter, who the parties

jointly authorize to see Confidential Information, provided that each such person shall sign an
undertaking in the form of Exhibit A, as provided in paragraph 5 below.
4.

Prior to receipt of any Confidential Information, an expert, consultant or other

authorized person shall sign an undertaking in the form of Exhibit A, which shall be retained by
counsel for the party employing, or otherwise affiliated with, said expert, consultant or other
authorized person for a period of five years after the conclusion of this litigation.

Counsel

receiving such a signed undertaking shall provide a copy thereof to all other counsel of record in
this case.

Confidential Information may be disclosed to an expert, consultant or Party

Representative for the sole purpose of assisting counsel in the preparation of th is case for trial and

to an expert's, consultant's or Party Representative's supporting and clerical personnel required to
carry out functions assigned to them by any such consultant.
5.

Confidential Information shall be designated as follows:
(a)

In the case of documents copied and produced, each page shall be Bates-

stamped and designation shall be made by placing the legend "CONFIDENTIAL" on each page
of any such document prior to production, except that, with respect to any documents produced in
this proceeding by either party to the other prior to the execution of this Stipulation, designation
shall be made in writing addressed to counsel for the receiving party and identifying with
particularity the document(s) the producing party has designated as Confidential Information.
Documents may be produced for inspection and designated as " CONFIDENTIAL" without
placing a legend on the document. If copying is requested of documents so designated, the copies
shall bear the legend as set forth above.
(b)

In the case of documents produced by non-parties pursuant to subpoena, a

party wishing to designate such material as "Confidential" shall so notify counsel for all other
parties, in writing, prior to the time specified in the subpoena for compliance. If the party wishing
to designate such material as "Confidential " is the party who served the subpoena, then counsel
for that party shall make such designation in the manner described in paragraph 6(a) above
promptly upon receipt of the subpoenaed material, and shall thereafter promptly provide counsel
for all other parties with copies of the subpoenaed material (including the material designated as
"Confidential"). Counsel for any other party wishing to designate such material as "Confidential"
shall be allowed to examine the subpoenaed material promptly upon receipt by counsel for the
subpoenaing party, and shall be allowed to designate any such material as "Confidential" in the
manner described in paragraph 6(a) above prior to the release of the subpoenaed material to any

person or party.

Upon such designation, counsel for the subpoenaing party shall thereafter

promptly provide counsel for all other parties with copies of the subpoenaed material (including
that material designated as "Confidential").
(c)

In the case of other Confidential Information, designation shall be made in

a writing addressed to counsel for the receiving party and identifying with particularity the other
Confidential Information, or portion thereof, that constitutes Confidential Information pursuant to
the provisions of this Stipulation.
6.

Counsel for any party or non-party may designate a deposition as "Confidential":
(a)

at the deposition by making a statement of designation in the deposition, or

(b)

within twenty (20) business days after receipt of a transcript of such

testimony by providing to counsel for each party a written list, by page and line, of the specific
portions to which confidential status is claimed.

All deposition testimony shall be treated as

confidential until the expiration of twenty (20) business days after receipt of the transcript by
counsel, regardless of whether a statement of designation of confidentiality has been made in the
deposition.
7.

Any party may subsequently challenge the designation of materials as confidential

by seeking review of the Court at any time during the pendency, trial, or appeal of this action . The
burden of proof in any such motion shall be on the producing party to justify the appropriateness
of the designation of "Confidential." Material deemed or designated "Confidential" shall maintain
that

designation

for

all

purposes

unless

and

until

the

Court

rules

to

the

contrary.Confidential Information shall not be made public. If a party intends to submit or file
with the Court any transcripts, depositions, exhibits, briefs, memoranda, affidavits, answers to
interrogatories, or any other documents or pleadings in connection with this action which contain

Confidential Information, that party shall file such motion and materials under seal in accordance
with Local Rules, referencing the protective order entered by the Court pursuant to this Stipµlation.
Before filing any information that has been designated "CONFIDENTIAL TNFORMA TION" with
the Court, or any pleadings, motions or other papers that disclose any such information, counsel
shall confer with counsel for the party that produced the information so designated about how it
should be filed. If the party that produced the information so designated desires that the materials
be filed under seal , then the filing party shall file the materials in accordance with Local Civil Rule
79.2, EDNC, with notice served upon the producing party. The filing of the materials under seal
shall not be binding on the Court, however. Within I 0 days of service of such notice, the party
desiring that the materials be maintained under seal shall file with the Court a Motion to Seal and
supporting memorandum of law specifying the interests which would be served by restricting
public access to the information. The party that initially filed the materials need not file any such
Motion to Seal or otherwise defend another party's de sire that the materials remain sealed. The
Court will grant the Motion to Seal only after providing adequate notice to the public and
opportunity for interested parties to object, after carefully weighing the interests advanced by the
movant and those interests favoring public access to judicial documents and records, and upon
finding that the interests advanced by the movant override any common law or constitutional right
of public access which may attach to the information. Documents submitted under seal in
accordance with this paragraph will remain under seal pending the Court's ruling. If the party
desiring that the information be maintained under seal does not timely file a Motion to Seal , then
the materials will be deemed unsealed, without need for order of the Court.
8.

If a Party Representative, expert or consultant in possession of already designated

Confidential Information receives a subpoena from a non-party to this Stipulation for Protective

Order seeking production or other disclosure of such Confidential Information, telephonic and
written notice shall immediately be given to counsel for the party or non-party who produced the
confidential materials, identifying the Confidential Information being sought, and arranging for
transmission of a copy of the subpoena.

In no event, absent court order, shall production or

disclosure be made before notice is given. A party subpoenaed shall take all appropriate measures
timely to advise any relevant tribunal of the terms of this Stipulation for Protective Order.
9.

No copy of any transcript of any deposition taken by any party shall be prepared or

furnished by the court reporter to any person other than counsel for the parties and the deponent
and his counsel.
l 0.

This Stipulation for Protective Order shall not prevent any party or non-party from

applying to the Court for further or other protective orders or for modifications of this Stipulation
for Protective Order, or from agreeing to modifications to this Stipulation for Protective Order.
Any such agreed-to modifications shall be in writing, and signed by counsel on behalf of the
parties, and by any interested non-party .
l l.

Within sixty (60) days of the final termination of this lawsuit, including all appeals,

all persons subject to this Stipulation for Protective Order shall destroy all confidential documents
and all copies thereof, or return them to the producing party or non-party. A party's outside counsel
may keep and not destroy documents incorporating or referring to Confidential Information which
are inextricably intermingled with the work product of that party's counsel. The Confidential
Information intermingled with or referred to in such documents, however, shall remain subject to
the terms of this Stipulation for Protective Order.
12.

Nothing herein shall restrict the right of a party or non-party producing Confidential

Material to make use of such material as it deems appropriate. Nothing herein shall bar a party

from the unrestricted use of any document obtained from public sources or available through
public sources, or which that party lawfully possessed and was free to use without restriction before
such information was provided to it in this action. The treatment of any document as confidential
or as containing Confidential Information is intended solely to facilitate preparation for trial and
shall not be construed as an admission that the document contains any trade secret or Confidential
Information.
13.

Nothing herein shall constitute
(a)

an agreement to produce any documents or supply any information or

testimony in discovery not otherwise agreed upon or required by court order;
(b)

a waiver of any right to object to any discovery request in this or any other

action except that, so long as this Stipulation is in effect, the parties may not object to a discovery
request in this action on the grounds that such request seeks the production of sensitive or
confidential business or personal information; or
(c)

a waiver of any claim of immunity or privilege with regard to any testimony,

documents or information.

14.

Any document not designated as Confidential Information shall not be subject to

this Agreement provided , however, that inadvertent production of any document without
designating such document as Confidential Information shall not itself be deemed a waiver of the
producing party's claim of confidentiality as to such document, and the producing party may within
thirty (30) days after discovery of the inadvertent production designate the same as Confidential
Information. Disclosure by any party of such matter prior to notice by the producing party of the
confidential nature thereof shall not be deemed a violation of this Agreement.

15.

The ultimate disposition of Confidential Information will be subject to a final Order

of the Court, upon completion of this litigation.

16.

This Stipulation shall survive the termination of this litigation.

17.

This Stipulation may be executed by each party separately.

STIPULATED AND AGREED TO BY THEIR A TIORNEYS THIS THE 23RD DAY OF

MAY, 2017:

WYRICK ROBBrNS YATES & PONTON LLP

BARRETT LAW OFFICES, PLLC

BY: Isl Kyle R. Sti ll
Kyle R. Still
NC Bar No . 37073
T. Cullen Stafford
NC State Bar No. 48872
4101 Lake Boone Trail , Suite 300
Raleigh, NC 27607
Telephone: [phone]
Facsimi le: [phone]
Email: [e-mail]
Email: [e-mail]

BY: Isl William P. Barrett
William P. Barrett
NC Bar No. 19545
wbarrett@ barrettlawoffices.com
Joshua M. Krasner
NC Bar No. 19132
jkrasner@ barrettlawoffices.com
16 West Martin St., Suite 406
Raleigh, NC 27601
Telephone: [phone]
Facsimile: [phone]

COUNSEL FOR DEFENDANT

COUNSEL FOR PLAINTIFF

**********************
COURT'S APPROVAL AND MODIFICATIONS
This Consent Confidentiality and Protective Order is the subject of the parties' motion
(D.E. 16) for entry thereof in the form proposed at D.E. 16-1. The court hereby ALLOWS the
motion, and APPROVES and ADOPTS the foregoing terms of the Consent Confidentiality and
Protective Order, subject to the following modifications:
1.
Court personnel shall be excluded from the requirement applicable to "other
authorized person" in paragraph 4 to sign an undertaking in the form of Exhibit A.
2.
The return of trial exhibits by the court shall be governed by Local Civil Rule
79.1 , E.D.N.C. , notwithstanding any contrary terms in this Consent Confidentiality and
Protective Order, including any such terms in paragraph 11.
3.
The extent to which this court retains jurisdiction over this litigation for
enforcement of the provisions of this Consent Confidentiality and Protective Order following the
final resolution of this litigation shall be determined in accordance with law, notwithstanding any
contrary provisions in paragraph 16.
SO ORDERED, this 12th day of June 2017.

J~
United States Magistrate Judge

EXHIBIT A
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
WESTERN DIVISION
PAUL B. MOORE, JR.

)

)
Plaintiff,

)
)
)
)

v.

Case No.: 5: 16-cv-851-D

)
)
)

INNOVATIVE SYSTEMS, LLC,
Defendant.
~~~~~~~~~~~~~~~~

I,

, being duly sworn, state that:

2.

I received a copy of the attached Consent Confidentiality and Protective Order in

3.

I have read carefully and understand the provisions of the Consent Confidentiality

and Protective Order and have had an opportunity to discuss it with counsel. I will comply with
all provisions of the Consent Confidentiality and Protective Order.
4.

I will use documents produced and testimony given in this case solely for

purposes of preparation and trial of this litigation and any related appellate proceeding and no
other purpose.
5.

I will hold in confidence and not disclose to anyone not qualified under the

Consent Confidentiality and Protective Order any material deemed or designated " Confidential"
as those terms are defined in the Consent Confidentiality and Protective Order. I shall further
assure that any and all of my supporting and clerical personnel comply with the provisions of the

Consent Confidentiality and Protective Order and with the obligations as agreed to by me in this
undertaking. I understand that violation of the Consent Confidentiality and Protective Order may
subject me to punishment for contempt of Court.
6.

I undertake that I will not refer to or rely on any Confidential Information in any

future engagement, employment, or other circumstances without the express written consent of
the party of non-party which made the designation.
7.

Within sixty (60) days of the termination of this litigation, I will return all

confidential material and all copies thereof which come into my possession, and documents or
things which I have prepared relating thereto, to counsel for the party by whom I am employed
or retained.
Pursuant to 28 U .S.C. § 1746, I declare under penalty of perjury under the laws of the
State of North Carolina that the foregoing is true and correct, except for those matters stated
upon information and belief and , as to those, I believe them to be true .
Signed at~---------------------~
Carolina on _ __ _ _ _ _ _ _ , 201 _.

Signature of Declarant

Print or Type Name of Declarant