Norkus v. Outback Steakhouse of Florida, LLC

Filing 16

CONSENT PROTECTIVE ORDER (as modified) - Signed by United States Magistrate Judge James E. Gates on 5/12/2017. (Briggeman, N.)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NORTH CAROUNA
WESTERN DIVISION
CIV IL /\CTI ON NO . 5: l 6-cv-887

REBECCA F. NORKUS ,
Plaintiff,

CONSENT PROTECTIVE ORDER
(AS MODIFIED)

V.

OUTBACK STEAKHOUSE OF FLOR ID/\ ,
LLC,
Defendant.

THIS CAUSE came on to be heard upon the joint motion of Plaintiff Rebecca Norkus
("Plaintiff'), and Defendant Outback Steakhouse of Florida, LLC ("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 sha ll govern all information and documents disclosed in discovery in this action:
1.

Certain in formation and documents to be produced by Plaintiff and Defendant

during discovery in this litigation may conta in confidential medical records, financial records,
trade secrets or other proprietary, confidential research, development, commercial information,
and other documents that should be considered confidential and protected from unreasonable
disclosure pursuant to Rule 26(c) o f' the Federal Rul es of Civ il Procedure.

2.

The in fo rm ati on and documents to be co nsidered as confidential and disclosed

only in accordance with th e te rm s of' th is Co nse nt Protective Order (" this Order") shall include,
without limi tation , a ll documents or information whether in hard copy or electronic form
desi gnated in acco rdan ce with the terms o f thi s Order and supplied in response to the demands or
requests of either pa rty, forma l or informa l, regardless of whether said information is produced
or disclosed by a party or by any affi li ated person o r entity, or former ly affi liated person or
entity.
3.

A ll info rm at ion des ignated "'C O FID ENT IA L" or " HIGHLY CONFIDENTIAL

ATTORN EYS EY ES 0

LY'' in accorda nce w ith the te rms of thi s Order and disclosed in

discovery in thi s acti on

ha ll be used so lely for purposes of prosecuting or defending this

liti gation and sha ll not be used for any other purpose.
4.

" Di scovery Materia l" sha ll mea n and include a ny document (whether in hard

copy or computer readable form), thin g, depos iti on testi mony, interrogatory answers, responses
to requests for adm iss io ns and/or productio n, or other informati on provided in discovery in thi s
action. Any party may, in good faith, designate Di scovery Material as " CONFIDENTIAL" or
" HIGHLY CONF ID ENT IAL ATTO RNEYS EYES ONLY."

Di scove ry Material designated

"CO FID ENT IAL" shall co nta in non-p ubli c proprietary or medical information, whether
personal or bus iness-re lated; information protected fro m di sc los ure by contractual obligations
with third pa11i es; or in formation protec ted from disclos ure by law.

Certain limited types of

"CONFID ENT IAL" in formation may be a lterna tively des ignated , as defined and detailed below,
as

" HIGHLY

CONFIDENTl/\L

ATTO RNEYS

EYES

ONLY ."

T he

" HIGHLY

CONF ID ENT IAL ATTOR EYS EYES ONLY'' designat ion sha ll be reserved for confidential
info rm ati on that co nstitutes , reflects, or co nce rn s trade sec rets, know-how or proprietary data,

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business, financi al, or commercial in fo rmati on, the di sc losure of which is likely to cause harm to
the competitive positi on of the party makin g the confidentia l desi gnations of Discovery Material.
"CONFIDENTIAL"

or

'" I !!GI !LY

CONFID E T IAL

ATTORNEYS

EYES

ONLY"

information , as used in th is Order, shall refer to any information so designated.
5.

Al l in formati on designated ··CONF IDE TIAL" shall be maintained in confidence

by the parti es to whom such inform ati on is produced or given, shall be used solely for the
purposes of thi s liti gati on. and shall no t be di sc losed to any person except:
(a)

The Court (including co urt

reporters, stenographic reporters and

videographers, and court personnel);
(b)

The attorneys or record , their partners, employees, contractors, and

associates of outside coun se l (co llectively herea ft er referred to as "Outside Counsel");
(c)

The parties, includ in g offi cers and employees of Defendant in this action;

provided, that such o ffi cers or empl oyees shall receive such "CONFID ENTIAL" information
solely on a "need to kn ow" basi s for purposes of prosecuti ng or defending this litigation and for
no other purposes;
(d)

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

litigation support personnel and the ir staff retained by Outs ide Counsel in this litigation; and
(e)

Any mediator and/or arbitrator se lected with the consent of all parties or

(f)

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

by the Court;

to such disclosure.
6.

All information des ignated as ·' HI GHLY CONFIDENTIAL ATTORNEYS EYES

ONLY" shall be maintained in co nfidence fo r use by the attorneys of the parties, shall be used

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solely for the purposes of th is liti gati on, and shall not be disclosed to any person except those
listed in subparagrap hs (a), (b), (d), (e) , and (f) of paragraph 5 above.
7.
designated

Nothin g in the Order shall be taken as assent by a non-producing party that
informati on

ts

tn

fac t

··co

FlD ENTlAL,"

"H IGHLY

CONF IDENTIAL

ATTORNEYS EYES ON LY ," or is entitl ed to pro tection under Rule 26(c) of the Federal Rules
of Civ il Procedure.

If co un se l for the non-p roducing party believes that a confidentiality

designation is not app ro pri ate or j us ti fi ed, coun se l fo r the non-producing party will notify
counsel for the producin g party of it s beli ef that th e information should not be so designated or
should be disclosabl e to persons other th an those allowed by this order. A party shall not be
obligated to chal lenge the propri ety of a des ignati on at the time made, and the fai lure to do so
shall not preclude a subsequent chal lenge thereto. Such a challenge shall be written, shall be
served on coun sel for the Pro du cin g Part y, and sha ll particu larly identify the documents or
information that the Receiving Party co ntends should be differently designated. The parties shall
use their best effo rts to reso lve promptl y and inform all y such disputes. If the parties do not reach
agreement on the correct des ignati on of the inform ati on within ten ( I 0) business days of service
of a chall enge, the non-produ cin g party ma y fi le a motion with the Co urt setting forth the nonproducing party 's reasons as to why th e designati on should be changed . Un less and until the
Court issues a rulin g that the in fo rm ati on may be disc losed to persons other than those
authorized by thi s Order, the co ntested des ignation shall remain in place and treated consistently
with the terms of this Order.
8.

Nothing in thi s Order shall prec lude any party from app lying to this Court for

relief from an y provi sion hereo f, or fro m asse rtin g th at certa in discovery materials should receive
greater confidentiality pro tection than that provided herein , in accorda nce with Rule 26(c) of the

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Federal Rules of Civil Procedure.
9.

No

desi gnati on

of

doc uments

as

" CONFIDENTIAL"

or

"HIGHLY

CONFIDENTIAL ATT OR EYS EYES ON LY " shall be effective unless there is placed or
affixed on such document a ·'CON FID ENT IA L" o r ·' HIGHLY CONFIDENTIAL ATTORNEYS
EYES ONLY " notice o r th e equi val ent. Wh ere pract ica ble, such notice shall be placed near the
Bates number. In the case of computer. audiovi sual, or other electronic or magnetic medium,
such notice shall be placed o n th e medium and its protective cover, if any. Testimony given at a
deposition or hearin g may be des ignated "CONFID EN TIAL" or " HIGHLY CONFIDENTIAL
ATTORN EYS EY ES ONLY'. in acco rda nce with the prov isions of Paragraph 16 of this Order.
Any designation that is inadvertentl y omi tted from a doc ument or testimony may be corrected by
written notification to o pposing co un se l, but an y di sc los ure prior to such notification shall not be
a violation of this Order.
10.

All " CONF ID EN TI/\L" or " HIGHLY CONFIDENTIAL ATTORNEYS EYES

ONLY" information sha ll be maintained under th e co ntrol of Outside Counsel, who shall be
responsible for preventin g any di sc los ure th ereo f except in accordance with the terms of this
Order.
11.

In the event th at e ither party wi shes to file " CONFIDENTIAL" or "HIGHLY

CONFIDENTIAL ATTORNE YS EYES ONLY" Di scove ry Materials with the Court, the party
must follow the procedures set forth in Loca l Rul e 79.2.
12.

Informati o n produ ced by non-parti es during the course of this action may be

designated under thi s Order by such non-p arty o r by a party as " CONFIDENTIAL" or
"HIGHLY CONFID EN T IAL ATTOR EYS EY ES ON LY" by following the procedures set
forth herein or may be deemed so co nfid ential as not to be disclosed under any circumstances.

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Information so des ignated and produ ced by third parties shall thereafter be treated by the parties
in the same manner as if prod uced with such designati on by a party. A producing non-party shall
have al l the ri ghts of a producing part y with respect to protection of information under the terms
of this Order.

The pro visions of thi s Order for cha ll enging the designation by a party are

applicab le to cha ll enges to designa ti ons by non-parties.
13.

Pri or to di sc losure of ··c ONF lDE TlAL" or "HIGHLY CONFIDENTIAL

ATTORNEYS EYES ONLY" informati on to any third parties described in paragraph 5(d) - (f)
above, counsel for the party seeki ng di sc los ure shall require such persons to read this Order and
execute a Nond isclosure Agreement in th e fo rm attac hed hereto as Exhibit A, a copy of which
shall be promptl y provid ed to opposi ng counse l and served on all other counsel of record. In
addition, counsel for the party seeking di sc los ure shall comply with the following:
(a)

Ten days pri or to di sclosure to any third party, Counsel for the party

seeking di sc losure of "CONrIDENT IAL'' or '"H IGHLY CONFIDENTIAL ATTORNEYS
EYES ONLY" inform ati on, shall provide, subj ect to subparagraphs 13 (b-e) to opposing counsel
and to any non-party from whi ch the materia l ori gi nated, if app licab le, the name, address, and
present emp loyer of such outside co nsultant or expert, translator or interpreter.

Opposing

counsel and/or such non-party shal l th en have a period of te n business (10) days after receipt of
such

informati on to

chall enge

the di sc losure of "CONFIDENTIAL"

or "HIGHLY

CONFIDENTIAL ATTORNEYS EYES ONLY" info rmation to such person in this action, by
serving a written statement of the cha!lenge upon the party seeking to make such disclosure.
(b)
"CONFIDENTIAL"

Any cha ll enge sha ll be rul ed on by the Court prior to disclosure of any
or

'"H lGHL Y

CONFID ENTIAL

information.

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ATTORNEYS

EYES

ONLY"

(c)

Nothing in thi s Paragraph shall be deemed to enlarge or restrict the right

of any party to conduct di scovery of an y ex pert.
(d)

No thing in thi s Order shall be construed as requmng: i) that routine

outside suppliers of litigati on 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 servi ce su ppli ers to the oppos ing party or counsel.
(e)

Nothing in thi s Orde r shall be construed as requiring that the identity of

graphics preparation and presentati on co nsultants, witness preparation consultants, jury
consultants, or trial presentation consultants be di sc losed to the opposing party or counsel.
However, any party utili zing such services is requ ired to have such proposed service provider
conduct a conflict check an d execute th e attached No ndi sclosure Agreement.
14.

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

m any manner its own ''CON FID ENTIAL" or '' HIGHLY CONFIDENTIAL ATTORNEYS
EYES ONLY" informati on that it has produced or di scl osed in this litigation.
15 .

Nothing in thi s Order shall prevent di sc losure beyond the terms of this Order of

any "CONFID ENTIAL" or ·' HIGHLY CONFID E T!AL ATTORNEYS EYES ONLY"
information if the parti es to thi s ac ti on and, if appli cabl e, the non-party from which the material
originated, consent, or if the Co urt, on moti on fil ed by the party seeking to make disclosure,
orders that disclosure be made. Any part y may at any time request the Court, after notice to the
opposing party and to the non-party fro m which the material originated, if applicable, to modify
or grant relief from any prov ision of th is Order or to place additional restrictions on the use of
any "CONFID ENTIA L" or " HICJ! IL Y CONFID EN TIAL ATTORNEYS EYES ONLY"
information.

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16.

Informati on disclosed at a deposition may be designated as "CONFIDENTIAL"

or "H IGHLY CONFIDENTIAL ATTORNEYS EYES ONLY" by indicating on the record at the
deposition that the in formation is ·'CONr: !D ENTIAL" or "HIGHLY CONFIDENTIAL
ATTORNEYS EYES ONLY '' and is subject to the provisions of this Order. All such portions of
the transcript shall be appropriately marked by the court reporter and shall be treated by the
parties as set forth

herein.

Testimony

in

a deposition

may also

be designated

"CONFIDENTIAL" or " HIGHLY CONFIDENTIA L ATTORNEYS EYES ONLY" by notifying
the deposing party in writing within ten ( I 0) business days of the receipt of the transcript of
those pages and

lines or those exhibits that are "CONFIDENTIAL" or "HIGHLY

CONFIDENTIAL ATTORN EYS EYES ONLY," as the case may be. No deposition may be
read by anyone other than the deponent, the attorneys for the parties, and those qualified to see
"HIGHLY CONFIDENTIAL ATTORNEYS EYES ONLY" material under Paragraph 6 during
the twenty-one (21) day period fo llowing a deposition unless otherwise agreed upon among the
attorneys.

Upon being informed that ce rtain portions of a deposition disclose either

"CONFIDENTIAL"

or

" HIGl-IL Y

CONF ID ENTIAL

ATTORNEYS

EYES

ONLY"

information, each party mu st cause each co py of the transcript in its custody or control to be
marked immediatel y.
17.

Violation by any perso n of any term of this Order or of the Nondisclosure

Agreement may be puni shable as contempt of court.

Any person or entity that produces

"CONFIDENTIAL" or ''HIGHLY CONr:IDENTIAL ATTORNEYS EYES ONLY" information
in response to a discovery request or subpoena in this actio n is intended to be a beneficiary of
this Order and of the Nondisc losure 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

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a party to thi s act ion to respond to any di sco very reques t or subpoena, except as may otherwise
be required by law. Nothing in thi s Order shall prevent or prohibit any party or non-party from
seeking such additional or further protecti on as it deems necessary to protect documents or
information subj ect to discovery in thi s action.
18.

Nothin g herein and no action taken under this Order shall constitute a waiver or

admission that any spec ific documen t, material , testi mony, or thing: (I) is relevant and subject to
discovery; (2) is or is not a trade secret or confi dent ial propri etary information; (3) constitutes or
does not constitute confidenti al record s; or (4) is or is not ad mi ss ible in evidence at trial or at any
hearing. The production of any documen ts or informatio n that the producing party claims to be
privi leged shall be governed by the facts and app li ca ble law .
19.

Upo n the final termination of thi s liti gation, including any appeals, the parties

have sixty (60) days within whic h th ey may petiti on the Clerk of Court to return to the party
which filed them all '·CONFIDENT IAL'' or ·'HI GHLY CONF IDENTIAL ATTORNEYS EYES
ONLY" information, and documen ts and things contain ing "CONFIDENTIAL" or "HIGHLY
CONFIDENTIAL ATTOR EYS EYES ONLY" informat ion , that have been filed under seal
with the Co urt.

Any and all ori ginals and copies of Di scovery Materials designated

"CONFID ENTIAL" or '' HIGHLY CO FIDENT IJ\L ATTO RN EYS EYE S 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 thi s action, or, at the option of the producing party, destroyed in
that time frame , except that Outside Co unsel for each party may maintain in its files one copy of
each pleading filed with the Court, each deposition transc ript together with the exhibits marked
at the deposition, and documents constituti ng work product which were internally generated
based upon or whi ch include ·'CONF IDENT IAL'' in fo rmation or "HIGHLY CONFIDENTIAL

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ATTORNEYS EYES ONLY" information. Upon receipt of any subpoena for such information,
the party rece iving the subpoena shall imm ed iately notify Outside Counsel for the producing
party of the subpoena so that the latter ma y 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 shou ld agree

to

reasonable extensions of time to complete the return of

the "CONFIDENTIAL'" or " I !IGH LY CONFID E T!AL ATTORNEYS EYES ONLY"
information, if necessary.
20.

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

apply to info rm ation that:
(a)

Was. 1s, or becomes publi c know ledge or publicly accessible not in

violation of thi s Order; or
(b)

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

this Order.
21.

Thi s Order sha ll continue

in

full fo rce and effect after the termination of this

litigation, including all appea ls, and th e Co urt shall retain jurisdiction necessary to enforce the
terms of thi s Order. However. this Order shall be subject to revocation or modification by order
of the Court, upon written stipulati on of the parti es, or upon motion and reasonable notice,
including opportunity for a hea ri ng and presentation of evi dence should the Court so decide.
22.

The parti es agree to sub mit thi s Order fo r entry by the Court and to be bound by

the terms prior to entry by the Co urt.

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**********************
COURT'S APPROVAL AND MODIFICATIONS
This Consent Protective Order is the subject of the parties ' motion (D.E. 14) for entry
thereof in the form proposed at D.E. 14-1. The court hereby ALLOWS the motion, and
APPROVES and ADOPTS the foregoing terms of the Consent Protective Order, subject to the
following modification:
1.
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 Protective Order, including
any such terms in paragraph 19.
2.
The extent to which this court retains jurisdiction over this litigation for
enforcement of the provisions of this Consent Protective Order following the final resolution of
this litigation shall be determined in accordance with law, notwithstanding any contrary
provisions in paragraph 21.
SO ORDERED, this 12/cfay of May 2017.

~

United States Magistrate Judge

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EXJifBIT A

U !TED STAT ES DI ST RICT COURT
EASTE RN DISTRI CT OF NORTH CAROLINA
WESTERN DIVI SION
CIVI L ACT IO
0. 5: I6-cv-887

REBECCA F. NORKUS ,
Plaintiff,
NONDISCLOSURE AGREEMENT UNDER
CONSENT PROTECTIVE ORDER

V.

OUTBACK STEAKHO US E OF FLORIDA ,
LLC,
Defendant.
The undersigned , hav ing read the Consent Protecti ve Order (the "Protective Order")
entered in this action , und erstand s the term s thereof", and intending to be legally bound thereby,
agrees as follow s:
1.

All informati on and docum ents di scl osed to the undersigned pursuant to the

Protective Order shall be used on ly in co nnecti on with the above-captioned action (the
" Litigation") and shall not be used fo r any bu sin ess or other purpose.
2.

Such in fo rmation and doc um ents shall be di sclosed to and discussed only with the

parties' outside coun sel and other perso ns so authorized pursuant to the terms of the Protective
Order. Neither such documents or in fo rmation nor information acquired or extracted from such
documents or info rmati on will be di vul ged or made access ible to any other person, company,
firm , news organizati on, or any ot her person or entit y whatsoever, except in compliance with the
Protective Order and thi s Nondi sc losure Ag reement. Thi s Nondisclosure Agreement does not
limit the right of the si gnatory to testi fy at tri al in thi s acti on or to prepare documents or other
materials for submi ssi on at trial in thi s acti on.

3.

The undersigned agrees to take all ap prop ri ate and necessary precautions to avoid

loss or inadve rtent discl osure or documents or informatio n covered by the Protective Order.
4.

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

her possession or control (inc luding all abs rracts, summaries, descriptions, li sts, synopses,
plead ings, or other writings reflecting or revealing such info rmation) and covered by the
Protective Order, to the attorney from whom he or she rece ived such documents and information
within thirty (30) days after the terminati on of thi s Litigation , including all appeals, once he or
she becom es aware of the sa me, or wi thin thirty (30) days after the undersigned is no longer
associated with this Liti ga ti on, wh ichever comes first.
5.

The undersigned ack now ledges that a vio latio n of the terms of the Protective

Order may subj ect the undersigned and/or hi s/her employer to sanctions, including, but not
limited to, puni shment for civi l contempt.

Signatu re

Printed Na me

Address

Emp loyer(s)

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