Shuckin Shack Franchising LLC v. Moore et al

Filing 23

CONSENT PROTECTIVE ORDER - Signed by United States Magistrate Judge Robert T. Numbers, II on 7/10/2017. (Briggeman, N.)

EXHIBIT A
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
EASTERN DIVISION
Case No. 4:17-CV-00091
SHUCKIN SHACK FRANCHISING LLC

Plaintiff,
v.
KENNETH MOORE, MICHAEL
WIEMERS, DK HOSPITALITY LLC,
S&S OF JOHNSON CITY, LLC DBA
SHUCKIN SHACK OYSTER BAR,
SHUCK N BREW OYSTER BAR LLC

Defendants.

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CONSENT PROTECTIVE ORDER

THIS CAUSE came on to be heard upon the joint motion of Plaintiff Shuckin Shack
Franchising LLC (“Plaintiff”), and Defendants Kenneth Moore, Michael Wiemers, DK
Hospitality LLC, S&S of Johnson City, LLC dba Shuckin Shack Oyster Bar and Shuck N Brew
Oyster Bar LLC, (“Defendants”); and it appearing to the Court that discovery and the trial in this
action may involve the production and disclosure of confidential, proprietary, or sensitive
information requiring protection against unrestricted disclosure or use;
THEREFORE, IT IS HEREBY STIPULATED, AGREED AND ORDERED that
pursuant to Rule 26(c) of the Federal Rules of Civil Procedure, the following confidentiality
provisions shall govern all information and documents disclosed in discovery in this action:
1.

Certain information and documents to be produced by Plaintiff and Defendant

during discovery in this litigation may contain trade secrets or other proprietary, confidential
research, development, or commercial information that should be considered confidential and

protected from unreasonable disclosure pursuant to Rule 26(c) of the Federal Rules of Civil
Procedure.
2.

The information and documents to be considered as confidential and disclosed

only in accordance with the terms of this Consent Protective Order (“this Order”) shall include,
without limitation, all documents or information whether in hard copy or electronic form
designated in accordance with the terms of this Order and supplied in response to the demands or
requests of either party, formal or informal, regardless of whether said information is produced
or disclosed by a party or by any affiliated person or entity, or formerly affiliated person or
entity.
3.

All information designated “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL

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

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

copy or computer readable form), thing, deposition testimony, interrogatory answers, responses
to requests for admissions and/or production, or other information provided in discovery in this
action. Any party may, in good faith, designate Discovery Material as “CONFIDENTIAL” or
“HIGHLY CONFIDENTIAL ATTORNEYS EYES ONLY.” Discovery Material designated
“CONFIDENTIAL” shall contain proprietary information, whether personal or business-related.
Certain limited types of “CONFIDENTIAL” information may be alternatively designated, as
defined and detailed below, as “HIGHLY CONFIDENTIAL ATTORNEYS EYES ONLY.” The
“HIGHLY CONFIDENTIAL ATTORNEYS EYES ONLY” designation shall be reserved for
confidential information that constitutes, reflects, or concerns trade secrets, know-how or

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proprietary data, business, financial, or commercial information, the disclosure of which is likely
to cause harm to the competitive position of the party making the confidential designations of
Discovery Material. “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL ATTORNEYS EYES
ONLY” information, as used in this Order, shall refer to any information so designated.
5.

All information designated “CONFIDENTIAL” shall be maintained in confidence

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

The Court (including court reporters, stenographic reporters and

videographers, and court personnel);
(b)

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

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

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

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

Subject to the terms of paragraph 14 below, experts and their staff and

litigation support personnel and their staff retained by Outside Counsel in this litigation; and
(e)

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

to such disclosure.
6.

All information designated as “HIGHLY CONFIDENTIAL ATTORNEYS EYES

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

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7.

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

designated information is in fact “CONFIDENTIAL,” “HIGHLY CONFIDENTIAL
ATTORNEYS EYES ONLY,” or is entitled to protection under Rule 26(c) of the Federal Rules
of Civil Procedure. If counsel for the non-producing party believes that a confidentiality
designation is not appropriate or justified, counsel for the non-producing party will notify
counsel for the producing party of its belief that the information should not be so designated or
should be disclosable to persons other than those allowed by this order. A party shall not be
obligated to challenge the propriety of a designation at the time made, and the failure to do so
shall not preclude a subsequent challenge thereto. Such a challenge shall be written, shall be
served on counsel for the Producing Party, and shall particularly identify the documents or
information that the Receiving Party contends should be differently designated. The parties shall
use their best efforts to resolve promptly and informally such disputes. If the parties do not reach
agreement on the correct designation of the information within ten (10) business days of service
of a challenge, the non-producing party may file a motion with the Court setting forth the nonproducing party’s reasons as to why the designation should be changed. Unless and until the
Court issues a ruling that the information may be disclosed to persons other than those
authorized by this Order, the contested designation shall remain in place and treated consistently
with the terms of this Order.
8.

Information which shall be presumptively HIGHLY CONFIDENTIAL

ATTORNEYS EYES ONLY includes information concerning previously non-publicly known
future product designs, future business plans, unpublished and pending patent applications; the
identities and addresses of a company’s customers; and other HIGHLY CONFIDENTIAL
ATTORNEYS EYES ONLY commercial information. If the information is designated

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“HIGHLY CONFIDENTIAL ATTORNEYS EYES ONLY” by the producing party, and counsel
for the non-producing party believes that the “HIGHLY CONFIDENTIAL ATTORNEYS EYES
ONLY” designation is not necessary and desires to show the information to the non-producing
party, counsel for the non-producing party will notify counsel for the producing party of its belief
that the information should not be designated “HIGHLY CONFIDENTIAL ATTORNEYS
EYES ONLY.”
9.

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

relief from any provision hereof, or from asserting that certain discovery materials should receive
greater confidentiality protection than that provided herein, in accordance with Rule 26(c) of the
Federal Rules of Civil Procedure.
10.

No designation of documents as “CONFIDENTIAL” or “HIGHLY

CONFIDENTIAL ATTORNEYS EYES ONLY” shall be effective unless there is placed or
affixed on such document a “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL ATTORNEYS
EYES ONLY” notice or the equivalent. Where practicable, such notice shall be placed near the
Bates number. In the case of computer, audiovisual, or other electronic or magnetic medium,
such notice shall be placed on the medium and its protective cover, if any. Testimony given at a
deposition or hearing may be designated “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL
ATTORNEYS EYES ONLY” in accordance with the provisions of Paragraph 15 of this Order.
Any designation that is inadvertently omitted from a document or testimony may be corrected by
written notification to opposing counsel, but any disclosure prior to such notification shall not be
a violation of this Order.
11.

All “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL ATTORNEYS EYES

ONLY” information shall be maintained under the control of Outside Counsel, who shall be

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responsible for preventing any disclosure thereof except in accordance with the terms of this
Order.
12.

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

“HIGHLY CONFIDENTIAL ATTORNEYS EYES ONLY” 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, with notice served upon the producing party. The filing
of the materials under seal shall not be binding on the Court, however. Within ten (10) 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
desire 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.
13.

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

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designated under this Order by such non-party or by a party as “CONFIDENTIAL” or
“HIGHLY CONFIDENTIAL ATTORNEYS EYES ONLY” by following the procedures set
forth herein or may be deemed so confidential as not to be disclosed under any circumstances.
Information so designated and produced by third parties shall thereafter be treated by the parties
in the same manner as if produced with such designation by a party. A producing non-party shall
have all the rights of a producing party with respect to protection of information under the terms
of this Order. The provisions of this Order for challenging the designation by a party are
applicable to challenges to designations by non-parties.
14.

Prior to disclosure of “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL

ATTORNEYS EYES ONLY” information to any third parties, to include persons employed to
act as outside consultants or experts, translators, or interpreters in this action, subject to
subparagraphs 14(b-e), counsel for the party seeking disclosure shall require such persons to read
this Order and execute a Nondisclosure Agreement in the form attached hereto as Exhibit A, a
copy of which shall be promptly provided to opposing counsel and a copy thereof served on all
other counsel of record. In addition, counsel for the party seeking disclosure shall comply with
the following:
(a)

Ten days prior to disclosure to any third party, Counsel for the party

seeking disclosure of “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL ATTORNEYS
EYES ONLY” information, shall provide, subject to subparagraphs 14 (b-e) to opposing counsel
and to any non-party from which the material originated, if applicable, the name, address, and
present employer of such outside consultant or expert, translator or interpreter. Opposing
counsel and/or such non-party shall then have a period of ten business (10) days after receipt of
such information to challenge the disclosure of “CONFIDENTIAL” or “HIGHLY

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CONFIDENTIAL ATTORNEYS EYES ONLY” information to such person in this action, by
serving a written statement of the challenge upon the party seeking to make such disclosure.
(b)

Any challenge shall be ruled on by the Court prior to disclosure of any

“CONFIDENTIAL” or “HIGHLY CONFIDENTIAL ATTORNEYS EYES ONLY”
information.
(c)

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

of any party to conduct discovery of any expert.
(d)

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

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

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

graphics preparation and presentation consultants, witness preparation consultants, jury
consultants, or trial presentation consultants be disclosed to the opposing party or counsel.
However, any party utilizing such services is required to have such proposed service provider
conduct a conflict check and execute the attached Nondisclosure Agreement.
15.

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

in any manner its own “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL ATTORNEYS
EYES ONLY” information that it has produced or disclosed in this litigation.
16.

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

any “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL ATTORNEYS EYES ONLY”
information if the parties to this action and, if applicable, the non-party from which the material
originated, consent, or if the Court, on motion filed by the party seeking to make disclosure,

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orders that disclosure be made. Any party may at any time request the Court, after notice to the
opposing party and to the non-party from which the material originated, if applicable, to modify
or grant relief from any provision of this Order or to place additional restrictions on the use of
any “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL ATTORNEYS EYES ONLY”
information.
17.

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

document designated “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL ATTORNEYS
EYES ONLY” to the person the document identifies as an author or recipient of such document,
or to any person that evidence shows to have already viewed the document, been told of its
contents or who previously had legal access to the document or information.
18.

Information disclosed at a deposition may be designated as “CONFIDENTIAL”

or “HIGHLY CONFIDENTIAL ATTORNEYS EYES ONLY” by indicating on the record at the
deposition that the information is “CONFIDENTIAL” 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 CONFIDENTIAL ATTORNEYS EYES ONLY” by notifying
the deposing party in writing within ten (10) business days of the receipt of the transcript of
those pages and lines or those exhibits that are “CONFIDENTIAL” or “HIGHLY
CONFIDENTIAL ATTORNEYS 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 7 during
the twenty-one (21) day period following a deposition unless otherwise agreed upon among the

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attorneys. Upon being informed that certain portions of a deposition disclose either
“CONFIDENTIAL” or “HIGHLY CONFIDENTIAL ATTORNEYS EYES ONLY”
information, each party must cause each copy of the transcript in its custody or control to be
marked immediately.
19.

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

Agreement may be punishable as contempt of court. Any person or entity that produces
“CONFIDENTIAL” or “HIGHLY CONFIDENTIAL ATTORNEYS EYES ONLY” information
in response to a discovery request or subpoena in this action is intended to be a beneficiary of
this Order and of the Nondisclosure Agreement and may pursue all remedies available for
violation thereof. No provision of this Order shall be deemed to require any person or entity not
a party to this action to respond to any discovery request or subpoena, except as may otherwise
be required by law. Nothing in this Order shall prevent or prohibit any party or non-party from
seeking such additional or further protection as it deems necessary to protect documents or
information subject to discovery in this action.
20.

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

admission that any specific document, material, testimony, or thing: (1) is relevant and subject to
discovery; (2) is or is not a trade secret or confidential proprietary information; (3) constitutes or
does not constitute confidential records; or (4) is or is not admissible in evidence at trial or at any
hearing. The production of any documents or information that the producing party claims to be
privileged shall be governed by the facts and applicable law.
21.

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

have sixty (60) days within which they may petition the Clerk of Court to return to the party
which filed them all “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL ATTORNEYS EYES

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ONLY” information, and documents and things containing “CONFIDENTIAL” or “HIGHLY
CONFIDENTIAL ATTORNEYS EYES ONLY” information, that have been filed under seal
with the Court. Any and all originals and copies of Discovery Materials designated
“CONFIDENTIAL” or “HIGHLY CONFIDENTIAL ATTORNEYS EYES ONLY” shall, at the
request of the producing party, be returned to the party within sixty (60) days after a final
judgment herein or settlement of this action, or, at the option of the producing party, destroyed in
that time frame, except that Outside Counsel for each party may maintain in its files one copy of
each pleading filed with the Court, each deposition transcript together with the exhibits marked
at the deposition, and documents constituting work product which were internally generated
based upon or which include “CONFIDENTIAL” information or “HIGHLY CONFIDENTIAL
ATTORNEYS EYES ONLY” information. Upon receipt of any subpoena for such information,
the party receiving the subpoena shall immediately notify Outside Counsel for the producing
party of the subpoena so that the latter may protect its interests. In the event that documents are
returned to or destroyed at the request of the producing party, the other party or its Outside
Counsel shall certify in writing that all such documents have been returned or destroyed, as the
case may be. The parties should agree to reasonable extensions of time to complete the return of
the “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL ATTORNEYS EYES ONLY”
information, if necessary.
22.

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

apply to information that:
(a)

Was, is, or becomes public knowledge or publicly accessible not in

violation of this Order; or
(b)

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

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this Order.
23.

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

litigation, including all appeals, and the Court shall retain jurisdiction necessary to enforce the
terms of this Order. However, this Order shall be subject to revocation or modification by order
of the Court, upon written stipulation of the parties, or upon motion and reasonable notice,
including opportunity for a hearing and presentation of evidence should the Court so decide.
24.

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

the terms prior to entry by the Court.

This the 5th day of July, 2017.
HODGES COXE POTTER & PHILLIPS, LLP
Attorneys for Plaintiff

COATS & BENNETT, PLLC
Attorneys for Defendants

By: /s/ Samuel B. Potter
Samuel B. Potter
NC State Bar No. 35,510
3907-100 Wrightsville Avenue
Wilmington, NC 28403
Telephone: [phone]
Facsimile: [phone]
Email: [e-mail]

By: /s/ Anthony J. Biller
Anthony J. Biller
NC State Bar No. 24,117
1400 Crescent Green, Suite 300
Cary, NC 27518
Telephone: [phone]
Facsimile: [phone]
Email: [e-mail]

SO ORDERED, this the
Dated: July 10, 2017

day of July, 2017.

______________________________________
Judge James C. Dever,
Robert T. Numbers, II III
United States District Court for
United States Magistrate Judge the
Eastern District of North Carolina

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EXHIBIT A
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
EASTERN DIVISION
Case No. 4:17-CV-00091
SHUCKIN SHACK FRANCHISING LLC
Plaintiff,

v.
KENNETH MOORE, MICHAEL
WIEMERS, DK HOSPITALITY LLC,
S&S OF JOHNSON CITY, LLC DBA
SHUCKIN SHACK OYSTER BAR,
SHUCK N BREW OYSTER BAR LLC
Defendants.

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NONDISCLOSURE AGREEMENT
UNDER CONSENT PROTECTIVE
ORDER

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

All information and documents disclosed to the undersigned pursuant to the

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

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

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

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

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

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

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

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

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

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

Dated:
Signature

Printed Name

Address

Employer(s)

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