SOHO Wilmington LLC v. Water Street Ventures, LLC et al

Filing 62

PROTECTIVE ORDER (AS MODIFIED) - Signed by US Magistrate Judge James E. Gates on 3/12/2020. (Sellers, N.)

IN THE UNITED STATES DISTRJCT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
SOUTHERN DIVISION
Civil Action No.: 7:18-CV-79-D
SOHO WILMINGTON, LLC,

)
)

Plaintiff:
vs.
SCP-EW RIVER PLACE, LLC and
BARNHILL CONTRACTING COMPANY,
Defendants,

)
)
)
)
)
)
)
)

PROTECTIVE ORDER
(AS MODIFIED)

Pursuant to the Federal Rules of Civil Procedure and upon joint motion of the parties, the
Court hereby grants, this Protective Order governing the production, use and distribution of
information or data obtained, learned or discovered through the above-referenced lawsuit. This
Court finds that discovery and trial of this action may involve the production and/or disclosure of
corporate information which this Court believes is proprietary, commercially sensitive and/or
confidential and, if disclosed, would confer an unfair competitive advantage upon competitors
and irreparably compromise the confidential information, trade secrets and intellectual property
rights of the parties. Further, the necessary discovery and trial of this action may involve the
production and/or disclosure of the parties' sensitive business information which this Court
- ~iey~s .s~ould, r~niain con, i4~n.tial <;1~d, if disclos~d, would confer an undue hardship upon
~
f
th~m. Therefore the Court orders as follows:
.. ' ; ' .
,. ·
.
.
·•

I.
(a) .
..

.: r

DEFINITIONS:

','Confidential Material" myans information deemed by the designating party to be
_
particular,y sensitive and includes confidential information that is claimed ~o be

,.
,_ ,·. «:,(

..

:

..

.

'

I.

not publicly available and that, if disclosed and used by anyone other than the

'
~

.....

'.

'
'

',

'

parties in this litigation, may result in undue hardship, unfair competition,
improper disclosure of trade secrets, a loss of the inherent value of such
information, or a violation of confidentiality or privacy of a party.
;

(b)

"Documents" include, but are not limited to, all physical and electronic forms of
correspondence, letters, transcripts, minutes, telegraphs, cables, tapes, recordings,
films, memoranda, work papers, notes, drafts, press releases, diaries, employment
records, time records, evaluations, appraisals, studies, chemica l analyses, other
analyses, ledgers, journals, pages, books or records of accounts, contracts,
agreements, promissory notes, instruments of indebtedness, endorsements,
accounts, statements, purchase orders, receipts, invoices, shipment records,
delivery records, balance sheets, income statements, financial statements,
statistical records, notices, assignments, reports, valuations, evaluations, any other
writings regardless of by whom prepared or to whom addressed and regardless of
whether the document is an original or a copy or whether sent or received. The
term document shall also include any other form of reporting, storing, maintaining
or indexing information including, but not limited to, electronic, computer,
magnetic, microfilm, microfiche storage, shorthand notes, diagrams, magnetic
cards and other forms of storage.

(c)

"Information" includes all Confidential Material obtained or learned through
documents and/or testimony.

II.

DESIGNATION OF CONFIDENTIAL MATERIAL

1.

One or more parties believe certain Documents or Information responsive to

discovery served in this matter will require the production of Confidential Material, and the

parties shall treat all such Documents and/or Information

(when marked or identified as

"CONFIDENTIAL") as confidential absent further order of the Court or written agreement of
the parties to this action.
(a)

If a party believes any Document or Information is not confidential, then the party
shall notify opposing counsel in writing stating why the Document or Information
should not be considered Confidential Material, specifically identifying the
Document or Information or attaching a copy of the Document or summary of the
Information. If within (20) days after the receipt of the request to consider the
document non-confidential, the opposing party fails to waive confidentiality as to
the document, the moving party may move this Court to find that the document or
information is not Confidential Material.

(b)

If required to provide deposition or trial testimony, the parties may designate such
testimony or a portion thereof: including exhibits, as Confidential Material.
Designation of deposition testimony, including exhibits, as Confidential Materia l
shall be made by placing a statement to such effect on the record in the course of
the deposition of any such person or by notifying all parties in writing within
twenty (20) days after receipt of the transcript. All parties in possession of the
transcript thereafter shall place CONFIDENTIAL (the "Confidential Legend") at
th~ top of each page so designated and each photocopy thereof. A ll deposition
transcripts shall be treated as Confidential Material for a period of twenty (20)
days after receipt of such transcript to allow time for each party to make their
designations of Confidential Material, if any.

(c)

All Documents provided by the parties to this litigation and marked as
Confidential shall continue to be treated as Confidential Material subject to the
terms of this Protective Order until the Court orders otherwise, including the time
in which any party seeks a Court determination that any document is not
Confidential Material.

(d)

The parties agree and the Court hereby orders that documents produced
inadvertently or prior to the entry of this protective order may be marked
Confidential at the request of either party and subject to the same terms and
conditions set forth herein. Requests for documents to be treated as confidential
after production and/or disclosure shall be made in writing and specifically
identify the document by bates number or other definitive description. The party
receiving the request must affix a "Confidential" label on each document and/or
copy thereof within twenty (20) days from the request and certify in writing that
each document has been marked confidential.

ID.

DISCLOSURE OF CONFrDENTIAL MATERIAL

2.

Any Documents, and any Information contained therein, that are designated as

Confidential Material under this Protective Order shall be used only for purposes of the abovecaptioned litigation, not for any business or competitive or other purpose, and shall be disclosed
solely to the following:
(a)

the attorneys for plaintiff and defendants, including any member, associate,
paralegal or secretary of the law firm for any such, but only in connection with the
above-captioned litigation;

(b)

the Court, Court personnel and Court reporters, and their personnel, involved in
the adjudication of this action;

(c)

current or former employees of a party or any expert expressly retained by the

party or by its/his attorney to assist in trial preparation in this case, whether in a consulting or
testifying capacity; provided, however, that, prior to disclosure of Confidential Material to such
person, such person executes an affidavit in the form attached hereto as Exhibit "A";
(d)

mediators engaged in the Proceedings; and,

(e)

persons noticed for depositions or designated as trial witnesses, provided,

however, that, prior to disclosure of Confidential Material to such person, such person executes
an affidavit in the form attached hereto as Exhibit "A", specifically excluding any Party or any
directors, members, officers, managers, employees, agents, principals or partners of any Party to
the extent reasonably necessary by counsel for any of the parties to adequately prepare such
witnesses to testify.
3.

Counsel for each party shall maintain a complete and current file of the affidavits

executed pursuant to subparagraphs (a), (c) and (e) of paragraph 2 above, which shall be
maintained for one year after this action is finally terminated.
IV.

MAINTENANCE OF CONFlDENTIAL MATERIAL

4.

All Documents, testimony and other materials, or portions thereof, containing

Information subject to by this Protective Order, and the contents of all such materials, as well as
any duplicates, notes, memoranda and other documents referring to any such information, shall
be maintained in the strictest confidence by counsel for the party or parties receiving the same.
The obligation to maintain the confidentiality of Confidential Material shall continue after the
termination of this litigation.

V.

USE OF CONFIDENTlAL MATERIAL I N COURT PROCEEDINGS

5.

All documents containing Confidential Material provided by the parties that are

filed with the Court during this action, including all pleadings, memoranda, duplications or
photographs purporting to reproduce or paraphrase such Documents or Information, shall be
filed pursuant to the Court's electronic filing procedures for confidential document or, if allowed
by the Court in sealed envelopes or other appropriately sealed containers, on which shall appear
a statement substantially in the following form:

THIS CONTAINS DOCUMENTS FILED IN THIS CASE BY [NAME OF
PARTY] PURSUANT TO IBE PROTECTIVE ORDER ENTERED IN
THIS ACTION, AND IS TO BE FILED AND MAINTAINED UNDER
SEAL, AND IS NOT TO BE OPENED OR THE CONTENTS THEREOF
DISPLAYED OR REVEALED EXCEPT BY ORDER OF THE COURT.
6.

Confidential Material shall not lose its confidential status because it is used in any

Court proceeding in this lawsuit.
VI.

NON-WAIVER OF OBJECTIONS

7.

Nothing contained herein shall bar or limit the use of Confidential Documents

and/or Court files containing the same, upon appeal.
8.

A party shall not be obligated to challenge the propriety of the designation of

documents or information as Confidential Information at the time such designation is made, and
failure to do so shall not preclude a subsequent challenge during the pendency of this litigation,
provided that any such challenge may only be made by motion subject to the applicable
provisions of this Order, the Federal Rules of Civil Procedure and/or the rules of this Court,
including the obligation to confer in good faith prior to the filing of any such motion.

VII.

R ETURN OF CONFIDENT CAL MATERIAL AFTER L ITIGATION

9.

Within ninety (90) days of the conclusion of the above-captioned litigation,

including any appeal, all Confidential Material, and all copies of same, obtained during this
litigation and that are in the possession of the Parties, counsel for plaintiff: defendants or any
non-party shall be returned to the producing party or shall be certified in writing to the producing
party as having been destroyed.

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
SOUTHERN DIVISION
Civil Action No.: 7: l 8-CV-79-D
SOHO WILMINGTON, LLC,
Plaintiff,
vs.

SCP-EW RIVER PLACE, LLC and
BARNHILL CONTRACTING COMP ANY,
Defendants,

)
)
)
)
)
)
)
)
)
)

AFFIDAVIT OF COMPLIANCE WIIB STIPULATED PROTECTIVE ORDER

EXHIBIT "A"
The undersigned, having first been sworn under oath, does hereby affir m as follows:
1.

I have on this _ _ _ day of _ _ __ _ _ _ ,

2019

read

the

Agreed

Protective Order entered by the Court in this case.
2.

I understand that I am bound by the terms and cond itions of that Agreed

Protective Order and that I may not use or divulge any information fo r any purpose other than as
provided in said Order.
3.

I understand a nd acknowledge that in the event I violate any terms or conditions

of the Agreed Protective Order, I may be subject to punishment and/or censure by said Court for
contempt of the Court's Order.

AGREED:

Name:
Address:
Title:

STATE OF
COUNTY OF

)
) ss
)

I HEREBY CERTIFY that on this _ _ day of _ _ _- 2019 before me personally
appeared - - - - - - - - - - - ~ who made oath in due form of law that he/she
executed the forego ing document and that the facts contained are true and correct.
AS WITNESS, my hand and Notarial Seal.

Notary Public
My commission expires:

**********************
COURT'S APPROVAL AND MODIFICATIONS
This Protective Order is the subject of the parties' joint motion (D.E. 59) for entry thereof
, The Court hereby APPROVES and ADOPTS the foregoing terms of this Protective Order
proposed by the parties in the form at D.E. 59-1, subject to the following modifications:
1.
Entry of this Protective Order does not constitute a detennination by the Court that
any particular Documents, Information, or other materials are entitled to protection under this
Protective Order, notwithstanding any contrary terms in§ I of this Protective Order.
2.
A party may designate any Documents, Information, or other materials as
Confidential Material pursuant to § II of this Protective Order only if such party believes in good
faith that such Documents, Information, or other materials qualify for protection under Federal
Rule of Civil Procedure 26(c).
3.
Section III.2(a) does not require that the persons specified execute an affidavit in
the form attached hereto as Exhibit "A," notwithstanding any contrary terms in this Protective
Order, including any such terms in § III.3.

4.
The provisions of Local Civil Rule 79.2, E.D.N.C., along with § V.G of the ECF
Administrative Policies and Procedures Manual cited therein, shall control the filing of sealed
documents, notwithstanding any contrary terms in this Protective Order, including any such terms
in§ V.5.
5.
A party shall challenge the propriety of the designation of Documents, Information,
or other materials as Confidential Information without undue delay as determined by the Court,
notwithstanding any contrary terms in this Protective Order, including any such terms in § Vl.8.
6.
The return by the Court of Confidential Information at the conclusion of this
litigation shall be governed by the Local Civil Rules and orders of the Court, notwithstanding any
contrary terms in this Protective Order, including any such terms in§ VIl.9. See, e.g., Local Civil
Rules 79.1 , 79.2(c), E.D.N.C.
SO ORDERED, this 12th day of March 2020.

es E. Gates
Uruted States Magistrate Judge