Severn Peanut Company, Inc v. Hampton et al

Filing 25

STIPULATED PROTECTIVE ORDER PURSUANT TO FED.R.CIV.P.26(c). Signed by District Judge Martin Reidinger on 8/30/2017. (kby)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
ASHEVILLE DIVISION
Civil Case No. 1:17-cv-59
SEVERN PEANUT COMPANY, INC.
Plaintiff,
vs.
KRISTI T. HAMPTON, individually;
THOMAS HAMPTON, individually;
KRISTI T. HAMPTON and THOMAS
HAMPTON, jointly and as effectively a
marital general partnership,
Defendants.

STIPULATED PROTECTIVE
ORDER PURSUANT TO
FED. R. CIV. P. 26(c)

WHEREAS, this is an action for trademark infringement, in which matters
pertaining to uses of the mark (including but not limited to confidential customer
lists), alleged damages (including but not limited to confidential commercial and
financial data), past and present confidential marketing plans, are already and are in
the future anticipated to be the subject of discovery requests, and discovery in this
case is likely to require production and disclosure, by both parties and third parties,
of information that is confidential, proprietary or trade secret information, including
without limitation those items discussed above together with other sensitive
research, development, financial and commercial information; and

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WHEREAS, pursuant to Rule 26(c) of the Federal Rules of Civil Procedure
and the stipulation of the parties, the parties agree, as evidenced by the signatures of
the undersigned counsel, to the entry of the following Joint Protective Order (the
“Order”) to govern this case.
IT IS THEREFORE ORDERED that there is good cause for the entry of a
protective order in the following form in order to expedite discovery and provide
protection for confidential, proprietary and trade secret information of both the
parties to this action and third parties who may be required to produce documents in
this action:
1. Information Subject to Being Designated “Confidential.” Any party, entity,
or person claiming an interest in information produced or disclosed in the course
of this action who reasonably and in good faith believes such information
contains or constitutes, at the time of designation, confidential information, may
designate it as such, whether the information is, or is in, a document, revealed
during testimony at a deposition or hearing, revealed in answers to interrogatories
or disclosed in other papers filed with the Court or served in this action. For
purposes of this Order, CONFIDENTIAL information is defined as: (1) trade
secrets or other information of a non-public nature considered by the producing
party or person to be commercially or personally sensitive, confidential and/or
proprietary; or (2) other sensitive or proprietary research, analysis, development,
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marketing, financial or commercial information, including information likely to
be deemed sensitive by a non-party, as to which the entry of a protective order is
necessary to protect the producing party from disclosure to anyone other those
persons permitted by the terms of this Order in order to protect the party’s
confidential information, and to avoid loss of rights, unreasonable annoyance,
embarrassment, oppression, or undue burden or expense as provided in Fed. R.
Civ. P. 26(c).
2. Designating Information “Confidential.” To designate a document or thing as
containing CONFIDENTIAL information, the designating party shall:
a. For a document, place the term “CONFIDENTIAL” on each page of the
document that is intended to be designated as CONFIDENTIAL, in a
manner that will not interfere with the legibility of the document; and
b. For things, by affixing a label bearing the term “CONFIDENTIAL” on any
things that may be produced; and
c. Where such labeling or affixation is not reasonably feasible (for example,
on electronic documents produced in native form), shall provide some
other reasonable form of notice of the designation at the time the document
is produced;
d. With respect to deposition testimony, shall indicate any portion thereof as
CONFIDENTIAL by either indicating on the record that all or any part of
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the deposition is subject to such designation or by notifying all parties in
writing of such designation within twenty-one (21) days after the
deposition transcript is prepared. All depositions shall be treated as
CONFIDENTIAL until twenty-one (21) days after the deposition
transcript is prepared.
3. Information Subject to Being Designated “Attorneys’ Eyes Only.” Any party,
entity, or person claiming an interest in information produced or disclosed in the
course of this action who reasonably and in good faith believes such information
contains trade secrets or proprietary business information, such as but not limited
to information relating to manufacturing methods, product development plans, or
highly confidential business information such as marketing plans, supplier or
customer lists, pricing plans or information, balance sheets, financials, or other
highly confidential information which the producing party believes would put it
at a competitive disadvantage or would involve information of a highly personal
and sensitive nature may designate it as “ATTORNEYS’ EYES ONLY,” whether
the information is contained in a document, revealed during testimony at a
deposition or hearing, revealed in answers to interrogatories or disclosed in other
papers filed with the Court or served in this action.
4. Designating Information “Attorney’s Eyes Only.” To designate a document
“Attorneys’ Eyes Only,” the designating party shall add to the term
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CONFIDENTIAL the additional designation “ATTORNEYS’ EYES ONLY,”
affixed in the same manner, and within the same time frames as set out above for
the term CONFIDENTIAL. Specifically with respect to deposition testimony,
all depositions shall be treated as CONFIDENTIAL- ATTORNEYS’ EYES
ONLY until twenty-one (21) days after the deposition transcript is prepared.
5. Non-Disclosure

of

Protected

Information.

Information

designated

CONFIDENTIAL or CONFIDENTIAL - ATTORNEYS’ EYES ONLY
(“Protected Information”) shall not be disclosed to any person, nor shall the
substance, essence or summary of what is contained in Protected Information be
disclosed, except as authorized by this Order, by the written consent of the party
who originally so designated the information, or pursuant to a subsequent order
of this Court.
6. Permissible Use of Protected Information. Protected Information may be used
only for purposes of this litigation, and for no other purpose whatsoever.
7. Permissible Disclosures of “Confidential” Information. Subject to the
provisions of paragraph 9, information designated as CONFIDENTIAL may be
disclosed only to the following:
a. The Court and officials involved in this case (including court reporters and
persons operating video recording equipment at depositions);

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b. The parties’ outside counsel, including their partners, associates,
paralegals, secretaries and clerical and support personnel working with or
under the supervision of counsel, to the extent reasonably necessary to
render professional services in this action;
c. Officers, directors, or employees of the parties, solely for the purpose of
and to the extent necessary for prosecution, defense and/or appeal of this
action;
d. Former officers, directors, or employees of the parties whose assistance is
reasonably required by that party or any of its attorneys to work on or
potentially testify at deposition or trial in this action, or to assist in or
evaluate this action, but solely for the purpose of and to the extent
necessary for prosecution, defense and/or appeal of this action and only
after being advised of and bound by the provisions of this Protective Order;
e. Any person designated by the Court or acting pursuant to Court
appointment in the interest of justice;
f. Any mediator appointed by the Court, and his or her support personnel
working with or under the mediator’s supervision in connection with the
mediator’s services provided in this matter; and
g. The following additional qualified persons:

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(i) Experts or consultants, together with their clerical staff, retained
by counsel for the parties to assist in the prosecution, defense or
settlement of this action;
(ii) Non-party witnesses, to the extent reasonably necessary to
examine such witnesses in depositions or trial proceedings;
(iii) Third-party contractors (and their employees) engaged by and
working under the supervision of the parties’ outside counsel, to
the extent reasonably necessary to render professional services in
this action; and
(iv) Any other person as to whom all parties in writing agree.
8. Permissible Disclosures of “Attorneys’ Eyes Only” Information. Subject to
the provisions of paragraph 9, information designated as “Attorneys’ Eyes Only”
may be disclosed only to the following:
a. The Court and officials involved in this case (including court reporters and
persons operating video recording equipment at depositions);
b. The parties’ outside counsel, including their partners, associates,
paralegals, secretaries and clerical and support personnel working with or
under the supervision of counsel, to the extent reasonably necessary to
render professional services in this action;

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c. Any person designated by the Court or acting pursuant to Court
appointment in the interest of justice;
d. Any mediator appointed by the Court, and his or her support personnel
working with or under the mediator’s supervision in connection with the
mediator’s services provided in this matter; and
e. The following additional qualified persons:
(i) Experts or consultants, together with their clerical staff, retained
by counsel for the parties to assist in the prosecution, defense or
settlement of this action;
(ii) Third-party contractors (and their employees) engaged by and
working under the supervision of the parties’ outside counsel, to
the extent reasonably necessary to render professional services in
this action; and
(iii) Any other person as to whom all parties in writing agree.
9. Undertaking. Prior to receiving any Protected Information, each person
described in the provisions of paragraphs 7(g) and 8(e) above shall be provided
a copy of this Order and shall execute a nondisclosure agreement in the form of
Exhibit A or substantially equivalent thereto, a copy of which shall be maintained
by counsel making the disclosure. Notwithstanding the above,

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a. an individual who is reasonably indicated by a designated document to be
either the author or a recipient of such document may be shown the
document without complying with the requirements of this paragraph, but
may not retain any copy thereof or notes concerning it without having
complying with the requirements of this paragraph; and,
b. for third-party contractors operating solely in a support capacity (such as
database providers), their execution of a general nondisclosure agreement
with the law firm(s) for which they are providing support services that is
sufficient to cover their work on matters pertaining to this litigation and
that is no less protective than the terms of this Order shall be deemed
sufficient to meet the requirements of this Order.
10. Declassification. In the event that either party disagrees with the designation of
any information as “CONFIDENTIAL” or “ATTORNEYS’ EYES ONLY” the
parties will first attempt to resolve such dispute informally. If they are
unsuccessful, however, the objecting party may apply to the Court for a ruling
that the disputed information is not entitled to such status and protection. The
designating party shall be given notice of the application and an opportunity to
respond. The contested information shall be treated according to its designation
unless and until the Court rules otherwise.

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11. Redaction of Protected Information. If a document, thing, and/or information
contains both designated and undesignated portions, those designated portions
shall be deleted or redacted therefrom before disclosing to any person other than
those persons designated in paragraphs 7 and 8 above.
12. Use of Protected Information in Court Proceedings. Before filing any
Protected Information with the Court, or filing any pleadings, motions or other
papers that disclose any such information, the counsel intending to file the
Protected Information shall confer with counsel for the party that produced the
Protected Information about how it should be filed. If the party that produced the
Protected Information desires that the materials be filed under seal, then the filing
party shall file the materials in accordance with paragraph 13, with notice served
upon the producing party. The filing of the materials under seal shall not be
binding on the Court, however. Within 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 in accordance with Local Civil Rule 6.1 or its then-operative
equivalent. 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. 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
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Seal, then the materials will be deemed unsealed, without need for order of the
Court.
13. Motions to Seal. Each time a party seeks to file under seal confidential
documents, things, and/or information, including confidential portions of any
transcript, said party shall follow the requirements of Local Civil Rule 6.1 or its
then-operative equivalent.
14. Procedure for Filing under Seal. When a party seeks to file confidential
documents, things, and/or information, including confidential portions of any
transcript, a party shall submit such materials to the court pursuant to Section
II(A)(11) of the Administrative Procedures Governing Filing and Service by
Electronic Means, or its then-operative equivalent.
15. Inadvertent Production. If a party or other person inadvertently produces or
discloses information without first designating it as Protected Information under
this Order, that inadvertent production shall not operate as a waiver of that party’s
ability to later assert that the inadvertently produced information is in fact
protected and should thereafter be treated as such provided that the party that
failed to designate the information’s status as Protected Information gives
prompt, written notice of the desired designation to all parties after discovery of
any failure to designate. The party that made the inadvertently un-marked
disclosure shall provide a replacement copy of the Protected Information at issue
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to the other party, which is properly stamped or otherwise designated as
CONFIDENTIAL

or

CONFIDENTIAL-ATTORNEYS’

EYES

ONLY

information. The party receiving such subsequent designation and replacement
copy shall immediately give notice thereof to each person, if any, to whom the
previously improperly designated document or other information was in the
interim disclosed, shall diligently attempt to retrieve or obtain destruction of all
copies of the unmarked or improperly marked documents or information that
were distributed, and thereafter such document or information shall be subject to
the provisions of this Protective Order and shall be treated as if it had been so
designated from the date it was first provided except that no person shall be liable
for failure to follow the terms of this Order prior to receipt of notice of the
corrected designation.
16. Subpoena by Other Courts or Agencies. If any non-party subpoenas or seeks
access to or production of Protected Information which a party has obtained under
the terms of this Order, such party shall promptly notify the party or other person
who designated the document or information as protected of the pendency of such
subpoena or order, and the party from whom discovery is sought shall cooperate
in maintaining, to the extent possible, the confidentiality of the Protected
Information.

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17. Third Party Materials. All materials obtained from a third party by subpoena
shall be treated as “Attorneys’ Eyes Only” under this Order for at least thirty (30)
days after all parties receive the materials. Any party shall have the right, within
thirty (30) days of receiving the third party materials, to designate in writing a
higher level of protection than that designated by the producing third party.
18. Modification Permitted. Nothing in this Order shall prevent any party or other
person from seeking modification of this Order or from objecting to discovery
that it believes to be otherwise improper. In particular, nothing in this Order shall
be deemed to preclude any party from seeking and obtaining, on an appropriate
showing, such additional protection for any information, document or thing as
the party may consider appropriate in the circumstances. This Order may only be
modified by further order of this Court.
19. Conclusion of Action.
a. All provisions of this Order restricting the disclosure or use of Protected
Information shall continue to be binding after the conclusion of the litigation
unless otherwise agreed or ordered. Neither the termination of this action nor the
termination of the employment, engagement, or agency of any person who had
access to any Protected Information shall relieve any person from the obligation
of maintaining both the confidentiality and the restrictions on the use of any
Protected Information disclosed pursuant to this Order.
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b. Within sixty (60) calendar days after termination of this action, including all
appeals, unless the attorneys of record otherwise agree in writing, each party shall
assemble and return all Protected Information, including copies, to the person or
entity from whom the Protected Information was obtained, or shall certify that
the Protected Information has been destroyed. However, the attorney of record
may retain one (1) copy of any Protected Information for archival purposes solely
for the purpose of addressing or defending any alleged violation of this Order.
c. The ultimate disposition of Protected Information shall be subject to a final order
of the Court upon completion of this litigation.

IT IS SO ORDERED.
2017
Signed: August 30, 2017

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APPROVED AND AGREED TO BY COUNSEL:
OLIVE & OLIVE, P.A.
Attorneys for Plaintiff
/s/ Susan Freya Olive
Susan Freya Olive
NC Bar No. 7252
David McKenzie
NC Bar No. 36376
P. O. Box 2049
Durham, North Carolina 27702
Telephone: [phone]
[e-mail]

SMITH MOORE LEATHERWOOD LLP
Attorneys for Defendants

/s/ J. Douglas Grimes
J. Douglas Grimes
NC Bar No. 32699
SMITH MOORE LEATHERWOOD LLP
101 N. Tryon Street, Suite 1300
Charlotte, NC 28246
Phone: [phone]
Fax: [phone]
Email:
[e-mail]
DORITY & MANNING, P.A.
Attorneys for Defendants
Steve LeBlanc
DORITY & MANNING, P.A.
P.O. Box 1449
Greenville, S.C. 29602-1449
Tel: [phone]
Fax: [phone]
[e-mail]

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EXHIBIT A
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
ASHEVILLE DIVISION
Civil Case No. 1:17-cv-59
SEVERN PEANUT COMPANY, INC.
Plaintiff,
vs.
KRISTI T. HAMPTON, individually;
THOMAS HAMPTON, individually;
KRISTI T. HAMPTON and THOMAS
HAMPTON, jointly and as effectively a
marital general partnership,
Defendants.

UNDERTAKING

I have read the Protective Order entered in this action and agree to be bound by its
terms. I understand that disclosure of Protected Information, except as provided
under the Protective Order, constitutes contempt of court, and I consent to the
exercise of personal jurisdiction of this Court for purposes of enforcement of the
provisions of the Joint Protective Order against me if necessary. I declare under
penalty of perjury that the foregoing is true and correct.

Dated: ___________________

Signature: ___________________________
Name: ______________________________