Planet Earth TV, LLC v. Level 3 Communications, LLC

Filing 35

CONSENT PROTECTIVE ORDER. Signed by Magistrate Judge Dennis Howell on 03/05/18. (emw)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
ASHEVILLE DIVISION
1:17 cv 90
PLANET EARTH TV, LLC,
Plaintiff,
v.
LEVEL 3 COMMUNICATIONS, LLC,
Defendant.

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CONSENT PROTECTIVE
ORDER

It is hereby STIPULATED and AGREED between Plaintiff Planet Earth TV, LLC, and
Defendants Level 3 Communications, LLC (collectively “the Consenting Parties”), and it is
hereby ORDERED by the Court, that the following terms and conditions shall govern the use
and handling of Confidential Information and documents produced by the Consenting Parties
in the above-captioned matter (“this Litigation”):
1.

Scope. All documents and data, including electronically stored information,

produced in the course of discovery, all responses to discovery requests, and all deposition
testimony and deposition exhibits and any other materials which may be subject to discovery
shall be subject to this Consent Protective Order (the “Protective Order”).
2.

Purpose. All documents, data, and information obtained through discovery in

this Litigation shall be used only for the purposes of prosecuting or defending this Litigation.
3.

“Confidential Information” Defined. “Confidential Information” shall mean

any and all information produced in the course of discovery or trial that a party deems in good

faith to contain banking, tax, or other sensitive financial information, any technical drawings
or schematics that are not publicly available, any trade secrets of any party or of a third party,
or any contracts with third-parties that may contain confidential information or be subject to
non-disclosure obligations. The parties may mutually agree to designate other documents or
information as “Confidential Information” that is not otherwise defined herein and such
stipulated designation shall be effective to protect such information under this Order. If the
parties cannot mutually agree that certain additional information or documentation be
designated as “Confidential Information,” the party requesting the designation may promptly
move the Court to amend or extend the protections of this order to cover said information or
documentation. Prior to or while such motion is pending the party requesting the designation
shall produce the subject documentation or information to counsel for the opposing party who
shall treat the same as “Confidential Information” under this Order until the Court rules on any
such motion.
4.

Access to Confidential Information.

Access to documents and information

designated as CONFIDENTIAL shall be restricted to the following persons:
(a)

parties to this Litigation and the officers and employees of the parties
who are directly participating in the prosecution or defense of this
Litigation;

(b)

law firms of record of the parties to this Litigation and such firms’
attorneys and staff;

(c)

any person specially employed or engaged in this Litigation by a party
or its attorneys as an expert, consultant, or vendor;

(d)

the Court and its personnel;
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(e)

court reporters and videographers retained to transcribe or record
depositions and court proceedings in this matter;

(f)

private arbitrators and mediators;

(g)

any person who is indicated on the face of a document to have been an
author, addressee, or recipient of the document, or the source of the
information; and

(h)

any other person as agreed upon by the parties to this action in writing
or authorized by the Court.

5.

Exhibit A to Protective Order. Persons identified in paragraphs 5(c) and 5(h)

above shall be provided Documents designated CONFIDENTIAL under this Protective Order
only after they have agreed in writing to be bound by the terms of the Protective Order, in the
form attached as “Exhibit A.”
6.

Form and Timing of Designation. The Consenting Parties shall designate the

whole or part of any documents as Confidential Information by stamping or imprinting the
words CONFIDENTIAL upon every page of the produced copies of the document at the time
of production. Such designations shall be utilized in good faith and only in accordance with
the definition of Confidential Information and as described herein.
7.

Documents Produced by Non-Parties. 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. 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 promptly upon receipt of the subpoenaed
material, and shall thereafter promptly provide counsel for all other parties with copies of the
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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 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).
8.

Inadvertent Production.

Inadvertent or unintentional production of

documents without prior designation as CONFIDENTIAL shall not be deemed a waiver, in
whole or in part, of the right to designate documents. In the event that the producing person
inadvertently fails to designate discovery material as CONFIDENTIAL, it may make such a
designation subsequently by notifying all parties to whom such discovery material was
produced, in writing, as soon as practicable. After receipt of such notification, the Consenting
Party to whom production has been made shall treat the designated discovery material as
Confidential subject to its right to dispute such designation in accordance with Paragraph 15
below.
9.

Effect on Attorney-Client Privilege and Work Product Immunity.

Inadvertent production of documents subject to work product immunity, the attorney-client
privilege, or other legal privilege protecting information from discovery shall not constitute a
waiver of the immunity or privilege, provided that the producing party shall, upon discovery
of the inadvertent production, promptly notify the receiving party in writing of such
inadvertent production. Upon notice, such inadvertently produced documents and all copies
thereof, as well as all notes or other work product reflecting the contents of such materials,
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shall be returned to the producing party or destroyed, upon request, and such returned or
destroyed material shall be deleted from any litigation-support or other database. No use shall
be made of such documents during deposition or at trial, nor shall they be shown to anyone
who was not given access to them prior to the request to return or destroy them. Nothing in
this provision shall prevent a party from challenging the applicability of the claimed privileged
after such material has been returned.
10.

Depositions.

In the case of deposition testimony, CONFIDENTIAL

designations may be made during the deposition and in any event shall be made within
thirty (30) days after the final transcript has been received by counsel making the designation
and shall specify the testimony being designated confidential by page and line number(s). The
deposition testimony shall be treated as confidential until final designations are made within
thirty (30) days after receipt of the final transcript.
11.

Protection

of

Confidential

Information.

Documents

designated

CONFIDENTIAL under this Protective Order shall not be used or disclosed by the parties or
counsel for the parties or any other persons identified below for any purposes other than
preparing for and conducting this Litigation in which the documents were disclosed (including
any appeal).
12.

Filing and Use at Trial. In the event a Consenting Party in this Litigation or a

third-party wants to file with or submit to the Court any document designed as
CONFIDENTIAL, that party shall first notify the designating party and attempt to reach an
agreement regarding filing or redaction of the Confidential Information. If the Parties cannot
reach an agreement as to presentation of the Confidential Information, the party shall file the
information under seal pursuant to the procedures set forth in Rule 6.1 of the Rules of Practice
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and Procedure of the United States District Court for the Western District of North Carolina.
Prior to the trial of this Litigation, counsel for the parties shall consult with each other and the
Court to define appropriate measures to protect confidentiality of documents and information
designated as CONFIDENTIAL at trial.
13.

Challenges to Designation as Confidential Information. In the event counsel

for the party receiving materials designated as CONFIDENTIAL objects to the designation,
said counsel shall advise the party producing the materials, in writing, preferably by electronic
mail, of such objection and the reasons therefore. Pending resolution of the dispute, all of the
materials shall be treated as designated. Counsel will attempt to resolve the dispute within five
business days. If the dispute cannot be resolved among counsel, the party objecting to the
designation of a document as CONFIDENTIAL may submit a motion objecting to such
designation with the Court. The burden to sustain the designation CONFIDENTIAL is upon
the designating party.
14.

Scope of Discovery. This Protective Order shall not enlarge or affect the proper

scope of discovery in this Litigation or any other litigation, nor shall this Protective Order
imply that discovery material designated as CONFIDENTIAL under the terms of this
Protective Order is properly discoverable, relevant, or admissible in this Litigation or any other
litigation.
15.

Treatment on Conclusion of Litigation. The terms of this Protective Order

shall survive and remain in effect after the termination of this Litigation. The Consenting
Parties shall take such measures as are necessary to prevent the public disclosure of
Confidential Information, through inadvertence or otherwise, after the conclusion of this
Litigation.
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16.

Return of Confidential Information.

Within thirty (30) days after the

termination of this Litigation, whether by adjudication on the merits, settlement, or otherwise,
all Confidential Information, all copies thereof, all extracts, tabulations and compilations,
thereof, in any form whatsoever, shall be returned to counsel for the party that produced it.
Alternatively, the Consenting Parties may agree in writing upon appropriate methods of
destroying documents containing Confidential Information. This provision shall not require
the Court’s return of any documents filed with the Court. Pursuant to the Court’s Pretrial
Order and Case Management Plan (ECF No. 12, ¶ F), the ultimate disposition of protected
materials is subject to a final order of the Court on the completion of litigation.
17.

Order Subject to Modification. This Protective Order shall be subject to

modification on motion of any Consenting Party or any other person who may show an
adequate interest in the matter to intervene for purposes of addressing the scope and terms of
this Protective Order.

The Protective Order shall not, however, be modified until the

Consenting Parties shall have been given notice and an opportunity to be heard on the
modification.
18.

No Judicial Determination. This Protective Order is entered based on the

representations and agreements of the parties and for the purpose of facilitating discovery.
Nothing in this Protective Order shall be construed or presented as a judicial determination
that any specific document or item of information designated as CONFIDENTIAL is subject
to protection until such time as a document-specific ruling shall have been made.
19.

Persons Bound. This Protective Order shall take effect when signed and filed

by counsel for the parties and shall be binding upon: (1) counsel who signed below and their
respective law firms; and (2) their respective clients.
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IT IS SO ORDERED.
Signed: March 5, 2018

WE CONSENT:
/s/ Anthony T. Lathrop
Anthony T. Lathrop
NC Bar No. 15941
Lindsey S. Frye
N.C. Bar No. 47752
MOORE & VAN ALLEN, PLLC
100 North Tryon Street, Floor 47
Charlotte, NC 28202-4003
[phone]
Counsel for Defendant

/s/ Michael L. Carpenter
Michael L. Carpenter
N.C. Bar No. 35202
GRAY LAYTON KERSH SOLOMON FURR &
SMITH
P.O. Box 2636
Gastonia, NC 28053
[phone]
Counsel for Plaintiff

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EXHIBIT A

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
ASHEVILLE DIVISION
1:17-cv-00090-MR-DLH
PLANET EARTH TV, LLC,
Plaintiff,
v.
LEVEL 3 COMMUNICATIONS, LLC,
Defendant.

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ACKNOWLEDGMENT OF CONSENT PROTECTIVE ORDER REGARDING
DISCLOSURE OF CONFIDENTIAL INFORMATION

I, ________________________________________, hereby affirm that:
1.

Information, including documents and things designated as CONFIDENTIAL

as defined in the Consent Protective Order (“Protective Order”) entered in the above-captioned
action, is being provided to me pursuant to the terms and restrictions of the Protective Order.
2.

As a prior condition to me being permitted to receive, see, or review any

Confidential Information, I have been given a copy of the aforementioned Protective Order, I
have read it, and I agree to be bound by its terms.
3.

I understand that the Protective Order is a Court Order that is legally binding

upon me. I hereby agree to submit to the jurisdiction of the United States District Court for
the Western District of North Carolina in Asheville, North Carolina for enforcement of any

claimed violation of the terms of the Protective Order or this Acknowledgement, and agree
that such jurisdiction shall survive the termination of this action.
4.

I agree not to use any Confidential Information disclosed to me pursuant to the

Protective Order except for purposes of the above-referenced litigation and not to disclose such
information to persons other than those specifically authorized by the Protective Order, without
the express written consent of the party who designated such information CONFIDENTIAL or
by Order of this Court. I also agree to notify any stenographic, clerical, or technical personnel
who are required to assist me of the terms of this Protective Order and its binding effect on
them.
5.

I understand that I am to retain all documents or materials designated as

Confidential Information in a secure manner, and that all such documents and materials are to
remain in my personal custody until the completion of my assigned duties in this matter,
whereupon all such documents and materials, including copies thereof, and any writings
prepared by me containing any Confidential Information are to be returned to counsel who
provided me with such documents and materials.

SIGNATURE

PRINTED NAME

DATE