ABT, Inc. v. ACO Polymer Products, Inc.

Filing 21

ORDER granting 20 Motion for stipulation and protective order. Signed by Senior Judge Graham Mullen on 1/17/2013. (blf)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
Civil Action 3:12-CV-154-GCM
ABT, INC.,
Plaintiff,
STIPULATION AND
PROTECTIVE ORDER

v.
ACO POLYMER PRODUCTS, INC.,
Defendant.

Pursuant to Rule 26(c) of the Federal Rules of Civil Procedure, Plaintiff ABT, Inc. and
Defendant ACO Polymer Products, Inc. (“Party” or “Parties”) stipulate to the issuance of the
following Stipulation and Protective Order (“Order”) limiting the disclosure and use of certain
information and agree to be bound by the terms of this Order as hereinafter provided:
IT IS HEREBY AGREED TO AND ORDERED THAT:
1.

Scope.
(a)

All documents and information produced by a Party in conjunction with

this litigation which contain or are derived from trade secrets or other confidential or proprietary
research, development, or commercial information ("Confidential Information") shall be
designated “CONFIDENTIAL” and furnished to the other Party pursuant to the terms of this
Order. The Party receiving the Confidential Information shall not use or disclose the information
except in accordance with this Order. The terms of this Order extend to all Confidential
Information regardless of the manner in which it is disclosed, including but not limited to
documents, interrogatory answers, responses to requests for admission, deposition transcripts,
deposition exhibits, and any other discovery materials produced by a Party or non-party in

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response to or in connection with any discovery conducted in this litigation, and any copies,
notes, abstracts or summaries of the Confidential Information. Without limiting the generality of
the foregoing, the provisions of this Order extend to materials which were filed under seal in
ABT, Inc. v. Juszczyk, et al., United States District Court, Western District of North Carolina,
Case No. 5:09-CV-00119 (the “Juszczyk Lawsuit”).
(b)

All documents and information described in Paragraph 1(a) as

Confidential Information and which are of such a highly commercially sensitive nature, such as
certain documents or information reflecting, containing or derived from confidential pricing,
production cost, marketing, customer, or financial information, that the information should be
restricted to counsel for the Parties, including their paralegal, investigative, secretarial and
clerical personnel who are engaged in assisting such counsel in this litigation collectively,
“Counsel”), to an outside expert who is not employed by or affiliated with a Party or an affiliate
of a Party and is retained by counsel for the purposes of consulting and/or testifying in this
litigation or other persons identified in paragraph 5 of this Order, shall be designated “Highly
Confidential-Attorneys’ Eyes Only” and furnished to the other Party pursuant to the terms of this
Order, provided that such designations may be objected to as set forth in Paragraph 7 hereof.
(c)

Materials which were filed under seal in the Juszczyk Lawsuit shall be

treated as Highly Confidential-Attorneys’ Eyes Only Information hereunder unless and until the
Court orders or the producing Party agrees in writing that the materials may be treated as
Confidential Information hereunder.
2.

Designation of Confidentiality. Documents or information may be designated

Confidential or Highly Confidential-Attorneys’ Eyes Only within the meaning of this Order in
the following ways:

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(a)

In the case of documents, designation shall be made by means of the

following legend placed on each page of any such document:

"Confidential" or "Highly

Confidential-Attorneys’ Eyes Only". The Parties shall not make “Blanket Designations” of
“Highly Confidential-Attorneys’ Eyes Only” documents, defined as (i) five or more consecutive
pages or files produced in discovery; or, (ii) more than one-half of all documents or files
produced in response to a single request of production of documents, whichever is less in
measure, unless the content makes clear the need for such designations. Blanket Designations
may be challenged by the non-producing Party upon motion to the Court, requesting redesignation from "Highly Confidential-Attorneys’ Eyes Only" to “Confidential” if, after the
Parties’ attorneys meet-and-confer, the Parties cannot agree on the appropriateness of a
designation. If re-designation is ordered by the Court, the Court has the discretion to award the
non-producing Party costs associated with filing its motion for re-designation, including
reasonable attorney’s fees.
(b)

In the case of interrogatory answers and responses to requests for

admissions, designation shall be made by means of a statement in each answer or response
specifying that the answer or response or specific parts thereof are designated Confidential or
Highly Confidential-Attorneys’ Eyes Only. The following legend shall be placed on the front of
any set of interrogatory answers or responses to requests for admission containing Confidential
Information or Highly Confidential-Attorneys’ Eyes Only Information:
CONFIDENTIAL

INFORMATION"

[OR

"CONTAINS

HIGHLY

"CONTAINS

CONFIDENTIAL-

ATTORNEYS’ EYES ONLY INFORMATION"]. Designated parts not to be used, copied or
disclosed except as authorized by Court Order."
(c)

In the case of depositions and the information contained in depositions

(including exhibits), designation of the portions of the transcript (including exhibits) which

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contain Confidential Information or Highly Confidential-Attorneys’ Eyes Only Information shall
be made by a statement to such effect on the record during the deposition by counsel for the
Party or witness producing such information, or by letter from counsel to the court reporter, with
copies to counsel of record, within 14 days of receipt of the deposition transcript or copy thereof.
Unless agreed otherwise by the Parties, the entire deposition transcript (including exhibits) shall
be treated as Highly Confidential-Attorneys’ Eyes Only Information until the expiration of the
above-referenced 14-day period for designation by letter, except that the deponent may review
the transcript of his or her own deposition during this 14-day period. Before the 14-day period
(and any agreed-to extension thereof) has passed, the following legend shall be placed on the
front of the original deposition transcript and each copy of the transcript: “TREAT AS HIGHLY
CONFIDENTIAL-ATTORNEYS’

EYES

ONLY

INFORMATION

UNTIL

FURTHER

DESIGNATION”. After the 14-day period (and any agreed-to extension thereof) has passed, the
following legend shall be placed on the front of the original deposition transcript and each copy
of the transcript containing Confidential Information or Highly Confidential-Attorneys’ Eyes
Only Information:

"CONTAINS CONFIDENTIAL INFORMATION" [or "CONTAINS

HIGHLY CONFIDENTIAL-ATTORNEYS’ EYES ONLY INFORMATION"].

Designated

parts not to be used, copied or disclosed except as authorized by Court Order." If all or part of a
videotaped deposition is designated as Confidential or Highly Confidential-Attorneys’ Eyes
Only, the videocassette or other videotape container shall be labeled with the same legend.
(d)

If a Party produces matter stored in the form of electronic or magnetic

media (including information, databases or programs stored on computers, discs, networks or
tapes) ("Electronically Stored Information” or “ESI”), the producing Party may designate such
matter as Confidential or Highly Confidential-Attorneys’ Eyes Only by cover letter referring
generally to such matter. Whenever a Party to whom ESI designated as Confidential or Highly

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Confidential-Attorneys’ Eyes Only is produced reduces such material to hard-copy form, such
Party shall mark such hard-copy form with the legend provided for in paragraph 2(a) above.
(e)

To the extent a Party or counsel for a Party creates, develops or otherwise

establishes any ESI which contains information designated Confidential and/or Highly
Confidential-Attorneys’ Eyes Only, that Party and/or its counsel must take all necessary steps to
insure that access to that ESI is properly restricted to those persons who, by the terms of this
Order, may have access to Confidential Information and/or Highly Confidential-Attorneys’ Eyes
Only Information.
(f)

All materials filed with the Court containing or reflecting the contents of

Confidential Information or Highly Confidential-Attorneys’ Eyes Only Information shall be filed
under seal in accordance with Local Rule 6.1. At its election, a Party is not required to file a
document under seal if the Confidential Information or Highly Confidential-Attorneys’ Eyes
Only Information contained or reflected in the document was so designated solely by that Party.
3.

Use of Confidential Information or Highly Confidential-Attorneys’ Eyes Only
Confidential Information or Highly Confidential-Attorneys’ Eyes Only

Information.

Information shall be used by the non-producing Party or any other recipient, solely for the
purpose of conducting this lawsuit and in accordance with the terms of this Order, and shall in no
event be used for any business, competitive, personal, private, public or other purpose, except as
required by law.
4.

Disclosure of Confidential Information.

Access to information designated

Confidential pursuant to this Order shall be limited to:
(a)

Counsel, as defined in paragraph 1(b) of this Order;

(b)

outside photocopying, data processing or graphic production services

employed by the Parties or their counsel to assist in this litigation;

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(c)

any outside expert who is not employed by or affiliated with a Party or an

affiliate of a Party and is retained by counsel for the purposes of consulting and/or testifying in
this litigation;
(d)

a Party or any director, officer or employee of a Party charged with the

responsibility for making business decisions dealing directly with the resolution of this litigation,
as well as any employee of a Party consulted by counsel in good faith for the purpose of
assistance in connection with this litigation;
(e)

any person who has been noticed for deposition, or any person whose

testimony is taken or is to be taken at trial in this litigation who in good faith is required to be
shown or questioned about such material in order to assist such attorney in the preparation or the
conduct of this litigation;
(f)

any person who wrote or received the particular document sought to be

disclosed (provided that the document has not been altered since that person wrote or received
the document), any person who is referenced, discussed, mentioned or has demonstrated working
knowledge of the specific subject addressed in the particular document sought to be disclosed,
any person currently employed by the producing Party or, with respect to any dated document,
any person formerly employed by the producing Party if that person normally would have had
access on the date of the document to the specific subject matter contained in the particular
document sought to be disclosed to that person, or any person who is testifying in this litigation,
as to whom the examining counsel has a good faith belief that the witness possesses relevant
information with respect to the document sought to be disclosed to that person;
(g)

this Court, Court personnel, jurors, alternate jurors, and qualified persons

(including necessary clerical personnel) recording, taking or transcribing testimony or argument
at any deposition, hearing, trial or appeal in this litigation; and

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(h)

any other person to whom the Party producing the information agrees in

writing.
5.

Disclosure of Highly Confidential-Attorneys’ Eyes Only Information. Access to

information designated Highly Confidential-Attorneys’ Eyes Only pursuant to this Order shall be
limited to:
(a)

Counsel as defined in paragraph 1(b) of this Order;

(b)

outside photocopying, data processing or graphic production services

employed by the Parties or their counsel to assist in this litigation;
(c)

any outside expert who is not employed by or affiliated with a Party or an

affiliate of a Party and is retained by counsel for the purposes of consulting and/or testifying in
this litigation; provided, however, that if such outside expert is regularly engaged in consulting
services for the Party receiving production or is involved in other litigation against the producing
Party, the Party receiving production shall provide the Producing Party advance notice and 10
days to object before producing such information to the expert;
(d)

any person who wrote or received the particular document sought to be

disclosed to that person (provided that the document has not been altered since that person wrote
or received the document), any person who is referenced, discussed, mentioned or has
demonstrated working knowledge of the specific subject addressed in the document sought to be
disclosed, any person currently employed by the producing Party or, with respect to any dated
document, any person formerly employed by the producing Party if that person normally would
have had access on the date of the document to the specific subject matter contained in the
particular document sought to be disclosed to that person, or any person who is testifying in this
matter, as to whom the examining counsel has a good faith belief that the witness possesses
relevant information with respect to the document sought to be disclosed to that person;

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(e)

If a non-producing Party’s attorney is unable to understand the contents a

document designated or referencing information designated as Highly Confidential Attorneys’
Eyes Only, the non-producing Party may move the Court for relief from this Order to disclose a
specific document to its corporate representative, if that access by the non-producing Party is
necessary to assist counsel in assessing the significance of the designated document and after the
non-Producing Party’s attorney has met-and-conferred with the producing Party’s counsel to
discuss in good-faith the general contents of the document. Disclosure pursuant to this section
5(e) shall be permitted upon a good cause showing that no other reasonable means of assessing
the significance of the designated document is available and that good cause exists as to its
selection of the specific corporate representative who will review the Highly Confidential
Attorney’s Eyes Only document. Any discussions between the attorneys of either Party pursuant
to this section 5(e) shall not constitute a waiver of any applicable privileges including, but not
limited to, the attorney-client and work-product privileges.
(f)

this Court, Court personnel, jurors, alternate jurors, and qualified persons

(including necessary clerical personnel) recording, taking or transcribing testimony or argument
at any deposition, hearing, trial or appeal in this litigation; and
(g)

any other person to whom the Party producing the information agrees in

writing.
6.

Notification Of Confidentiality Order.

Confidential Information and Highly

Confidential-Attorneys’ Eyes Only Information shall not be disclosed to persons described in
paragraphs 4(c)-(f), 4(h), 5(c)-(e) or 5(g) unless and until such person has executed an
Agreement of Confidentiality in substantially the form attached hereto as Exhibit A. However,
Confidential Information may be disclosed to non-parties (this does not include current
employees of a Party) pursuant to paragraphs 4(e), 4(g) and 5(f), provided that such persons are

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provided either a copy of this Order or the summary of this Order attached to this Order as
Exhibit B, they represent that they have read and understand the provisions of this Order or its
summary, and they are advised by the disclosing counsel that such persons are bound by the
provisions of this Order. The originals of such Agreements shall be maintained by counsel for
the Party who obtained them until the final resolution of this litigation.
7.

Objections to Designations. A Party shall not be obligated to object to the

propriety of a Confidential Information or a Highly Confidential—Attorneys’ Eyes Only
designation at the time made, and a failure to do so shall not preclude a subsequent objection. In
the event a Party objects to the propriety of a Confidential Information or a Highly
Confidential—Attorney’s Eyes Only designation, counsel for the objecting Party shall confer
with opposing counsel in a good faith attempt to resolve the objection. If the Parties are unable
to resolve the objection, the objecting Party may move the Court for a ruling, in which case the
producing Party shall have the burden of supporting its designation. Any material subject to
such a motion shall be treated in accordance with its putative designation pending resolution of
the dispute. As an incentive to encourage judicious designations and informal resolution of
designation disputes and minimize involvement of the Court, if re-designation is ordered, the
Court has the discretion to award the non-producing Party costs associated with the filing of its
motion for re-designation, including reasonable attorneys’ fees.
8.

Use of Confidential Information or Highly Confidential-Attorneys’ Eyes Only

Information at Trial or Hearing. Subject to the Federal Rules of Evidence and further Orders of
the Court, a Party may use any Confidential Information or Highly Confidential-Attorneys’ Eyes
Only Information for any purpose at trial or at any hearing before the Court, provided that, in the
case of Highly Confidential-Attorneys’ Eyes Only Information, reasonable notice (except in
unforeseen circumstances, at least 48 hours in advance) is given to counsel for the producing

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Party, and provided further that such counsel may at the time of such proposed use, and prior to
disclosure, move for an appropriate protective order.
9.

Preservation of Rights and Privileges. Nothing contained in this Order shall

affect any right of a Party or witness to make any other type of objection, claim, or other
response to discovery requests, including, without limitation, interrogatories, requests for
admissions, requests for production of documents or questions at a deposition. Nor shall this
Order be construed as a waiver by a Party of any privilege to withhold any Confidential
Information or Highly Confidential-Attorneys’ Eyes Only Information, or of any right which a
Party may have to assert such privilege at any stage of this litigation.
10.

Freedom to Advise Clients. Nothing in this Order shall bar or otherwise prevent

any attorney from rendering advice to his or her client with respect to this litigation and, in the
course of rendering such advice, from relying upon his or her examination or knowledge of
Confidential Information or Highly Confidential-Attorneys’ Eyes Only Information; provided
however, that in rendering such advice and in otherwise communicating with his or her client,
such attorney shall not disclose the contents or source of any Confidential Information or Highly
Confidential-Attorneys’ Eyes Information to any person who is not authorized to receive such
information under the terms of this Order.
11.

Return of Materials.

Upon completion of this litigation, all Confidential

Information and Highly Confidential-Attorneys’ Eyes Only Information, including copies,
abstracts and summaries thereof, shall, at the option of the producing Party, be returned to the
producing Party or destroyed with certification by the other Party of its destruction of that
information.
12.

Inadvertent or Unintentional Disclosure.

The inadvertent or unintentional

disclosure of Confidential Information or Highly Confidential-Attorneys’ Eyes Only

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Information, or information subject to a claim of privilege, including, but not limited to, the
attorney-client privilege or work product doctrine (an “Inadvertently Produced Privileged
Document”), regardless of whether the information was so designated at the time of disclosure,
shall not be deemed a waiver in whole or in part of a Party's claim of confidentiality or privilege,
either as to the specific information disclosed or as to any other information relating thereto or
on the same or related subject matter.

Upon learning of an inadvertent or unintentional

disclosure of Confidential Information, Highly Confidential-Attorneys’ Eyes Only Information
or an Inadvertently Produced Privileged Document, the producing Party shall within ten days
designate such information as Confidential, Highly Confidential-Attorneys’ Eyes Only, or assert
a claim of privilege. Nothing contained within this paragraph prevents a Party from challenging
any such designation pursuant to the procedures contained in paragraph 7 of this Order.
13.

A Party's compliance with the terms of this Order shall not operate as an

admission regarding the confidentiality, admissibility, or privileged nature of any particular
document or information.
14.

Any non-party that provides discovery in this litigation, by deposition, production

of documents or otherwise, shall be entitled to the protections of this Order with respect to any
Confidential Information such non-party produces. Counsel for the Party seeking discovery
from a non-party shall provide such non-party a copy of this Order, and such non-party may
designate materials as Confidential Information and/or Highly Confidential-Attorneys’ Eyes
Only Information in the manner set forth in this Order, and any materials so designated shall be
treated the same as any Confidential Information and Highly Confidential-Attorneys’ Eyes Only
Information designated by the Parties.

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15.

Upon the final resolution of this litigation, the provisions of this Order shall

continue to be binding. The Court retains jurisdiction over this action for enforcement of this
Order.
16.

This Order shall remain in force and effect until modified, superseded, or

terminated by consent of the Parties or by Order of the Court.
17.

The ultimate disposition of protected materials shall be subject to a final Order of

the Court upon completion of the litigation.
Signed: January 17, 2013

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This 15th day of January, 2013.
/s/Paul J. Peralta
Paul J. Peralta
N.C. Bar No. 34622
MOORE & VAN ALLEN PLLC
100 N. Tryon Street, Suite 4700
Charlotte, NC 28202
Telephone: [phone]
Facsimile: [phone]
[e-mail]
Attorneys for Plaintiff
ABT, Inc.
/s/ R. Steven DeGeorge
R. Steven DeGeorge
N.C. Bar No. 20723
ROBINSON BRADSHAW & HINSON, P.A.
101 North Tryon Street, Suite 1900
Charlotte, North Carolina 28246
Telephone: [phone]
Facsimile:
[phone]
[e-mail]
/s/ Philip R. Bautista
Philip R. Bautista (admitted pro hac vice)
TAFT STETTINIUS & HOLLISTER LLP
200 Public Square, Suite 3500
Cleveland, Ohio 44114
Telephone: [phone]
Facsimile: [phone]
[e-mail]
Attorneys for Defendant
ACO Polymer Products, Inc.
SO ORDERED:

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EXHIBIT A
CERTIFICATION
I have read the annexed Stipulation and Protective Order, understand its contents, and
hereby undertake to make no disclosures of any materials designated Confidential Information or
Highly Confidential-Attorneys’ Eyes Only Information to any person who is not permitted to
have access to such materials by the Stipulation and Protective Order. In addition, I agree not to
use any materials designated Confidential Information or Highly Confidential-Attorneys’ Eyes
Only Information for any purpose other than assistance in this litigation. I understand that a
violation of this undertaking could be punishable as a contempt of court.

Date

Name
Signature

Sworn and subscribed before me
This ____ day of ________________, 20___

Notary Public

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EXHIBIT B
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
Civil Action 3:12-CV-154-GCM
ABT, INC.,
Plaintiff,
NOTICE TO
DEPOSITION WITNESSES

v.
ACO POLYMER PRODUCTS, INC.,
Defendant.

You are being shown one or more documents which have been designated as
"Confidential” or “Highly Confidential-Attorneys’ Eyes Only" pursuant to a Protective
Order of this Court. Except for providing testimony at this deposition, you may not disclose
these documents or their contents to any person other than the attorney who represents you at
this deposition. Further, neither these documents nor their contents may be used by you for any
purpose except that you may use them for your testimony in connection with this litigation – in
any event, you are prohibited from using them for any business, competitive, personal, private,
public, or other non-litigation purpose. The improper disclosure or use of these documents or
their contents may result in the imposition of sanctions upon you by the Court.
Upon request, you are entitled to a copy of the Protective Order.

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