American & Efird LLC v. Pittsfield Plastics Engineering, Inc.
Filing
83
ORDER granting 82 Motion for stipulated protective order. Signed by District Judge Max O. Cogburn, Jr on 12/17/2013. (blf)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
Civil Action No.: 3:12-CV-00194
AMERICAN & EFIRD LLC,
Plaintiff,
v.
PITTSFIELD PLASTICS ENGINEERING,
INC.,
Defendant/Third-Party Plaintiff,
STIPULATED
PROTECTIVE ORDER
v.
METRO PLASTICS, INC.,
Third-Party Defendant.
Pursuant to Rule 26(c) of the Federal Rules of Civil Procedure, Plaintiff American &
Efird LLC, Defendant Pittsfield Plastics Engineering, Inc. and Third-Part Defendant Metro
Plastics, Inc. (“Party” or “Parties”) stipulate to the issuance of the following Stipulated
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 furnished by a Party in conjunction with this
litigation which contain or are derived from trade secrets or other confidential or proprietary
information ("Confidential Information") shall be designated “CONFIDENTIAL” and furnished
to the other Parties pursuant to the terms of this Order. Each Party receiving 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.
(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”), or to an
outside expert retained for the purposes of consulting and/or testifying in this litigation shall be
designated “Highly Confidential-Attorneys’ Eyes Only” and furnished to the other Parties
pursuant to the terms of this Order, provided that such designations may be objected to as set
forth in Paragraph 7 hereof.
2.
Designation of Confidentiality.
Documents or information may be designated
Confidential or Highly Confidential-Attorneys’ Eyes Only in the following ways:
(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 ConfidentialAttorneys’ Eyes Only".
(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
2
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
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.
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)
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. If such materials are filed electronically, such
filing shall be made in accordance with Local Rule 6.1(G). If hard copies of such materials are
filed, such materials shall be in sealed envelopes or other appropriate sealed containers on which
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shall be endorsed the caption of the Litigation, a generic designation of the contents, the words
“CONFIDENTIAL INFORMATION – SUBJECT TO COURT ORDER” OR "HIGHLY
CONFIDENTIAL-ATTORNEYS’EYES ONLY INFORMATION -- SUBJECT TO COURT
ORDER", as applicable, and words in substantially the following form:
This envelope contains documents which are filed in this case by
[name of Party] and, by Protective Order dated [ ], the enclosed
[name of document], or a portion thereof, has been filed under seal
and may not be examined without further Order of the Court.
3.
Use of Confidential Information or Highly Confidential-Attorneys’ Eyes Only
Information. Confidential Information or Highly Confidential-Attorneys’ Eyes Only Information
shall be used by the non-producing Parties 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 to assist in this litigation;
(c)
outside experts retained for the purposes of consulting and/or testifying in this
(d)
a Party or any director, officer or employee of a Party charged with the
litigation;
responsibility for making business decisions dealing directly with this litigation;
(e)
any person who has been noticed for deposition, or any person who has been
interviewed by an attorney of record, or any person whose testimony is taken or is to be taken at
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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
(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’ 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 to assist in this litigation;
(c)
outside experts retained for the purposes of consulting and/or testifying in this
litigation;
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(d)
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
(e)
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) or 5(e) unless and until such person has executed an Agreement of
Confidentiality in substantially the form attached hereto as Exhibit A.
7.
Objections to Designations. A Party shall not be obligated to object to the propriety
of a Confidential Information 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 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.
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 advance notice is
given to counsel for the producing 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.
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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. 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.
Return of Materials. Upon completion of this litigation, all Confidential Information
and Highly Confidential-Attorneys’ Eyes Only Information, including copies, 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.
11.
Inadvertent or Unintentional Disclosure. The inadvertent or unintentional disclosure
of Confidential Information or Highly Confidential-Attorneys’ Eyes Only 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.
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12.
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.
13.
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.
Stipulated to by:
/s/ Deborah J. Bowers
Deborah J. Bowers
N.C. Bar No. 24937
/s/ R. Steven DeGeorge
R. Steven DeGeorge
N.C. Bar No. 20723
PINTO COATES KYRE & BOWERS,
PLLC
3203 Brassfield Road
Greensboro, North Carolina 27410
Telephone: (336) 282-8848
Facsimile: (336) 282-8409
Email address: dbowers@pckb-law.com
ROBINSON BRADSHAW & HINSON, P.A.
101 North Tryon Street, Suite 1900
Charlotte, North Carolina 28246
Telephone: (704) 377-2536
Facsimile: (704) 378-4000
sdegeorge@rbh.com
/s/ John J. McCarthy
John J. McCarthy
/s/ Russell M. Racine
Russell M. Racine
N.C. Bar No. 33593
DOHERTY,
WALLACE,
MURPHY, PC
PILLSBURY
Attorneys for Plaintiff American & Efird LLC
&
DEAN GIBSON HOFER & NANCE, PLLC
301 S. McDowell Street, Suite 900
Charlotte, North Carolina 28204-2686
Telephone: (704) 372-2700
Facsimile: (704) 372-1804
Email address: rracine@deanandgibson.com
1414 Main Street, 19th Floor
Springfield, Massachusetts 01144
Telephone: (413) 733-3111
Facsimile: (413) 734-3910
Email address: jmccarthy@dwpm.com
Admitted Pro Hac Vice
Attorneys for Third-Party Defendant Metro
Plastics, Inc.
Attorneys for Defendant/Third-Party Plaintiff
Pittsfield Plastics Engineering, Inc.
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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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