Southern Concrete Products, Inc. v. The Euclid Chemical Company et al

Filing 40

PROTECTIVE ORDER. Signed by Magistrate Judge David Keesler on 2/19/2013. (eef)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA

SOUTHERN CONCRETE
PRODUCTS, INC.,

)
)
)
Plaintiff,
)
v.
)
)
THE EUCLID CHEMICAL
)
COMPANY, and GIANT CEMENT
)
COMPANY,
)
)
Defendants.
)
____________________________________)

CASE NO. 3:12-CV-00257-MOC-DCK

PROTECTIVE ORDER

This Protective Order (“Order”) is presented by Motion to the Court for entry by
Defendant, The Euclid Chemical Company, by counsel, pursuant to Rule 26(c) of the Federal
Rules of Civil Procedure.
WHEREAS, during the course of this action, the parties may obtain discovery of
documents or information which is, or which one or more of the parties considers to be or
contain, confidential or proprietary information or trade secrets, and for good cause shown it is
HEREBY ORDERED that:
1.

Any party to this action, and any non-party from whom discovery is sought in

connection with this action, may designate as “CONFIDENTIAL” or “CONFIDENTIAL ATTORNEYS’ EYES ONLY” any documents, information, testimony, or other discovery
material that contains “Confidential Information,” as defined in paragraph 2 below.
2.

“Confidential Information” includes trade secrets, proprietary information, or

competitively-sensitive information the present disclosure of which to any person not authorized
by this Order, in the good faith judgment of the designating party, would reveal information

which should be maintained as confidential. This includes but is not limited to information
relating to confidential and proprietary product formulations or the like which is entitled to
protection under Rule 26(c)(1)(G) of the Federal Rules of Civil Procedure. The exclusion of any
type of information from the preceding sentence in no way implies that such information may
not be designated as Confidential Information, so long as the designating party in good faith
believes that it is confidential. In designating information as Confidential Information, the
designating party will make such a designation only as to that material that it in good faith
believes contains confidential information. Confidential Information shall also include
information contained within any document, testimony, or other discovery material designated in
accordance with this Order as “CONFIDENTIAL” or “CONFIDENTIAL – ATTORNEYS’
EYES ONLY” and all copies thereof.
3.

Until and unless the Court rules otherwise, or the producing party agrees to

withdraw a designation, material marked or otherwise designated as “CONFIDENTIAL” shall be
maintained in confidence by the party to whom such material is produced and shall not be
disclosed to any person except:
(a)

Outside counsel for the respective parties, including their clerical,

litigation support and paralegal employees. As used in this Order, the term “outside counsel”
shall mean attorneys for the respective firms who have appearances entered in the case for their
clients, and who have not withdrawn from the case.
(b)

Any party to this action, such party’s partners, members, officers,

directors, in-house counsel for the respective parties (including their clerical, litigation support
and paralegal employees), and employees of such party who are assisting its counsel.

(c)

Consultants or expert witnesses assisting a party or counsel in connection

with this litigation, provided, however, that any such consultant or expert has signed an Affidavit
in the form of Exhibit A, with a copy of the signed Affidavit provided to all counsel of record.
(d)

The Court and its officers, deposition and trial court reporters, and outside

copy services, whose function requires them to have access to material designated as
“CONFIDENTIAL” under this Order.
(e)

Any author or recipient of the confidential material.

(f)

Deponents noticed in this action, to the extent necessary to examine such

deponents or to prepare them for their depositions, provided that such deponent must first sign an
Affidavit in the form of Exhibit A, with a copy of the signed Affidavit provided to all counsel of
record, or, in the event the deponent refuses to sign the Affidavit, with consent of all parties or
permission from the Court. Any deponent who is an officer, agent, or employee of a party shall
sign the Affidavit upon request by the party taking the deposition.
(g)

Witnesses for trial, to the extent necessary for the conduct of this action,

provided that such witness must first execute an Affidavit in the form of Exhibit A, with a copy
of the signed Affidavit provided to all counsel of record, or, in the event the witness refuses to
sign the Affidavit, with consent of all parties or permission from the Court.
4.

Until and unless the Court rules otherwise or a party agrees to withdraw its

designation, material marked or otherwise designated as “CONFIDENTIAL – ATTORNEYS’
EYES ONLY” shall be maintained in confidence by the party to whom such material is produced
and shall not be disclosed to any person except:
(a)

Outside counsel for the respective parties, including their clerical,

litigation support and paralegal employees.

(b)

Consultants or expert witnesses assisting a party or counsel in connection

with this litigation, provided, however, that any such consultant or expert has signed an Affidavit
in the form of Exhibit A, with a copy of the signed Affidavit provided to all counsel of record.
(c)

The Court and its officers, deposition and trial court reporters, and outside

copy services, whose function requires them to have access to material designated as
“CONFIDENTIAL – ATTORNEYS’ EYES ONLY” under this Order.
(d)

Any author or recipient of the confidential material.

(e)

Southern Concrete employees Rick Odle, Herron Odle, Tuffy Craig, and

Ross Armstrong, upon their execution of an Affidavit in the form of Exhibit A, with a copy of
the signed Affidavit provided to all counsel of record, may view material and documents
designated as “CONFIDENTIAL – ATTORNEYS EYES ONLY” by any and all Parties without
any approval or permission of any Party required. Other than those listed persons, other
employees or officers of the Parties may view material and documents designated as
“CONFIDENTIAL – ATTORNEYS EYES ONLY” only upon approval of the Party designating
material as “CONFIDENTIAL – ATTORNEYS EYES ONLY”, which approval will not be
unreasonably withheld and a decision to approve shall not be unreasonably delayed; provided,
however, that each other employee or officer has signed an Affidavit in the form of Exhibit A,
with a copy of the signed Affidavit provided to all counsel of record.
(f)

Deponents noticed in this action, to the extent necessary to examine such

deponents or to prepare them for their depositions, provided that such deponent must first sign an
Affidavit in the form of Exhibit A, with a copy of the signed Affidavit provided to all counsel of
record, or, in the event the deponent refuses to sign the Affidavit, with consent of all parties or
permission from the Court.

(g)

Witnesses for trial, to the extent necessary for the conduct of this action,

provided that such witness must first execute an Affidavit in the form of Exhibit A, with
a copy of the signed Affidavit provided to all counsel of record, or, in the event the
witness refuses to sign the Affidavit, with consent of all parties or permission from the
Court.
5.

If a party to this agreement wants to use material designated as

“CONFIDENTIAL” or “CONFIDENTIAL – ATTORNEYS’ EYES ONLY” in any deposition
and the deponent is eligible to view the materials under the terms of this Agreement and has not
signed an Affidavit in the form of Exhibit A, that party shall first notify, in writing, the party
who produced the confidential material(s) of the specific confidential material(s) that it wishes to
use at least two (2) business days in advance of the scheduled deposition date. The producing
party and opposing party agree to confer in good faith to resolve any disputes and reach
agreement on the form (e.g., redacted versions) or manner in which the materials may be used at
the deposition. If an agreement cannot be reached, then the producing party must seek a
protective order from the Court in order to limit access to the materials during any deposition.
6.

Notwithstanding paragraph 5 above, any witness may be shown at a deposition, or

examined on, any document containing material designated “CONFIDENTIAL” or
“CONFIDENTIAL – ATTORNEY’S EYES ONLY” if it appears from the face of the document
that the witness authored or previously received a copy of it, or if specific documentary or
testimonial evidence of that witness or others indicates that the document was communicated to
or from the witness, or if the producing party so agrees.
7.

In the event the producing party elects to produce original documents or other

material for inspection, no markings need to be made by the producing party in advance of the

inspection. During the inspection, all such documents or other material shall be considered as
marked “CONFIDENTIAL – ATTORNEYS EYES’ ONLY.” After selection by the inspecting
party of specified documents or material for copying, the producing party shall make the
appropriate copies, and the appropriate designations shall be placed on the specified documents
or materials prior to providing the copies to the inspecting party.
8.

No designation shall be effective unless there is placed or affixed on such material

a “CONFIDENTIAL” or “CONFIDENTIAL – ATTORNEYS’ EYES ONLY” marking.
Testimony given at a deposition or hearing and the resulting transcript will be treated as
“CONFIDENTIAL – ATTORNEYS’ EYES ONLY,” and all parties shall maintain the
deposition or hearing transcript and information contained therein as “CONFIDENTIAL –
ATTORNEYS’ EYES ONLY” until ten (10) days after receipt of a copy of the transcript. Any
party desiring to maintain confidentiality more than ten (10) days after receipt of a copy of the
transcript must designate in writing before the ten (10) days expires those portions of the
transcript regarded as “CONFIDENTIAL” or “CONFIDENTIAL – ATTORNEYS’ EYES
ONLY.”

If

any

pages

of

the

deposition

are

designated

“CONFIDENTIAL”

or

“CONFIDENTIAL – ATTORNEYS’ EYES ONLY,” the original and each copy of the transcript
(including the exhibits) of each such deposition taken in the lawsuit shall be marked:
THIS DEPOSITION TRANSCRIPT (INCLUDING ANY EXHIBITS) MAY
CONTAIN CONFIDENTIAL INFORMATION SUBJECT TO AN AGREED
PROTECTIVE ORDER LIMITING THE USE AND DISCLOSURE OF
CERTAIN MATERIALS AND INFORMATION. DO NOT USE, COPY, OR
DISCLOSE THIS TRANSCRIPT (INCLUDING EXHIBITS) WITHOUT
ASCERTAINING WHETHER THE TRANSCRIPT OR EXHIBITS ARE
CONFIDENTIAL
EXAMINATION
DOCUMENTS
OR
CONTAIN
CONFIDENTIAL INFORMATION SUBJECT TO THE PROTECTIVE
ORDER.

Only those portions designated in writing will thereafter be handled and marked in
accordance with the provisions of this Order.
9.

If any party believes that any document or information designated as

“CONFIDENTIAL” or “CONFIDENTIAL – ATTORNEYS’ EYES ONLY” by another party
should not be so designated, the non-designating party shall first request in writing that the
designating party withdraw the “CONFIDENTIAL” or “CONFIDENTIAL – ATTORNEYS’
EYES ONLY” designation. If the designating party fails to withdraw the “CONFIDENTIAL” or
“CONFIDENTIAL – ATTORNEYS’ EYES ONLY” designation within five (5) business days,
then the non-designating party may bring the matter before the Court for determination. The
party asserting confidentiality shall bear the burden of establishing entitlement to such
protection.

Any

document

or

information

designated

as

“CONFIDENTIAL”

or

“CONFIDENTIAL – ATTORNEYS’ EYES ONLY” shall continue to be treated as
“CONFIDENTIAL” or “CONFIDENTIAL – ATTORNEYS’ EYES ONLY” until the producing
party agrees to withdraw such designation or the Court has ruled that the document or
information is not entitled to the designation “CONFIDENTIAL” or “CONFIDENTIAL –
ATTORNEYS’ EYES ONLY.”
10.

Confidential Information disclosed to any individual authorized under paragraphs

3 or 4 of this Order shall be held in confidence and shall be used only for purposes of this action,
shall not be used for any business purpose, and shall not be disclosed to any other person other
than as provided herein.
11.

If Confidential Information in the possession, custody, or control of any receiving

party is sought by subpoena, request for production of documents, interrogatories, or any other
form of discovery request or compulsory process, including any form of discovery request or

compulsory process of any court, administrative or legislative body, or any other person or
tribunal purporting to have the right to seek such information by compulsory process or
discovery request, including private parties, the receiving party to whom the process or discovery
request is directed shall: (a) within ten (10) business days after receipt thereof, give written
notice of such process or discovery request together with a copy thereof, to counsel for the
producing party; (b) cooperate to the extent necessary to permit the producing party to seek to
quash such process or discovery request; and (c) not make production or disclosure of such
Confidential Information until the producing party consents in writing to production or the
receiving party is ordered by the court, administrative body, or tribunal of competent jurisdiction
to produce or disclose such Confidential Information, so long as the order is not stayed or
overruled prior to the date set for production or disclosure.
12.

No Confidential Information or material shall be filed in the public record of this

action by a non-designating party, unless the designating party has agreed to withdraw the
“CONFIDENTIAL” or “CONFIDENTIAL – ATTORNEYS’ EYES ONLY” designation or the
Court has ruled that the information or material is not “CONFIDENTIAL” or “CONFIDENTIAL
– ATTORNEYS EYES’ ONLY.” Otherwise, any document or thing containing or embodying
Confidential Information or material that is to be filed in this proceeding shall be filed under seal
in accordance with Rule 26(c) of the Federal Rules of Civil Procedure. The parties agree to act in
good faith and cooperate with one another to expedite compliance with the Rules for filing
Confidential Information.
13.

Upon the conclusion of this action, by settlement or adjudication, including any

appellate proceedings, “Confidential Information” exchanged between the parties as defined
under this Agreement and any work product, abstracts or summaries of “Confidential

Information” prepared by the parties or their counsel shall, upon written request of the disclosing
party, be returned to the party or parties who produced the “Confidential Information.”
Alternatively, the party in possession of the “Confidential Information” may destroy that
information in a manner that ensures that the information may not be retrieved. The party in
possession of the Confidential Information shall either complete such return or certify that all
“Confidential Information” has been destroyed within 20 days after receipt of the request. A
party or its counsel may destroy documents (such that they cannot be retrieved) at the conclusion
of the action, pursuant to the party’s or counsel’s document retention and destruction policies.
Counsel of record may retain one set of all papers filed with the Court or received in discovery,
including any Confidential Information filed under seal.
14.

The fact that any document or information is designated as Confidential

Information under this Order shall not determine or affect what a trier of fact may find to be
confidential or proprietary nor shall it prejudice any party’s rights to move for the introduction of
or to object to the introduction of such Confidential Information as evidence in the proceeding of
this matter.
15.

Agreement to this Order is without prejudice to the right of any party to seek an

Order from this Court imposing further restrictions on the dissemination of information
designated as Confidential Information, or to seek to rescind, modify, alter, or amend this Order
with respect to specific information. Nothing in this Order shall abridge the rights of any person
to seek judicial review or to pursue other appropriate judicial action with respect to any ruling
made by the Court concerning the issue of the status of information designated Confidential
Information. Nothing in this Order shall be construed as a waiver of any objections that a party
may have with regard to any designation, except as expressly provided herein.

16.

Nothing in this Order shall bar or otherwise restrict any attorney from rendering

advice to a client in this litigation and, in the course thereof, referring to or relying generally
upon examination or knowledge of information designated “CONFIDENTIAL” or
“CONFIDENTIAL – ATTORNEYS’ EYES ONLY,” provided, however, that in rendering such
advice and in otherwise communicating with the client, the attorney shall not disclose the content
or the source of such information contrary to the terms of this Order.
17.

The restrictions set forth in any of the preceding paragraphs, including paragraphs

3 and 4, shall not apply to information or material that:
(a)

Was, is, or becomes public knowledge in any manner other than by

violation of this Order;
(b)

Is acquired by the non-designating party from a third party having the

right to disclose such information or material; or
(c)

Was lawfully possessed by the non-designating party prior to the entry of

this Order.
18.

The parties shall attempt to agree on appropriate procedures to protect

Confidential Information at trial. If the parties cannot agree, the parties will seek approval or
direction from the Court before attempting to use Confidential Information at trial.
19.

Nothing contained herein shall prevent any party from disclosing or using its own

Confidential Information in any manner it chooses.
20.

This Order shall remain in full force and effect after the termination of this

litigation, until canceled or otherwise modified by Order of this Court.
21.

This Order shall be without prejudice to the right of any person to apply to the

Court for such further Orders as justice may require.

Signed: February 19, 2013

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
SOUTHERN CONCRETE
PRODUCTS, INC.,

)
)
)
Plaintiff,
)
)
v.
)
)
THE EUCLID CHEMICAL
)
COMPANY, and GIANT CEMENT
)
COMPANY,
)
)
Defendants.
)
____________________________________)

CASE NO. 3:12-CV-00257-MOC-DCK

AGREEMENT TO BE
BOUND BY PROTECTIVE ORDER

The undersigned hereby acknowledges that he/she has read the Confidentiality and
Protective Order (the “Order”) entered in the captioned action (a copy of which is attached
hereto) and that he/she:
(a)

has read and understands the Order and agrees to be bound by the terms of the
Order;

(b)

understands that unauthorized disclosures of the confidential documents or
information identified in the Order constitutes a violation of the Order, which can
result in sanctions against the undersigned for contempt of Court; and

(c)

irrevocably consents to the exercise of personal jurisdiction by the Court over
him/her in the captioned action.

__________________________________
Signature
__________________________________
Date
______________________________________

______________________________________
Printed Name, Job Title and Address