2 Hounds Design, Inc. v. Brezinski et al
Filing
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PROTECTIVE ORDER AND CONFIDENTIALITY AGREEMENT. Signed by Magistrate Judge David Keesler on 11/18/2013. (eef)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
CIVIL ACTION NO. 3:13-CV-101-RJC-DCK
2 HOUNDS DESIGN, INC.,
Plaintiff,
v.
JESSICA BREZINSKI, AND
USA DOG SHOP, LLC,
Defendants.
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PROTECTIVE ORDER
) AND CONFIDENTIALITY AGREEMENT
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The parties hereby stipulate and agree that this Consent Confidentiality Agreement and
Protective Order (“Order”) is being entered pursuant to Rule 26(c) of the Federal Rules of Civil
Procedure:
1.
This Order shall govern all documents, the information contained therein, and all
other information produced or disclosed during the Action, including all copies, excerpts,
summaries, or compilations thereof, whether revealed in a document, deposition, other
testimony, discovery response, affidavits, declarations, or otherwise, by any party or third-party
to the Action, or any non-party who receives a subpoena in connection with this Action, which
has been marked Confidential, as set forth below by that party (the “Supplying Party”) to any
other party or parties to the Action (the “Receiving Party”).
2.
This Order is binding upon the parties to the Action, including their respective
corporate parents, subsidiaries and affiliates and their respective attorneys, agents, experts,
consultants, representatives, officers, directors, joint venturers, and employees as set forth in this
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Order. This Order is also binding on any party who obtains any documents or other Confidential
Information produced or disclosed in the Action pursuant to this Protective Order, including
those parties’ respective corporate parents, subsidiaries and affiliates and their respective
attorneys, agents, experts, consultants, representatives, officers, directors, joint venturers, and
employees as set forth in this Order.
3.
Third parties and non-parties who so elect may avail themselves of, and agree to
be bound by, the terms and conditions of this Order and thereby become a Supplying Party for
purposes of this Order.
4.
The entry of this Order does not prevent any party from seeking a further order of
this Court pursuant to Federal Rule 26(c) or other applicable court rule, law, or legal principle.
5.
Nothing herein shall be construed to affect in any manner the admissibility at trial
or any other court proceeding of any document, testimony, or other evidence.
6.
The Receiving Party may not disclose to anyone any information or document
produced by any Supplying Party that constitutes confidential information as defined herein,
except as specifically set forth herein.
7.
The designation “Confidential Information” shall be made by either affixing on
the document or material containing such information words equivalent to the following:
“CONFIDENTIAL,” or by designating by written notice the materials sought to be protected as
confidential by this Order.
8.
In the event that a Supplying Party makes documents or materials available for
inspection, rather than delivering copies to another party, no marking or redactions need be made
in advance of the initial inspection. For purpose of initial inspection, all documents made
available for inspection shall be considered as marked “Confidential” with appropriate
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redactions. Upon production of the inspected documents, the Supplying Party shall designate
which of the produced or copied documents and materials are or contain Confidential
Information pursuant to Paragraph 7 of this Order.
9.
All Confidential materials obtained in the Action shall be used solely for the
purpose of the prosecution or defense of the claims within the Action, or preparation for the trial
thereof and shall not be disseminated outside the Action.
10.
Counsel for the Parties shall limit access to and disclosure of Confidential
materials to only those entitled to access within the Action, provided that counsel first notifies
such person of the confidential nature of the materials and such person agrees to keep the
materials confidential in accordance with the terms of this Order, and executes the form
identified as Attachment A hereto and deliver a copy of the executed form to the Party seeking to
disclose the Confidential materials prior to disclosure of the Confidential materials. That Party
must keep a copy of the person’s or entity’s Attachment A, which will not be discoverable absent
good cause shown.
11.
No person or entity obtaining access to Confidential materials pursuant to this
Order shall divulge the contents thereof to anyone other than the persons or entities entitled to
access within the Action.
12.
Counsel for the Parties shall limit access to and disclosure of Confidential
materials to only the following persons provided that counsel first notifies such persons of the
confidential nature of the materials, such persons agrees to keep the materials confidential in
accordance with the terms of this Order, and such persons, with the exception of outside counsel,
Court personnel, and court reporters, and the exception contained in subparagraph (f) below,
shall execute the Confidentiality Agreement appended as Attachment A:
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a. the parties and any counsel representing the parties;
b. the parties and their counsel’s experts, consultants, representatives, officers,
directors, joint venturers, and employees, including stenographic and clerical
personnel, whose advice, consultation or assistance are being or will be used
by such Party in connection with the prosecution or defense of the Action, or
its preparation for trial;
c. the Court, and those employed by the Court, in which event the Confidential
materials shall be filed under seal consistent with this Order, and kept under
seal until further order of the Court;
d. court reporters who record depositions or other testimony in the Action;
e. outside experts, consultants, contractors, witnesses or potential witnesses,
including their stenographic and clerical personnel, whose advice,
consultation, services, or testimony are being or will be used by such party in
connection with the prosecution or defense of the Action, or their preparation
for trial;
f. a deponent and the deponent's counsel, but only during the course of the
deposition, or to the extent reasonably necessary in the preparation for such
deposition, provided that deponents and the deponent’s counsel cannot retain
copies of documents marked as “confidential” pursuant to this Order, and that
a party asking a deponent about the “confidential” exhibit or information will
ask the deponent to sign Exhibit A to this Order, but if the deponent refuses,
the party may proceed with the questioning regarding the “confidential”
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exhibit or information after instructing the deponent that the exhibit or
information has been designated as confidential pursuant to this Order; and
g. any other person or entity upon order of the Court, or upon stipulation of the
parties.
13.
If any party objects to the designation of portions of the items of evidence as
Confidential materials, that Party shall state the objections and reasons therefore by letter to
counsel for all parties. Upon written notification that a Party disagrees with a document’s
confidentiality designation, that party’s counsel shall meet and confer with counsel for the other
parties in an effort to resolve the dispute without Court intervention. If the parties do not agree
to change the designation, then the party objecting to the designation may make a motion seeking
a Court order that such materials should be given a lesser degree of protection (or no protection)
under this Order. Until the Court rules on any such motion, and until any and all proceedings
and interlocutory appeals challenging such decision have been concluded, the Confidential
materials shall continue to be treated as Confidential materials under the terms of this Order.
14.
A producing party that inadvertently fails to mark Confidential materials as such
at the time of the production shall promptly notify each receiving party upon discovery of the
inadvertent production.
15.
The inadvertent, unintentional, or in camera disclosure of a confidential document
and information shall not be deemed a waiver, in whole or in part, of any Party’s claims of
confidentiality.
16.
In the case of depositions upon oral examination, if counsel for a party has a
reasonable and good faith belief that any question or answer contains or refers to Confidential
materials, counsel shall so state on the record, and shall request that all pages that include such
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Confidential materials be marked as containing Confidential materials.
When testimony
designated as containing Confidential materials is elicited during a deposition, persons not
entitled to receive such information under the terms of this Order shall be excluded from the
deposition. Transcripts containing testimony or exhibits designated as containing Confidential
materials shall be marked by the court reporter, prior to transcript distribution, with the legend
“THIS TRANSCRIPT CONTAINS CONFIDENTIAL MATERIALS,” and shall be treated in
accordance with the provisions of this Order. In addition to designating during the deposition
any question or answer as containing Confidential materials, at any time within fifteen (15)
business days of receiving the deposition transcript from the court reporter, counsel may
designate any portion of the deposition transcript as containing Confidential materials. Notice of
such designation shall be made in writing to the court reporter, with copies to all counsel in the
Action, specifying the portion(s) of the transcript and exhibits that constitute or contain
Confidential materials. Counsel receiving such a written designation shall be responsible for
exercising their best efforts to ensure the Confidential materials so designated are not disclosed
to persons not entitled to receive such information under the terms of this Order.
Until
expiration of the fifteen (15) business day period described above, all deposition transcripts shall
be considered and treated as though containing Confidential materials, unless otherwise agreed
on the record at the deposition.
17.
Nothing in this Order shall require production of document(s), information, or
other thing(s) that counsel for a Party or a non-party or third-party contend is protected from
disclosure by the attorney-client privilege, the attorney work-product doctrine, or any other
recognized privilege or protection. This shall not preclude any other Party from moving the
Court for an order directing the disclosure of such material.
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18.
The ultimate disposition of Confidential materials shall be subject to a final order
of the Court on the completion of litigation.
19.
All counsel for all Parties shall, at all times, keep secure all notes, abstractions, or
other work product derived from or containing Confidential materials; shall take reasonable
measures to keep secure and maintain the confidentiality of such work-product; and shall not
disclose the contents of said notes, abstractions or other work-product after the document(s),
information, or other thing(s), or portions thereof, have been returned or destroyed.
20.
If any person receiving documents covered by this Order (the “Receiver”) is
subpoenaed or receives other compulsory process in another action or proceeding or is served
with a litigation-related document demand, and such subpoena, process, or document demand
seeks material which was produced or designated as Confidential by someone other than the
Receiver, the Receiver shall (i) give written notice by e-mail, hand, or facsimile transmission
within three (3) business days of receipt of such subpoena, process, or document demand to
those who produced or designated the information Confidential and (ii) refrain from producing
any material that has been designated Confidential in response to such a subpoena, process, or
document demand until the earlier of (a) receipt of written notice from the Supplying Party that
such party does not object to production of the designated material, or (b) resolution of any
objection asserted by the Supplying Party either by agreement or by final order of the Court with
jurisdiction over the objection of the Supplying Party; provided, however, that the burden of
opposing the enforcement of the subpoena, process, or document demand shall fall solely upon
the party who produced or designated the Confidential information, and unless the party who
produced or designated the Confidential information submits a timely objection seeking an order
that the subpoena, process, or document demand not be complied with, and serves such objection
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upon the Receiver prior to production pursuant to the subpoena, process, or document demand,
the Receiver shall be permitted without violating this Order to produce documents responsive to
the subpoena, process, or document demand on the response date. Compliance by the Receiver
with any order directing production pursuant to the subpoena, process, or document demand of
any Confidential information shall not constitute a violation of this Order. Nothing herein shall
be construed as requiring the Receiver or anyone else covered by this Order to challenge or
appeal any order directing production of Confidential information covered by this Order, or to
subject himself or itself to any penalties for non-compliance with a legal process or order, or to
seek any relief from this Court.
21.
This Order may be signed in counterparts, and such counterpart signature pages
shall be given full force and effect.
22.
This Order shall survive the final termination of the Action and shall continue in
full force and effect until such time as the Parties formally agree in writing to the contrary.
23.
This Order shall be binding upon all future Parties to the Action and each such
new Party shall execute a copy of this Order. Any such new Party shall fully bear the burdens
and enjoy the benefits of this Order.
24.
Any terminated Party, and its counsel, shall remain bound by this Order and shall
continue to enjoy every protection afforded by it.
25.
Any notice required by this Order shall be provided by mailing notice to the
attorney of record in this Action for the Party to whom notice is directed. Unless otherwise
expressly provided herein, the Federal Rules of Civil Procedure shall govern the service by any
Party to this Order of any notice required herein.
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26.
Any Party may petition the Court for a modification of the terms of this Order.
The Court shall have continuing jurisdiction to modify, amend, enforce, interpret, or rescind any
or all provisions of this Order, notwithstanding the final termination or conclusion of this action.
27.
All rights available at law are reserved for any violation of this Order.
SO ORDERED.
Signed: November 18, 2013
AND CONSENTED TO BY:
-and/s/ Albert P. Allan
Albert P. Allan
ALLAN LAW FIRM, PLLC
409 East Boulevard
Charlotte, NC 28203
Telephone: (704) 371-5605
Facsimile: (704) 372-7411
Email: alallan@allaniplitigation.com
Attorney for Plaintiff 2 Hounds Design, Inc.
Ronald Steinvurzel, Esq.
Admitted Pro Hac Vice
rsteinvurzel@steinlawonline.com
Steinvurzel Law Group P.C.
34 South Broadway, Suite 401
White Plains, New York 10601
Telephone: (914) 288-0102
Attorneys for Defendants Jessica Brezinski
and USA Dog Shop, LLC
RAYBURN COOPER & DURHAM, P.A.
/s/ Ross R. Fulton
Ross R. Fulton
N.C. State Bar No. 31538
rfulton@rcdlaw.net
227 West Trade Street, Suite 1200
Charlotte, NC 28202
Telephone: (704) 334-0891
Facsimile: (704) 377-1897
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ATTACHMENT A
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
CIVIL ACTION NO. 3:13-CV-101-RJC-DCK
2 HOUNDS DESIGN, INC.,
Plaintiff,
v.
JESSICA BREZINSKI, AND
USA DOG SHOP, LLC,
Defendants.
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The undersigned hereby acknowledges that he or she has read the Confidentiality Order
in the above captioned action, understands the terms thereof, and agrees to be bound by such
terms. The undersigned submits to the jurisdiction of the United States District Court for the
Western District of North Carolina in matters relating to the Confidentiality Order and
understands that the terms of said Order obligate him/her to use discovery materials designated
CONFIDENTIAL solely for the purposes of the above-captioned action, and not to disclose any
such confidential information to any other person, firm or concern.
The undersigned acknowledges that violation of the Confidentiality Order may result in
penalties for contempt of court.
Name:
Job Title:
Employer:
Business
Address:
Date:
____________________________________
Signature
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