Andritz Hydro Corp. et al v. PPL Montana, LLC

Filing 25

CONSENT PROTECTIVE ORDER. Signed by Magistrate Judge David S. Cayer on 8/20/2013. (eef)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
Civil Action No.: 3:13-cv-00412-RJC-DSC
ANDRITZ HYDRO CORP. f/k/a VA TECH
HYDRO USA CORP. AND ANDRITZ
(USA) INC.,
Plaintiffs,
CONSENT PROTECTIVE ORDER

v.
PPL MONTANA, LLC and PPL ENERGY
SUPPLY, LLC
Defendants.

Counsel for Plaintiffs Andritz Hydro Corp. f/k/a VA Tech Hydro USA Corp. and Andritz
(USA) Inc. (jointly “Andritz”) and Defendants PPL Montana, LLC and PPL Energy Supply LLC
(jointly “PPL”) have represented to the Court that they have determined that certain documents,
testimony, and information that will be produced during discovery and/or that may be used
during depositions, hearings, or at trial in this matter should be kept confidential to protect their
respective legitimate business interests and/or other proprietary information. Counsel have also
represented to the Court that certain entities that are not parties to this action, which have
received subpoenas, have asked that certain documents and information also be kept confidential
to protect their respective legitimate business interests and/or other proprietary information.
Counsel have further represented that they request and consent to the entry of this Consent
Protective Order (herein the “Protective Order”).
Therefore, it appears to the Court, based on these representations, that good cause exists
for entry of this Protective Order, and it is therefore hereby ORDERED that:

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1.

Confidential Discovery Material.

The provisions hereof shall, as applicable,

govern the handling of documents, electronically stored information, testimony, depositions,
deposition exhibits, interrogatory responses, admissions and any other information or material
produced, given or exchanged by and among the parties and any nonparties to the abovecaptioned action (the “Action”), whether voluntary or court-ordered, in connection with
discovery in this Action (such information or material hereinafter being referred to as “Discovery
Material”). Any party or nonparty from whom Discovery Material may be sought in connection
with this Action (a “Producing Party”) may designate any Discovery Material as “Confidential”
under the terms of this Protective Order if such party in good faith reasonably believes that such
Discovery Material contains information that is nonpublic, confidential, proprietary or
commercially or personally sensitive, or subject to the protection of North Carolina law or the
law of any other applicable jurisdiction, or otherwise contains information that requires the
protections provided in this Protective Order (“Confidential Discovery Material”). For purposes
of this Protective Order:
(a)

Discovery Material shall presumptively qualify as Confidential Discovery

Material to the extent that it contains nonpublic cost or accounting information, or information
relating to personnel records, employment records, tax data, or personal financial information
provided that the Producing Party must designate such material as Confidential Discovery
Material in accordance with this Consent Protective Order.
(b)

The designation by any Producing Party of any Discovery Material as

“Confidential” shall constitute a representation that such Discovery Material has been reviewed
by an attorney for the designating party and that there is a good faith belief that such designation
is valid.
2.

Use of Discovery Material.

Absent permission from the Producing Party,

Discovery Material, or information derived therefrom, shall be used solely by the party or parties
to whom Discovery Material is produced only in connection with the prosecution, defense or
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attempted settlement of the Action and not for any other purpose, including, without limitation,
any business or commercial purpose or any other litigation.
3.

Designation of Discovery Material as Confidential. The designation of Discovery

Material as “Confidential” for purposes of this Protective Order shall be made in the following
manner by any Producing Party:
(a)

In the case of hard copy documents or other materials (apart from

depositions or other pretrial testimony), by affixing the legend “Confidential” to each page
containing any Confidential Discovery Material, except that in the case of multi-page documents
bound together by staple or other permanent binding, the word “Confidential” need only be
stamped on the first page of the document in order for the entire document to be treated as
Confidential Discovery Material; provided that the failure to so designate a document does not
constitute a waiver of such claim, and a Producing Party may so designate a document after such
document has been produced, with the effect that such document is thereafter subject to the
protections of this Protective Order;
(b)

In the case of electronic documents or files, by either following the

procedures described in subparagraph (a) above, or by using the term “Confidential” in the name
of the document or file; provided that each person who prints in “hard copy” form any document
or file so designated for use in a deposition, hearing or trial, or for submission to the Court, shall
affix the word “Confidential” to the “hard copy” in the manner set forth in subparagraph (a)
above; and, provided, further, that the failure to so name a document does not constitute a waiver
of such claim, and a Producing Party may so designate a document after such document has been
produced, with the effect that such document is thereafter subject to the protections of this
Protective Order; and
(c)

In the case of depositions or other transcribed pretrial testimony, (i) by a

statement on the record, by counsel, at the time of such disclosure; or (ii) by written notice, sent
to all parties within ten (10) business days after receiving a copy of the transcript thereof, and in
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both of the foregoing instances, by directing the court reporter that the appropriate confidentiality
legend be affixed to the first page and applied to the pages specified as containing Confidential
Discovery Material.

All depositions and other pretrial testimony shall be deemed to be

“Confidential” until the expiration of the tenth business day after counsel receives a copy of the
transcript thereof, after which time such deposition or pretrial testimony shall be treated in
accordance with its designation, if any.

Only those pages of the transcripts designated as

“Confidential” in the Action shall be deemed Confidential Discovery Material. The parties may
modify this procedure for any particular deposition, through agreement on the record at such
deposition, without further order of the Court.
4.

Disclosure of Confidential Discovery Material. Discovery Material designated

“Confidential” may be disclosed, revealed, summarized, described, characterized or otherwise
communicated or made available in whole or in part only to the following persons, pursuant to
the requirements of paragraph 5 below:
(a)

Outside counsel for any party in this Action whose law firm has entered an

appearance in this Action, and regular and temporary employees and service vendors of such
counsel (including outside copying and litigation support services) assisting in the conduct of
this Action for use in accordance with this Protective Order;
(b)

In-house counsel for any party and regular and temporary employees,

including any such employees who may be witnesses in this action, and service vendors of such
party (including outside copying and litigation support services) assisting in the conduct of this
Action for use in accordance with this Protective Order;
(c)

The named parties, and directors, officers, employees and general or

limited partners of the named parties, or any subsidiary or affiliate thereof;
(d)

Experts or consultants assisting counsel in this Action to the extent

necessary for such expert or consultant to prepare a written opinion, to prepare to testify, or to
assist counsel in the prosecution of this Action; provided that such expert or consultant (i) is not
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currently an employee of, or advising or discussing employment with, or consultant to, any party
to or any competitor or potential acquirer of any party to this Action, as far as the expert or
consultant can reasonably determine, and (ii) is using said Confidential Discovery Material
solely in connection with this Action;
(e)

Witnesses or deponents and their counsel during depositions or other

testimony in this action, and to the extent reasonably necessary for preparation for depositions or
testimony in this Action;
(f)

Any person indicated on the face of a document to be the author,

addressee, or a copy recipient of the document;
(g)

Any nonparty who may be a potential witness if such person is employed

by the same entity as a person indicated on the face of a document to be the author, addressee, or
a copy recipient of the document;
(h)

The Court and its employees, pursuant to paragraph 7 of this Protective

(i)

Court reporters employed in connection with this Action; and

(j)

Any other person only upon order of the Court or stipulation of the counsel

Order;

to the parties to this Action.
5.

Binding Effect. Before disclosure of Confidential Discovery Material pursuant to

paragraph 4 above, each person to whom disclosure is made, except those identified in
subparagraphs (a), (b), (f), (h), (i), and (j) above, shall be informed by the disclosing party of the
existence and provisions of this Protective Order. Before disclosure of Confidential Discovery
Material to any other person identified in paragraph 4 above, that person shall be informed by the
attorney providing the Confidential Discovery Material that such person is bound by and must
abide by this Protective Order, and shall be furnished by such attorney with a copy of this
Protective Order. All such persons shall and are hereby ordered to comply in full with the
provisions hereof.
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6.

Use of Own Confidential Discovery Material. This Protective Order has no effect

upon, and shall not apply to, the parties’ use of their own Confidential Discovery Material for
any purpose. Further, nothing herein shall impose any restrictions on the use or disclosure by a
party of documents, materials or information designated as Confidential that has been obtained
lawfully by such party independently of the discovery proceedings in this Action.
7.

Filing of Confidential Discovery Material with the Court. All documents of any

nature, including briefs, which have been designated as “Confidential” or which include or
describe Confidential Discovery Material, and which are filed with the Court, shall be filed with
the Court under seal, if and as allowed by and under the procedures and requirements of the
Court, and properly designed.
8.

Admission and Waiver; Applicability of Privileges and Protections; Preservation

of Objections. Entering into an agreement regarding, and/or producing or receiving, Confidential
Discovery Material or otherwise complying with the terms of this Protective Order shall not:
(a)

Constitute an admission that any document so designated contains or

reflects trade secrets or any other type of confidential information;
(b)

Prejudice in any way the rights of the parties to object to the production of

documents they consider not subject to discovery (including, but not limited to, pursuant to the
attorney-client privilege, work product doctrine, business strategies immunity, or other
applicable privilege, immunity, or protection from disclosure), or operate as an admission by any
party that the restrictions and procedures set forth herein constitute adequate protection for any
particular information deemed by any party to be Confidential Discovery Material;
(c)

Prevent the parties to this Protective Order from agreeing to alter or waive

the provisions or protections provided herein with respect to any particular Discovery Material;
(d)

Prejudice in any way the rights of any party to object to the authenticity or

admissibility into evidence of any document, testimony or other evidence subject to this
Protective Order;
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(e)

Prejudice in any way the rights of any party to seek further protection or a

determination by the Court whether any Discovery Material designated as Confidential should be
subject to the terms of this Protective Order;
(f)

Shift the burden of proving that Discovery Material is confidential from a

Producing Party.
9.

No Waiver of Privilege Through Inadvertent Disclosure of Producing Party. In

the event that a Producing Party inadvertently produces to any other party any materials that are
privileged or otherwise immune from discovery, in whole or in part, pursuant to the attorneyclient privilege, work product doctrine, business strategies immunity, or other applicable
privilege, immunity, or protection from disclosure, such privileged materials may be retrieved by
the Producing Party by giving written notice to all parties to whom the Producing Party
inadvertently provided copies of the produced privileged materials of the claim of privilege and
the identity of the documents inadvertently produced. Upon receipt of such notice, all parties or
other persons who have received a copy of the inadvertently produced materials shall promptly
return any and all copies of those materials to the Producing Party (or at the direction of the
Producing Party destroy them), as is reasonably practicable and possible. The terms of this
paragraph shall not be deemed a waiver of a party’s right to challenge the Producing Party’s
designation of materials as privileged (provided, however, that any such challenge to the
designation may only be made following the return of such identified documents to the
Producing Party), nor shall such inadvertent production of any material that is later retrieved
pursuant to this paragraph be deemed to be a waiver of the claim of privilege asserted. No party
shall use or disclose any inadvertently produced privileged materials, or information gleaned
from any inadvertently produced privileged materials, in connection with this Action or for any
other purpose. Any party returning material to a Producing Party pursuant to this paragraph may
then move the Court for an order compelling production of the material (which motion shall be
filed under seal), but said motion shall not assert as ground for entering such an order that the

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Producing Party waived any privilege because of the inadvertent production as long as the
Producing Party otherwise has met the requirements of Rule 502(b) of the Federal Rules of
Evidence.
10.

Inadvertent Disclosure by Non-Producing Parties.

If a party or nonparty

inadvertently discloses Confidential Discovery Material to persons other than those listed in
paragraph 4 above, such disclosure shall be reported in writing to the person who produces such
inadvertently disclosed Confidential Discovery Material. In that event, counsel for the disclosing
party shall make all reasonable efforts to retrieve the Confidential Discovery Material and any
documents containing such Confidential Discovery Material and to obtain the agreement of
persons to whom inadvertent disclosure was made to treat the Confidential Discovery Material in
accordance with the terms of this Protective Order.
11.

Stipulation Effective Immediately. The parties agree to be bound by the terms of

this Protective Order pending the entry by the Court of this Protective Order, and any violation
of its terms shall be subject to the same sanctions and penalties, as if this Protective Order had
been entered by the Court.
12.

Continuing Effect of Protective Order. The provisions of this Protective Order

shall, absent written permission of the Producing Party or further order of the Court, continue to
be binding throughout and after the conclusion of this Action, including, without limitation, any
appeals therefrom.

Upon the final conclusion of this Action, all persons having received

Confidential Discovery Material shall, upon written and timely request of the Producing Party,
either destroy the Producing Party’s Confidential Discovery Material or make a good faith effort
to return such material and all copies thereof (including summaries and excerpts) to counsel for
the party that produced it and certify that fact to counsel for the Producing Party; provided,
however, that (a) electronically stored information, including backup copies and electronic
duplicates, shall only be deleted or destroyed if and to the extent that it is readily accessible and
available, and (b) outside counsel for the parties shall be entitled to retain court papers,
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depositions, trial transcripts and attorney work product (including discovery material containing
Confidential Discovery Material), provided that the none of the Confidential Discovery Material
so retained, under either subparagraph (a) or (b), may be disclosed to any person except pursuant
to court order or agreement by the Producing Party. The Parties’ obligations under the terms of
this Protective Order shall survive resolution of this Action and/or termination of this Protective
Order and shall be binding on the Parties’ successors or assigns.
13.

Objection to Designation of Discovery Material as “Confidential.” During the

pendency of this Action, if any party objects to the designation of any Discovery Material as
“Confidential,” the party shall state the objection by letter to counsel for the Producing Party. If
the objecting party and the Producing Party are then unable to resolve the objection after a good
faith effort to do so, the objecting party may move the Court to do so. Until the Court rules on
any such motion, the Discovery Material shall continue to be deemed “Confidential” (as
applicable) under the terms of this Protective Order.
14.

Confidential Status Retained.

In the event that any Confidential Discovery

Material is used in any court proceeding in this Action or any appeal therefrom, said Confidential
Discovery Material shall not lose its status as Confidential Discovery Material through such use.
Counsel shall confer on such procedures that are necessary to protect the confidentiality of any
documents, information and transcripts used in the course of any court proceedings.
15.

Response to Subpoena or Other Legal Process.

If any person receiving

documents covered by this Protective Order (the “Receiver”) is subpoenaed in any other action
or proceeding, is served with a document demand, or is otherwise compelled by law to produce
documents (all, collectively, a “Demand”), and such Demand seeks Discovery Material which
was produced or designated as “Confidential” by someone other than the Receiver, the Receiver
shall give immediate written notice by hand or electronic or facsimile transmission, within five
(5) business days of receipt of such Demand, to the person or party who produced or designated
the material as “Confidential.” The Receiver shall not produce any of the Producing Party’s
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Confidential Discovery Material, unless otherwise court-ordered, for a period of at least five
business days after providing the required notice to the Producing Party. If, within five business
days of receiving such notice, the Producing Party gives notice to the Receiver that the
Producing Party opposes production of its Confidential Discovery Material, the Receiver shall
object, citing this Protective Order, and not thereafter produce such Confidential Discovery
Material, except pursuant to a court order requiring compliance with the subpoena, demand or
other legal process. The Producing Party shall be solely responsible for pursuing any objection
to the requested production. Nothing herein shall be construed as requiring the Receiver or
anyone else covered by this Protective Order to challenge or appeal any order requiring
production of Confidential Discovery Material covered by this Protective Order, or to subject
itself to any penalties for noncompliance with any legal process or order, or to seek any relief
from this Court. In the event that Confidential Discovery Material is produced to a nonparty to
this Protective Order in response to a subpoena or document demand, such Discovery Material
shall continue to be treated in accordance with the designation as “Confidential” (as applicable)
by the parties to this Protective Order.
16.

Copies of Confidential Discovery Material.

This Protective Order does not

restrict a person who is properly in the possession of Confidential Discovery Material from
(1) making working copies, abstracts, digests or analyses of Confidential Discovery Material for
use in connection with this Action or (2) converting or translating Confidential Discovery
Material into machine readable form for incorporation in a data retrieval system used in
connection with this Action. Any such copies, abstracts, digests, analyses or data compilations
have the same protection under the terms of this Protective Order as the information from which
they are derived.
17.

Modification or Relief. Nothing herein shall preclude any party from seeking

judicial relief, upon notice to the other parties, from this Protective Order or modification
thereof. This Protective Order may only be modified, without leave of the Court, by agreement

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of all of the parties in the form of a written stipulation that shall be filed with and approved by
the Court.
18.

Applicability to Additional Parties. In the event that additional parties join or are

joined in this Action, they shall not have access to Confidential Discovery Material until the
newly joined party by its counsel has executed and filed with the Court its agreement to be fully
bound by this Protective Order.
19.

Applicability to Nonparties. The parties to this Action agree that the production

of any Discovery Material by any nonparty to the Action shall be subject to and governed by the
terms of this Protective Order.
20.

Headings. The headings set forth in the numbered paragraphs of this Protective

Order are for convenience only and shall not be used to expand, limit, or interpret the substantive
terms of this Protective Order.
21.

Execution. This Protective Order may be executed by facsimile signature and

may be executed in one or more counterparts, each of which shall be deemed to constitute an
original, but all of which together shall constitute but one agreement.
SO ORDERED.

Signed: August 20, 2013

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WE CONSENT:

s/ Robert W. Fuller
Robert W. Fuller
N.C. Bar No. 10887
[e-mail]

s/ Melissa A. Romanzo_________
Melissa A. Romanzo
N.C. Bar No. 38422
[e-mail]

Pearlynn G. Houck
N.C. Bar No. 36364
[e-mail]

HUNTON & WILLIAMS, LLP
101 S. Tryon Street, Suite 3500
Charlotte, NC 28280
Telephone: [phone]
Facsimile:
704.378.4890

ROBINSON BRADSHAW & HINSON, P.A.
101 North Tryon Street, Suite 1900
Charlotte, North Carolina 28246
Telephone: [phone]
Facsimile:
704.378.4000
Of Counsel:
Michael C. Castellon
Georgia Bar No. 116106
[e-mail]
(pro hac vice application to be filed)
ANDRITZ, INC.
1115 Northmeadow Parkway
Roswell, Georgia 30076-3857
Telephone: [phone]
Facsimile:
770.640.9454

Robert Martin Rolfe
[e-mail]
(admitted pro hac vice)
Brian Wright
[e-mail]
(admitted pro hac vice)
HUNTON & WILLIAMS, LLP
951 East Byrd Street
Riverfront Plaza, East Tower
Richmond, VA 23219
Telephone: [phone]
Facsimile:
804.788.8218
Attorneys for Defendants

Attorneys for Plaintiffs

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