McEwen Industries, Inc. v. Cook et al

Filing 18

JOINT PROTECTIVE ORDER. Signed by Magistrate Judge David S. Cayer on 9/2/2015. (eef)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
Civil Action No.: 3:15-cv-00150-FDW-DSC
McEWEN INDUSTRIES, INC.,
Plaintiff,
v.
FOUR WINDS HOLDING COMPANY,
LLC,
Defendant.

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JOINT PROTECTIVE ORDER

WHEREAS, counsel for the parties represent that certain information, documents and
things that have already been produced or will be produced in this action may contain trade secrets
or confidential commercial or business information or private information, and have requested the
entry of an appropriate Protective Order pursuant to Rule 26(c) of the Federal Rules of Civil
Procedure; and
WHEREAS, counsel for the parties have agreed to the form and content of this Order;
WHEREAS, this Order applies to all information that will be produced in this case and all
information that has already been produced;
WHEREAS, this Order applies to all information voluntarily produced by the parties and
non-parties during the present litigation;
THEREFORE, IT IS HEREBY STIPULATED AND ORDERED that, during the
pendency of this action or until this Order is amended or superseded, the parties will follow the
procedures set forth below with respect to the designation, disclosure, and use of confidential
information by parties and non-parties in course of this action.

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1.

The scope of this Order shall be as follows:
a.

The term “Discovery Material” encompasses, but is not limited to: any type

of document or testimony, any tapes, recorded, filmed, electronic, written, or typed matter,
including the originals, and all marked copies; all deposition testimony; all interrogatories,
document requests, requests for admission, and subpoenas duces tecum, (including all
responses); and any physical objects, things, or other information gained by inspection of
any tangible things.
b.

This Order shall govern any and all (i) Discovery Material and other

materials produced or given in pretrial proceedings in this action by any party to this action,
whether produced or given before or after entry of this Protective Order, including but not
limited to Discovery Material produced in response to any discovery conducted by the
parties; (ii) any documents, testimony, and other materials produced or given by a nonparty in this action pursuant to subpoena or otherwise; and (iii) all copies, excerpts, and
summaries thereof (collectively, “Material”).
c.

A non-party may invoke the protection of this Order for any Material

provided by it in connection with this action, including but not limited to documents,
deposition testimony, and exhibits provided in response to subpoenas served on a nonparty. All confidential information of a non-party as contained in such documents and
depositions shall be protected under this Order in the same manner as the confidential
information of the parties to this Order as long as the non-party agrees to be bound by and
comply with the terms of this Order and signs a copy of the Confidentiality Agreement
attached as Appendix A.

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2.

The parties and any non-party who provide Material (“Producing Party”) in this

action may designate as “Confidential” any Material the designating party or non-party from whom
discovery is sought believes in good faith constitutes confidential information entitled to protection
pursuant to this Order and under the Federal Rules of Civil Procedure 26(c) (“Confidential
Material”). Except as otherwise provided in this Order, no designation shall be effective unless
such Material is marked “Confidential.” The inadvertent failure to so mark any Material, however,
shall not be deemed a waiver of such claim of confidentiality. However, disclosure by any party
of such Material prior to notice of its confidential nature shall not be deemed a violation of this
Order.
3.

Until or unless the Court rules otherwise, Material marked or otherwise designated

as Confidential Material shall be maintained in confidence by the party to whom such material is
produced (the “Receiving Party”) to be used solely in connection with this litigation and shall not
be disclosed to any person except:
a.

The parties who have agreed to this Consent Protective Order;

b.

Counsel for the parties in this action, their clerical litigation support, and

paralegal employees who agree to be bound by and comply with the terms of this Order;
c.

A single representative of each Party designated by such Party to assist

counsel of record to assist in the preparation of the Party’s case for discovery, hearing or
trial, which representative shall be fully bound by the confidentiality terms of this order,
including, but not limited to, the prohibition that any such review shall not be used in any
manner outside this litigation;
d.

Any person scheduled to testify at a deposition where the deposition may

include questions regarding Confidential Material and who has agreed to be bound by and

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comply with this Order and who has signed the Confidentiality Agreement attached as
Appendix A;
e.

Consultants and experts who have been specifically engaged by counsel or

a party to assist in this action, who agree to be bound by and comply with the terms of this
Order and who have signed the Confidentiality Agreement attached as Appendix A;
f.

The Court and its officers, court stenographers, and outside copy services

whose function requires them to have access to Confidential Material under this Order; and
g.

Personnel of third-party vendors engaged by a party or by counsel for a

party to assist in (i) the coding, imaging, or other management of Material in this action;
(ii) the preparation of demonstrative exhibits or other visual aids for presentation at a
hearing or trial; and (iii) jury research and analysis, provided that such personnel of thirdparty vendors agree to be bound by and comply with the terms of the Order and sign the
Confidentiality Agreement attached as Appendix A.
4.

If a party believes in good faith that Material being produced contains highly-

sensitive confidential information that must be protected from disclosure to another party in this
action, such party may make an additional designation of Confidential Material as “Attorneys’
Eyes Only” (“Attorneys’ Eyes Only Material”). Attorneys’ Eyes Only Material shall be designated
by marking or stamping on such material an “Attorneys’ Eyes Only.” Attorneys’ Eyes Only
Material shall be subject to the same protections and restrictions set forth in this Protective Order
for Confidential Material, with the additional protection and restriction that such Attorneys’ Eyes
Only Material shall not be disclosed to a non-designating party. Only the persons identified to the
non-designating party, and who comply with the requirements of, subparagraphs (b), (e), (f), and
(g) of Paragraph 3 of this Order may have access to Attorneys’ Eyes Only Material.

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5.

Without limiting the foregoing, any witness, other than a competitor of a party

whose Confidential Material is sought to be disclosed, who has a bona fide need to review
Confidential Material or Attorneys’ Eyes Only Material in connection with providing testimony
or preparing to provide testimony, who has agreed to be bound by and comply with this Order and
who has signed the Confidentiality Agreement attached as Appendix A, may be shown any
document containing Confidential Material or Attorneys’ Eyes Only Material 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 indicate that the document was
communicated to or from the witness, or if the designating party so agrees.
6.

If a Receiving Party desires for a person who does not fall within the categories

contained in Paragraphs 3 and 4 of this Order to review Confidential Material or Attorneys’ Eyes
Only Material produced by another party, then counsel for the Receiving Party shall so notify
counsel for the Producing Party in writing and confer with counsel for the Producing Party in a
good faith effort to resolve the question of whether the Confidential Material or Attorneys’ Eyes
Only Material may be disclosed for the purpose or purposes sought by the Receiving Party. If,
after a good faith meeting, the parties are not able to resolve whether the Confidential Material
may be disclosed, then the Receiving Party must obtain permission from the Court before
disclosing the Producing Party’s Confidential Material or Attorneys’ Eyes Only Material and shall
state with reasonable particularity the identity of the persons to whom such Confidential Matter or
Attorneys’ Eyes Only Material is to be disclosed along with a description of the Confidential
Matter or Attorneys’ Eyes Only Material that is to be included in such disclosure. The Producing
Party shall have ten (10) days following service of such an application – unless the time for

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response is otherwise shortened or lengthened by the Court – to file any objections, in which case
no disclosure shall be made until the issue has been resolved by the Court or the parties.
7.

Each recipient of Confidential Material or Attorneys’ Eyes Only Material who is

required to sign the Confidentiality Agreement attached as Appendix A under Paragraphs 3, 4, or
5 of this Order must sign the Confidentiality Agreement prior to the disclosure of the Confidential
Material. The signed Confidentiality Agreement shall be maintained by counsel for the Receiving
Party. If a Receiving Party is unable, despite best efforts, to obtain signature on a Confidentiality
Agreement as required under Paragraphs 3, 4, or 5 of this Agreement, then the Receiving Party
shall notify the Producing Party and seek to resolve the matter informally in good faith. If the
matter cannot be resolved informally, then the Receiving Party may, after reasonable notice to the
Producing Party, apply to the Court for relief from the signature requirements of Paragraphs 3, 4,
or 5 of this Order.
8.

With respect to deposition testimony that constitutes or refers to Confidential

Material or Attorneys’ Eyes Only Material, any party and, if such deposition is of a third-party
(non-party to the action), that third-party, shall have thirty (30) days after receipt of a copy of the
transcript – or twenty (20) days following the close of discovery, whichever is earlier – to designate
portions of the testimony as “Confidential” or “Attorneys’ Eyes Only.” Until this period has
expired, the entire deposition transcript shall be treated as constituting Confidential Material. The
portion of the transcript of the deposition that contains such Confidential Material or Attorneys’
Eyes Only Material shall bear the notation “Confidential Information – Subject to a Protective
Order” or “Attorneys’ Eyes Only” or shall be otherwise appropriately marked, and shall be bound
separately.

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9.

With respect to Confidential Material or Attorneys’ Eyes Only Material produced

by the parties or non-parties prior to the entry of this Order, each Producing Party shall, within
thirty (30) days of the entry of this Order, designate the Material as “Confidential” or “Attorneys’
Eyes Only.” During the thirty (30) day period, all Material produced or given to any party in this
action prior to the entry of this Order shall be treated as Confidential Material.
10.

Confidential Material or Attorneys’ Eyes Only Material may be designated

subsequent to production or testimony when the Producing Party failed to make such designation
at the time of production or during testimony through inadvertence or error and the designation is
corrected within ten (10) days after discovery of the inadvertence or error. If the Confidential
Material or Attorneys’ Eyes Only Material is designated subsequent to production or testimony,
the Receiving Party promptly shall collect any copies that have been provided to individuals other
than those authorized under Paragraphs 3, 4 or 5 of this Order. Any inadvertent production of
documents without the designation as “Confidential” or “Attorneys’ Eyes Only” shall not be
deemed a waiver in whole or in part of that party’s claim of confidentiality, either as to the specific
information disclosed or as to any other related information that the party has designated
Confidential Material or Attorneys’ Eyes Only under this Order.
11.

Any party that mistakenly produces materials that the Producing Party claims are

protected by the attorney/client privilege, work product doctrine, or other privilege, doctrine, or
right recognized under North Carolina or other applicable law may obtain the return of those
materials by promptly notifying the recipient(s) of the produced documents. The recipient shall
then promptly gather and return to the Producing Party or destroy all copies of the privileged
materials and cease all use of the privileged materials until the claim is resolved. The Producing
Party must list and describe the privileged materials on a privilege log in a manner that will permit

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the other parties to assess the claim of privilege. The Producing Party must preserve the claimed
privileged materials until the claim is resolved. Any inadvertent production of such privileged
materials shall not be deemed a waiver in whole or in part of a party’s claim of privilege, either as
to the specific information disclosed or as to any other information relating thereto or on the same
or related subject matter that the Producing Party has designated as privileged.
12.

Any party may object to the designation of any Material or testimony as

Confidential Material or Attorneys’ Eyes Only Material by giving written notice to the producing
Party that it objects to the designation. After providing written notice of its objection, the objecting
party and the Producing Party shall then confer good faith in an attempt to resolve the dispute. If,
after the parties have conferred and the dispute cannot be resolved, the Producing Party wishes to
continue to assert its claim of confidentiality, the Producing Party is obligated to file a motion
requesting the Court to confirm the confidential status of the Material within twenty (20) days of
providing such written notice. Until the Court rules on the motion, the documents shall be treated
as Confidential Material or Attorneys’ Eyes Only Material, as originally designated. No party
shall be obligated to challenge the propriety of a confidentiality designation at the time made, and
a failure to do so shall not constitute an admission by the Receiving Party that the information is
Confidential Material or Attorneys’ Eyes Only Material or preclude a subsequent challenge to such
designation.
13.

All Confidential Material or Attorneys’ Eyes Only Material exchanged between the

parties in this action, whether designated under the provisions of this Order or not, shall be used
by a Receiving Party solely for the prosecution or defense of the claims in this action.
14.

No Confidential Material or Attorneys’ Eyes Only Material shall be filed in the

public record of this action unless otherwise required by the Court. Any document or thing

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containing or referring to Confidential Material or Attorneys’ Eyes Only Material that is to be filed
in this proceeding shall be filed under seal, subject to Court approval. All materials filed with the
Court under seal shall bear the notation “UNDER SEAL” immediately beneath the Civil Action
Number in the case heading on the face of such materials.
15.

Nothing contained in this Order shall:
a.

Except for information obtained by either party described in Paragraph 2,

limit a Receiving Party’s use of documents and information obtained other than through
discovery in this action (provided such documents and information were lawfully
obtained).
b.

Limit the right of the Producing Party to disclose Confidential Material or

Attorneys’ Eyes Only Material produced by the Producing Party, such disclosure not being
subject to the protective procedures set forth in this Order and which shall not result in a
waiver of the claimed confidentiality (except to the extent the disclosure makes the
Confidential Matter a matter of public record).
c.

Limit, expand or restrict any right of any party to resist or compel discovery

with respect to materials that the party may claim to be privileged or otherwise not
discoverable in this action, or the right of any party to seek additional protection pursuant
to Rule 26 of the Federal Rules of Civil Procedure.
16.

At the final conclusion of this action, including, without limitation, any appeal or

retrial, all counsel and every person to whom Confidential Material or Attorneys’ Eyes Only
Material has been disclosed shall, within thirty (30) days of such final conclusion, return to counsel
for the Producing Party all materials designated “Confidential” or “Attorneys’ Eyes Only,”
including any copies, extracts or summaries, except that Confidential Material or Attorneys’ Eyes

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Only Material disclosed by third parties (non-party to this case) shall be destroyed by shredding.
As to those materials that contain or reflect Confidential Material or Attorneys’ Eyes Only Material
but that constitute counsel’s work product, counsel shall destroy such work product and all copies.
The parties may, however, agree on a different procedure for disposing of Confidential Material
or Attorneys’ Eyes Only Material.
17.

The designation of any information, documents or things pursuant to this Order

shall not, in and of itself, raise any inference as to the legal status of any information, documents
or things marked for identification purposes or introduced in evidence at the trial of this action.
Nothing in this Order, however, shall preclude the Producing Party from seeking “Confidential”
treatment from the Court with respect to such information, documents or things or from raising
any available objection.
18.

After the termination of this action, this Order shall continue to be binding upon

the parties and all persons to whom Confidential Material or Attorneys’ Eyes Only Material has
been disclosed or communicated.
19.

All time periods contained in this Order shall be computed pursuant to Rule 6 of

the Federal Rules of Civil Procedure.
20.

By producing Material and agreeing that the terms of this Order govern the

protections afforded to the produced information, documents or things by the execution of the
Confidentiality Agreement attached as Appendix A, any third party making such production
becomes subject to this Order and consents to the jurisdiction of this Court as the sole forum and
venue for resolution of all disputes regarding the production of information, documents, or things
pursuant to this Protective Order.

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21.

All parties receiving Confidential Material or Attorneys’ Eyes Only Material under

this Order may be subject to sanctions for violating this Order.
22.

This Order may be modified in the event that the parties agree to a modification of

the provisions hereof or such modification is ordered by this Court.

SO ORDERED.
Signed: September 2, 2015

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STIPULATION
I hereby agree and consent to the Consent Protective Order to which this Stipulation is attached.
Date: September 1, 2015
Baker, Donelson, Bearman, Caldwell &
Berkowitz, P.C.
By:

/s/ Lawrence S. Eastwood
Lawrence S. Eastwood
Baker Donelson Center
211 Commerce Street, Suite 800
Nashville, TN 37201
[e-mail]
Counsel for Defendants

MOORE & VAN ALLEN, PLLC
By:

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/s/ Paul J. Peralta
Paul J. Peralta, NCSB #34622
100 N. Tryon Street, Suite 4700
Charlotte, NC 28202-1024
Telephone: [phone]
Facsimile: [phone]
[e-mail]
Counsel for Plaintiff

EXHIBIT A – CONFIDENTIALITY AGREEMENT
By my signature below, I hereby agree to comply with and abide by the terms of the
Consent Protective Order to which this Confidentiality Agreement is attached.
Print Name

Signature

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Date