Hamoud v. Maaco Franchising, LLC

Filing 32

JOINT STIPULATED PROTECTIVE ORDER. Signed by Magistrate Judge David Keesler on 9/29/16. (mga)

THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
CIVIL ACTION NO. 3:15-CV-513-FDW-DCK
HAIDAR H. HAMOUD,

)
)
Plaintiff/Counter-Defendant,
)
)
v.
)
)
MAACO FRANCHISING, LLC,
)
)
Defendant/Counter-Plaintiff.
)
___________________________________ )
JOINT STIPULATED PROTECTIVE ORDER
Defendant/Counter-Plaintiff,

MAACO

FRANCHISING,

LLC

(“Maaco”),

and

Plaintiff/Counter-Defendant, HAIDAR H. HAMOUD (“Hamoud”) (hereinafter the “Parties”), by
and through their respective undersigned counsel, pursuant to Federal Rule of Civil Procedure
26(c), hereby move the Court for a Stipulated Protective Order as follows:
1.

PURPOSES AND LIMITATIONS
Disclosure and discovery activity in this action are likely to involve production of

confidential, proprietary, or private information for which special protection from public
disclosure and from use for any purpose other than prosecuting this litigation may be warranted.
Accordingly, the Parties hereby stipulate to and petition the Court to enter the following Stipulated
Protective Order. The Parties acknowledge this Order does not confer blanket protections on all
disclosures or responses to discovery and the protection this Order affords from public disclosure
and use extends only to the limited information or items that are entitled to confidential treatment
under the applicable legal principles. The Parties further acknowledge, as set forth in Section 13.3,
below, this Stipulated Protective Order does not entitle the Parties to file confidential information

under seal; Civil Local Rule 6.1 sets forth the procedures that must be followed and the standards
that will be applied when a Party seeks permission from the court to file material under seal.
2.

DEFINITIONS
2.1

Challenging Party:

a Party or Non-Party that challenges the designation of

information or items under this Order.
2.2

“CONFIDENTIAL” Information or Items: information (regardless of how it is

generated, stored or maintained) or tangible things that qualify for protection under Federal
Rule of Civil Procedure 26(c).
2.3

Counsel (without qualifier): Outside Counsel of Record and In-House Counsel (as

well as their support staff).
2.4

Designating Party: a Party or Non-Party that designates information or items that

it produces in disclosures or in responses to discovery as “CONFIDENTIAL.”
2.5

Disclosure or Discovery Material: all items or information, regardless of the

medium or manner in which it is generated, stored, or maintained (including, among other
things, testimony, transcripts, and tangible things), that are produced or generated in
disclosures or responses to discovery in this matter.
2.6

Expert: a person with specialized knowledge or experience in a matter pertinent to

the litigation who has been retained by a Party or its counsel to serve as an expert witness
or as a consultant in this action.
2.7

In-House Counsel: attorneys who are employees of a Party to this action. House

Counsel does not include Outside Counsel of Record or any other outside counsel.
2.8

Non-Party: any natural person, partnership, corporation, association, or other legal

entity not named as a Party to this action.

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2.9

Outside Counsel of Record: attorneys and their associates, paralegals, and staff

who are not employees of a Party to this action but are retained to represent or advise a
Party to this action and have appeared in this action on behalf of that Party or are affiliated
with a law firm which has appeared on behalf of that Party.
2.10

Party: any party to this action, including all of its officers, directors, employees,

consultants, retained experts, and Outside Counsel of Record (and their support staffs).
2.11

Producing Party: a Party or Non-Party that produces Disclosure or Discovery

Material in this action.
2.12

Professional Vendors: persons or entities that provide litigation support services

(e.g., photocopying, videotaping, translating, preparing exhibits or demonstrations, and
organizing, storing, or retrieving data in any form or medium) and their employees and
subcontractors.
2.13

Protected Material: any Disclosure or Discovery Material that is designated as

“CONFIDENTIAL.”
2.14

Receiving Party: a Party that receives Disclosure or Discovery Material from a

Producing Party.
3.

SCOPE
The protections conferred by this Stipulation and Order cover not only Protected Material

(as defined above), but also (1) any information copied or extracted from Protected Material; (2)
all copies, excerpts, summaries, or compilations of Protected Material; and (3) any testimony,
conversations, or presentations by Parties or their Counsel that might reveal Protected Material.
However, the protections conferred by this Stipulation and Order do not cover the following
information: (a) any information that is in the public domain at the time of disclosure to a

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Receiving Party or becomes part of the public domain after its disclosure to a Receiving Party as
a result of publication not involving a violation of this Order and (b) any information Receiving
Party can demonstrate was known to the Receiving Party prior to the disclosure or obtained by the
Receiving Party after the disclosure from a source who obtained the information lawfully and
under no obligation of confidentiality to the Designating Party. Any use of Protected Material at
trial shall be governed by a separate agreement or order.
4.

DURATION
Even after final disposition of this litigation, the confidentiality obligations imposed by this

Order shall remain in effect until a Designating Party agrees otherwise in writing or a court order
otherwise directs. Final disposition shall be deemed to be the later of (1) dismissal of all claims
and defenses in this action, with or without prejudice; and (2) final judgment herein after the
completion and exhaustion of all appeals, rehearings, remands, trials, or reviews of this action,
including the time limits for filing any motions or applications for extension of time pursuant to
applicable law.
5.

DESIGNATING PROTECTED MATERIAL
5.1

Exercise of Restraint and Care in Designating Material for Protection. Each Party

or Non-Party that designates information or items for protection under this Order must take
care to limit any such designation to specific material that qualifies under the appropriate
standards. The Designating Party must designate for protection only those parts of material,
documents, items, or oral or written communications that qualify and designate or make
clear, where appropriate, those portions of the material, documents, items, or
communications for which protection is not warranted.

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If it comes to a Designating Party’s attention that information or items that it
designated for protection do not qualify for protection, that Designating Party must
promptly notify all other parties that it is withdrawing the mistaken designation.
5.2

Manner and Timing of Designations. Except as otherwise provided in this Order

(see, e.g., second paragraph of section 5.2(a) below), or as otherwise stipulated or ordered,
Disclosure or Discovery Material that qualifies for protection under this Order must be
clearly so designated before the material is disclosed or produced.
Designation in conformity with this Order requires:
(a) for information in documentary form (e.g., paper or electronic documents, but
excluding transcripts of depositions or other pretrial or trial proceedings), that the
Producing Party affix the legend “CONFIDENTIAL” to each page that contains
protected material. If only a portion or portions of the material on a page qualifies
for protection, the Producing Party also must clearly identify the protected
portion(s) (e.g., by making appropriate markings in the margins).
A Party or Non-Party that makes original documents or materials available
for inspection need not designate them for protection until after the inspecting Party
has indicated which material it would like copied and produced. During the
inspection and before the designation, all of the material made available for
inspection shall be deemed “CONFIDENTIAL.” After the inspecting Party has
identified the documents it wants copied and produced, the Producing Party must
determine which documents, or portions thereof, qualify for protection under this
Order. Then, before producing the specified documents, the Producing Party must
affix the “CONFIDENTIAL” legend to each page that contains Protected Material.

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If only a portion or portions of the material on a page qualifies for protection, the
Producing Party also must clearly identify the protected portion(s) (e.g., by making
appropriate markings in the margins).
(b) for testimony given in deposition or in other pretrial or trial proceedings, that
the Designating Party identifies on the record, before the close of the deposition,
hearing, or other proceeding, all protected testimony within thirty (30) days of
receipt of any transcript with the testimony subject to protection.
(c) for information produced in some form other than documentary and for any
other tangible items, that the Producing Party affix in a prominent place on the
exterior of the container or containers in which the information or item is stored the
legend “CONFIDENTIAL.” If only a portion or portions of the information or item
warrant protection, the Producing Party, to the extent practicable, shall identify the
protected portion(s).
5.3

Inadvertent Failures to Designate. An inadvertent failure to designate qualified

information or items does not, standing alone, waive the Designating Party’s right to secure
protection under this Order for such material. In such instances, the Producing Party shall
provide written notice to the Receiving Party of its failure to designate information,
documents, material, or other sources of “CONFIDENTIAL” and designate such
information, documents, material, or other sources in accordance with Paragraph 5.2
above. Upon receipt of a correction of a designation, the Receiving Party must make
reasonable efforts to assure that the material is treated in accordance with the provisions of
this Order.
6.

CHALLENGING CONFIDENTIALITY DESIGNATIONS

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6.1

Timing of Challenges. Any Party or Non-Party may challenge a designation of

confidentiality at any time. Unless a prompt challenge to a Designating Party’s
confidentiality designation is necessary to avoid foreseeable, substantial unfairness,
unnecessary economic burdens, or a significant disruption or delay of the litigation, a Party
does not waive its right to challenge a confidentiality designation by electing not to
promptly challenge the designation.
6.2

Meet and Confer. The Challenging Party shall initiate the dispute resolution

process by providing written notice of each designation it is challenging and describing the
basis for each challenge. To avoid ambiguity as to whether a challenge has been made, the
written notice must recite that the challenge to confidentiality is being made in accordance
with this specific paragraph of the Protective Order. The Parties shall attempt to resolve
each challenge in good faith and must begin the process by directly conferring (in voice to
voice dialogue; other forms of communication are not sufficient) within 14 days of the date
of service of notice. In conferring, the Challenging Party must explain the basis for its
belief that the confidentiality designation was not proper and must give the Designating
Party an opportunity to review the designated material, to reconsider the circumstances,
and, if no change in designation is offered, to explain the basis for the chosen designation.
A Challenging Party may proceed to the next stage of the challenge process only if it has
engaged in this meet and confer process first or establishes that the Designating Party is
unwilling to participate in the meet and confer process in a timely manner.
6.3

Judicial Intervention. If the Parties cannot resolve a challenge without court

intervention, the Designating Party shall file and serve a motion to retain confidentiality
under Civil Local Rule 7.1 (and in compliance with Civil Local Rule 6.1, if applicable)

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within 21 days of the initial notice of challenge or within 14 days of the Parties agreeing
that the meet and confer process will not resolve their dispute, whichever is earlier. Each
such motion must be accompanied by a competent declaration affirming that the movant
has complied with the meet and confer requirements imposed in the preceding paragraph.
Failure by the Designating Party to make such a motion including the required declaration
within 21 days (or 14 days, if applicable) shall automatically waive the confidentiality
designation for each challenged designation. In addition, the Challenging Party may file a
motion challenging a confidentiality designation at any time if there is good cause for doing
so, including a challenge to the designation of a deposition transcript or any portions
thereof. Any motion brought pursuant to this provision must be accompanied by a
competent declaration affirming that the movant has complied with the meet and confer
requirements imposed by the preceding paragraph.
The burden of persuasion in any such challenge proceeding shall be on the
Designating Party. Frivolous challenges, and those made for an improper purpose (e.g., to
harass or impose unnecessary expenses and burdens on other parties) may expose the
Challenging Party to sanctions. Unless the Designating Party has waived the confidentiality
designation by failing to file a motion to retain confidentiality as described above, the
Parties shall continue to afford the material in question the level of protection to which it
is entitled under the Producing Party’s designation until the court rules on the challenge.
7.

ACCESS TO AND USE OF PROTECTED MATERIAL
7.1

Basic Principles. A Receiving Party may use Protected Material that is disclosed or

produced by another Party or by a Non-Party in connection with this case only for
prosecuting, defending, or attempting to settle this litigation. Such Protected Material may

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be disclosed only to the categories of persons and under the conditions described in this
Order. When the litigation has been terminated, a Receiving Party must comply with the
provisions of section 14 below (FINAL DISPOSITION).
Protected Material must be stored and maintained by a Receiving Party at a location
and in a secure manner that ensures that access is limited to the persons authorized under
this Order.
7.2

Disclosure of “CONFIDENTIAL” Information or Items. Unless otherwise ordered

by the court or permitted in writing by the Designating Party, a Receiving Party may
disclose any information or item designated “CONFIDENTIAL” only to:
(a) the Receiving Party’s Outside Counsel of Record in this action, as well as
employees of said Outside Counsel of Record to whom it is reasonably necessary
to disclose the information for this litigation;
(b) the officers, directors, and employees (including In-House Counsel) of the
Receiving Party to whom disclosure is reasonably necessary for this litigation and
who have signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A);
(c) Experts (as defined in this Order) of the Receiving Party to whom disclosure is
reasonably necessary for this litigation and who have signed the “Acknowledgment
and Agreement to Be Bound” (Exhibit A);
(d) the court and its personnel;
(e) court reporters and their staff, professional jury or trial consultants, mock jurors,
and Professional Vendors to whom disclosure is reasonably necessary for this
litigation and who have signed the “Acknowledgment and Agreement to Be Bound”
(Exhibit A);

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(f) during their depositions, witnesses in the action to whom disclosure is
reasonably necessary and who have signed the “Acknowledgment and Agreement
to Be Bound” (Exhibit A), unless otherwise agreed by the Designating Party or
ordered by the court. Pages of transcribed deposition testimony or exhibits to
depositions that reveal Protected Material must be separately bound by the court
reporter and may not be disclosed to anyone except as permitted under this
Stipulated Protective Order.
(g) the author or recipient of a document containing the information or a custodian
or other person who otherwise possessed or knew the information.
8.

PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED IN OTHER
LITIGATION
If a Party is served with a subpoena or a court order issued in other litigation that compels

disclosure of any information or items designated in this action as “CONFIDENTIAL,” that Party
must:
(a) promptly notify in writing the Designating Party. Such notification shall include a copy
of the subpoena or court order;
(b) promptly notify in writing the party who caused the subpoena or order to issue in the
other litigation that some or all of the material covered by the subpoena or order is subject
to this Protective Order. Such notification shall include a copy of this Stipulated Protective
Order; and
(c) cooperate with respect to all reasonable procedures sought to be pursued by the
Designating Party whose Protected Material may be affected.
If the Designating Party notifies the Party that it intends to seek a protective order, the Party
served with the subpoena or court order shall not produce any information designated in this action
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as “CONFIDENTIAL” before a determination by the court from which the subpoena or order
issued, unless the Party has obtained the Designating Party’s permission. The Designating Party
shall bear the burden and expense of seeking protection in that court of its confidential material—
and nothing in these provisions should be construed as authorizing or encouraging a Receiving
Party in this action to disobey a lawful directive from another court. If the Designating Party fails
to seek a protective order within sixty (60) days, the Party served with the subpoena may produce
the information designated in this action as “CONFIDENTIAL” unless the Designating Party
again notifies the Party of its intent to seek a protective order within that sixty (60) days period.
9.

A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE PRODUCED IN THIS
LITIGATION
(a) The terms of this Order are applicable to information produced by a Non-Party in this
action and designated as “CONFIDENTIAL.” Such information produced by Non-Parties
in connection with this litigation is protected by the remedies and relief provided by this
Order. Nothing in these provisions should be construed as prohibiting a Non-Party from
seeking additional protections.
(b) In the event that a Party is required, by a valid discovery request, to produce a NonParty’s confidential information in its possession, and the Party is subject to an agreement
with the Non-Party not to produce the Non-Party’s confidential information, then the Party
shall:
(1) promptly notify in writing the Requesting Party and the Non-Party that some or
all of the information requested is subject to a confidentiality agreement with a
Non-Party;

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(2) promptly provide the Non-Party with a copy of the Stipulated Protective Order
in this litigation, the relevant discovery request(s), and a reasonably specific
description of the information requested; and
(3) make the information requested available for inspection by the Non-Party.
(c) If the Non-Party fails to object or seek a protective order from this court within twentyone (21) days of receiving the notice and accompanying information, the Receiving Party
may produce the Non-Party’s confidential information responsive to the discovery request.
If the Non-Party timely seeks a protective order, the Receiving Party shall not produce any
information in its possession or control that is subject to the confidentiality agreement with
the Non-Party before a determination by the court. Absent a court order to the contrary,
the Non-Party shall bear the burden and expense of seeking protection in this court of its
Protected Material.
10.

UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL
If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed Protected

Material to any person or in any circumstance not authorized under this Stipulated Protective
Order, the Receiving Party must immediately: (a) notify in writing the Designating Party of the
unauthorized disclosures; (b) use its best efforts to retrieve all unauthorized copies of the Protected
Material; (c) inform the person or persons to whom unauthorized disclosures were made of all the
terms of this Order; and (d) request such person or persons to execute the “Acknowledgment and
Agreement to Be Bound” that is attached hereto as Exhibit A.
11.

INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE PROTECTED
MATERIAL
When a Producing Party gives notice to Receiving Parties that certain inadvertently

produced material is subject to a claim of privilege or other protection, the obligations of the
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Receiving Parties are those set forth in Federal Rule of Civil Procedure 26(b)(5)(B). This provision
is not intended to modify whatever procedure may be established in an e-discovery order that
provides for production without prior privilege review. Pursuant to Federal Rule of Evidence
502(d) and (e), insofar as the Parties reach an agreement on the effect of disclosure of a
communication or information covered by the attorney-client privilege or work product protection,
the Parties may incorporate their agreement in the stipulated protective order submitted to the
court.
12.

ENFORCEMENT
By signing below and becoming bound to this Stipulated Protective Order, the attorneys of

record for the Parties evidence their acceptance of the terms and conditions of this Stipulated
Protective Order and that the Party each attorney represents stipulates and agrees that acceptance
by their respective attorneys of record binds them to same. This Stipulated Protective Order shall
be enforceable, and any dispute relating to and/or arising out of same shall be brought only in the
District Court for the Western District of North Carolina. The prevailing party in any proceeding
to enforce this Stipulated Protective Order shall be entitled to recover attorneys’ fees.

13.

MISCELLANEOUS
13.1

Right to Further Relief. Nothing in this Order abridges the right of any person to

seek its modification by the court in the future.
13.2

Right to Assert Other Objections. By stipulating to the entry of this Protective

Order, no Party waives any right it otherwise would have to object to disclosing or
producing any information or item on any ground not addressed in this Stipulated

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Protective Order. Similarly, no Party waives any right to object on any ground to use in
evidence of any of the material covered by this Stipulated Protective Order.
13.3

Filing Protected Material. Without written permission from the Designating Party

or a court order secured after appropriate notice to all interested persons, a Party may not
file in the public record in this action any Protected Material. A Party that seeks to file
under seal any Protected Material must comply with Civil Local Rule 6.1. Protected
Material may only be filed under seal pursuant to a court order authorizing the sealing of
the specific Protected Material at issue. Pursuant to Civil Local Rule 6.1, a sealing order
will be issued only upon a request establishing that the Protected Material at issue is
privileged, protectable as a trade secret, or otherwise entitled to protection under the law.
14.

FINAL DISPOSITION
Within 60 days after the final disposition of this action, as defined in paragraph 4, each

Receiving Party must return all Protected Material to the Producing Party or destroy such material.
As used in this subdivision, “all Protected Material” includes all copies, abstracts, compilations,
summaries, and any other format reproducing or capturing any of the Protected Material. Whether
the Protected Material is returned or destroyed, the Receiving Party must submit a written
certification to the Producing Party (and, if not the same person or entity, to the Designating Party)
by the 60-day deadline that (1) identifies (by category, where appropriate) all the Protected
Material that was returned or destroyed and (2) affirms that the Receiving Party has not retained
any copies, abstracts, compilations, summaries or any other format reproducing or capturing any
of the Protected Material. Notwithstanding this provision, Counsel are entitled to retain an archival
copy of all pleadings, motion papers, trial, deposition, and hearing transcripts, legal memoranda,
correspondence, deposition and trial exhibits, expert reports, attorney work product, and consultant

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and expert work product, even if such materials contain Protected Material. Any such archival
copies that contain or constitute Protected Material remain subject to this Protective Order as set
forth in Section 4 (DURATION).
IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD.

DATED: August 5, 2016

/S/ Richard W. Farrell
Richard W. Farrell, Esq.
North Carolina Bar No. 16518
4900 Falls of the Neuse Road
Suite 212
The Farrell Law Group, P.C.
Raleigh, North Carolina 27609
Attorney for Plaintiff/Counter-Defendant Haidar H. Hamoud

[SIGNATURE BLOCKS ON FOLLOW PAGE]

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DATED: August 5, 2016

/s/ David Tkach
David L. Tkach, Esq.
North Carolina Bar No. 34252
[e-mail]
David L. Tkach, PLLC
2020 South Tryon Street, Suite 2A
Charlotte, North Carolina 28203
and
Dennis D. Leone, Esq.
Florida Bar No. 069401 (Admitted Pro Hac Vice)
[e-mail]
Shankman Leone, PA
707 North Franklin Street, 5th Floor
Tampa, Florida 33602
Attorneys for Defendant/Counter-Plaintiff Maaco Franchising, LLC

PURSUANT TO STIPULATION, IT IS SO ORDERED.

Signed: September 29, 2016

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EXHIBIT A
ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND
I, _______________ [print or type full name], of ______________________________________
[print or type full address], declare under penalty of perjury that I have read in its entirety and
understand the Stipulated Protective Order that was issued by the United States District Court for
the Western District of North Carolina on __________ [date] in the case of Haidar H. Hamoud v.
Maaco Franchising, LLC, Docket No. 3:15-cv-00513. I agree to comply with and to be bound by
all the terms of this Stipulated Protective Order and I understand and acknowledge that failure to
so comply could expose me to sanctions and punishment in the nature of contempt. I solemnly
promise that I will not disclose in any manner any information or item that is subject to this
Stipulated Protective Order to any person or entity except in strict compliance with the provisions
of this Order.
I further agree to submit to the jurisdiction of the United States District Court for the Western
District of North Carolina for the purpose of enforcing the terms of this Stipulated Protective
Order, even if such enforcement proceedings occur after termination of this action.
I hereby appoint __________________________ [print or type full name] of
_______________________________________ [print or type full address and telephone number]
as my North Carolina agent for service of process in connection with this action or any proceedings
related to enforcement of this Stipulated Protective Order.
Date: ______________________________________

City and State where sworn and signed: _________________________________

Printed name: _______________________________

Signature: __________________________________

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