Osborne v. Cutting Edge Pizza, LLC et al

Filing 21

PROTECTIVE ORDER. Signed by Magistrate Judge David Keesler on 7/25/16. (mga)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
CIVIL ACTION NO. 3:15-CV-617-FDW-DCK
TARA OSBORNE,
Plaintiff,
v.
CUTTING EDGE PIZZA, LLC, d/b/a
LITTLE CAESARS; LITTLE CAESAR
ENTERPRISES, INC. d/b/a LITTLE
CAESARS; ANDRE PAIGE; and PHILLIP
NORRIS,
Defendants.

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CONSENT CONFIDENTIALITY AND PROTECTIVE ORDER
Pursuant to Fed.R.Civ.P. 26(c) and Connecticut General Statute § 31-128(f), and in order
to protect the parties from disclosure of proprietary or confidential information, the undersigned
hereby stipulate and agree to this Consent Confidentiality and Protective Order (the “Stipulation”)
and agree that a protective order may be entered, as set forth herein.
In the course of this action, Plaintiff may request production of documents and information
contained in personnel records concerning current and/or former employees of Defendant or
Defendant may use such documents and information in its defense. Portions of such documents
and information are protected from disclosure under Connecticut General Statute § 31-128(f)
absent a lawfully issued judicial order or subpoena. The parties have an interest in limiting
disclosure of the records and information for any purposes other than the litigation process of this
case. The parties shall be obligated to designate only documents or information which they believe
in good faith to be information within the scope of Rule 26(c) of the Federal Rules of Civil

Procedure. Moreover, the parties shall be obligated to make specific designations to the extent
reasonably possible and to avoid overbroad designations.
IT IS HEREBY ORDERED that:
1.

Documents produced and testimony given in this case shall be used solely for

purposes of the preparation and trial of this litigation, mediation and any related appellate
proceeding and for no other purpose.
2.

This Stipulation applies to the parties to this action and to any non-parties who

provide documents and/or information to any party voluntarily or pursuant to a formal demand or
request for discovery in this action.
Each party may segregate and identify documents and things produced by it, and
answers to interrogatories and responses to other discovery demands as "Confidential" to the extent
that such party believes such documents, things, answers and responses contain confidential
information, including, but not limited to, trade secrets, confidential or proprietary business plans,
forecasts or data; confidential or proprietary financial plans, forecasts or data; confidential or
proprietary operational plans, forecasts or data; or sensitive commercial, financial, customer, or
personal information; or if it is of a type deemed privileged or confidential by any state or federal
statute or regulation. Documents that are protected from disclosure under Conn. Gen. Stat. § 31128(f) may be produced pursuant to this Stipulation for Protective Order. All such documents
shall be designated as “Confidential.”
3.

Material deemed or designated "Confidential" and any material obtained or derived

therefrom (collectively, "Confidential Information") shall be inspected or used solely by:
(a)

counsel for the parties to this litigation and persons in their employ who are

assisting in the conduct of this litigation, including outside contractors;

(b)

the parties to this litigation and the officers, directors, partners, principals

and employees, whether past, present, or future, of such parties who are involved in the preparation
of this action (collectively, "Party Representatives");
(c)

experts retained to testify at trial, or consultants retained or engaged by a

party in preparation for trial (collectively, "Consultants"), each of whom has signed an undertaking
in the form of Exhibit A, as provided in paragraph 5 below;
(d)

persons who prepared or who have previously received particular

documents, provided that the inspection or use of Confidential Information by such persons is
limited only to those documents prepared or previously received;
(e)

insurers that provide or are requested to provide coverage for the claims

asserted in this case, and their counsel;
(f)

judicial officers and personnel (including stenographic reporters); and

(g)

any other person who the parties jointly authorize to see Confidential

Information, provided that each such person shall sign an undertaking in the form of Exhibit A, as
provided in paragraph 5 below.
4.

Prior to receipt of any Confidential Information, an expert, consultant or other

authorized person shall sign an undertaking in the form of Exhibit A, which shall be retained by
counsel for the party employing, or otherwise affiliated with, said expert, consultant or other
authorized person for a period of five years after the conclusion of this litigation. Counsel
receiving such a signed undertaking shall provide a copy thereof to all other counsel of record in
this case.

Confidential Information may be disclosed to an expert, consultant or Party

Representative for the sole purpose of assisting counsel in the preparation of this case for trial and

to an expert’s, consultant's or Party Representative's supporting and clerical personnel required to
carry out functions assigned to them by any such consultant.
5.

Confidential Information shall be designated as follows:
(a)

In the case of documents copied and produced, each page shall be Bates-

stamped and designation shall be made by placing the legend “CONFIDENTIAL” on each page
of any such document prior to production, except that, with respect to any documents produced in
this proceeding by either party to the other prior to the execution of this Stipulation, designation
shall be made in writing addressed to counsel for the receiving party and identifying with
particularity the document(s) the producing party has designated as Confidential Information.
Documents may be produced for inspection and designated as “CONFIDENTIAL” without
placing a legend on the document. If copying is requested of documents so designated, the copies
shall bear the legend as set forth above.
(b)

In the case of documents produced by non-parties pursuant to subpoena, a

party wishing to designate such material as “Confidential” shall so notify counsel for all other
parties, in writing, prior to the time specified in the subpoena for compliance. If the party wishing
to designate such material as “Confidential” is the party who served the subpoena, then counsel
for that party shall make such designation in the manner described in paragraph 6(a) above
promptly upon receipt of the subpoenaed material, and shall thereafter promptly provide counsel
for all other parties with copies of the subpoenaed material (including the material designated as
“Confidential”). Counsel for any other party wishing to designate such material as “Confidential”
shall be allowed to examine the subpoenaed material promptly upon receipt by counsel for the
subpoenaing party, and shall be allowed to designate any such material as “Confidential” in the
manner described in paragraph 6(a) above prior to the release of the subpoenaed material to any

person or party. Upon such designation, counsel for the subpoenaing party shall thereafter
promptly provide counsel for all other parties with copies of the subpoenaed material (including
that material designated as “Confidential”).
(c)

In the case of other Confidential Information, designation shall be made in

a writing addressed to counsel for the receiving party and identifying with particularity the other
Confidential Information, or portion thereof, that constitutes Confidential Information pursuant to
the provisions of this Stipulation.
6.

Counsel for any party or non-party may designate a deposition as "Confidential":
(a)

at the deposition by making a statement of designation in the deposition, or

(b)

within twenty (20) business days after receipt of a transcript of such

testimony by faxing to counsel for each party a written list, by page and line, of the specific
portions to which confidential status is claimed. All deposition testimony shall be treated as
confidential until the expiration of twenty (20) business days after receipt of the transcript by
counsel, regardless of whether a statement of designation of confidentiality has been made in the
deposition.
7.

Any party may subsequently challenge the designation of materials as confidential

by seeking review of the Court at any time during the pendency, trial, or appeal of this action. The
burden of proof in any such motion shall be on the producing party to justify the appropriateness
of the designation of "Confidential.” Material deemed or designated "Confidential" shall maintain
that designation for all purposes unless and until the Court rules to the contrary and for ten (10)
business days thereafter.
8.

Confidential Information shall not be made public. If a party intends to submit or

file with the Court any transcripts, depositions, exhibits, briefs, memoranda, affidavits, answers to

interrogatories, or any other documents or pleadings in connection with this action which contain
Confidential Information, that party shall file such motion and materials under seal in accordance
with Local Rule 6.1, referencing the protective order entered by the Court pursuant to this
Stipulation.
9.

If a Party Representative, expert or consultant in possession of Confidential

Information receives a subpoena from a non-party to this Stipulation for Protective Order seeking
production or other disclosure of Confidential Information, telephonic and written notice shall
immediately be given to counsel for the party or non-party who produced the confidential
materials, identifying the Confidential Information being sought, and arranging for transmission
of a copy of the subpoena. Where possible, at least ten (10) business days’ notice before
production or other disclosure shall be given. In no event, absent court order, shall production or
disclosure be made before notice is given. A party subpoenaed shall take all appropriate measures
timely to advise any relevant tribunal of the terms of this Stipulation for Protective Order.
10.

No copy of any transcript of any deposition taken by any party shall be prepared or

furnished by the court reporter to any person other than counsel for the parties and the deponent
and his counsel.
11.

This Stipulation for Protective Order shall not prevent any party or non-party from

applying to the Court for further or other protective orders or for modifications of this Stipulation
for Protective Order, or from agreeing to modifications to this Stipulation for Protective Order.
Any such agreed-to modifications shall be in writing, and signed by counsel on behalf of the
parties, and by any interested non-party.
12.

Within sixty (60) days of the final termination of this lawsuit, including all appeals,

all persons subject to this Stipulation for Protective Order shall destroy all confidential documents

and all copies thereof, or return them to the producing party or non-party. A party's outside counsel
may keep and not destroy documents incorporating or referring to Confidential Information which
are inextricably intermingled with the work product of that party's counsel. The Confidential
Information intermingled with or referred to in such documents, however, shall remain subject to
the terms of this Stipulation for Protective Order.
13.

Nothing herein shall restrict the right of a party or non-party producing Confidential

Material to make use of such material as it deems appropriate. Nothing herein shall bar a party
from the unrestricted use of any document obtained from public sources or available through
public sources, or which that party lawfully possessed and was free to use without restriction before
such information was provided to it in this action. The treatment of any document as confidential
or as containing Confidential Information is intended solely to facilitate preparation for trial and
shall not be construed as an admission that the document contains any trade secret or Confidential
Information.
14.

Nothing herein shall constitute
(a)

an agreement to produce any documents or supply any information or

testimony in discovery not otherwise agreed upon or required by court order;
(b)

a waiver of any right to object to any discovery request in this or any other

action except that, so long as this Stipulation is in effect, the parties may not object to a discovery
request in this action on the grounds that such request seeks the production of sensitive or
confidential business or personal information; or
(c)

a waiver of any claim of immunity or privilege with regard to any testimony,

documents or information.

15.

Any document not designated as Confidential Information shall not be subject to

this Agreement provided, however, that inadvertent production of any document without
designating such document as Confidential Information shall not itself be deemed a waiver of the
producing party's claim of confidentiality as to such document, and the producing party may within
thirty (30) days after discovery of the inadvertent production designate the same as Confidential
Information. Disclosure by any party of such matter prior to notice by the producing party of the
confidential nature thereof shall not be deemed a violation of this Agreement.
16.

The ultimate disposition of Confidential Information will be subject to a final Order

of the Court, upon completion of this litigation.
17.

This Stipulation shall survive the termination of this litigation.

18.

This Stipulation may be executed by each party separately.

This 18th day of July, 2016.
STIPULATED AND AGREED TO BY THEIR ATTORNEYS:

s/ Jennifer D. Spyker
N.C.Bar No: 46048
Hunter Everage
1800 Camden Road, Suite 104
Charlotte, North Carolina 28203
Telephone: [phone]
Facsimile: [phone]
[e-mail]
Attorney for Plaintiff

s/ Kyle R. Still
N.C. Bar No. 37073
Wyrick Robbins Yates & Ponton, LLP
4101 Lake Boone Trail, Suite 300
Raleigh, North Carolina 27607
Telephone: [phone]
Facsimile: [phone]
[e-mail]

s/ Mary E.R. Bartholic
Cohn Birnbaum & Shea P.C.
100 Pearl Street
Hartford, Connecticut 06103
Telephone: [phone]
Facsimile: (860) 727-036l
[e-mail]
Attorneys for Defendants

SO ORDERED.

Signed: July 25, 2016

EXHIBIT A
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
CIVIL ACTION NO. 3:15-cv-617-FDW-DSC

TARA OSBORNE
Plaintiff
vs.
CUTTING EDGE PIZZA, LLC, et al.
Defendants

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DECLARATION OF ___________________________
I, _______________________, being duly sworn, state that:
1.

My address is _____________________________.

2.

I received a copy of the attached Consent Confidentiality and Protective Order in

this case on ________________________________.
3.

I have read carefully and understand the provisions of the Consent Confidentiality

and Protective Order and have had an opportunity to discuss it with counsel. I will comply with
all provisions of the Consent Confidentiality and Protective Order.
4.

I will use documents produced and testimony given in this case solely for purposes

of preparation and trial of this litigation and any related appellate proceeding and no other purpose.
5.

I will hold in confidence and not disclose to anyone not qualified under the Consent

Confidentiality and Protective Order any material deemed or designated “Confidential” as those
terms are defined in the Consent Confidentiality and Protective Order. I shall further assure that

any and all of my supporting and clerical personnel comply with the provisions of the Consent
Confidentiality and Protective Order and with the obligations as agreed to by me in this
undertaking. I understand that violation of the Consent Confidentiality and Protective Order may
subject me to punishment for contempt of Court.
6.

I undertake that I will not refer to or rely on any Confidential Information in any

future engagement, employment, or other circumstances without the express written consent of the
party of non-party which made the designation.
7.

Within sixty (60) days of the termination of this litigation, I will return all

confidential material and all copies thereof which come into my possession, and documents or
things which I have prepared relating thereto, to counsel for the party by whom I am employed or
retained.
Pursuant to 28 U.S.C. §1746, I declare under penalty of perjury under the laws of the State
of North Carolina that the foregoing is true and correct, except for those matters stated upon
information and belief and, as to those, I believe them to be true.
Signed at _________________________________________________, Charlotte, North
Carolina on ___________________, 201_.

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Signature of Declarant

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Print or Type Name of Declarant