Williams v. Home Depot U.S.A., Inc. et al

Filing 11

CONSENT PROTECTIVE ORDER. Signed by Magistrate Judge David S. Cayer on 5/4/16. (mga)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
FILE NO. 3:16-cv-0034
WENDY WILLIAMS,
Plaintiff,
v.
HOME DEPOT U.S.A., INC.
and KIMCO REALTY CORPORATION,
Defendants.

)
)
)
)
)
)
)
)
)

CONSENT PROTECTIVE
ORDER

THIS MATTER comes before the Court on the request for entry of a Protective
Order by Home Depot U.S.A., Inc. in order to prevent competitive harm to Home Depot
U.S.A., Inc. arising from compliance with its duties in this case, and to protect Home Depot
U.S.A., Inc.’s. corporate privacy.
WHEREAS the discovery sought by the parties in the above-styled case is likely
to involve production of documents and things containing business, competitive,
proprietary, trade secret or other information of a sensitive nature about the party (or of
another person which information the party is under a duty to maintain in confidence),
hereafter referred to as “Confidential Information,” and witness testimony containing
Confidential Information.
AND IT APPEARING TO THE COURT that this Protective Order (“the Order”) shall
govern the production of documents and testimony that contains Confidential Information,
and for good cause shown, the Court hereby ORDERS as follows:

Designation of Confidential Information
1.

Designation of Material. Documents and other things claimed to be or to

contain Confidential Information shall, prior to production, be marked by the producing
party as “Confidential.” The producing party must have a good faith basis that the
documents are or contain confidential material before designating them as such.
Placement of the “Confidential” designation on each protected page or on the initial page
of a protected document when it is produced shall constitute notice and shall designate
the document as Confidential material. Copies, extracts, summaries, notes, and other
derivatives of Confidential material also shall be deemed Confidential material and shall
be subject to the provisions of this Order.
2.

Subsequent Designation. Documents and/or materials produced in the

litigation that are not identified as Confidential Information when they were initially
produced may within a reasonable time thereafter be designated as Confidential by the
producing party, or by the party or parties receiving the production, or by a person, by
providing written notice to counsel for all other parties and to any person who may be
involved. Each party or person who receives such written notice shall endeavor to retrieve
any Confidential Information that may have been disseminated, shall affix a “Confidential”
designation to it, and shall thereafter distribute it only as allowed by this Order. No
distribution prior to the receipt of such written notice shall be deemed a violation of this
Order.
3.

Designation of Depositions. Depositions or portions thereof upon oral or

written questions may be classified as Confidential Information either by an examining

party's attorney or by an attorney defending or attending the deposition. A party claiming
that a deposition or any portion thereof is Confidential Information shall give notice of
such claim to the other affected parties and persons either prior to or during the
deposition, or within thirty (30) days after receipt of the deposition transcript, and the
testimony taken and the transcript of such deposition or portion thereof shall be
designated as Confidential.
4.

Modification of Designation. The designation of Confidential Information by

the producing party shall not be determinative and may be modified or eliminated at any
time in one of two ways, as explained below.
(a)

The producing party may agree in writing to downgrade or eliminate the
Confidential designation concerning any material it produced.

(b)

If the parties cannot agree as to the designation of any particular
information or material after good faith discussion, the receiving party
may move the Court to downgrade or eliminate the “Confidential”
designation.

The burden of proving that the information has been

properly designated as protected shall be on the party who made the
original designation.
Access to Confidential Information
5.

General Access. Except as otherwise expressly provided herein or ordered

by the Court, Confidential Information may be revealed only as follows:
(a)

To outside counsel for a party hereto (and secretaries, paralegals, and
other staff employed in the offices of such outside counsel who are
working on the litigation), provided that outside counsel who are not of

record must first sign and deliver to counsel of record for each other
party or parties a letter in the form of Exhibit A hereto.
(b)

To the parties after they have been given a copy of this Confidentiality
Stipulation by their outside counsel and have signed a letter in the form
of Exhibit A attached hereto.

(c)

To court reporters transcribing a deposition, hearing, or other
proceeding in this matter who sign Exhibit A attached hereto (excluding
court-appointed court reporters).

(d)

To independent experts and independent consultants (meaning a
person who is not an employee, officer, director, or owner in any
capacity of a party and who is retained by a party or a party’s outside
counsel in good faith for the purpose of assisting in this litigation) who
sign Exhibit A attached hereto.
Nothing herein shall prevent the producing party from showing the

documents or information to a party or an employee of that party.
6.

No Copies/Notes. Except for internal use by outside counsel for the parties

hereto, for Court and deposition copies, and for such use as is expressly permitted under
the terms hereof, no person granted access to Confidential Information shall make copies,
reproductions, transcripts, or facsimiles of the same or any portion thereof or shall take
notes or otherwise summarize the contents of such Confidential Information.
7.

Disputes over Access. If a dispute arises as to whether a particular person

should be granted access to Confidential Information, the party seeking disclosure may

move the Court to permit the disclosure and must obtain an order of the Court before
disclosing the information.
Use of Confidential Information
8.

Use in this Litigation Only. Confidential Information may be used only for

purposes of this litigation. Each person to whom the disclosure of any Confidential
Information is made shall not, directly or indirectly, use, disclose, or disseminate, or
attempt to use, disclose, or disseminate, any of the same except as expressly provided
herein.
9.

Use at Depositions.

If Confidential Information is to be discussed or

disclosed during a deposition, the producing party shall have the right to exclude from
attendance at the deposition, during the time the Confidential Information is to be
discussed, any person not entitled under this Order to receive the Confidential
Information.
10.

Use at Court Hearings and Trial. Subject to the Federal Rules of Civil

Procedure and the Federal Rules of Evidence, Confidential Information may be offered
into evidence at trial or at any hearing or oral argument, provided that the proponent of
the evidence containing Confidential Information gives reasonable advance notice to the
Court and counsel for the producing or designating party. Any party may move the Court
for an order that the evidence be received in camera or under other conditions to prevent
unnecessary disclosure. If presented at trial, the status of evidence as Confidential
Information shall not be disclosed to the finder of fact.

11.

Reasonable Precautions. Counsel for each party shall take all reasonable

precautions to prevent unauthorized or inadvertent disclosure of any Confidential
Information.
12.

Return After Litigation. Within thirty (30) days of the final termination of this

litigation by judgment, appeal, settlement, or otherwise, or sooner if so ordered by the
Court, counsel for each party shall return to counsel for the party who furnished the same
all items constituting, containing, or reflecting the other party's Confidential Information.
Other Provisions
13.

Not an Admission. Nothing in this Order shall constitute an admission by

the party that information designated as Confidential is actually Confidential Information.
Furthermore, nothing contained herein shall preclude the parties or a person from raising
any available objection, or seeking any available protection with respect to any
Confidential Information, including but not limited to the grounds of admissibility of
evidence, materiality, trial preparation materials and privilege.
14.

Miscellaneous. This Order shall apply to the production of all materials

whether or not such materials are informally produced or produced in response to a formal
discovery request or a Court order in this litigation. This Order may be used to protect
the confidentiality of the residential addresses and social security numbers of the parties
and of any and all current or former employees of either of the parties or their affiliates.
SO ORDERED.
Signed: May 4, 2016

THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
FILE NO. 3:16-cv-0034
WENDY WILLIAMS,
Plaintiff,
v.
HOME DEPOT U.S.A., INC.
and KIMCO REALTY CORPORATION,
Defendants.

My

name

is

)
)
)
)
)
)
)
)
)

APPENDIX A
AGREEMENT PURSUANT TO
AGREED PROTECTIVE ORDER

:
_________________________

and

my

address

is

______________________________________________. I hereby acknowledge that I
have received and read a copy of the Agreed Protective Order Governing Confidential
Material and Information entered by the Court in the above-captioned matter on
____________, 2016. I understand the terms of the Court’s Order and consent to being
provided access to the Confidential Documents and Confidential Discovery Material
furnished to me by _____________________. Further, by executing this Agreement, I
hereby consent to the jurisdiction of the above-captioned Court for the special and limited
purpose of enforcing the terms of the Court’s Protective Order. I will not disclose the
confidential information provided to me to any person who is not authorized to receive,
disclose or use the confidential information pursuant to the Protective Order, and I will not
retain photocopies or otherwise retain duplicates of any of the confidential information,
nor will I disclose or use the confidential information contained therein, for any purpose
other than this litigation.

I further acknowledge that I will not discuss such confidential information with any
person other than those persons who are authorized by the Agreed Protective Order to
have access to the confidential information.
I recognize that any breach of this Agreement or use of the confidential information
contrary to the provisions of the Agreed Protective Order shall subject me to sanctions
for contempt and/or subject me to civil liability. All civil remedies for breach of this
Agreement are specifically reserved by the parties and their employees, individually, and
are not waived by the disclosure provided for herein. Further, in the event of breach of
this Agreement, I recognize that either or both parties or their employees, individually or
jointly, may pursue all civil remedies available as a third party beneficiary of this
Agreement. I further agree that upon conclusion of this case, I will return all confidential
information to ________________________, who is the attorney from whom I received
the information. I further agree that, to the extent that I am acting as an employee or
agent of an employer, I am authorized to bind my employer to this agreement and have
done so by signing below and writing the “Firm Name” of my employer in the space
provided.
__________________________________________
Signature
_________________________________________
Name (please print)
__________________________________________
Firm/Company Name (please print)
_________________________________________
Address
__________________________________________
City, State Zip Code
__________________________________________
Area Code and Telephone Number
___________________________________________
Date