Controls Southeast, Inc. v. QMax Industries, Inc. et al
Filing
34
STIPULATED PROTECTIVE ORDER. Signed by Magistrate Judge David S. Cayer on 1/19/17. (mga)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
CONTROLS SOUTHEAST, INC.,
Plaintiff and
Counterclaim Defendant,
v.
QMAX INDUSTRIES, INC.,
THOMAS W. PERRY,
PETER E. KOBYLARZ, JR. and
HENRY P. GAINES, JR.
Defendants and
Counterclaim Plaintiffs
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: No. 3:16-cv-00230-FDW-DSC
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STIPULATED PROTECTIVE ORDER
1.
Counsel for any party may designate any document or information contained in a
document as confidential if counsel determines, in good faith, that such designation is necessary to
protect the interests of the client. Information and documents designated by a party as confidential will
be labeled "CONFIDENTIAL - PRODUCED PURSUANT TO PROTECTIVE ORDER."
"Confidential" information or documents may be referred to collectively as "confidential information."
2.
Unless otherwise ordered by the Court, or otherwise provided for herein, the
confidential information disclosed will be held and used by the person receiving such information
solely for use in connection with the above-captioned action.
3.
In the event a party challenges another party's confidential designation, counsel shall
make a good faith effort to resolve the dispute, and in the absence of a resolution, the challenging party
may thereafter seek resolution by the Court. Nothing in this Protective Order constitutes an admission
by any party that confidential information disclosed in this case is relevant or admissible.
Each party specifically reserves the right to object to the use or admissibility of all confidential
information disclosed, in accordance with applicable law.
4.
Information or documents designated as "Confidential" shall not be disclosed to any
person, except:
a.
The requesting party and counsel;
b.
Employees of such counsel assigned to and necessary to assist in the litigation;
c.
Consultants or experts to the extent deemed necessary by counsel;
d.
Any person from whom testimony is taken or is to be taken, except that such a
person may only be shown confidential information during and in preparation
for his/her testimony and may not retain the confidential information; and
e.
5.
The Court or the jury at trial or as exhibits to motions.
Prior to disclosing or displaying the confidential information to any person, counsel
shall:
a.
Inform the person of the confidential nature of the information or documents;
and
b.
Inform the person that this Court has enjoined the use of the information or
documents by him/her for any purpose other than this litigation and has
enjoined the disclosure of that information or documents to any other person.
6.
The confidential information may be displayed to and discussed with the persons
identified in Paragraph 4(c) and (d) only on the condition that prior to any such display or discussion,
each such person shall be asked to sign an agreement to be bound by this Order in the form attached as
Exhibit A. In the event such person refuses to sign an agreement in the form attached as Exhibit A, the
party desiring to disclose the confidential information may seek appropriate relief from this Court.
7.
“Highly Confidential/Trade Secret Information.” “Highly Confidential/Trade
Secret Information,” which shall be designated as “HIGHLY CONFIDENTIAL/TRADE
SECRET INFORMATION – OUTSIDE ATTORNEY’S EYES ONLY,” includes all information
deemed by the producing party to describe commercially sensitive information (e.g., customer
and/or supplier lists, sales and profit information, sales projections, strategies, industry analysis),
and/or the trade secret(s) of that party.
a.
Use Limitations. All Highly Confidential/Trade Secret Information
produced in the course of this discovery proceeding herein shall be used only for the purpose of
preparing for and conducting this action (including appeals) and not for any business, patent
prosecution (except in proceedings on the asserted patents), competitive, research, development,
or other purpose whatsoever.
i. To the extent that portions of Highly Confidential Trade Secret
Information are quoted in a document, either (i) the entire document will be stamped “HIGHLY
CONFIDENTIAL/TRADE SECRET INFORMATION – OUTSIDE ATTORNEY’S EYES
ONLY” or (ii) those pages containing the quoted Highly Confidential Information will be
separately bound, and stamped as “HIGHLY CONFIDENTIAL/TRADE SECRET
INFORMATION – OUTSIDE ATTORNEY’S EYES ONLY.” All Highly Confidential/Trade
Secret Information shall be filed under seal.
b.
Limitations on Disclosure of Highly Confidential/Trade Secret
Information. Highly Confidential Trade Secret Information shall not be given, shown or made
available or communicated in any way to anyone except persons enumerated below who have
read and are bound by the terms of this Protective Order, and to whom it is necessary that such
Highly Confidential/Trade Secret Information be given or shown for the purposes permitted
under this paragraph. Each such person shall be asked to sign an agreement to be bound by this
Order in the form attached as Exhibit A. In the event such person refuses to sign an agreement in
the form attached as Exhibit A, the party desiring to disclose the confidential information may
seek appropriate relief from this Court.
c.
Persons to Whom Highly Confidential/Trade Secret Information May be
Disclosed. Except as otherwise provided by this Protective Order, information designated as
“HIGHLY CONFIDENTIAL/TRADE SECRET INFORMATION – OUTSIDE ATTORNEY’S
EYES ONLY” shall be disclosed only to:
i.
Outside counsel of the requesting party;
ii.
Consultants or experts (and their employees or assistants) to the
extent deemed necessary by counsel;
iii.
Employees of such counsel assigned to and necessary to assist in the
litigation;
iv.
Any person from whom testimony is taken or is to be taken, except
that such a person may only be shown confidential information
during and in preparation for his/her testimony and may not retain
the confidential information; and
v.
d.
The Court or the jury at trial or as exhibits to motions.
A party desiring to disclose Highly Confidential/Trade Secret Information
to an independent expert or independent consultant shall maintain a log identifying the Bates
ranges of the Highly Confidential/Trade Secret Information so disclosed and the date of
disclosure. This log shall be made available upon request to the party which produced the Highly
Confidential/Trade Secret Information following the conclusion of the litigation.
e.
Deponents. Deposition transcripts containing Highly Confidential/Trade
Secret Information of another party may be shown to the deponent at whose deposition the
deponent had been shown the particular Highly Confidential/Trade Secret Information of another
party for the purpose of correction or preparation of other testimony by the deponent, but the
deponent may not retain a copy of the transcript.
f.
Any inadvertent disclosure of unmarked Confidential Information or Highly
Confidential/Trade Secret Information shall not preclude the disclosing party from later claiming
a right to confidentiality with respect to, or trade secret rights in, the inadvertently disclosed and
subsequently designated Confidential Information or Highly Confidential/Trade Secret
Information.
g.
The inadvertent failure by the disclosing party to identify specific
information as Highly Confidential/Trade Secret Information shall not act as an admission that the
information is not trade secret information, nor serve as a waiver to assert protection of that
information as trade secret information or reclassify that information as Highly Confidential/Trade
Secret Information.
8.
For the purpose of Paragraphs 4(d) and (e) it is understood by the parties that any
documents which become part of an official judicial proceeding or which are filed with the Court
are public documents, and that such documents can and will be sealed by the Court only upon
motion and in accordance with applicable law. This Protective Order does not provide for the
automatic sealing of such documents.
9.
At the conclusion of litigation, the confidential information and Highly
Confidential/Trade Secret Information and any copies thereof shall be promptly (and in no event
later than thirty (30) days after entry of a final judgment no longer subject to further appeal)
returned to the producing party or certified as destroyed.
10.
The foregoing is entirely without prejudice to the right of any party to apply to the
Court for any further Protective Order relating to confidential information; or to object to the
production of documents or information; or to apply to the Court for an order compelling
production of documents or information; or for modification of this Order.
SO ORDERED.
Signed: January 19, 2017
/s/ Benjamin E. Leace
Benjamin E. Leace (pro hac vice)
Christpher H. Blaszkowski (pro hac vice)
RatherPrestia
2200 Renaissance Blvd., Suite 350
King of Prussia, PA 19406
(610) 407-0700
beleace@ratnerprestia.com
chblaszkowski@ratnerprestia.com
/s/ Brian L. Church
Charles E. Johnson, N.C. Bar No. 9890
cejohnson@robinsonbrawdshaw.com
Brian L. Church, N.C. Bar No. 39581
bchurch@robinsonbradshaw.com
Robinson, Bradshaw & Hinson, P.A.
101 N. Tryon St., Suite 1900
Charlotte, North Carolina 28246
(704) 377-2536
J. Mark Wilson, N.C. State Bar No. 25763
MOORE & VAN ALLEN PLLC
100 North Tryon St., Suite 4700
Charlotte, North Carolina 28202
(704) 331-1000
markwilson@mvalaw.com
Gregory R. Everman, N.C. Bar No. 27554
EVERMAN LAW FIRM
6000 Fairview Rd. Suite 1200
Charlotte, North Carolina 28210
geverman@evermanlawfirm.com
Attorney for Plaintiff,
Controls Southeast, Inc.
Attorney for Defendants/Counterclaimant
Qmax Industries, LLC and Thomas W. Perry
EXHIBIT A
I have been informed by counsel that certain documents or information to be
disclosed to me in connection with the matter entitled Controls Southeast, Inc. v. QMax
Technologies, Inc. et al., No. 3:16-cv-00230-FDW-DSC, pending in the Western District
of North Carolina have been designated as confidential. I have been informed that any
such document or information labeled as "CONFIDENTIAL - PRODUCED
PURSUANT TO PROTECTIVE ORDER" or “HIGHLY CONFIDENTIAL/TRADE
SECRET INFORMATION – OUTSIDE ATTORNEY’S EYES ONLY” are confidential
by Order of the Court.
Under penalty of contempt of Court, I hereby agree that I will not disclose any
information contained in such documents to any other person, and I further agree not to
use any such information for any purpose other than this litigation.
DATED:
Signed in the presence of:
(Attorney)
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