Bates v. Tippmann Sports, LLC et al

Filing 39

CONSENT PROTECTIVE ORDER OF CONFIDENTIALITY. Signed by Senior Judge Graham Mullen on 7/20/2017. (eef)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
CASE NO. 3:16-CV-00875-GCM
HILDA BATES, as Administrator of the
Estate of Neman T. Bates,

Plaintiff,
v.
TIPPMANN SPORTS, LLC, and
DICKS SPORTING GOODS, INC., and
GAYSTON CORPORATION,
Defendants.
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Jury Trial Demanded

CONSENT PROTECTIVE ORDER OF CONFIDENTIALITY
AS THE ABOVE-CAPTIONED CIVIL ACTION is currently in discovery, and it
appearing that Plaintiff and Defendants, by and through counsel, believe that such discovery
shall, or will, involve the production of documents and information of a confidential and
proprietary nature, and it appearing that Plaintiffs and Defendants consent to the entry of this
Order, the Court hereby ORDERS as follows:
DEFINITIONS
1.

The following definitions shall apply to this Consent Protective Order of

Confidentiality (hereinafter, the “Order”):
(a)

The term “Confidential Information” as used in this Order shall

include all confidential information not generally known outside of the producing party,
including personal information of any type or manner or commercially sensitive information,
proprietary business information, and/or trade secrets. Confidential Information shall also

include documents that have been, or will be, produced in connection with the above-styled
action (during formal discovery or otherwise); information produced by non-parties which
the designating party or producing party is under an obligation to maintain in confidence;
responses to discovery requests, deposition, hearing or trial transcripts; and/or any tangible
things or objects.
(b)

The term “designating party” shall mean the party producing or

designating information as Confidential Information under this Order.
(c)

The term “receiving party” shall mean the party to whom Confidential

Information is produced under this Order.
DESIGNATION OF CONFIDENTIAL INFORMATION
2.

Each designating party who produces or discloses Confidential Information

shall designate it as such. When documents or things are produced for inspection and
production, the documents or things may be designated as “Confidential” or “Confidential:
Subject to Protective Order” by so stamping the first page of each such document; in such
event, the documents and things shall be treated as Confidential Information.
(a)

If Confidential Information is produced or disclosed in electronic

format, the designating party shall advise the receiving party that all or part of such
electronically stored information (“ESI”) includes Confidential Information.

If the

designating party cannot stamp such ESI as “Confidential” or “Confidential: Subject to
Protective Order,” the receiving party shall stamp the same when printing the ESI.
3.

All parties to the above-styled action recognize that during the course of this

litigation, Confidential Information that originated with or which is maintained by a thirdparty may be produced.

Such information may be designated as “Confidential” or

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“Confidential: Subject to Protective Order” in accordance with Paragraph 2 and, in such
event, shall be subject to the restrictions of this Order. If any Confidential Information is
produced by a third-party, such third-party shall be considered a “designating party” within
the meaning of this Order and Plaintiff and/or Defendants shall have the right to designate
such information as Confidential Information.
4.

Testimony about Confidential Information at a deposition, hearing, or trial

may be designated as “Confidential” by a statement to that effect on the record at the
deposition, hearing, or trial, or within 45 days of receiving the transcript. Unless otherwise
designated during the deposition or other pretrial testimony, transcripts shall be treated in
their entirety as “Confidential” for 45 days after receipt.
DISCLOSURE OF CONFIDENTIAL INFORMATION
5.

Confidential Information shall be disclosed only to the following persons:
(a)

The parties to the above-styled action, and their counsel and all

employees of such counsel (e.g. paralegals, legal assistants) who assist in the same;
(b)

Experts and consultants required to assist counsel for Plaintiff and/or

(c)

Witnesses and deponents, as well as their counsel, for use in

Defendants;

connection with either preparing to testify or testifying in the above-styled action;
(d)

Any mediator or arbitrator appointed by the Court or engaged by the

(e)

The Court, including its employees and staff; and

(f)

Court reporters and videographers in the above-styled matter.

Parties;

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6.

The inadvertent or in camera disclosure of Confidential Information shall not

be deemed a waiver, in whole or in part, of any party’s claim(s) of confidentiality. In the
event that any party to the above-styled action discovers that Confidential Information has
been inadvertently produced without being marked with the appropriate designation, that
party may notify the receiving party or parties and enclose with the notice an appropriately
stamped copy of the Confidential Information and require that the latter retrieve and return
and/or destroy any and all un-stamped copies of such material. Upon receipt of the
notification from the producing party, the receiving party or parties shall not disclose the
material to any person who is not specifically permitted to review Confidential Information
by the terms of this Order.
USE AND CONTROL OF CONFIDENTIAL INFORMATION
7.

All Confidential Information shall be used by its recipient solely for purposes

of this litigation and not for any other purpose whatsoever.
8.

Counsel for any party may make copies of the documents and other materials

produced for use pursuant to this Order; provided, however, the documents and copies
thereof may not be disseminated except as provided in this Order.
9.

All Confidential Information that is filed with the Court, and any pleadings,

motions or other papers referencing Confidential Information, shall be filed and kept under
seal until further order of the Court.
10.

No person entitled to use or access Confidential Information pursuant to this

Order shall distribute, sell, offer for sale, advertise, or publicize Confidential Information or
the fact that such persons have obtained Confidential Information. Nothing in this Paragraph
shall prohibit persons from referring to the existence of this Order.

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11.

Any person or party in possession of Confidential Information shall exercise

reasonably appropriate care with regard to the storage, custody, or use of such Confidential
Information in order to ensure the confidential nature is maintained.
12.

Nothing contained herein shall be construed to require a court reporter to

destroy any records in violation of his or her obligation by law and to maintain same for a
period of time or violate his or her Code of Professional Ethics and Guidelines for
Professional Practice as adopted by the Board of Court Reporting.
DURATION OF ORDER, OBJECTION, MODIFICATIONS
13.

This Order shall remain in full force and effect until modified, superseded, or

terminated by order of the Court; the Order shall continue in effect after termination of the
above-captioned action and continue to be binding upon all persons to whom Confidential
Information is or has been disclosed. The Court shall retain jurisdiction to determine or
resolve any issue arising from the terms of this Order.
14.

Upon final termination of the above-captioned action (including all appeals),

the designating party may demand that the receiving party destroy all Confidential
Information produced by a designating party within thirty (30) days of the demand. The
receiving party shall provide a certification of compliance with this section upon request of
the designating party.
15.

If the receiving party learns that Confidential Information produced to it has

been disclosed to or has come into the possession of any person other than in the manner
authorized by this Order, the receiving party responsible for such disclosure must
immediately inform the designating party of all pertinent facts relating to the disclosure and
shall make reasonable efforts to prevent disclosure by each unauthorized person.

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16.

The receiving party may at any time request that the designating party cancel

or withdraw the “Confidential” designation on any information produced. Such request shall
be served on counsel for the designating party, and shall particularly identify the designated
Confidential Information that the receiving party contends is not confidential and the reasons
supporting such contention.

If the designating party does not agree to remove the

“Confidential” designation within seven (7) days of the receiving party’s request, then the
party contending that such information is not confidential may file a motion to be relieved
from the restrictions of this Order with respect to the specific information or documentation
which was the subject of the receiving party’s request. On motion to be relieved from the
restrictions of this Order, the burden of demonstrating that the information is Confidential
Information shall be on the party who designated the information as such. Until the Court
enters an order changing or removing the “Confidential” designation, the documents or
information shall be treated as confidential as provided in this Order.
NO WAIVER OF PRIVILEGES
FOR INADVERTENTLY PRODUCED DOCUMENTS
17.

The inadvertent production or disclosure of documents or information for

which the producing party later asserts a claim of privilege or protection shall not constitute
a waiver of any otherwise valid claim of privilege or protection.
18.

Upon assertion of a claim of privilege or protection with respect to

inadvertently produced documents, the party in receipt of the inadvertently produced
documents shall promptly return to the producing party all copies of such documents or
promptly deliver the documents to the Court under seal with a motion as provided herein.
The party to whom the documents were inadvertently produced may challenge the producing

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party’s assertion of privilege or protection by filing a motion to compel or other appropriate
discovery motion with the Court. Prior to a determination of the validity of the claim of
privilege or protection by the Court, the information for which the claim is asserted shall not
be disseminated or published in any way, nor shall it be used for any purpose in the litigation
other than to determine the validity of the claim of privilege or protection. Failure to assert
a privilege or protection as to an inadvertently produced document or communication shall
not be deemed to constitute a waiver of the privilege or protection as to any other document
or communication allegedly so protected, including other documents involving the same
subject matter.
19.

A party who discovers that it has received obviously privileged or protected

documents produced by another party shall (i) assume that the documents were inadvertently
produced; (ii) refrain from further examining the materials (iii) notify counsel for the
designating party; and (iv) comply with the instructions of counsel for the designating party
with respect to the return, destruction, or other disposal of the documents. The term
“obviously privileged” as used herein is not intended to impose an obligation on any party
to discover that a document is or may be privileged.
OTHER REMEDIES
20.

Nothing contained in this Order shall prevent any party or non-party from

seeking additional relief from the Court.
21.

Any violation of this Order concerning confidentiality, by the unauthorized

production or disclosure of Confidential Information, may subject the violating party to
sanctions including, but not limited to, attorney’s fees and costs, and may subject the
violating party, individual or entity to sanctions for contempt of court.

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22.

The ultimate disposition of protective materials shall be subject to a final

order of the Court upon completion of the litigation.
SO ORDERED.
Signed: July 20, 2017

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First Party Signature Page for
Consent Protective Order of Confidentiality
STIPULATED AND CONSENTED TO BY:
/s/ Pearlynn G. Houck
Martin L. Brackett, Jr.
N.C. Bar No. 446
[e-mail]
Pearlynn G. Houck
N.C. Bar No. 36364
[e-mail]
ROBINSON, BRADSHAW & HINSON, P.A.
101 North Tryon Street, Suite 1900
Charlotte, North Carolina 28246
Telephone: [phone]
Facsimile:
704.378.4000
Attorneys for Plaintiff

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Second Party Signature Page for
Consent Protective Order of Confidentiality
STIPULATED AND CONSENTED TO BY:
/s/ Jonathan R. Friedman
Jonathan R. Friedman
Admitted pro hac vice
[e-mail]
Joseph J. Minock
Admitted pro hac vice
[e-mail]
Shawn D. Scott
N.C. Bar No. 23463
[e-mail]
Weinberg Wheeler Hudgins Gunn & Dial, LLC
3344 Peachtree Road NE, Suite 2400
Atlanta, GA 30326
Telephone: [phone]
Facsimile:
404.875.9433
Attorneys for Defendant Tippmann Sports, LLC

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Third Party Signature Page for
Consent Protective Order of Confidentiality
STIPULATED AND CONSENTED TO BY:
/s/ Mel Joseph Garofalo
Mel Joseph Garofalo
N.C. State Bar No. 8279
[e-mail]
Hedrick Gardner Kincheloe & Garofalo, LLP
PO Box 30397
Charlotte, NC 28230
Telephone: [phone]
Facsimile:
704.366.6181
Attorneys for Defendant Dick’s Sporting Goods, Inc.

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Fourth Party Signature Page for
Consent Protective Order of Confidentiality
STIPULATED AND CONSENTED TO BY:
/s/ Marc J. Meister
Marc J. Meister
N.C. Bar No. 43060
[e-mail]
Marc J. Meister, LLC
14 Myrtle Bank Road
Hilton Head Island, SC 29926
Telephone: [phone]
Facsimile:
843.802.4799
Attorneys for Defendant Gayston Corp.

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Fifth Party Signature Page for
Consent Protective Order of Confidentiality
STIPULATED AND CONSENTED TO BY:
/s/ Jeffrey Kuykendal
Jeffrey Kuykendal
N.C. Bar No. 37693
[e-mail]
McAngus Goudelock & Courie LLC
6302 Fairview Road, Suite 700
Charlotte, NC 28210
Telephone: [phone]
Facsimile:
704.643.2376
Attorneys for Third-Party Defendant BXD, Enterprises, Inc.

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CERTIFICATE OF SERVICE
This is to certify that on July 7, 2017, I electronically filed the foregoing document
with the Clerk of the Court using the CM/ECF system which will automatically send email
notifications of such filing to the following attorneys of record:
Robinson, Bradshaw & Hinson, P.A.
Martin L. Brackett, Jr.
Pearlynn G. Houck
101 North Tryon Street, Suite 1900
Charlotte, NC 28246
[e-mail]
[e-mail]
Attorneys for Plaintiff
Hedrick Gardner Kincheloe & Garofalo LLP
Mel J. Garofalo
6000 Fairview Road
Suite 1000
Charlotte, NC 28210
[e-mail]
Attorney for Defendant Dick’s Sporting Goods, Inc.
Marc J. Meister, LLC
Marc J. Meister
14 Myrtle Bank Road
Hilton Head Island, SC 29926
[e-mail]
Attorneys for Defendant Gayston Corp.
The following party will be served via U.S. Mail:
BXD, Enterprises, Inc.
c/o Jeffrey Kuykendal
6302 Fairview Road, Suite 700
Charlotte, NC 28210
Third-Party Defendant
/s/ Jonathan R. Friedman
Jonathan R. Friedman

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