Univar USA, Inc. v. Thanos

Filing 76

PROTECTIVE ORDER Regarding Discovery from Chem-Solv. Signed by Magistrate Judge David S. Cayer on 10/17/17. (tob)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
3:17-cv-00338-MOC-DSC

UNIVAR USA, INC., a Delaware
corporation,
Plaintiff,
PROTECTIVE ORDER
REGARDING DISCOVERY
FROM CHEM-SOLV

v.
TAYLOR THANOS, a North Carolina
resident,
Defendant.

This matter came before the Court following the entry of an order granting
Plaintiff's Motion to Compel Compliance with Subpoena to Chem-Solv on October 5,
2017 (document #67). The Court directed Plaintiff and Chem-Solv to submit a
protective order including an "Attorney's Eyes Only" designation. In accordance with
the Court's order, the Parties having agreed to the following, and for good cause shown,
IT IS HEREBY ORDERED as follows:
1.

Scope

This Order applies to all products of discovery and all information derived
therefrom, including, but not limited to, all documents, data compilations,
electronically stored information, computer disks, objects or things, deposition
testimony, affidavits, interrogatory/request for admission responses, or any other

media on which information is recorded, and any copies, excerpts or summaries
thereof, obtained by any party pursuant to the requirements of any court order,
request for production of documents, request for admissions, interrogatory, or
subpoena (collectively, “Discovery Materials”). This Order does not affect any
person’s or entity’s use of its own information or documents, nor does it affect the
use of any information or documents at trial.
2.

“Confidential” Material Defined; "Attorney's Eyes Only"
Material Defined

For the purposes of this Order, Discovery Materials may be designated as
“Confidential” or "Attorney's Eyes Only" pursuant to Paragraph 4 of this Order. A
Designating Entity may designate as “Confidential” any discovery material it
reasonably and in good faith believes to contain confidential business information,
sensitive financial information, or highly sensitive personal information.

A

Designating Entity may designate as "Attorney's Eyes Only" any discovery material
it reasonably and in good faith believes to contain trade secret or high highly
confidential business information which could cause the Designating Entity harm if
revealed to its competitor.
For the purposes of this Order, a “Designating Entity” means Plaintiff or
Chem-Solv.

For the purposes of this Order, “Designated Material” means any material that
meets the definition of “Confidential” or "Attorney's Eyes Only" under this Order,
and that has been so designated by any Designating Entity.
3.

Use of Designated Material

a.

Unless otherwise expressly permitted by this Court or by express
written agreement of the parties, all Designated Material produced or
discovered in this case designated as "Confidential" shall be used solely
for the prosecution or defense of this case, and shall not be used for any
other purpose, including, but not limited to, any other litigation or
judicial proceedings, or any business, competitive, or commercial
purpose or function.

b.

Unless otherwise expressly permitted by this Court or by express
written agreement of the parties, all Designated Material produced or
discovered in this case designated as "Attorney's Eyes Only" shall be
used solely for the prosecution or defense of this case and shall not be
used for any other purpose, including, but not limited to, any other
litigation or judicial proceedings, or any business, competitive, or
commercial purpose or function.

4.

Procedure for Designating Material

A Designating Entity shall designate “Confidential” or "Attorney's Eyes Only"
material in the following manners:
a.

In the case of documents or other written materials, by affixing the word
“Confidential” or "Attorney's Eyes Only" by stamp or other method
which will make such word conspicuous to each page of the document
the Designating Entity wishes to designate.

b.

In the case of electronic data, including but not limited to information
produced on a hard drive, cd-rom, dvd-rom, thumb drive, or other
electronic media (“medium of production”), by providing written notice
to all parties requesting production identifying the material being
designated as “Confidential” or "Attorney's Eyes Only." To the extent
possible, the Designating Entity shall also label the medium of production
with the appropriate designation. However, any failure or inability to
affix such label to the medium of production shall not waive any
protection provided by this Order.

c.

In the case of written discovery or pleadings, by affixing the word or
phrase “Confidential” or "Attorney's Eyes Only" by stamp or other
method to the portions so designated.

5.

Permissible Disclosures of “Confidential” Material

Except as otherwise agreed in writing by the Designating Entity or as ordered
by the Court, material designated as “Confidential” may be disclosed to and used
only by:
a.

counsel of record for the parties in this case and his/her partners,
associates, secretaries, legal assistants, employees, and litigation
support vendors to the extent reasonably necessary to render
professional services in this case;

b.

the Court or the jury at trial or as exhibits to motions;

c.

court officials involved in this case (including court reporters and
persons operating video recording equipment at depositions);

d.

the author of the document and each recipient of a copy of the
document, only insofar as the author or recipient is identified on the
face of the document;

e.

the parties in this case and any employees of the parties to this case only
to the extent the employee(s) is one necessary to the prosecution;

f.

subject to the limitations below, any person designated by the Court in
the interest of justice, upon such terms as the Court may deem proper;

g.

subject to the limitations below, persons in this case noticed for
depositions or designated as trial witnesses, only to the extent

reasonably necessary in order to conduct the examination of such
person or to prepare such person to testify;
h.

subject to the limitations below, outside consultants or outside experts
in this case, including their support personnel, retained for the purpose
of assisting counsel of record or inside counsel of the parties in this case
or to serve as an expert witness in this case; and

i.

subject to the limitations below, any mediator in this case.

The parties shall obtain from any individual to whom disclosure is to be made
under subparagraphs (f) through (i) above a signed Acknowledgement of Protective
Order, attached hereto as Exhibit A, prior to such disclosure. Counsel providing
access to such material shall retain copies of the executed Acknowledgement(s) and
shall produce such Acknowledgement(s) to the parties upon request.
6.

Permissible Disclosures of "Attorney's Eyes Only" Material

Except as otherwise agreed in writing by the Designating Entity or as ordered
by the Court, material designated as “Attorney's Eyes Only” may be disclosed to and
used only by:
a.

counsel of record for the parties in this case and his/her partners,
associates, secretaries, legal assistants, employees, and litigation
support vendors to the extent reasonably necessary to render
professional services in this case; or

b.

the Court for purposes of challenging the "Attorney's Eyes Only"
designation.

Under no circumstances shall an attorney representing a non-producing
party share with his or her client any documents designated as "Attorney's Eyes
Only," unless and until the Designating Entity agrees in writing or as otherwise
ordered by the Court.
7. Inadvertent Disclosures
a.

The parties agree that in the event the producing party or other person
inadvertently fails to designate materials hereunder, it may make such
a designation subsequently by notifying all persons and parties to whom
such materials were produced, in writing, within fourteen (14) days of
the producing party first discovering such inadvertent disclosure. In no
event, however, may a producing party or other person designate or redesignate inadvertently produced materials within thirty (30) days prior
to trial. After receipt of such notification, the persons to whom
production has been made shall prospectively treat the designated
materials as “Confidential” or "Attorney's Eyes Only" material, subject
to their right to dispute such designation in accordance with Paragraph
9. The receiving party shall not be in violation of this Protective Order

for any disclosure of information made prior to receiving such
notification.
b.

With regard to privileged information or documents, nothing herein
shall be deemed to waive or limit any applicable privilege or work
product or other protection, or to affect the ability of a Designating
Entity to seek relief for an inadvertent disclosure of matter protected by
privilege or work product protection.

If a Designating Entity

inadvertently produces matter that it in good faith later asserts to be
privileged or otherwise protected from disclosure, the production of
that matter will not constitute a waiver of any applicable privileges or
other protection, provided the Designating Entity complies with this
paragraph.

In such circumstances, the Designating Entity must,

promptly after discovery of the inadvertent production, notify in writing
all Parties to the Action in which the matter was inadvertently produced
of the inadvertent production and the basis for the privilege or other
protection, and request in writing the return or confirmed destruction of
the inadvertently produced privileged or protected matter. Upon such
notification, the receiving parties shall treat the matter as privileged or
protected unless and until the Designating Entity agrees otherwise in
writing or the Court determines the matter is not privileged or protected.

Within five (5) business days of receiving such notification, all nonDesignating Parties shall (a) return the matter to the Designating Entity;
or (b) confirm in writing to the Designating Entity the destruction of all
such matter, including all excerpts, summaries, compilations, and other
documents or records that include, communicate or reveal matter
claimed to be privileged or protected, or (c) notify the Designating
Entity in writing of the basis for its disagreement that such matter is
privileged or protected from disclosure. In the last event only, the nonDesignating Entity may retain one copy of the matter asserted to be
privileged for the sole purpose of responding to a motion by the
Designating Entity to deem the matter privileged or protected from
disclosure and shall comply with (a) or (b) above with respect to all
other copies of such matter and all other documents or records that
include, communicate or reveal matter claimed to be privileged or
protected. Should the parties be unable to agree on whether the matter
is privileged or protected, the Designating Entity shall file a motion
with the Court within fifteen (15) days of its receipt of the receiving
party's notice of disagreement under (c) above, to deem the matter
privileged or protected and to obtain the return of any copy of such
matter still held by the non-Designating Entity. In no event shall

production of any privileged information be deemed a waiver of
privilege regarding any other information.
8.

Designations of Material in Filings and at Trial

Without written permission from the Designating Entity or a court order, all
Designated Material filed with or submitted to the Court shall be provisionally filed
under seal and accompanied by a motion that the material be placed under seal. The
parties shall seek the assistance of the trial court in protecting the confidentiality of
Designated Materials at trial or any pre-trial or post-trial hearings. 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. The fact that Designated Materials have been designated
as “Confidential” or "Attorney's Eyes Only" shall not constitute dispositive proof
that the Materials in fact contain confidential information entitled to protection from
disclosure under law.
Nothing in this Order shall be construed to limit the evidence that any party
may offer at hearing or at trial, nor shall it be construed to limit any claim or defense
of any party.
9.

Relief from Protective Order

This Order shall be without prejudice to the right of any party to oppose
production of any information on any ground, except confidentiality.
Any party may at any time request, in writing, from any Designating Entity the
removal of a designation of documents, material, information, or things as
“Confidential” or "Attorney's Eyes Only." Upon receipt of such request, the parties
shall confer in good faith as to the status of the subject information. If the parties are
unable to agree upon the status of the subject information, any party may, upon
reasonable notice to the opposing party’s counsel, move for an order relieving them of
the provisions of this Order for good cause shown to be determined by the Court, or
may, upon reasonable notice, challenge a designation by motion to the Court. In such
instances, the Designating Entity shall bear the burden of establishing that the
challenged documents, material, information, or things are entitled to protection under
this Protective Order. Until the Court enters an Order changing the designation, such
material shall be subject to the restrictions initially assigned to it and provided for it in
this Protective Order. The parties hereto retain the right to apply to the Court for an
order affording additional protection to any material produced herein as the
circumstances may warrant.
10.

Subpoena by Other Courts or Agencies

If another court or an administrative agency subpoenas or otherwise orders
production of “Confidential” or "Attorney's Eyes Only" material, the person to whom

the subpoena or other process is directed shall (1) promptly object to the production
of such material by setting forth the existence and force of this Protective Order and
(2) notify the Designating Entity of the subpoena or order within three (3) days of
receiving such subpoena and provide a complete copy of the subpoena or order to
the Designating Entity.
11.

Non-Termination

This Order shall survive the final conclusion of this case and shall continue in
full force and effect, and the Court shall retain jurisdiction to enforce this Order.
Within ninety (90) days after the final conclusion of this case (including the
contemplation of any appeals), all Designated Material produced in this litigation
shall, upon request of the Designating Entity, be either destroyed or returned to that
entity; provided, however, that counsel for each party may retain for their respective
files one copy of such Designated Material that does not constitute protected health
information.
Notwithstanding any of the foregoing, the parties’ counsel may retain any
privileged attorney work product they have created which incorporates Designated
Material on the condition that they will maintain the confidentiality of such material
and will not use such material in contravention of the provisions of this Order.
12.

Modification and Non-Waiver

Nothing in this Order shall prevent any party or other person from seeking
modification of this Order or from objecting to discovery that it believes to be
otherwise improper. The designation or non-designation of information shall not
affect the materiality, relevance, or admissibility of any information, except as set
forth herein.
13.

Improper Disclosure of Designated Material

Disclosure of Designated Material other than in accordance with the terms of
this Protective Order may subject the disclosing person to such sanctions and
remedies as this Court may deem appropriate.

14.

Effectiveness

This Order shall be binding on the parties as an enforceable contract upon its
execution by the parties’ respective counsel. This Order shall be effective as an
Order of the Court upon its entry by the Court.
SO ORDERED.
Signed: October 17, 2017

EXHIBIT A
Acknowledgement of Protective Order

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
3:17-cv-00338

UNIVAR USA, INC., a Delaware
corporation,
Plaintiff,
ACKNOWLEDGEMENT OF
PROTECTIVE ORDER

v.
TAYLOR THANOS, a North Carolina
resident,
Defendant.

1.

I hereby attest to my understanding that material, information or

documents designated as “Confidential” are provided to me subject to the Protective
Order (“Order”) dated ______________ _____, 2017, in the above-captioned
litigation (the “Litigation”); that I have been given a copy of and have read the Order;
and that I agree to be bound by its terms. I also understand that my execution of this
Acknowledgement of Protective Order, indicating my agreement to be bound by the
Order, is a prerequisite to my review of any information or documents designated
pursuant to the Order.
2.

I further agree that I shall not disclose to others, except in accord with

the Order, any “Confidential” material, in any form whatsoever, and that such
material and the information contained therein may be used only for the purposes

authorized by the Order. I agree that any materials that I create that contain
information that has been designated as “Confidential” is also protected by the Order
to the same extent as the original Designated Materials.
3.

I further agree to be bound by the provisions in the Order governing

protected health information, as defined therein. Specifically, I agree and attest to
my understanding that any such protected health information shall not be used or
disclosed for any purpose other than this Litigation.
4.

I further agree to return all copies of any Designated Material I have

received to counsel who provided them to me upon completion of the purpose for
which they were provided and no later than sixty (60) days after the conclusion of
this case.
5.

I further agree and attest to my understanding that my obligation to

honor the confidentiality of Designated Material will continue even after this case
concludes.
6.

I further agree and attest to my understanding that, if I fail to abide by

the terms of the Order, I may be subject to sanctions, including contempt of court,
for such failure. I agree to be subject to the jurisdiction of the Court presiding over
this action, for the purposes of any proceedings relating to enforcement of the Order.

7.

I further agree to be bound by and to comply with the terms of the Order

as soon as I sign this Acknowledgement of Protective Order, regardless of whether
the Order has been entered by the Court.
By:

__________________________ [signature]
__________________________ [printed name]
__________________________ [title]
__________________________ [organization/company]

Date: __________________________