Whirlpool Properties, Inc. et al v. Filters Fast, LLC

Filing 53

PROTECTIVE ORDER. Signed by Magistrate Judge David Keesler on 6/11/18. (mga)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
CIVIL ACTION NO. 3:17-CV-601-FDW-DCK

WHIRLPOOL PROPERTIES, INC.,
WHIRLPOOL CORPORATION, and
MAYTAG PROPERTIES, LLC,
Plaintiffs,
v.
FILTERS FAST, LLC
Defendant.

)
)
)
)
)
)
)
)
)
)
)

PROTECTIVE ORDER

WHEREAS, Plaintiffs Whirlpool Properties, Inc., Whirlpool Corporation, and Maytag
Properties, LLC and Defendant Filters Fast, LLC, hereafter referred to as “the Parties,” believe that
certain information that is or will be encompassed by discovery demands by the Parties involves
the production or disclosure of trade secrets, confidential business information, or other
proprietary information;
WHEREAS, the Parties seek a protective order limiting disclosure thereof in accordance with
Federal Rule of Civil Procedure 26(c):

THEREFORE, it is hereby stipulated among the Parties and ORDERED that:
1.

Each Party may designate as confidential for protection under this Order, in whole or in
part, any document, information or material that constitutes or includes, in whole or in
part, confidential or proprietary information or trade secrets of the Party or a Third Party
to whom the Party reasonably believes it owes an obligation of confidentiality with

respect to such document, information or material (“Protected Material”). Protected
Material shall be designated by the Party producing it by affixing a legend or stamp
on such document, information or material as follows: “CONFIDENTIAL.” The word
“CONFIDENTIAL” shall be placed clearly on each page of the Protected Material
(except native files, deposition and hearing transcripts) for which such protection is
sought. The word “CONFIDENTIAL” shall be included in the title of the designated
native files. For deposition and hearing transcripts, the word “CONFIDENTIAL” shall
be placed on the cover page of the transcript (if not already present on the cover page
of the transcript when received from the court reporter) by each attorney receiving a
copy of the transcript after that attorney receives notice of the designation of
some or all of that transcript as “CONFIDENTIAL.”
2.

Any document produced under Local Patent Rules 2.2, 3.2, and/or 3.4 before issuance
of this Order with the designation “Confidential” or “Confidential - Outside Attorneys’
Eyes Only” shall receive the same treatment as if designated “RESTRICTED ATTORNEYS’ EYES ONLY” under this Order, unless and until such document is
redesignated to have a different classification under this Order.

3.

With

respect

to

“CONFIDENTIAL”

documents,
or

information

“RESTRICTED

-

or

material

ATTORNEYS’

EYES

designated
ONLY”

(“DESIGNATED MATERIAL”),1 subject to the provisions herein and unless
otherwise stated, this Order governs, without limitation: (a) all documents,
electronically stored information, and/or things as defined by the Federal Rules of Civil

1

The term DESIGNATED MATERIAL is used throughout this Protective Order to refer to the
class of materials designated as “CONFIDENTIAL” or “RESTRICTED - ATTORNEYS’ EYES
ONLY,” both individually and collectively.

Procedure; (b) all pretrial, hearing or deposition testimony, or documents marked as
exhibits or for identification in depositions and hearings; (c) pretrial pleadings, exhibits
to pleadings and other court filings; (d) affidavits; and (e) stipulations. All copies,
reproductions, extracts, digests and complete or partial summaries prepared from
any DESIGNATED MATERIALS shall also be considered DESIGNATED
MATERIAL and treated as such under this Order.
4.

A designation of Protected Material (i.e., “CONFIDENTIAL” or “RESTRICTED ATTORNEYS’ EYES ONLY”) may be made at any time. Inadvertent or unintentional
production of documents, information or material that has not been designated as
DESIGNATED MATERIAL shall not be deemed a waiver in whole or in part of a claim
for confidential treatment. Any party that inadvertently or unintentionally produces
Protected Material without designating it as DESIGNATED MATERIAL may request
destruction of that Protected Material by notifying the recipient(s), as soon as reasonably
possible after the producing Party becomes aware of the inadvertent or unintentional
disclosure, and providing replacement Protected Material that is properly designated.
The recipient(s) shall then destroy all copies of the inadvertently or unintentionally
produced Protected Materials and any documents, information or material derived from
or based thereon.

5.

“CONFIDENTIAL” documents, information and material may be disclosed only to
the following persons, except upon receipt of the prior written consent of the designating
party, upon order of the Court, or as set forth in paragraph 12 herein:
(a) outside counsel of record in this Action for the Parties;
(b) employees of such outside counsel assigned to and reasonably necessary to assist
such counsel in the litigation of this Action;

(c) in-house counsel for the Parties who either have responsibility for making decisions
dealing directly with the litigation of this Action, or who are assisting outside
counsel in the litigation of this Action, provided the names and titles of such inhouse counsel have been disclosed to the designating party;
(d) up to and including three (3) designated representatives of each of the Parties to the
extent reasonably necessary for the litigation of this Action, except that either party
may in good faith request the other party’s consent to designate one or more
additional representatives, the other party shall not unreasonably withhold such
consent, and the requesting party may seek leave of Court to designate such
additional representative(s) if the requesting party believes the other party has
unreasonably withheld such consent;
(e) outside consultants or experts (i.e., not existing employees or affiliates of a Party or
an affiliate of a Party) retained for the purpose of this litigation, provided that: (1)
such consultants or experts are not presently employed by the Parties hereto for
purposes other than this Action; (2) before access is given, the consultant or expert
has completed the Undertaking attached as Exhibit A hereto and the same is served
upon the producing Party with a current curriculum vitae of the consultant or expert
at least ten (10) days before access to the Protected Material is to be given to that
consultant or Undertaking to object to and notify the receiving Party in writing that
it objects to disclosure of Protected Material to the consultant or expert. The Parties
agree to promptly confer and use good faith to resolve any such objection. If the
Parties are unable to resolve any objection, the objecting Party may file a motion
with the Court within fifteen (15) days of the notice, or within such other time as the
Parties may agree, seeking a protective order with respect to the proposed disclosure.
The objecting Party shall have the burden of proving the need for a protective order.
No disclosure shall occur until all such objections are resolved by agreement or
Court order;
(f) independent litigation support services, including persons working for or as court
reporters, graphics or design services, jury or trial consulting services, and
photocopy, document imaging, and database services retained by counsel and
reasonably necessary to assist counsel with the litigation of this Action; and
(g) the Court and its personnel.
6.

A Party shall designate documents, information or material as “CONFIDENTIAL”
only upon a good faith belief that the documents, information or material contains

confidential or proprietary information or trade secrets of the Party or a Third Party to
whom the Party reasonably believes it owes an obligation of confidentiality with respect
to such documents, information or material.
7.

Documents, information or material produced pursuant to any discovery request in
this Action, including but not limited to Protected Material designated as
DESIGNATED MATERIAL, shall be used by the Parties only in the litigation of this
Action and shall not be used for any other purpose. Any person or entity who obtains
access to DESIGNATED MATERIAL or the contents thereof pursuant to this Order
shall not make any copies, duplicates, extracts, summaries or descriptions of such
DESIGNATED MATERIAL or any portion thereof except as may be reasonably
necessary in the litigation of this Action. Any such copies, duplicates, extracts,
summaries or descriptions shall be classified DESIGNATED MATERIALS and
subject to all of the terms and conditions of this Order.

8.

To the extent a producing Party believes that certain Protected Material qualifying to
be designated CONFIDENTIAL is so sensitive that its dissemination deserves even
further limitation, the producing Party may designate such Protected Material
“RESTRICTED -- ATTORNEYS’ EYES ONLY.”

9.

For Protected Material designated RESTRICTED -- ATTORNEYS’ EYES ONLY,
access to, and disclosure of, such Protected Material shall be limited to individuals
listed in paragraphs 5(a), 5(b), 5(e), 5(f) and 5(g).

10.

Nothing in this Order shall require production of documents, information or other
material that a Party contends is protected from disclosure by the attorney-client
privilege, the work product doctrine, or other privilege, doctrine, or immunity. If

documents, information or other material subject to a claim of attorney-client privilege,
work product doctrine, or other privilege, doctrine, or immunity is inadvertently or
unintentionally produced, such production shall in no way prejudice or otherwise
constitute a waiver of, or estoppel as to, any such privilege, doctrine, or immunity.
Any Party that inadvertently or unintentionally produces documents, information or
other material it reasonably believes are protected under the attorney-client privilege,
work product doctrine, or other privilege, doctrine, or immunity may obtain the return
of such documents, information or other material by promptly notifying the
recipient(s) and providing a privilege log for the inadvertently or unintentionally
produced documents, information or other material. The recipient(s) shall gather and
return all copies of such documents, information or other material to the producing
Party, except for any pages containing privileged or otherwise protected markings by the
recipient(s), which pages shall instead be destroyed and certified as such to the
producing Party within ten (10) business days.
11.

There shall be no disclosure of any DESIGNATED MATERIAL by any person
authorized to have access thereto to any person who is not authorized for such access
under this Order. The Parties are hereby ORDERED to safeguard all such documents,
information and material to protect against disclosure to any unauthorized persons or
entities.

12.

Nothing contained herein shall be construed to prejudice any Party’s right to use
any DESIGNATED MATERIAL in taking testimony at any deposition or hearing
provided that the DESIGNATED MATERIAL is only disclosed to a person(s) who is:
(i) eligible to have access to the DESIGNATED MATERIAL by virtue of his or her

past or current employment with the designating party, (ii) identified in the
DESIGNATED MATERIAL as an author, addressee, or copy recipient of such
information, (iii) a current officer or director of the producing Party or a current officer
or director of a company affiliated with the producing Party; (iv) counsel for a Party,
including outside counsel and in-house counsel (subject to paragraph 9 of this Order);
(v) an independent contractor, consultant, and/or expert retained for the purpose of
this litigation; (vi) court reporters and videographers; (vii) the Court; or (viii) other
persons entitled hereunder to access to DESIGNATED MATERIAL. Such
DESIGNATED MATERIAL shall not be disclosed to any other persons unless prior
authorization is obtained from counsel representing the producing Party or in an order
issued by this Court.
13.

Parties may, at the deposition or hearing or within thirty (30) days after receipt
of a deposition or hearing transcript, designate the deposition or hearing transcript or any
portion thereof as “CONFIDENTIAL” or “RESTRICTED - ATTORNEYS’ EYES
ONLY” pursuant to this Order. Access to the deposition or hearing transcript so
designated shall be limited in accordance with the terms of this Order. Until expiration
of the 30-day period, the entire deposition or hearing transcript shall be treated as
RESTRICTED – ATTORNEYS’ EYES ONLY.

14.

Any DESIGNATED MATERIAL that is filed with the Court shall be filed under seal
and shall remain under seal until further order of the Court. The filing party shall be
responsible for informing the Clerk of the Court that the filing should be sealed and
for placing the legend “FILED UNDER SEAL PURSUANT TO PROTECTIVE
ORDER” above the caption and conspicuously on each page of the filing. Exhibits to

a filing shall conform to the labeling requirements set forth in this Order. If a pretrial
pleading filed with the Court, or an exhibit thereto, discloses or relies on confidential
documents, information or material, such confidential portions shall be redacted to the
extent necessary and the pleading or exhibit filed publicly with the Court.
15.

The Order applies to pretrial discovery. Nothing in this Order shall be deemed to
prevent the Parties from introducing any DESIGNATED MATERIAL into evidence
at the trial of this Action, or from using any information contained in DESIGNATED
MATERIAL at the trial of this Action, subject to any pretrial order issued by this
Court.

16.

A Party may request in writing to the other Party that the designation given to any
DESIGNATED MATERIAL be modified or withdrawn. If the designating Party does
not agree to redesignation within ten (10) business days of receipt of the written
request, the requesting Party may apply to the Court for relief. Upon any such
application to the Court, the burden shall be on the designating Party to show why its
classification is proper. Such application shall be treated procedurally as a motion to
compel pursuant to Federal Rules of Civil Procedure 37, subject to the Rule’s
provisions relating to sanctions. In making such application, the requirements of the
Federal Rules of Civil Procedure and the Local Rules of the Court shall be met.
Pending the Court’s determination of the application, the designation of the
designating Party shall be maintained.

17.

Each outside consultant or expert to whom DESIGNATED MATERIAL is disclosed
in accordance with the terms of this Order shall be advised by counsel of the terms of
this Order, shall be informed that he or she is subject to the terms and conditions of this

Order, and shall sign an acknowledgment that he or she has received a copy of, has
read, and has agreed to be bound by this Order. A copy of the acknowledgment
form is attached as Appendix A.
18.

To the extent that any discovery is taken of persons who are not Parties to this
Action (“Third Parties”) and in the event that such Third Parties contended the
discovery sought involves trade secrets, confidential business information, or other
proprietary information, then such Third Parties may agree to be bound by this Order.

19.

To the extent that discovery or testimony is taken of Third Parties, the Third Parties
may designate as “CONFIDENTIAL” or “RESTRICTED -- ATTORNEYS’ EYES
ONLY” any documents, information or other material, in whole or in part, produced
or give by such documents, information or other material, in whole or in part, produced
or give by such Third Parties. The Third Parties shall have ten (10) business days after
production of such documents, information or other materials to make such a
designation. Until that time period lapses or until such a designation has been made,
whichever occurs sooner, all documents, information or other material so produced or
given shall be treated as “RESTRICTED – ATTORNEYS’ EYES ONLY” in
accordance with this Order.

20.

Within thirty (30) days of final termination of this Action, including any appeals,
all DESIGNATED MATERIAL, including all copies, duplicates, abstracts, indexes,
summaries, descriptions, and excerpts or extracts thereof (excluding excerpts or
extracts incorporated into any privileged memoranda of the Parties and materials which
have been admitted into evidence in this Action), shall at the producing Party’s election

either be returned to the producing Party or be destroyed. The receiving Party shall
verify the return or destruction by affidavit furnished to the producing Party, upon the
producing Party’s request.
21.

The failure to designate documents, information or material in accordance with this
Order and the failure to object to a designation at a given time shall not preclude the
filing of a motion at a later date seeking to impose such designation or challenging the
propriety thereof.

The entry of this Order and/or the production of documents,

information and material hereunder shall in no way constitute a waiver of any
objection to the furnishing thereof, all such objections being hereby preserved.
22.

Any Party knowing or believing that any other party is in violation of or intends to
violate this Order and has raised the question of violation or potential violation with
the opposing party and has been unable to resolve the matter by agreement may move
the Court for such relief as may be appropriate in the circumstances. Pending
disposition of the motion by the Court, the Party alleged to be in violation of or
intending to violate this Order shall discontinue the performance of and/or shall not
undertake the further performance of any action alleged to constitute a violation of this
Order.

23.

Production of DESIGNATED MATERIAL by each of the Parties shall not be
deemed a publication of the documents, information and material (or the contents
thereof) produced so as to void or make voidable whatever claim the Parties may have
as to the proprietary and confidential nature of the documents, information or other
material or its contents.

24.

Nothing in this Order shall be construed to effect an abrogation, waiver or limitation of

any kind on the rights of each of the Parties to assert any applicable discovery or trial
privilege.
25.

Each of the Parties shall also retain the right to file a motion with the Court (a) to modify
this Order to allow disclosure of DESIGNATED MATERIAL to additional persons or
entities if reasonably necessary to prepare and present this Action and (b) to apply for
additional protection of DESIGNATED MATERIAL.

Signed: June 11, 2018

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
CIVIL ACTION NO. 3:17-CV-601-FDW-DCK

WHIRLPOOL PROPERTIES, INC.,
WHIRLPOOL CORPORATION, and
MAYTAG PROPERTIES, LLC,
Plaintiffs,
v.
FILTERS FAST, LLC
Defendant.

)
)
)
)
)
)
)
)
)
)
)

APPENDIX A
UNDERTAKING OF EXPERTS OR CONSULTANTS REGARDING
PROTECTIVE ORDER
I, ___________________________________________, declare that:
1.

My address is
_________________________________________________________. My
current employer is _________________________________________________.
My current occupation is
________________________________________________.

2.

I have received a copy of the Protective Order in this action. I have carefully read
and understand the provisions of the Protective Order.

3.

I will comply with all of the provisions of the Protective Order. I will hold in

confidence, will not disclose to anyone not qualified under the Protective Order,
and will use only for purposes of this action any information designated as
“CONFIDENTIAL” or “RESTRICTED -- ATTORNEYS’ EYES ONLY” that is
disclosed to me.
4.

Promptly upon termination of these actions, I will return all documents and things
designated as “CONFIDENTIAL” or “RESTRICTED -- ATTORNEYS’ EYES
ONLY” that came into my possession, and all documents and things that I have
prepared relating thereto, to the outside counsel for the party by whom I am
employed.

5.

I hereby submit to the jurisdiction of this Court for the purpose of enforcement of
the Protective Order in this action.

I declare under penalty of perjury that the foregoing is true and correct.
Signature

________________________________________

Date

________________________________________

13