Software Pricing Partners, LLC v. Geisman
Filing
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PROTECTIVE ORDER. Signed by Magistrate Judge David Keesler on 12/28/2020. (mek)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
CASE NO. 3:19-CV-195-RJC-DCK
SOFTWARE PRICING PARTNERS, LLC,
Plaintiff,
v.
JAMES H. GEISMAN,
Defendant.
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PROTECTIVE ORDER
IT IS HEREBY ORDRERED that this Order for the Protection of Confidential Information
(“Protective Order”) shall govern the handling of all information, testimony, things or documents
filed with the Court or produced or given (either by a party or non-party) as part of discovery in
this action (“Covered Matter”). This Protective Order permits the parties, and non-parties, to
designate certain material as “CONFIDENTIAL” or “ATTORNEYS’ EYES ONLY” (hereinafter
collectively referred to as “Confidential Material”). The party or non-party that makes such a
designation shall hereafter be referred to as a “Designating Party.” The party or non-party
producing documents in this litigation shall hereafter be referred to as a “Producing Party.” The
party or non-party that receives documents produced in this litigation shall hereafter be referred to
as a “Receiving Party.”
I.
DESIGNATION OF DOCUMENTS
1.
CONFIDENTIAL Designation.
A party or non-party may designate as
“CONFIDENTIAL” any Covered Material containing technical, marketing, actual or prospective
vendors or customers, personnel, product and packaging design, sales, pricing, margins, financial
and other business information, if counsel determines that such designation is necessary to protect
the interests of the client.
2.
ATTORNEYS’ EYES ONLY Designation. A party or non-party may designate
as “ATTORNEYS’ EYES ONLY” that portion of any Covered Matter that is or contains, reflects
or otherwise discloses a trade secret or other highly confidential information, such as, but not
limited to: cost, sales, pricing and profitability information; company financial information;
confidential research, development, or commercial information; business relationships with thirdparties; technical know-how, formulae, processes, designs, passwords, and source codes; strategic
marketing, design, engineering, manufacturing, distribution, and sourcing information; personnel
information; or other confidential information which, if disclosed to another party or non-party,
would create a substantial risk of serious harm that could not be avoided by less restrictive means.
3.
Good Faith Determination.
Prior to designating any Covered Matter as
“CONFIDENTIAL” or “ATTORNEYS’ EYES ONLY” under this Protective Order, counsel for
the Designating Party shall:
a)
make a good faith particularized determination that the particular protection
is necessary to protect the interest of the client; and
b)
make a good faith particularized determination that the disclosure directly
to the opposing party or its employees will create a substantial risk of serious harm to the
Designating Party, and that there is no less restrictive way to prevent such harm other than through
the use of designations as set forth herein.
4.
Use of Designations.
The parties shall use the “CONFIDENTIAL” or
“ATTORNEYS’ EYES ONLY” designation only as appropriate.
II.
LIMITATIONS ON USE AND DISCLOSURE OF COVERED MATTER
1.
Designation and Marking of Confidential Material. Parties, non-parties, and
their counsel shall designate CONFIDENTIAL and ATTORNEYS’ EYES ONLY material as
follows:
a)
In the case of documents or other tangible materials that are produced as part of
discovery or are responsive to any discovery request, which includes, but is not limited to,
responses to interrogatories, requests for production of documents, subpoenas for the production
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of documents and requests for admission, and any attachments or exhibits to any of the foregoing
documents referenced in this provision, such documents shall be stamped or otherwise labeled:
“CONFIDENTIAL” or “ATTORNEYS’ EYES ONLY”;
b)
In the case of materials produced in the form of electronic or magnetic media
(including information, files, databases, or programs stored on any digital analog machinereadable device, computers, discs, networks, or tapes), such materials may be designated as
“CONFIDENTIAL” or “ATTORNEYS’ EYES ONLY” by identifying specific electronically
stored information if possible, or if not possible, by cover letter referring generally to such matter
and by affixing (where possible) a label on the media or casing indicating such designation or by
placing the designation in a suitably revised file name.
2.
Designation and Marking of Deposition Testimony. In the case of depositions,
counsel for a party or non-party may designate portions of the transcript (including exhibits) as
“CONFIDENTIAL” or “ATTORNEYS’ EYES ONLY” during the deposition by (1) making a
statement to that effect on the record; or (2) by written notice, sent by counsel to all parties within
fourteen (14) calendar days after receiving a copy of the final transcript thereof; and in both of the
foregoing instances, by directing the court reporter that the appropriate confidentiality legend be
affixed to the first page and all portions of the original and all copies of the transcript containing
any CONFIDENTIAL or ATTORNEYS’ EYES ONLY information. All deposition and other
pretrial testimony shall be deemed to be ATTORNEYS’ EYES ONLY information until the
expiration of fourteen (14) calendar days after counsel receives a copy of the final transcript
thereof, after which time the transcript shall be treated as actually designated. The parties and any
non-party may modify this procedure for any particular deposition, through agreement on the
record at such deposition or otherwise, without further order of the Court.
3.
Disclosure of Confidential Material at Deposition. During any deposition taken
in this action at which Confidential Material is disclosed or discussed, any party or non-party may
exclude from attendance at the deposition during such disclosure or discussion any person other
than the deponent, court reporter, videographer and persons to whom the information and/or
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documents may be disclosed under the terms of this Protective Order.
4.
Challenging Designation of Confidential Material.
A party shall not be
obligated to challenge the propriety of a CONFIDENTIAL or ATTORNEYS’ EYES ONLY
designation at the time made, and failure to do so shall not preclude a subsequent challenge. A
party may challenge the designation of Confidential Material only as follows:
a)
If at any time any party disagrees with a designation of CONFIDENTIAL or
ATTORNEYS’ EYES ONLY, that person shall provide notice of its disagreement to the
Designating Party. The parties shall make a good faith effort to resolve the dispute before filing a
motion with the Court.
b)
If the dispute cannot be informally resolved, the challenging party may request
relief from the Court. The burden of persuasion in any such challenge proceeding shall be on the
Designating Party. All parties shall continue to afford the material in question the level of
protection to which it is entitled pursuant to the Designating Party’s designation until the Court
rules on the challenge.
5.
Use of Confidential Material. Each party and all persons bound by the terms of
this Protective Order shall use Confidential Material only in connection with the prosecution or
defense of this action, except by written consent of the Designating Party or by order of the Court.
CONFIDENTIAL or ATTORNEYS EYES’ ONLY information and/or documents may be
disclosed or released only to those persons entitled to receive such information and/or documents
under this Protective Order.
a)
Inadvertent Misdesignation or Failure to Designate. Documents will be treated
in accordance with their designation under this Protective Order. However, failure of a party or
non-party to properly designate material CONFIDENTIAL or ATTORNEYS’ EYES ONLY shall
not be deemed or construed to constitute an admission that such material is not confidential or
deserving of the protections provided for under this Order. If a party or non-party discovers that
it has inadvertently failed to properly designate material as CONFIDENTIAL or ATTORNEYS’
EYES ONLY, such party or non-party may promptly designate the material as CONFIDENTIAL
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or ATTORNEYS’ EYES ONLY. The parties agree to treat such newly designated or re-designated
Confidential Material in accordance with its modified confidentiality designation absent a
successful challenge to the designation.
b)
Inadvertent Disclosure of Privileged Materials.
The parties agree that
inadvertent production of privileged documents is not a waiver of any applicable privilege. As set
forth in Federal Rule of Civil Procedure 26(b)(5)(B), if information produced in discovery is
subject to a claim of privilege or of protection as trial-preparation material, the party making the
claim may notify any party that received the information of the claim and the basis for it. After
being notified, a party must promptly return, sequester, or destroy the specified information and
any copies it has; must not use or disclose the information until the claim is resolved; must take
reasonable steps to retrieve the information if the party disclosed it before being notified; and may
promptly present the information to the court under seal for a determination of the claim. The
producing party must preserve the information until the claim is resolved.
This provision is not intended to modify whatever procedure may be established in an ediscovery order that provides for production without prior privilege review. Pursuant to Federal
Rule of Evidence 502(d) and (e), insofar as the parties reach an agreement on the effect of
disclosure of a communication or information covered by the attorney-client privilege or work
product protection, the parties may incorporate their agreement in the stipulated order submitted
to the court.
6.
Use of CONFIDENTIAL or ATTORNEYS’ EYES ONLY Material.
a)
Information designated as CONFIDENTIAL may be disclosed only to the
following persons:
1.
The outside attorneys of record, as well as employees of said outside attorneys of
record, to whom it is reasonably necessary to disclose the information for this action;
2.
The party if an individual, and Officers, directors, and employees (including in-
house counsel) of a corporate party, to whom disclosure is reasonably necessary for this action;
3.
Experts (including consultants, investigators, and jury research and analysis
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consultants) retained by any party or counsel to any party to assist in this action, but only to the
extent necessary to perform such work and after signing the ACKNOWLEDGEMENT attached
to this Protective Order;
4.
Personnel of third party vendors engaged by a party or by counsel for a party to
assist counsel in this action, but only to the extent necessary to perform such work and after signing
the ACKNOWLEDGEMENT attached to this Protective Order;
5.
The individual identified as an author or recipient of the document or by sworn
testimony as having prepared, received or reviewed the document prior to the filing of this lawsuit;
6.
Any mediator who is assigned or retained by the parties to mediate the matter, and
his or her staff, subject to their agreement to maintain confidentiality to at least the same degree
required by this Protective Order; and
7.
The Court, Court personnel, and court reporters/videographers and their staff, in
connection with this action.
b)
Information designated as ATTORNEYS’ EYES ONLY may be disclosed only to
the following persons:
1.
The outside attorneys of record, as well as employees of said outside attorneys of
record, to whom it is reasonably necessary to disclose the information for this action;
2.
Experts (including consultants, investigators, and jury research and analysis
consultants) retained by any party or counsel to any party to assist in this action, but only to the
extent necessary to perform such work and after signing the ACKNOWLEDGEMENT attached
to this Protective Order;
3.
Personnel of third party vendors engaged by a party or by counsel for a party to
assist counsel in this action, but only to the extent necessary to perform such work and after signing
the ACKNOWLEDGEMENT attached to this Protective Order;
4.
The individual identified as an author or recipient of the document or by sworn
testimony as having prepared, received or reviewed the document prior to the filing of this lawsuit;
5.
Any mediator who is assigned or retained by the parties to mediate the matter, and
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his or her staff, subject to their agreement to maintain confidentiality to at least the same degree
required by this Protective Order; and
6.
The Court, Court personnel, and court reporters/videographers and their staff, in
connection with this action.
7.
Consultations with Client Concerning Another Party’s or a Non-Party’s
Confidential Material. It is understood that counsel for a party may give advice and opinions to
his or her client based on his or her evaluation of Confidential Material received by the party,
provided that such rendering of advice and opinions shall not reveal the content of Confidential
Material to which the recipient of advice or opinions is not otherwise entitled, except by prior
written agreement with counsel for the Designating Party.
8.
Submission to Court’s Jurisdiction.
Each individual who receives any
Confidential Material agrees to subject himself or herself to the jurisdiction of this Court for the
purpose of any proceedings relating to performance under, compliance with, or violation of this
Protective Order.
9.
Submission of Confidential Material to the Court. 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.
10.
Use of Confidential Materials During Court Proceedings. In the event that any
Confidential Material is used in any Court pre-trial proceeding in this litigation (including but not
limited to conferences, oral arguments, or hearings), the Confidential Material shall not thereby
lose its status as Confidential Material through such use, and the party using the Confidential
Material in such pre-trial proceeding shall take all steps reasonably required to protect the
confidentiality of the Confidential Material during such use, including, but not limited to,
requesting in camera proceedings. The parties agree to meet and confer in good faith prior to trial
to establish procedures for the use of Confidential Material at trial.
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11.
Protecting Confidential Material. Any person who receives any Confidential
Material shall maintain such material in a secure and safe manner and shall exercise due and proper
care with respect to the storage, custody, use, and/or dissemination of such material.
12.
Improper Disclosure of Confidential Materials. If any Confidential Material is
disclosed to any person other than in a manner authorized by this Protective Order, the party
responsible for the disclosure or knowledgeable of such disclosure, upon discovery of the
disclosure, shall immediately inform the Designating Party of all facts pertinent to the disclosure
that, after due diligence and prompt investigation, are known to the party responsible for the
disclosure or knowledgeable of the disclosure (including the name, address and employer of the
person to whom the disclosure was made), and shall immediately make all reasonable efforts to
prevent further disclosure by each unauthorized person who received such information.
13.
Non-Restricted Uses of Covered Matter. Nothing in this Protective Order shall
preclude a party or its attorneys from:
a)
Showing information designated as CONFIDENTIAL or ATTORNEYS’ EYES
ONLY that is or becomes publicly known through no fault or act of such party;
b)
Showing information designated as CONFIDENTIAL or ATTORNEYS’ EYES
ONLY that such party rightfully received from a third party that has authority to provide such
information without restriction as to disclosure;
c)
Showing a document designated as CONFIDENTIAL or ATTORNEYS’ EYES
ONLY produced in discovery by a Designating Party to a director, officer, managing agent or
employee of the Designating Party during the questioning of such person in a deposition, hearing
or trial in this litigation;
d)
Using or disclosing, in any manner or for any purpose, any information or
documents legally obtained other than through discovery in this action, even though the same
information or documents may have been produced in discovery in this litigation and designated
CONFIDENTIAL or ATTORNEYS’ EYES ONLY; or
e)
Disclosing or using for any purpose any information or documents from the party’s
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own files which the party itself has designated as CONFIDENTIAL or ATTORNEYS’ EYES
ONLY.
14.
Non-Party Production Under This Protective Order. Non-parties may provide
or otherwise disclose Confidential Material pursuant to the terms of this Protective Order.
15.
Disposition of Confidential Material After Final Resolution of this Matter.
Unless otherwise agreed to by the parties or by order of the Court, within ninety (90) days of the
final resolution of this action and of any and all appeals of this action, all Confidential Material,
and all copies thereof, shall be (1) upon request, returned to the party that produced it, or (2)
destroyed. Whether the Confidential Material is returned or destroyed, the Receiving Party must
submit a written certification to the Producing Party (and, if not the same person or entity, to the
Designating Party) by the 60 day deadline that (1) identifies (by category, where appropriate) all
the Protected Material that was returned or destroyed and (2) affirms that the Receiving Party has
not retained any copies, abstracts, compilations, summaries or any other format reproducing or
capturing any of the Confidential Material. Notwithstanding this provision, counsel of record for
the parties may continue to maintain for their files a copy of any motion, brief, affidavit, expert
report, discovery response, transcript, trial exhibit, and/or memoranda, which contains
Confidential Material within the document or as an exhibit thereto.
16.
Objections to Discovery Not Covered. This Protective Order is not intended to
address discovery objections to produce, answer, or respond on the grounds of attorney-client
privilege or work product immunity, or to preclude either party from seeking further relief or
protective orders from the Court as may be appropriate under the Federal Rules of Civil Procedure.
17.
Survival.
Except as specifically provided herein, the terms, conditions, and
limitations of this Protective Order shall survive the termination of this action.
18.
Modification of Protective Order. This Protective Order is without prejudice to
the right of any party or non-party to seek further protection and/or relief from the Court, upon
good cause shown, with respect to any of the provisions hereof.
19.
Agreement Pending Entry. The parties agree to be bound by the terms of this
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Protective Order pending its entry by the Court.
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IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD:
Date: December 22, 2020
s/ J. Mark Wilson
J. Mark Wilson
NC State Bar No. 25763
Moore & Van Allen PLLC
Suite 4700
100 North Tryon Street
Charlotte, NC 28202-4003
Telephone (704) 331-1000
Facsimile (704) 339-5981
Email: markwilson@mvalaw.com
Attorneys for Plaintiff Software Pricing
Partners, LLC
Date: December 22, 2020
s/ Sarah Motley Stone_____
W. Clark Goodman
N.C. State Bar No. 19927
Sarah Motley Stone
N.C. State Bar No. 34117
Patrick Grayson Spaugh
N.C. State Bar No. 52217
WOMBLE BOND DICKINSON (US) LLP
One Wells Fargo Center, Suite 3500
301 S. College Street
Charlotte, NC 28202
Telephone: (704) 331-4900
Facsimile: (704) 331-4955
Email: Clark.Goodman@wbd-us.com
Sarah.Stone@wbd-us.com
Patrick.Spaugh@wbd-us.com
Mike.Ingersoll@wbd-us.com
Attorneys for Defendant James H. Geisman
SO ORDERED.
Signed: December 28, 2020
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IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
Case No. 3:19-CV-195-RJC-DCK
SOFTWARE PRICING PARTNERS, LLC,
Plaintiff,
v.
JAMES (“JIM”) H. GEISMAN,
Defendant.
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ACKNOWLEDGEMENT
I , __________________________________________, hereby acknowledge that I have
read and understand the provisions of the attached Order for Protection of Confidential Information
(“Protective Order”) entered by the Court in the above-captioned matter with respect to the nondisclosure of CONFIDENTIAL or ATTORNEYS’ EYES ONLY information and/or documents
(the “Confidential Material”), and I agree to abide by and be bound by its terms. I will not reveal
the Confidential Material to anyone, except as allowed by the Protective Order. I will maintain all
Confidential Material, including copies, notes, or other transcriptions made therefrom, in a secure
manner to prevent unauthorized access to it. I will use Confidential Material only in connection
with my work in this action and for no other purpose. Upon request, I will return the Confidential
Material to the counsel who provided me with the Confidential Material. I hereby submit to the
jurisdiction of the United States District Court for the Western District of North Carolina for the
purpose of enforcing the Protective Order, and this Acknowledgement, by contempt proceedings
or other appropriate judicial remedies.
Executed on _______________________
By: _______
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