Philips Medical Systems Nederland B.V. et al v. TEC Holdings, Inc. et al

Filing 105

PROTECTIVE ORDER. Signed by Magistrate Judge David Keesler on 6/3/21. (mga)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
CASE NO. 3:19-CV-373-MOC-DCK
PHILIPS MEDICAL SYSTEMS NEDERLAND
B.V., PHILIPS NORTH AMERICA LLC, and
PHILIPS INDIA LTD.,
Plaintiffs,
v.
TEC HOLDINGS, INC., TRANSTATE
EQUIPMENT COMPANY, INC., PEAK
TRUST COMPANY-AK, and ROBERT
ANDREW WHEELER,
Defendants.

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ORDER

THIS MATTER IS BEFORE THE COURT on the parties’ “Joint Motion For Entry Of
Protective Order” (Document No. 104) filed June 3, 2021. This motion has been referred to the
undersigned Magistrate Judge pursuant to 28 U.S.C. § 636(b), and immediate review is
appropriate. Having carefully considered the motion and the record, the motion is granted and
the parties’ proposed Protective Order is entered as follows:

PROTECTIVE ORDER
Proceedings and Information Governed.

1.
This Order and any amendments or modifications hereto (“Protective Order”) shall
govern any document, information, or other thing furnished by any party, to any other party, and
includes non-parties who receive a subpoena in connection with this action. The information
protected includes, but is not limited to, answers to interrogatories, answers to requests for
admission, responses to requests for production of documents, deposition transcripts and
videotapes, deposition exhibits, and other writings or things produced, given, or filed in this action
that are designated by a party as “Confidential Information” or “Confidential Attorney Eyes Only
Information” (collectively, “Protected Information”) in accordance with the terms of this Order,
as well as to any copies, excerpts, abstracts, analyses, summaries, descriptions, or other forms of
recorded information containing, reflecting, or disclosing such information.

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Designation and Maintenance of Information.

2.

For purposes of this Protective Order:

The “Confidential Information” designation shall mean that the discovery,
document or otherwise, is comprised of sensitive, non-public information, including but
not limited to trust agreements, trust transactions, and trust financial information, and that
a party deems in good faith to contain proprietary, technical, financial, sensitive, or
confidential personal, research, development, business, or commercial information that
is not publicly available, including that which may be obtained or produced by any nonparty pursuant to a subpoena in this action.

(a)

(b) The “Confidential Attorney Eyes Only Information” designation shall
mean that the document is comprised of Confidential Information that the producing party
deems especially sensitive, which may include, but is not limited to, confidential research
and development, financial, technical, marketing, any other sensitive trade secret
information, nonproprietary computer code and associated information, or information
capable of being utilized for the preparation or prosecution of a patent application dealing
with such subject matter.
3.

Protected Information may be designated in the following manner.

(a)

Documents and things produced during the course of this litigation within
the scope of paragraph 2(a) above, may be designated by the producing party as
containing Confidential Information by placing on each page and each thing a legend
substantially as follows:
CONFIDENTIAL INFORMATION
SUBJECT TO PROTECTIVE ORDER

(b)

Documents and things produced during the course of this litigation within
the scope of paragraph 2(b) above may be designated by the producing party as containing
Confidential Attorney Eyes Only Information by placing on each page and each thing a
legend substantially as follows:
CONFIDENTIAL ATTORNEY EYES ONLY INFORMATION
SUBJECT TO PROTECTIVE ORDER

(c) A party may designate testimony or information disclosed at a deposition
as Protected Information by requesting the reporter to so designate the transcript and any
associated records of same, or any portion thereof at the time of the deposition. If no such
designation is made at the time of the deposition, any party shall have twenty-one (21)
calendar days after receipt of the transcript to designate, in writing to the other parties and
to the court reporter, whether the entire transcript, or specific pages and lines of the
transcript (including any referenced exhibits), is to be designated as Protected
Information. If no such designation is made at the deposition or within such twenty-one
(21) calendar day period (during which period, the transcript shall be treated as
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Confidential Attorneys Eyes Only Information, unless the disclosing party consents to
less confidential treatment of the information), the entire deposition will be considered
devoid of Protected Information. Each party and the court reporter shall attach a copy of
any final and timely written designation notice to the transcript and the media containing
any associated records of same, and each copy thereof in its possession, custody or
control, and the portions designated in such notice shall thereafter be treated in
accordance with this Protective Order. Further, the pages of transcribed deposition
testimony or exhibits to depositions that reveal Protected Information must be marked
with their appropriate designation and separately bound by the court reporter and not
included in the main deposition transcript and exhibit binder, and may not be disclosed
to anyone except as permitted under this stipulated Protective Order.

(d) It is the responsibility of counsel for each party to maintain materials
containing Protected Information in a secure manner and appropriately identified so as to
allow access to such information only to such persons and under such terms as is
permitted under this Protective Order.
Inadvertent Failure to Designate.

4.

The inadvertent failure to designate or withhold any information as Protected
Information or privileged will not be deemed to waive a later claim as to its confidential or
privileged nature, or to stop the producing party from designating such information as confidential
at a later date in writing and with particularity. The information shall be treated by the receiving
party as confidential from the time the receiving party is notified in writing of the change in the
designation.
Challenge to Designations.

5.
A receiving party may challenge a producing party’s designation at any time. Any
receiving party disagreeing with a designation may request in writing that the producing party
change the designation. The producing party shall then have fourteen (14) days after receipt of a
challenge notice to advise the receiving party whether it will change the designation. If the parties
are unable to reach agreement after the expiration of this fourteen (14) day time frame, the
receiving party may at any time thereafter seek a Court Order to alter the confidential status of the
designated information. Until any dispute under this paragraph is ruled upon by the Court, the
designation shall remain in full force and effect and the information shall continue to be accorded
the confidential treatment required by this Protective Order.
Disclosure and Use of Confidential Information.

6.
Information designated as Protected Information may only be used for purposes of
preparation, trial and appeal of this action. Protected Information may not be used by the receiving
party under any circumstances for prosecuting any patent application, for patent licensing or for
any other purpose. If a producing party inadvertently or unintentionally produces to a receiving
party any documents or information subject to a claim of privilege, protection, or immunity from
discovery (including but not limited to attorney-client privilege, work product protection, and
immunities created by federal or state statute, regulation, or common law), the producing party
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shall, within thirty (30) days of the discovery of the inadvertent or unintentional production, give
notice to the receiving party in writing of the producing party’s claim of privilege, protection, or
immunity from discovery. Thereafter, the receiving party shall immediately return, sequester, or
destroy the original and all copies of the Protected Information or privileged materials, including
copies of the Protected Information or privileged materials disseminated to other persons by the
receiving party. The receiving party shall also immediately sequester or destroy all notes,
summaries, abstracts, written digests, recordings, or work product reflecting the contents of such
Protected Information or privileged materials. The receiving party shall certify in writing that it
has returned, sequestered, or destroyed the inadvertently or unintentionally produced Protected
Information or privileged materials, including all copies, and that it has otherwise complied with
the requirements of this paragraph. No further uses or disclosures shall be made of the
inadvertently or unintentionally produced Protected Information or privileged materials until any
dispute over such claim of privilege is resolved by the parties or the Court, as necessary. Such
inadvertent or unintentional disclosure shall not be deemed a waiver in whole or in part of the
producing party’s claim of privilege, protection, or immunity from discovery, either as to specific
documents and information disclosed or on the same or related subject matter. The Parties shall
have the benefit of all limitations on waiver afforded by Rule 26(b)(5)(B) of the Federal Rules of
Civil Procedure and Federal Rule of Evidence 502. Any Party who receives such inadvertently or
unintentionally produced information need not wait for notice from the producing party before
complying with the requirements of this paragraph, and is expected to comply with them as soon
as it is aware that the information produced is privileged.

7.

Confidential Information may be disclosed by the receiving party only to the
following individuals provided that such individuals are informed of the terms of this Protective
Order: (a) corporate party’s officers and employees directly involved in this case whose access to
the information is reasonably required to supervise, manage, or participate in this case; (b) one (1)
in-house counsel who is identified by the receiving party; (c) outside counsel for the receiving
party; (d) supporting personnel employed by (b) and (c), such as paralegals, legal secretaries, data
entry clerks and legal clerks; (e) experts or consultants (subject to provisions of paragraph 9 of
this Order); (f) any persons requested by counsel to furnish services such as photocopying,
document coding, image scanning, mock trial, jury profiling, translation services, court reporting
services, demonstrative exhibit preparation, or the creation of any computer database from
documents; and (g) the Court and its personnel.

8.
Confidential Attorney Eyes Only Information may be disclosed by the receiving
party only to the following individuals provided that such individuals are informed of the terms of
this Protective Order: (a) one (1) in-house counsel who is identified by the receiving party after
that designated in-house counsel enters a formal appearance in this case; (b) outside counsel for
the receiving party; (c) supporting personnel employed by (a) and (b), such as paralegals, legal
secretaries, data entry clerks and legal clerks; (d) experts or consultants (subject to provisions of
paragraph 9 of this Order); (e) any persons requested by counsel to furnish services such as
photocopying, document coding, image scanning, mock trial, jury profiling, translation services,
court reporting services, demonstrative exhibit preparation, or the creation of any computer
database from documents; and (f) the Court and its personnel.
9.

Further, prior to disclosing Protected Information to a receiving party’s expert or

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consultant, the receiving party shall provide to the producing party a signed Confidentiality
Agreement in the form attached as Exhibit A, the resume or curriculum vitae of the proposed
expert or consultant, and a list of current business or consulting affiliations, and a history of
consulting or expert work in the last five (5) years. The producing party shall thereinafter have
fourteen (14) days from receipt of the Confidentiality Agreement to object to any proposed
individual. Such objection must be made for good cause and in writing, stating with particularity
the reasons for objection. Failure to object within fourteen (14) days shall constitute approval. If
the parties are unable to resolve any objection, the receiving party may apply to the Court to resolve
the matter. There shall be no disclosure of Protected Information to any proposed expert or
consultant during the fourteen (14) day objection period, unless that period is waived by the
producing party, or if any objection is made, until the parties have resolved the objection or the
Court has ruled upon any resultant motion.

10.

Counsel shall be responsible for the adherence by third-party vendors to the terms
and conditions of this Protective Order. Counsel may fulfill this obligation by obtaining a signed
Confidentiality Agreement in the form attached as Exhibit B.

11. Confidential Information or Confidential Attorney Eyes Only Information may be
disclosed to a person, not already allowed access to such information under this Protective Order,
if:
(a)
the information was previously received or authored by the person or was
authored or received by a director, officer, employee, or agent of the company for which
the person is testifying as a Rule 30(b)(6) designee;
(b) the designating party is the person or is a party for whom the person is a
director, officer, employee, consultant or agent; or
(c) counsel for the party designating the material agrees that the material may
be disclosed to the person.
In the event of disclosure under this paragraph, only the reporter, the person, his or her
counsel, the Court and its personnel, and persons to whom disclosure may be made, and who
are bound by the Protective Order, may be present during the disclosure or discussion of the
Protected Information. Disclosure of material pursuant to this paragraph shall not constitute a
waiver of the confidential status of the material so disclosed.
Non-Party Information.

12. The existence of this Protective Order shall be disclosed to any person producing
documents, tangible things or testimony in this action who may reasonably be expected to desire
confidential treatment for such documents, tangible things or testimony. Any such person may
designate documents, tangible things, or testimony confidential pursuant to this Protective Order.
Filing and Sealing Documents With the Court.

13.

In the event that any party wishes to submit Protected Information to the Court, the

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parties agree to follow the practice and procedures prescribed by the Court for filing and sealing
documents as described in the Local Civil Rule 6.1. Specifically, the parties agree that any
documents (including briefs), tangible things, or information designated as Confidential or
Confidential Attorneys Eyes Only Information that are submitted to the Court in support of or in
opposition to a motion or introduced at a hearing or during trial may retain their protected
confidential status only by compliance with Local Civil Rule 6.1. A party seeking to file
documents containing Protected Information shall first consult with the Designating Party to
determine if some measure less restrictive than filing under seal may serve to provide adequate
protection. The Designating Party shall promptly respond to all such requests seeking input on the
use of some measure less restrictive than filing under seal.
No Prejudice.

14. Producing or receiving confidential information, or otherwise complying with the
terms of this Protective Order, shall not (a) operate as an admission by any party that any particular
Protected Information contains or reflects trade secrets or any other type of confidential or
proprietary information; (b) prejudice the rights of a party to object to the production of
information or material that the party does not consider to be within the scope of discovery; (c)
prejudice the rights of a party to seek a determination by the Court that particular materials be
produced; (d) prejudice the rights of a party to apply to the Court for further protective orders; or
(e) prevent the parties from agreeing in writing to alter or waive the provisions or protections
provided for herein with respect to any particular information or material.
Conclusion of Litigation.

15. Subject to a final order of the Court on the completion of litigation, within sixty
(60) calendar days after final judgment in this action, including the exhaustion of all appeals, or
within sixty (60) calendar days after dismissal pursuant to a settlement agreement, each party or
other person subject to the terms of this Protective Order shall be under an obligation to destroy or
return to the producing party all materials and documents containing Protected Information, and
to certify to the producing party such destruction or return. However, outside counsel for any party
shall be entitled to retain all court papers, transcripts, exhibits, and attorney work product and
privileged communications (but only to the extent that the privileged communications do not attach
Protected Information), provided that any such materials are maintained and protected in
accordance with the terms of this Protective Order.
Other Proceedings.

16. By entering this Order and limiting the disclosure of information in this case, the
Court does not intend to preclude another court from finding that information may be relevant and
subject to disclosure in another case. Any person or parties subject to this Protective Order that
may be subject to a motion to disclose another party’s information designated as Protected
Information pursuant to this Protective Order, shall promptly notify the designating party of the
motion so that it may have an opportunity to appear and be heard on whether that information
should be disclosed.
17.

Any party may petition the Court for good cause shown, in the event such party

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desires relief from a term or condition of this Order.

18.

The provisions of this Protective Order shall survive the conclusion of this action.

SO ORDERED.
Signed: June 3, 2021

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Exhibit A
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
CASE NO. 3:19-CV-373-MOC-DCK
PHILIPS MEDICAL SYSTEMS
NEDERLAND B.V., PHILIPS NORTH
AMERICA LLC, and PHILIPS INDIA LTD,

Plaintiffs,

TEC HOLDINGS, INC., F/K/A
TRANSTATE EQUIPMENT COMPANY,
INC.; ROBERT ANDREW WHEELER,
individually, in his capacity as director,
officer, and shareholder of TEC
HOLDINGS, INC., F/K/A TRANSTATE
EQUIPMENT COMPANY, INC., in his
capacity as Executor of the Estate of
DANIEL R. WHEELER, and in his
capacity as Trustee of the THE ROBERT
A. WHEELER FAMILY TRUST; and
PEAK TRUST COMPANY—AK, as
Trustee of the WHEELER FAMILY
TRUST and THE RAW FAMILY TRUST,
Defendants.
CONFIDENTIALITY AGREEMENT FOR EXPERT,
CONSULTANT OR EMPLOYEES OF ANY PARTY
I hereby affirm that:
Information, including documents and things, designated as “Protected Information,” as
defined in the Protective Order entered in the above-captioned action (hereinafter “Protective
Order”), is being provided to me pursuant to the terms and restrictions of the Protective Order.
I have been given a copy of and have read the Protective Order.
I am familiar with the terms of the Protective Order and I agree to comply with and to
be bound by such terms.
I submit to the jurisdiction of this Court for enforcement of the Protective Order.

I agree not to use any Protected Information disclosed to me pursuant to the Protective
Order except for purposes of the above-captioned litigation and not to disclose any such
information to persons other than those specifically authorized by said Protective Order,
without the express written consent of the party who designated such information as
confidential or by order of this Court. I also agree to notify any stenographic, clerical, or
technical personnel who are required to assist me of the terms of this Protective Order and of its
binding effect on them and me.
I understand that I am to retain all documents or materials designated as or containing
Protected Information in a secure manner, and that all such documents and materials are to
remain in my personal custody until the completion of my assigned duties in this matter,
whereupon all such documents and materials, including all copies thereof, and any writings
prepared by me containing any Protected Information are to be returned to counsel who
provided me with such documents and materials.

_______________________
Date

____________________________
____________________________ [print name]

Exhibit B
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
CASE NO. 3:19-CV-373-MOC-DCK
PHILIPS MEDICAL SYSTEMS
NEDERLAND B.V., PHILIPS NORTH
AMERICA LLC, and PHILIPS INDIA LTD,

Plaintiffs,

TEC HOLDINGS, INC., F/K/A
TRANSTATE EQUIPMENT COMPANY,
INC.; ROBERT ANDREW WHEELER,
individually, in his capacity as director,
officer, and shareholder of TEC
HOLDINGS, INC., F/K/A TRANSTATE
EQUIPMENT COMPANY, INC., in his
capacity as Executor of the Estate of
DANIEL R. WHEELER, and in his
capacity as Trustee of the THE ROBERT
A. WHEELER FAMILY TRUST; and
PEAK TRUST COMPANY—AK, as
Trustee of the WHEELER FAMILY
TRUST and THE RAW FAMILY TRUST,
Defendants.

CONFIDENTIALITY AGREEMENT FOR THIRD-PARTY VENDORS
I hereby affirm that:
Information, including documents and things, designated as “Protected Information,” as
defined in the Protective Order entered in the above-captioned action (hereinafter “Protective
Order”), is being provided to me pursuant to the terms and restrictions of the Protective Order.
I have been given a copy of and have read the Protective Order.
I am familiar with the terms of the Protective Order and I agree to comply with and to
be bound by such terms.
I submit to the jurisdiction of this Court for enforcement of the Protective Order.

I agree not to use any Protected Information disclosed to me pursuant to the Protective Order
except for purposes of the above-captioned litigation and not to disclose any such information to
persons other than those specifically authorized by said Protective Order, without the express
written consent of the party who designated such information as confidential or by order of this
Court.
_______________________
Date

____________________________
____________________________ [print name]

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