Smith v. Commvault Systems, inc.

Filing 13

CONFIDENTIALITY ORDER. Signed by Senior Judge Graham Mullen on 7/16/2021. (brl)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
MARSHALL SMITH,
Plaintiff,
Vs.
COMMVAULT SYSTEMS, INC.
Defendant.

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Civil Action No.: 3:20-cv-00531-GCM

CONFIDENTIALITY ORDER
The parties to this Agreed Confidentiality Order, Plaintiff Marshall Smith, and Defendant
Commvault Systems, Inc., have agreed to the terms of this Order; accordingly, it is ORDERED:
1.

Scope. All materials produced or adduced in the course of discovery, including

initial disclosures, responses to discovery requests, deposition testimony and exhibits, and
information derived directly therefrom (hereinafter collectively “documents”), shall be subject to
this Order concerning Confidential Information as defined below. This Order is subject to the
Local Rules of this District and the Federal Rules of Civil Procedure on matters of procedure and
calculation of time periods. For purposes of this Order, the term “party” also shall include any
non-parties who may be subpoenaed and who provide documents, deposition testimony and/or
other information in response to any such subpoenas.
2.

Confidential Information. As used in this Order, “Confidential Information”

means information designated as “CONFIDENTIAL” by the producing party that falls within
one or more of the following categories: (a) information prohibited from disclosure by statute;
(b) information that reveals trade secrets; (c) research, technical, commercial or financial
information that the party has maintained as confidential; (d) medical information concerning

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any individual; (e) personal identity information; (f) income tax returns (including attached
schedules and forms), W-2 forms and 1099 forms; or (g) personnel or employment records of a
person who is not a party to the case. Information or documents that are available to the public
may not be designated as Confidential Information.
3.

Designation.
a. A party may designate a document as Confidential Information for protection

under this Order by placing or affixing the words “CONFIDENTIAL” on the document and on
all copies in a manner that will not interfere with the legibility of the document. As used in this
Order, “copies” includes electronic images, duplicates, extracts, summaries or descriptions that
contain the Confidential Information. The marking “CONFIDENTIAL” shall be applied prior to
or at the time that the documents are produced or disclosed.

Applying the marking

“CONFIDENTIAL” to a document does not mean that the document has any status or protection
by statute or otherwise except to the extent and for the purposes of this Order. Any copies that
are made of any documents marked “CONFIDENTIAL” shall also be so marked, except that
indices, electronic databases or lists of documents that do not contain substantial portions or
images of the text of marked documents and do not otherwise disclose the substance of the
Confidential Information are not required to be marked.
b. The designation of a document as Confidential Information is a certification by an
attorney or a party appearing pro se that the document contains Confidential Information as
defined in this order.1

An attorney who reviews the documents and designates them as “CONFIDENTIAL” must be admitted
to the Bar of at least one state but need not be admitted to practice in the Western District of North
Carolina unless the lawyer is appearing generally in the case on behalf of a party. By designating
documents confidential pursuant to this Order, counsel submits to the jurisdiction and sanctions of this
Court on the subject matter of the designation.
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4.

Depositions. Unless all parties agree on the record at the time the deposition

testimony is taken, all deposition testimony taken in this case shall be treated as Confidential
Information until the expiration of the following: No later than the fourteenth (14th) day after the
final transcript is delivered to any party or the witness, and in no event later than 60 days after
the testimony was given. Within this time period, a party may serve a Notice of Designation to
all parties of record as to specific portions of the testimony that are designated Confidential
Information, and thereafter only those portions identified in the Notice of Designation shall be
protected by the terms of this Order. The failure to serve a timely Notice of Designation shall
waive any designation of testimony taken in that deposition as Confidential Information, unless
otherwise ordered by the Court.
5.

Protection of Confidential Material.
a. General Protections. Confidential Information shall not be used or disclosed by

the parties, counsel for the parties or any other persons identified in subparagraph (b) for any
purpose whatsoever other than in this litigation, including any appeal thereof.
b. Disclosures of Information Designated as “CONFIDENTIAL.” The parties
and counsel for the parties shall not disclose or permit the disclosure of any material designated
“CONFIDENTIAL” to any third person or entity except as set forth in subparagraphs (i)-(x).
Subject to these requirements, the following categories of persons may be allowed to review
material designated “CONFIDENTIAL”:
i. The Court and its personnel;
ii. Counsel. Counsel for the parties and employees of counsel who have
responsibility for the action;
iii. Parties. Individual parties and employees of a party but only to the extent
counsel determines in good faith that the employee’s assistance is
reasonably necessary to the conduct of the litigation in which the
information is disclosed;
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iv. Court Reporters and Recorders. Court reporters and recorders engaged
for depositions;
v. Contractors. Those persons specifically engaged for the limited purpose
of making copies of documents or organizing or processing documents,
including outside vendors hired to process electronically stored
documents;
vi. Consultants and Experts. Consultants, investigators, or experts
employed by the parties or counsel for the parties to assist in the
preparation and trial of this action but only after such persons have
completed the certification contained in Attachment A, Acknowledgment
of Understanding and Agreement to Be Bound;
vii. Witnesses at Depositions. During their depositions, witnesses in this
action to whom disclosure of Confidential Information is reasonably
necessary. Witnesses shall not retain a copy of any exhibit marked
“CONFIDENTIAL,” except witnesses may receive copies of all exhibits
marked at their depositions in connection with review of the transcripts,
after which witnesses shall destroy those copies. Pages of transcribed
deposition testimony or exhibits to depositions that are designated as
“CONFIDENTIAL” pursuant to the process set out in this Order must be
separately bound by the court reporter and may not be disclosed to anyone
except as permitted under this Order.
viii. Author or Recipient. The author or recipient of the document (not
including a person who received the document in the course of litigation);
and
ix. Mediators. Mediators and their direct staff, provided that they are bound
by a confidentiality agreement acceptable to all parties; and
x. Others by Consent. Other persons only by written consent of the
producing party or upon order of the Court and on such conditions as may
be agreed or ordered.
c. Control of Documents. Counsel for the parties shall make reasonable efforts to
prevent unauthorized or inadvertent disclosure of Confidential Information.

Counsel shall

maintain the originals of the forms signed by persons acknowledging their obligations under this
Order for a period of three years after the termination of the case.
6.

Inadvertent Failure to Designate.

An inadvertent failure to designate a

document as Confidential Information does not, standing alone, waive the right to so designate
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the document; provided, however, that a failure to serve a timely Notice of Designation of
deposition testimony as required by this Order, even if inadvertent, waives any protection for
deposition testimony. If a party designates a document as Confidential Information after it was
initially produced, the receiving party, on notification of the designation, must make a reasonable
effort to assure that the document is treated in accordance with the provisions of this Order. No
party shall be found to have violated this Order for failing to maintain the confidentiality of
material during a time when that material has not been designated Confidential Information, even
where the failure to so designate was inadvertent and where the material is subsequently
designated Confidential Information.
7.

Inadvertent Production of Privileged Documents. Privileged documents that

are inadvertently produced may be “clawed back” by the party that produced them within 14
days of being served with written notice of the inadvertent disclosure by the party that received
the document.
8.

Filing of Confidential Information. This Order does not, by itself, authorize the

filing of any document under seal. Any party wishing to file a document designated as
Confidential Information in connection with a motion, brief or other submission to the Court
must file a separate motion for leave to do so.
9.

No Greater Protection of Specific Documents. Except on privilege grounds not

addressed by this Order, no party may withhold information from discovery on the ground that it
requires protection greater than that afforded by this Order unless the party moves for an order
providing such special protection. The parties may however redact Personal Health Information
from materials, provided that information is not related to any claims or defenses in the lawsuit.

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10.

Challenges by a Party to Designation as Confidential Information. The

designation of any material or document as Confidential Information is subject to challenge by
any party. The following procedure shall apply to any such challenge.
a. Meet and Confer.

A party challenging the designation of Confidential

Information must do so in good faith and must begin the process by conferring directly with
counsel for the designating party. In conferring, the challenging party must explain the basis for
its belief that the confidentiality designation was not proper and must give the designating party
an opportunity to review the designated material, to reconsider the designation, and, if no change
in designation is offered, to explain the basis for the designation. The designating party must
respond to the challenge within five (5) business days.
b. Judicial Intervention. A party that elects to challenge a confidentiality
designation may file and serve a motion that identifies the challenged material and sets forth in
detail the basis for the challenge. Each such motion must be accompanied by a competent
declaration that affirms that the movant has complied with the meet and confer requirements of
this procedure. The burden of persuasion in any such challenge proceeding shall be on the
designating party. Until the Court rules on the challenge, all parties shall continue to treat the
materials as designated under the terms of this Order.
11.

Action by the Court. Applications to the Court for an order relating to materials

or documents designated Confidential Information shall be by motion. Nothing in this Order or
any action or agreement of a party under this Order limits the Court’s power to make orders
concerning the disclosure of documents produced in discovery or at trial.
12.

Use of Confidential Documents or Information at Trial. Nothing in this Order

shall be construed to affect the use of any document, material, or information at any trial or
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hearing. A party that intends to present or that anticipates that another party may present
Confidential Information at a hearing or trial shall bring that issue to the Court’s and parties’
attention at least five (5) days prior to said hearing or trial by motion or in a pretrial
memorandum without disclosing the Confidential Information. The Court may thereafter make
such orders as are necessary to govern the use of such documents or information at trial.
13.

Confidential Information Subpoenaed or Ordered Produced in Other

Litigation.
a. If a receiving party is served with a subpoena or an order issued in other litigation
that would compel disclosure of any material or document designated in this action as
Confidential Information, the receiving party must so notify the designating party, in writing,
immediately and in no event more than three (3) court days after receiving the subpoena or order.
Such notification must include a copy of the subpoena or court order.
b. The receiving party also must immediately inform in writing the party who caused
the subpoena or order to issue in the other litigation that some or all of the material covered by
the subpoena or order is the subject of this Order. In addition, the receiving party must deliver a
copy of this Order promptly to the party in the other action that caused the subpoena to issue.
c. The purpose of imposing these duties is to alert the interested persons to the
existence of this Order and to afford the designating party in this case an opportunity to try to
protect its Confidential Information in the court from which the subpoena or order issued. The
designating party shall bear the burden and the expense of seeking protection in that court of its
Confidential Information, and nothing in these provisions should be construed as authorizing or
encouraging a receiving party in this action to disobey a lawful directive from another court.

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The obligations set forth in this paragraph remain in effect while the party has in its possession,
custody or control Confidential Information by the other party to this case.
14.

Challenges by Members of the Public to Sealing Orders. A party or interested

member of the public has a right to challenge the sealing of particular documents that have been
filed under seal, and the party asserting confidentiality will have the burden of demonstrating the
propriety of filing under seal.
15.

Obligations on Conclusion of Litigation.
a. Ultimate Disposition of Confidential Materials.

Notwithstanding the

provisions of this Confidentiality Order, the ultimate disposition of protected materials under this
Order is subject to a final Order of the Court upon completion of the litigation.
b. Order Continues in Force. Unless otherwise agreed or ordered, this Order shall
remain in force after dismissal or entry of final judgment not subject to further appeal.
c. Obligations at Conclusion of Litigation. Within sixty-three (63) days after
dismissal or entry of final judgment not subject to further appeal, all Confidential Information
and documents marked “CONFIDENTIAL” under this Order, including copies as defined in
¶ 4(a), shall be returned to the producing party unless: (1) the document has been offered into
evidence or filed without restriction as to disclosure; (2) the parties agree to destruction to the
extent practicable in lieu of return; or (3) as to documents bearing the notations, summations, or
other mental impressions of the receiving party, that party elects to destroy the documents and
certifies to the producing party that it has done so.
d. Retention of Work Product and one set of Filed Documents. Notwithstanding
the above requirements to return or destroy documents, counsel may retain (1) attorney work
product, including an index that refers or relates to designated Confidential Information so long
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as that work product does not duplicate verbatim substantial portions of Confidential
Information, and (2) one complete set of all documents filed with the Court including those filed
under seal. Any retained Confidential Information shall continue to be protected under this
Order. An attorney may use his or her work product in subsequent litigation, provided that its
use does not disclose or use Confidential Information.
e. Deletion of Documents filed under Seal from Electronic Case Filing (ECF)
System. Filings under seal shall be deleted from the ECF system only upon order of the Court.
16.

Order Subject to Modification. This Order shall be subject to modification by

the Court on its own initiative or on motion of a party or any other person with standing
concerning the subject matter.
17.

No Prior Judicial Determination. This Order is entered based on the

representations and agreements of the parties and for the purpose of facilitating discovery.
Nothing herein shall be construed or presented as a judicial determination that any document or
material designated Confidential Information by counsel or the parties is entitled to protection
under Rule 26(c) of the Federal Rules of Civil Procedure or otherwise until such time as the
Court may rule on a specific document or issue.
18.

Persons Bound. This Order shall take effect when entered and shall be binding

upon all counsel of record and their law firms, the parties, and persons made subject to this Order
by its terms.
So Ordered.

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WE SO MOVE
and agree to abide by the
terms of this Order

WE SO MOVE
and agree to abide by the
terms of this Order

This the 14th day of July, 2021.

/s/ Julie H. Fosbinder
Counsel for Plaintiff
Julie H. Fosbinder
Fosbinder Law Office
840 Seneca Place
Charlotte, NC 28210
704-560-8600
[e-mail]

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/s/Jeffrey M. Hansen
Counsel for Defendant
Jeffrey M. Hansen
Actuate Law LLC
641 West Lake Street, 5th Floor
Chicago, Illinois 60661
312-579-3124
[e-mail]

ATTACHMENT A
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
MARSHALL SMITH,
Plaintiff,
Vs.
COMMVAULT SYSTEMS, INC.
Defendant.

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Civil Action No.: 3:20-cv-00531-GCM

ACKNOWLEDGMENT AND
AGREEMENT TO BE BOUND
The undersigned hereby acknowledges that he/she has read the Confidentiality Order dated
in the above-captioned action and attached
hereto, understands the terms thereof, and agrees to be bound by its terms. The undersigned
submits to the jurisdiction of the United States District Court for the Western District of North
Carolina in matters relating to the Confidentiality Order and understands that the terms of the
Confidentiality Order obligate him/her to use materials designated as Confidential Information in
accordance with the Order solely for the purposes of the above-captioned action, and not to
disclose any such Confidential Information to any other person, firm or concern.

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The undersigned acknowledges that violation of the Confidentiality Order may result in
penalties for contempt of court.

Name:
Job Title:
Employer:
Business Address:

Date:
Signature

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