Performance Sales & Marketing, LLC, Iredell County et al

Filing 72

PROTECTIVE ORDER. 71 Motion for Protective Order granted. Signed by Magistrate Judge Dennis Howell on 11/3/2010. (cbb)

- D L H Performance Sales & Marketing, LLC, et al vs. Greg Serey, et al

D o c . 72

IN THE UNITED STATES DISTRICT COURT F O R THE WESTERN DISTRICT OF NORTH CAROLINA S T A T E S V IL L E DIVISION 5 :0 7 cv 1 4 0 P E R F O R M A N C E SALES & ) M A R K E T IN G , LLC, a North Carolina L im ited Liability Company; PSM G R O U P , INC., a North Carolina C o rp o ra tio n ; an GREG SEREY, an in d iv id u a l, P la in t if f s , V s. L O W E 'S COMPANIES, INC., D e fe n d a n t . _______________________________

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ORDER

T H IS MATTER is before the court on defendant's Motion for Protective O r d e r. Having considered defendant's motion and reviewed the pleadings, the court e n te rs the following Order.

ORDER IT IS, THEREFORE, ORDERED that defendant's Motion for Protective O rd er (#71) is GRANTED, and the following PROTECTIVE ORDER is entered:

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T H IS CAUSE coming on before the undersigned Judge upon the consent m o tio n of Plaintiffs and Defendant (collectively, the "Parties") pursuant to Fed. R. C iv . P. 26(c), for good cause shown the Court hereby approves and enters the f o llo w in g Protective Order. 1. 2. T h e "Litigation" shall mean the above-captioned lawsuit. "Discovery Materials" shall mean and include any document (whether in hard copy or electronic form), records, responses to discovery, w h eth er documentary or oral, and other information provided, served, d isclo sed , filed, or produced, whether voluntarily or through discovery, in connection with this Litigation. 3. "P r o d u c in g Party" shall mean any party or nonparty person or entity that p ro v id es, serves, files, or produces any nonpublic information in co n n ectio n with this Litigation. 4. D isco v ery Materials produced or disclosed in connection with the L itig atio n by a Producing Party that contain either: (1) non-public sen sitiv e, commercial, financial, or proprietary information; or (2) nonp u b lic personal information concerning individuals such as social secu rity numbers, home telephone numbers and addresses, tax returns, p e r s o n n e l evaluations, and medical and banking information, may be

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d esig n ated "Confidential'" by the Producing Party. Discovery Materials d e s ig n a te d "Confidential" shall be referred to herein as "Confidential D is c o v ery Materials." The Parties further agree that reference to any categ o ry or type of Discovery Material above is not intended to and shall n o t be construed as an admission that the Discovery Material is not s u b je ct to an applicable privilege or protection, or that the Discovery M aterial is relevant, admissible, or reasonably calculated to lead to the d is co v e ry of admissible evidence. 5. C o n fid en tial Discovery Material may be designated confidential by m a rk in g or stamping the page or pages containing such information as "C O N F I D E N T I A L " or, in the case of Confidential Discovery Material th at cannot be so stamped or marked, pursuant to a letter from the P ro d u cin g Party identifying such materials as Confidential. 6. C O N F ID E N T IA L information and documents shall be maintained in strict confidence by the Parties who receive such documents or in fo rm atio n , shall be used solely for the purposes of this Litigation, and sh all not be disclosed to any person or entity except:
(a) The United States District Court for the Western District of North Carolina or the United States Court of Appeals for the Fourth Circuit (the "Courts") and persons assisting the Courts or assisting in the Litigation process (including, but not limited to, court personnel, court reporters, stenographic reporters, and videographers); -3-

(b)

The attorneys of record in this Litigation and their partners, employees, and associates who are assisting in the Litigation (collectively hereafter referred to as "Outside Counsel"); A Party, or a former or current officer, director, or employee of a Party deemed necessary by the Party's counsel for the prosecution, defense, or settlement of this Litigation; Subject to the terms of Paragraphs 9 and 10 below, experts or consultants and their staff, and litigation support personnel and their staff, retained by the Parties and/or Outside Counsel in this Litigation; Subject to the terms of Paragraph 10 below, support vendors or contractors retained by Outside Counsel for functions directly related to this Litigation, such as copying, document management, and graphic design; and Any other person as to whom the Parties may agree in writing.

(c)

(d)

(e)

(f)

7.

S u b je ct to the following restrictions, a party may utilize Confidential D isco v ery Materials in the course of examining a witness during a d e p o s itio n : ( a) D u r in g the deposition of any Party or any expert retain ed to testify on behalf of a Party in this litigation, the P a rty conducting the deposition may utilize Confidential D is c o v ery Materials, provided that the Party or expert, p r io r to the utilization of such information, executes an u n d e r ta k in g in the form of Exhibit A; the original executed u n d ertak in g shall be maintained by counsel conducting the d e p o s itio n . D u r in g the deposition of any non-Party or non-expert w itn ess, the Party conducting the deposition may only u tilize Confidential Discovery Materials provided by (i) itself, (ii) the witness, or (iii) the witness' employer. A P arty's use of its own Confidential Discovery Materials
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(b)

d u r in g a deposition shall not standing alone constitute a w aiv er of the confidentiality of that information. 8. A Producing Party may, in good faith, designate Discovery Materials c o n ta in in g highly confidential trade secret or competitive information as "H I G H L Y CONFIDENTIAL ­ COUNSEL ONLY." Discovery

M ater ials designated "HIGHLY CONFIDENTIAL ­ COUNSEL O N L Y " shall be referred to herein as "Highly Confidential Discovery M a te ria ls ." Highly Confidential Discovery Materials may be designated H IG H L Y CONFIDENTIAL ­ COUNSEL ONLY by marking or stam p in g the page or pages containing such information as "HIGHLY C O N F ID E N T IA L ­ COUNSEL ONLY" or, in the case of Highly C o n fid en tial Discovery Materials that cannot be so stamped or marked, b y letter identifying such documents as Highly Confidential Discovery M a te r ia ls . 9. H ig h ly Confidential Discovery Materials shall be maintained in strict c o n f id e n c e for use by Outside Counsel for the Parties and shall be used s o le ly for the purposes of this Litigation. Highly Confidential Discovery M aterials shall not be disclosed to any person except those listed in P a ra g r ap h 6, subparagraphs (a), (b), (e) and (f). Highly Confidential D isco v ery Materials may only be disclosed to persons listed in Paragraph
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6 , subparagraph (d) if deemed necessary by counsel for the prosecution, d efen se, or settlement of this Litigation and if, prior to the utilization of su ch information, those persons execute a certification in the form of E x h ib it A. In the event a Party intends to disclose a Producing Party's H ig h ly Confidential Discovery Materials during a deposition or court p r o c e e d in g to a person listed in Paragraph 6, subparagraph (c), or a p e r s o n who did not prepare or previously receive such information and is not an employee or consultant of the Producing Party, the opposing p arty shall give two (2) business days advance notice to the Producing P a r ty . 10. W ith respect to persons listed in Paragraph 6, subparagraphs (c), (d), (e), a n d (f), prior to receiving Confidential or Highly Confidential Discovery M aterials such persons must be provided with a copy of this Order and m u st sign a Certification in the form set forth as Exhibit A hereto, ack n o w led g in g that he/she has carefully and completely read, u n d erstan d s, and agrees to be bound by this Order. The Party on whose b e h a lf such a Certification is signed shall retain the original C ertificatio n . Notwithstanding any other provision herein, nothing shall p r e v e n t a party from revealing Confidential or Highly Confidential

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D is co v e ry Materials to a witness who created or previously received su ch Confidential or Highly Confidential Discovery Materials. 11. I f a Producing Party, through inadvertence, produces any Confidential o r Highly Confidential Discovery Materials without marking or d e s ig n a tin g them as such in accordance with the provisions of this Order, th e Producing Party may, promptly on discovery, furnish a substitute c o p y properly marked along with written notice to all Parties (or written n o tice alone as to non-documentary information) that such information is deemed Confidential or Highly Confidential Discovery Material and s h o u ld be treated as such in accordance with the provisions of this Order. A n y Party who has received such inadvertently produced materials that w ere not properly marked, shall return all copies of the same to the P r o d u c in g Party within five (5) days of receipt of the properly marked su b stitu te copies. 12. W h en testimony is to be elicited during a deposition that is, or is likely to be, Confidential or Highly Confidential, persons not entitled to receive su ch information under the terms of this Order shall be excluded from th e deposition. Deposition transcripts, or portions thereof, containing C o n f id e n tial or Highly Confidential Discovery Material shall be so

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d esig n ated at the beginning and end of the testimony containing C o n f id e n tia l or Highly Confidential Discovery Material, either orally at th e deposition or in writing to the court reporter and counsel of record no later than twenty (20) days following receipt of the transcript. Until the e n d of the twenty (20) day period, the Parties shall treat the entire tr an s c r i p t as Confidential Discovery Material. Following the written d esig n atio n of a portion of the transcript as "CONFIDENTIAL" or "H IG H L Y CONFIDENTIAL -- COUNSEL ONLY," any such portions o f the transcript shall be bound separately from those portions that do not co n tain Confidential or Highly Confidential Discovery Material, and sh all be marked with the following legend: T H IS TRANSCRIPT CONTAINS MATERIALS WHICH ARE C L A IM E D TO BE "CONFIDENTIAL" BY COUNSEL AND COVERED BY A PROTECTIVE ORDER -- TO BE FILED WITH THE COURT UNDER SEAL; or T H IS TRANSCRIPT CONTAINS MATERIALS WHICH ARE C L A IM E D TO BE "HIGHLY CONFIDENTIAL -- COUNSEL ONLY" BY

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C O U N S E L AND COVERED BY A PROTECTIVE ORDER -- TO BE FILED W IT H THE COURT UNDER SEAL.

13.

If Confidential or Highly Confidential Discovery Material, including any p o rtio n of a deposition transcript designated as CONFIDENTIAL or H IG H LY CONFIDENTIAL ­ COUNSEL ONLY, is included in any p ap ers to be filed with the Court, such Confidential or Highly C o n fid en tial Discovery Material shall be filed separately under seal. F ilin g under seal shall be without prejudice to any Party's right to argue th at such document does not constitute Confidential or Highly C o n fid en tial Discovery Material and need not be preserved under seal.

14.

N o th in g in this Order shall be construed as an admission or agreement th at any specific information is or is not Confidential or Highly C o n fid en tial Discovery Material, subject to discovery, relevant, or ad m issib le in evidence in any future proceeding. All Parties reserve the rig h t to challenge the designation of any documents, materials, or testim o n y as Confidential or Highly Confidential under this Order.

15.

I f at any time a Party objects to a designation of Discovery Material as C o n fid en tial or Highly Confidential under this Order, the objecting party
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sh all notify the Producing Party in writing. The objecting party shall id en tify the Discovery Materials in question and shall specify in reaso n ab le detail the reason or reasons for the objection. Within ten (10) d ays of the receipt of such notice, the Producing Party and objecting p a r ty shall meet and confer in an effort to resolve their disagreement. If th e Parties cannot resolve their disagreement, the objecting party may ap p ly within fifteen (15) calendar days for a ruling from the Court on the P r o d u c in g Party's designation of the Discovery Materials as Confidential o r Highly Confidential. While any such application is pending, the d o cu m en ts or material subject to that application will remain C o n fid en tial or Highly Confidential until the Court rules on the a p p lic atio n . If the objecting party does not apply to the Court for a ru lin g within the time period prescribed herein, the Discovery Materials w ill remain Confidential or Highly Confidential until deemed otherwise b y the Producing Party. In any court review, the Producing Party shall h av e the burden of showing that the document or information is C o n fid en tial or Highly Confidential pursuant to this Order. Nothing in th is Order shall be construed as preventing any Party from objecting to th e designation of any document as Confidential or Highly Confidential,

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o r preventing any Party from seeking further protection for any material it produces in discovery. 16. T h is Order shall not be construed to prevent any party from making use o f or disclosing information that was lawfully obtained by a party in d e p e n d e n t of discovery in this Litigation, whether or not such material is also obtained through discovery in this Litigation, or from disclosing its own Confidential or Highly Confidential Discovery Material as it d e e m s appropriate. 17. A n y Party or person receiving Confidential or Highly Confidential D isco v ery Materials covered by this Order that receives a request or su b p o en a for production or disclosure of the Confidential or Highly C o n f id e n tia l Discovery Materials shall immediately give written notice to the Party who designated the information as Confidential or Highly C o n f id en tial ("the Designating Party") through the Designating Party's co u n sel, identifying the information sought and enclosing a copy of the su b p o en a or request. The person subject to the subpoena or other request s h all not produce or disclose the requested Confidential or Highly C o n fid en tial Discovery Materials without consent of the Designating P arty unless: (a) the Designating Party fails to seek relief from the

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su b p o en a or request in a timely manner as determined by any federal or state rules applying to such subpoena or request; or (b) notwithstanding th e Designating Party's request for relief, production or disclosure is o rd ered by a court of competent jurisdiction. 18. N o person to whom Confidential or Highly Confidential Discovery M aterials is disclosed by Outside Counsel shall make a copy of any C o n fid en tial or Highly Confidential Discovery Materials unless copying reaso n ab ly promotes the preparation for and trial of this Litigation. N eith er Outside Counsel, nor any individual to whom they make d is clo s u r e shall disclose any Confidential or Highly Confidential D isco v ery Materials covered under this Order except for the purposes of p rep arin g for and prosecuting this Litigation. 19. T h is Order shall survive settlement, judgment, or other disposition or co n clu sio n of this action and all appeals therefrom and this Court shall retain continuing jurisdiction to enforce the terms of this Order. Upon co n clu sio n of this action as to all Parties (including appeals), all C o n fid en tia l or Highly Confidential Discovery Materials or copies of su ch Confidential or Highly Confidential Discovery Materials (except co p ies admitted into evidence) shall be disposed of and/ or returned to

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th e Producing Party according to the dictates of a final Order of the C o u r t. 20. T h is Order may be modified by mutual agreement of the Parties. Such m o d ificatio n shall be in writing and signed by all Parties.

Signed: November 3, 2010

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E X H I B IT A IN THE UNITED STATES DISTRICT COURT F O R THE WESTERN DISTRICT OF NORTH CAROLINA S T A T E S V IL L E DIVISION 5 :0 7 cv 1 4 0 P E R F O R M A N C E SALES & ) M A R K E T IN G , LLC, a North Carolina L im ited Liability Company; PSM G R O U P , INC., a North Carolina C o rp o ra tio n ; an GREG SEREY, an in d iv id u a l, P la in t if f s , V s. L O W E 'S COMPANIES, INC., D e fe n d a n t . _______________________________

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ORDER

C E R T IF IC A T IO N T h e undersigned hereby certifies that he/she has received and read the Consent P ro tectiv e Order entered by the Court in this action and agrees to be bound by its term s and conditions.

N am e: Date:

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