Marx Industries, Inc. v. Chestnut Ridge Foam, Inc.

Filing 79

PROTECTIVE ORDER. Signed by Magistrate Judge David Keesler on 2/5/2014. (cbb)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
STATESVILLE DIVISION
CIVIL ACTION NO. 5:11-CV-139-RLV-DCK

MARX INDUSTRIES, INC.,
Plaintiff,
v.
CHESTNUT RIDGE FOAM, INC.,
Defendant,
v.
MTJ AMERICAN, LLC,
Third-Party Defendant.

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PROTECTIVE ORDER

This Protective Order is entered by the Court pursuant to the Court’s “Order”
(Document No. 73), and following consideration of “Defendant/Counterclaim-Plaintiff
Chestnut Ridge Foam’s Motion For Entry Of Protective Order” (Document No. 74),
and “Plaintiff And Third Party Defendant’s Motion For Protective Order” (Document
No. 76).

This Protective Order governs the disclosure of information by Marx

Industries, Inc. (“Marx”), MTJ American, LLC (“MTJ”) (collectively, “Marx/MTJ” or
“Plaintiffs”), and Chestnut Ridge Foam, Inc. (“Chestnut Ridge”) (each individually, a “Party”;
c o l l e c t i v e l y , the “Parties”) related to this lawsuit.
WHEREAS, the Parties are currently involved in litigation pending before the United
States District Court for the Western District of North Carolina, Statesville Division, Civil
Action No. 5:11-cv-139-RLV-DCK (the “Litigation”);
WHEREAS, the Parties and certain Non-Party witnesses may from time to time be
required to produce documents or provide testimony in the Litigation;

WHEREAS, some of these documents or testimony may contain confidential
information within the scope of this Protective Order; and
WHEREAS, Marx, MTJ, Chestnut Ridge and/or one or more Non-Party witnesses
may desire to preserve the confidentiality of any such material and/or information, but at the
same time, be required to make such information available for use in the Litigation.
IT IS, THEREFORE , ORDERE D :
I.
1.

MATERIALS COVERED
This Protective Order shall govern any record of information designated pursuant

to this Protective Order and produced in this action, including confidential and proprietary
information and documents produced or disclosed by any Party or Non-Party that produces or
discloses such information and documents, whether pursuant to a subpoena served in the
Litigation or any other court order or process.
The information and documents described in this paragraph, including any copies,
notes, abstracts or summaries of such information, shall hereinafter be referred to as
“Litigation Materials.”
2.

“Confidential” or “Highly Confidential” information shall mean and refer to

Litigation Materials designated as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL ATTORNEYS’ EYES ONLY” by a Producing Party in the manner set forth in ¶ 5 below. As
used in ¶ 1 and elsewhere, the term “document” shall have the broadest meaning possible
The term “Producing Party” shall mean any

under the Federal Rules of Civil Procedure.

Party and/or Non-Party who either produces or testifies as to confidential and/or proprietary
information or who asserts a confidentiality interest in information produced or testimony
given by another in this action.
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3.

Litigation Materials which may be designated “CONFIDENTIAL” shall be

limited to those that, in the good faith belief of a Producing Party, contain or refer to
confidential proprietary information (including nonpublic proprietary financial, technical
and/or business information) of the Producing Party or its affiliates. To the extent that
material is marked CONFIDENTIAL, such material shall be revealed to or used by limited
categories of individuals, as provided for in ¶ 7 below, and shall not be communicated in
any manner, either directly or indirectly, to any person or entity not permitted disclosure
pursuant to this Protective Order. Any copies of such material, abstracts, summaries or
information derived therefrom, and any notes or other records regarding the contents
thereof, shall also be deemed CONFIDENTIAL and the same terms regarding
confidentiality of these materials shall apply as apply to the originals. The Parties shall use
reasonable care to avoid designating any documents or information CONFIDENTIAL that
are generally available to the public.
4.

Litigation Materials which may be designated “HIGHLY CONFIDENTIAL

– ATTORNEYS’ EYES ONLY” shall be limited to those that, in the good faith belief of the
Producing Party, contain or refer to highly confidential trade secrets, customer
communications, and competitively sensitive commercial and/or financial information. To
the extent that material is marked HIGHLY CONFIDENTIAL - ATTORNEYS’ EYES
ONLY, such material shall be revealed to or used by limited categories of individuals, as
provided for in ¶ 8 below, and shall not be communicated in any manner, either directly or
indirectly, to any person or entity not permitted disclosure pursuant to this Protective Order.
Any copies of such material, abstracts, summaries or information derived therefrom, and
any notes or other records regarding the contents thereof, shall also be deemed HIGHLY
CONFIDENTIAL - ATTORNEYS’ EYES ONLY, and the same terms regarding
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confidentiality of these materials shall apply as apply to the originals. The Parties shall use
reasonable care to

avoid designating

any documents

or information HIGHLY

CONFIDENTIAL - ATTORNEYS’ EYES ONLY for which the designating Party does not
have a good faith belief that the documents or information satisfy the criteria set forth in this
paragraph.
II.
5.

METHOD OF DESIGNATION
A Producing Party may designate as “CONFIDENTIAL” or “HIGHLY

CONFIDENTIAL - ATTORNEYS’ EYES ONLY” any Litigation Materials in the following
manner:
(a)

any Producing Party shall mark any documents or items it believes, in

good faith, may be designated “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL ATTORNEYS’ EYES ONLY” pursuant to this Protective Order with appropriate confidentiality
markings at the time of production. Initial failure, by inadvertence or otherwise, to mark a
particular item as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL - ATTORNEYS’ EYES
ONLY” shall not preclude a subsequent designation and marking of such item by the
Producing Party.
(b)

any testimony taken in this action, including any document introduced

in connection with such testimony, may be designated “CONFIDENTIAL” by any one of
the following means:

(i) by stating orally on the record that the information is

“Confidential” on the day the testimony is given;

or (ii) by sending written notice to all

Parties and any relevant Non-Party designating information as “Confidential” within ten
(10) business days after the transcript of the testimony is delivered to the Party or Non-Party
designating the testimony or document as confidential.
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(c)

any Party or Non-Party may designate a document produced by a Non-

Party pursuant to subpoena, order of court, or otherwise as “CONFIDENTIAL” or “HIGHLY
CONFIDENTIAL - ATTORNEYS’ EYES ONLY” by sending written notice to all Parties so
designating such document within ten (10) business days after the document is delivered to
the Party requesting the document.
III. TREATMENT OF “CONFIDENTIAL” MATERIALS
6.

No copies of Litigation Materials designated as “CONFIDENTIAL” or

“HIGHLY CONFIDENTIAL - ATTORNEYS’ EYES ONLY” shall be made except to the extent
necessary for the preparation and conduct of this Litigation (including appeals). Any person
responsible for making such copies must ensure that the copies adequately reflect any
“CONFIDENTIAL” or “HIGHLY CONFIDENTIAL - ATTORNEYS’ EYES ONLY” stamp or
legend thereon.
7.

Litigation Materials designated “CONFIDENTIAL,” including any copies,

notes, abstracts or summaries thereof, shall be maintained in confidence by the person to
whom such materials are produced or disclosed, shall be used only in connection with this
Litigation and not for any other purpose and shall not be disclosed to any person, except as
follows:
(a)

any officer or director of a Party to whom disclosure is necessary for

(b)

the Court and its staff in connection with the Litigation;

(c)

any court reporter who records any testimony in the Litigation;

this action;

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(d)

any outside counsel (i.e., an attorney who is not an employee of a

Party) acting on behalf of a Party in the Litigation;
(e)

any actual or prospective expert or consultant (not an employee of any

Party) identified and/or retained by any Party to assist it in the Litigation, who first agree to be
bound by the terms of this Protective Order;
(f)

any paralegal, clerical employee and/or law clerk retained or

employed and supervised by outside counsel who is working on the prosecution or defense of
the Litigation;
(g)

any employee of a Party who has been specifically directed or

designated to assist outside counsel’s preparation with respect to the Litigation or testify on
behalf of such Party; and
(h)

persons designated as actual or prospective trial witnesses, solely to the

extent necessary to prepare for and give testimony.
8.

Documents

or

information

designated

“HIGHLY

CONFIDENTAIL

–

ATTORNEYS’ EYES ONLY” may be disclosed by the recipient thereof, on a need-to-know
basis, only to those categories of individuals listed in Paragraphs 7(b)-(e) above.
9.
“HIGHLY

Each person to whom information designated as “CONFIDENTIAL” or
CONFIDENTIAL

-

ATTORNEYS’

EYES

ONLY”

is revealed,

disclosed or made available for inspection (except the persons identified in Paragraphs 7 (b)-(d)
above) shall, prior to having access to such information, sign the Agreement in the form annexed
hereto as Appendix A.
10.

All persons authorized by this Order to receive copies of Litigation Materials

designated “CONFIDENTIAL” or “ H I G H L Y C O N F I D E N T I A L - A T T O R N E Y S ’
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E Y E S O N L Y ” and/or information derived therefrom, shall maintain such information as
“CONFIDENTIAL” or “ H I G H L Y

CONFIDENTIAL

-

ATTORNEYS’

EYES

O N L Y ” in accordance with this Protective Order and shall use such information solely for
the purpose of preparing for and conducting the Litigation.
11.

All persons authorized to receive “CONFIDENTIAL” or

“HIGHLY

C O N F I D E N T I A L - A T T O R N E Y S ’ E Y E S O N L Y ” information under this Order to
whom any “CONFIDENTIAL” or “ H I G H L Y C O N F I D E N T I A L - A T T O R N E Y S ’
E Y E S O N L Y ” materials are furnished, shown or disclosed, shall be given a copy of this
Protective Order and shall be bound by its terms.
IV. INADVERTENT DISCLOSURE
12.

In the event that information designated as “CONFIDENTIAL” or “ H I G H L Y

C O N F I D E N T I A L - A T T O R N E Y S ’ E Y E S O N L Y ” is disclosed to someone not
authorized to receive such information under this Protective Order, or if a person so authorized
breaches any of his or her obligations under this Protective Order, counsel who learns of such
unauthorized disclosure or breach shall (to the extent consistent with applicable ethical canons
and/or rules) immediately give notice of such unauthorized disclosure or breach to the other
counsel of record, disclose the circumstances of the unauthorized disclosure or breach and take
all actions reasonably necessary to mitigate the harm caused by such unauthorized disclosure or
breach.
V.
13.

FILING OF “CONFIDENTIAL” DOCUMENTS
Litigation

Materials

designated

“CONFIDENTIAL”

or

“HIGHLY

C O N F I D E N T I A L - A T T O R N E Y S ’ E Y E S O N L Y ” or quotes from or references to
such materials, shall not be included in papers or motions filed with or otherwise disclosed to
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the Court, except under seal. Pursuant to Western District of North Carolina Local Civil Rule
6.1, any Party wishing to make such a filing must first present a motion regarding the specific
documents sought to be filed under seal. The motion shall set forth: (a) a non-confidential
description of the material sought to be sealed; (b) a statement as to why sealing is necessary
and why there are no alternatives to filing under seal; (c) unless permanent sealing is sought,
a statement as to the period of time the Party seeks to have the material maintained under seal
and as to how the matter is to be handled upon unsealing; (d) supporting statutes, case law or
other authority; and (e) a statement as to whether the other Parties in this action consent to the
motion.
Upon approval by the Court, the protected materials shall be filed in a sealed envelope
or other appropriate container on which shall be endorsed the caption of this lawsuit, the title
of the court paper or a brief description of the enclosed materials, the legend
“CONFIDENTIAL - SUBJECT TO COURT ORDER,” and a statement to the following
effect:
This envelope [or other container] contains documents filed
in this case by [name of party]; it is not to be opened by, nor
are the contents to be displayed or revealed to, anyone other
than authorized Court personnel, except upon order of the
Court.
14.

Nothing contained herein shall prevent any of the Parties from using

“Confidential” information in connection with any motion filed with the Court (as long as
motions that contain or refer to “Confidential” Litigation Materials are filed in accordance
with ¶ 13 above), or in any trial, hearing or other proceeding in this action.

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OBJECTIONS TO “CONFIDENTIAL” DESIGNATIONS

VI.
15.

If any Party (i) objects to the designation of any Litigation Materials as

“CONFIDENTIAL” or “ H I G H L Y

CONFIDENTIAL

-

ATTORNEYS’

EYES

O N L Y ” or (ii) objects to any other Party's use of this Protective Order, the objecting Party
shall state the objection by letter to such other Party’s counsel. If the Parties are then unable
to resolve any such objection, any Party may move the Court to do so. Until the Court rules
on

any

such

motion,

the

Litigation

“CONFIDENTIAL” or “ H I G H L Y

Materials

shall

CONFIDENTIAL

-

continue

to

be

deemed

ATTORNEYS’

EYES

O N L Y ” as designated under the terms of this P r o t e c t i v e Order, and all other terms and
conditions of this Protective Order shall remain in full force and effect.
VII.
16.

SUBPOENA BY THIRD PARTY
If any Party receives a subpoena or document request from a Non-Party to

this Protective Order seeking

production or other disclosure of another

Party’s

“Confidential” information, the Party upon whom discovery is served shall give written
notice to counsel for the Party whose material is sought within five (5) business days,
identifying the “Confidential” material sought and enclosing a copy of the subpoena or
document request. Subject to the duty to comply with such subpoena or document request, no
production or disclosure of “Confidential” Litigation Materials shall be made until the
designating Party has received a reasonable opportunity to consider or respond to the subpoena
or document request.
VIII. AMENDMENT TO THIS ORDER
17.

The provisions of this Order may be modified only by further order of this

Court.
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IX. RESERVATION OF RIGHTS
18.

Nothing contained in this Protective Order shall prevent any Party from

disclosing its own “Confidential” information to any person.
19.

Nothing contained in this Protective Order shall constitute:

(a) an admission

that any information designated “CONFIDENTIAL” or “ H I G H L Y C O N F I D E N T I A L A T T O R N E Y S ’ E Y E S O N L Y ” is, in fact, confidential, even if a Party has not objected to
this designation; (b) an agreement by the Parties to produce any documents or supply any
information or testimony not otherwise agreed upon or required by rules of Court or by Court
Order; (c) a waiver by any person or Party of any right to seek any other protective order in
this or in any other action; (d) a waiver of any claim of immunity or privilege with regard to
any testimony, documents or information; or (e) a waiver by any Party of its right to apply to
the Court for an order designed to preserve the confidentiality of its “CONFIDENTIAL” or
“HIGHLY CONFIDENTIAL - ATTORNEYS’ EYES ONLY” information at trial.
X.
20.

CONCLUSION OF THE LITIGATION
Within sixty (60) days of the conclusion of this action, including any post-trial

motions or appellate proceedings, counsel of record for the Parties shall secure the return of all
Litigation Materials designated “CONFIDENTIAL” or “ H I G H L Y C O N F I D E N T I A L A T T O R N E Y S ’ E Y E S O N L Y ” (and all copies thereof and notes, abstracts or summaries
made therefrom) from all persons to whom such materials were disclosed under the terms of
this Protective Order, and shall either destroy all such materials or return them to counsel for
the Party who produced such materials. In the event any such person elects to destroy the
materials, he or she shall certify the destruction in writing to counsel for the Parties. Counsel
may retain their work product, court filings and official transcripts and exhibits, provided that
the Party that retains the Litigation Materials designated as “CONFIDENTIAL” or “ H I G H L Y
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C O N F I D E N T I A L - A T T O R N E Y S ’ E Y E S O N L Y ” continues to treat them in the
manner provided herein.
XI. CONTINUING EFFECT
21.

Insofar as the provisions of this Protective Order restrict the use or

communication of any document or information produced hereunder, it shall continue to be
binding after the conclusion of this Litigation, except that a Party may seek the written
permission of the Producing Party or order of the Court with respect to dissolution or
modification of this Protective Order, and the Court shall retain jurisdiction over all Parties
bound hereby for the purposes of enforcement, interpretation and modification of this
Protective Order.
IT IS SO ORDERED.
Signed: February 5, 2014

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APPENDIX A:
AGREEMENT TO BE BOUND BY PROTECTIVE ORDER
I,

, understand that information and documents which are to be

disclosed to me by counsel of record for

are to be used by me solely

to assist such counsel in the prosecution or defense of the claims involved or relating to the
action captioned Marx Industries, Inc. v. Chestnut Ridge Foam, Inc. v. MTJ American, LLC, pending
in the United States District Court for the Western District of North Carolina, Statesville
Division, Civil Action No. 5:11-cv-139-RLV-DCK.

I further understand that a Protective

Order, a copy of which has been provided to me, prohibits me from using such information and
documents for any other purpose and from disclosing such information and documents to any
person, other than outside counsel of record for

or persons identified in ¶¶ 7-

8, if such information and documents are designated “CONFIDENTIAL” or “ H I G H L Y
CONFIDENTIAL - ATTORNEYS’ EYES ONLY .”
In accepting the information and documents disclosed to me, I agree to be bound by the
Protective Order and submit to the jurisdiction of the Court for the purposes of its enforcement.
EXECUTED this ________day of ________________, _________.
Name ___________________________________________
Signature ________________________________________
Present Employer or
Other Business Affiliation __________________________
Business Address _________________________________
_________________________________

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