Carolinas Telcom Solutions, Inc. et al v. United Engineering Group, Inc.

Filing 16

STIPULATED PROTECTIVE ORDER. Signed by Magistrate Judge David Keesler on 8/13/12. (smj)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
STATESVILLE DIVISION
CIVIL ACTION NO. 5:12-CV-67-RLV-DCK
CAROLINAS TELCOM SOLUTIONS, )
INC., and WENDY GALE PARKER,
)
)
Plaintiffs,
)
)
v.
)
)
UNITED ENGINEERING GROUP, INC.,)
)
Defendant.
)
____________________________________)

JURY TRIAL DEMANDED

STIPULATED PROTECTIVE ORDER
CAROLINAS TELECOM SOLUTIONS, INC., WENDY GAYLE PARKER and UNITED
ENGINEERING GROUP, INC., through their respective counsel, stipulate and agree, pending
further order of the Court, that the following procedure designed to assure the protection of
confidential information not already in the public domain shall govern any discovery, including
discovery from non-parties, in this action.
NOW THEREFORE, IT IS HEREBY STIPULATED by and between the Parties to this
action, through their respective counsel, as follows:
1.

This Order shall govern the use, designation, and handling of all “Produced

Information”. As used in this Order, “Produced Information” means all documents, materials,
discovery responses, testimony, tangible things, and other information provided in response to a
formal discovery request made in connection with this action and all documents, materials, and other
information provided by or obtained in connection with this action from any person who is subject

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to a fiduciary duty, confidentiality agreement or other obligation to keep the documents, materials
or other information confidential.
2.

Only information related to nonpublic, confidential information or proprietary

information that is not generally available may be designated as “CONFIDENTIAL”, including
without limitation proprietary, trade secret, confidential research, development, business, financial
or commercial information, or competitively sensitive trademark and/or copyright information used
in or relating to such party’s business that is believed to be unknown or unavailable to the public.
Only highly sensitive commercial or competitive information, such as client and contact identities,
marketing plans and cost/pricing/profit information, believed to be unknown or unavailable to the
public, may be designated as “CONFIDENTIAL – ATTORNEYS’ EYES ONLY”.
3.

As used in this Order, “Confidential Information” means any document or

information designated as “CONFIDENTIAL” or “CONFIDENTIAL – ATTORNEYS’ EYES
ONLY” pursuant to this Order.
4.

As used in this Order, “document” or “documents” shall have the same definition as

in the Federal Rules of Civil Procedure and the Local Rules of this District.
5.

Nothing in this Order shall prevent disclosure beyond the terms of this Order if either

the designating person consents in writing to such disclosure or the Court allows such disclosure
upon good cause shown.
6.

As used in this Order, “Producing Party” shall refer to any person or entity providing

“Produced Information” in connection with this litigation. “Produced Information” may be
designated as “CONFIDENTIAL” or “CONFIDENTIAL – ATTORNEYS’ EYES ONLY” by any
party to this action, or by the non-party providing such “Produced Information”, if the designator
reasonably believes that the information meets the standards set forth in Paragraph 2.
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7.

Information shall be designated as “CONFIDENTIAL” in the following manner:
(a)

In the case of documents reduced to paper form or other Produced

Information, the confidentiality designation shall be made by placing the legend “CONFIDENTIAL
– SUBJECT TO PROTECTIVE ORDER” on the document or Produced Information in a manner
sufficient to identify the document as entitled to confidential treatment in this action. A Producing
Party shall designate documents or Produced Information as confidential at or before the time of
production. Inadvertent disclosure of Confidential Information, without identifying the same as
confidential, shall not be deemed a waiver of confidentiality with regard to similar or related
information nor shall it be deemed a waiver of confidentiality with regard to the information
inadvertently disclosed, if called to the attention of trial counsel for the receiving party promptly.
Inadvertent production of documents, tangible things, or information subject to the attorney client
privilege or work product immunity shall not constitute a waiver of such privilege. After receiving
notice from the Producing Party that documents or information subject to the attorney client
privilege or work product immunity have been inadvertently produced, the receiving party shall not
review, copy or disseminate such documents or information. The receiving party shall return such
documents or information and any copies to the producing party immediately. Any information not
reduced to documentary or physical form or which cannot be conveniently labeled shall be so
designated by the party by serving a written notification on the receiving party. In addition, a party
other than the Producing Party may designate documents as confidential by giving written notice
to all parties to this action within thirty (30) days of the date on which, exercising reasonable
diligence, that designating party becomes aware of their production. In either case, all parties shall
then stamp or otherwise mark the designated documents as confidential with the legend described
above.
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(b)

Information produced or provided on a computer disk, data tape or other

medium that has not been reduced to paper form may be designated as Confidential Information by
informing counsel for the parties to this action in writing that the computer disk, data tape or other
medium contains Confidential Information. To the extent practical, such physical medium should
also be appropriately labeled as set forth above. The party receiving such Confidential Information
under this Paragraph 7(b) shall then be responsible for appropriately labeling any printed version(s)
of said Confidential Information which it creates after receiving the information in electronic format.
(c)

In the case of deposition testimony, the Producing Party or any other party

to this action may designate information disclosed during a deposition as “CONFIDENTIAL” either
by identifying on the record at the deposition the material that is to be treated as confidential or by
marking the portions of the deposition record to be designated as “CONFIDENTIAL” within thirty
(30) days after receipt of the transcript. When the deponent and the attending parties do not agree
to waive the reading, correcting, and signing of the transcript, all information disclosed during a
deposition shall be treated as “CONFIDENTIAL” before the expiration of the 30-day period unless
otherwise agreed by the parties and the deposition witness. If any deposition testimony or any
document or information used during the course of a deposition is designated as confidential, each
page of the deposition record reflecting such material shall be stamped “CONFIDENTIAL
SUBJECT TO PROTECTIVE ORDER”, and the first page of the deposition record shall be stamped
in a manner that makes it readily apparent that the deposition record contains Confidential
Information.
8.

Information shall be designated as “CONFIDENTIAL – ATTORNEYS’ EYES

ONLY” in the same manner as information designated “CONFIDENTIAL” with the exception that
such information shall be stamped “CONFIDENTIAL – ATTORNEYS’ EYES ONLY”.
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9.

Confidential Information may be referred to in discovery, discovery responses,

motions, briefs or other papers filed with the Court and may be used in depositions, oral arguments
or at trial in this action either as exhibits or as the basis for questions. Confidential Information shall
be filed under seal and shall be processed and retained by the Court in accordance with its rules.
All materials kept under seal shall be available to the Court and to counsel for the parties for viewing
and/or copying.
10.

Materials marked “CONFIDENTIAL” shall not be disclosed, directly or indirectly,

to any person other than:
(a)

the Court and necessary Court personnel;

(b)

up to a total of two party-designees for each named party in this action,

including any in-house counsel responsible for this action;
(c)

the attorneys of record for any named party to this action and support staff

assisting such counsel;
(d)

any copy service assisting counsel in this action;

(e)

court reporters performing necessary duties in this action;

(f)

any person who authored or received the document or information more than

thirty days before its designation as Confidential Information;
(g)

any outside, unaffiliated expert retained or consulted by any party in

connection with this action; and
11.

Materials marked “CONFIDENTIAL – ATTORNEYS’ EYES ONLY” shall not be

disclosed, directly or indirectly, to any person other than:
(a)

the Court and necessary Court personnel;

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(b)

the attorneys of record and support staff assisting such counsel for the

discovering party;
(c)

any copy or computer service assisting counsel in this action;

(d)

court reporters performing necessary duties in this action;

(e)

any person who authored or received the document or information more than

thirty days before its designation as Confidential Information; and
(f)

any outside, unaffiliated expert retained or consulted by any party in

connection with this action.
12.

Before receiving access to any Confidential Information, any person to whom

Confidential Information is disclosed pursuant to 10(b), (g) and/or 11(f) of this Order, shall be
required to sign the Confidentiality Acknowledgement in the form attached hereto as Exhibit A. The
party disclosing any Confidential Information to said person shall maintain the original
acknowledgment and need not produce it except by agreement or upon order of the Court for good
cause shown.
13.

Before counsel for any party discloses CONFIDENTIAL – ATTORNEYS’ EYES

ONLY discovery materials pursuant to 11(f) of this Order, counsel must first identify that expert to
counsel for the Producing Party, who shall have five (5) business days from receipt of such notice
to object in writing to such disclosure to any expert so identified. Such identification shall at least
include the full name and professional address and/or affiliation of the expert and all of the expert’s
present employment or consultancies in the field. The parties shall attempt to resolve any objections
informally, and approval by the Producing Party shall not be unreasonably withheld. If the
objections cannot be resolved, the objecting party may move, within fifteen (15) business days
following its objection, for a protective order preventing disclosure of CONFIDENTIAL –
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ATTORNEYS’ EYES ONLY discovery materials to the expert. Prior to the resolution of any such
objection, a Producing Party’s CONFIDENTIAL – ATTORNEYS’ EYES ONLY discovery
materials shall not be disclosed to expert(s) so designated.
14.

All Confidential Information shall be used by the receiving party solely in connection

with this litigation and the preparation and trial of this action, or any appellate proceeding arising
from this action, and not for any other purpose, including, without limitation, any other litigation
or any business, competitive or governmental purpose or function.
15.

Should any party object to the designation of material and the objection cannot be

resolved informally, then the objecting party may move for an order determining that the material
was not properly designated. At such time, the material at issue may be submitted to the Court for
in camera inspection. The designating party shall have the burden of showing the information is
entitled to the designation it proposes. Until the Court rules to the contrary, all material designated
as Confidential Information shall be treated as designated pursuant to this Order.
16.

If Confidential Information is called for in a subpoena or other process by someone

who is not a party to this action, the person to whom the subpoena or other process is directed shall
promptly give written notice thereof to each person who has designated the Confidential Information
and shall not produce the documents or information until the earlier of ten (10) days after providing
notice or the return date of the subpoena or other process, but in no event less than five (5) days after
providing written notice.
17.

Within sixty (60) days of a written request by the Producing Party following the

conclusion of this action, including any appeals, all Confidential Information, including copies, shall
be returned to the Producing Party or shall be destroyed, at the election of the person or entity in
possession of the Confidential Information, unless otherwise ordered by the Court, or a motion is
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pending seeking relief from this paragraph. If the person or entity in possession of Confidential
Information elects to destroy that information rather than return it to the Producing Party, then such
person or entity shall provide to the Producing Party within 21 days of destroying the Confidential
Information a signed sworn statement attesting that the Confidential Information has been destroyed.
This paragraph shall not be construed to require the return or destruction of any regularly maintained
litigation files held by the attorneys of record for each party as archival records or other attorney
work-product created for any party. Any Confidential Information, or portions or excerpts thereof,
which are not destroyed or returned pursuant to this paragraph, shall remain subject to the terms of
this Order.
18.

The terms of this Order do not preclude, limit, restrict, or otherwise apply to the use

of documents at trial, except that an unmarked copy of a document marked confidential will be used
at trial if any party so requests and provides an unmarked copy of that document. The placing of
any confidentiality designation or a production identification number on the face of a document shall
have no effect on the authenticity or admissibility of that document at trial.
19.

This Order shall survive the final determination of this action and shall remain in full

force and effect after conclusion of all proceedings in this action to provide this Court with ancillary
jurisdiction to enforce its terms.
20.

Nothing in this Order shall be construed to waive any right that any party may have

to object to any demand for production of any documents or other method of obtaining information
in this action, and nothing in this Order shall be construed to preclude any party from disclosing or
otherwise using information that is not subject to the terms of this Order.

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Signed: August 13, 2012

Dated: August 13, 2012

Respectfully submitted,

s/ W. Thad Adams, III
W. Thad Adams, III (NC Bar No. 000020)
SHUMAKER, LOOP & KENDRICK, LLP
First Citizens Bank Plaza
128 South Tryon Street
Suite 1800
Charlotte, North Carolina 28202-5013
Tel: [phone]
Fax: [phone]
Email: [e-mail]

s/ Rebecca K. Cheney
Rebecca K. Cheney (NC Bar No. 20998)
Erik M. Rosenwood (NC Bar No. 28049)
HAMILTON STEPHENS STEELE
& MARTIN, PLLC
201 South College Street, Suite 2020
Charlotte, North Carolina 28244-2020
Tel: [phone]
Fax: [phone]
Email: [e-mail]
[e-mail]

Attorneys for Plaintiffs

Attorneys for Defendant

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EXHIBIT A
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
STATESVILLE DIVISION
_________________________________________
)
)
)
)
Plaintiffs,
)
)
v.
)
)
UNITED ENGINEERING GROUP, INC.
)
)
Defendant.
)
_________________________________________ )
CAROLINAS TELCOM SOLUTIONS, INC.,
and WENDY GAYLE PARKER,

CASE NO.:

5:12-cv-67

JURY TRIAL DEMANDED

I hereby certify (i) I understand discovery material and/or Confidential Information are being
provided to me pursuant to the terms and restrictions of the Stipulated Protective Order (the
“Order”) entered by the United States District Court for the Western District of North Carolina (the
“Court”) in this action, and (ii) I have read said Order. I further certify I understand the terms of the
Order, I agree to be fully bound by the Order, and I hereby submit to the jurisdiction of the Court
for purposes of enforcement of the Order. I understand a violation of the Order may be punishable
by contempt of Court.

Dated: ______________________

Signature: ________________________________
Name: ___________________________________
Address: _________________________________
_________________________________
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