Eclipse Packaging, Inc., dba Flexsol Packaging v. Stewarts of America, Inc. et al

Filing 18

STIPULATED PROTECTIVE ORDER. Signed by Magistrate Judge David Keesler on 6/2/15. (smj)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
STATESVILLE DIVISION
CIVIL ACTION NO. 5:14-CV-195-RLV-DCK
ECLIPSE PACKAGING, INC., d/b/a FlexSol
)
Packaging,
)
)
Plaintiff,
)
)
v.
)
STIPULATED PROTECTIVE
)
ORDER
)
STEWARTS OF AMERICA, INC. and
)
INDUSTRIAL BRUSH CO., INC.,
)
)
Defendants.
)
)
Upon the stipulation of the parties to this action, it is hereby ORDERED that the following
procedures and limitations shall apply to documents and information exchanged or received by
the parties through discovery in this action:
1.

Any documents, information, or things produced by any party or non-party as part

of discovery in this action may be designated by the producing party(ies) as “Confidential” or
“Attorneys’ Eyes Only” or the equivalent wording. A document or data should be designated
“Confidential” when it contains confidential information that may be reviewed by certain named
persons of the receiving party but must be protected against disclosure to third parties, except as
provided for herein.
2.

A document or data should be designated “Attorneys’ Eyes Only” when it contains

information that the producing party deems especially sensitive or which it believes may put it
at a competitive disadvantage including, but not limited to, confidential research and development,
financial, technical, marketing, pricing or other confidential commercial or business information.

3.

Documents or information designated “Confidential” or “Attorneys’ Eyes Only”

may be used only in connection with this litigation, and not for any other purpose unless the
producing party expressly consents in writing to another use. Such information may not be
disclosed to anyone except as provided in this Order. “Confidential” and “Attorneys’ Eyes
Only’ information does not include, and this Order shall not apply to, a parties’ own documents or
information or information that is already in the knowledge or possession of any party prior to the
disclosure of such information through discovery.
4.

Any party or non-party wishing to come within the provisions of this Order may

designate in writing, the documents, information, or portions thereof, which it considers
confidential at the time the documents are produced. The party or non-party may designate each
page of a document as “Confidential” or “Attorneys’ Eyes Only” by marking each page as such. If
electronic documents are produced on electronic storage media, such as discs or drives, the
producing party may mark the storage media itself (rather than each page of the electronic
documents contained therein) as “Confidential” or “Attorneys’ Eyes Only.” A party may designate
all or any portion of responses to written discovery requests as “Confidential” or “Attorneys’
Eyes Only” by labeling them as such in the body of a response. In the instance of deposition
testimony, the witness under deposition or his or her counsel may invoke the provisions of this
Order during the deposition, and the parties shall be excluded only from reviewing testimony
designated “Attorneys’ Eyes Only.” The witness under deposition or his or her counsel shall have
the right, within thirty (30) days of receiving a transcript of the deposition, to designate or change
the level of restriction of the transcript or portion thereof. During the thirty (30) day period,
counsel for the parties shall treat the entire transcript as if it had been designated “Attorneys’
Eyes Only.” Documents or information inadvertently produced without the confidential designation
may be substituted by notifying the receiving party in writing and appropriately designating the
documents, provided that it will not be considered to be a violation of the Order if the prior

undesignated documents have, prior to the substitution, been disclosed to others. The information
must be treated by the receiving party as confidential from the time the receiving party is notified
in writing of the change in the designation.
5.

If a producing party inadvertently discloses to the receiving party information that

is privileged or otherwise immune from discovery, said producing party shall promptly upon
discovery of such disclosure so advise the receiving party in writing and request that the item or
items of information be returned, and no party to this action shall thereafter assert that such
disclosure waived any privilege or immunity. It is further agreed that the receiving party will
promptly return such inadvertently produced item or items of information and all copies thereof
upon either (a) discovery by the receiving party of its inadvertent production, or (b) receiving a
written request for the return of such item or items of information. The party having returned
such inadvertently produced item or items of information may thereafter, without asserting
waiver because of inadvertent production, seek production of any such documents in accordance
with the North Carolina Rules of Civil Procedure.
6.

Any documents or information designated “Confidential” as well as any copies or

excerpts thereof, or analyses or reports which pertain thereto, may be made available only to:
(a)

Attorneys of record for the receiving party, their employees and other attorneys

and/or employees of their firms;
(b)

Judges, law clerks and other clerical personnel of the Court before which this

action is pending;

(c)

Independent experts or consultants retained solely for purposes of this litigation

(including their staff) as provided in Paragraph 8 below;
(d)

Officers, directors, or employees of the parties solely for the purpose of and to the

extent necessary for prosecuting, defending and/or appealing this litigation;
(e)

Outside copying, computer services, or litigation support vendors.

(f)

Representatives of outside insurers for any of the parties who are responsible for

monitoring the litigation;
(g)

Any officer taking, reporting, or videotaping a deposition to the extent necessary

to prepare the transcript or recording of the deposition; and
(h)

Third-party witnesses during and in preparation for their testimony, provided that

such information pertains to the witness and/or their current or former employer.
7.

Documents or information designated “Attorneys’ Eyes Only” as well as any

copies or excerpts thereof, or analyses or reports which pertain thereto, may be made available
only to:
(a)

Attorneys of record for the receiving party, their employees and other attorneys

and/or employees of their firms;
(b)

Judges, law clerks and other clerical personnel of the Court before which this

action is pending, provided that submission of such documents to the Court shall comply with
this Order;
(c)

Independent experts or consultants retained solely for purposes of this litigation

(including their staff) as provided in Paragraph 8 below;
(d)

Persons shown on the face of the document to have authored or received it; and

(e)

Outside copying, computer services, or litigation support vendors.

(f)

Representatives of outside insurers for any of the parties who are responsible for

monitoring the litigation; and

(g)

Any officer taking, reporting, or videotaping a deposition to the extent necessary

to prepare the transcript or recording of the deposition.
8.

Any outside expert who shall have access to designated “Confidential” or

“Attorneys’ Eyes Only” information under the terms of this Order shall, prior to being given
such access, be provided with a copy of this Order and shall sign an Acknowledgment in the
form of Exhibit A hereto indicating that he or she is familiar with the provisions of this Order
and will abide by them. Unless otherwise provided, such Acknowledgement shall be kept by
counsel for reference should such be necessary.
9.

Should any party to this litigation obtain documents from a third party, by subpoena

or otherwise, such documents shall be treated by the receiving party as “Attorneys’ Eyes Only”
under this Order for at least thirty (30) days after all parties receive the documents. Any party shall
have the right, within thirty (30) days of receiving documents produced by a third party, to
designate or change the level of restriction of the documents, in writing, to maintain “Attorneys’
Eyes Only,” become “Confidential,” or not have any designation.
10.

Unless otherwise stipulated by the parties in writing, in the event a party wishes to

submit any information identified as “Attorneys’ Eyes Only” to the Court, the party shall file the
information under seal in accordance with Rule 10.1 of the General Rules of Practice and
Procedure for the North Carolina Business Court.
11.

If at any time any party believes that any other party or non-party has

unreasonably designated certain information as “Confidential” or “Attorneys’ Eyes Only”, or
believes that it is necessary to disclose designated information to persons other than those

permitted by this Order, and the producing party does not agree to change the designation or to the
further disclosure, the objecting party may make an appropriate application to this Court
requesting that the specifically identified documents, information, and/or deposition testimony be
excluded from the provisions of this Order or be available to specified other persons. No
disclosure of such information shall be made until ruled upon by the Court.
12.
13.

This Order may only be modified by further order of this Court.
Upon termination of this action, unless the attorneys of record otherwise agree in

writing, each party shall assemble and return all “Confidential” and “Attorneys’ Eyes Only”
designated materials, including copies, to the person and entity from whom the material was
obtained, or shall certify that the documents have been destroyed. However, the attorney of
record may retain one (1) copy of any designated documents for archival purposes solely for the
purpose of addressing or defending any alleged violation of this Order.
14.

This Order will not prejudice the right of any party or non-party to oppose

production of any information on the ground of attorney-client privilege, work product immunity,
or any other protection provided under the law.
15.

Information identified as “Confidential” or “Attorneys’ Eyes Only” in accordance

with this Order may be disclosed in testimony, in hearings, or at the trial of this action or may be
entered into evidence at hearings or at the trial of this action, subject to this Order. To the extent a
party would seek to seal or otherwise restrict access to an exhibit or other document introduced
during a hearing or trial, the party shall make a separate motion requesting the evidence of
testimony be sealed or otherwise restricted. To the extent any party would seek to seal any
portion of a transcript of a court proceeding, the party shall file a separate motion to seal for
consideration by the court.

16.

Nothing in this Order shall bar any attorney in the course of rendering advice to

his or her client from relying upon knowledge of “Confidential” or “Attorneys’ Eyes Only”
materials produced or exchanged herein; provided that in rendering such advice and otherwise
communicating with the client, the attorney shall not disclose the contents of any “Confidential” or
“Attorneys’ Eyes Only” information in a manner contrary to the terms of this Order.
17.

Acceptance by a party of any information, document, or thing identified as

“Confidential” or “Attorneys’ Eyes Only” hereunder shall not constitute a concession that the
information, document, or thing is confidential or a trade secret or that it has been properly
designated as such.

IT IS SO ORDERED.
Signed: June 2, 2015

CONSENTED TO:
/s/J. DOUGLAS GRIMES
NC State Bar No. 32699
Hedrick Gardner Kincheloe &
Garofalo, LLP
PO Box 30397
Charlotte, NC 28230
Phone: [phone]
Fax: [phone]
[e-mail]
Attorneys for Defendant Industrial
Brush Co., Inc.

/s/LAWRENCE J. GOLDMAN
NC State Bar No. 19025
Jones, Hewson & Woolard
831 East Morehead Street, Suite 560
Charlotte, NC 28202
Phone: [phone]
Fax: [phone]
[e-mail]
Attorney for Defendant Stewarts of
America, Inc.
/s/ANDREW L. FITZGERALD
NC State Bar No. 31522
Fitzgerald Law, P.C.
632 Holly Avenue
Winston-Salem, NC 27101
Phone: [phone]
Fax: [phone]
[e-mail]
Attorney for Plaintiff
This the 1st day of June, 2015.