Wartsila Technology Oy Ab et al v. Coastal Seal Services, LLC

Filing 27

STIPULATED PROTECTIVE ORDER. Signed by Magistrate Judge David S. Cayer on 2/27/2017. (nvc)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
STATESVILLE DIVISION
Case No. 5:16-cv-198-RLV-DSC

WÄRTSILÄ TECHNOLOGY OY AB and
WARTSILA DEFENSE, INC.
Plaintiffs,
v.
COASTAL SEAL SERVICES, LLC,
Defendant.

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STIPULATED PROTECTIVE ORDER
Pursuant to Rule 26(c) and the parties’ joint stipulation, the Court hereby ORDERS that
the following restrictions and procedures shall apply to certain information, documents, and
excerpts of documents supplied by the parties to each other in connection with this litigation:
1.

Confidentiality Designations.
a. Counsel for any party may designate any information or document not publicly
available as “Confidential” if counsel determines, in good faith, that this designation is
necessary to protect the interests of the client. A party designating documents or
information

as

Confidential

shall

label

the

documents

or

information

“CONFIDENTIAL” or use some substantially similar designation.
b. “Highly Confidential–Attorneys’ Eyes Only” is a subset of Confidential. It includes
information or documents that satisfy all of the following: (a) not publicly available;
(b) the disclosing party has a good faith belief to be highly confidential or commercially
sensitive; and, (c) for which the disclosing party believes the dissemination to a
competitor or person not entitled to the information could cause harm to the disclosing
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party. A party designating documents or information as Highly Confidential–
Attorneys’ Eyes Only shall label the documents or information

“HIGHLY

CONFIDENTIAL–ATTORNEYS’ EYES ONLY” or “HIGHLY CONFIDENTIAL–
AEO” or use some substantially similar designation.
c. For purposes of this Order, the term “Confidential Information” refers collectively to
both information and documents marked as either Confidential or Highly Confidential–
Attorneys’ Eyes Only.
2.

No Other Use. Unless otherwise ordered by the Court or otherwise provided for in this
Order, all Confidential Information disclosed will be held and used by the person receiving
the Confidential Information solely in connection with this litigation.

3.

Disclosure. Except with a Court order or the prior consent of the disclosing party, either in
writing or on the record at a deposition or hearing, Confidential Information shall not be
disclosed to any person, except:
a. Documents or Information Designated “CONFIDENTIAL”:
i.

The Court and the Court’s personnel;

ii.

Counsel of record for any of the parties, and the attorneys and clerical and
administrative personnel (including, e.g., persons retained for document
reproduction and electronic data hosting) working at their direction and under
their supervision;

iii.

Court reporters and their staff retained by the parties for the purpose of
transcribing any deposition in this action;

iv.

Expert witnesses and consultants who are not employed by a direct competitor of
the disclosing party or affiliated with any enterprise that is in a position to
commercially exploit Confidential Information and are retained by any of the
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parties for any purpose in the litigation, but only after the expert witness has
signed and provided an executed Non-Disclosure Agreement to the party
retaining the expert;
v.

Expert witnesses and consultants employed by a direct competitor of the
disclosing party or affiliated with any enterprise that is in a position to
commercially exploit Confidential Information on 7-day written notice to all
counsel of record prior to any disclosure of Confidential Information, during
which period the disclosing party may object to the disclosure of the Confidential
Information, and in response to which any other party may seek Court approval
for the disclosure of the Confidential Information;

vi.

The parties, officers, directors, employees and in-house counsel of the parties who
are actively involved in the litigation and/or the decision-making with respect to
the litigation; and,

vii.

Witnesses for deposition and counsel for such witnesses in the course of a
deposition, or, following issuance of a notice to take the deposition of a witness,
in preparation for such witness’ deposition; provided that, the Recipient making
such disclosure to a witness in preparation for the witness’ deposition shall keep
a record of the Confidential Information disclosed to such witness and provided,
further, that in advance of the disclosure of Confidential Information the party
seeking to disclose the Confidential Information shall so inform the entity who
so designated the Confidential Information. In this event, the disclosing party may
object to the disclosure of the Confidential Information to the witness. In the event
of such an objection, the party seeking disclosure of the Confidential Information
to the witness must first seek Court approval of the disclosure to the witness.
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b. Documents or Information Designated “Highly Confidential–AEO”:
i.

Those persons identified at paragraphs 3(a)(i)–(iii) above, without executing the
Non-Disclosure Agreement attached hereto;

ii.

Those persons identified in paragraph 3(a)(iv) above, but only after executing the
Non-Disclosure Agreement attached hereto, providing such signed NonDisclosure Agreement to all parties to this action, and allowing seven (7) days for
any party to object to the disclosure of the Confidential Information. In the event
of such an objection, the party seeking disclosure of the Confidential Information
to the witness must first seek court approval of the disclosure to the witness; and,

iii.

Those persons identified in paragraph 3(a)(vii) above, but only with consent of
the disclosing party and without further order of this Court.

c. In the event that a party shall desire to provide access to Confidential Information to any
person or category of persons not included in this section, or if a person required by this
Order to sign the Non-Disclosure Agreement refuses to do so, the party seeking
disclosure shall move this Court for an order that such person or category of persons
may be given access to the Confidential Information.
4.

Notice to Recipient. Before disclosing or displaying the Confidential Information to any
person, counsel shall: (a) inform the person of the confidential nature of the information;
and (b) inform the person that this Court has enjoined use of the Confidential Information
for any purpose other than this litigation and has enjoined disclosure to any other person.

5.

Non-Disclosure. Any person receiving Confidential Information shall not disclose the
information to any person who is not entitled to receive it under this Order. If a person
discloses Confidential Information to any person not entitled to receive it under this Order,
the person responsible for the disclosure or his counsel will inform counsel for the
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disclosing party. The person responsible for the disclosure also will, without prejudice to
other rights and remedies of any party, make a reasonable, good-faith effort to retrieve the
material and to prevent further disclosure of it by the person who received such
Confidential Information.
6.

Designations of Confidential Information at a Deposition or Hearing. A party seeking
to designate Confidential Information at a deposition or oral hearing may designate the
material as Confidential or Highly Confidential–Attorneys’ Eyes Only by indicating, on
the record at the proceeding, the Confidential Information.

7.

Transcripts and Recordings Containing Confidential Information. A single transcript
and/or recording will be maintained for each deposition, including depositions containing
documents or testimony designated as Confidential Information. Transcripts and
recordings of hearings, trial, and other proceedings containing Confidential Information
will be bound and maintained in accordance with Court procedures, or as otherwise ordered
by the Court.

8.

Review Period. All recordings and transcripts of depositions or hearings, plus any
accompanying exhibits, shall be treated as Highly Confidential–Attorneys’ Eyes Only for
fifteen (15) days following receipt by the disclosing party of the transcript or recording (the
“Review Period”). During the Review Period, no recipient may disclose any Confidential
Information to any person not entitled to possess the materials, and during that time (or
thereafter, if agreed by the disclosing party and all parties to this action), the disclosing
party may designate any portion of the recording, transcript, or accompanying exhibits as
Confidential or Highly Confidential–Attorneys’ Eyes Only, or remove or alter any
designation previously made. A party may not designate the entirety of a deposition or oral
hearing as Confidential or Highly Confidential–Attorneys’ Eyes Only absent entry of a
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separate order by the Court. By the expiration of the Review Period, the disclosing party
shall provide to all parties its designations, if any, with an identifying number (such as a
Bates Number) or by title and internally numbered (e.g., by page, paragraph, line).
9.

No Admission by Receiving Party. Acceptance of designated Confidential Information is
not an admission by the recipient that the information or documents are, in fact,
Confidential Information. The recipient may at any time request that the disclosing party
or the Court re-designate the information. However, Confidential Information shall
maintain that designation for all purposes unless and until either (a) the disclosing party
agrees to re-designate the information; or (b) the Court re-designates the information. In
any motion challenging the designation of Confidential Information, the disclosing party
bears the burden to prove the appropriateness of the designation.

10.

Inadvertent Disclosure.
a. Confidential Information. Inadvertent disclosure of documents or information that
the disclosing party intended to designate as Confidential or Highly Confidential–
Attorneys’ Eyes Only does not waive that party’s right to designate and protect the
documents or information under this Order. The disclosing party shall promptly notify
the recipient upon realizing its failure to designate the documents or information as
Confidential or Highly Confidential–Attorneys’ Eyes Only. However, the receiving
party does not violate this Order by disclosing the information before it receives notice
from the disclosing party.
b. Privileged Information. If a party inadvertently produces or provides information it
believes is subject to a claim of privilege or immunity—e.g., attorney-client privilege,
work-product-immunity doctrine, common-interest exception—the disclosing party
may give written notice to the recipient that the information is subject to a claim of
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privilege or immunity and request that the information be returned. If the disclosing
party provides that written notice, the recipient shall immediately return the
information to the disclosing party and delete any electronically stored copies. The
recipient shall then certify that it has returned or destroyed all copies. Within three (3)
business days of the notification that the inadvertently disclosed information has been
returned and deleted, the disclosing party shall produce a privilege log as to the
inadvertently disclosed materials. The return of the information by the recipient is not
an admission and shall not permit the inference that the information is, in fact,
privileged. Nor shall the return of the information foreclose any party from moving the
Court for an order that the information has been improperly designated or should be
produced for reasons other than a waiver caused by the inadvertent production.
11.

Challenges to Designations. If a party challenges another party’s designation of
Confidential Information, counsel shall make a good-faith effort to resolve the dispute. If
the parties cannot reach a resolution, the challenging party may seek resolution from the
Court. All parties reserve the right to object to the use or admissibility of all Confidential
Information disclosed under applicable law.

12.

Filing Confidential Information Under Seal. When filling with the Court a document,
transcript, or recording containing Confidential Information that is relevant and material to
resolution of the matter at issue, the filing party must file the document under seal and:
a. If the filing party did not designate the information as Confidential Information:
i.

file a notice to the Court identifying the disclosing party(ies);

ii.

file a redacted (i.e., Confidential Information “blacked out”) public version of the
document that is being filed under seal; and,

iii.

serve on all parties an unredacted version of the document.
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b. If the filing party designated the Confidential Information, file a motion to maintain the
documents under seal setting forth the following:
i.

identification of each specific document or portion(s) thereof that the party
contends should remain under seal;

ii.

the reasons demonstrating good cause to maintain the document, or portion(s)
thereof, under seal;

iii.

a statement as to whether maintenance of the document under seal is opposed by
any party; and,

iv.

a proposed order as an attachment.

c. Any disclosing party(ies) identified according to paragraph (a)(i) above must, within
fourteen (14) days of service of that notice, file a notice authorizing the unsealing of
documents or specific portions thereof and/or a motion to maintain the documents or
specific portions thereof under seal that complies with the requirements of paragraph
(b). If the disclosing party fails to file such statement or motion, then the filing party
must notify the court of that failure. Such failure will result in unsealing the
document(s).
13.

Denial of Motion to Maintain Under Seal. If the Court denies any motion to maintain
any document(s) under seal, the clerk will unseal the document(s) after fourteen (14) days,
absent an objection under Fed.R.Civ.P. 72(a), motion to reconsider, appeal, or other Court
order.

14.

Introduction of Confidential Information at Trial. A party who seeks to introduce
Confidential Information at a hearing, trial, or other proceeding shall advise the Court at
the time of introduction that the information sought to be introduced is protected by this
Order. If the party who designated the information as Confidential Information requests
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the protection be continued, the Court will review the information, in camera, to determine
if the information is entitled to the continued protection of this Order.
15.

A Party’s Use of Its Own Confidential Information. This Order shall not (a) prevent any
party from using or disclosing its own Confidential Information as it deems appropriate;
(b) preclude any party from showing an employee, officer, or expert of a disclosing party
at a deposition any information provided by that disclosing party; or (c) preclude or limit
any party from the lawful use of any information obtained from a source other than the
disclosing party.

16.

Documents Filed Are Presumptively Public. The parties understand that any documents
filed with the Court or that otherwise become part of a judicial proceeding are
presumptively public documents. The Court will seal documents only on an appropriate
motion. This Order does not provide for the automatic sealing of documents.

17.

Destruction or Return of Confidential Information. Within thirty (30) days following
the execution of a settlement agreement or entry of a final judgment no longer subject to
further appeal of this litigation, all parties shall return to the disclosing party, or destroy,
all Confidential Information received in this case, with the exception that outside counsel
for each party may retain, for a period of five (5) years following the dismissal with
prejudice or expiration of appeal period, an archival copy of the Confidential Information.
Until all Confidential Information received is returned to the disclosing party or destroyed,
the recipient remains bound by the terms of this Order with respect to the possession and
use of the Confidential Information. Upon reasonable request, any recipient of Confidential
Information shall provide to any disclosing party written confirmation of the recipient’s
compliance with this paragraph and the terms of this Order.

18.

No Waiver. This Order is without prejudice to the right of any party to (a) apply to the
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Court for any further Protective Order relating to Confidential Information; (b) object to
the production of documents or information; (c) apply to the Court for an order compelling
production of documents or information; or (d) apply for modification of this Order.
19.

Protection of Third Parties. If a party seeks third-party discovery, the third party shall be
entitled to all of the protection and benefits that a party has under this Order. Counsel for
the party seeking discovery shall provide a copy of this Order to the third party.

SO ORDERED.
Signed: February 27, 2017

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INTENDING TO BE BOUND, the parties have signed this Stipulated Protective Order on
February 27, 2017.
s/ Charles Landrum
Jason M. Sneed, Esq. (NC Bar No. 29593)
Megan E. Sorokes, Esq. (NC Bar No. 38525)
Charles M. Landrum, Esq. (admitted pro hac
vice)

s/ Seth Hudson
Seth L. Hudson (NC Bar No. 70449)
CLEMENTS BERNARD WALKER
PLLC
4500 Cameron Valley Parkway, Suite 350
Charlotte, NC 28211
Tel.: [phone]
[e-mail]

SNEED PLLC
610 Jetton St., Suite 120-107
Davidson, North Carolina 28036
Tel.: [phone]
Email: [e-mail]
[e-mail]
[e-mail]

Attorney for Defendant
Coastal Seal Services, LLC

David S. Bland (admitted pro hac vice)
Allison R. Colón (admitted pro hac vice)
BLAND & PARTNERS P.L.L.C.
909 Poydras Street, Suite 1860
New Orleans, LA 70112
Tel.: [phone]
Email: [e-mail]
[e-mail]
Attorneys for Plaintiffs
Wärtsilä Technology Oy Ab and
Wartsila Defense, Inc.

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IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
STATESVILLE DIVISION
Case No. 5:16-cv-198-RLV-DSC

WÄRTSILÄ TECHNOLOGY OY AB and
WARTSILA DEFENSE, INC.
Plaintiffs,
v.
COASTAL SEAL SERVICES, LLC,
Defendant.

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EXHIBIT 1 TO PROTECTIVE ORDER:
NON-DISCLOSURE AGREEMENT
1.

I have carefully read and understand the foregoing Order of the United States District
Court for the Western District of North Carolina, in the above-captioned matter.

2.

I agree that I will be bound by and will comply with all of the provisions of this Order. I
will make no disclosures of Confidential Information to any person who is not permitted
to have access to the Confidential Information under the Order, as applicable.

3.

Upon final determination of this action, I will destroy all Confidential Information
received by me within sixty days after sealing of the final order, or I will return the
Confidential Information within sixty days to the disclosing party. If I destroy
Confidential Information, I agree to send a letter to the disclosing party confirming its
destruction.

4.

I understand that a violation of this Agreement or the foregoing Order is punishable as a
contempt of court. I hereby submit to the jurisdiction of this Court for purposes of
enforcing this Agreement and the foregoing Order.

5.

I declare under penalty of perjury under the laws of the United States of America that the
foregoing is true and correct.

Executed on this _____ day of _______________________, ________.
By: ________________________________

Company: __________________________

Name: ______________________________

Address: ___________________________

Title: _______________________________

Phone: _____________________________

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CERTIFICATE OF SERVICE
I hereby certify that on February 27, 2017, I served the foregoing Stipulated Protective Order with
the Clerk of Court using the CM/ECF system. Service of the same on all counsel of record will be
accomplished through the Notice of Electronic Filing, in accordance with LCvR 5.3.

s/ Charles Landrum
For Plaintiffs Wärtsilä Technology Oy Ab and
Wartsila Defense, Inc.

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