MedSouth Professional Park Drive, LLC v. Mooresville PPM, LLC

Filing 15

CONSENT PROTECTIVE ORDER. Signed by Magistrate Judge David Keesler on 8/13/2018. (nvc)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
STATESVILLE DIVISION
CIVIL ACTION NO. 5:18-CV-067-RJC-DCK
MEDSOUTH PROFESSIONAL PARK
DRIVE, LLC,
Plaintiff,
vs.

CONSENT PROTECTIVE ORDER

MOORESVILLE PPM, LLC,
Defendant.

THIS CAUSE came on to be heard upon the motion of Defendant Mooresville PPM, LLC
(“Defendant”), with the consent of Plaintiff MedSouth Professional Park Drive, LLC (“Plaintiff”);
and it appearing to the Court that discovery and the trial in this action may involve the production
and disclosure of confidential, proprietary, or sensitive information requiring protection against
unrestricted disclosure or use;
THEREFORE, IT IS HEREBY STIPULATED, AGREED AND ORDERED that pursuant
to Rule 26(c) of the Federal Rules of Civil Procedure, the following confidentiality provisions shall
govern all information and documents disclosed, produced, or filed in this action:
1.

Certain information and documents to be produced by Plaintiff and Defendant in

this litigation may contain confidential financial records, trade secrets or other proprietary,
confidential research, development, commercial information, and other documents that should be
considered confidential and protected from unreasonable disclosure pursuant to Rule 26(c) of the
Federal Rules of Civil Procedure.
2.

The information and documents to be considered as confidential and disclosed only

in accordance with the terms of this Consent Protective Order (“this Order”) shall include, without

limitation, all documents or information whether in hard copy or electronic form designated in
accordance with the terms of this Order and supplied in response to the demands or requests of
either party, formal or informal, regardless of whether said information is produced or disclosed
by a party or by any affiliated person or entity, or formerly affiliated person or entity.
3.

All information designated “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL-

ATTORNEYS EYES ONLY” in accordance with the terms of this Order and disclosed in
discovery in this action shall be used solely for purposes of prosecuting or defending this litigation
and shall not be used for any other purpose.
4.

“Discovery Material” shall mean and include any document (whether in hard copy

or computer readable form), thing, deposition testimony, interrogatory answers, responses to
requests for admissions and/or production, or other information provided in discovery in this
action.
5.

Any party may, in good faith, designate Discovery Material as “CONFIDENTIAL”

or “HIGHLY CONFIDENTIAL-ATTORNEYS EYES ONLY.” Discovery Material designated
“CONFIDENTIAL” shall contain non-public proprietary or medical information, whether
personal or business-related; information protected from disclosure by contractual obligations with
third parties; or information protected from disclosure by law.

Certain limited types of

“CONFIDENTIAL” information may be alternatively designated, as defined and detailed below,
as

“HIGHLY

CONFIDENTIAL-ATTORNEYS

EYES

ONLY.”

The

“HIGHLY

CONFIDENTIAL-ATTORNEYS EYES ONLY” designation shall be reserved for confidential
information that constitutes, reflects, or concerns trade secrets, know-how or proprietary data,
business, financial, or commercial information, the disclosure of which is likely to cause harm to
the competitive position of the party making the confidential designations of Discovery Material.

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“CONFIDENTIAL” or “HIGHLY CONFIDENTIAL-ATTORNEYS EYES ONLY” information,
as used in this Order, shall refer to any information so designated.
6.

Prior to designating any Discovery Material as “HIGHLY CONFIDENTIAL-

ATTORNEYS EYES ONLY,” counsel for the producing party shall meet and confer with counsel
for the non-producing party to discuss the basis for the designation. To the extent the parties
disagree with respect to the designation, counsel shall use their best efforts to resolve promptly
and informally any such disputes. If the parties are unable to agree, then the non-producing party
may file a motion with the Court setting forth the non-producing party’s reasons why the Discovery
Material should not be designated “HIGHLY CONFIDENTIAL – ATTORNEYS EYES ONLY,”
without needing to follow the meet-and-confer requirements of Paragraph 9 of this Order. Unless
and until the Court issues a ruling on the challenge to the proposed designation, such document or
information shall be treated in accordance with the more restrictive designation sought by either
party.
7.

All information designated “CONFIDENTIAL” shall be maintained in confidence

by the parties to whom such information is produced or given, shall be used solely for the purposes
of this litigation, and shall not be disclosed to any person except:
(a)

The Court (including court reporters, stenographic reporters and

videographers, and court personnel);
(b)

The attorneys of record, their partners, employees, contractors, and

(c)

The parties, including officers and employees of the corporate Defendants

associates;

in this action;

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(d)

Any mediator and/or arbitrator selected with the consent of all parties or by

(e)

Subject to the terms of Paragraph 15 below, experts and their staff and

the Court;

litigation support personnel and their staff retained by outside counsel in this litigation; and
(f)

Subject to the terms of Paragraph 15 below, any other person as to whom

the designating party agrees in writing prior to such disclosure.
8.

All information designated as “HIGHLY CONFIDENTIAL-ATTORNEYS EYES

ONLY” shall be maintained in confidence for use by the attorneys of the parties, shall be used
solely for the purposes of this litigation, and shall not be disclosed to any person except those listed
in subparagraphs (a), (b), (d), (e), and (f) of Paragraph 7 above.
9.
designated

Nothing in the Order shall be taken as assent by a non-producing party that
information

is

in

fact

non-confidential,

“CONFIDENTIAL,”

“HIGHLY

CONFIDENTIAL-ATTORNEYS EYES ONLY,” or is entitled to protection under Rule 26(c) of
the Federal Rules of Civil Procedure. If counsel for the non-producing party believes that a
confidentiality designation is not appropriate or justified, counsel for the non-producing party will
notify counsel for the producing party of its belief that the information should or should not be so
designated or should or should not be disclosed to persons other than those allowed by this order.
A party shall not be obligated to challenge the propriety of a designation or non-designation at the
time made, and the failure to do so shall not preclude a subsequent challenge thereto. Such a
challenge shall be written, shall be served on counsel for the Producing Party, and shall particularly
identify the documents or information that the Receiving Party contends should be differently
designated. The parties shall use their best efforts to resolve promptly and informally such
disputes. If the parties do not reach agreement on the correct designation of the information within

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ten (10) business days of service of a challenge, the non-producing party may file a motion with
the Court setting forth the non-producing party’s reasons as to why the designation should be
changed. Unless and until the Court issues a ruling on the challenge to the designation or nondesignation of a document or information, such document or information shall be treated in
accordance with the designation already made or the designation the movant seeks, whichever is
the more restrictive.
10.

Nothing in this Order shall preclude any party from applying to this Court for relief

from any provision hereof, or from asserting that certain discovery materials should receive greater
confidentiality protection than that provided herein, in accordance with Rule 26(c) of the Federal
Rules of Civil Procedure.
11.

No

designation

of

documents

as

“CONFIDENTIAL”

or

“HIGHLY

CONFIDENTIAL-ATTORNEYS EYES ONLY” shall be effective unless there is placed or
affixed on such document a “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL-ATTORNEYS
EYES ONLY” notice or the equivalent. Where practicable, such notice shall be placed near the
Bates Number. In the case of computer, audiovisual, or other electronic or magnetic medium, such
notice shall be placed on the medium and its protective cover, if any. Testimony given at a
deposition or hearing may be designated “CONFIDENTIAL” or “HIGHLY CONFIDENTIALATTORNEYS EYES ONLY” in accordance with the provisions of Paragraph 18 of this Order.
Any designation that is inadvertently omitted from a document or testimony may be corrected by
written notification to opposing counsel, but any disclosure prior to such notification shall not be
a violation of this Order.

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12.

All “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL-ATTORNEYS EYES

ONLY” information shall be maintained under the control of outside counsel, who shall be
responsible for preventing any disclosure thereof except in accordance with the terms of this Order.
13.

In the event that either party wishes to file “CONFIDENTIAL” or “HIGHLY

CONFIDENTIAL-ATTORNEYS EYES ONLY” Discovery Materials with the Court, the party
must follow the procedures set forth in Western District of North Carolina Local Civil Rule 6.1
and Section 11 of the Western District of North Carolina’s Administrative Procedures Governing
Filing and Service by Electronic Means.
14.

Information produced by non-parties during the course of this action may be

designated under this Order by such non-party or by a party as “CONFIDENTIAL” or “HIGHLY
CONFIDENTIAL-ATTORNEYS EYES ONLY” by following the procedures set forth herein or
may be deemed so confidential as not to be disclosed under any circumstances. Information so
designated and produced by third parties shall thereafter be treated by the parties in the same
manner as if produced with such designation by a party. A producing non-party shall have all the
rights of a producing party with respect to protection of information under the terms of this Order.
The provisions of this Order for challenging the designation by a party are applicable to challenges
to designations by non-parties.
15.

Prior to disclosure of “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL-

ATTORNEYS EYES ONLY” information to any third parties described in subparagraphs 7(e)-(f)
above, counsel for the party seeking disclosure shall require such persons to read this Order and
execute a Nondisclosure Agreement in the form attached hereto as Exhibit A, a copy of which
shall be promptly provided upon request to opposing counsel and served on all other counsel of
record.

Nothing in this Order shall be construed as requiring that routine outside suppliers of

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litigation support services such as photocopying, scanning, or coding execute the attached
Nondisclosure Agreement; or that the opposing party utilizing such services must disclose the
identity of such service suppliers to the opposing party or counsel. Nothing in this Order shall be
construed as requiring that the identity of graphics preparation and presentation consultants,
witness preparation consultants, jury consultants, or trial presentation consultants be disclosed to
the opposing party or counsel. However, any party utilizing such services is required to have such
proposed service provider execute the attached Nondisclosure Agreement.
16.

Nothing in this Order shall prevent or restrict any person from using or disclosing

in any manner its own “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL-ATTORNEYS
EYES ONLY” information that it has produced or disclosed in this litigation.
17.

Nothing in this Order shall prevent disclosure beyond the terms of this Order of any

“CONFIDENTIAL” or “HIGHLY CONFIDENTIAL-ATTORNEYS EYES ONLY” information
if the parties to this action and, if applicable, the non-party from which the material originated,
consent, or if the Court, on motion filed by the party seeking to make disclosure, orders that
disclosure be made. Any party may at any time request the Court, after notice to the opposing
party and to the non-party from which the material originated, if applicable, to modify or grant
relief from any provision of this Order or to place additional restrictions on the use of any
“CONFIDENTIAL” or “HIGHLY CONFIDENTIAL-ATTORNEYS EYES ONLY” information.
18.

Information disclosed at a deposition may be designated as “CONFIDENTIAL” or

“HIGHLY CONFIDENTIAL-ATTORNEYS EYES ONLY” by indicating on the record during
the deposition that the information is “CONFIDENTIAL” or “HIGHLY CONFIDENTIALATTORNEYS EYES ONLY” and is subject to the provisions of this Order. All such portions of
the transcript shall be appropriately marked by the court reporter and shall be treated by the parties

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as set forth herein. Testimony in a deposition may also be designated “CONFIDENTIAL” or
“HIGHLY CONFIDENTIAL-ATTORNEYS EYES ONLY” by notifying the court reporter and
all counsel of record in writing within twenty-one (21) days of the receipt of the transcript of those
pages and lines or those exhibits that are “CONFIDENTIAL” or “HIGHLY CONFIDENTIALATTORNEYS EYES ONLY,” as the case may be. No deposition may be read by anyone other
than the deponent, the attorneys for the parties, and those authorized to see “HIGHLY
CONFIDENTIAL-ATTORNEYS EYES ONLY” material under Paragraph 7 during the twentyone (21) day period following receipt of a transcript unless otherwise agreed upon among the
attorneys.
19.

Violation by any person of any term of this Order or of the Nondisclosure

Agreement may be punishable as contempt of court.

Any person or entity that produces

“CONFIDENTIAL” or “HIGHLY CONFIDENTIAL-ATTORNEYS EYES ONLY” information
in response to a discovery request or subpoena in this action is intended to be a beneficiary of this
Order and of the Nondisclosure Agreement and may pursue all remedies available for violation
thereof. No provision of this Order shall be deemed to require any person or entity not a party to
this action to respond to any discovery request or subpoena, except as may otherwise be required
by law. Nothing in this Order shall prevent or prohibit any party or non-party from seeking such
additional or further protection as it deems necessary to protect documents or information subject
to discovery in this action.
20.

Nothing herein and no action taken under this Order shall constitute a waiver or

admission that any specific document, material, testimony, or thing: (1) is relevant and subject to
discovery; (2) is or is not a trade secret or confidential proprietary information; (3) constitutes or
does not constitute confidential records; or (4) is or is not admissible in evidence at trial or at any

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hearing. The production of any documents or information that the producing party claims to be
privileged shall be governed by the facts and applicable law.
21.

Upon the final termination of this litigation, including any appeals, the parties have

sixty (60) days within which they may petition the Clerk of Court to return to the party which filed
them all “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL-ATTORNEYS EYES ONLY”
information, and documents and things containing “CONFIDENTIAL” or “HIGHLY
CONFIDENTIAL-ATTORNEYS EYES ONLY” information, that have been filed under seal with
the Court.

Any and all originals and copies of Discovery Materials designated

“CONFIDENTIAL” or “HIGHLY CONFIDENTIAL - ATTORNEYS EYES ONLY” shall, at the
request of the producing party, be returned to the party within sixty (60) days after a final judgment
herein or settlement of this action, or, at the option of the producing party, destroyed in that time
frame, except that outside counsel for each party may maintain in its files one copy of each
pleading filed with the Court, each deposition transcript together with the exhibits marked at the
deposition, and documents constituting work product which were internally generated based upon
or

which

include

“CONFIDENTIAL”

information or

“HIGHLY

CONFIDENTIAL-

ATTORNEYS EYES ONLY” information. Upon receipt of any subpoena for such information,
the party receiving the subpoena shall immediately notify outside counsel for the producing party
of the subpoena so that the latter may protect its interests. In the event that documents are returned
to or destroyed at the request of the producing party, the other party or its outside counsel shall
certify in writing that all such documents have been returned or destroyed, as the case may be.
The parties should agree to reasonable extensions of time to complete the return of the
“CONFIDENTIAL” or “HIGHLY CONFIDENTIAL-ATTORNEYS EYES ONLY” information,
if necessary.

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22.

Notwithstanding any contrary terms in this Consent Protective Order, including any

such terms in Paragraph 21, the return of trial exhibits by the Court is governed by the Document
Disposition Plan found in Appendix I of the Western District of North Carolina’s Administrative
Procedures Governing Filing and Service by Electronic Means.
23.

The restrictions set forth in any of the preceding paragraphs of this Order shall not

apply to information that:
(a)

Was, is, or becomes public knowledge or publicly accessible not in violation

of this Order; or
(b)

Was lawfully possessed by the non-designating party prior to the date of

this Order. Notwithstanding this provision, parties lawfully possessing documents or information
required to be maintained as confidential by statute, regulation, or prior agreement shall treat such
documents and information in accordance with those applicable statutes, regulations, or prior
agreements, as the case may be.
24.

This Order shall continue in full force and effect after the termination of this

litigation, including all appeals. The extent to which this Court retains jurisdiction over this
litigation for enforcement of the provisions of this Consent Protective Order following the final
resolution of this litigation shall be determined in accordance with law. However, this Order shall
be subject to revocation or modification by order of the Court. Any stipulation of the parties
providing for revocation or modification of this Consent Protective Order shall not become
effective unless and until approved by the Court.
25.

The parties agree to submit this Order for entry by the Court and to be bound by

the terms prior to entry by the Court.

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IT IS SO ORDERED.
Signed: August 13, 2018

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EXHIBIT A
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
STATESVILLE DIVISION
CIVIL ACTION NO. 5:18-CV-067-RJC-DCK
MEDSOUTH PROFESSIONAL PARK
DRIVE, LLC,
Plaintiff,
NONDISCLOSURE AGREEMENT
UNDER CONSENT PROTECTIVE
ORDER

vs.
MOORESVILLE PPM, LLC,
Defendant.

The undersigned, having read the Consent Protective Order (the “Protective Order”)
entered in this action, understands the terms thereof, and intending to be legally bound thereby,
agrees as follows:
1.

All information and documents disclosed to the undersigned pursuant to the

Protective Order shall be used only in connection with the above-captioned action (the
“Litigation”) and shall not be used for any business or other purpose.
2.

Such information and documents shall be disclosed to and discussed only with the

parties' outside counsel and other persons so authorized pursuant to the terms of the Protective
Order. Neither such documents or information nor information acquired or extracted from such
documents or information will be divulged or made accessible to any other person, company, firm,
news organization, or any other person or entity whatsoever, except in compliance with the
Protective Order and this Nondisclosure Agreement. This Nondisclosure Agreement does not limit
the right of the signatory to testify at trial in this action or to prepare documents or other materials
for submission at trial in this action.

3.

The undersigned agrees to take all appropriate and necessary precautions to avoid

loss or inadvertent disclosure of documents or information covered by the Protective Order.
4.

The undersigned further agrees to return all information and documents in his or

her possession or control (including all abstracts, summaries, descriptions, lists, synopses,
pleadings, or other writings reflecting or revealing such information) and covered by the Protective
Order, to the attorney from whom he or she received such documents and information within thirty
(30) days after the termination of this Litigation, including all appeals, or within thirty (30) days
after the undersigned is no longer associated with this Litigation, whichever comes first.
5.

The undersigned acknowledges that a violation of the terms of the Protective Order

may subject the undersigned and/or his/her employer to sanctions, including, but not limited to,
punishment for civil contempt.

Dated:
Signature

Printed Name

Address

Employer(s)

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