Fondriest v. Chippewa Aerospace Inc

Filing 23

STIPULATION AND PROTECTIVE ORDER RE CONFIDENTIALITY OF DOCUMENTS, MATERIALS AND INFORMATION. Signed by Honorable R Bryan Harwell on 4/9/2013. (hcic, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
FLORENCE DIVISION
WILLIAM D. FONDRIEST,
Plaintiff/CounterclaimDefendant,
v.
CHIPPEWA AEROSPACE, INC.
Defendant/CounterclaimPlaintiff.

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Civil Action No.
4:12-cv-03285-RBH

STIPULATION AND PROTECTIVE ORDER RE CONFIDENTIALITY OF
DOCUMENTS, MATERIALS AND INFORMATION
It is hereby stipulated and agreed, by and between the Parties to this matter, William D.
Fondriest (“Plaintiff”), and Chippewa Aerospace, LLC. (“Defendant”) (collectively, the
“Parties,” and each individually, the “Party”), and their counsel, that the terms and conditions of
this Stipulation and Protective Order Re Confidentiality of Documents, Materials and
Information (“Protective Order”), shall govern the production, review, receipt and maintenance
of CONFIDENTIAL INFORMATION AND/OR CONFIDENTIAL ATTORNEYS’ EYES
ONLY INFORMATION (as defined below) in the action above-entitled.
WHEREAS, Plaintiff and Defendant anticipate that some of the information, documents
and materials that will be exchanged between the Parties during the course of this litigation
contain, in whole or in part, proprietary research, development, or technical information,
confidential business records, trade secrets, and/or other proprietary, privileged or sensitive
information, any and all of which should be protected from disclosure to certain persons and
should be designated accordingly as CONFIDENTIAL INFORMATION or CONFIDENTIAL
ATTORNEYS’ EYES ONLY INFORMATION:
NOW, THEREFORE, IT IS HEREBY STIPULATED by and between the Parties that:

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1. DEFINITION OF CONFIDENTIAL INFORMATION
ATTORNEYS’ EYES ONLY INFORMATION.

AND

CONFIDENTIAL

For purposes of this Protective Order, the term CONFIDENTIAL INFORMATION shall
include all information, materials and documents containing or reflecting trade secrets,
proprietary technical, research, or development information, commercial, financial, budgeting
and/or accounting information, information about past, currently existing, and potential
customers, marketing studies, performance, and projections, business strategies, decisions and/or
negotiations, personnel compensation, evaluations and other employment information, and
confidential and proprietary information about affiliates, parents, subsidiaries and third parties
with whom the Parties to this action have had business relationships, personal information, and
any other information that is reasonably believed by the Producing Party (i.e., the Party
producing said CONFIDENTIAL INFORMATION) to be non-public, proprietary and
confidential. The term CONFIDENTIAL INFORMATION shall include and protect, without
limitation, information, documents and things, responses to requests to produce documents or
other things, responses to interrogatories, responses to requests for admissions, deposition
testimony and exhibits, and all copies, extracts, summaries, compilations, designations and
portions of same, to the extent they contain CONFIDENTIAL INFORMATION, regardless of
the manner of disclosure, production, or service of such CONFIDENTIAL INFORMATION.
The term CONFIDENTIAL ATTORNEYS’ EYES ONLY INFORMATION means certain
financial

information

and

business

financial

records

containing

CONFIDENTIAL

INFORMATION that the Producing Party reasonably believes could cause competitive harm if
disclosed to an owner, director, officer, employee, or competitive decision maker of the
Receiving Party (i.e., the Party receiving said CONFIDENTIAL INFORMATION) and that is
designated to be CONFIDENTIAL ATTORNEYS’ EYES ONLY INFORMATION in
accordance with this Protective Order.

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Any party may designate documents as CONFIDENTIAL ATTORNEYS’ EYES ONLY
INFORMATION but only after review of the documents by an attorney1 who has, in good faith,
determined that the documents contain CONFIDENTIAL financial information or business
financial records that require such protection. The certification shall be made concurrently with
the disclosure of the documents, using the form attached hereto at Attachment A which shall be
executed subject to the standards of Rule 11 of the Federal Rules of Civil Procedure.
2. CHALLENGES TO DESIGNATIONS OF CONFIDENTIAL
DOCUMENTS, MATERIALS AND INFORMATION.

STATUS

OF

The Parties agree that only documents, materials or information that the Producing Party
reasonably believes contain CONFIDENTIAL INFORMATION AND/OR CONFIDENTIAL
ATTORNEYS’ EYES ONLY INFORMATION may be so designated by that Party.
Any CONFIDENTIAL designation is subject to challenge.

The following procedures

shall apply to any such challenge.
a.

The burden of proving the necessity of a Confidential designation remains with

the party asserting confidentiality.
b.

A party who contends that documents designated CONFIDENTIAL are not

entitled to confidential treatment shall give written notice to the party who affixed the
designation of the specific basis for the challenge. The party who so designated the
documents shall have fifteen (15) days from service of the written notice to determine if
the dispute can be resolved without judicial intervention and, if not, to move for an Order
confirming the Confidential designation.
c.

Notwithstanding any challenge to the designation of documents as confidential,

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The attorney who reviews the documents and certifies them to be CONFIDENTIAL ATTORNEYS’
EYES ONLY INFORMATION must be admitted to the Bar of at least one state but need not be
admitted to practice in the District of South Carolina and need not apply for pro hac vice admission. By
signing the certification, counsel submits to the jurisdiction of this court in regard to the certification.

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all material previously designated CONFIDENTIAL shall continue to be treated as
subject to the full protections of this Order until one of the following occurs:
(1)

the party who claims that the documents are confidential withdraws such

designation in writing;
(2)

the party who claims that the documents are confidential fails to move

timely for an Order designating the documents as confidential as set forth in
paragraph 9.b. above; or
(3)

the court rules that the documents should no longer be designated as

confidential information.
d.

Challenges to the confidentiality of documents may be made at any time
and are not waived by the failure to raise the challenge at the time of initial
disclosure or designation.

3. DESIGNATION OF CONFIDENTIAL INFORMATION AND CONFIDENTIAL
ATTORNEYS’ EYES ONLY INFORMATION; INADVERTENT PRODUCTION.
CONFIDENTIAL INFORMATION AND/OR CONFIDENTIAL ATTORNEYS’ EYES
ONLY INFORMATION shall be so designated by the Producing Party by stamping or otherwise
marking the material prior to production as follows:

“CONFIDENTIAL” and/or

“CONFIDENTIAL ATTORNEYS’ EYES ONLY.” The failure to make such designation,
however, shall not deprive the information covered thereby of its protected status so long as: (1)
The designation is made by the Producing Party within thirty (30) days after its initial production
to the Receiving Party; or (2) The Parties agree in writing that such designation is not necessary.
Should a Producing Party determine that a document subject to privilege or immunity
from discovery has been produced inadvertently, he shall promptly bring that fact to the attention
of the Receiving Party.

In such event, the Parties agree that the Receiving Party shall be

obligated to promptly return to the Producing Party the inadvertently disclosed documents and

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all copies thereof. Any disputes between the Parties concerning the applicability of any privilege
or immunity pertaining to inadvertently produced documents shall be resolved between them in
good faith and, failing such resolution, such dispute shall then be resolved by the Court.
4. USE OF AND ACCESS TO CONFIDENTIAL INFORMATION
CONFIDENTIAL ATTORNEYS’ EYES ONLY INFORMATION.

AND

The Parties and their counsel agree that CONFIDENTIAL INFORMATION AND/OR
CONFIDENTIAL ATTORNEYS’ EYES ONLY INFORMATION shall be used by the Parties,
their counsel and other appropriate persons for the sole purpose of conducting this litigation,
including all appeals, as follows:
A.

CONFIDENTIAL INFORMATION:
Access to CONFIDENTIAL INFORMATION shall be limited to the following
qualified persons:
1. Outside counsel retained by any Party to work on this action;
2. Any paralegals, legal assistants, stenographic and clerical employees working
under the direct supervision of such outside counsel;
3. Any Parties to this action who are individuals, and the employees, directors,
or officers of such Parties to this action who are corporations or partnerships,
to the extent necessary to further the interests of the Parties in this litigation;
4. Any person not employed by a Party who is expressly retained or sought to be
retained by any attorney to assist in preparation of this action for trial, with
disclosure only to the extent necessary to perform such work;
5. Any trial or deposition witness who authored or received a copy of a
document as shown on the face of the document may be shown a copy of the
document, upon the witness being advised of the need and agreeing to keep
the documents, materials, or information confidential; and

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6. The Court and Court personnel.
B. CONFIDENTIAL ATTORNEYS’ EYES ONLY INFORMATION:
Access to information designated CONFIDENTIAL ATTORNEYS’ EYES ONLY
shall be limited to the following qualified persons:
1. Outside counsel retained by any Party to work on this action, provided that
such outside counsel shall not disclose CONFIDENTIAL ATTORNEYS’
EYES ONLY information to any representative of that Party or other
individuals advising any Party on, or participating in, competitive decisionmaking;
2. Any paralegals, legal assistants, stenographic and clerical employees working
under the direct supervision of such outside counsel;
3. Any person not employed by a Party who is expressly retained or sought to be
retained by any outside counsel to assist in preparation of this action for trial,
with disclosure only to the extent necessary to perform such work;
4. Such other persons as hereafter may be designated by written agreement in
this action or by order of the Court; and
5. The Court and Court personnel.
Any person who has access to CONFIDENTIAL INFORMATION AND/OR
CONFIDENTIAL ATTORNEYS’ EYES ONLY INFORMATION shall be advised of this
Protective Order and, with respect to categories 4.A.3, 4.A.4, and 4.B.3, shall be required to sign
the Declaration of Receipt of Confidential or CONFIDENTIAL ATTORNEYS’ EYES ONLY
INFORMATION (“Declaration”) that is attached hereto as Attachmentt B. These persons shall
not give, show, or otherwise directly or indirectly disclose any of the CONFIDENTIAL
INFORMATION OR CONFIDENTIAL ATTORNEYS’ EYES ONLY INFORMATION to any

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entity or person, except as may be permitted under this Protective Order. Moreover, upon
receipt, the signed Declaration together with a resume or curriculum vitae of all such persons
under 4.B.3. above shall be transmitted by facsimile or e-mail, and by regular mail to counsel for
Producing Party. If, within ten (10) days after receipt of such Declaration and resume or
curriculum vitae, the Producing Party has an objectively reasonable basis to object, and does
object in writing and provides proof supporting the objection to the Receiving Party to disclosure
of CONFIDENTIAL ATTORNEYS’ EYES ONLY INFORMATION to such person, no such
disclosure shall be made except upon further order of the Court or agreement of the parties. The
burden of proof supporting the objection remains with the objecting Party. No disclosure shall
be made during this ten (10) day period.

All materials containing CONFIDENTIAL

INFORMATION AND/OR CONFIDENTIAL ATTORNEYS’ EYES ONLY INFORMATION
shall be maintained at a location and under circumstances to ensure that access to such material
is limited to those persons entitled to have access under this Protective Order. Further, the
Receiving Party shall reasonably maintain all CONFIDENTIAL INFORMATION AND/OR
CONFIDENTIAL ATTORNEYS’ EYES ONLY INFORMATION received from the Producing
Party as if that information was that Party’s own CONFIDENTIAL INFORMATION AND/OR
CONFIDENTIAL ATTORNEYS’ EYES ONLY INFORMATION.
5. RETURN OF CONFIDENTIAL INFORMATION AND/OR CONFIDENTIAL
ATTORNEYS’ EYES ONLY INFORMATION AT CONCLUSION OF CASE.
All persons who previously received CONFIDENTIAL INFORMATION AND/OR
CONFIDENTIAL ATTORNEYS’ EYES ONLY INFORMATION shall, at the conclusion of
this case, including all appeals, return all such information to the outside counsel with whom
they worked. Upon completion of the trial and any appeals in this action, or upon the conclusion
of any settlement or other resolution of this action, counsel for each Party shall return all
CONFIDENTIAL INFORMATION AND/OR CONFIDENTIAL ATTORNEYS’ EYES ONLY

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INFORMATION produced by the other Party under the terms of this Protective Order. Any
document containing attorney-client privileged information or information protected by the
attorney work product doctrine may be destroyed and such destruction certified to in writing by
such recipient to outside counsel of record within thirty (30) days after conclusion of any
settlement or other resolution of this action. This shall be done upon the written request of
counsel for either Party.
Notwithstanding the above requirements to return or destroy documents, counsel may
retain attorney work product including an index which refers or relates to information designated
CONFIDENTIAL so long as that work product does not duplicate verbatim substantial portions
of the text of confidential documents. This work product continues to be Confidential under the
terms of this Order. An attorney may use his or her work product in a subsequent litigation
provided that its use does not disclose the confidential documents.
6. FILING WITH OR SUBMITTING TO THE COURT UNDER SEAL CONFIDENTIAL
INFORMATION
AND
CONFIDENTIAL
ATTORNEYS
EYES
ONLY
INFORMATION.
In the event a party seeks to file any material that is subject to protection under this Order
with the court, that party shall take appropriate action to insure that the documents receive proper
protection from public disclosure including: (1) filing a redacted document with the consent of
the party who designated the document as confidential; (2) where appropriate (e.g. in relation to
discovery and evidentiary motions), submitting the documents solely for in camera review; or
(3) where the preceding measures are not adequate, seeking permission to file the document
under seal pursuant to the procedural steps set forth in Local Civil Rule 5.03, DSC, or such other
rule or procedure as may apply in the relevant jurisdiction. Absent extraordinary circumstances
making prior consultation impractical or inappropriate, the party seeking to submit the document
to the court shall first consult with counsel for the party who designated the document as
confidential to determine if some measure less restrictive than filing the document under seal
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may serve to provide adequate protection. This duty exists irrespective of the duty to consult on
the underlying motion. Nothing in this Order shall be construed as a prior directive to the Clerk
of Court to allow any document be filed under seal. The parties understand that documents may
be filed under seal only with the permission of the court after proper motion pursuant to Local
Civil Rule 5.03.
Any papers that are filed with the Court under seal shall be filed using the following
procedure: (1) each page of the filing shall contain some legend at the top or bottom thereof
indicating that the document is “Confidential and Filed Under Seal;” and that (2) the envelope
that is used to submit such papers to the Court shall include a conspicuous bold type legend
indicating that the contents of the envelope are “Confidential and Filed Under Seal.” This section
of the Protective Order is not intended to suspend the provisions of LR 79.4.
If any party fails to file material containing CONFIDENTIAL INFORMATION
AND/OR CONFIDENTIAL ATTORNEYS’ EYES ONLY INFORMATION under seal, the
Producing Party or any party to this action may request that the Court place the materials under
seal within twenty (20) days of the filing of said materials. The Clerk of the Court is directed to
comply with such request if made.
7. DESIGNATING DEPOSITIONS.
Portions of depositions shall be deemed CONFIDENTIAL INFORMATION OR
CONFIDENTIAL ATTORNEYS’ EYES ONLY INFORMATION only if designated as such
when the deposition is taken or within seven (7) business days after receipt of the transcript.
Such designation shall be specific as to the portions to be protected. After the expiration of the
seven (7) day period, if no party or deponent has timely designated any additional material, then
such undesignated transcript and/or exhibits may be disclosed without restriction.The portion of
the

transcript

containing

CONFIDENTIAL

INFORMATION

OR

CONFIDENTIAL

ATTORNEYS’ EYES ONLY INFORMATION shall be identified in the transcript by the Court
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Reporter as CONFIDENTIAL INFORMATION OR CONFIDENTIAL ATTORNEYS’ EYES
ONLY INFORMATION. The designated testimony shall be bound in a separate volume and
marked by the reporter accordingly.
Where testimony is designated at a deposition, the Producing Party shall have the right to
exclude at those portions of the deposition all persons not authorized by the terms of this
Stipulated Protective Order to receive such CONFIDENTIAL INFORMATION OR
CONFIDENTIAL ATTORNEYS’ EYES ONLY INFORMATION.
8. CLIENT COMMUNICATION.
Nothing in this Stipulated Protective Order shall prevent or otherwise restrict counsel
from rendering advice to their clients and, in the course of rendering such advice, relying upon
the examination of CONFIDENTIAL INFORMATION OR CONFIDENTIAL ATTORNEYS’
EYES ONLY INFORMATION. In rendering such advice and otherwise communicating with
the client, however, counsel shall not make disclosure of any CONFIDENTIAL
INFORMATION OR CONFIDENTIAL ATTORNEYS’ EYES ONLY INFORMATION, except
as permitted by this Stipulated Protective Order.
9. BINDING EFFECT.
Upon execution of this Protective Order, the Parties and their attorneys agree that they
shall adhere to and be bound by its terms. The terms of this Stipulation and Protective Order
shall remain fully active until released by further written consent of the Parties, unless the Court
does not enter this Protective Order, in which case the Parties shall no longer be bound by its
terms. The Court shall retain jurisdiction over the Parties, this Protective Order, and recipients of
CONFIDENTIAL INFORMATION, AND/OR CONFIDENTIAL ATTORNEYS’ EYES ONLY
INFORMATION, for the purpose of enforcing the terms of this Protective Order as may be
appropriate.
IT IS SO ORDERED.
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Dated: April 9, 2013

BY THE COURT:
s/R. Bryan Harwell
R. Bryan Harwell, Judge
United States District Court
District of South Carolina

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ATTACHMENT A
CERTIFICATION BY COUNSEL OF DESIGNATION
OF INFORMATION AS CONFIDENTIAL
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
FLORENCE DIVISION
WILLIAM D. FONDRIEST,
Plaintiff/CounterclaimDefendant,
v.
CHIPPEWA AEROSPACE, INC.
Defendant/CounterclaimPlaintiff.

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Civil Action No.
4:12-cv-03285-RBH

Documents produced herewith [whose bates numbers are listed below (or) which are listed
on the attached index] have been marked as CONFIDENTIAL ATTORNEYS’ EYES ONLY
INFORMATION subject to the Confidentiality Order entered in this action which Order is dated
April 9, 2013.
By signing below, I am certifying that I have personally reviewed the marked documents
and believe, based on that review, that they are properly subject to protection under the terms of
Paragraph 1 of the Confidentiality Order.
Check and complete one of the two options below.
❑

I am a member of the Bar of the United States District Court for the District of
South Carolina. My District Court Bar number is [District Court Bar #].

❑

I am not a member of the Bar of the United States District Court for the District of
South Carolina but am admitted to the bar of one or more states. The state in
which I conduct the majority of my practice is [state in which I practice most]
where my Bar number is [that state's Bar #]. I understand that by completing this
certification I am submitting to the jurisdiction of the United States District Court
for the District of South Carolina as to any matter relating to this certification.

Date: [date attachment A signed]

[Signature of Counsel [s/name]]
Signature of Counsel
[Printed Name of Counsel [A]]
Printed Name of Counsel

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ATTACHMENT B
ACKNOWLEDGMENT OF UNDERSTANDING
AND
AGREEMENT TO BE BOUND
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
FLORENCE DIVISION
WILLIAM D. FONDRIEST,
Plaintiff/CounterclaimDefendant,
v.
CHIPPEWA AEROSPACE, INC.
Defendant/CounterclaimPlaintiff.

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Civil Action No.
4:12-cv-03285-RBH

The undersigned hereby acknowledges that he or she has read the Confidentiality Order
dated April 9, 2013, in the above captioned action, understands the terms thereof, and agrees to
be bound by such terms. The undersigned submits to the jurisdiction of the United States District
Court for the District of South Carolina in matters relating to the Confidentiality Order and
understands that the terms of said Order obligate him/her to use discovery materials designated
CONFIDENTIAL solely for the purposes of the above-captioned action, and not to disclose any
such confidential information to any other person, firm or concern.
The undersigned acknowledges that violation of the Stipulated Confidentiality Order may
result in penalties for contempt of court.
Name:

[undersigned name [att B]]

Job Title:

[Job Title [att B]]

Employer:

[Employer [att B]]

Business Address:

[Business Address [att B]]

Date: [date attachment B signed]

[Signature [attachment B]]
Signature

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