Light Em Up Inc v. Herbie's Famous Fireworks Inc et al
Filing
31
CONFIDENTIALITY ORDER granting 30 Motion for Confidentiality Order. Signed by Honorable Mary Geiger Lewis on 9/28/2015.(abuc)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
SPARTANBURG DIVISION
Light ’Em Up, Inc.,
Case No.: 7:15-cv-00771-MGL
Plaintiff,
vs.
CONSENT CONFIDENTIALITY ORDER
Herbie’s Famous Fireworks, Inc., and Woody
Tang,
Defendants.
Whereas, the parties to this Consent Confidentiality Order (“parties”), have stipulated that
certain discovery material is and should be treated as confidential, and have agreed to the terms of
this Order; accordingly, and finding good cause for same, it is ORDERED:
1.
Scope. All documents produced in the course of discovery, all responses to
discovery requests and all deposition testimony and deposition exhibits and any other materials
that may be subject to discovery (hereinafter collectively “documents”) shall be subject to this
Order concerning confidential information as set forth below.
2.
Form and Timing of Designation. Confidential documents shall be so designated
by placing or affixing the word “CONFIDENTIAL” or “CONFIDENTIAL – ATTORNEYS’
EYES ONLY” on the document in a manner that will not interfere with the legibility of the
document and that will permit complete removal of the Confidential designation. Documents shall
be designated CONFIDENTIAL or “CONFIDENTIAL – ATTORNEYS’ EYES ONLY” prior to,
or contemporaneously with, the production or disclosure of the documents.
a.
Inadvertent or unintentional production of documents without prior designation as
confidential shall not be deemed a waiver, in whole or in part, of the right to
designate documents as confidential as otherwise allowed by this Order. Upon
notice of such failure to designate, all Receiving Parties shall cooperate to restore
the confidentiality of the inadvertently disclosed documents or information, without
prejudice.
Disclosure by any party of matter so produced without a
“CONFIDENTIAL” or “CONFIDENTIAL – ATTORNEYS’ EYES ONLY”
designation prior to notice by the producing party of the confidential nature thereof
shall not be deemed a violation of this Order.
b.
If a Producing Party produces any document or information that it believes is
immune from discovery pursuant to any attorney-client privilege, attorney work
product immunity or any other privilege, or immunity from production, such
production shall not be deemed a waiver, and the Producing Party may give written
notice to all Receiving Parties that the document or information so produced is
deemed privileged and that return of the document or information is requested.
Upon receipt of such written notice, all Receiving Parties shall immediately
undertake to gather the original and all copies of the document or information and
shall immediately return the original and all such copies to the Producing Party or
certify in writing the destruction thereof.
3.
Documents That May be Designated Confidential.
a.
Any party may designate documents as “CONFIDENTIAL” but only after review
of the documents by an attorney1 who has, in good faith, determined that the
1
The attorney who reviews the documents and certifies them to be CONFIDENTIAL must be
admitted to the Bar of at least one state but need not be admitted to practice in the District of South
Carolina, but, if not admitted to practice in the District of South Carolina, must be admitted pro
2
documents contain information protected from disclosure by statute, sensitive
personal information, trade secrets, or confidential research, development, or
commercial information. Information or documents that are available in the public
sector may not be designated as confidential.
b.
The “CONFIDENTIAL – ATTORNEYS’ EYES ONLY” classification, being
more highly protective of disclosure than the "CONFIDENTIAL" classification,
governs information that an attorney, in good faith, determined would materially
affect the business, financial, commercial, or proprietary interests of the party or
person producing such material if such information is disclosed. Materials entitled
to protection under the “CONFIDENTIAL – ATTORNEYS’ EYES ONLY”
designation are limited to business plans, marketing surveys, financial information
(including budgets, sales or profit projections or reports, profit and loss statements,
balance sheets and income statements); customer lists; documents that identify
customers or suppliers of the producing party or person; technical drawings and
specifications; and documents related to the development or improvement of
machinery, products or processes.
4.
Depositions.
Portions of depositions shall be deemed confidential only if
designated as such when the deposition is taken or within seven business days after receipt of the
transcript. Such designation shall be specific as to the portions to be protected.
5.
Protection of Confidential Material.
hac vice in this action.
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a.
General
Protections.
Documents
designated
CONFIDENTIAL
or
“CONFIDENTIAL – ATTORNEYS’ EYES ONLY” under this Order shall not be
used or disclosed by the parties or counsel for the parties or any other persons for
any purpose whatsoever other than preparing for and conducting the litigation in
which the documents were disclosed (including any appeal or retrial of that
litigation).
b.
Limited Third Party Disclosures. The parties and counsel for the parties shall
not disclose or permit the disclosure of any documents designated
“CONFIDENTIAL” or “CONFIDENTIAL – ATTORNEYS’ EYES ONLY”
under the terms of this Order to any other person or entity prohibited by this Order,
nor shall any such person use or disclose such information for any purpose
whatsoever other than preparing for and conducting the litigation in which the
documents were disclosed (including any appeal or retrial of that litigation). As to
persons or entities defined in subparagraphs (c)(I)(B), (c)(I)(D), (c)(I)(E),
(c)(II)(C), and (c)(II)(D) below, disclosure shall not occur before the person to
whom disclosure is to be made has executed an acknowledgment (in the form set
forth at Attachment A hereto), that he or she has read and understands the terms of
this Order and is bound by it.
c.
Limitations
(I)
Subject to these requirements, the following categories of persons may be
allowed
to
review
documents
that
have
been
designated
“CONFIDENTIAL” pursuant to this Order:
(A)
counsel and employees of counsel for the parties who have
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responsibility for the preparation and trial of the lawsuit;
(B)
parties and employees of a party to this Order but only to the extent
counsel shall certify that the specifically named individual party or
employee’s assistance is necessary to the conduct of the litigation in
which the information is disclosed2;
(C)
court reporters engaged for depositions and those persons, if any,
specifically engaged for the limited purpose of making photocopies
of documents;
(D)
consultants, investigators, or experts (hereinafter referred to
collectively as “experts”) employed by the parties or counsel for the
parties to assist in the preparation and trial of the lawsuit, each of
whom shall execute the Acknowledgment in the form of Attachment
A prior to the disclosure of any CONFIDENTIAL information to
them, and a copy of the executed acknowledgment shall be served
on opposing counsel; and
(E)
other persons only upon consent of the producing party or upon
order of the court and on such conditions as are agreed to or ordered.
2
At or prior to the time such party or employee completes his or her acknowledgment of review
of this Order and agreement to be bound by it (Attachment A hereto), counsel shall complete a
certification in the form shown at Attachment B hereto. Counsel shall retain the certification
together with the form signed by the party or employee.
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(II)
Subject to these requirements, the following categories of persons may be
allowed to review documents that have been designated “CONFIDENTIAL
– ATTORNEYS’ EYES ONLY” pursuant to this Order:
(A)
counsel (excluding in-house counsel) and employees of counsel for
the parties who have responsibility for the preparation and trial of
the lawsuit;
(B)
court reporters engaged for depositions and those persons, if any,
specifically engaged for the limited purpose of making photocopies
of documents;
(C)
experts employed by the parties or counsel for the parties to assist
in the preparation and trial of the lawsuit. In addition to a signed
Acknowledgement in the form of Attachment A to this Protective
Order, the written notice will include: (i) name, business address,
title, and profession of the proposed person; and (ii) a resume or
curriculum vitae (including a list of all cases in which the proposed
person has been retained as an expert, including the case number and
law firm and attorney who retained the proposed person) of the
proposed person.
The Receiving Party shall not disclose any
“CONFIDENTIAL - ATTORNEYS’ EYES ONLY” information to
the proposed person unless the producing party or producing witness
approves of such disclosure or by Order of the Court. The Producing
Party witness shall have seven (7) days after receipt of such notice
of proposed person to challenge the substance or sufficiency of the
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notice by providing a detailed, written explanation and basis for the
challenge. A failure of the producing party or producing witness to
timely challenge such notice shall constitute approval of disclosure
to the proposed person. Upon conclusion of this matter, outside
experts
and
consultants
shall
return
or
destroy
all
“CONFIDENTIAL - ATTORNEYS’ EYES ONLY” material in
their possession, including notes or other documents prepared
relating to the “CONFIDENTIAL - ATTORNEYS’ EYES ONLY”
material.
The parties shall not seek discovery (whether by
subpoena, deposition or otherwise) from any expert whose identity
has become known due to the requirements of this paragraph unless
and until such expert has been designated as a testifying expert
pursuant to the Scheduling Order and Fed. R. Civ. P. 26(a)(2)(A);
and
(D)
other persons only upon consent of the producing party or upon
order of the court and on such conditions as are agreed to or ordered.
c.
Control of Documents. Counsel for the parties shall take reasonable efforts to
prevent unauthorized disclosure of documents designated as “CONFIDENTIAL”
or “CONFIDENTIAL - ATTORNEYS’ EYES ONLY” pursuant to the terms of
this order. Counsel shall maintain a record of those persons listed in subparagraphs
(c)(I)(B), (c)(I)(D), (c)(I)(E), (c)(II)(C), and (c)(II)(D) above, including employees
of counsel, who have reviewed or been given access to the documents along with
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the originals of the forms signed by those persons acknowledging their obligations
under this Order.
d.
Copies. All copies, duplicates, extracts, summaries or descriptions (hereinafter
referred
to
collectively
as
“copies”),
of
documents
designated
as
“CONFIDENTIAL” or “CONFIDENTIAL - ATTORNEYS’ EYES ONLY” under
this Order or any portion of such a document, shall be immediately affixed with the
designation “CONFIDENTIAL” if the word does not already appear on the copy.
All such copies shall be afforded the full protection of this Order.
6.
Filing of Confidential Materials. 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 ensure 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 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
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the Court after proper motion pursuant to Local Civil Rule 5.03.
7.
Greater Protection of Specific Documents. No party may withhold information
from discovery on the ground that it requires protection greater than that afforded by this Order
unless the party moves for an Order providing such special protection.
8.
ONLY.
Challenges to Designation as CONFIDENTIAL or ATTORNEYS’ EYES
Any CONFIDENTIAL or ATTORNEYS’ EYES ONLY designation is subject to
challenge. The following procedures shall apply to any such challenge.
a.
The burden of proving the necessity of a CONFIDENTIAL or ATTORNEYS’
EYES ONLY designation remains with the party asserting confidentiality.
b.
A party who contends that documents designated CONFIDENTIAL or
ATTORNEYS’ EYES ONLY are not entitled to CONFIDENTIAL or
ATTORNEYS’ EYES ONLY 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 or ATTORNEYS’
EYES ONLY designation.
c.
Notwithstanding
any
challenge
to
the
designation
of
documents
as
CONFIDENTIAL or ATTORNEYS’ EYES ONLY, all material previously
designated CONFIDENTIAL or ATTORNEYS’ EYES ONLY shall continue to be
treated as subject to the full protection of this Order until one of the following
occurs:
(1)
the party who claims that the documents are CONFIDENTIAL or
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ATTORNEYS’ EYES ONLY withdraws such designation in writing;
(2)
the party who claims that the documents are CONFIDENTIAL or
ATTORNEYS’ EYES ONLY fails to move timely for an Order designating the
documents as CONFIDENTIAL or ATTORNEYS’ EYES ONLY as set forth in
paragraph 8(b) above; or
(3)
the court rules that the documents should no longer be designated as
CONFIDENTIAL or ATTORNEYS’ EYES ONLY information.
d.
Challenges to the confidentiality of documents may be made any time and are not
waived by the failure to raise the challenge at the time of initial disclosure or
designation.
9.
Treatment on Conclusion of Litigation.
a.
Order Remains in Effect. All provisions of this Order restricting the use of
documents designated CONFIDENTIAL or ATTORNEYS’ EYES ONLY shall
continue to be binding after the conclusion of the litigation unless otherwise agreed
or ordered.
b.
Return of CONFIDENTIAL or ATTORNEYS’ EYES ONLY Documents. Within
thirty (30) days after the conclusion of the litigation, including conclusion of any
appeal, all documents treated as CONFIDENTIAL or ATTORNEYS’ EYES
ONLY under this Order, including copies as defined above paragraph 5(d) shall be
returned to the producing party unless: (1) the document has been entered as
evidence or filed (unless introduced or filed under seal); (2) the parties stipulate to
destruction in lieu of return; or (3) as to documents containing the notations,
summations, or other mental impressions of the receiving party, that party elects
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destruction.
Notwithstanding the above requirements to return or destroy
documents, counsel may retain attorney work product including an index that refers
or relates to information designated CONFIDENTIAL or ATTORNEYS’ EYES
ONLY so long as that work product does not duplicate verbatim substantial
portions of the text of CONFIDENTIAL or ATTORNEYS’ EYES ONLY
documents.
This work product continues to be CONFIDENTIAL or
ATTORNEYS’ EYES ONLY 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 or ATTORNEYS’ EYES ONLY documents.
10.
Order Subject to Modification. This Order shall be subject to modification on
motion of any party or any other person who may show an adequate interest in the matter to
intervene for purposes of addressing the scope and terms of this Order. The Order shall not,
however, be modified until the parties shall have been given notice and an opportunity to be heard
on the proposed modification.
11.
No Judicial Determination. This Order is entered based on the representations
and agreements of the parties and for the purpose of facilitating discovery. Nothing herein shall
be construed or presented as a judicial determination that any specific document or item of
information designated as CONFIDENTIAL or ATTORNEYS’ EYES ONLY by counsel is
subject to protection under Rule 26(c) of the Federal Rules of Civil Procedure or otherwise until
such time as a document-specific ruling shall have been made.
12.
Persons Bound. This Order shall take effect when entered and shall be binding
a.
counsel who signed below and their respective law firms; and
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upon:
b.
their respective clients who are parties to this lawsuit.
IT IS SO ORDERED.
s/Mary Geiger Lewis
_______________________________________
Mary Geiger Lewis
UNITED STATES DISTRICT JUDGE
September 28, 2015
Columbia, South Carolina
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ATTACHMENT A
ACKNOWLEDGMENT OF UNDERSTANDING
AND
AGREEMENT TO BE BOUND OF PARTY/EMPLOYEE
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
SPARTANBURG DIVISION
Light ’Em Up, Inc.,
Case No.: 7:15-cv-00771-MGL
Plaintiff,
ACKNOWLEDGEMENT OF
UNDERSTANDING AND AGREEMENT
TO BE BOUND OF PARTY/EMPLOYEE
vs.
Herbie’s Famous Fireworks, Inc., and Woody
Tang,
Defendants.
The undersigned hereby acknowledges that he or she has read the Confidentiality Order
dated___________________, 20_____ 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:
_________________________________
Job Title:
_________________________________
Employer:
_________________________________
Business Address:
___________________________
___________________________
___________________________
Date:______________
________________________________
Signature
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ATTACHMENT B
CERTIFICATION OF COUNSEL OF NEED
FOR ASSISTANCE OF PARTY/EMPLOYEE
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
SPARTANBURG DIVISION
Light ’Em Up, Inc.,
Case No.: 7:15-cv-00771-MGL
Plaintiff,
CERTIFICATION OF COUNSEL OF
NEED FOR ASSISTANCE OF
PARTY/EMPLOYEE
vs.
Herbie’s Famous Fireworks, Inc., and Woody
Tang,
Defendants.
Pursuant to the Confidentiality Order entered in this action, I certify that the assistance of
________________________________ is reasonably necessary to the conduct of this litigation
and that this assistance requires the disclosure to this individual of information that has been
designated as CONFIDENTIAL.
I have explained the terms of the Confidentiality Order to the individual named above and
will obtain his or her signature on an “Acknowledgment of Understanding and Agreement to be
Bound” prior to releasing any CONFIDENTIAL documents to the named individual and I will
release only such CONFIDENTIAL documents as are reasonably necessary to the conduct of the
litigation.
The individual named above is:
A named party;
An employee of named party______________________________.
This
employee’s job title is ___________________________ and work address
is________________________________________________________________.
Date:________________
_________________________________________
Signature
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