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The Cato Corp. v. Stitch Fix, Inc.

United States District Court, W.D. North Carolina, Charlotte Division

March 27, 2017

THE CATO CORPORATION, Plaintiff,
v.
STITCH FIX, INC., Defendant. STITCH FIX, INC., Counterclaimant,
v.
THE CATO CORPORATION, CATO OF TEXAS LP, CATO SOUTHWEST, INC., Counterclaim Defendants.

          J. Mark Wilson Plaintiff/Counter-Defendants

          William C. Mayberry Defendant/Counter-Plaintiff

          ORDER

          Graham C. Mullen United States District Judge

         The parties to this Agreed Confidentiality Order have agreed to the terms of this Order; accordingly, it is ORDERED:

         1. Scope. All materials produced or adduced in the course of discovery, including initial disclosures, responses to discovery requests or subpoenas, deposition testimony and exhibits, and information derived directly therefrom (hereinafter collectively "documents"), shall be subject to this Order concerning Confidential Information as defined below. This Order is subject to the Local Rules of this District and the Federal Rules of Civil Procedure on matters of procedure and calculation of time periods.

         2. Confidential Information. As used in this Order, "Confidential Information" means information designated as "CONFIDENTIAL" by a party to this Action or a non-party responding to a subpoena (hereinafter referred to as "a producing or designating party") that falls within one or more of the following categories: (a) information prohibited from disclosure by statute; (b) information that reveals trade secrets; (c) research, technical, commercial or financial information that the party has maintained as confidential; (d) personal identity information; or (e) personnel or employment records. Information or documents that are available to the public may not be designated as Confidential Information.

         3. Designation.

(a) A producing party may designate a document as Confidential Information for protection under this Order by placing or affixing the words "CONFIDENTIAL" on the document and on all copies in a manner that will not interfere with the legibility of the document. As used in this Order, "copies" includes electronic images, duplicates, extracts, summaries or descriptions that contain the Confidential Information. The marking "CONFIDENTIAL" shall be applied prior to or at the time of the documents are produced or disclosed. Applying the marking "CONFIDENTIAL" to a document does not mean that the document has any status or protection by statute or otherwise except to the extent and for the purposes of this Order. Any copies that are made of any documents marked "CONFIDENTIAL" shall also be so marked, except that indices, electronic databases or lists of documents that do not contain substantial portions or images of the text of marked documents and do not otherwise disclose the substance of the Confidential Information are not required to be marked.
(b) The designation of a document as CONFIDENTIAL is a certification by an attorney that the document contains Confidential Information as defined in this Order.

         4. Depositions and Testimony. Parties or testifying persons or entities may designate all or portions of depositions and other testimony with the appropriate designation by indicating on the record at the time the testimony is given or by sending written notice of which portions of the transcript of the testimony is designated within thirty (30) days of receipt of the final transcript of the testimony. If no indication on the record is made, all information disclosed during a deposition shall be deemed Confidential Information until the time within which portions of the testimony may be appropriately designated as provided for herein has passed. Any party that wishes to disclose the transcript, or information contained therein, before the time within which it may be appropriately designated as Confidential Information has passed, may provide written notice of its intent to treat the transcript as non-confidential, after which time, any party that wants to maintain any portion of the transcript as confidential must designate the confidential portions within fourteen (14) days, or else the transcript may be treated as non-confidential. Any discovery material designated as Confidential Information that is used in the taking of a deposition shall remain subject to the provisions of this Order, along with the transcript pages of the deposition testimony dealing with such discovery material. In such cases the court reporter shall be informed of this Order. In the event the deposition is videotaped, the original and all copies of the videotape shall be marked by the video technician to indicate that the contents of the videotape are subject to this Order, substantially along the lines of "This videotape contains confidential testimony used in this case and is not to be viewed or the contents thereof to be displayed or revealed except by order of the Court, or pursuant to written stipulation of the parties." Counsel for any producing party shall have the right to exclude from oral depositions, other than the deponent, deponent's counsel, the reporter and videographer (if any), any person who is not authorized by this Order to receive or access Confidential Information based on the designation of such Confidential Information. Such right of exclusion shall be applicable only during periods of examination or testimony regarding such Confidential Information.

         5. Protection of Confidential Information.

         (a) General Protections. Confidential Information shall not be used or disclosed by the parties, counsel for the parties or any other persons identified in subparagraph (b) for any purpose whatsoever other than in this litigation, including any appeal thereof.

         (b) Limited Third-Party Disclosures. The parties and counsel for the parties shall not disclose or permit the disclosure of any Confidential Information to any third person or entity except as set forth in subparagraphs (1)-(10) below. Subject to these requirements, the following categories of persons may be allowed to review Confidential Information:

(1) Counsel. Counsel for the parties and employees of counsel who have responsibility for the action;
(2) Parties. Individual parties and employees, officers, and/or directors of a party but only to the extent counsel determines in good faith that the employee's assistance is reasonably necessary to the conduct of the litigation in which the information is disclosed;
(3) The Court, jury, and court personnel;
(4) Court Reporters and Recorders. Court reporters and recorders engaged for depositions;
(5) Contractors. Those persons specifically engaged for the limited purpose of making copies of documents or organizing or processing documents, including outside vendors hired to process electronically stored documents;
(6) Consultants and Experts. Consultants, investigators, or experts employed by the parties or counsel for the parties to assist in the preparation and trial of this action but only after such persons have completed the certification contained in Attachment A, Acknowledgment of Understanding and Agreement to Be Bound;
(7) Witnesses at depositions. During their depositions, witnesses in this action to whom disclosure is reasonably necessary in order to prosecute or defend the claims in this action. Witnesses shall not retain a copy of documents containing Confidential Information, except witnesses may receive a copy of all exhibits marked at their depositions in connection with review of the transcripts. Pages of transcribed deposition testimony or exhibits to depositions that are designated as Confidential Information pursuant to the process set out in this Order must be separately bound by the court reporter and may not be disclosed to anyone except as permitted under this Order.
(8) Author or recipient. The author or recipient of the document (not including a person who received the document in the course of litigation);
(9) Others by Consent. Other persons only by written consent of the producing party or upon order of the Court and on such ...

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