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Indratech, LLC v. Fibrix, LLC

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

April 6, 2017

INDRATECH, LLC, a Michigan limited liability company, Plaintiff,
v.
FIBRIX, LLC, a Delaware limited liability company, Defendant.

          CARLSON, GASKEY & OLDS, P.C. Timothy C. Bradley ( N.C. State Bar No. 4119) Brian B. Brown (pro hac vice) Attorneys for Plaintiff/Counter-Defendant Indratech, LLC

          ADAMS AND REESE LLP Lyndey Ritz Zwingelberg Federal Bar ID 49638 Ray Ferrera (pro hac vice) Lyondell Basell Tower Melissa Rizzo (pro hac vice) Eric J. Partlow (pro hac vice) Bank of America Plaza Attorneys for Defendant/Counter-Plaintiff Fibrix, LLC

PROTECTIVE ORDER

          David C. Keesler United States Magistrate Judge.

         WHEREAS, Plaintiff, Indratech, LLC and Defendant, Fibrix, LLC (hereinafter referred to collectively as “the Parties” or individually as a “party”) recognize that pursuant to discovery or otherwise during the course of this Action, each party, and potentially non-parties, will be required to disclose confidential or proprietary information, the unrestricted disclosure of which would tend to cause injury to the disclosing party;

         WHEREAS, in order to facilitate orderly discovery, the Parties seek entry of a protective order limiting disclosure thereof in accordance with Federal Rule of Civil Procedure 26(c);

         THEREFORE, it is hereby stipulated among the Parties and ORDERED that:

         This Order shall govern the production, use, and disclosure of confidential documents and information produced, used, or disclosed in connection with this action and designated in accordance with this Order. Any party or non-party disclosing information (hereinafter, “disclosing party”) may designate information or documents produced, used, or disclosed in connection with this action as “CONFIDENTIAL, ” “HIGHLY CONFIDENTIAL, ” or “HIGHLY CONFIDENTIAL-PROSECUTION BAR” and subject to the protections and requirements of this Order, if so designated in writing to each party, by stamping the legend “CONFIDENTIAL, ” “HIGHLY CONFIDENTIAL, ” or “HIGHLY CONFIDENTIAL- PROSECUTION BAR” on the documents or information prior to production, or orally if recorded as part of a deposition or court record, pursuant to the terms of this Order.

         2. Any disclosing party may designate any document, material, or information as “CONFIDENTIAL, ” “HIGHLY CONFIDENTIAL, ” or “HIGHLY CONFIDENTIAL- PROSECUTION BAR.” In designating information and materials as “CONFIDENTIAL, ” “HIGHLY CONFIDENTIAL, ” or “HIGHLY CONFIDENTIAL-PROSECUTION BAR, ” counsel for a disclosing party will make such designation only as to that information that he or she in good faith believes to be “CONFIDENTIAL, ” “HIGHLY CONFIDENTIAL, ” or “HIGHLY CONFIDENTIAL-PROSECUTION BAR” as defined in Paragraphs 2.a., 2.b., and 2.c. rder.

         a. “CONFIDENTIAL” means testimony, information, documents, and data which constitute trade secrets or other confidential research, development, business, financial, or marketing information of the disclosing party, the unrestricted disclosure of which would tend to cause injury to the disclosing party. The “CONFIDENTIAL” category shall be invoked by a disclosing party only relative to documents and testimony or categories of documents and testimony that contain confidential information that legitimately falls within the definition of protectable documents under Fed.R.Civ.P. 26(c), including but not limited to confidential research, development, business, financial, or marketing information, the unrestricted disclosure of which would tend to cause injury to the disclosing party.

         b. “HIGHLY CONFIDENTIAL” means testimony, information documents, and data that meet the criteria of “CONFIDENTAL” contained in Paragraph 2.a. of this Order, and that, if disclosed to a business competitor, would tend to damage the disclosing party's competitive position.

         c. “HIGHLY CONFIDENTIAL-PROSECUTION BAR” means testimony, information, documents, and data that meet the criteria of “HIGHLY CONFIDENTIAL” contained in paragraph 2.b. of this Order and shall consist only of technical information and shall not be applied to information that is exclusively financial.

         3. In the case of a document, a designation of “CONFIDENTIAL, ” “HIGHLY CONFIDENTIAL, ” or “HIGHLY CONFIDENTIAL-PROSECUTION BAR” shall be accomplished by marking the header or footer of each page of the document, to the extent reasonable, with the legend “CONFIDENTIAL, ” “HIGHLY CONFIDENTIAL, ” or “HIGHLY CONFIDENTIAL-PROSECUTION BAR.”

         4. Notwithstanding any other provision of this Order, the Parties and any non-party disclosing party shall confer and attempt to agree before any Court trial or hearing on the procedures to be included in a protective order pursuant to which “CONFIDENTIAL, ” “HIGHLY CONFIDENTIAL, ” or “HIGHLY CONFIDENTIAL-PROSECUTION BAR” material may be used or introduced into evidence at such trial or hearing. Upon reaching agreement, the Parties shall give notice of the terms of such agreement to each disclosing party producing “CONFIDENTIAL, ” “HIGHLY CONFIDENTIAL, ” or “HIGHLY CONFIDENTIAL-PROSECUTION BAR” material which may be used or introduced at such trial or hearing. Because it would affect the public availability of material used at a trial or hearing, any such agreement will be effective only upon Court approval. Absent agreement among the Parties, any party upon reasonable notice to the disclosing party producing “CONFIDENTIAL, ” “HIGHLY CONFIDENTIAL, ” or “HIGHLY CONFIDENTIAL- PROSECUTION BAR” material which may be used or introduced at such trial or hearing may move the Court to issue an order governing the use of such information at a trial or hearing. Unless the Parties agree otherwise in advance, information conveyed or discussed in testimony at a deposition shall be subject to this Order and shall initially be designated “HIGHLY CONFIDENTIAL-PROSECUTION BAR” at the time the testimony is given. During such time as any information or documents designated “CONFIDENTIAL, ” “HIGHLY CONFIDENTIAL, ” or “HIGHLY CONFIDENTIAL-PROSECUTION BAR” are disclosed in a deposition, any party shall have the right to exclude from attendance at the deposition any person who is not entitled to receive such information or documents pursuant to this Order. Unless counsel for a party states otherwise on the record, the entire deposition transcript for each deponent in this action and the information contained therein is to be treated as “HIGHLY CONFIDENTIAL-PROSECUTION BAR” for a period of time not to exceed 14 days after the party receives a copy of the deposition transcript, during which time the party may designate, in writing, specific portions of the transcript “CONFIDENTIAL, ” “HIGHLY CONFIDENTIAL, ” or “HIGHLY CONFIDENTIAL-PROSECUTION BAR” as appropriate. If the party fails to designate in writing any portions of the transcript as “CONFIDENTIAL, ” “HIGHLY CONFIDENTIAL, ” or “HIGHLY CONFIDENTIAL-PROSECUTION BAR” within the 30 day period, the other parties shall be permitted to use the transcript and the information contained therein with no restrictions of confidentiality subject to the provisions of paragraph 5 below.

         5. Subject to the provisions of Paragraphs 2 and 3, the failure to object to a designation of information or documents as “CONFIDENTIAL, ” “HIGHLY CONFIDENTIAL, ” or “HIGHLY CONFIDENTIAL-PROSECUTION BAR” in accordance with this Order shall not preclude a party at a later time from subsequently objecting to the designation of such information or documents as “CONFIDENTIAL, ” “HIGHLY CONFIDENTIAL, ” or “HIGHLY CONFIDENTIAL-PROSECUTION BAR.” A receiving party shall treat all documents as “HIGHLY CONFIDENTIAL-PROSECUTION BAR, ” no matter how designated, for a period of five (5) business days after said disclosure to permit a disclosing party who erroneously fails to designate certain information or documents as “CONFIDENTIAL, ” “HIGHLY CONFIDENTIAL, ” or “HIGHLY CONFIDENTIAL-PROSECUTION BAR” to cure the error. Thereafter, the Parties understand and acknowledge that failure of a party to designate information or documents as “CONFIDENTIAL, ” “HIGHLY CONFIDENTIAL, ” or “HIGHLY CONFIDENTIAL-PROSECUTION BAR” relieves the receiving party of obligations of confidentiality until such a designation is made, except as otherwise provided herein.

         6. A party that objects to the designation of any document or information as “CONFIDENTIAL, ” “HIGHLY CONFIDENTIAL, ” or “HIGHLY CONFIDENTIAL- PROSECUTION BAR” shall provide written notice of the objection to the designating party. The notice shall state with specificity the document objected to and the basis for the objection. If the dispute cannot be resolved, the objecting party may move the Court requesting that the document(s) in question be redesignated. If such motion is brought by the objecting party, the designating party shall bear the burden of establishing the confidentiality of the document(s) in question. No party shall be under any obligation to object to any designation of confidentiality at the time such designation is made, or any time thereafter. No party shall, by failure to object, be found to have acquiesced or agreed to such designation or be barred from objecting to such a designation at any time thereafter. Each party to this litigation additionally acknowledges that nothing in this Order shall prevent interested members of the public from challenging the propriety of a “CONFIDENTIAL, ” “HIGHLY CONFIDENTIAL, or “HIGHLY CONFIDENTIAL-PROSECUTION BAR” designation of documents and/or categories of documents by petitioning this Court.

         7. Other than by the disclosing party, any information or document designated as “CONFIDENTIAL” shall be used solely in connection with the action and shall not be used in any other manner by a receiving party. Any such ...


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