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Boyette Brothers Produce, LLC v. Arvila LLC

United States District Court, E.D. North Carolina, Western Division

May 13, 2017

Boyette Brothers Produce, LLC, Plaintiff/Counter-Defendants,
v.
Arvila, LLC, et al., Defendants/Counter-Plaintiffs.

          PROTECTIVE ORDER

          Robert T. Numbers, II United States Magistrate Judge

         Plaintiff Boyette Brothers Produce, LLC claims that discovery requests issued by Defendants Arvila, LLC; TMF Florida, LLC; Florian Braich; and Angela Braich call for the production of confidential business information. Thus, there is good cause to enter a protective order allowing production of responsive documents and information while protecting their sensitive nature.

         A. Proceedings and Information Governed.

         This protective order governs any document, information, or other thing furnished by any party to any other party, and may be utilized any nonparty who receives a subpoena in connection with this action. The information protected includes, but is not limited to: answers to interrogatories; answers to requests for admission; responses to requests for production of documents; deposition transcripts and videotapes; deposition exhibits; and other writings or things produced, given, or filed in this action that are designated by a party as Confidential or Confidential Attorney Eyes Only in accordance with the terms of this Protective Order, as well as to any copies, excerpts, abstracts, analyses, summaries, descriptions, or other forms of recorded information containing, reflecting, or disclosing such information.

         B. Designation and Maintenance of Information.

         1. A party may designate a document as Confidential if the party has a good faith belief that the document contains confidential, proprietary, and/or commercially sensitive information. A party shall designate a document as confidential by placing on each page and each thing a legend, or otherwise conspicuously designating electronically stored information, substantially as follows:

         CONFIDENTIAL SUBJECT TO PROTECTIVE ORDER

         2. A party may designate a document as the Confidential Attorney Eyes Only if the party has a good faith belief that the document contains or reflects information that is extremely confidential and/or sensitive in nature and the party reasonably believes that the disclosure of the document is likely to result in economic harm or significant competitive disadvantage. The following information, if non-public, shall be presumed to merit the CONFIDENTIAL - ATTORNEY EYES ONLY designation: trade secrets, pricing information, financial data, sales information, sales or marketing forecasts or plans, business plans, sales or marketing strategy, product development information, employee information, and other non-public information of similar competitive and business sensitivity. The parties shall use caution in designating documents that have previously been disclosed to third parties as Confidential Attorney Eyes Only. A party shall designate a document as Confidential Attorney Eyes Only by placing on each page and each thing a legend, or otherwise conspicuously designating electronically stored information, substantially as follows:

         CONFIDENTIAL ATTORNEY EYES ONLY INFORMATION SUBJECT TO PROTECTIVE ORDER

         3. Confidential information and Confidential Attorney Eyes Only information does not include, and this Protective Order does not apply to, information that is already in the knowledge or possession of the party to whom disclosure is made unless that party is already bound by agreement not to disclose such information, or information that has been disclosed to the public or third persons in a manner making such information no longer confidential.

         4. A party or a deponent may designate information disclosed at a deposition as Confidential or Confidential Attorney Eyes Only by requesting the court reporter to so designate the transcript or any portion of the transcript at the time of the deposition. If no such designation is made at the time of the deposition, any party or the deponent will have fourteen days after the date of the deposition to designate, in writing to the other parties and to the court reporter, whether the transcript is to be designated as Confidential or “Confidential Attorney Eyes Only.” If no such designation is made at the deposition or within this fourteen day period (during which period, the transcript must be treated as “Confidential Attorney Eyes Only, ” unless the disclosing party consents to less confidential treatment of the information), the entire deposition will be considered devoid of Confidential or “Confidential Attorney Eyes Only.” Each party and the court reporter must attach a copy of any final and timely written designation notice to the transcript and each copy of the transcript in its possession, custody or control, and the portions designated in such notice must thereafter be treated in accordance with this Protective Order. It is the responsibility of counsel for each party to maintain materials containing information designated as Confidential or Confidential Attorney Eyes Only in a secure manner and appropriately identified so as to allow access to such information only to such persons and under such terms as is permitted under this Protective Order.

         C. Inadvertent Failure to Designate.

         The inadvertent failure to designate any document or information as Confidential or Confidential Attorney Eyes Only will not be deemed to waive a later claim as to its sensitive nature. If a producing party realizes that it has inadvertently failed to designate a document, in shall inform the receiving party in writing and with particularity. The receiving party must treat the information as Confidential or Confidential Attorney Eyes Only from the time the receiving party is notified in writing of the change in the designation.

         D. Challenge to Designations.

         A receiving party may challenge a producing party's designation of any information as Confidential or Confidential Attorney Eyes Only at any time. Any receiving party that disagrees with a designation may request in writing that the producing party change the designation. The producing party will then have ten days after receipt of a challenge notice to advise the receiving party whether or not it will change the designation. If the parties are unable to reach agreement after the expiration of this ten day time-frame, and after required conference to resolve the matter, the receiving party may at any time thereafter seek a Court order requiring the producing party to remove the Confidential or Confidential Attorney Eyes Only designation on the information. Once the receiving party files its motion, the designation will remain in full force and effect, and the information will continue to be accorded the Confidential or Confidential Attorney Eyes Only or treatment required under this Protective Order until the Court rules on the motion to change the designation.

         E. Disclosure and Designated Information.

         1. Information designated as Confidential or Confidential Attorney Eyes Only may only be used for purposes of this action at the trial and appellate levels. Information designated as Confidential or Confidential Attorney Eyes Only may not be used under any circumstances for any other purpose.

         2. Subject to Paragraph E(4) below, Confidential information may be disclosed by the receiving party only to the following individuals, provided that such individuals are informed of the terms of this Protective Order:

(a) Two employees of the receiving party who are required in good faith to provide assistance in the conduct of this litigation, including any settlement discussions, and who are identified as such in writing to counsel for the designating party in advance of the disclosure;
(b) In-house counsel, outside, or local counsel who are identified by the receiving party and personnel employed them, such as paralegals, legal secretaries, data entry clerks, ...

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