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Thompson Automotive Labs, LLC v. Illinois Tool Works, Inc.

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

May 23, 2017

THOMPSON AUTOMOTIVE LABS, LLC Plaintiff,
v.
ILLINOIS TOOL WORKS INC. Defendant.

          AMENDED PROTECTIVE ORDER FOR THE PROTECTION OF CONFIDENTIAL INFORMATION

          LOUISE W. FLANAGAN U.S. DISTRICT COURT JUDGE.

         WHEREAS, in the course of pre-trial discovery relating to the claims and defenses in this case, disclosure may be sought of technical, marketing, actual or prospective vendors or customers, personnel, pricing, margins, financial and other business information (collectively “Confidential Information”) that contains highly confidential, trade secret or other proprietary information of the parties and non-parties, which the parties or non-parties have taken reasonable steps to maintain as confidential prior to this litigation;

         WHEREAS, the parties agree that the disclosures that the parties may request during discovery in this case identified above may contain Confidential Information, the disclosure of which the parties believe could substantially injure the disclosing party and/or provide a significant competitive advantage for competitors of the disclosing party, potentially including the non-disclosing party;

         WHEREAS, to expedite the flow of pre-trial discovery materials, protect the confidentiality of the Confidential Information, ensure that protection is afforded only to materials so entitled, facilitate the prompt resolution of disputes over confidentiality, and eliminate the need for repeated requests that the Court become directly involved in the discovery process, the Court entered a Protective Order for the Protection of Confidential Information on October 3, 2016 [DE 66] (the “Protective Order”);

         WHEREAS, the parties have determined that disclosure may be sought in discovery of extremely sensitive computer source code, associated comments, and related materials, disclosure of which would create a serious risk of harm to the producing party in the absence of protective measures in addition to those provided in the Protective Order; and

         WHEREAS, the parties have agreed to the terms of this Amended Protective Order for the Protection of Confidential Information in order to facilitate the disclosure of such source code materials in discovery while providing additional measures to protect against serious harm to the producing party through unauthorized disclosure;

         NOW THEREFORE, pursuant to Rule 26 of the Federal Rules of Civil Procedure, IT IS HEREBY ORDRERED that the Protective Order entered in this case on October 3, 2016 [DE 66] is hereby superseded by the following Amended Protective Order for the Protection of Confidential Information and that this Amended Protective Order (“Amended Protective Order”) shall govern the handling of all information, testimony, things or documents filed with the Court or produced or given (either by a party or non-party) as part of discovery in this action. This Amended Protective Order permits the parties, and non-parties, to designate certain material as “CONFIDENTIAL”, “CONFIDENTIAL - ATTORNEYS' EYES ONLY” or “CONFIDENTIAL - SOURCE CODE” (hereinafter collectively referred to as “Confidential Material”). The party or non-party that makes such a designation shall hereafter be referred to as a “Designated Party.” The party or non-party producing documents in this litigation shall hereafter be referred to as a “Producing Party.” The party or non-party that receives documents produced in this litigation shall hereafter be referred to as a “Receiving Party”:

         I. DESIGNATION OF DOCUMENTS

         1. CONFIDENTIAL Designation. A party or non-party may designate as “CONFIDENTIAL” any non-public Covered Matter when such materials contain Confidential Information or information qualifying for protection under Rule 26(c)(1) of the Federal Rules of Civil Procedure.

         2. CONFIDENTIAL - ATTORNEYS' EYES ONLY Designation. A party or non-party may designate as “CONFIDENTIAL - ATTORNEYS' EYES ONLY” that portion of any Covered Matter that is or contains, reflects or otherwise discloses a trade secret or other highly confidential information, such as: structure and operation of the products at issue; licenses and business relationships with third-parties; detailed product cost, sales, pricing and profitability information; technical know-how, formulae, processes, designs and passwords; future product development plans; strategic marketing, research, design, engineering, manufacturing and development information; personnel information; or other confidential information which, if disclosed to another party or non-party, would create a substantial risk of serious harm that could not be avoided by less restrictive means.

         3. CONFIDENTIAL - SOURCE CODE Designation. A party or a non-party may designate as CONFIDENTIAL - SOURCE CODE that portion of Confidential Material that is, contains, reflects or otherwise discloses confidential, proprietary or trade secret computer code or associated comments, revision histories, formulas, engineering specifications, or schematics that define or otherwise describe in detail the algorithms or structure of software, the disclosure of which to the other party or a non-party would create a substantial risk of serious harm that could not be avoided by less restrictive means.

         4. Good Faith Determination. Prior to designating any Covered Matter as “CONFIDENTIAL” or “CONFIDENTIAL - ATTORNEYS' EYES ONLY” or “CONFIDENTIAL - SOURCE CODE” under this Amended Protective Order, counsel for the Designating Party shall:

a) make a good faith particularized determination that the particular protection is warranted under Federal Rule of Civil Procedure 26(c); and
b) make a good faith particularized determination that the disclosure directly to the opposing party or its employees will create a substantial risk of serious harm to the Designating Party, and that there is no less restrictive way to prevent such harm other than through the use of designations as set forth herein.

         5. Use of Designations. The parties shall use the “CONFIDENTIAL” or “CONFIDENTIAL - ATTORNEYS' EYES ONLY” or “CONFIDENTIAL - SOURCE CODE” designations only as appropriate.

         II. LIMITATIONS ON USE AND DISCLOSURE OFCOVERED MATTER

         1. Designation and Marking Confidential Material. Parties, non-parties, and their counsel shall designate CONFIDENTIAL, CONFIDENTIAL - ATTORNEYS' EYES ONLY and CONFIDENTIAL - SOURCE CODE material as follows:

a) In the case of documents or other tangible materials that are produced as part of discovery or are responsive to any discovery request, which includes, but is not limited to, responses to interrogatories, requests for production of documents, subpoenas for the production of documents and requests for admission, and any attachments or exhibits to any of the foregoing documents referenced in this provision, such documents shall be stamped or otherwise labeled: “CONFIDENTIAL” or “CONFIDENTIAL - ATTORNEYS' EYES ONLY” or “CONFIDENTIAL - SOURCE CODE”;
b) In the case of materials produced in the form of electronic or magnetic media (including information, files, databases, or programs stored on any digital analog machine-readable device, computers, discs, networks, or tapes), such materials may be designated as “CONFIDENTIAL” or “CONFIDENTIAL - ATTORNEYS' EYES ONLY” or “CONFIDENTIAL - SOURCE CODE” by identifying specific electronically stored information if possible, or if not possible, by cover letter referring generally to such matter and by affixing (where possible) a label on the media or casing indicating such designation or by placing the designation in a suitably revised file name.

         2. In the case of depositions, counsel for a party or non-party may designate portions of the transcript (including exhibits) as “CONFIDENTIAL” or “CONFIDENTIAL - ATTORNEYS' EYES ONLY” or “CONFIDENTIAL - SOURCE CODE” during the deposition by (1) making a statement to that effect on the record; or (2) by written notice, sent by counsel to all parties within fourteen (14) calendar days after receiving a copy of the final transcript thereof; and in both of the foregoing instances, by directing the court reporter that the appropriate confidentiality legend be affixed to the first page and all portions of the original and all copies of the transcript containing any CONFIDENTIAL or CONFIDENTIAL - ATTORNEYS' EYES ONLY or CONFIDENTIAL - SOURCE CODE information. All deposition and other pretrial testimony shall be deemed to be CONFIDENTIAL - ATTORNEYS' EYES ONLY information until the expiration of fourteen (14) calendar days after counsel receives a copy of the final transcript thereof, after which time the transcript shall be treated as actually designated. The parties and any non-party may modify this procedure for any particular deposition, through agreement on the record at such deposition or otherwise, without further order of the Court.

         3. Disclosure of Confidential Material at Deposition. During any deposition taken in this action at which Confidential Material is disclosed or discussed, any party or non-party may exclude from attendance at the deposition during such disclosure or discussion any person other than the deponent, court reporter, videographer and persons to whom the information and/or documents may be disclosed under the terms of this Amended Protective Order.

         4. Challenging Designation of Confidential Material. A party shall not be obligated to challenge the propriety of a CONFIDENTIAL or CONFIDENTIAL - ATTORNEYS' EYES ONLY or CONFIDENTIAL - SOURCE CODE designation at the time made, and failure to do so shall not preclude a subsequent challenge. A party may challenge the designation of Confidential Material only as follows:

a) If at any time any party disagrees with a designation of CONFIDENTIAL or CONFIDENTIAL - ATTORNEYS' EYES ONLY or CONFIDENTIAL - SOURCE CODE, that person shall provide written or e-mail notice of its disagreement to the Designating Party. To avoid ambiguity as to whether a challenge has been made, the written notice must recite that the challenge to confidentiality is being made in accordance with this specific paragraph of the Amended Protective Order. The parties shall make a good faith effort to resolve the dispute by conferring directly within seven (7) calendar days of the date of service of notice. In conferring, the challenging party must explain the basis for its belief that the confidentiality designation was not proper and must give the Designating Party an opportunity to review the designated material, to reconsider the circumstances, and, if no change in designation is offered, to explain the basis for the chosen designation.
b) If the dispute cannot be informally resolved within five (5) calendar days following written notice by the challenging party, the challenging party may file and serve a motion to remove or modify the designation or may request other appropriate relief from the Court. The burden of persuasion in any such challenge proceeding shall be on the Designating Party. All parties shall continue to afford the material in question the level of protection to which it is entitled pursuant to the Designating Party's designation until the Court rules on the challenge. The challenging party is not obligated to seek immediate relief from the Court and any delay in seeking relief shall not in any way preclude a party from subsequently challenging any such designation.

         5. Use of Confidential Material. Each party and all persons bound by the terms of this Protective Order shall use Confidential Material only in connection with the prosecution or defense of this action, except by written consent of the Designating Party or by order of the Court. CONFIDENTIAL or CONFIDENTIAL - ATTORNEYS EYES' ONLY or CONFIDENTIAL - SOURCE CODE information and/or documents may be disclosed or ...


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