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Merz North America, Inc. v. Cytophil, Inc.

United States District Court, E.D. North Carolina

June 22, 2017

Merz North America, Inc. Plaintiff,

          Peter N. Jansson JANSSON MUNGER MCKINLEY & KIRBY LTD. Anthony J. Biller COATS & BENNETT P.L.L.C. Attorneys for Cytophil, Inc.

          Lance A. Lawson N.C. State Bar No. 23835 MCNAIR LAW FIRM, P.A. Bank of America Plaza Attorneys for Merz North America, Inc.


          KIMBERLY A. SWANK United States Magistrate Judge.

         1. PURPOSE

         Disclosure and discovery activity in this Action are likely to involve production of confidential, proprietary, or private information for which special protection from public disclosure and from use for any purpose other than prosecuting this Action may be warranted. Accordingly, the Court hereby issues the following Protective Order. This Order does not confer blanket protections on all disclosures or responses to discovery. Rather, the protection it affords from public disclosure and unauthorized use extends only to the limited information or items that are entitled to confidential treatment according to the terms of this Order. The parties to this Action may modify or replace this order according to the provisions of Section 10 below.

         2. DEFINITIONS

         2.1. The “Action” shall refer only to the above-captioned case(s) and shall not include related cases unless this Protective Order is amended to explicitly cover such related cases.

         2.2. The “Agreement” shall refer to the Acknowledgment and Agreement to Be Bound attached hereto as Exhibit A. All executed Agreements to this Protective Order are Confidential Information pursuant to this Protective Order.

         2.3. “Confidential Information” shall mean information (regardless of how it is generated, stored, or maintained) or tangible things that qualify for protection under Federal Rule of Civil Procedure 26. Confidential Information not designated under a more restrictive designation shall be marked or otherwise designated “CONFIDENTIAL.” 2.4. “Designated In-House Counsel” shall mean In-House Counsel who seek access to “Highly Confidential Information” in this Action.

         2.5. “Disclosure or Discovery Material” shall mean all items or information, regardless of the medium or manner in which it is generated, stored, or maintained (including, among other things, testimony, transcripts, and tangible things), that are produced or generated in disclosures or responses to discovery in this matter.

         2.6. “Expert” shall mean a person with specialized knowledge or experience in a matter pertinent to the litigation who (1) has been retained by a Party or its counsel to serve as an expert witness or as a consultant in this Action, (2) is not a current employee of a Party for purposes other than this Action, and (3) at the time of retention, is not anticipated to become an employee of a Party.

         2.7. “Final Disposition” shall mean that (1) final judgment has been entered and any appeals of the final judgment have concluded, or (2) all claims of any kind asserted in the Action have been dismissed with prejudice by the Party or Parties who brought such claims.

         2.8. “Highly Confidential Information” shall mean extremely sensitive “Confidential Information, ” the disclosure of which to another Party or Non-Party would create a substantial risk of serious harm that could not be avoided by less restrictive means. Highly Confidential Information not designated with a more restrictive designation, to the extent possible, shall be marked or otherwise designated “HIGHLY CONFIDENTIAL - OUTSIDE COUNSEL ONLY.” 2.9. “In-House Counsel” shall mean attorneys who are employees of a Party or Non-Party. In-House Counsel does not include Outside Counsel.

         2.10. “Non-Party” shall mean any natural person, partnership, corporation, association, or other legal entity not named as a Party to this Action.

         2.11. “Outside Counsel” attorneys who are not employees of a Party to this Action but are retained to represent or advise a Party to this Action and have appeared in this Action on behalf of that Party or are affiliated with a law firm which has appeared on behalf of that Party.

         2.12. “Party” shall mean any party to this Action, including all of its officers, directors, employees, consultants, Experts, and Outside Counsel (and their support staffs).

         2.13. “Producing Party” shall mean a Party or Non-Party that produces Disclosure or Discovery Material in this Action. Any Producing Party may designate information or items under the provisions of this Protective Order.

         2.14. “Professional Vendors” shall mean persons or entities that provide litigation support services (e.g., photocopying; videotaping; translating; preparing exhibits or demonstrations; and organizing, storing, or retrieving data in any form or medium) and their employees and subcontractors.

         2.15. “Protected Material” shall mean any Disclosure or Discovery Material that is designated under this Protective Order.

         2.16. “Receiving Party” shall mean a Party or Non-Party that receives Disclosure or Discovery Material in this Action.


         3.1. Manner and Timing of Designations. Designation under this Order requires the Producing Party to affix the applicable legend (“CONFIDENTIAL, ” or “HIGHLY CONFIDENTIAL - OUTSIDE COUNSEL ONLY” to each page or item that contains or embodies protected material. For testimony given in a deposition or other proceeding, the Producing Party shall specify all protected testimony and the level of protection being asserted. It may make that designation during the deposition or proceeding, or may invoke, on the record or by written notice to all parties within three business days, a right to have up to 21 days from the deposition or proceeding to make its designation.

         3.1.1. A Party or Non-Party that makes original documents or materials available for inspection need not designate them for protection until after the inspecting party has identified which material it would like copied and produced. During the inspection and before the designation, all material shall be treated as “HIGHLY CONFIDENTIAL - OUTSIDE COUNSEL ONLY.” After the inspecting party has identified the documents it wants copied and produced, the producing party must designate the documents, or portions thereof, that qualify for protection under this Order.

         3.1.2. Parties shall give advance notice if they expect a deposition or other proceeding to include designated material so that the other parties can ensure that only authorized individuals are present at those proceedings when such material is disclosed or used. The use of a document or thing as an exhibit at a deposition shall not in any way affect its designation. Transcripts containing designated material shall have a legend on the title page noting the presence of designated material, and the title page shall be followed by a list of all pages (including line numbers as appropriate) that have been designated, and the level of protection being asserted. The Producing Party shall inform the court reporter of these requirements. Any transcript that is prepared before the expiration of the 21-day period for designation shall be treated during that period as if it had been designated “HIGHLY CONFIDENTIAL - OUTSIDE COUNSEL ONLY” unless otherwise agreed. After the expiration of the 21-day period, the transcript shall be treated only as actually designated.

         3.2. Inadvertent Failure to Designate. An inadvertent failure to designate or an inadvertent mis-designation of confidential information or items does not, standing alone, waive the Producing Party's right to secure protection under this Order for such material. Upon discovery of the inadvertently undesignated or mis-designated confidential information or items, the Producing Party must promptly notify the Receiving Party of the error, including (1) an identification of each item or piece of information that was undesignated or mis-designated, and (2) the proper designation for each such item or piece of information. The Producing Party shall further, if applicable, produce a properly designated replacement for each such item. Upon prompt notification by the Producing Party, the Receiving Party must make reasonable efforts to assure that the material is treated in accordance with the provisions of this Order, and within a reasonable time following receipt of any replacement items with a corrected designation, return or destroy the undesignated or mis-designated item(s). The provisions of this section do not apply to inadvertently disclosed ...

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