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Cargill, Inc. v. WDS, Inc.

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

April 24, 2018

CARGILL, INCORPORATED, and CARGILL MEAT SOLUTIONS CORPORATION, Plaintiffs,
v.
WDS, INC., JENNIFER MAIER, and BRIAN EWERT, Defendants.

          Jacob D. Bylund, Dasha Ternavska, FAEGRE BAKER DANIELS LLP., Jane Maschka, Christine R. M. Kain, AND Edward F. Hennessey IV Edward F. Hennessey IV, Fitz E. Barringer N.C., Robinson, Bradshaw & Hinson, P.A. Attorneys for Plaintiffs.

          Jeffrey S. Southerland N.C., Richard W. Andrews N.C., Denis E. Jacobson N.C., TUGGLE DUGGINS P.A. P.O. Attorneys for Defendants WDS, Inc., and Brian Ewert.

          David Freedman, CRUMPLER FREEDMAN PARKER & WITT, Attorneys for Defendant Brian Ewert.

          Alan M. Ruley N.C., Andrew A. Freeman N.C., BELL, DAVIS & PITT, P.A., Attorneys for Defendant Jennifer Maier.

          AMENDED STIPULATED PROTECTIVE ORDER

         On April 11, 2018, this Court held a hearing on Plaintiffs' Motion for Modification of the Stipulated Protective Order and Designation of Discovery Materials (“Motion”) (Doc. No. 353) and other pending motions. In a subsequent Order, the Court noted its authority to modify the existing Stipulated Protective Order (Doc. No. 18) and ordered the parties to meet and confer, and to file a proposed amended protective order. (Doc. No. 374).[1] The parties, having conferred, submitted[2] the current proposed Amended Stipulated Protective Order, which the Court hereby ADOPTS.[3]

         AMENDED STIPULATED PROTECTIVE ORDER

         Plaintiffs, Cargill, Incorporated, and Cargill Meat Solutions Corporation, and Defendants, WDS, Inc., Jennifer Maier, and Brian Ewert, seek the entry of this Amended Stipulated Protective Order, so as to protect certain information produced and exchanged in this lawsuit and clarify the permitted uses of certain information. Plaintiffs and Defendants are the parties to this Amended Stipulated Protective Order and will hereinafter be referred to as the “SPO Parties” or “SPO Party.” The Court, noting that the subject matter of discovery in this case may involve the production of records, business information, and pricing and customer data alleged to be confidential, ORDERS as follows:

         ORDER

         A. Scope of Application

         1. This Amended Stipulated Protective Order shall govern all documents designated as “CONFIDENTIAL” pursuant to (B)(4)(a) or “ATTORNEY'S EYES ONLY” pursuant to (B)(4)(b) below (whether in writing, electronic, magnetic and/or digital media or otherwise), testimony, discovery responses, and other materials, including all copies, excerpts, extracts and summaries thereof (collectively, “Material”) produced, given, or filed during formal or informal discovery or other proceedings in this litigation.

         2. Nothing in this Amended Stipulated Protective Order shall govern Material obtained independent of the proceedings in this litigation, nor shall this Amended Stipulated Protective Order apply to an SPO Party's use or disclosure of its own Material.

         3. The provisions of this Amended Stipulated Protective Order shall apply to the following persons: (a) the SPO Parties, including their officers, directors, in-house counsel, employees, and agents; (b) any other person producing or receiving Material in this litigation who agrees to be bound by the terms of this Amended Stipulated Protective Order; and (c) all counsel of record in the litigation and their employees, staff, and vendors.

         B. Designation of Documents or Other Material

         4. All Material may be designated as follows:

a. “CONFIDENTIAL, ” by any SPO Party, or by a third party producing such Material, if the designating person believes in good faith and after a reasonable investigation and review of the Material that the Material discloses confidential information, private financial information, or other sensitive information; or
b. “ATTORNEY'S EYES ONLY, ” by any SPO Party, or by a third party producing such Material, if the designating person believes in good faith and after a reasonable investigation and review of the Material that the Material discloses trade secrets or highly sensitive commercial information, including but not limited to customer or vendor pricing data.

         Either designation shall be made by placing a legend on the Material sufficient to identify it as entitled to confidential treatment in this litigation. All Material so designated shall be referred to in this Amended Stipulated Protective Order as “Confidential Material.” Because WDS represents that it is now “defunct, ” any “CONFIDENTIAL” or “ATTORNEY'S EYES ONLY” designations on documents produced by WDS and testimony by WDS employees may be disregarded.

         5. No SPO Party shall be obligated to designate another SPO Party's Material as “CONFIDENTIAL” or “ATTORNEY'S EYES ONLY.” Rather, it is the right of any SPO Party to designate, within 15 days[4] after its production, any Material it deems “Confidential Material” pursuant to (B)(4)(a) or (b). The SPO Parties agree not to disclose Material to any non-parties to this litigation during this 15-day period. An SPO Party's failure to designate any Material with the confidentiality designations pursuant to the terms of this Order shall not be construed as a legal determination or an admission or acknowledgement that such Material is not confidential.

         6. In the case of depositions, designation of the portion of the transcript which contains Confidential Material shall be made by a statement to such effect on the record during the course of the deposition or in writing within thirty (30) days after the delivery of the transcript by the court reporter to those who have ordered a copy. If a designation is made during the course of a deposition, the reporter attending such deposition shall thereafter bind the transcript thereof in separate portions containing the non-confidential Material and Confidential Material, and the reporter shall write or stamp the appropriate designation-the word “CONFIDENTIAL” or the words “ATTORNEY'S EYES ONLY”-on the cover of the relevant portions of the transcript. The SPO Parties may modify this procedure by agreement for any particular deposition without further court order. If a confidentiality designation pursuant to the terms of this Order is made by an SPO Party after the deposition but within the thirty (30) day period described above, the designation shall be made by delivering to counsel for the SPO Parties a letter identifying the pages of the transcript being designated as “CONFIDENTIAL” or as “ATTORNEY'S EYES ONLY.” During the thirty (30) day period discussed above, the entire transcript shall be treated as “CONFIDENTIAL” or as “ATTORNEY'S EYES ONLY.” With the exception of court reporters, and subject to any other limitations provided by law, only those persons to whom this Amended Stipulated Protective Order applies may attend any depositions taken in this litigation. As stated in paragraph B(4), confidentiality designations of deposition testimony made by WDS may be disregarded.

         7. Nothing contained in this Amended Stipulated Protective Order:

a. shall affect the right of any SPO Party to make any objection or other response to discovery requests served on it;
b. shall affect the right of any SPO Party to make any objection or other response to any question at a deposition;
c. shall be construed as a waiver of any legally cognizable privilege to withhold any document or information, or of any right which an SPO Party may have to assert such privilege at any stage of the proceedings; or
d. shall be construed to prejudice the right of any SPO Party to oppose the production of any Material on any ground allowed by law (including, without limitation, foreign privacy laws that are not adequately addressed by the protections contained in this Amended Stipulated Protective Order).

         C. Limitations on Use of Confidential Material

         8. All Confidential Material produced by any SPO Party shall be used solely in connection with, and only as necessary to, this litigation and the preparation and trial of this case, or any related appellate proceeding, and not for any other purpose, including, without limitation, any other litigation or any business, competitive or governmental purpose or function. For avoidance of doubt, Plaintiffs' use of any Confidential Material in ...


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