United States District Court, E.D. North Carolina, Western Division
PROTECTIVE ORDER
TERRENCE W. BOYLE CHIEF UNITED STATES DISTRICT JUDGE.
In
accordance with Rule 26(c) of the Federal Rules of Civil
Procedure and for good cause shown, IT IS HEREBY ORDERED
THAT:
1.
Scope of Protection
This
Protective Order shall govern any record or information
produced by MMX Transportation, Inc. ("MMX") in
this action and designated pursuant to this Protective Order.
This
Protective Order shall apply to the parties, their counsel,
employees, insurers, consultants, Technical Advisors (as
denned below), and representatives and to MMX.
2.
Definitions
(a) The
term PROTECTED INFORMATION shall mean confidential or
proprietary technical, scientific, financial or business
information designated pursuant to this Protective Order.
(b) The
term CONFIDENTIAL INFORMATION - ATTORNEYS EYES ONLY, shall
mean PROTECTED INFORMATION that is so designated in good
faith by MMX. The designation CONFIDENTIAL - ATTORNEYS EYES
ONLY may be used only for the following types of past,
current, or future PROTECTED INFORMATION: (1) sensitive
technical information, (2) sensitive business information,
including highly sensitive financial or marketing information
and the identity of suppliers, distributors and potential or
actual customers, (3) competitive technical information,
including technical analyses or comparisons of
competitor's services and/or products, (4) competitive
business information, including non-public financial or
marketing analyses or comparisons of competitor's
services and/or products, or (5) any other PROTECTED
INFORMATION the disclosure of which to non-qualified people
subject to this Protective Order MMX reasonably and in good
faith believes would likely cause harm.
(c) The
term CONFIDENTIAL INFORMATION shall mean all PROTECTED
INFORMATION that is not designated as CONFIDENTIAL -
ATTORNEYS EYES ONLY information.
(d) The
term TECHNICAL ADVISOR shall refer to any person who is not a
party to this action and/or not presently employed by the
receiving party or a company affiliated through common
ownership, who has been designated by the receiving party to
receive another party's PROTECTED INFORMATION, including
CONFIDENTIAL INFORMATION - ATTORNEYS EYES ONLY, and
CONFIDENTIAL INFORMATION. Each party's TECHNICAL ADVISORS
shall be limited to such person as, in the judgment of that
party's counsel, are reasonably necessary for development
and presentation of that party's case. These persons
include outside experts or consultants retained to provide
technical or other expert services such as expert testimony
or otherwise assist in trial preparation.
3.
Disclosure Agreements
(a)
Each receiving party's TECHNICAL ADVISOR shall sign a
disclosure agreement in the form shown below in Section 18 of
this Protective Order. Copies of any disclosure agreement in
the form of Section 18 signed by any person or entity to whom
PROTECTED INFORMATION is disclosed shall be provided to
counsel for MMX promptly after execution by electronic mail.
No. disclosures shall be made to a TECHNICAL ADVISOR for a
period of five (5) business days after the disclosure
agreement is provided to counsel for MMX.
(b)
Before any PROTECTED INFORMATION is disclosed to outside
TECHNICAL ADVISORS, the following information must be
provided in writing to counsel for MMX and received no less
than five (5) business days before the intended date of
disclosure to that outside TECHNICAL ADVISOR: the identity of
that outside TECHNICAL ADVISOR, business address and/or
affiliation and a current curriculum vitae of the TECHNICAL
ADVISOR, and, if not contained in the TECHNICAL ADVISOR'S
curriculum vitae, a brief description, including education,
present and past employment and general areas of expertise of
the TECHNICAL ADVISOR. If MMX objects to disclosure of
PROTECTED INFORMATION to an outside TECHNICAL ADVISOR, MMX
shall within five (5) business days of receipt serve written
objections identifying the specific basis for the objection,
and particularly identifying all information to which
disclosure is objected. Failure to object within five (5)
business days shall authorize the disclosure of PROTECTED
INFORMATION to the TECHNICAL ADVISOR. As to any objections,
the parties and MMX shall attempt in good faith to promptly
resolve any objections informally. If the objections cannot
be resolved, MMX shall move within five (5) business days of
serving its written objections for an Order of the Court
preventing the disclosure. The burden of proving that the
designation is proper shall be upon receiving party. If no
such motion is made within five (5) business days, disclosure
to the TECHNICAL ADVISOR shall be permitted. In the event
that objections are made and not resolved informally and a
motion is filed, disclosure of PROTECTED INFORMATION to the
TECHNICAL ADVISOR shall not be made except by Order of the
Court.
(c) Any
disclosure agreement executed by any person affiliated with a
party shall be provided to any other party who, based upon a
good faith belief that there has been a violation of this
order, requests a copy.
(d) No
party shall attempt to depose any TECHNICAL ADVISOR until
such time as the TECHNICAL ADVISOR is designated by the party
engaging the TECHNICAL ADVISOR as a testifying expert.
Notwithstanding the preceding sentence, any party may depose
a TECHNICAL ADVISOR as a fact witness provided that the party
seeking such deposition has a good faith, demonstrable basis
independent of the disclosure agreement of Section 18 or the
information provided under subparagraph (a) above that such
person possesses facts relevant to this action, or facts
likely to lead to the discovery of admissible evidence;
however, such deposition, if it precedes the designation of
such person by the engaging party as a testifying expert,
shall not include any questions regarding the scope or
subject matter of the engagement.
4.
Designation of Information
(a)
Documents and things produced or furnished during the course
of this action by MMX shall be designated as containing
PROTECTED INFORMATION by placing on each page, each document
(whether in paper or electronic form), or each thing a legend
substantially as follows:
CONFIDENTIAL
INFORMATION
(b)
Documents and things produced or furnished during the course
of this action by MMX shall be designated as containing
information which is CONFIDENTIAL INFORMATION - ATTORNEYS
EYES ONLY by placing on each page, each document (whether in
paper or electronic form), or each thing a legend
substantially as follows:
CONFIDENTIAL
INFORMATION - ATTORNEYS EYES ONLY
(c) MMX
will use reasonable care to avoid designating any documents
or information as CONFIDENTIAL INFORMATION or as CONFIDENTIAL
INFORMATION - ATTORNEYS EYES ONLY that is not entitled to
such designation or which is generally available to the
public.
5.
Disclosure and Use of Confidential Information
Information
that has been designated CONFIDENTIAL INFORMATION or as
CONFIDENTIAL INFORMATION - ATTORNEYS EYES ONLY shall be
disclosed by the receiving party only to Qualified
Recipients. All Qualified Recipients shall hold such
information received from MMX in strict confidence, shall use
the information only for purposes of this action and for no
other action, and shall not use it for any business or other
purpose, and shall not disclose it to any person, except as
hereinafter provided. All information that has been
designated CONFIDENTIAL INFORMATION or as CONFIDENTIAL
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