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Simpson Performance Products, Inc. v. Zamp Inc.

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

April 25, 2019

SIMPSON PERFORMANCE PRODUCTS, INC., Plaintiff
v.
ZAMP INC. Defendant

          Craig N. Killen, Robert H. McWilliams, Jr., NELSON MULLINS RILEY & SCARBOROUGH LLP, Attorneys for Plaintiff

          Albert P. Allan, ALLAN LAW FIRM, PLLC, Scott D. Swanson, SHAVER & SWANSON LLP, Attorneys for Defendant

          CONSENT PROTECTIVE ORDER

          David C. Keesler, United States Magistrate Judge

         Pursuant to the Federal Rules of Civil Procedure, Rule 26(c), and by agreement of undersigned counsel, it appears that the discovery process in this action involves the production of information that constitutes trade secrets, confidential business information, or other proprietary information, and that good cause exists for the entry of an Order limiting disclosure of such information;

         Therefore, it is, ORDERED that:

         1. Scope.

         All documents, information (including electronically stored information (“ESI”)), communications, and data produced in the course of discovery, all responses to discovery requests, including but not limited to interrogatory answers, and all deposition testimony and deposition exhibits and any other materials which may be subject to discovery (collectively “Documents”) shall be subject to this Order concerning confidential information as set forth below. The provisions of this Order will govern production of all Documents by any party to this case or any third party (collectively referred to as “Party” or “Parties”).

         2. Documents Which May be Designated Confidential.

         Any Party that produces Documents in connection with this action may designate Documents as CONFIDENTIAL or CONFIDENTIAL-OUTSIDE ATTORNEYS' EYES ONLY in accordance with the definitions and procedures below:

         a. The “CONFIDENTIAL” designation means that the Document contains information protected from disclosure by statute, sensitive personal information, sensitive business information, proprietary business information, trade secrets, or confidential research and development or other commercial information, or other information required by law or agreement to be kept confidential. Information or documents which are available in the public sector do not qualify as confidential.

         b. The “CONFIDENTIAL-OUTSIDE ATTORNEYS' EYES ONLY” designation means that the Document satisfies the definition for the “CONFIDENTIAL” designation above and also contains information that the designating Party has a reasonable and good faith basis to withhold from the other Party or Parties and employees thereof.

         c. Any document produced before issuance of this Order with the designation CONFIDENTIAL or CONFIDENTIAL-OUTSIDE ATTORNEYS' EYES ONLY shall receive the same treatment under and as if designated pursuant to this Order.

         3. Form and Timing of Designation.

         a. Documents Produced in PDF or Image Format. Confidential Documents produced in PDF or image format shall be so designated by placing or affixing the words “CONFIDENTIAL” or “CONFIDENTIAL-OUTSIDE ATTORNEYS' EYES ONLY” on each page as to which confidentiality is claimed, and in a manner which will not interfere with the legibility of the document and which will permit complete removal of the “CONFIDENTIAL” or “CONFIDENTIAL-OUTSIDE ATTORNEYS' EYES ONLY” designation. Documents produced in PDF or image format shall be designated CONFIDENTIAL or CONFIDENTIAL- OUTSIDE ATTORNEYS' EYES ONLY prior to, or contemporaneously with, the production or disclosure of the Documents. Inadvertent or unintentional production of Documents produced in PDF or image format without prior designation as confidential shall not be deemed a waiver, in whole or in part, of the right to designate Documents as confidential as otherwise allowed by this Order. Notwithstanding paragraph 12 below, the Parties will meet and confer in good faith to resolve challenges to such designations.

         b. Confidential Documents Produced in Native Format. Each confidential Document produced in native format shall include a PDF or TIFF slip sheet with the Bates number of the Document and stating that the Document is being produced in native format. The slip sheet shall also state whether the Document has been designated as CONFIDENTIAL or CONFIDENTIAL-OUTSIDE ATTORNEYS' EYES ONLY.

         4. Depositions.

         Portions of depositions and deposition exhibits not previously made available to all Parties shall be deemed CONFIDENTIAL or CONFIDENTIAL-OUTSIDE ATTORNEYS' EYES ONLY if designated as such when the deposition is taken or within fourteen (14) business days after receipt of the transcript. Such designation shall be specific as to the portions to be protected. Until the expiration of the 14-business day period, the entire deposition will be treated as CONFIDENTIAL-OUTSIDE ATTORNEYS' EYES ONLY.

         5. Documents Obtained from Third Parties in Response to Subpoena.

         Documents obtained by a Party in response to a third party subpoena served in this action shall be provided by the Party receiving such documents to all other Parties within thirty (30) days of receipt from the third party. During such thirty (30) day period, the Party who received the third party documents may designate such documents CONFIDENTIAL or CONFIDENTIAL-OUTSIDE ATTORNEYS' EYES ONLY as believed necessary to protect its own confidential information in the third party documents. A Party receiving such third party documents from another Party to this action shall have fourteen (14) business days to designate such documents CONFIDENTIAL or CONFIDENTIAL-OUTSIDE ATTORNEYS' EYES ONLY as believed necessary to protect its own confidential information in the third party documents. The Parties shall reasonably cooperate with regard to an extension of the 14-business day period in the event the number of third party documents produced is substantial. From the time the third party documents are received by the Party requesting them from such third party to the expiration of the 14-business day period (or longer if extended), all the documents received from the third party shall be treated as CONFIDENTIAL-OUTSIDE ATTORNEYS' EYES ONLY.

         6. Protection of CONFIDENTIAL Material.

         a. General Protections. Documents designated CONFIDENTIAL under this Order shall not be used or disclosed by the Parties or counsel for the Parties or used by any other persons identified below in ¶ 6.b. for any purposes whatsoever other than preparing for and conducting the litigation in which the Documents were disclosed (including any appeal of that litigation).

         b. Limited Disclosures of CONFIDENTIAL Material. The Parties and counsel for the Parties shall not disclose or permit the disclosure of any Documents designated CONFIDENTIAL under the terms of this Order to any other person or entity except as set forth in subparagraphs (1)-(8) below, and then, except as to persons identified in subparagraphs (1), (2), (3), (6), and (7) below, only after the person to whom disclosure is to be made has executed an acknowledgment (in the form set forth at Attachment A hereto) (“Acknowledgement”), that he or she has read and understands the terms of this Order and is bound by it. Persons identified in subparagraphs (1), (2), (3), (6), and (7) below may receive disclosure of CONFIDENTIAL material without signing an Acknowledgement. Subject to these requirements, the following categories of persons may be allowed to review Documents which have been designated CONFIDENTIAL pursuant to this Order:

(1) counsel for the Parties who have responsibility for the preparation and/or trial of the lawsuit and employees of counsel for the Parties who directly assist such counsel with the provision of legal services;
(2) employees of a Party to this Order where the employee is engaged in assisting that Party's counsel in the conduct of the litigation in ...

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