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Progress Solar Solutions, LLC v. Long

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

October 8, 2019


          Chad A. Sharkey N.C. State Bar No. 29538 MORRIS, MANNING & MARTIN, LLP Attorney for Defendants

          Gary S. Parsons N.C. State Bar No. 7955 John W. Ormand III N.C. State Bar No. 14160 Patrick Cross N.C. State Bar No. 50646 BROOKS, PIERCE, McLENDON, HUMPHREY & LEONARD, L.L.P. Attorneys for Plaintiffs



         The Parties having agreed to the following, and for good cause shown, IT IS HEREBY STIPULATED AND AGREED by the Parties through their counsel, AND ORDERED by the Court, that in order to prevent unnecessary disclosure or dissemination of confidential or proprietary information ("Confidential Information"), any designated exchange or production of confidential documents or information designated as Confidential Information shall be used, shown, or disclosed only as follows:


         Disclosure and discovery activity in this action may involve production of confidential, proprietary, or private personal identifying information (including electronically stored information or "ESF') and documentation such as, by way of illustration but not limitation: Social Security or taxpayer-identification numbers, dates of birth, names of minor children, financial account numbers, home addresses, sensitive information involving personal financial, medical, matrimonial, or family matters, employment records of individuals, proprietary business information, trade secrets, and other confidential research, development, or commercial information, for which special protection from public disclosure and from use for any purpose other than prosecuting this litigation may be warranted. The parties acknowledge that this Order does not confer blanket protections on all disclosures or responses to discovery and that the protection it affords extends only to the limited information or items that are entitled to protection pursuant to Fed.R.Civ.P. 26. Nothing in this Order shall preclude any person or entity from disclosing or using, in any manner or for any purpose, any information or document if: (a) that information or document is lawfully obtained without confidentiality restrictions from a third party, or (b) that information or documentation to the extent it belongs to, or is the property of, a party to this matter (though such use for purposes outside of this litigation may cause that information and data to lose its protected or confidential status).


         "Confidential Information" shall mean and include all information subject to protection under Fed.R.Civ.P. 26, as well as the following: Social Security or taxpayer-identification numbers; dates of birth; names of minor children; financial account numbers; where appropriate, home addresses; sensitive or protected information involving personal financial, medical, matrimonial, or family matters; employment records of individuals whether parties or nonparties; proprietary information, trade secrets and other confidential research, development, or commercial information (regardless of how generated, stored or maintained), as well as any other information defined herein as "Protected Material". As used herein, proprietary information shall include information which concerns or relates to the trade secrets, processes, operations, style of works, or apparatus, or to the production, sales, shipments, purchases, transfers, identification of customers, inventories, credit approval or scoring, or amount or source of any income, profits, losses, or expenditures of any person, firm, partnership, corporation, or other organization, or other information of commercial value, the disclosure of which could cause substantial harm to the competitive position of the person, firm, partnership, corporation, or other organization from which the information was obtained. This Protective Order shall also specifically but without limitation govern: (a) Confidential Information subpoenaed from nonparties; and/or (b) Confidential Information of a non-party to the extent already in the possession of a party, and produced by that party to another. Parties and non-parties may designate any Confidential Information supplied in any form, or any portion thereof, as Protected Material (defined below) for purposes of these proceedings. Such designation shall constitute a representation to the Court that counsel for the designating party or person believes in good faith that the information: (a) constitutes Confidential Information, and (b) there is good cause for the Confidential Information to be protected from public disclosure. The parties and non-parties shall make a good faith effort to designate information so as to provide the greatest level of disclosure possibley but still preserve confidentiality as appropriate.

         3. DEFINITIONS

         3.1. Party: any party to this action, including all of its or his officers, directors, consultants, retained experts, and outside counsel (and their support staff).

         3.2. Non-party: any individual, corporation, association, or other natural person or entity other than a party.

         3.3. Disclosure or Discovery Material: all items or information, regardless of the medium or manner generated, stored, or maintained (including, among other things, testimony, transcripts, or tangible things) that are produced or generated in disclosures or responses to discovery in this matter.

         3.4. Receiving Party: a Party that receives Disclosure or Discovery Material from a Producing Party.

         3.5. Producing Party: a Party or Non-party that produces Disclosure or Discovery Material in this action.

         3.6. Designating Party: a Party or Non-party that designates information or items that it produces in disclosures or in responses to discovery as Protected Material. The Party or Nonparty designating information or items as Protected Material bears the burden of establishing good cause for the assertion of confidentiality of all such information or items.

         3.7. Protected Material: any Disclosure or Discovery Material that is designated by a Party or Non-party as "CONFIDENTIAL" hereunder, unless the Receiving Party challenges the confidentiality designation and (a) the Court decides such material is not entitled to protection as confidential; (b) the Designating Party fails to apply to the Court for an order designating the material "CONFIDENTIAL" within the time period specified below; or (c) the Designating Party withdraws its confidentiality designation in writing. If a Producing Party believes in good faith and after careful consideration that, despite the other provisions of this Protective Order, there is a substantial risk of identifiable harm if particular financial or accounting documents (which also satisfy the criteria described below) are all disclosed to all other Parties or Nonparties to this action, even if those documents are marked as "CONFIDENTIAL," then the Producing Party may designate those particular financial or accounting documents as "CONFIDENTIAL-ATTORNEYS' EYES ONLY." A party may designate any document as "CONFIDENTIAL-ATTORNEYS' EYES ONLY" only if the document contains especially sensitive financial, economic, or accounting data or information that meets the criteria laid out in the foregoing sentence.

         3.8. Counsel: attorneys who are not employees of a Party but who are retained to represent or advise a Party in this action, as well as Counsel's support staff.

         3.9. Expert: a person with specialized knowledge or experience in a matter pertinent to the litigation who has been retained by a Party or a Party's counsel to serve as an expert witness or as a consultant in this action and who is not: (a) a past or a current employee of a Party; (b) a past or a current employee of a competitor of a Party; or (c) at the time of retention, anticipated to become an employee of a Party or a competitor of a Party. This definition includes a professional jury or trial consultants retained in connection with this litigation.

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

         3.11. 2017 Case: the proceedings in case number 5:17-cv-0152-D, captioned Progress Solar Solutions, LLC v. Fire Protection, Inc. et al, also filed in this court.

         4. SCOPE

         Subject to the provisions of section 6.2 and its subsections below, and the Court's role as the ultimate arbiter of the protections afforded to in-court proceedings, the protections conferred by this Stipulation and Order cover not only Protected Material (as defined above), but also testimony, conversations, or presentations by parties or counsel to, or in, Court or in other settings that reveal Protected Material.


         Even after the termination of this litigation, the confidentiality obligations imposed by this Order shall remain in effect until a Designating Party agrees otherwise in writing or a Court order otherwise directs. In addition, and subject to any further orders of the Court, the Court shall have and retain jurisdiction over the parties, the non-parties who have signed and filed an Acknowledgement, their respective attorneys, and all persons to whom the Protective Order has been disclosed for the purpose of enforcing the terms of this Protective Order or redressing any violation thereof.


         6.1. Exercise of Restraint and Care in Designating Material for Protection. Each Party or Non-party that designates information or items for protection under this Order must use good faith efforts to limit any such designation to specific material that qualifies under the appropriate standards. A Designating Party must use good faith efforts to designate for protection only those parts of material, documents, items, or oral or written communications that qualify-so that other portions of the ...

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