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Robichaud v. Engage2excel, Inc.

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

October 29, 2019



          David S. Cayer United States Magistrate Judge

         Pursuant to Rule 26(c) of the Federal Rules of Civil Procedure, good cause having been shown, the Court hereby orders that the following procedures are to be employed in this action for the protection of the parties, and others from whom information may be obtained in connection with this action, against disclosure or any improper use of confidential information produced (whether voluntarily or pursuant to discovery demands) or filed with this Court:

         1. Definition of "Confidential Information". "Confidential Information” which may be designated as provided in Section 5 below, is any type of information which is protectable under Rule 26.

         2. Use Limitations. All Confidential Information produced in the course of discovery proceedings herein shall be used only for the purpose of preparing for and conducting the above-captioned action (the “Action”) (including appeals) and not for any business, competitive, governmental, research, development, or other purpose whatsoever. Nothing herein shall restrict attorneys retained by either party or qualified independent retained experts from making working copies. summaries, excerpts, or indices for use in their own offices or for use during the examination of witnesses. To the extent that such materials include Confidential Information, such materials must be treated pursuant to this Order.

         2.1 Limitations on Disclosure of Confidential Information. Confidential Information shall not be given, shown, or made available or communicated in any way to anyone except persons specified in Section 6.1 below to whom it is necessary that such Confidential Information be given or shown for the purposes permitted under this Order.

         2.2 Advice to Client Based on Confidential Information. Notwithstanding the foregoing, nothing in this Order shall bar or otherwise restrict any litigation attorney herein from rendering litigation advice to his/her client in this action, and in the course thereof, referring to or relying upon the attorney's examination of Confidential Information, provided there is no disclosure of Confidential Information.

         3 . Scope of Protection of Confidential Information in Other Proceedings. In the event any person or party having possession, custody or control, or knowledge of any materials designated under this Order (including Confidential Information produced, provided, or filed in this Action prior to entry of this Order) receives a subpoena or other process or order directed to such materials, such person or party shall promptly notify, by overnight mail and/or facsimile, counsel for the party who produced the Confidential Information sought by such subpoena or other process or order, shall furnish that counsel with a copy of said subpoena or other process or order, and shall reasonably cooperate with respect to any procedure sought to be pursued by the producing party whose interests may be affected. The party asserting that the materials contain Confidential Information shall have the obligation of defending against such subpoena, process, or order. The person or party receiving the subpoena or other process or order shall be entitled to comply with it except to the extent the party asserting that the materials contain Confidential information is successful in obtaining from a court of competent jurisdiction an order modifying or quashing it, provided, however, that in complying with the subpoena the person or party receiving the subpoena takes reasonable steps to maintain the confidentiality of the information by, for example, designating the Confidential Information pursuant to any Protective Order that is in place in the action in which the subpoena was issued.

         4. Confidential Information Produced by Third Parties. This Order shall apply to the parties to this action, and also to any other person producing or disclosing Confidential Information in this action who agrees or is ordered to be bound by this Order. Accordingly, as used herein, the terms “person” and “party” may include both the named parties in this civil action, and third parties who have agreed or been ordered to be bound by this Order. If, in the course of this action, information is sought from a third party which would require such person to disclose and/or produce “Confidential” or “Confidential - Attorneys' Eyes Only” information, such third party may obtain the protections of this Order by agreeing in writing to produce information pursuant to this Order and to be bound by it. No further order of this Court shall be necessary to extend the protections of this Order to third parties.

         5. Designation of Confidential Information. Any person who produces, gives, or files Confidential Information may designate information as Confidential Information if it meets the definition stated in Section 1.

         5.1 Designated “Confidential - Attorneys' Eyes Only”. A party in good faith believes any particular Confidential Information is sufficiently sensitive that it should not be disclosed to an individual plaintiff or defendant, or to a director, officer, or employee thereof, may designate that Confidential Information as "Confidential Attorneys' Eyes Only.” Information which is designated “Confidential -Attorneys' Eyes Only” shall be used by the parties to this action solely for the purposes set forth in Section 2 above, and disclosed only to persons specified In Sections 6.1.1, 6.1.2 and 6.1.4 through 6.1.7 below.

         5.2 Designation of Documents. Documents may be designated as Confidential Information by stamping “Confidential” or “Confidential-Attorneys' Eyes Only” on each page. Such designation and marking shall be made at the time when a copy of the document is provided to another party. When an inspection of documents is made, the documents made available for inspection need not be marked pursuant to this Order at the time they are made available for inspection. Each such document made available for inspection shall be treated by the inspecting party as “Confidential-Attorneys' Eyes Only, ” as that designation is defined herein in Section 5.1, until a copy of such document is produced to the inspecting party for use in this Action at which time it shall be treated in accordance with its designation.

         5.3 Designation of Deposition Testimony. In the case of deposition transcript pages, the designating party shall advise opposing counsel of the specific pages to be maintained pursuant to this Order and their designation (i.e., “Confidential” or “Confidential-Attorneys' Eyes Only”) within thirty calendar days of the date of the mailing of the deposition transcript pending notification from opposing counsel during the thirty calendar day period, all deposition transcript pages shall be treated as “Confidential-Attorneys' Eyes Only” as that designation is defined in this Order. Deposition testimony may also be designated, in whole or in part as “Confidential” or “Confidential-Attorneys' Eyes Only” information by oral designation on the record.

         5.4 Subsequent Designations. If a party produces materials containing Confidential Information without designating them pursuant to this Order, but later determines that the materials should have been designated under this Order, the disclosure shall be treated as an inadvertent or unintentional disclosure. The same is true if a party unintentionally or inadvertently produces information subject to the attorney-client privilege and/or work product immunity. Such inadvertent or unintentional disclosure shall not be deemed a waiver in whole or in part of the producing party's claim to protection under Rule 26(c)(7) or of any claim for attorney-client privilege or work product protection. Counsel for the parties shall in any event, to the extent possible, upon learning of an inadvertent error or unintended disclosure, cooperate to restore the confidentiality, privilege, or protection of the inadvertently or unintentionally disclosed information to the extent reasonably possible. Upon receipt of written notification and identification of such inadvertent or unintended disclosure the receiving party shall either mark the materials with the appropriate designation or promptly return them to the producing party for reinstatement of the privilege or protection. The party returning such material may then move the Court for an Order compelling the production of the material, but said motion shall not assert as a ground for entering such an Order the fact or circumstances of the inadvertent production, any analyses, memoranda or notes which were internally generated based upon such inadvertently produced information shall immediately be treated in conformance with the protected nature of the information.

         5.5 Unauthorized Disclosures. In addition to any other sanction imposed by this Order, should any information designated as “Confidential” or “Confidential - Attorneys' Eyes Only” be disclosed, be disclosed, through inadvertence or otherwise, to any person not authorized to receive same under this Order, then the disclosing party shall use its best efforts to bind such unauthorized person to the terms of this Order. Specifically, the disclosing party shall (a) promptly inform such unauthorized person of all the provisions of this Order, (b) identify such unauthorized person immediately to the producing patty and (c) request such unauthorized person to ...

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