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Emory Group LLC v. South by Sea LLC

United States District Court, D. South Carolina, Greenville Division

July 19, 2016

Emory Group, LLC, Plaintiff,
v.
South By Sea, LLC, d/b/a Shirts for Greeks, and Brandon Metcalf, Defendants.

          CONFIDENTIALITY ORDER

          MARY GEIGER LEWIS UNITED STATES DISTRICT JUDGE

         Whereas, the parties to this Consent Confidentiality Order (“parties”), have stipulated that certain discovery material is and should be treated as confidential, and have agreed to the terms of this order; accordingly, it is, ORDERED:

         1. Scope. All documents produced in the course of discovery, all responses to discovery requests and all deposition testimony and deposition exhibits and any other materials which may be subject to discovery (hereinafter collectively “documents”) shall be subject to this Order concerning confidential information as set forth below.

         2. Form and Timing of Designation. Confidential documents shall be so designated by placing or affixing the word “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL-ATTORNEYS' EYES ONLY” on the document in a manner which will not interfere with the legibility of the document and which will permit complete removal of the Confidential designation. Documents shall be designated CONFIDENTIAL or HIGHLY CONFIDENTIAL-ATTORNEYS' EYES ONLY prior to, or contemporaneously with, the production or disclosure of the documents. Inadvertent or unintentional production of documents 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.

         3. Documents Which May be Designated Confidential.

         a. Any party may designate documents as “CONFIDENTIAL” but only after review of the documents by an attorney[1] who has, in good faith, determined that the documents contain information protected from disclosure by statute, sensitive personal information, trade secrets, or confidential research, development, or commercial information. The certification shall be made concurrently with the disclosure of the documents, using the form attached hereto at Attachment A which shall be executed subject to the standards of Rule 11 of the Federal Rules of Civil Procedure. Information or documents which are available in the public sector may not be designated as "CONFIDENTIAL".

         b. The "HIGHLY CONFIDENTIAL-ATTORNEYS' EYES ONLY" classification, being more highly protective of disclosure than the "CONFIDENTIAL" classification, governs information that an attorney, in good faith, determined would materially affect the business, financial, or commercial interests of the party or person producing such material if such information is disclosed. Materials entitled to protection under the "HIGHLY CONFIDENTIAL-ATTORNEYS' EYES ONLY " designation are limited to business plans, marketing surveys, financial statements (including budgets, sales, costs, sales or profit projections or reports, profit and loss statements, balance sheets and income statements); customer lists; documents that identify customers or suppliers of the producing party or person; technical drawings and specifications; and documents related to the development or improvement of machinery, products or processes. Any party may designate documents as " HIGHLY CONFIDENTIAL-ATTORNEYS' EYES ONLY" but only after review of the documents by an attorney who has, in good faith, determined that the documents contain information protected from disclosure by statute, sensitive personal information, trade secrets, or confidential research, development, or commercial information and of sufficient importance to warrant the higher level of confidentiality. The certification shall be made concurrently with the disclosure of the documents, using the form attached hereto at Attachment A which shall be executed subject to the standards of Rule 11 of the Federal Rules of Civil Procedure. Information or documents which are available in the public sector may not be designated as "HIGHLY CONFIDENTIAL-ATTORNEYS' EYES ONLY".

         4. Depositions. Portions of depositions shall be deemed confidential only if designated as such when the deposition is taken or within thirty (30) business days after receipt of the transcript. Such designation shall be specific as to the portions to be protected. Until such time, depositions shall be treated as CONFIDENTIAL or HIGHLY CONFIDENTIAL-ATTORNEYS' EYES ONLY provided that counsel conducting such deposition alerts opposing counsel of his or her intention to designate any portion of the deposition CONFIDENTIAL or HIGHLY CONFIDENTIAL - ATTORNEYS’ EYES ONLY, respectively, before the close of such deposition.

         5. Protection of Confidential Material.

         a. General Protections. Documents and information designated CONFIDENTIAL or HIGHLY CONFIDENTIAL-ATTORNEYS' EYES ONLY under this Order shall not be used or disclosed by the parties or counsel for the parties or any other persons identified below (¶ 5.b.) for any purposes whatsoever other than preparing for and conducting the litigation in which the documents or information were disclosed (including any appeal of that litigation).

         b. Limited Third Party Disclosures. The parties and counsel for the parties shall not disclose or permit the disclosure of any documents designated CONFIDENTIAL or HIGHLY CONFIDENTIAL-ATTORNEYS' EYES ONLY under the terms of this Order to any other person or entity except as set forth in subparagraphs (1)-(6) below and only as to the person or entity to which the identified documents may be shown as indicated in subparagraphs (1)-(6), and then only after the person to whom disclosure is to be made is made to understand by counsel of record that he or she has read and understands the terms of this Order and is bound by it. Subject to these requirements, the following categories of persons may be allowed to review documents which have been designated CONFIDENTIAL or HIGHLY CONFIDENTIAL-ATTORNEYS' EYES ONLY (as indicated below) pursuant to this Order:

(1) counsel and employees of counsel for the parties who have responsibility for the preparation and trial of the lawsuit (both CONFIDENTIAL and HIGHLY CONFIDENTIAL-ATTORNEYS' EYES ONLY documents);
(2) parties and employees of a party to this Order but only to the extent counsel shall certify that the specifically named individual party or employee’s assistance is necessary to the conduct of the litigation in which the information is disclosed[2] (only CONFIDENTIAL documents);
(3) court reporters engaged for depositions and those persons, if any, specifically engaged for the limited purpose of making photocopies of documents (both CONFIDENTIAL and HIGHLY CONFIDENTIAL-ATTORNEYS' EYES ONLY documents);
(4) outside consultants, outside investigators, or outside experts (hereinafter referred to collectively as “experts”) employed specifically by the parties or counsel for the parties to assist in the preparation and/or trial of the lawsuit (both CONFIDENTIAL and HIGHLY CONFIDENTIAL-ATTORNEYS’ EYES ONLY documents) but only after written notice to the producing party or producing witness of the proposed person to receive such material. In addition to a signed Acknowledgement in the form of Attachment B to this Protective Order, the written notice will include: (1) name, business address, title, and profession of the proposed person; (ii) any previous or current relationship (personal or professional) between the proposed person and any of the parties; and (iii) a resume or curriculum vitae of the proposed person, if one exists. The receiving party shall not disclose any CONFIDENTIAL or HIGHLY CONFIDENTIAL information to the proposed person unless the producing party or producing witness approves of such disclosure or by Order of the Court. The producing party or producing witness shall have ten (10) days after receipt of such notice of proposed person to challenge the substance or sufficiency of the notice by providing a detailed, written explanation and basis for the challenge. A failure of the producing party or producing witness to timely challenge such ...

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