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The Tool Shed, Inc. v. Mattoon Rural King Supply Inc.

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

January 30, 2018

The Tool Shed, Inc., Plaintiff,
Mattoon Rural King Supply, Inc. d/b/a Rural King Supply Defendant.



         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 this 30th day of January, 2018, 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 “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 CONFIDENTIAL - ATTORNEYS' EYES ONLY prior to, or contemporaneously with, the production or disclosure of the documents except for documents produced for inspection under the “Reading Room” provisions set forth in paragraph 4 below. 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, financial information, 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 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, commercial, or proprietary technology interests of the party or person producing such material if such information is disclosed. Materials entitled to protection under the CONFIDENTIAL - ATTORNEYS EYES ONLY designation are limited to business plans; marketing surveys; financial information, including but not limited to financial statements (such as budgets, 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 design, development and/or improvement of machinery, products or processes.

         4. Reading Room. In order to facilitate timely disclosure of large numbers of documents which may contain confidential documents, but which have not yet been reviewed and marked, the following “Reading Room” provisions may be utilized.

         a. Documents may be produced for review at the producing party's facility or other controlled location (“Reading Room”), prior to designation as confidential. The review in the Reading Room will be conducted by the reviewing party's outside counsel only. After review of these documents, the party seeking discovery may specify those for which further production is requested. The producing party shall then copy the requested documents for production. To the extent any of the requested documents warrant a CONFIDENTIAL or CONFIDENTIAL - ATTORNEYS EYES ONLY designation, the copies shall be so marked prior to further production.

         b. Unless otherwise agreed or ordered, copies of Reading Room documents shall be requested within twenty days of review in the Reading Room and shall be produced within thirty days after the request is made.

         c. The producing party shall maintain a log of persons who have reviewed documents in the Reading Room and the dates and time of their presence.

         d. The production of documents for review within the confines of a Reading Room shall not be deemed a waiver of any claim of confidentiality or privilege, so long as the reviewing parties are advised that the Reading Room production is pursuant to this provision and that the Reading Room may contain confidential materials which have not yet been marked as confidential.

         e. Until such time as further production is made of documents reviewed in a Reading Room, the reviewing party shall treat all material reviewed as if it was marked CONFIDENTIAL - ATTORNEYS EYES ONLY at the time reviewed.

         5. Depositions. Portions of depositions shall be deemed confidential only if designated as such when the deposition is taken or within seven business days after receipt of the transcript. Such designation shall be specific as to the portions to be protected.

         6. Protection of Confidential Material.

         a. General Protections. Documents designated CONFIDENTIAL or 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 (¶ 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 Third Party Disclosures. The parties and counsel for the parties shall not disclose or permit the disclosure of any documents designated CONFIDENTIAL or CONFIDENTIAL - ATTORNEYS EYES ONLY under the terms of this Order to any other person or entity except as set forth in subparagraphs (1)-(2) below. For persons or entities defined in subparagraphs (1)(b), (1)(d), (1)(e), and (2)(c)-(d) below, disclosure shall not occur before the person to whom disclosure is to be made has executed an acknowledgment (in the form set forth at Attachment B hereto), that he or she has read and understands the terms of this Order and is bound by it.

         (1) Subject to these requirements, the following categories of persons may be allowed to review documents which have been designated CONFIDENTIAL pursuant to this Order:

(a) counsel and employees of counsel for the parties who have responsibility for the preparation and trial of the lawsuit;
(b) 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];
(c) court reporters engaged for depositions and those persons, if any, specifically engaged for the limited purpose of making photocopies of documents;
(d) consultants, investigators, or experts (hereinafter referred to collectively as “experts”) employed by the parties or counsel for the parties to assist in the ...

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