Court filing

MOTION for Protective Order With "Highly Confidential - Attorneys' Eyes Only"… — Blueacorn Beringer (Dkt. 70)

No. 5:21-cv-00251-BO · Doc. 70 · Docket on CourtListener

Summary

Plaintiff Beringer Commerce, Inc., d/b/a Blue Acorn iCi, moves for a protective order under Federal Rule of Civil Procedure 26(c) in its case against Fin Cap, Inc., No. 5:21-cv-00251-BO, U.S. District Court for the Eastern District of North Carolina, filed January 24, 2022 as Doc. 70. The motion asks for a two-tier order with "Confidential" and "Highly Confidential – Attorneys' Eyes Only" designations, stating that discovery will involve highly sensitive commercial information. It recounts exchanges between counsel from January 12 to January 24, 2022, including a January 20 meet and confer that ended without agreement. Attached are both sides' proposed orders, an email chain between counsel, the defendants' first discovery requests and a USA Today article. The five-page motion is signed by John C. Scheller of Michael Best & Friedrich LLP.

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Full text

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
WESTERN DIVISION

No. 5:21-CV-251-BO

BERINGER COMMERCE, INC., d/b/a )
BLUE ACORN iCi, )
)
Plaintiff, )
)
v. ) PLAINTIFF’S MOTION FOR
) PROTECTIVE ORDER WITH “HIGHLY
FIN CAP, INC. d/b/a ) CONFIDENTIAL – ATTORNEYS’ EYES
“BLUEACORN.CO,” BLUE ACORN ) ONLY” DESIGNATION
PPP, LLC, and BLUE OAK FOREST, )
LLC, )
)
Defendants.

NOW COMES Plaintiff Beringer Commerce, Inc., d/b/a Blue Acorn iCi

(“Plaintiff”) and moves the Court for entry of a protective order pursuant to Federal Rule

of Civil Procedure 26(c). In support of this motion, Plaintiff has submitted an

accompanying memorandum of law and respectfully shows the Court as follows:

1. Discovery, the use of discovery materials, and information and other

exchange of information in this case, including the use of such materials at hearings and

trial, will involve disclosure of highly sensitive and confidential commercial information.

2. Good cause exists and justice requires that Plaintiff be protected from the

undue burden of disclosing such confidential commercial information absent a protective

order with sufficient provisions.

3. Counsel for both parties have attempted to resolve this dispute without

Court involvement. On January 12, 2022, counsel for Plaintiff sent a proposed protective

Case 5:21-cv-00251-BO Document 70 Filed 01/24/22 Page 1 of 5
order to Defendants’ counsel, which provided for two-tiers of confidentiality

(“Confidential” and “Highly Confidential – Attorneys’ Eyes Only”) in light of

Defendants’ requests for highly sensitive and confidential financial and business

information. On January 13, Defendants’ counsel stated it did not agree that a two-tier

protective order was necessary. On January 20, the parties held a meet and confer and

were unable to reach an agreement on the terms of a protective order. On January 21,

Plaintiff’s counsel sent a revised protective order removing the expert disclosure

requirements and adding a provision indicating that nothing in the protective order shall

bar any attorney from rendering advice to his or her client so long as the specific contents

of any protected document are not disclosed, directly or indirectly, to the party client. On

January 24, Defendants’ counsel stated they did not agree to Plaintiff’s proposed

protective order.

4. A true and correct copy of Plaintiff’s proposed protective order is attached

hereto as Exhibit A. A true and correct copy of Defendants’ proposed protective order is

attached hereto as Exhibit B. A true and correct copy of the email chain between counsel

for Plaintiff and Defendants regarding Plaintiff’s proposed protective order is attached

hereto as Exhibit C.

5. A true and correct copy of Defendants’ First Set of Interrogatories is

attached hereto as Exhibit D. A true and correct copy of Defendants’ First Set of Requests

for Production of Documents is attached hereto as Exhibit E.

Case 5:21-cv-00251-BO Document 70 Filed 01/24/22 Page 2 of 5
6. A true and correct copy of the USA Today article, “Congress widens PPP

fraud probe to more online financial companies”

(https://www.usatoday.com/story/news/investigations/2021/11/23/ppp-

companies-blueacorn-womply-added-congressional-probe/8730237002/) is attached

hereto as Exhibit F.

7. A memorandum of law in support of Plaintiff’s motion for a protective

order and Judy Geaslen’s Declaration in support of the same are also submitted herewith.

WHEREFORE, for good cause shown, Plaintiff respectfully moves that a

protective order in the form submitted as Exhibit A herewith be entered by the Court.

Respectfully submitted, this 24th day of January, 2022.

By: /s/ John C. Scheller
John C. Scheller
(WI State Bar No.1031247)
Kenneth M. Albridge III
(WI State Bar No. 1078384)
MICHAEL BEST & FRIEDRICH LLP
One South Pinckney Street, Suite 700
Madison, WI 53703
Telephone: 608.257.3501
Facsimile: 608.283.2275
jcscheller@michaelbest.com
kmalbridge@michaelbest.com

Case 5:21-cv-00251-BO Document 70 Filed 01/24/22 Page 3 of 5
J. Ryan Gray
(N.C. State Bar No. 55152)
MICHAEL BEST & FRIEDRICH LLP
2501 Blue Ridge Road, Suite 390
Raleigh, NC 27607
Telephone: 984.220.8750
Facsimile: 877.398.5240
jrgray@michaelbest.com
Local Civil Rule 83.1(d) Counsel for
Plaintiff

Attorneys for Plaintiff

Case 5:21-cv-00251-BO Document 70 Filed 01/24/22 Page 4 of 5
CERTIFICATE OF SERVICE

The undersigned attorney hereby certifies that the foregoing PLAINTIFF’S

MOTION FOR PROTECTIVE ORDER WITH “HIGHLY CONFIDENTIAL –

ATTORNEYS’ EYES ONLY” DESIGNATION has been filed with the Clerk for the United

States District Court, Eastern District of North Carolina, using the electronic filing system

of the Court. The electronic case filing system will send a “Notice of Electronic Filing” to

all attorneys of record who have consented to accept service by electronic means.

This the 24th day of January, 2022.

/s/ John C. Scheller
John C. Scheller
Counsel for Plaintiff

Case 5:21-cv-00251-BO Document 70 Filed 01/24/22 Page 5 of 5

File and source

File: gov.uscourts.nced.187990.70.0.pdf
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SHA-256: 62b04fec701ff7ddcf7113ef67caa43f241032e76619fafd49e327b2df0fe757
Our copy: gov.uscourts.nced.187990.70.0.pdf
Original: PACER (login required)