Court filing
Exhibit A - Plaintiff's Proposed Protective Order — Blueacorn Beringer (Dkt. 71.2)
No. 5:21-cv-00251-BO · Doc. 71-2 · Docket on CourtListener
Summary
A proposed Consent Protective Order, marked Exhibit A and filed January 24, 2022 as Doc. 71-2 in Beringer Commerce, Inc. d/b/a Blue Acorn iCi v. Fin Cap, Inc., Blue Acorn PPP, LLC and Blue Oak Forest, LLC, No. 5:21-cv-00251-BO, in the U.S. District Court for the Eastern District of North Carolina. Under Rule 26(c) of the Federal Rules of Civil Procedure, the order would govern discovery material and let parties designate it CONFIDENTIAL or HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY. It lists who may receive each tier and gives a Producing Party ten (10) business days to answer a written objection to a designation. Designated material filed with the court would go under seal under Local Civil Rule 79.2. The 20-page document closes with a form Nondisclosure Agreement requiring return of covered material within thirty (30) days after the litigation ends.
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EXHIBIT A
Case 5:21-cv-00251-BO Document 71-2 Filed 01/24/22 Page 1 of 20
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
WESTERN DIVISION
Civil Action No. 5:21-CV-251-BO
BERINGER COMMERCE, INC. d/b/a
BLUE ACORN iCi,
Plaintiff,
v.
CONSENT PROTECTIVE ORDER
FIN CAP, INC. d/b/a “BLUEACORN.CO,”
BLUE ACORN PPP, LLC, and BLUE OAK
FOREST, LLC,
Defendants.
THIS CAUSE came on to be heard upon the joint motion of Plaintiff Beringer
Commerce, Inc. d/b/a Blue Acorn iCi (“Plaintiff”) and Defendants Fin Cap, Inc. d/b/a
“Blueacorn.co,” Blue Acorn PPP, LLC, and Blue Oak Forest, LLC (collectively “Defendants”);
and it appearing to the Court that discovery and the trial in this action may involve the
production and disclosure of confidential, proprietary, or sensitive information requiring
protection against unrestricted disclosure or use;
THEREFORE, IT IS HEREBY STIPULATED, AGREED, AND ORDERED that
pursuant to Rule 26(c) of the Federal Rules of Civil Procedure, the following confidentiality
provisions shall govern all information and documents disclosed in discovery in this action:
1. The purpose of this Consent Protective Order (“this Order”) is to allow Plaintiff
and Defendants (collectively the “Parties”) to have reasonable access to certain information related
to this Lawsuit, while providing the Parties and any third parties with a means for limiting
disclosure of confidential information that is produced in this Lawsuit. The Parties expressly
Case 5:21-cv-00251-BO Document 71-2 Filed 01/24/22 Page 2 of 20
recognize and agree that this Order is solely limited to this Lawsuit and shall not govern any other
pending or future litigation between the Parties whether arising in this Court or any other United
States court.
2. The information and documents to be considered as confidential and disclosed
only in accordance with the terms of this Order shall include, without limitation, all documents
or information, whether in hard copy or electronic form, designated in accordance with the terms
of this Order and supplied in response to the demands or requests of either party, formal or
informal, regardless of whether said information is produced or disclosed by a party or by any
affiliated person or entity, or formerly affiliated person or entity.
3. “Designated Material” shall mean any Discovery Material designated by a
Producing Party as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL - ATTORNEYS’
EYES ONLY” in accordance with Paragraph 14 below. All Designated Material and any
information or material copied or derived therefrom, and all copies, excerpts, and summaries
thereof, as well as testimony and oral conversations which reveal that information, shall be
treated as and hereinafter referred to as Designated Material.
4. “CONFIDENTIAL” information comprises or contains information that the
Producing Party claims in good faith to constitute or relate to sensitive business or commercial
information that is not publicly available and provides a commercial advantage to its possessor
and the disclosure of which to persons other than those set forth in Paragraph 10(a)-(e) below
would create a substantial risk of serious harm that could not be avoided by less restrictive means.
5. “HIGHLY CONFIDENTIAL - ATTORNEYS’ EYES ONLY” information
comprises or contains information that the Producing Party claims in good faith to constitute or
relate to highly sensitive customer information, including but not limited to trade secrets, business
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plans, marketing plans, and other proprietary data, business, financial, or commercial information,
and pricing and cost information, the disclosure of which to persons other than those set forth in
Paragraph 11 below would create a substantial risk of serious harm that could not be avoided by
less restrictive means.
6. “Discovery Material” shall mean and include any document (as defined below),
material, item, testimony, or thing filed with or presented to the Court or produced, served,
exchanged, produced, or generated during the discovery process, including, for example,
exhibits; answers to interrogatories; responses to requests for admissions; responses to requests
for production; subpoenas; declarations; affidavits; reports; letters; emails; and deposition
testimony or transcripts; and all copies, extracts, summaries, compilations, designations, and
portions thereof.
7. “Document” shall mean every means of recording any form of communication or
representation upon any tangible thing, including electronically stored information (“ESI”),
letters, words, pictures, sounds, or symbols, or combinations thereof, whether recorded by
handwriting, printing, photostatic, or photographic means, magnetic impulse, tape, computer
disk, CD-ROM or any other form of data storage, data compilation, or mechanical or electronic
recording, and all other tangible things which come within the meaning of writing contained in
Federal Rule of Evidence 1001, or within the meaning of “documents” or “tangible things”
contained in Federal Rule of Civil Procedure 34.
8. “Producing Party” shall mean any Party to this action or any third-party, including
its counsel, retained experts, directors, officers, employees, or agents who produces any
Discovery Material during discovery for this action.
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9. “Receiving Party” shall mean any Party to this action, including its counsel,
retained experts, directors, officers, employees, or agents, who receives any Discovery Material.
10. All information designated “CONFIDENTIAL” shall be maintained in confidence
by the Receiving Party, shall be used solely for the purposes of this litigation, and shall not be
disclosed to any person except:
a. The Court (including court reporters, stenographic reporters and
videographers, and court personnel);
b. The attorneys of record, their partners, employees, contractors, and associates
of outside counsel (collectively hereafter referred to as “Outside Counsel”);
c. Officers or employees of Plaintiff in this action, and officers and employees of
Defendants in this action; provided, that such officers or employees shall
receive such “CONFIDENTIAL” information solely on a “need to know”
basis for purposes of prosecuting or defending this litigation and for no other
purposes;
d. Subject to the terms of Paragraph 18 below, other outside counsel not of
record in this Lawsuit retained by a party and experts and their staff and
litigation support personnel and their staff retained by Outside Counsel in this
litigation; and
e. Any other person as to whom the producing party agrees in writing prior to
such disclosure.
11. All information designated as “HIGHLY CONFIDENTIAL – ATTORNEYS’
EYES ONLY” shall be maintained in confidence for use by the attorneys of the parties, shall be
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used solely for the purposes of this litigation, and shall not be disclosed to any person except
those listed in subparagraphs (a), (b), (d), and (e) of paragraph 10 above.
12. No Party to this action shall be obligated to challenge the propriety of any
designation by any Producing Party, and a failure to do so shall not constitute a waiver or in any
way preclude a subsequent challenge in this or any other action to the propriety of such
designation. Any Party objecting to the designation of any Discovery Material as
“CONFIDENTIAL” or “HIGHLY CONFIDENTIAL - ATTORNEYS’ EYES ONLY” must give
counsel of record for the Producing Party written notice of its reasons for the objection. The
parties shall use their best efforts to resolve promptly and informally such disputes. The
Producing Party will then have ten (10) business days after receipt of this notice to change the
designation or respond in writing why the designation is appropriate. Failing resolution after
service of the written notice of its reasons for the objection, the objecting party may file a motion
with the Court setting forth the objecting party’s reasons as to why the designation should be
changed. The Producing Party asserting confidentiality has the burden of showing that the
designation is appropriate. The information designated as “CONFIDENTIAL” or “HIGHLY
CONFIDENTIAL - ATTORNEYS’ EYES ONLY” shall remain as such (i) unless the Producing
Party does not respond in writing why the designation is appropriate within ten (10) business
days after receipt of the written notice of the objecting Party’s reasons for the objection; (ii) until
the matter is resolved by Court order; or (iii) until agreement of the Producing Party.
13. Nothing in this Order shall preclude any party from applying to this Court for
relief from any provision hereof, or from asserting that certain Discovery Materials should
receive greater confidentiality protection than that provided herein, in accordance with Rule
26(c) of the Federal Rules of Civil Procedure.
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14. The designation of Designated Material as “CONFIDENTIAL” or “HIGHLY
CONFIDENTIAL ATTORNEYS EYES ONLY” shall be deemed effective unless and until the
Court orders otherwise or the Producing Party withdraws the designation. Designated Material
must be marked in the following manner:
a. In the case of documents or any other tangible thing produced, designation
shall be made by placing the legend “CONFIDENTIAL” or “HIGHLY
CONFIDENTIAL – ATTORNEYS’ EYES ONLY” or similar language on
each page of the document or on the cover or in a prominent place on any
other tangible thing prior to production of the document or tangible thing
along with a designation of the Producing Party (e.g., bates number prefix).
b. Documents produced natively shall contain a slip sheet associated with the
native file that contains the Bates number of the document along with the
applicable designation, if any, under the terms of this Order. Documents
produced natively shall also be renamed to indicate the Bates number of the
document as well as the applicable designation, if any, under the terms of this
Order.
c. In the case of documents that are made available for inspection, all such
materials shall be considered “HIGHLY CONFIDENTIAL - ATTORNEYS’
EYES ONLY.” Thereafter, upon selection of specified documents for copying
by the Receiving Party, the Producing Party shall make copies of the specified
documents and mark each document containing “CONFIDENTIAL” or
“HIGHLY CONFIDENTIAL - ATTORNEYS’ EYES ONLY” information as
defined in Paragraphs 4 and 5 with the appropriate designation. There will be
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no waiver of confidentiality by the inspection of “CONFIDENTIAL” or
“HIGHLY CONFIDENTIAL - ATTORNEYS’ EYES ONLY” information
before it is copied and marked pursuant to this Order.
d. In the case of testimony given at a deposition or hearing, transcripts or
portions thereof may be designated “CONFIDENTIAL” or “HIGHLY
CONFIDENTIAL – ATTORNEYS’ EYES ONLY” in accordance with the
provisions of Paragraph 22 of this Order. Any designation that is inadvertently
omitted from a document or testimony may be corrected by written
notification to opposing counsel, but any disclosure prior to such notification
shall not be a violation of this Order.
15. Designated Material shall be maintained by the Receiving Party at a location and
under circumstances reasonably designed to ensure compliance with this Order. The Receiving
Party shall protect the confidentiality of Designated Material using procedures that are no less
stringent than the measures used to protect the Receiving Party’s own Designated Material or
similar confidential material.
16. A party filing information that has been designated “CONFIDENTIAL” or
“HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” with the Court, or any pleadings,
motions or other papers that disclose any such information, shall file the materials under seal in
accordance with Section V.G.1.(e) of the United States District Court for the Eastern District of
North Carolina Electronic Case Filing Administrative Policies and Procedures Manual and Local
Civil Rule 79.2, with notice served upon the Producing Party. The filing of the materials under
seal shall not be binding on the Court, however. Within seven (7) days of service of such notice,
the party advocating that the materials be maintained under seal shall file with the Court a
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Motion to Seal and supporting memorandum of law specifying the interests which would be
served by restricting public access to the information. The party that initially filed the materials
need not file any such Motion to Seal or otherwise defend another party’s desire that the
materials remain sealed. The Court will grant the Motion to Seal only after providing adequate
notice to the public and opportunity for interested parties to object, after carefully weighing the
interests advanced by the movant and those interests favoring public access to judicial
documents and records, and upon finding that the interests advanced by the movant override any
common law or constitutional right of public access which may attach to the information.
Documents submitted under seal in accordance with this paragraph will remain under seal
pending the Court’s ruling. If the party desiring that the information be maintained under seal
does not timely file a Motion to Seal, then the materials will be deemed unsealed, without need
for order of the Court.
17. Information produced by a non-party during the course of this action may be
designated under this Order by such non-party or by a party as “CONFIDENTIAL” or
“HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” by following the procedures set
forth herein or may be deemed so confidential as not to be disclosed under any circumstances.
Information so designated and produced by third parties shall thereafter be treated by the Parties
in the same manner as if produced with such designation by a party. A producing non-party shall
have all the rights of a Producing Party with respect to protection of information under the terms
of this Order. The provisions of this Order for challenging the designation by a party are
applicable to challenges to designations by non-parties.
18. Prior to disclosure of “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – Formatted: Indent: Left: 0"
ATTORNEYS’ EYES ONLY” information to any third parties, to include persons employed to
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act as outside consultants or experts, translators, or interpreters in this action, subject to
subparagraphs 10(b-e), counsel for the party seeking disclosure shall require such persons to read
this Order and execute a Nondisclosure Agreement in the form attached hereto as Exhibit A, a
copy of which shall be promptly provided to opposing counsel and a copy thereof served on all
other counsel of record. In addition, counsel for the party seeking disclosure shall comply with
the following:
a. Five business days prior to disclosure to any third party, Counsel for the party Formatted: Normal, Indent: Left: 0", First line: 0.5", Line
spacing: Double
seeking disclosure of “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’
EYES ONLY” information, shall provide, subject to subparagraphs 18(b-e) to opposing counsel
and to any non-party from which the material originated, if applicable, the name, address, and
present employer of such outside consultant or expert, translator, or interpreter. Opposing
counsel and/or such non-party shall then have a period of five business (5) days after receipt of
such information to challenge the disclosure of “CONFIDENTIAL” or “HIGHLY
CONFIDENTIAL – ATTORNEYS’ EYES ONLY” information to such person in this action, by
serving a written statement of the challenge upon the party seeking to make such disclosure.
b. Any challenge shall be ruled on by the Court prior to disclosure of any
“CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY”
information.
c. Nothing in this Paragraph shall be deemed to enlarge or restrict the right of any
party to conduct discovery of any expert.
d. Nothing in this Order shall be construed as requiring: i) that routine outside
suppliers of litigation support services such as photocopying, scanning, or coding execute the
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attached Nondisclosure Agreement; or ii) that the opposing party utilizing such services must
disclose the identity of such service suppliers to the opposing party or counsel.
e.18. Nothing in this Order shall be construed as requiring that the identity of graphics
preparation and presentation consultants, witness preparation consultants, jury consultants, or
trial presentation consultants be disclosed to the opposing party or counsel. However, any party
utilizing such services is required to have such proposed service provider conduct a conflict
check and execute the attached Nondisclosure Agreement.
19. Nothing in this Order shall prevent or restrict any person from using or disclosing
in any manner its own “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’
EYES ONLY” information that it has produced or disclosed in this litigation.
20. Nothing in this Order shall prevent disclosure beyond the terms of this Order of
any “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY”
information if the Parties and, if applicable, the non-party from which the material originated,
consent, or if the Court, on motion filed by the party seeking to make disclosure, orders that
disclosure be made. Any party may at any time request the Court, after notice to the opposing
party and to the non-party from which the material originated, if applicable, to modify or grant
relief from any provision of this Order or to place additional restrictions on the use of any
“CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY”
information.
21. Nothing herein shall prohibit a party, or its counsel, from disclosing any
document designated “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’
EYES ONLY” to the person the document identifies as an author or recipient of such document,
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or to any person that evidence shows to have already viewed the document, been told of its
contents, or who previously had legal access to the document or information.
22. Information disclosed at a deposition may be designated as “CONFIDENTIAL”
or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” by indicating on the record at
the deposition that the information is “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL –
ATTORNEYS’ EYES ONLY” and is subject to the provisions of this Order. All such portions of
the transcript shall be appropriately marked by the court reporter and shall be treated by the
Parties as set forth herein. Testimony in a deposition may also be designated
“CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” by
notifying the deposing party in writing within ten (10) business days of the receipt of the
transcript of those pages and lines or those exhibits that are “CONFIDENTIAL” or “HIGHLY
CONFIDENTIAL – ATTORNEYS’ EYES ONLY,” as the case may be. No deposition may be
read by anyone other than the deponent, the attorneys for the Parties, and those qualified to see
“HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” material under Paragraph 11
during the fourteen (14) day period following a deposition unless otherwise agreed upon among
the attorneys. Upon being informed that certain portions of a deposition disclose either
“CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY”
information, each party must cause each copy of the transcript in its custody or control to be
marked immediately.
23. Violation by any person of any term of this Order or of the Nondisclosure
Agreement may be punishable as contempt of court. Any person or entity that produces
“CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY”
information in response to a discovery request or subpoena in this action is intended to be a
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beneficiary of this Order and of the Nondisclosure Agreement and may pursue all remedies
available for violation thereof. No provision of this Order shall be deemed to require any person
or entity not a party to this action to respond to any discovery request or subpoena, except as
may otherwise be required by law. Nothing in this Order shall prevent or prohibit any party or
non-party from seeking such additional or further protection as it deems necessary to protect
documents or information subject to discovery in this action.
24. Nothing herein and no action taken under this Order shall constitute a waiver or
admission that any specific document, material, testimony, or thing: (1) is relevant and subject to
discovery; (2) is or is not a trade secret or confidential proprietary information; (3) constitutes or
does not constitute confidential records; or (4) is or is not admissible in evidence at trial or at any
hearing. The production of any documents or information that the producing party claims to be
privileged shall be governed by the facts and applicable law.
25. If any Producing Party discovers that it has inadvertently failed to designate and
mark any Discovery Material as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL -
ATTORNEYS’ EYES ONLY,” the Producing Party may subsequently inform the Receiving Party
of the confidential nature of the disclosed Designated Material, and the Receiving Party shall treat
the disclosed Discovery Material as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL -
ATTORNEYS’ EYES ONLY” upon receipt of written notice from the Producing Party, to the
extent the Receiving Party has not disclosed this Discovery Material. Disclosure of such Discovery
Material to persons not authorized to receive that material prior to receipt of the confidentiality
designation shall not be deemed a violation of this Order. However, in the event the material has
been distributed in a manner inconsistent with the categorical designation, the Receiving Party will
take the steps necessary to conform distribution to the categorical designation, i.e., by retrieving
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all copies of the Discovery Material, or notes or extracts thereof, in the possession of the persons
not authorized under this Order to possess such Discovery Material and advising the person to
whom disclosure was made that the Producing Party has designated the material as
“CONFIDENTIAL” or “HIGHLY CONFIDENTIAL - ATTORNEYS’ EYES ONLY” and that
such material must be treated as provided in the Order unless otherwise agreed by the Parties or
ordered by the Court. The inadvertent failure to designate material shall not be deemed a waiver
of the confidentiality of the document in this proceeding or in any other federal or state proceeding
or investigation.
26. The Producing Party is not required to log privileged documents on a privilege log
to the extent the privileged document was created on or after June 10, 2021, the filing date of the
Verified Complaint in this action. The production of privileged or work-product protected
documents or ESI or information, whether inadvertent or otherwise, is not a waiver of the privilege
or protection from discovery in this case or in any other federal or state proceeding or investigation.
The disclosure of any privileged or immune documents shall not be deemed a waiver of that
privilege or immunity as to any other documents, testimony, or evidence in this case or any other
federal or state proceeding or investigation. This Order shall be interpreted to provide the
maximum protection allowed by Federal Rule of Evidence 502(d) and Federal Rule of Civil
Procedure 26(b)(5). Nothing contained herein is intended to or shall serve to limit a party’s right
to conduct a review of documents, ESI, or information (including metadata) for relevance,
responsiveness and/or segregation of privileged and/or protected information before production.
27. The Producing Party may give written notice to the Receiving Party that the
document is subject to a claim of attorney-client privilege or work product immunity and request
that the document be returned to the Producing Party. Unless the Producing Party claims that the
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entire document is subject to a claim of attorney-client privilege or work product immunity, the
Producing Party shall, together with its written notice, produce a copy of the document with the
claimed privileged material redacted. The Producing Party must thereafter produce a privilege log
that complies with Fed. R. Civ. P. 26(b)(5) for the inadvertently produced and clawed back
document(s), regardless of when the document was created.
28. Within three (3) business days of receiving written notice and a copy of the
document with claimed privileged material redacted, the Receiving Party shall return to the
Producing Party all copies of such document and shall return or destroy all excerpts thereof. Return
of the document by the Receiving Party shall not constitute an admission or concession, or permit
any inference, that the returned document is, in fact, properly subject to a claim of attorney-client
privilege or work product immunity, nor shall it foreclose the Receiving Party from moving for an
order that such document has been improperly designated as subject to a claim of attorney-client
privilege or work product immunity or should be produced for reasons other than a waiver caused
merely by the inadvertent production.
29. The Receiving Party shall be entitled to prepare a record for its own use containing
the date, the author, address(es), and topic of the document and other such information as is
reasonably necessary to identify the document and describe its nature to the Court in any motion
to compel production of the document. Such a record of the identity and nature of a document may
not be used for any purposes other than preparing a motion to compel production of that document
in this action. After the return of the document(s), the Receiving Party may challenge the
Producing Party’s claim(s) of privilege or work product by making a motion to the Court. Unless
previously waived, the inadvertent disclosure of any privileged or immune documents shall not be
deemed a waiver of that privilege or immunity as to any other documents, testimony, or evidence
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in this proceeding or in any other federal or state proceeding or investigation.
30. Upon the final termination of this litigation, including any appeals, the parties
have sixty (60) days to petition the Clerk of Court to return to the party which filed them all
“CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY”
information, and documents and things containing “CONFIDENTIAL” or “HIGHLY
CONFIDENTIAL – ATTORNEYS’ EYES ONLY” information, that have been filed under seal
with the Court. Any and all originals and copies of Discovery Materials designated
“CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” shall, at
the request of the Producing Party, be returned to the party (at its expense) within sixty (60) days
after a final judgment herein or settlement of this action, or, at the option of the producing party,
destroyed in that time frame, except that Outside Counsel for each party may maintain in its files
archival copies of each pleading filed with the Court, each deposition transcript together with the
exhibits marked at the deposition, written discovery responses and documents constituting work
product which were internally generated based upon or which include “CONFIDENTIAL”
information or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” information.
Upon receipt of any subpoena for such information, the party receiving the subpoena shall
immediately notify Outside Counsel for the producing party of the subpoena so that the latter
may protect its interests. In the event that documents are returned to or destroyed at the request
of the Producing Party, the other party or its Outside Counsel shall certify in writing that all such
documents have been returned or destroyed, as the case may be. The parties should agree to
reasonable extensions of time to complete the return of the “CONFIDENTIAL” or “HIGHLY
CONFIDENTIAL ATTORNEYS EYES ONLY” information, if necessary.
31. The restrictions set forth in any of the preceding paragraphs of this Order shall not
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apply to information that:
a. Was, is, or becomes public knowledge or publicly accessible not in violation
of this Order; or
b. Was lawfully possessed by the non-designating party prior to the date of this
Order.
32. This Protective Order shall not bar any attorney herein in the course of rendering
advice to his or her client with respect to this litigation from conveying to any party client an
evaluation in a general way of protected documents produced or exchanged under this Protective
Order; provided, however, that in rendering such advice and otherwise communicating with the
client, the attorney shall not disclose the specific contents, directly or indirectly, of any protected
document produced under this Protective Order, which disclosure would be contrary to the terms
of this Protective Order.
32.33. This Order shall continue in full force and effect after termination of this
litigation, including all appeals, and the Court shall retain jurisdiction necessary to enforce the
terms of this Order. However, this Order shall be subject to revocation or modification by order
of the Court, upon written stipulation of the parties, or upon motion and reasonable notice,
including opportunity for a hearing and presentation of evidence should the Court so decide.
33.34. The Parties agree to submit this Order for entry by the Court and to be bound by
the terms prior to entry by the Court.
This the day of January, 2022.
By: /s/
John C. Scheller
(WI State Bar No.1031247)
Kenneth M. Albridge III
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(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
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
SO ORDERED, this the day of January, 2022.
Judge Terrence Boyle
United States District Court for the
Eastern District North Carolina
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EXHIBIT A
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
WESTERN DIVISION
Civil Action No. 5:21-CV-251-BO
BERINGER COMMERCE, INC. d/b/a
BLUE ACORN iCi,
Plaintiff,
v. NONDISCLOSURE AGREEMENT
UNDER CONSENT PROTECTIVE
FIN CAP, INC. d/b/a “BLUEACORN.CO,” ORDER
BLUE ACORN PPP, LLC, and BLUE OAK
FOREST, LLC,
Defendants.
The undersigned, having read the Consent Protective Order (the “Protective Order”)
entered in this action, understands the terms thereof, and intending to be legally bound thereby,
agrees as follows:
1. All information and documents disclosed to the undersigned pursuant to the
Protective Order shall be used only in connection with the above-captioned action (the
“Litigation”) and shall not be used for any business or other purpose.
2. Such information and documents shall be disclosed to and discussed only with the
parties’ outside counsel and other persons so authorized pursuant to the terms of the Protective
Order, who have in accordance with the provisions of the Protective Order executed a similar
Nondisclosure Agreement. Neither such documents or information nor information acquired or
extracted from such documents or information will be divulged or made accessible to any other
person, company, firm, news organization, or any other person or entity whatsoever, except in
Case 5:21-cv-00251-BO Document 71-2 Filed 01/24/22 Page 19 of 20
compliance with the Protective Order and this Nondisclosure Agreement. This Nondisclosure
Agreement does not limit the right of the signatory to testify at trial in this action or to prepare
documents or other materials for submission at trial in this action.
3. The undersigned agrees to take all appropriate and necessary precautions to avoid
loss or inadvertent disclosure of documents or information covered by the Protective Order.
4. The undersigned further agrees to return all information and documents in his or
her possession or control (including all abstracts, summaries, descriptions, lists, synopses,
pleadings, or other writings reflecting or revealing such information) and covered by the
Protective Order, to the attorney from whom he or she received such documents and information
within thirty (30) days after the termination of this Litigation, including all appeals, or within
thirty (30) days after the undersigned is no longer associated with this Litigation, whichever
comes first.
5. The undersigned acknowledges that a violation of the terms of the Protective
Order may subject the undersigned and/or his/her employer to sanctions, including, but not
limited to, punishment for civil contempt.
Dated:
Signature
Printed Name
Address
Employer(s)
2
Case 5:21-cv-00251-BO Document 71-2 Filed 01/24/22 Page 20 of 20
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