Court filing
CONSENT Proposed Order regarding 75 Order on Motion for Protective Order filed by Blue… — Blueacorn Beringer (Dkt. 76)
No. 5:21-cv-00251-BO · Doc. 76 · Docket on CourtListener
Full text
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.
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 Motion for Protective Order (Dkt. No. 70) of
Plaintiff Beringer Commerce, Inc. d/b/a Blue Acorn iCi (“Plaintiff”). Pursuant to the Order of
the Court dated February 17, 2022 (Dkt. No. 75), the Court has denied Plaintiff’s Motion for
Protective Order to the extent Plaintiff sought to include an “Attorney’s Eyes Only” designation.
Otherwise, it appears 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 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 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
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of confidential information that is produced in this Lawsuit. The Parties expressly 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” 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 information protected from
disclosure by statute, sensitive personal information, 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. “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,
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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.
6. “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.
7. “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.
8. “Receiving Party” shall mean any Party to this action, including its counsel,
retained experts, directors, officers, employees, or agents, who receives any Discovery Material.
9. 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);
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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, consultants, 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.
10. 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” 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
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designation should be changed. The Producing Party asserting confidentiality has the burden of
showing that the designation is appropriate. The information designated as “CONFIDENTIAL”
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.
11. 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.
12. The designation of Designated Material as “CONFIDENTIAL” 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 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
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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 “CONFIDENTIAL.” 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” information as defined in Paragraph 4 with
the appropriate designation. There will be no waiver of confidentiality by the
inspection of “CONFIDENTIAL” 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” in accordance with
the provisions of Paragraph 20 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.
13. 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.
14. A party filing information that has been designated “CONFIDENTIAL with the
Court, or any pleadings, motions or other papers that disclose any such information, shall file the
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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 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.
15. 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” 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
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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.
16. Prior to disclosure of “CONFIDENTIAL” information to any third parties, to
include persons employed to act as outside consultants or experts, translators, or interpreters in
this action, subject to subparagraphs 9(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.
17. Nothing in this Order shall prevent or restrict any person from using or disclosing
in any manner its own “CONFIDENTIAL” information that it has produced or disclosed in this
litigation.
18. Nothing in this Order shall prevent disclosure beyond the terms of this Order of
any “CONFIDENTIAL” 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” information.
19. Nothing herein shall prohibit a party, or its counsel, from disclosing any
document designated “CONFIDENTIAL” to the person the document identifies as an author or
recipient of such document, 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.
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20. Information disclosed at a deposition may be designated as “CONFIDENTIAL”
by indicating on the record at the deposition that the information is “CONFIDENTIAL” 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” 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”. Upon being informed that certain portions of a
deposition disclose “CONFIDENTIAL” information, each party must cause each copy of the
transcript in its custody or control to be marked immediately.
21. Violation by any person of any term of this Order or of the Nondisclosure
Agreement may be punishable as contempt of court.
22. 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.
23. If any Producing Party discovers that it has inadvertently failed to designate and
mark any Discovery Material as “CONFIDENTIAL,” 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” 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
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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 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” 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.
24. 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, and the documents reflect communications between the parties
and their outside counsel. 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.
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25. 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
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.
26. 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.
27. 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
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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
in this proceeding or in any other federal or state proceeding or investigation.
28. 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” information, and documents and things containing “CONFIDENTIAL”
information, that have been filed under seal with the Court. Any and all originals and copies of
Discovery Materials designated “CONFIDENTIAL” 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. 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” information, if necessary.
29. The restrictions set forth in any of the preceding paragraphs of this Order shall not
apply to information that:
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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.
30. 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.
31. The Parties have agreed to submit this Order for entry by the Court and to be
bound by the terms prior to entry by the Court.
SO ORDERED, this the day of March, 2022.
TERRENCE W. BOYLE
UNITED STATES DISTRICT JUDGE
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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 76 Filed 03/03/22 Page 14 of 15
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)
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