Exhibit A – Proposed Order
- Date
- 2020-10-05
Summary
A stipulated confidentiality agreement and proposed protective order, filed October 5, 2020 as Document 41-1 in Blue Flame Medical LLC v. Chain Bridge Bank, N.A., John J. Brough, and David M. Evinger, Civil Action No. 1:20-cv-00658, in the U.S. District Court for the Eastern District of Virginia. The parties ask the Court to enter it under Federal Rule of Civil Procedure 26(c) to protect information obtained in discovery. It sets up two designation tiers, CONFIDENTIAL and HIGHLY CONFIDENTIAL, and lists the categories of people to whom material in each tier may be disclosed. It gives ten business days to designate deposition testimony, requires filing under seal in accordance with Local Civil Rule 5, and provides that inadvertent production of privileged material is not a waiver. It runs 14 pages and attaches an Acknowledgement and Agreement to Be Bound.
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Exhibit A – Proposed Order
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IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
(Alexandria Division)
BLUE FLAME MEDICAL LLC,
Plaintiff,
Civil Action No. 1:20-cv-00658
v.
CHAIN BRIDGE BANK, N.A., JOHN J.
BROUGH, and DAVID M. EVINGER,
Defendants.
STIPULATED CONFIDENTIALITY AGREEMENT AND PROTECTIVE ORDER
WHEREAS, Blue Flame Medical, LLC, Chain Bridge Bank, N.A., John J. Brough, and
David M. Evinger (collectively, the “Parties” and each individually, a “Party”) agree to the terms
of this Stipulated Confidentiality Agreement and request that the Court enter the following
Protective Order under Federal Rule of Civil Procedure 26(c) in order to protect confidential
information obtained by the Parties in connection with this case.
Accordingly, it is hereby ORDERED that the Parties to this action, their respective
officers, agents, servants, employees, and attorneys, any other person in active concert or
participation with any of the foregoing, and all other persons with actual notice of this Order will
adhere to the following terms:
1. With respect to “Discovery Material” (i.e., information of any kind produced or
disclosed in the course of discovery in this action) that a person has designated as
“CONFIDENTIAL” or “HIGHLY CONFIDENTIAL” pursuant to this Order, no person subject
to this Order may disclose such Confidential Discovery Material except as expressly permitted
hereunder.
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2. CONFIDENTIAL DISCOVERY MATERIAL. The Party or person
producing or disclosing Discovery Material (the “Producing Party”) may designate as
Confidential such material by placing on each page a “CONFIDENTIAL” label or notice.
Testimony given at a deposition or other proceeding may be designated Confidential by an
appropriate statement at the time the testimony is given or within ten (10) business days after
such testimony. During the 10-day period following a deposition, all Parties will treat the entire
deposition transcript as if it had been designated Confidential. No designation of Confidential
shall be made unless counsel for the Producing Party believes in good faith that the Discovery
Material contains private personal information, trade secrets, confidential commercial
information, or other commercially sensitive information that is not available to the public
relating to product development, business and marketing plans and research, company security
matters, customer lists, financial data, sales data, production data, matters relating to mergers
and acquisitions, data which touch upon the topic of price, and other confidential, proprietary
and/or commercial matters, and information covered by confidentiality or non-disclosure
agreements with third parties or internal procedures that is entitled to protection. The omission
of any type of information from the preceding sentence does not imply that such information
cannot qualify as Confidential Information, so long as the designating Party in good faith
believes that it is confidential.
3. Where a Producing Party has designated Discovery Material as
CONFIDENTIAL, other persons subject to this order may disclose such information only to the
following persons:
a. the Parties, in-house counsel and outside counsel for the Parties, including co-
counsel and the legal associates, clerical, or other support staff or services of such
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counsel or co-counsel assigned to assist such counsel in the preparation of the
action;
b. insurers, and counsel to the insurers;
c. employees or agents of the Receiving Party (i.e., a Party that receives Discovery
Material from a Producing Party) whom counsel for such Party reasonably
believes need to receive such information in connection with this action;
d. the Court and Court personnel, as well as court reporters and their employees;
e. witnesses or prospective witnesses to the extent reasonably deemed necessary for
the preparation or giving of testimony or potential testimony regarding facts at
issue; provided such person has first executed an Acknowledgement and
Agreement to Be Bound in the form annexed as Exhibit A hereto;
f. outside vendors or service providers (such as copy-service providers and
document- management consultants) that counsel hire for this matter;
g. any mediator that the Parties engage in this matter, provided such person has first
executed an Acknowledgement and Agreement to Be Bound in the form annexed
as Exhibit A hereto;
h. as to any document, its author, its addressee, its cc, and any other person indicated
on the face of the document as having received a copy; and
i. any person a Party retains to serve as an expert witness or otherwise provide
specialized advice to counsel in connection with this action, provided such person
has first executed an Acknowledgement and Agreement to Be Bound in the form
annexed as Exhibit A hereto.
4. HIGHLY CONFIDENTIAL DISCOVERY MATERIAL. The Producing
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Party may designate Discovery Material as “Highly Confidential” by placing on each page a
“HIGHLY CONFIDENTIAL” label or notice. Testimony given at a deposition or other
proceeding may be designated HIGHLY CONFIDENTIAL by an appropriate statement at the
time the testimony is given or within ten (10) business days after such testimony. No designation
of HIGHLY CONFIDENTIAL shall be made unless counsel for the Producing Party believes
in good faith that, in addition to the requirements for designating a document Confidential, the
information to be disclosed contains current confidential competitively sensitive information
which, if known to the opposing Party or a third party, could enable that opposing Party or a
third party to obtain a competitive business advantage, including: (a) proprietary business
information which is unavailable to the public and not readily determinable from other sources
and which might be of value to a competitor of the Party or might be detrimental to the Party if
disclosed publicly; (b) highly sensitive financial information to include forecasts, plans,
analyses, pricing data, or cost data; (c) third-party agreements and the terms thereof; or (d) such
other documents, information, or material which contains confidential information that the
Producing Party reasonably believes is of such nature and character that the unauthorized
disclosure of such information is likely to irreparably injure the Producing Party.
5. Where a Producing Party has designated Discovery Material as HIGHLY
CONFIDENTIAL, other persons subject to this Order may disclose such information only to
the following persons:
a. outside counsel for the Parties, including co-counsel and the legal associates,
clerical or other support staff or services of such counsel or co-counsel assigned to
assist such counsel in the preparation of the action;
b. the Court and its personnel, as well as court reporters and their employees;
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c. outside vendors or service providers (such as copy-service providers and document-
management consultants) that outside counsel hire for this matter;
d. any mediator that the Parties engage in this matter, provided such person has first
executed an Acknowledgement and Agreement to Be Bound in the form annexed
as Exhibit A hereto;
e. as to any document, its author, its addressee, its cc, and any other person indicated
on the face of the document as having received a copy; and
f. any person a Party retains to serve as an expert witness or otherwise provide
specialized advice to counsel in connection with this action, provided such person
has first executed an Acknowledgement and Agreement to Be Bound in the form
annexed as Exhibit A hereto.
6. Before disclosing any Discovery Material to any person referred to in
subparagraphs 3(e), 3(g), 3(i), 5(d), or 5(f) above, counsel must provide a copy of this Order to
such person, who must sign an Acknowledgement and Agreement to Be Bound in the form
annexed as Exhibit A hereto stating that he or she has read this Order and agrees to be bound by
its terms. Said counsel must retain each signed Acknowledgement and Agreement to Be Bound
and hold it in escrow.
7. No Discovery Material designated as CONFIDENTIAL or HIGHLY
CONFIDENTIAL, or excerpts thereof, shall be filed in the public record of this action by a
Receiving Party, unless any of the following occur: (1) the designating Party has withdrawn the
designation, in writing; or (2) the Court has ruled that the document or information is not entitled
to the challenged designation. Otherwise, any document or thing containing or embodying
Confidential or Highly Confidential Discovery Material that is to be filed in this
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proceeding shall be filed under seal in accordance with Local Civil Rule 5. The Parties
agree to act in good faith and cooperate with one another to expedite compliance with the Local
Civil Rules for filing Confidential Discovery Material and excerpts thereof.
8. If at any time during the pendency of this action a Producing Party realizes that
it should have designated as CONFIDENTIAL or HIGHLY CONFIDENTIAL some portion(s)
of Discovery Material that it previously produced without limitation or under a lower
confidentiality designation, the Producing Party may so designate such material by notifying all
Parties in writing. Thereafter, all persons subject to this Order will treat such designated
portion(s) of the Discovery Material as so designated. In addition, the Producing Party shall
provide each other Party with replacement versions of such Discovery Material that bears the
appropriate label or notice within two business days of providing such notice.
9. Nothing contained in this Order will be construed as: (a) a waiver by a Party or
person of its right to object to any discovery request; (b) a waiver of any privilege or protection
from disclosure; or (c) an admission or ruling regarding the admissibility of any document,
testimony, or other evidence. Each Party expressly reserves all such objections.
10. This Order binds the Parties and certain others to treat as CONFIDENTIAL or
HIGHLY CONFIDENTIAL any Discovery Materials so designated. The Court has not,
however, made any finding regarding the confidentiality of any Discovery Materials, and retains
full discretion to determine whether to afford confidential treatment to any Discovery Material
designated as CONFIDENTIAL or HIGHLY CONFIDENTIAL hereunder.
11. Any Party who requests additional limits on disclosure may, at any time during
the pendency of this action, serve upon counsel for the recipient Parties a written notice stating
with particularity the grounds of the request. If the Parties cannot reach agreement promptly,
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the Party seeking additional limits on disclosure will address the dispute to the Court.
12. Recipients of designated Discovery Material under this Order may use such
material solely for the prosecution and defense of this action, any related case, and any appeals
thereto, and not for any other purpose or in any other litigation proceeding. Nothing contained
in this Order, however, will affect or restrict the rights of any Party with respect to its own
documents or information produced in this action.
13. Nothing in this Order will prevent any Party from producing any designated
Discovery Material in its possession in response to a lawful subpoena or other compulsory
process, or if required to produce by law or by any government agency having jurisdiction,
provided that such Party gives written notice to the Producing Party as soon as reasonably
practicable and, if permitted by the time allowed under the request, at least 10 days before any
disclosure. Upon receiving such notice, the Producing Party will bear the burden to oppose
compliance with the subpoena, other compulsory process, or other legal notice if the Producing
Party deems it appropriate to do so.
14. Each person who has access to Discovery Material designated as
CONFIDENTIAL or HIGHLY CONFIDENTIAL pursuant to this Order must take all due
precautions to prevent the unauthorized or inadvertent disclosure of such material.
15. Any inadvertent disclosure of documents or other Discovery Material that is
subject to a claim of privilege as to the Receiving Party (whether protected under the attorney-
client privilege, attorney work product doctrine, or any other recognized privilege or protection)
shall not constitute a waiver of that privilege or protection either (a) generally, (b) with respect
to the inadvertently disclosed document or other Discovery Material; or (c) with respect to the
subject matter of the inadvertently disclosed document or other Discovery Material.
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a. If the Producing Party discovers that a document or other Discovery Material
subject to a claim of privilege has been inadvertently produced, it shall notify the
Receiving Party in writing within ten business days of discovering such
inadvertent protection. The Receiving Party shall (a) within five business days,
return the original produced document or other Discovery Material, destroy all
electronic and hard copies thereof, and confirm to the Producing Party that it has
done so; and (b) not review, use, or disclose the document or other Discovery
Material unless and until the privilege or protection claim has been resolved in a
manner that permits such use or disclosure; provided, however, that if the
Receiving Party intends to raise the privilege issue with the court, it may retain
and use one sequestered copy of the information solely for this purpose, which
must be returned or destroyed in the event that the Court upholds the claim of
privilege. If before receiving notice from the Producing Party of an inadvertent
production under this Paragraph 16(a), the Receiving Party provided the specified
document or other Discovery Material covered by the notice to any individual
entity (as authorized by this Order), the Receiving Party shall take reasonable steps
to retrieve the document or other Discovery Material.
b. If a Receiving Party discovers that a document or other Discovery Material
produced by the Producing Party appears to be subject to a legally recognizable
privilege or protection that may be asserted against the Receiving Party, the
Receiving Party shall (a) refrain from reviewing the document or other Discovery
Material any more than necessary to determine that it appears to be privileged or
protected; (b) immediately notify the Producing Party in writing that it has
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produced a document or information that appears to be protected by a legally
recognizable privilege; (c) within five business days of confirmation by the
Disclosing Party that the disclosure was inadvertent, return the original documents
or other Discovery Material, destroy all electronic and hard copies thereof, and
confirm to the Producing Party that it has done so; and (d) not use or disclose the
specified document or other Discovery Material unless and until the privilege or
protection claim has been resolved in a manner that permits such use or disclosure;
provided, however, that if the Receiving Party intends to raise the privilege issue
with the court, it may retain and use one sequestered copy of the information solely
for this purpose, which must be returned or destroyed in the event that the Court
upholds the claim of privilege.
c. Nothing herein shall waive or otherwise affect the Receiving Party’s right to
challenge the Producing Party’s claim that the Discovery Material is privileged or
protected or was mistakenly or inadvertently produced; provided, however, that
the Receiving Party may not assert the fact or circumstances of a mistaken or
inadvertent production of the Discovery Material as a ground for concluding that
any applicable privilege or protection has been waived. All Discovery Material
subject to a claim of privilege as described in this section shall be designated and
treated as privileged until the Court rules on the matter.
16. If the Receiving Party concludes that any document, testimony, or other
Discovery Material designated as CONFIDENTIAL or HIGHLY CONFIDENTIAL by another
Party does not qualify for that level of designation, the non-designating Party shall notify the
designating Party in a writing transmitted by email to the designating Party’s counsel. Such
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notification shall specifically identify each document and the reason(s) the Receiving Party
contends it has been inappropriately designated. The designating Party must, within 7 calendar
days, respond to the objecting Party by either agreeing to change the confidentiality designation
or setting forth its reasons for maintaining the designation. If the designating Party declines to
change the designation, then either Party may immediately seek relief from the Court. The
designating Party shall bear the burden of justifying the designation of the disputed material. If
relief from the Court is sought, the protection afforded by this Protective Order shall continue
until a decision on the motion is made by the Court. If neither Party seeks relief, however, then
the prior designation shall continue as to the disputed material.
17. Within 60 days of the final disposition of this action—including all appeals—all
recipients of designated Discovery Material must either return all such material—including all
copies thereof—to the Producing Party or destroy such material—including all copies thereof.
In either event, by the 60-day deadline the recipient must certify its return or destruction by
submitting a written certification to the Producing Party that affirms that it has not retained any
copies, abstracts, compilations, summaries, or other forms of reproducing or capturing any of
the designated Discovery Material.
a. Provided, however, the attorneys that the Parties have retained for this action may
retain an archival copy of all pleadings, motion papers, transcripts, expert reports,
legal memoranda, correspondence, or attorney work product, even if such
materials contain designated Discovery Material. Any such archival copies that
contain or constitute designated Discovery Material remain subject to this Order.
b. Provided further that no Party shall be required to destroy electronically archived
copies of such material made for backup purposes (whether such documents are
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in original form or not). Rather, it shall suffice that such archived backup copies
are destroyed upon the normal expiration of backup files (and maintained in
confidence in the interim).
18. This Order will survive the termination of the litigation and will continue to be
binding upon all persons subject to this Order to whom designated Discovery Material is
produced or disclosed.
19. The Court will retain jurisdiction over all persons subject to this Order to the
extent necessary to enforce any obligations arising hereunder or to impose sanctions for any
contempt thereof.
SO STIPULATED AND AGREED
Dated: October 5, 2020
/s/ Peter H. White /s/ Donald Burke
Peter H. White, Esq. (VA Bar No. 32310) Gary A. Orseck (admitted pro hac vice)
Jason T. Mitchell (admitted pro hac vice) Matthew M. Madden (admitted pro hac vice)
Gregory Ketcham-Colwill (admitted pro Donald Burke (VA Bar No. 76550)
hac vice) ROBBINS, RUSSELL, ENGLERT,
SCHULTE ROTH & ZABEL LLP ORSECK, UNTEREINER & SAUBER LLP
901 Fifteenth Street, NW, Suite 800 2000 K Street, N.W., 4th Floor
Washington, DC 20005 Washington, D.C. 20006
Tel: (202) 729-7476 Tel: (202) 775-4500
Fax: (202) 730-4520 Fax: (202) 775-4510
peter.white@srz.com dburke@robbinsrussell.com
William H. Gussman, Jr. (admitted pro hac Counsel for Defendants
vice)
SCHULTE ROTH & ZABEL LLP
919 Third Avenue
New York, New York 10022
Tel: (212) 756-2044
Fax: (212) 593-5955
bill.gussman@srz.com
Counsel for Plaintiff
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IT IS SO ORDERED
Date: _____________________________
Hon. Leonie M. Brinkema
United States District Judge
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EXHIBIT A
ACKNOWLEDGEMENT AND AGREEMENT TO BE BOUND
I, [print or type full name], of
[print or type full
address], declare under penalty of perjury that I have read in its entirety and understand the
Stipulated Protective Order that was entered by the United States District Court for the Eastern
District of Virginia (the “Court”) on , 2020 in the civil action captioned Blue
Flame Medical, LLC v. Chain Bridge Bank, N.A. et al., No. 1:20-cv-00658. I agree to comply
with and to be bound by all the terms of this Stipulated Protective Order. I solemnly promise
that I will not disclose in any manner any information or item that is subject to this Stipulated
Protective Order to any person or entity except in strict compliance with the provisions of this
Order.
I further agree to submit to the jurisdiction of the Court for the purpose of enforcing the terms of
this Stipulated Protective Order, even if such enforcement proceedings occur after termination
of this action.
I hereby agree to accept service of process in connection with this action or any
proceedings related to enforcement of this Stipulated Protective Order at the following e-
mail address:
.
Date:
City and State where sworn and signed:
Printed name:
[printed name]
Signature:
[signature]
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