Dmarcian, Inc. v. DMARC Advisor BV

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IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
ASHEVILLE DIVISION
Case No. 1:21-cv-00067-MR
DMARCIAN, INC.,
Plaintiff,
vs.
DMARC ADVISOR BV, f/k/a
DMARCIAN EUROPE BV,
Defendant.
PROTECTIVE ORDER
Pursuant to Rule 26(c) of the Federal Rules of Civil Procedure, IT IS
HEREBY ORDERED that the following confidentiality provisions will govern all
information and documents disclosed through discovery in this action.
1. PURPOSES AND LIMITATIONS
Disclosure and discovery activity in this action are likely to involve
production of confidential, proprietary, or private information for which special
protection from public disclosure and from use for any purpose other than
prosecuting this litigation may be warranted. This Protective Order does not confer
blanket protections on all disclosures or responses to discovery and the protection it
affords from public disclosure and use extends only to the limited information or
items that are entitled to confidential treatment under the applicable legal principles.
As set forth in Section 13.4 below, this Protective Order does not entitle the Parties
to file confidential information under seal; Local Civil Rule 6.1 sets forth the
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procedures that must be followed and the standards that will be applied when a party
seeks permission from the Court to file material under seal.
2. DEFINITIONS
2.1 Challenging Party: a Party or Non-Party that challenges the designation
of information or items under this Protective Order.
2.2 “CONFIDENTIAL” Information or Items: information (regardless of
how it is generated, stored or maintained) or tangible things that qualify for
protection under Federal Rule of Civil Procedure 26(c), including without limitation
trade secrets, technical information, and/or commercially sensitive information
requiring the protections against disclosure to a business competitor, such as
(without limitation) source code (inclusive of all source code and related
documentation requested in Plaintiff’s pending discovery requests) and underlying
trade secrets in relation to content and development of that source code, marketing
plans, and the Parties’ respective financial information.
2.3 Counsel (without qualifier): Outside Counsel of Record (as well as their
support staff).
2.4 Designating Party: a Party or Non-Party that designates information or
items that it produces in disclosures or in responses to discovery as
“CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES
ONLY.”
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2.5 Disclosure of Discovery Material: all items, testimony, or information,
regardless of the medium or manner in which it is generated, stored, provided, or
maintained (including, among other things, testimony, transcripts, and tangible
things), that are produced or generated in disclosures or responses to discovery or
Court-ordered disclosures in this matter.
2.6 Expert: a person with specialized knowledge or experience in a matter
pertinent to the litigation who (1) has been retained by a Party or its Counsel to serve
as a testifying expert witness or as a non-testifying expert consultant in an action
involving the Parties, (2) is not a past or current employee of a Party or of a Party’s
competitor, and (3) at the time of retention, is not anticipated to become an employee
of a Party or of a Party’s competitor.
2.7 “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY”
Information or Items: extremely sensitive “Confidential Information or Items,”
disclosure of which to another Party or Non-Party would create a substantial risk of
serious harm that could not be avoided by less restrictive means.
2.8 Non-Party: any natural person, partnership, corporation, association, or
other legal entity not named as a Party to this action.
2.9 Outside Counsel of Record: attorneys who are not employees of a Party
to this action but are retained to represent or advise a Party in an action involving
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the Parties and have appeared in an action involving the Parties on behalf of that
Party or are affiliated with a law firm which has appeared on behalf of that Party.
2.10 Party: any Party to this action, including all of its officers, directors,
employees, consultants, retained experts, and Outside Counsel of Record (and their
support staffs).
2.11 Producing Party: a Party or Non-Party that produces Disclosure or
Discovery Material in this action.
2.12 Professional Vendors: persons or entities that provide litigation support
services (e.g., photocopying, videotaping, translating, preparing exhibits or
demonstrations, and organizing, storing, or retrieving data in any form or medium)
and their employees and subcontractors.
2.13 Protected Material: any Disclosure or Discovery Material that is
designated as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL –
ATTORNEYS’ EYES ONLY.”
2.14 Receiving Party: a Party that receives Disclosure or Discovery Material
from a Producing Party.
3. SCOPE
The protections conferred by this Protective Order cover not only Protected
Material (as defined above), but also (1) any information copied or extracted from
Protected Material; (2) all copies, excerpts, summaries, or compilations of Protected
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Material; and (3) any testimony, conversations, briefs, or presentations by Parties or
their Counsel that might reveal Protected Material. However, the protections
conferred by this Protective Order do not cover the following information: (a) any
information that is in the public domain at the time of disclosure to a Receiving Party
or becomes part of the public domain after its disclosure to a Receiving Party as a
result of publication not involving a violation of this Protective Order, including
becoming part of the public record through trial or otherwise; and (b) any
information known to the Receiving Party prior to the disclosure or obtained by the
Receiving Party after the disclosure from a source who obtained the information
lawfully and under no obligation of confidentiality to the Designating Party.
4. DURATION
Even after final disposition of this litigation, the confidentiality obligations
imposed by this Protective Order shall remain in effect until a Designating Party
agrees otherwise in writing or an order of this Court otherwise directs. This Court
shall retain jurisdiction over all Parties bound hereby for the purposes of this
Protective Order. Final Disposition shall be deemed to be the later of: (1) dismissal
of all claims and defenses in all actions involving the Parties, with or without
prejudice; or (2) final judgment in all actions involving the Parties after the
completion and exhaustion of
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all appeals, re-hearings, remands, trials, or reviews, including the time limits for
filing any motions or applications for extension of time pursuant to applicable law.
5. DESIGNATING PROTECTED MATERIAL
5.1 Exercise of Restraint and Care in Designating Material for Protection.
Each Party or Non-Party that designates information or items for protection under
this Protective Order must take care to limit any such designation to specific material
that qualifies under the appropriate standards. To the extent it is practical to do so,
the Designating Party must designate for protection only those parts of material,
documents, items, or oral or written communications that qualify so that other
portions of the material, documents, items, or communications for which protection
is not warranted are not swept unjustifiably within the ambit of this Protective Order.
Mass, indiscriminate, or routinized designations are prohibited. Designations
that are shown to be clearly unjustified or that have been made for an improper
purpose (e.g., to unnecessarily encumber or retard the case development process or
to impose unnecessary expenses and burdens on other parties) may expose the
Designating Party to sanctions.
If it comes to a Designating Party’s attention that information or items that it
designated for protection do not qualify for protection at all or do not qualify for the
level of protection initially asserted, such Designating Party must promptly notify
all other Parties that it is withdrawing the mistaken designation.
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5.2 Manner and Timing of Designations. Except as otherwise provided in
this Protective Order (see, e.g., second paragraph of section 5.2(a) below), or as
otherwise stipulated or ordered, Disclosure of Discovery Material that qualifies for
protection under this Protective Order must be clearly so designated before the
material is disclosed or produced.
Designation in conformity with this Protective Order requires:
(a) For information in documentary form (e.g., paper or electronic
documents, but excluding transcripts of depositions or other pretrial or trial
proceedings), that the Producing Party affix the legend (“CONFIDENTIAL,” or
“HIGHLY CONFIDENTIAL– ATTORNEYS’ EYES ONLY”) to each page that
contains protected material.
A Party or Non-Party that makes original documents or materials available for
inspection need not designate them for protection until after the inspecting Party has
indicated which material it would like copied and produced. During the inspection
and before the designation, all of the material made available for inspection shall be
deemed “HIGHLY CONFIDENTIAL– ATTORNEYS’ EYES ONLY.”
After the inspecting Party has identified the documents it wants copied and
produced, the Producing Party must determine which documents, or portions
thereof, qualify for protection under this Protective Order. Then, before producing
the specified documents, the Producing Party must affix the appropriate legend
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(“CONFIDENTIAL” OR “HIGHLY CONFIDENTIAL – ATTORNEY’S EYES
ONLY”) to each page that contains Protected Material.
(b) For testimony given in deposition or in other pretrial or trial
proceedings, portions of depositions shall be deemed “CONFIDENTIAL” or
“HIGHLY CONFIDENTIAL– ATTORNEYS’ EYES ONLY” only if designated as
such when the deposition is taken or within fifteen (15) business days after receipt
of the transcript (as may be extended by agreement between the parties). Such
designation shall be specific as to the portions to be protected. The Parties shall treat
the entire deposition transcript and all exhibits to such deposition as “HIGHLY
CONFIDENTIAL – ATTORNEYS’ EYES ONLY” until such 15-day period has
elapsed, or unless the Parties have stipulated that a given deposition did not include
any information subject to this Protective Order. In the event that any person is
present who is not entitled to access to “CONFIDENTIAL” or HIGHLY
CONFIDENTIAL – ATTORNEYS’ EYES ONLY” information (whether in the
form of exhibits or testimony), the Parties shall endeavor to address the presence of
such person before the exhibit is shown to the witness or the question calling for
such information is disclosed to the witness. If the Parties cannot agree on whether
such person should be present, the Producing Party may suspend the deposition only
as to those matters for which the presence of such Party is in dispute and in that event
the Producing Party must promptly seek a protective order to determine whether
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such person may be properly excluded. The Court shall have authority to shift costs
to the Producing Party if such suspension was caused without reasonable basis. The
time addressing the issue of the presence of such persons and suspension shall not
count against the time allowed for such deposition.
(c) For information produced in some form other than documentary and for
any and all other tangible items, the Producing Party shall affix in a prominent place
on the exterior of the container or containers in which the information or item is
stored the legend “CONFIDENTIAL,” or “HIGHLY CONFIDENTIAL –
ATTORNEYS’ EYES ONLY.” If only a portion or portions of the information or
item warrant protection, the Producing Party, to the extent practicable, shall identify
the protected portion(s) and specify the level of protection being asserted.
5.3 Inadvertent Failures to Designate Confidentiality. If corrected within
ten (10) business days of a party’s inadvertent failure to designate, an inadvertent
failure to designate qualified information as “CONFIDENTIAL” or “HIGHLY
CONFIDENTIAL – ATTORNEYS’ EYES ONLY,” does not, standing alone, waive
the Designating Party’s right to secure protection under this Protective Order for
such material. Upon correction within ten business days of discovery of an
inadvertent failure to designate, the Receiving Party must make reasonable efforts
to assure that the material is treated in accordance with the provisions of this
Protective Order.
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6. CHALLENGING CONFIDENTIALITY DESIGNATIONS
Any “CONFIDENTIAL” designation or “HIGHLY CONFIDENTIAL –
ATTORNEYS’ EYES ONLY” designation (including a designation of source code
under Section 8) is subject to challenge. The following procedures shall apply to any
such challenge:
(a) The burden of proving the necessity of a designation remains with the
Party asserting confidentiality.
(b) Meet and Confer. The Challenging Party shall initiate the dispute
resolution process by providing written notice of each designation it is challenging
and describing the basis for each challenge. To avoid ambiguity as to whether a
challenge has been made, the written notice must recite that the challenge to
confidentiality is being made in accordance with this specific paragraph of the
Protective Order. The parties shall attempt to resolve each challenge in good faith
and must begin the process by conferring directly (in voice-to-voice dialogue; other
forms of communication are not sufficient standing alone) within 14 days of the date
of service of notice. In conferring, the Challenging Party must explain the basis for
its belief that the confidentiality designation was not proper and must give the
Designating Party an opportunity to review the designated material, to reconsider
the circumstances, and, if no change in designation is offered, to explain the basis
for the chosen designation. A Challenging Party may proceed to the next stage of
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the challenge process only if it has engaged in this meet and confer process first or
establishes that the Designating Party is unwilling to participate in the meet and
confer process in a timely manner.
(c) Judicial Intervention. If the Parties cannot resolve a challenge without
Court intervention, the Designating Party shall file and serve a motion to retain
confidentiality under Civil Local Rule 7 within 21 days of the initial notice of
challenge or within 14 days of the parties agreeing that the meet and confer process
will not resolve their dispute, whichever is earlier. Each such motion must be
accompanied by a competent declaration affirming that the movant has complied
with the meet and confer requirements imposed in the preceding paragraph. Failure
by the Designating Party to make such a motion including the required declaration
within 21 days (or 14 days, if applicable) shall automatically waive the
confidentiality designation for each challenged designation. In addition, the
Challenging Party may file a motion challenging a confidentiality designation at any
time if there is good cause for doing so, including a challenge to the designation of
a deposition transcript or any portions thereof. Any motion brought pursuant to this
provision must be accompanied by a competent declaration affirming that the
movant has complied with the meet and confer requirements imposed by the
preceding paragraph. Frivolous challenges and those made for an improper purpose
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(e.g., to harass or impose unnecessary expenses and burdens on other parties) may
expose the Challenging Party to sanctions.
(d) Notwithstanding any challenge to a designation, all material previously
designated shall continue to be treated as subject to the full protections of this
Protective Order until one of the following occurs:
(1) the Party who made the designation withdraws it in writing;
(2) the Party who made the designation fails to move timely for an
Order as set forth in paragraph 6(c) above; or
(3) the Court rules that the material should no longer be designated.
(e) Challenges to the confidentiality of documents may be made at any time
and are not waived by the failure to raise the challenge at the time of initial disclosure
or designation.
7. ACCESS TO AND USE OF PROTECTED MATERIAL
7.1 Basic Principles. A Receiving Party may use Protected Material that is
disclosed or produced by another Party or by a Non-Party in connection with this
case only for prosecuting, defending, or attempting to settle any litigation
involving both Parties herein. Such Protected Material may be disclosed only to the
categories of persons and under the conditions described in this Protective Order.
When the litigation has been terminated, a Receiving Party must comply with the
provisions of Section 14 below (“FINAL DISPOSITION”).
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Protected Material must be stored and maintained by a Receiving Party at a
location and in a secure manner that ensures that access is limited to the persons
authorized under this Protective Order.
7.2 Disclosure of “CONFIDENTIAL” Information or Items. Unless
otherwise ordered by the Court or permitted in writing by the Designating Party, a
Receiving Party may only disclose (whether directly or through any summary or
other communication) any information or item designated “CONFIDENTIAL” to:
(a) the Receiving Party’s Outside Counsel of Record who have signed the
“Acknowledgement and Agreement to Be Bound” (Exhibit A);
(b) the officers, directors, and employees of the Receiving Party to whom
disclosure is reasonably necessary for litigation involving the Parties;
(c) Experts (as defined in this Protective Order) of the Receiving Party to
whom disclosure is reasonably necessary for this litigation and who have signed the
“Acknowledgment and Agreement to Be Bound” (Exhibit A);
(d) the Court, any other court hearing litigation involving the Parties, and
the courts’ personnel;
(e) court reporters and their staff;
(f) Professional Vendors or professional jury or trial Consultants to whom
disclosure is reasonably necessary for this litigation and who have signed the
“Acknowledgment and Agreement to Be Bound” (Exhibit A);
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(g) during their depositions, witnesses in the action to whom disclosure is
reasonably necessary and who have signed the “Acknowledgment and Agreement
to Be Bound” (Exhibit A), unless otherwise agreed by the Designating Party or
ordered by the Court. Pages of transcribed deposition testimony or exhibits to
depositions that reveal Protected Material must be separately bound by the court
reporter and may not be disclosed to anyone except as permitted under this Protective
Order;
(h) the author or recipient of a document containing the information, or a
custodian or other person who otherwise possessed or knew the information; and
(i) Any mediator who is assigned or retained by the parties to mediate the
matter, and his or her staff, subject to their agreement to maintain confidentiality to
at least the same degree required by this Protective Order.
7.3 Disclosure of “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES
ONLY” Information or Items. Unless otherwise ordered by the Court or permitted
in writing by the Designating Party, a Receiving Party may only disclose any
information or item designated “HIGHLY CONFIDENTIAL – ATTORNEYS’
EYES ONLY” to:
(a) the Receiving Party’s Outside Counsel of Record who have signed the
“Acknowledgement and Agreement to Be Bound” (Exhibit A);
(b) Experts of the Receiving Party (1) to whom disclosure is reasonably
necessary for this litigation, (2) who have signed the “Acknowledgment and
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Agreement to Be Bound” (Exhibit A), and (3) as to whom the procedures set forth
in paragraph 7.4(a), below, have been followed;
(c) the Court, any other court hearing litigation involving the Parties, and
the courts’ personnel;
(d) court reporters and their staff, professional jury or trial consultants, and
Professional Vendors to whom disclosure is reasonably necessary for this litigation
and who have signed the “Acknowledgment and Agreement to Be Bound” (Exhibit
A);
(e) the author or recipient of a document containing the information or a
custodian or other person who otherwise possessed or can demonstrate that she or
he knew the information; and
(f) any mediator who is assigned or retained by the parties to mediate the
matter, and his or her staff, subject to their agreement to maintain confidentiality to
at least the same degree required by this Protective Order.
7.4 Procedures for Approving or Objecting to Disclosure of “HIGHLY
CONFIDENTIAL - ATTORNEYS’ EYES ONLY” Information or Items to
Consultants or Experts.
(a) Unless otherwise ordered by the Court or agreed to in writing by the
Designating Party, a Party that seeks to disclose to an Expert (as defined in this
Protective Order) any information or item that has been designated “HIGHLY
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CONFIDENTIAL – ATTORNEYS’ EYES ONLY” pursuant to paragraph 7.3(b)
first must make a written request to the Designating Party that (1) identifies the
general categories of “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES
ONLY” information that the Receiving Party seeks permission to disclose to the
Expert, (2) attaches a copy of the Expert’s current resume and identifies the Expert’s
current employer(s), and (3) identifies (by name and case number, filing date, and
location of court) any litigation in connection with which the Expert has offered
expert testimony, including through a declaration, report, or testimony at a
deposition or trial, during the preceding five years. If the Expert believes any of this
information is subject to a confidentiality obligation to a third-party, then the Expert
should provide whatever information the Expert believes can be disclosed without
violating any confidentiality agreements, and the Party seeking to disclose to the
Expert shall be available to meet and confer with the Designating Party regarding
any such engagement.
(b) A Party that makes a request and provides the information specified in
the preceding respective paragraphs may disclose the subject Protected Material to
the identified Expert unless, within 14 days of delivering the request, the Party
receives a written objection from the Designating Party. Any such objection must
set forth in detail the grounds on which it is based.
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(c) A Party that receives a timely written objection must meet and confer
with the Designating Party (through direct voice-to-voice dialogue) to try to resolve
the matter by agreement within seven days of the written objection. If no agreement
is reached, the Party seeking to make the disclosure to the Expert may file a motion
as provided in Civil Local Rule 7 seeking permission from the Court to do so. Any
such motion must describe the circumstances with specificity, set forth in detail the
reasons why disclosure to the Expert is reasonably necessary, assess the risk of harm
that the disclosure would entail, and suggest any additional means that could be used
to reduce that risk. In addition, any such motion must be accompanied by a
competent declaration describing the Parties’ efforts to resolve the matter by
agreement (i.e., the extent and the content of the meet and confer discussions) and
setting forth the reasons advanced by the Designating Party for its refusal to approve
the disclosure.
In any such proceeding, the Party opposing disclosure to the Expert shall bear
the burden of proving that the risk of harm that the disclosure would entail (under
the safeguards proposed) outweighs the Receiving Party’s need to disclose the
Protected Material to its Expert.
7.5 Procedures for Approving Disclosure of “HIGHLY CONFIDENTIAL
– ATTORNEYS’ EYES ONLY” Information or Items to a Party.
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If Counsel for a Party, in good faith, is unable to use a document or item
designated “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” through
its experts or other authorized viewers without obtaining input from the Party they
represent, Counsel shall confer with opposing Counsel in a good faith effort to reach
agreement to approve disclosure of such document or item to a Party. If Counsel are
unable to reach agreement, Counsel for the Party seeking disclosure shall move the
Court for assistance in resolving the dispute.
8. SOURCE CODE
(a) The parties agree that source code (i.e., computer instructions or data
definitions expressed in a form suitable for input to an assembler, compiler, other
translator or other data processing module) or pseudo-source code (i.e., a notation
resembling a programming language but not intended for actual compilation, which
usually combines some of the structure of programming language with an
information natural-language description of the computations to be carried out)
(collectively, “Source Code”) may be marked “HIGHLY CONFIDENTIAL
ATTORNEYS’ EYES ONLY” by the Parties if it is confidential, proprietary, or
constitutes trade secrets. Such Source Code shall be subject to all of the protections
afforded to “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY”
information and may be disclosed only to the individuals to whom “HIGHLY
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CONFIDENTIAL -- ATTORNEYS’ EYES ONLY” information may be disclosed,
as set forth in Paragraph 7.3.
(b) Source Code shall not be considered “HIGHLY CONFIDENTIAL
ATTORNEYS’ EYES ONLY” if it is already in the possession of the Party to whom
it is produced or has already been disclosed to a Party.
(c) Source Code marked “HIGHLY CONFIDENTIAL ATTORNEYS’
EYES ONLY” shall be made available for inspection and shall not be produced,
except as provided for below. The Producing Party shall make this Source Code
available at the Greensboro, NC, office of Womble Bond Dickinson (US) LLP or (at
the option of the Receiving Party) at the Amsterdam, the Netherlands, office of
Kennedy van der Laan N.V. if the producer is represented by those firms. If the
producer is represented by Ellis & Winters LLP or Lexence N.V., the producer shall
make this Source Code available at least at Ellis & Winters LLP’s Greensboro, NC,
office or (at the option of the Receiving Party) at Lexence N.V.’s Amsterdam, the
Netherlands, office. Additionally, the Producing Party shall accommodate
reasonable requests by the Receiving Party to produce this Source Code for
inspection at a secure location convenient to the parties. Documents which are
designated as “HIGHLY CONFIDENTIAL ATTORNEYS’ EYES ONLY” because
they contain confidential information that substantively relates to a party’s Source
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Code, but that is not Source Code itself, shall be produced in the ordinary course
rather than being made available for inspection.
(d) Source Code marked “HIGHLY CONFIDENTIAL ATTORNEYS’
EYES ONLY” will be loaded on to a non-networked computer that is password
protected and maintained in a secure, locked area (the “Source Code Room”). Once
the Receiving Party notifies the Producing Party that it has begun active review of
this Source Code, the producer shall not access the source code computers until the
close of expert discovery, unless the producer (1) needs to add source code to the
review computers to supplement its production, or (2) believes in good faith that a
legitimate need for access has arisen. The producer will notify the recipient of the
need to access the computer and provide 72 hours’ notice of such intended access.
The Receiving Party may object, but shall not unreasonably withhold consent. To
facilitate the taking of notes during the review of Source Code, persons admitted into
the Source Code Room shall be entitled to take a personal laptop computer that is
not connected to any wired or wireless network; however, the use of any input/output
device (e.g., USB memory stick, CD, floppy disk, portable hard drive), camera, or
any camera enabled device (cell phones with cameras are permitted so long as the
camera is disabled) separate from the laptop computer is prohibited while accessing
the computer containing the Source Code, the intent of this provision being that no
reproduction or copying of the Source Code that can be taken from the Source Code
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Room shall be made in any way. All persons entering the Source Code Room must
agree to submit to reasonable security measures to ensure they are not carrying the
separate prohibited input/output devices specified in this provision before they will
be given access to the Source Code Room. The computer containing Source Code
will be made available for inspection from 8:30 a.m. to 5:00 p.m. on weekdays. The
parties shall work in good faith to accommodate reasonable requests for extended
inspection hours on terms to be agreed by the parties; however, Source Code marked
“HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” will not be made
available for inspection on weekends.
(e) The Receiving Party’s Outside Counsel of Record and/or Expert shall
be entitled to take written notes relating to the Source Code marked “HIGHLY
CONFIDENTIAL – ATTORNEYS’ EYES ONLY.” Terms used in this Source
Code may be copied into the notes, but the Receiving Party’s Outside Counsel of
Record and/or Expert may not copy complete instruction sets of the Source Code
marked “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” into the
notes. No copies of any portion of the Source Code may leave the Source Code
Room except as expressly provided herein. No other written or electronic record of
the Source Code is permitted except as provided herein. Wholesale copying of
Source Code is not permitted.
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(f) The Receiving Party may request paper copies of limited portions of
Source Code marked “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES
ONLY”, but in no case exceeding 30 contiguous pages or 200 pages total, that are
reasonably necessary for use in court filings, pleadings, expert reports, or other
papers, or for deposition or trial, but shall not request paper copies for the purposes
of reviewing the Source Code. The Producing Party shall provide printed Source
Code in a form that includes bates numbers and the label “CONFIDENTIAL” or
“HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” as appropriate.
(g) The Receiving Party shall maintain a record of any individual who has
inspected any portion of the Source Code marked “HIGHLY CONFIDENTIAL –
ATTORNEYS’ EYES ONLY” in electronic or paper form, including the name of
the individual and the date and time of inspection, and whether any paper copies of
portions of source code were provided. The Receiving Party shall maintain all paper
copies of any printed portions of the Source Code marked “HIGHLY
CONFIDENTIAL – ATTORNEYS’ EYES ONLY” in a secured, locked area. The
Receiving Party shall not create any electronic or other images of the paper copies
and shall not convert any of the information contained in the paper copies into any
electronic format. The Receiving Party shall only make additional paper copies if
such additional copies are (1) necessary for inclusion (as exhibit or excerpt) in court
filings, pleadings, or other papers (including a testifying expert’s expert report) or
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(2) necessary for use in deposition or (limited to file/path and/or function/module
names) in correspondence with Counsel for the Producing Party. Any paper copies
used during a deposition shall be retrieved by the Producing Party at the end of each
day and must not be given to or left with a court reporter or any other individual.
9. PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED
IN OTHER LITIGATION
If a Party is served with a subpoena or a court order issued in other litigation
that compels disclosure of any information or items designated in this action as
“CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES
ONLY,” that Party must:
(a) promptly notify in writing the Designating Party. Such notification
shall include a copy of the subpoena or court order;
(b) promptly notify in writing the Party who caused the subpoena or order
to issue in the other litigation that some or all of the material covered by the subpoena
or order is subject to this Protective Order. Such notification shall include a copy of
this Protective Order; and
(c) cooperate with respect to all reasonable procedures sought to be
pursued by the Designating Party whose Protected Material may be affected.
If the Designating Party timely seeks a protective order, the Party served with
the subpoena or court order shall not produce any information designated in this
action as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’
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EYES ONLY” before a determination by the court from which the subpoena or order
issued, unless the Party has obtained the Designating Party’s permission. The
Designating Party shall bear the burden and expense of seeking protection in that
court of its confidential material – and nothing in these provisions should be
construed as authorizing or encouraging a Receiving Party in this action to disobey
a lawful directive from another court.
The purpose of imposing these duties is to alert the interested parties to the
existence of this Protective Order and to afford the Designating Party in this case an
opportunity to attempt to protect its confidentiality interests in the court from which
the subpoena or order issued.
10. A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE
PRODUCED IN THIS LITIGATION
(a) The terms of this Protective Order are applicable to information
produced by a Non-Party in this action and designated as “CONFIDENTIAL” or
“HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY.” Such information
produced by Non-Parties in connection with this litigation is protected by the
remedies and relief provided by this Protective Order. Nothing in these provisions
should be construed as prohibiting a Non-Party from seeking additional protections.
(b) In the event that a Party is required, by a valid discovery request, to
produce a Non-Party’s confidential information in its possession, and the Party is
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subject to an agreement with the Non-Party not to produce the Non-Party’s
confidential information, then the Party shall:
(1) promptly notify in writing the Requesting Party and the Non-
Party that some or all of the information requested is subject to a confidentiality
agreement with a Non-Party;
(2) promptly provide the Non-Party with a copy of the Protective
Order in this litigation, the relevant discovery request(s), and a reasonably specific
description of the information requested; and
(3) make the information requested available for inspection by the
Non-Party.
If the Non-Party fails to object or seek a protective order from this Court
within 14 days of receiving the notice and accompanying information, the Receiving
Party may produce the Non-Party’s confidential information responsive to the
discovery request. If the Non-Party timely seeks a protective order, the Receiving
Party shall not produce any information in its possession or control that is subject to
the confidentiality agreement with the Non-Party before a determination by the
Court.
The purpose of this provision is to alert the interested Parties to the existence
of confidentiality rights of a Non-Party and to afford the Non-Party an opportunity
to protect its confidentiality interests in this court. Absent a court order to the
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26
contrary, the Non-Party shall bear the burden and expense of seeking protection in
this Court of its Protected Material.
11. UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL.
If a Receiving Party or such Party’s Counsel learns that, by inadvertence or
otherwise, Protected Material has been disclosed to any person or in any
circumstance not authorized under this Protective Order, the Receiving Party must
immediately (a) notify in writing the Designating Party of the unauthorized
disclosures, (b) use its best efforts to retrieve all unauthorized copies of the
Protected Material, (c) inform the person or persons to whom unauthorized
disclosures were made of all the terms of this Protective Order, and (d) request
such person or persons to execute the “Acknowledgment and Agreement to Be
Bound” that is attached hereto as Exhibit A. Counsel of Record in this case are
responsible for the compliance with the terms of this Order by all persons who
come into possession or knowledge of Protected Material in any way incident to or
stemming from disclosure to such Counsel’s client as the Receiving Party
hereunder.
12. INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE
PROTECTED MATERIAL.
When a Producing Party gives notice to Receiving Parties that certain
inadvertently produced material is subject to a claim of privilege or other protection,
the obligations of the Receiving Parties are those set forth in Federal Rule of Civil
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27
Procedure 26(b)(5)(B). This provision is not intended to modify whatever procedure
may be established in an e-discovery order that provides for production without prior
privilege review. Pursuant to Federal Rule of Evidence 502(d) and (e), insofar as the
Parties reach an agreement on the effect of disclosure of a communication or
information covered by the attorney-client privilege or work product protection, the
Parties may incorporate their agreement in a stipulated protective order submitted to
the Court.
13. MISCELLANEOUS
13.1 Right to Further Relief. Nothing in this Protective Order abridges the
right of any Party or person to seek its modification by the Court in the future.
13.2 Right to Assert Other Objections. No Party waives any right it
otherwise would have to object to disclosing or producing any information or item
on any ground not addressed in this Protective Order. Similarly, no Party waives any
right to object on any ground to use in evidence of any of the material covered by
this Protective Order.
13.3 Export Control. Disclosure of Protected Material shall be subject to all
applicable laws and regulations relating to the export of technical data contained in
such Protected Material, including the release of such technical data to foreign
persons or nationals in the United States or elsewhere. The Producing Party shall be
responsible for identifying any such controlled technical data, and the Receiving
Party shall take measures necessary to ensure compliance.
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13.4 Filing Protected Material. This Protective Order does not, by itself,
authorize the filing of any document under seal. Any motion, memorandum,
document or other paper filed with the Court is presumptively a public document.
Any party wishing to file any Protected Material in connection with a motion, brief,
or other submission to the Court must comply with Local Rule 6.1. If necessary, the
Parties can seek temporary relief from the court permitting a document to be filed
under seal subject to a final determination as to whether the document may remain
under seal. Should the Court allow Protected Material to be filed with the Court
under seal, the Protected Material shall remain under seal until further order of the
Court. The filing party shall place the legend “FILED UNDER SEAL PURSUANT
TO PROTECTIVE ORDER” above the caption and conspicuously on each page of
the filing. Exhibits to a filing shall conform to the labeling requirements set forth in
this Protective Order. The ultimate disposition of protected materials subject to a
final order of the Court on the completion of the litigation.
13.5 This Protective Order has no effect upon and shall not apply to a Party’s
use or disclosure of its own confidential information for any purpose; provided that
this clause is not intended to override or modify any limitations on Defendant’s use
of the Source Code as set forth in the Court’s injunction (Doc #39).
13.6 The Parties shall make every reasonable effort to act in good faith to
limit and curtail the volume of information, documents, things, testimony or other
materials designated by them as “CONFIDENTIAL” or “HIGHLY
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29
CONFIDENTIAL - ATTORNEY’S EYES ONLY” under this Protective Order;
shall use their best efforts to act in good faith to separate out and segregate
documents, things and other materials containing confidential information from
those that do not contain confidential information; shall use their best efforts to act
in good faith to limit the number of persons to whom confidential information is to
be disclosed; and shall confer with each other in good faith for the purpose of
attempting to limit and curtail the volume of information and materials to be so
designated, consistent with the provisions above. The burden of proof regarding the
level of confidentiality of any information shall at all times be on the Designating
Party.
14. FINAL DISPOSITION
(a) Order Remains in Effect. All provisions of this Protective Order
restricting the use of Protected Material shall continue to be binding after Final
Disposition of this matter unless otherwise agreed or ordered.
(b) Return or Destruction of Protected Material. Within thirty (30) days
after Final Disposition, as defined in paragraph 4, all Protected Material under this
Protective Order shall be returned to the producing Party unless: (1) the document
has been entered as evidence or filed (unless introduced or filed under seal); (2) the
Parties stipulate to destruction in lieu of return; or (3) as to documents containing
the notations, summations, or other mental impressions of the Receiving Party, that
Party elects destruction. As used in this subdivision, “all Protected Material”
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30
includes all copies, abstracts, compilations, summaries, and any other format
reproducing or capturing any of the Protected Material. To “destroy” electronically
stored information means to delete from all of the Receiving Party’s databases,
applications, and file systems so that the information is not accessible without the
use of specialized tools or techniques typically used by a digital forensic expert.
Notwithstanding the above requirements to return or destroy all Protected
Material, Counsel may retain attorney work product including an index which refers
or relates to Protected Material so long as that work product does not duplicate
verbatim substantial portions of the text of Protected Material. This work product
continues to be subject to the terms of this Protective Order. An attorney may use
his or her work product in a subsequent litigation provided that its use does not
disclose the Protected Material.
IT IS SO ORDERED.
Signed: June 12, 2023
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EXHIBIT A
ACKNOWLEDGMENT 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 Protective Order that was
issued by the United States District Court for the Western District of North Carolina,
Asheville Division on June 12, 2023 in the case of dmarcian, Inc. v. dmarc Advisor
BV (f/k/a dmarcian Europe BV), Case No.: 1:21-cv-00067-MR (“This Litigation”).
I agree to comply with and to be bound by all the terms of this Protective Order,
and I understand and acknowledge that failure to so comply could expose me to
sanctions and punishment in the nature of contempt of court. I solemnly promise
that I will not disclose in any manner any information or item that is subject to this
Protective Order to any person or entity except in strict compliance with the
provisions of this Protective Order.
I further agree to voluntarily submit to the jurisdiction and venue of the United
States District Court for the Western District of North Carolina, Asheville Division
for the purpose of enforcing the terms of this Protective Order, even if such
enforcement proceedings occur after termination of this action, and I understand that
other Parties in This Litigation are relying on my express agreement to be bound by
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the Protective Order and the terms of this acknowledgment to allow disclosure to me
of information pursuant to and covered by the Protective Order.
I hereby appoint [print or type full name], of
[print or type full address and telephone number] as
my North Carolina agent for service of process in connection with this action or any
proceedings related to enforcement of this Protective Order.
Date:
City and State where sworn and signed:
Printed name:
Signature:
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