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HB Fest, LLC v. Commerce and Industry Insurance Co.

United States District Court, D. Massachusetts

April 7, 2017

HB FEST, LLC, Plaintiff,
v.
COMMERCE AND INSURANCE INDUSTRY INSURANCE COMPANY and HCC SPECIALTY UNDERWRITERS, INC., Defendants.

          HB Fest, LLC, Jonathan M. Feigenbaum, Michael Patrick Doyle Trial Lawyers LLP

          COMMERCE AND INDUSTRY INSURANCE COMPANY and HCC SPECIALTY UNDERWRITERS, INC.Kristen M. Whittle, Barton Gilman LLP

          STIPULATED PROTECTIVE ORDER

         The parties to this matter, plaintiff HB FEST LLC ("Plaintiff), and defendants COMMERCE AND INDUSTRY INSURANCE COMPANY, and HCC SPECIALTY UNDERWRITERS, INC. ("Defendants"), have stipulated herein that they will produce protected business information and financial and competitive documents and information in this case and seek a protective order governingthe use of such information. Accordingly, IT IS HEREBY ORDERED BY THE COURT:

         This Order does not confer blanket protections on all disclosures or responses to discover)'. 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 described in Rule 26(c)of the Federal Rules of Civil Procedure. To expedite the flow of discovery material, facilitate the prompt resolution of dispute over confidentiality, pursuant to the Court's authority under Rule 26(c) of the Federal Rules of Civil Procedure the parties are agreeing to the terms set-out below.

         This Stipulated Protective Order ("Order") governs the use of all produced documents, responses to interrogatories and requests for admissions, deposition transcripts, and any other information, documents, objects or things which have been or will be produced or received by any party during proceedings in this action, as well as any and all copies, abstracts, digests, summaries and by- products thereof.

         1. The above-captioned matter will involve the production of documents by the parties and by third parties. Some of the documents and other discovery materials of each of the parties and of third parties are confidential or privileged within the meaning of relevant state and federal laws.

         2. Pursuant to this Order, if in the course of this litigation, any party or third party undertakes to produce or is caused to disclose what they in good faith believe embodies confidential information, the procedures set forth herein shall be employed, and disclosure shall be subject to this Order.

         3. For purposes of this Order, this Order, the term "Confidential Information" shall mean any information, or the contents of any document, in any form or medium, electronic or otherwise, which the designating party contends and in good faith believes is a trade secret or other confidential or proprietary research, development, customer or commercial information, financial information, or information subject to a legally protected right of privacy and which counsel for the designating party designates as "CONFIDENTIAL INFORMATION" upon a good faith belief that there is cause therefore under applicable law. A party shall make the designation of "Confidential Information" only as to material which that party reasonably and in good faith believes is confidential and entided to protection under Rule 26(c) of the Federal Rules of Civil Procedure. Each Party that designates information or items for protection under this Order must take care to limit any such designation to specific material that qualifies under the appropriate standards. To the extent that material, documents, items, or communications contain both confidential and non-confidential information, 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 Order. Mass, indiscriminate, or routinized designations are prohibited. Designations 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. Confidential information shall not consist of information which at any time has been: (i) produced, disclosed or made available to the public or otherwise available for public access; and/or (ii) disclosed in connection with any government filing and which documents or information could not reasonably be assumed to be or have been intended to be kept confidential; provided, however, that confidential compilations of information shall not be deemed to have been so produced or disclosed merely because some or all of the component data have been so produced or disclosed other than in such compilation.

         4. Counsel for any party or third party to this litigation shall designate documents or information as "Confidential" prior to actual production of the document or information (but may do so after inspection of the same) by placing the notation "CONFIDENTIAL" on every page of each document so designated or, in the case of confidential information disclosed in anon-paper medium, (e.g., video tape, audio tape, computer disks, etc.), the notation "CONFIDENTIAL" shall be affixed to the outside of the medium or its container. Inadvertent failure to designate a document as 'CONFIDENTIAL" may be corrected by supplemental written notice given as soon as practicable. A party may also redact a section or sections of a document designated "CONFIDENTIAL" if the party has a good faith belief that such information is irrelevant to the litigation, provided that such redaction appears on the document in such a manner as to be clearly visible to the receiving party.

         5. Any Party may challenge a designation of confidentiality within fifteen (15) days of such designation. The challenging party shall follow Rule 7.1 of the local rules of the U.S. District Court for the District of Massachusetts in advance of filing a motion challenging the designation. Frivolous challenges, and those made for an improper purpose (e.g., to harass or impose unnecessary expenses and burdens on other parties) may expose the Challenging Party to sanctions. Unless the Designating Party has waived the confidentiality designation by failing to file a motion to retain confidentiality as described above, all parties shall continue to afford the material in question the level of protection to which it is entitled under die Producing Party's designation until the court rules on the challenge.

         Counsel for any party shall have the right to exclude from oral depositions, other than a person who qualifies under ¶9, the deponent and the deponent's counsel, any person who is not authorized by this Order to receive documents or information designated as "Confidential." Such right of exclusion shall be applicable only during periods of deposition examination or deposition testimony directed to or comprising confidential information. Until expiration of the 15-day period, the entire deposition transcript, and all exhibits to it, will be treated as confidential under the provisions of this Order. If no party timely designates testimony or exhibits from a deposition as being "Confidential, " none of the deposition testimony or exhibits will be treated as confidential. If a timely "confidential" designation is made, the confidential portions and exhibits shall be sealed separately from the remaining portions of the deposition, subject to the right of any party to challenge such designation. When depositions or portions of depositions are designated confidential, counsel shall use such "Confidential Information" only as provided for in this Order. All persons present at the taking of such depositions when such "Confidential Information" is involved are enjoined from disclosing to any other person the testimony of the deponent regarding such material, except as permitted herein.

         6. Documents or information designated as confidential, copies thereof and the information contained therein may be disclosed only by counsel of record and only to the following persons:

a. Plaintiffs in this litigation;
b. Defendants in this ...

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