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Crane v. Sexy Hair Concepts, LLC

United States District Court, D. Massachusetts

February 16, 2018

MOLLY CRANE, individually and on behalf of all other persons similarly situated, Plaintiff,
v.
SEXY HAIR CONCEPTS, LLC, and ULTA SALON COSMETICS & FRAGRANCE, INC., Defendants.

          Patrick J. Vallely (BBO #663866), Shapiro Haber & Urmy LLP Attorney for Plaintiff.

          David G. Thomas (BBO #640854), Michael E. Pastore (BBO #669692), Alyssa C. Scruggs (BBO #688436) GREENBERG TRAURIG, LLP Attorneys for Defendants

          PROTECTIVE AND FED. R. EVID. 502 ORDER

          F. DENNIS SAYLOR, IV UNITED STATES DISTRICT COURT JUDGE

         Pursuant to Federal Rule of Civil Procedure 26(c) and Federal Rule of Evidence 502, the undersigned Parties respectfully request the Court to endorse this Protective Order as an Order of the Court ("Order"). As grounds for this request, the Parties state that the entry of this Order is (1) necessary to protect the Parties' confidential information that may be produced or otherwise disclosed during this litigation; (2) necessary to protect highly confidential business information from disclosure between the two defendants, who are a manufacturer and retailer and are in a commercial relationship with each other; and (3) necessary to protect attorney-client privileged information and attorney work product to the extent it is inadvertently produced or otherwise disclosed during this litigation. This Order is meant to apply to the Parties and any third party in this litigation and in any other state or federal proceeding as set forth in Federal Rule of Evidence 502(d) and (e).

         Definitions

         1. "Confidential Information" means all information designated as being confidential (as set forth below) that is produced, provided, or made available in the course of formal or informal discovery or other proceedings in this action, including, but not limited to: (a) documents, tangible things, and electronically-stored information ("Documents"); (b) responses to interrogatories, responses to requests to admit, or other written responses to discovery; (c) answers, information, and testimony provided during the course of depositions, hearings, or at trial, including the transcripts of such depositions, hearings, and trial, or (d) information provided to this Court through motion practice or otherwise.

         2. "Attorneys' Eyes Only" means all Confidential Information designated as being for attorneys' eyes only (as set forth below).

         3. "Permitted Expert" means an expert or consultant who is retained or used by a Party in this action or the Party's counsel to assist counsel in connection with counsel's work in this action or to provide testimony in this action.

         Designating Confidential Information

         3. Criteria for Designation. A Party may designate information as Confidential Information if the Party making such designation reasonably believes that the information embodies or contains: (a) competitive or confidential business information; (b) non-public financial information; (c) non-public product information; (d) non-public personal information; (e) information that is otherwise required to be maintained as confidential pursuant to an agreement or court order; or (f) other information the disclosure of which would, in the good faith judgment of the Party designating the material as confidential, cause injury to the disclosing person's or entity's competitive position. A Party may designate Confidential Information as Attorneys' Eyes Only if the Party making such designation reasonably believes that the information embodies or contains extremely sensitive trade secrets or non-public confidential and/or proprietary business, commercial or financial information and which only should be shared between counsel.

         4. Method for Designation. A Party may designate information as Confidential Information and/or Attorneys' Eyes Only by the following means:

(a). Documents Produced By A Party Or A Non-Party: A Party shall mark the first page of any Document containing Confidential Information with the legend "CONFIDENTIAL - SUBJECT TO PROTECTIVE ORDER" or "ATTORNEYS' EYES ONLY - SUBJECT TO PROTECTIVE ORDER" and any page containing such information with the same legend. Disks or drives produced with electronically stored information shall be so labeled as well. A producing Party may designate Documents as such prior to production. A receiving Party shall treat all Documents as Attorneys' Eyes Only for 7 calendar days after they are served on the receiving Party. Thereafter, such Documents will not be deemed Confidential or Attorneys' Eyes Only unless a receiving Party designates such Documents as such within that same 7 calendar day period. Such retroactive designation shall be made in writing and it shall be the obligation of the designating Party to provide the other Party with a revised copy of the information being retroactively designated containing the proper confidentiality designations. Upon receipt, the non-designating Party shall destroy all undesignated copies of such Documents (except for any original versions maintained by that Party prior to production, provided, however, that the non-designating Party shall only use the retroactively designated copies for the purposes of this litigation).
(b). Responses To Interrogatories. Responses To Requests To Admit Or Other Written Responses To Discovery: A Party shall mark the first page of any written response to discovery containing Confidential Information with the legend "CONFIDENTIAL - SUBJECT TO PROTECTIVE ORDER" or "ATTORNEYS' EYES ONLY - SUBJECT TO PROTECTIVE ORDER" and any page containing such information with the same legend. Also, a responding Party shall treat all written responses to discovery as Attorneys' Eyes Only for 7 calendar days after they are served on the receiving Party. Thereafter, such Documents will not be deemed Confidential or Attorneys' Eyes Only unless a receiving Party designates such Documents as such within that same 7 calendar day period. Such retroactive designation shall be made by serving written notice on the responding Party identifying the specific responses for which confidentiality is claimed. The responding Party shall take necessary steps to ensure that its versions of the responses are revised to reflect the new designation.
(c). Answers. Information. And Testimony Provided In The Course Of Depositions. Hearings. Or Trial. Including The Transcripts Of Such Proceedings:
(i). All testimony and exhibits shall be treated as Attorneys' Eyes Only until 7 calendar days after the final transcript is received from the court reporter. Thereafter, such testimony and exhibits will not be deemed Confidential or Attorneys' Eyes Only unless a receiving Party designates such testimony and exhibits as such within that same 7 calendar day period. Such retroactive designation shall be made by serving written notice upon all other Parties and the court reporter identifying the specific portions of the transcript, by page and line reference, and exhibits for which confidentiality is claimed. After any such designation, counsel for all the Parties shall be responsible for marking the designated material in all previously unmarked copies of transcripts and exhibits as containing Confidential Information or as Attorneys' Eyes Only as set forth above.
(ii). During the taking of testimony (or during oral argument), only persons who are permitted recipients of Confidential Information will be permitted to be in the room while such testimony is being taken and exhibit is being proffered.
(iii). Any court reporter or videographer who transcribes or videotapes testimony in this action shall be required to agree, before transcribing or videotaping any such testimony, that all information designated Confidential Information or Attorneys' Eyes Only shall not be disclosed except as provided in this Order, and that copies of any transcript, reporter's notes, videotapes, or any other transcription records of any such testimony will be retained in absolute confidence and safekeeping by such reporter or videographer or shall be delivered to an attorney of record or filed under seal with the Court. The Party taking the testimony shall be responsible for notifying any court reporter or videographer of these obligations.

         5. If a receiving Party, at any time, wishes to have the designation of any particular Confidential Information or any Attorneys' Eyes Only designation removed or changed, that Party shall first request, in writing, that the designating Party change its designation and the receiving Party shall provide the reasons therefor in detail. Thereafter, the challenging Party and the designating Party shall make good-faith efforts to resolve the dispute. If the designating Party refuses to agree to remove or change the designation, then the challenging Party may file a motion with the Court for an order removing or changing the designation; provided, however, that the designating Party shall have the burden of proving that such particular Confidential Information is properly designated as Confidential Information and such Attorneys' Eyes Only information is properly designated as Attorneys' Eyes Only. At all times during the process of challenging a designation, the Parties shall treat the Confidential Information and Attorneys' Eyes Only information as originally designated until the Parties agree upon or the motion is decided by the Court and written notice of such decision is served on the Parties.

         Use And Disclosure Of Confidential Information

         6. The Parties shall use Confidential Information only for the purpose of this litigation.

         7. Any Party filing with the Court any motion, brief, exhibit, or other document in this action that incorporates, contains, or discloses the contents of Confidential Information shall follow Local Rule 7.2 with respect to seeking leave to impound the Confidential Information prior to filing any such information. Any Party intending to file Confidential Information shall file a motion to impound no later than 5 business days prior to filing the Confidential Information, except if the circumstances underlying the motion would not allow for such advance filing. In the event the Court does not rule upon a motion to impound prior to any deadline for any document to be filed with the Court, that deadline will be extended automatically to 3 business days following the Court's ruling on the motion to impound. In the event a Party intends to file Confidential Information designated as such by any Party other than the filing Party, the filing Party has no obligation to vouch for the propriety of the designation of such material as Confidential Information or to vouch for the propriety of impounding any such material. The Party that designated such material as Confidential Information may file additional papers in support of any motion to impound if it so chooses. In the event the Court grants a motion to impound, any motion, brief, or other document filed under seal that contains any Confidential Information shall contain the designation "CONFIDENTIAL - SUBJECT TO PROTECTIVE ORDER" on the first page of the document, as well as on every other page on which Confidential Information appears. Notwithstanding the requirements set forth in this order and the ...


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