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Monahan Products LLC v. Sam's East, Inc.

United States District Court, D. Massachusetts

November 20, 2018

MONAHAN PRODUCTS LLC d/b/a UPPABABY, Plaintiff,
v.
SAM'S EAST, INC. and SAM'S WEST, INC., Defendants.

          Craig R. Smith (BBO # 636723) Nathan T. Harris (BBO # 675533) LANDO & ANASTASI, LLP Counsel for Plaintiff

          Mark Schonfeld (BBO #446980)Andrea L. Martin (BBO #666117) BURNS & LEVINSON LLP Counsel for Defendants

          AGREED CONFIDENTIALITY ORDER

          F. Dennis Saylor IV United States District Judge

         The parties have agreed to and have submitted to the Court, and for good cause shown the Court hereby enters, the following Confidentiality Order:

         1. Scope.

         This Order shall govern the disclosure of materials designated as Confidential Material by any party or non-party in the above-captioned matter (the “Litigation”). “Confidential Material, ” as used in this Order, shall refer to any document or item designated as Confidential or Highly Confidential - Attorneys' Eyes Only, including but not limited to, documents or items produced during discovery, all copies thereof, the information contained in such material, and any documents or testimony that discuss or incorporate such material, regardless of the medium or manner in which they are generated, stored, or maintained.

         2. Confidential Material.

         “Confidential Material”, as used in this Order, consists of the following materials and categories of materials:

a. “Confidential” Information is any privileged, confidential, or nonpublic information, including, but not limited to, trade secrets, research, design, development, financial, technical, marketing, planning, personal, or commercial information, as such terms are used in the Federal Rules of Civil Procedure (“FRCP”) and any applicable case law interpreting FRCP 26; contracts; proprietary information; vendor agreements; personnel files; claim/litigation information; and non-public policies and procedures.
b. “Highly Confidential - Attorneys' Eyes Only” Information is information the 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, including, but not limited to, materials containing corporate trade secrets; nonpublic research and development data; marketing, financial, and sales information; strategic plans; pricing formulas; inventory management programs; information obtained from a non-party pursuant to a current nondisclosure agreement; and confidential business information not generally known to the general public. Customer-related Protected Data are considered Highly Confidential - Attorneys' Eyes Only.
c. “Protected Data” shall refer to any information that a party believes in good faith to be subject to federal, state or foreign data protection laws or other privacy obligations. Examples of such data protection laws include but are not limited to The Gramm-Leach-Bliley Act, 15 U.S.C. § 6801 et seq. (financial information); and, The Health Insurance Portability and Accountability Act and the regulations thereunder, 45 CFR Part 160 and Subparts A and E of Part 164 (medical information). Certain Protected Data may compel alternative or additional protections beyond those afforded Highly Confidential - Attorneys' Eyes Only Material, in which event the parties shall meet and confer in good faith, and, if unsuccessful, shall move the Court for appropriate relief.

         3. Additional Designation.

         If any party seeks to designate additional documents or categories of documents produced by any other party as Confidential Material, it will be the burden of the party seeking protected status to move for a court order designating the materials as confidential after the parties confer.

         4. Protection by the Court.

         The parties agree that Confidential Material should be given the protection of an order of this Court to prevent damage through disclosure to persons other than those persons involved in the prosecution or defense of this litigation.

         5. Designation.

         To designate information as confidential, the producing party shall mark Confidential Material with the legend “CONFIDENTIAL - SUBJECT TO PROTECTIVE ORDER” or “HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY - SUBJECT TO PROTECTIVE ORDER” and shall submit confidential discovery, such as answers to interrogatories or answers to requests for admissions, in a separate document stamped with the appropriate legend. The Receiving Party may make copies of Confidential Material and such copies shall become subject to the same protections as the Confidential Material from which those copies were made.

a. Information on a disk or other electronic format may be designated confidential by marking the storage medium itself with the legend “CONFIDENTIAL - SUBJECT TO CONFIDENTIALITY ORDER” or “HIGHLY CONFIDENTIAL - ATTORNEYS' ATTORNEYS' EYES ONLY - SUBJECT TO CONFIDENTIALITY ORDER.” The Receiving Party shall mark any hard-copy printouts and the storage medium of any permissible copies of such electronic material with the corresponding legend contained on the original and such copies shall become subject to the same protections, as the Confidential Material from which those copies were made.
b. Information disclosed at any deposition of a party taken in this action may be designated by the party as Confidential by indicating on the record at the deposition that the information is Confidential or Highly Confidential - Attorneys' Eyes Only and subject to the provisions of this Order. Alternatively, the party may designate information disclosed at the deposition by notifying the court reporter and other parties in writing, within 15 business days of receipt of the final transcript, of the specific pages and lines of the transcript which are designated as Confidential or Highly Confidential - Attorneys' Eyes Only. Upon such designation, the court reporter and each party shall affix the “CONFIDENTIAL - SUBJECT TO CONFIDENTIALITY ORDER” or “HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY - SUBJECT TO CONFIDENTIALITY ORDER” legend to the designated pages and segregate them as appropriate. The parties may agree to a reasonable extension of the 15 business day period for designation. Designations of transcripts will apply to audio, video, or other recordings of the testimony. During such 15 business day period, the entire transcript shall be treated as Highly Confidential - Attorneys' Eyes Only.
c. Copies of material described in paragraph 2, above, or incorporated into paragraph 2 by court order, and which were produced without the designation of “CONFIDENTIAL - SUBJECT TO CONFIDENTIALITY ORDER” or “HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY - SUBJECT TO CONFIDENTIALITY ORDER” may be so designated later if the Producing Party failed to make such designation at the time of production through inadvertence or error. If such information has been disclosed to persons not qualified pursuant to paragraph 7, below, the party who disclosed such information shall take reasonable efforts to retrieve previously disclosed Confidential Material and advise such persons that the material is Confidential.

         6. Inadvertent Failure to Designate.

         Pursuant to Federal Rule of Evidence (“FRE”) 502(d), inadvertent disclosure (including production) of information that a party or non-party later claims should not have been disclosed because of a privilege, including, but not limited to, the attorney-client privilege or work product doctrine (“Privileged Information”), shall not constitute a waiver of, or estoppel to, any claim of attorney-client privilege, attorney work product, or other ground for withholding production to which the Producing Party would be entitled in the Litigation or any other federal or state proceeding. Pursuant to FRCP 26(b)(5)(B) and FRE 502(e), the Receiving Party hereby agrees to return, sequester, or destroy any Privileged Information disclosed or produced by the Producing Party upon request. If the Receiving Party reasonably believes that Privileged Information has been inadvertently disclosed or produced to it, it shall promptly notify the Producing Party and sequester such information until instructions as to disposition are received. The failure of any party to provide notice or instructions under this Paragraph shall not constitute a waiver of, or estoppel to, any claim of attorney-client privilege, attorney work product, or other ground for withholding production as to which the Producing Party would be entitled in the ...


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