The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
WESTERN DIVISION
CIVIL ACTION NO. 5:19-cv-00005-D
PROGRESS SOLAR SOLUTIONS, LLC )
and DANIEL L. ROBERTSON )
)
Plaintiffs, )
)
V. )
)
MICHAEL D. LONG; SOLAR MOD )
SYSTEMS, INC.; and MIKEL BILLS, )
)
Defendants. )
we)
CONSENT PROTECTIVE ORDER AND CONFIDENTIALITY AGREEMENT
/(AS MODIFIED)
The Parties having agreed to the following, and for good cause shown, IT IS HEREBY
STIPULATED AND AGREED by the Parties through their counsel, AND ORDERED by the
Court, that in order to prevent unnecessary disclosure or dissemination of confidential or
proprietary information (“Confidential Information”), any designated exchange or production of
confidential documents or information designated as Confidential Information shall be used,
shown, or disclosed only as follows:
1. PURPOSES AND LIMITATIONS
Disclosure and discovery activity in this action may involve production of confidential,
proprietary, or private personal identifying information (including electronically stored
information or “ESI’) and documentation such as, by way of illustration but not limitation:
Social Security or taxpayer-identification numbers, dates of birth, names of minor children,
financial account numbers, home addresses, sensitive information involving personal financial,
medical, matrimonial, or family matters, employment records of individuals, proprietary business
information, trade secrets, and other confidential research, development, or commercial
information, for which special protection from public disclosure and from use for any purpose
other than prosecuting this litigation may be warranted. The parties acknowledge that this Order
does not confer blanket protections on all disclosures or responses to discovery and that the
protection it affords extends only to the limited information or items that are entitled to
protection pursuant to Fed. R. Civ. P. 26. Nothing in this Order shall preclude any person or
entity from disclosing or using, in any manner or for any purpose, any information or document
if: (a) that information or document is lawfully obtained without confidentiality restrictions from
a third party, or (b) that information or documentation to the extent it belongs to, or is the
property of, a party to this matter (though such use for purposes outside of this litigation may
cause that information and data to lose its protected or confidential status).
2. CONFIDENTIAL INFORMATION
“Confidential Information” shall mean and include all information subject to protection
under Fed. R. Civ. P. 26, as well as the following: Social Security or taxpayer-identification
numbers; dates of birth; names of minor children; financial account numbers; where appropriate,
home addresses; sensitive or protected information involving personal financial, medical,
matrimonial, or family matters; employment records of individuals whether parties or non-
parties; proprietary information, trade secrets and other confidential research, development, or
commercial information (regardless of how generated, stored or maintained), as well as any other
information defined herein as “Protected Material”. As used herein, proprietary information
shall include information which concerns or relates to the trade secrets, processes, operations,
style of works, or apparatus, or to the production, sales, shipments, purchases, transfers,
identification of customers, inventories, credit approval or scoring, or amount or source of any
income, profits, losses, or expenditures of any person, firm, partnership, corporation, or other
organization, or other information of commercial value, the disclosure of which could cause
substantial harm to the competitive position of the person, firm, partnership, corporation, or other
organization from which the information was obtained. This Protective Order shall also
specifically but without limitation govern: (a) Confidential Information subpoenaed from non-
parties; and/or (b) Confidential Information of a non-party to the extent already in the possession
of a party, and produced by that party to another. Parties and non-parties may designate any
Confidential Information supplied in any form, or any portion thereof, as Protected Material
(defined below) for purposes of these proceedings. Such designation shall constitute a
representation to the Court that counsel for the designating party or person believes in good faith
that the information: (a) constitutes Confidential Information, and (b) there is good cause for the
Confidential Information to be protected from public disclosure. The parties and non-parties
shall make a good faith effort to designate information so as to provide the greatest level of
disclosure possibley but still preserve confidentiality as appropriate.
3. DEFINITIONS
3.1. Party: any party to this action, including all of its or his officers, directors,
consultants, retained experts, and outside counsel (and their support staff).
3.2. Non-party: any individual, corporation, association, or other natural person or
entity other than a party.
3.3. Disclosure or Discovery Material: all items or information, regardless of the
medium or manner generated, stored, or maintained (including, among other things, testimony,
transcripts, or tangible things) that are produced or generated in disclosures or responses to
discovery in this matter.
3.4. Receiving Party: a Party that receives Disclosure or Discovery Material from a
Producing Party.
3.5. Producing Party: a Party or Non-party that produces Disclosure or Discovery
Material in this action.
3.6. Designating Party: a Party or Non-party that designates information or items that
it produces in disclosures or in responses to discovery as Protected Material. The Party or Non-
party designating information or items as Protected Material bears the burden of establishing
good cause for the assertion of confidentiality of all such information or items.
3.7. Protected Material: any Disclosure or Discovery Material that is designated by a
Party or Non-party as “CONFIDENTIAL” hereunder, unless the Receiving Party challenges the
confidentiality designation and (a) the Court decides such material is not entitled to protection as
confidential; (b) the Designating Party fails to apply to the Court for an order designating the
material “CONFIDENTIAL” within the time period specified below; or (c) the Designating
Party withdraws its confidentiality designation in writing. If a Producing Party believes in good
faith and after careful consideration that, despite the other provisions of this Protective Order,
there is a substantial risk of identifiable harm if particular financial or accounting documents
(which also satisfy the criteria described below) are all disclosed to all other Parties or Non-
parties to this action, even if those documents are marked as “CONFIDENTIAL,” then the
Producing Party may designate those particular financial or accounting documents as
“CONFIDENTIAL—ATTORNEYS’ EYES ONLY.” A party may designate any document as
“CONFIDENTIAL—ATTORNEYS’ EYES ONLY” only if the document contains especially
sensitive financial, economic, or accounting data or information that meets the criteria laid out in
the foregoing sentence.
3.8. | Counsel: attorneys who are not employees of a Party but who are retained to
represent or advise a Party in this action, as well as Counsel’s support staff.
3.9. Expert: a person with specialized knowledge or experience in a matter pertinent to
the litigation who has been retained by a Party or a Party’s counsel to serve as an expert witness
or as a consultant in this action and who is not: (a) a past or a current employee of a Party; (b) a
past or a current employee of a competitor of a Party; or (c) at the time of retention, anticipated
to become an employee of a Party or a competitor of a Party. This definition includes a
professional jury or trial consultants retained in connection with this litigation.
3.10. Professional Vendors: persons or entities that provide litigation support services
(e.g., photocopying; videotaping; translating; preparing exhibits or demonstrations; organizing,
storing, retrieving data in any form or medium; efc.) and their employees and subcontractors.
3.11. 2017 Case: the proceedings in case number 5:17-cv-0152-D, captioned Progress
Solar Solutions, LLC vy. Fire Protection, Inc. et al., also filed in this court.
4. SCOPE
Subject to the provisions of section 6.2 and its subsections below, and the Court’s role as
the ultimate arbiter of the protections afforded to in-court proceedings, the protections conferred
by this Stipulation and Order cover not only Protected Material (as defined above), but also
testimony, conversations, or presentations by parties or counsel to, or in, Court or in other
settings that reveal Protected Material.
5. DURATION AND COURT JURISDICTION
Even after the termination of this litigation, the confidentiality obligations imposed by
this Order shall remain in effect until a Designating Party agrees otherwise in writing or a Court
order otherwise directs. In addition, and subject to any further orders of the Court, the Court
shall have and retain jurisdiction over the parties, the non-parties who have signed and filed an
Acknowledgement, their respective attorneys, and all persons to whom the Protective Order has
been disclosed for the purpose of enforcing the terms of this Protective Order or redressing any
violation thereof.
6. DESIGNATING PROTECTED MATERIAL
6.1. Exercise of Restraint and Care in Designating Material for Protection. Each Party
or Non-party that designates information or items for protection under this Order must use good
faith efforts to limit any such designation to specific material that qualifies under the appropriate
standards. A Designating Party must use good faith efforts to 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 routine designations are strictly prohibited.
If it comes to a Party’s or a Non-party’s attention that information or items that it
designated for protection do not, or no longer, qualify for protection, that Party or Non-party
must promptly notify all other parties that it is withdrawing the mistaken designation.
All documents, transcripts, or other materials subject to this Order, and all information
derived therefrom (including, but not limited to, all testimony—by deposition or otherwise—that
refers, reflects or otherwise discusses any information properly designated Confidential
hereunder), shall not be used, directly or indirectly, by any person for any business, commercial
or competitive purposes or for any purpose whatsoever other than solely for the preparation and
trial of this action in accordance with the provisions of this Order.
6.2. Manner and Timing of Designations. Except as otherwise provided in this Order
(see, e.g., the second paragraph of section 6.2(a), below), or as otherwise stipulated or ordered,
material that qualifies for protection under this Order must be clearly so designated before the
material is disclosed or produced.
Designation in conformity with this Order requires:
a. For information in documentary form (apart from transcripts of depositions or
other pretrial or trial proceedings), the Producing Party must affix the legend
“CONFIDENTIAL” or, where warranted, “CONFIDENTIAL—ATTORNEYS’ EYES ONLY”
at the bottom of each page that contains protected material. If only a portion or portions of the
material on a page qualifies for protection, the Producing Party also must clearly identify the
protected portion(s) (e.g., by making appropriate markings in the margins, but not over text).
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 (this provision does not alter the parties’ obligations
to produce, as opposed to make available for inspection, most documents in the formats detailed
in the parties’ “Stipulation Regarding Document Production Protocol and ESI” filed at D.E. 18-
1). During the inspection and before the designation, all of the material made available for
inspection shall be deemed Protected Material. 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 Order, then, before producing the specified
documents, the Producing Party must affix the legend “CONFIDENTIAL” or, where allowed
and warranted, “CONFIDENTIAL—ATTORNEYS’ EYES ONLY” at the bottom of each page
that contains Protected Material. If only a portion of the material on a page qualifies for
protection, the Producing Party also must clearly identify the protected portion(s) (e.g., by
making appropriate markings in the margins, but not over text).
b. For testimony given in deposition or in other pretrial or trial proceedings. All
depositions or portions of depositions taken in this action that contain confidential information
may be designated as “Confidential” and thereby obtain the protections afforded other
“Confidential” documents. Confidentiality designations for depositions shall be made either on
the record or by written notice to the other party within twenty (20) days after the designee’s
receipt of the transcript. Unless otherwise agreed, depositions shall be treated as “Confidential”
during the 20 day period following receipt of the transcript. If the producing party of the
Confidential Information in the deposition is a non-party, the party examining the deponent on
such Confidential Information shall provide a copy of the relevant portions of the deposition
transcript to the non-party to allow the non-party the opportunity to designate the relevant
portions of the deposition transcript as Confidential within the time frame set forth above.
Deponents shall not retain or copy portions of the transcript of their depositions that contain
Confidential Information not provided by them or the entities they represent or with whom they
are associated unless the deponent first executes a written “Acknowledgement” in the form
attached as Exhibit A. A deponent who is not a party or a representative of a party shall be
furnished a copy of this Order before being examined about Confidential Information or
Protected Material.
With regard to all testimony presented in other pretrial proceedings, the Party or Non-
party offering or sponsoring the testimony must identify on the record, before or during the
hearing or other pretrial proceeding, all protected testimony. When it is impractical to identify
separately each portion of testimony that is entitled to protection, and when it appears that
substantial portions of the testimony may qualify for protection, the Party or Non-party that
sponsors, offers, or gives the testimony may invoke on the record (before the proceeding is
concluded) a right to have up to 20 days following preparation and delivery of the preliminary
transcript to identify the specific portions of the testimony as to which protection is sought. Only
those portions of the testimony that are appropriately designated for protection within the 20
days following preparation and delivery of the preliminary transcript shall be covered by the
provisions of this Stipulated Protective Order.
Unless agreed otherwise in writing by the parties, transcript pages containing Protected
Material shall be separately bound by the court reporter, who must affix to the bottom of each
such page the legend “CONFIDENTIAL” as instructed by the Party or Non-Party offering or
sponsoring the witness or presenting the testimony. If only a portion of the material on a page
qualifies for protection, the Producing Party also must clearly identify the protected portion(s)
(e.g., by making appropriate markings in the margins, but not over text). Nothing in this Order
shall prevent a party from using at trial any information or materials designated
“CONFIDENTIAL” or “CONFIDENTIAL—ATTORNEYS’ EYES ONLY.”
c. For information produced in some form other than documentary, and for any
other tangible items, the Producing Party must affix in a prominent place on the exterior of the
container or containers in which the information or item is stored the legend
“CONFIDENTIAL.” If only portions of the information or item warrant protection, the
Producing Party, to the extent practicable, shall also identify the protected portions in such a way
that does not interfere with the viewing of the evidence.
d. Inadvertent Failure to Designate. Except for deposition testimony, an inadvertent
failure to designate qualified information or items as “CONFIDENTIAL” does not, standing
alone, waive the Designating Party’s right to secure protection under this Order for such material
so long as counsel promptly notifies the receiving party upon realizing the failure. If material is
appropriately and timely designated as “CONFIDENTIAL” after the material was initially
produced, the Receiving Party, on timely notification of the designation, must make reasonable
efforts to assure that the material is treated in accordance with the provisions of this Order.
However, the receiving party shall not be in violation of this Protective Order for any disclosure
of information made prior to receiving such notice.
6.3. Inadvertent Production of Privileged Information, If a party, through
inadvertence, produces or provides material that it reasonably believes is subject to a claim of
attorney-client privilege, work product immunity, or any other recognized privilege or immunity,
the Producing Party may give written notice to the Receiving Party that the material is subject to
a specific privilege or immunity and request that the material be returned to the Producing Party.
The Receiving Party shall return the material. Return of the material shall not constitute an
admission or concession, or permit any inference that the returned material is, in fact, properly
subject to a claim of any privilege or immunity, nor shall it foreclose any party from moving the
Court for an order that such document or thing has been improperly designated or should be
producible for any reason.
CHALLENGING CONFIDENTIALITY DESIGNATIONS
7.1. Timing of Challenges. Within fifteen (15) business days of a party’s
determination that a challenge to a Designating Party’s confidentiality designation is necessary,
the challenging party must provide written notice of its objections to the Designating Party and
seek to schedule the Meet and Confer described below. For the purposes of clarification, there
shall be no limitation on when a party may challenge the designation of material marked as
10
“CONFIDENTIAL—ATTORNEYS’ EYES ONLY” with respect to the ATTORNEYS’ EYES
ONLY portion of that designation other than the ability or availability of the Court to decide
such a challenge.
7.2. Meet_and Confer. Within ten (10) business days of providing notification, the
Party that elects to initiate a challenge to a Designating Party’s confidentiality designation must
confer directly with counsel for the Designating Party (and counsel for the designating party
must make themselves reasonably available for this conference during this time frame). 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 at least five (5) business days 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. Absent emergency circumstances, a
Challenging Party may proceed to the next stage of the challenge process only if it has engaged
in this meet and confer process first.
7.3. Formal Challenge to Designation. If, after engaging in the meet and confer
process, a Challenging Party still contends that a confidentiality designation was not proper, the
Challenging Party may at any time thereafter give written notice to the Designating Party stating
its objection to the confidentiality designation. The Designating Party has ten business days
from receipt of such written notice to apply to the Court for an order specifically designating the
Disclosure or Discovery Material at issue as “Protected Material”. The Party seeking such an
order has the burden of establishing good cause for the Disclosure or Discovery Material to be
treated as “Protected Material” and, if the challenge is limited to the designation of
“ATTORNEYS’ EYES ONLY,” the Designating Party bears the further burden of establishing
that it complied with the other terms of this Order and Agreement, and that it is reasonable for
11
the party to so designate that material as “ATTORNEYS’ EYES ONLY” notwithstanding the
protections provided by this Order and Agreement as to documents designated as
“CONFIDENTIAL.”
7.4. Treatment_of Information While Challenge is Pending. Notwithstanding any
challenge to the designation of Disclosure or Discovery Material as Protected Material, all
materials designated as such must be treated as such and thus subject to this order until one of the
following occurs:
a. the Designating Party withdraws its confidentiality designation;
b. the Designating Party fails to apply to the Court for an order designating the
material as Protected Material within the time period specified above after
receipt of a written challenge to such designation; or
c. the Court decides the material at issue is not subject to protection as Protected
Material.
8. ACCESS TO AND USE OF PROTECTED MATERIAL
8.1. Basic Principles. A Receiving Party may use Protected Material that is disclosed
or produced by another Party or by a Non-party only in connection with this case or the 2017
Case. Such Protected Material may be disclosed only to the categories of persons and under the
conditions as are described herein. When the litigation has been terminated, a Receiving Party
must comply with the provisions of section 12, below (FINAL DISPOSITION).
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 Order.
12
8.2. Disclosure of Protected Material.
a. Unless otherwise ordered by the Court or permitted in writing by the Designating
Party, a Receiving Party may disclose any information or item designated CONFIDENTIAL
only to:
8.2.a.1. Counsel of any Party in this action, including associated personnel
necessary to assist Counsel in these proceedings, such as litigation assistants,
paralegals, and secretarial and other clerical personnel;
8.2.a.2. Parties to this litigation and their officers, directors, and employees to
whom disclosure is reasonably necessary for this litigation;
8.2.4.3. | Experts (as defined in this Order) of the Receiving Party, including
associated personnel necessary to assist Experts in these proceedings, such as
assistants, paralegals, and secretarial and other clerical personnel, so long as
such Expert has signed the “Acknowledgment and Agreement to Be Bound by
Stipulated Protective Order” (Exhibit A);
8.2.4.4. the Court, including associated personnel necessary to assist the Court in
its functions, and the jury as well as prospective jurors;
8.2.a.5. litigation support services, including outside copying services, court
reporters, stenographers, videographers, or companies engaged in the business
of supporting computerized or electronic litigation discovery or trial
preparation, retained by a Party or its counsel for the purpose of assisting that
Party in these proceedings, for whom a company representative has signed the
“Acknowledgment and Agreement to Be Bound by Protective Order” (Exhibit
A);
13
8.2.2.6. other professional vendors to whom disclosure is reasonably necessary for
this litigation and for whom a company representative has signed the
“Acknowledgment and Agreement to Be Bound by Stipulated Protective
Order” (Exhibit A);
8.2.a.7. any actual or potential witness in the action who has signed the
“Acknowledgment and Agreement to Be Bound by Stipulated Protective
Order” (Exhibit A), provided that counsel believes, in good faith, that such
disclosure is reasonably necessary for the prosecution or defense of these
proceedings. 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 herein;
8.2.a.8. the author(s) of the document or the original source of the information, or
other persons with personal knowledge of Protected Material by virtue of their
having prepared, received or reviewed that specific Protected Material before
this litigation commenced;
8.2.2.9. any mediator or arbitrator appointed by the Court or selected by mutual
agreement of the parties, and the mediator or arbitrator’s secretarial and
clerical personnel, provided that a company representative for the mediator or
arbitrator has signed the “Acknowledgment and Agreement to Be Bound by
Stipulated Protective Order’ (Exhibit A); and,
8.2.a.10. Any other person as to whom the Producing Party has consented to
disclosure in advance and in writing.
14
b. Unless otherwise ordered by the Court or permitted in writing by the Designating
Party, a Receiving Party may disclose any information or item designated “CONFIDENTIAL—
ATTORNEYS’ EYES ONLY” only to:
8.2.b.1. | The Receiving Party’s Counsel in this action, as well as employees of said
Counsel to whom it is reasonably necessary to disclose the information for this
litigation and who have signed the “Acknowledgement and Agreement to Be
Bound by Protective Order”;
8.2.b.2. Experts specifically retained as consultants or expert witnesses in
connection with this litigation who have signed Exhibit A;
8.2.b.3._ The Court and its personnel;
8.2.6.4. | Court reporters, their staffs, and professional vendors to whom disclosure
is reasonably necessary for this litigation and who have signed Exhibit A; and
8.2.b.5. | The author of the document or the original source of the information.
All Protected Material designated as “CONFIDENTIAL”, any copies thereof, and the
information contained therein, shall not be given, shown, made available to, or communicated in
any way to anyone, except those persons listed above, unless ordered by the Court or done with
the prior written consent of Designating Party’s counsel, or as required by law.
9. PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED IN
OTHER LITIGATION
If a Receiving Party is served with a subpoena or an order issued in other litigation
(besides the 2017 Case) that would compel disclosure of any information or items designated in
this action as “CONFIDENTIAL” or “CONFIDENTIAL—ATTORNEYS’ EYES ONLY,” the
Receiving Party must so notify the Designating Party, in writing (by e-mail or fax, if possible)
15
within three (3) business days after receiving the subpoena or order. Such notification must
include a copy of the subpoena or court order.
Within that same time period, the Receiving Party also must inform in writing the Non-
Party who caused the subpoena or order to issue in the other litigation (besides the 2017 Case)
that some or all the material covered by the subpoena or order is the subject of this Protective
Order. In addition, the Receiving Party must deliver a copy of this Stipulated Protective Order
promptly to the Non-Party in the other action that caused the subpoena or order to issue.
10. UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL
If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed Protected
Material to any person or in any circumstance not authorized under this Stipulated Protective
Order, the Receiving Party must immediately: (a) notify in writing the Designating Party of the
unauthorized disclosures as well as all pertinent facts relating to such disclosure (including to
whom the disclosure occurred), (b) use its best efforts to retrieve all copies of the Protected
Material, (c) inform the person or persons to whom unauthorized disclosures were made of all
the terms of this Order, and (d) request such person or persons to execute the “Acknowledgment
and Agreement to Be Bound by Stipulated Protective Order” that is attached as Exhibit A. If this
Protective Order is violated, the party seeking to enforce its terms may seek all appropriate relief
from the Court, including but not limited to, injunctive relief, monetary damages resulting from
the violation, and/or, if warranted, sanctions up to and including dismissal of a party’s claims or
counterclaims with prejudice. As to those persons who sign the Acknowledgement form, the
party providing the Protected Material to such persons is responsible for obtaining the signed
Acknowledgement and shall have the obligation to maintain a record of all Acknowledgements
that party obtained.
16
11. FILING PROTECTED MATERIAL
a. Without written permission from the Designating Party or a court order secured
after appropriate notice to all interested persons or a ruling by the Court at trial, a Party may not
file in the public record in this action any Protected Material. A Party that seeks to file under
seal any Protected Material must comply with applicable law as described in Subparagraph (b)
below. The fact that Discovery Material has been designated as “CONFIDENTIAL” or
“CONFIDENTIAL—ATTORNEYS’ EYES ONLY” shall not be admissible as evidence that the
Material in fact contains Confidential Information entitled to protection from disclosure under
the law.
b. The procedure for filing documents designated as “CONFIDENTIAL” or
“CONFIDENTIAL—ATTORNEYS’ EYES ONLY” shall be in accord with Local Civil Rule
79.2, EDNC (“LCR 79.2”), and the requirements described in Stone v. University of Maryland
Medical System Corp, 855 F.2d 178, 180-81 (4th Cir. 1988); and Hall v. United Airlines. Inc.,
296 F. Supp. 2d 652, 678-80 (E.D.N.C. 2003), unless those cases’ holdings with respect to such
procedures are overruled or modified by the United States Supreme Court, the Fourth Circuit (as
to Stone) or the EDNC (as to Hall), in which event those new or altered procedures shall control.
Specifically, if either party wishes to file publically (i.e., not under seal) any information that has
been designated “CONFIDENTIAL” or “CONFIDENTIAL—ATTORNEYS’ EYES ONLY”
with the Court, or any pleadings, motions or other papers that disclose any such information,
counsel must first confer with counsel for the party that produced the information so designated
about how it should be filed. If the party that produced the information so designated desires that
the materials be filed under seal, then the filing party shall file the materials in accordance with
LCR 79.2, with notice served upon the producing party. A party is also entitled to file
17
“CONFIDENTIAL” or “CONFIDENTIAL—ATTORNEYS’ EYES ONLY” information or
documentation under seal and in accordance with LCR 79.2 and this Court’s Case Filing
Administrative Policies and Procedures Manual, especially Section V.G.1(a)(i)-(iv), without
consulting with the Designating or Producing Party. In either event, the filing of the materials
under seal shall not be binding on the Court. Within 10 days of service of such notice or such
shorter time as LCR 79.2 may require, the party desiring that the materials be maintained under
seal shall file with the Court a Motion to Seal and supporting memorandum of law specifying the
interests which would be served by restricting public access to the information. Except as
required by LCR 79.2, the party that initially filed the materials need not file any such Motion to
Seal or otherwise defend another party’s desire that the materials remain sealed. The Court will
grant the Motion to Seal only after providing adequate notice to the public and opportunity for
interested parties to object, after carefully weighing the interests advanced by the movant and
those interests favoring public access to judicial documents and records, and upon finding that
the interests advanced by the movant override any common law or constitutional right of public
access which may attach to the information. Documents submitted under seal in accordance with
this paragraph will remain under seal pending the Court’s ruling. If the party desiring that the
information be maintained under seal does not timely file a Motion to Seal, then the materials
will be deemed unsealed, without need for order of the Court.
12. FINAL DISPOSITION
Subject to any further order(s) of the Court on the completion of this litigation, the terms
of this Protective Order shall survive and remain in full force and effect after the termination of
this litigation. Within sixty (60) days after final conclusion of all aspects of this litigation
including any appeal(s) by any party, all parties and non-parties subject to the terms hereof shall
18
either destroy, or assemble and return to the Designating Party or non-party, all Protected
Material and all copies of the same (other than those filed with the Court or provided to an
opposing party), upon the request and at the option of the “Designating Party”; however, if the
items are requested to be returned, the entity requesting such return shall bear the reasonable
costs of having those Protected Materials returned to it. The Producing or Designating Party
may waive these requirement in writing. It is provided, however, that counsel for the parties
shall be entitled to retain documents to the extent reasonably necessary to preserve a file on this
litigation. Any such archival copies that contain or constitute Protected Material remain subject
to this Protective Order as set forth in Section 5 (DURATION), above.
13. MISCELLANEOUS
13.1. Right to Party’s Own Documents. Nothing herein shall affect or restrict the rights
of any party with respect to its own documents or to the information obtained or developed
independently of documents, transcripts, and materials afforded confidential treatment pursuant
to this Order.
13.2. Right to Further Relief. Nothing in this Order abridges the right of any person to
seek its modification by the Court in the future.
13.3. Right to Assert Other Objections. By stipulating to the entry of this Protective
Order, 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 Stipulated 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.
19
SO AGREED:
/s/ Chad A. Sharkey /s/ John W. Ormand II
Chad A. Sharkey Gary S. Parsons
N.C. State Bar No. 29538 N.C. State Bar No. 7955
MORRIS, MANNING & MARTIN, LLP John W. Ormand III
4131 Parklake Ave., Suite 340 N.C. State Bar No. 14160
Raleigh, NC 27612 Patrick Cross
Telephone: (919) 806-2969 N.C. State Bar No. 50646
Facsimile: (919) 806-2057 BROOKS, PIERCE, McLENDON,
Email: csharkey@mmmlaw.com HUMPHREY & LEONARD, L.L.P.
Post Office Box 1800
Attorney for Defendants Raleigh, North Carolina 27602
Telephone: (919) 839-0300
Facsimile: (919) 839-0304
Email: gparsons@brookspierce.com
Email: jormand@brookspierce.com
Email: pcross@brookspierce.com
Attorneys for Plaintiffs
20
EXHIBIT A
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
WESTERN DIVISION .
CIVIL ACTION NO. 5:19-cv-00005-D
PROGRESS SOLAR SOLUTIONS, LLC )
and DANIEL L. ROBERTSON )
)
Plaintiffs, )
)
V. )
)
MICHAEL D. LONG; SOLAR MOD )
SYSTEMS, INC.; and MIKEL BILLS, )
)
Defendants. )
ACKNOWLEDGEMENT AND AGREEMENT
TO BE BOUND BY PROTECTIVE ORDER
I acknowledge that I have read and understand the Protective Order entered in this action
on , 20___, and agree to abide by its terms and conditions. Because it is
necessary for me in the performance of my duties to have access to Confidential Matter and
information contained therein that are the subject of said Protective Order, I understand and
agree that I am personally bound by and subject to all of the terms and provisions of said Order.
I subject myself to the jurisdiction and venue of the United States District Court for the Eastern
District of North Carolina for purposes of enforcement of this Agreement and Order.
Witness my signature this day of , 20 .
Signature
Address:
Telephone:
21
□□ fe 2 2 fe oe oe ie 2 2 ok ok 2 ok ok OK OK OK
COURT’S APPROVAL AND MODIFICATIONS
This Protective Order and Confidentiality Agreement is the subject of the parties’ joint
motion (D.E. 21) for entry thereof. The court hereby APPROVES and ADOPTS the foregoing
terms of the Protective Order and Confidentiality Agreement proposed by the parties in the form
at D.E. 21-1, subject to the following modifications:
1. Notwithstanding any contrary provisions in paragraph 5, the extent to which this
court retains jurisdiction over this litigation for enforcement of the provisions of this Protective
Order and Confidentiality Agreement following the final resolution of this litigation shall be
determined in accordance with law.
2. The provisions of Local Civil Rule 79.2, E.D.N.C., along with Section V.G of the
ECF Administrative Policies and Procedures Manual cited therein, shall control the filing of sealed
documents, notwithstanding any contrary terms in this Protective Order and Confidentiality
Agreement, including any such terms in paragraph 11.
SO ORDERED, this 3. day of October 2019.
J iY E. Gates
United States Magistrate Judge
22