`FOR THE WESTERN DISTRICT OF NORTH CAROLINA
`STATESVILLE DIVISION
`CIVIL ACTION NO. 5:16-CV-142-MOC-DSC
`
`
`
`Nichia Corporation,
`
`
`
`
`
`
`
`v.
`
`Plaintiff,
`
`
`
`
`
`
`
`
`
`Lowe’s Companies, Inc., Lowe’s Home Centers,
`LLC, and L G Sourcing, Inc.,
`
`
`
`Defendants.
`
`
`
`
`
`
`STIPULATED PROTECTIVE
`ORDER
`
`WHEREAS, Plaintiff Nichia Corporation (“Nichia”) and Defendants Lowe’s Companies
`
`Inc., Lowe’s Home Centers, LLC, and L G Sourcing, Inc. (“Lowe’s”), hereafter referred to as
`
`“the Parties,” believe that certain information that is or will be encompassed by discovery
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`demands by the Parties involves the production or disclosure of trade secrets, confidential
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`business information, or other proprietary information; and
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`WHEREAS, the Parties seek a protective order limiting disclosure thereof in accordance
`
`with Federal Rule of Civil Procedure 26(c):
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`THEREFORE, it is hereby stipulated among the Parties and ORDERED that:
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`1.
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`Each Party may designate as confidential for protection under this Order, in whole
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`or in part, any document, information or material that constitutes or includes, in whole or in part,
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`confidential or proprietary information or trade secrets of the Party or a Third Party to whom the
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`Party reasonably believes it owes an obligation of confidentiality with respect to such document,
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`information or material (“Protected Material”). Protected Material shall be designated by the
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`Party producing it by affixing a legend or stamp on such document, information or material as
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`follows: “CONFIDENTIAL – ATTORNEYS’ EYES ONLY.” The phrase “CONFIDENTIAL –
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`ATTORNEYS’ EYES ONLY” shall be placed clearly on each page of the Protected Material.
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`2.
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`Any document produced under Patent Rules 2-2, 3-2, and/or 3-4 before issuance
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`of this Order, including any documents reproduced in these proceedings from other cases, with
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`the designation “Confidential” or “Confidential - Outside Attorneys’ Eyes Only” shall receive
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`the same treatment as if designated “CONFIDENTIAL – ATTORNEYS’ EYES ONLY” under
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`this Order, unless and until such document is re-designated to have a different classification
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`under this Order.
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`3.
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`With respect to documents, information or material designated
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`“CONFIDENTIAL – ATTORNEYS’ EYES ONLY” (“DESIGNATED MATERIAL”),1 subject
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`to the provisions herein and unless otherwise stated, this Order governs, without limitation: (a)
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`all documents, electronically stored information, and/or things as defined by the Federal Rules of
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`Civil Procedure; (b) all pretrial, hearing or deposition testimony, or documents marked as
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`exhibits or for identification in depositions and hearings; (c) pretrial pleadings, exhibits to
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`pleadings and other court filings; (d) affidavits; and (e) stipulations. All copies, reproductions,
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`extracts, digests and complete or partial summaries prepared from any DESIGNATED
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`MATERIAL shall also be considered DESIGNATED MATERIAL and treated as such under this
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`Order.
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`4.
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`A designation of Protected Material (i.e., “CONFIDENTIAL – ATTORNEYS’
`
`EYES ONLY”) may be made at any time. Inadvertent or unintentional production of documents,
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`information or material that has not been designated as DESIGNATED MATERIAL shall not be
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`
`1 The term DESIGNATED MATERIAL is used throughout this Protective Order to refer to the
`class of materials designated as “CONFIDENTIAL – ATTORNEYS’ EYES ONLY.”
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`Case 5:16-cv-00142-MOC-DSC Document 61 Filed 04/06/18 Page 2 of 15
`2
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`deemed a waiver in whole or in part of a claim for confidential treatment. Any party that
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`inadvertently or unintentionally produces Protected Material without designating it as
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`DESIGNATED MATERIAL may request destruction of that Protected Material by notifying the
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`recipient(s), as soon as reasonably possible after the producing Party becomes aware of the
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`inadvertent or unintentional disclosure, and providing replacement Protected Material that is
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`properly designated. The recipient(s) shall then destroy all copies of the inadvertently or
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`unintentionally produced Protected Materials and any documents, information or material
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`derived from or based thereon. Designating Party shall, upon request of the Receiving Party,
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`specifically identify the confidential portions of any pleading or other document filed under seal
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`with the Court, written discovery response, or any exhibits thereto, or alternatively provide the
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`Receiving Party with a redacted non-confidential version thereof. The Designating Party shall
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`have five (5) business days to comply with such a request.
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`5.
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`“CONFIDENTIAL – ATTORNEYS’ EYES ONLY” documents, information and
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`material may be disclosed only to the following persons, except upon receipt of the prior written
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`consent of the Designating Party, upon prior order of the Court, or as set forth in paragraph 11
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`herein:
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`(a)
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`(b)
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`outside counsel of record in this Action for the Parties;
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`employees of such counsel assigned to and reasonably necessary to assist
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`such counsel in the litigation of this Action;
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`(c)
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`outside consultants or experts (i.e., not existing employees or affiliates of a
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`Party or an affiliate of a Party) retained for the purpose of this litigation, provided that:
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`(1) such consultants or experts are not presently employed by the Parties hereto for
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`purposes other than this Action or by a known or identified competitor of any of the
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`3
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`Parties; and (2) before access is given, the consultant or expert has completed the
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`Undertaking attached as Appendix A hereto and the same is served upon the producing
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`Party with a current curriculum vitae (or its available equivalent) of the consultant or
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`expert, and a list of all litigations and administrative proceedings in which he or she has
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`either written an expert report or given testimony at trial, a hearing, a deposition, or by
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`written submission in the previous five (5) years (the “Notice”). The Notice must be
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`received at least five business (5) days before access to the Protected Material is to be
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`given to that consultant, to provide an opportunity for the Producing Party to notify the
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`Receiving Party in writing that it objects to disclosure of Protected Material to the
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`consultant or expert. The Parties agree to promptly confer and use good faith to resolve
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`any such objection. If the Parties are unable to resolve any objection, the Party seeking to
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`disclose DESIGNATED MATERIAL may file a motion with the Court. The objecting
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`Party shall have the ultimate burden of proving that such disclosure is not appropriate.
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`No disclosure shall occur until all such objections are resolved by agreement or Court
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`order. Each outside consultant or expert to whom DESIGNATED MATERIAL is
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`disclosed in accordance with the terms of this Order shall be advised by counsel of the
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`terms of this Order, shall be informed that he or she is subject to the terms and conditions
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`of this Order, and shall sign an acknowledgment, attached as Appendix A hereto, that he
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`or she has received a copy of, has read, and has agreed to be bound by this Order;
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`(d)
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`independent litigation support services, including persons working for or
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`as court reporters, graphics or design services, jury or trial consulting services, and
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`photocopy, document imaging, and database services retained by counsel and reasonably
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`necessary to assist counsel with the litigation of this Action; and
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`4
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`(e)
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`the Court and its personnel.
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`6.
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`A Party shall designate documents, information or material as “CONFIDENTIAL
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`– ATTORNEYS’ EYES ONLY” only upon a good faith belief that the documents, information
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`or material contains confidential or proprietary information or trade secrets of the Party or a
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`Third Party to whom the Party reasonably believes it owes an obligation of confidentiality with
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`respect to such documents, information or material.
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`7.
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`DESIGNATED MATERIAL shall be used by the Parties only in the litigation of
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`this Action and shall not be used for any other purpose. Any person or entity who obtains access
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`to DESIGNATED MATERIAL or the contents thereof pursuant to this Order shall not make any
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`copies, duplicates, extracts, summaries or descriptions of such DESIGNATED MATERIAL or
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`any portion thereof except as may be reasonably necessary in the litigation of this Action. Any
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`such copies, duplicates, extracts, summaries or descriptions shall be classified DESIGNATED
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`MATERIAL and subject to all of the terms and conditions of this Order.
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`8.
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`Any person associated with a Party who is permitted to receive the other Party’s
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`or a Third Party’s DESIGNATED MATERIAL, who obtains, receives, has access to, or
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`otherwise learns, in whole or in part, the other Party’s or a Third Party’s DESIGNATED
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`MATERIAL under this Order shall not prepare, prosecute, supervise, or assist in the preparation
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`or prosecution of any patent application or the amendment of any patent claim in any proceeding
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`whatsoever, excluding post-grant proceedings such as Inter Partes Review, pertaining to the
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`field of the invention of the patent-in-suit during the pendency of this Action and for one year
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`after its conclusion, including any appeals. To ensure compliance with the purpose of this
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`provision, each Party shall create an “Ethical Wall” between those persons with access to
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`DESIGNATED MATERIAL and any individuals who prepare, prosecute, supervise or assist in
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`Case 5:16-cv-00142-MOC-DSC Document 61 Filed 04/06/18 Page 5 of 15
`5
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`the preparation or prosecution of any patent application pertaining to the field of invention of the
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`patent-in-suit. For the avoidance of doubt, nothing in this provision shall preclude any person
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`who reviews or otherwise learns the contents of, in whole or in part, the other Party’s
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`DESIGNATED MATERIAL under this Order from participating in any post-grant proceeding,
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`such as Inter Partes Review, on behalf of an entity attempting to invalidate or defend the validity
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`of a patent. Nothing in this Section shall prevent any attorney from sending non-confidential
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`prior art to an attorney involved in patent prosecution for purposes of ensuring that such prior art
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`is submitted to the U.S. Patent and Trademark Office (or any similar agency of a foreign
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`government) to assist a patent applicant in complying with its duty of candor. The Parties
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`expressly agree that the Prosecution Bar set forth herein shall be personal to any attorney who
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`reviews DESIGNATED MATERIAL and shall not be imputed to any other persons or attorneys
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`at the attorneys’ law firm.
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`9.
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`Nothing in this Order shall require production of documents, information or other
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`material that a Party contends is protected from disclosure by the attorney-client privilege, the
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`work product doctrine, or other privilege, doctrine, or immunity. The production of privileged or
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`work-product protected documents, electronically stored information (“ESI”) or information,
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`whether inadvertent or otherwise, is not a waiver of the privilege or protection from discovery in
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`this case or in any other federal or state proceeding. This Order shall be interpreted to provide
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`the maximum protection allowed by Federal Rule of Evidence 502(d), and also applies to all
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`documents and materials produced prior to entry of this order. For the avoidance of doubt, the
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`provisions of this Paragraph 9 do not relieve the parties of their obligations to prepare a full and
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`accurate privilege log with respect to their document productions. Any Party that produces
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`documents, information or other material it reasonably believes are protected under the attorney-
`
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`client privilege, work product doctrine, or other privilege or immunity may obtain the return of
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`such documents, information or other material by promptly notifying the recipient(s) of such
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`documents, information or other material and providing a privilege log for the documents,
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`information or other material within one week of such notification. The recipient(s) shall gather
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`and destroy all copies of such documents, information or other material and certify such to the
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`producing Party. For the avoidance of doubt, any such documents may not be used by the
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`Receiving Party for any purpose.
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`10.
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`There shall be no disclosure of any DESIGNATED MATERIAL by any person
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`authorized to have access thereto to any person who is not authorized for such access under this
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`Order. The Parties are hereby ORDERED to safeguard all such documents, information and
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`material to protect against disclosure to any unauthorized persons or entities.
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`11.
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`Nothing in this Order shall prevent or otherwise restrict counsel from rendering
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`advice to their clients and, in the course thereof, relying generally on their examination of
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`DESIGNATED MATERIAL; provided, however, that in rendering such advice and otherwise
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`communicating with such clients, counsel shall not make specific disclosure of any item so
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`designated except as permitted by this Order or by prior written agreement with opposing
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`counsel.
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`12.
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`Nothing contained herein shall be construed to prejudice any Party’s right to use
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`any DESIGNATED MATERIAL in taking testimony at any deposition or hearing provided that
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`the DESIGNATED MATERIAL is only disclosed to a person(s) who: (i) is eligible to have
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`access to the DESIGNATED MATERIAL by virtue of his or her employment with the
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`Designating Party, (ii) is identified in the DESIGNATED MATERIAL as an author, addressee,
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`or copy recipient of such information, (iii) although not identified as an author, addressee, or
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`copy recipient of such DESIGNATED MATERIAL, has, in the ordinary course of business, seen
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`such DESIGNATED MATERIAL, (iv) is a current or former officer or director of the producing
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`Party or a current; (v) is outside counsel for a Party; (vi) is an independent contractor, consultant,
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`and/or expert retained for the purpose of this litigation who has complied with the provisions set
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`forth in Paragraph 5(c); (vii) are court reporters and videographers; (viii) is the Court; or (ix) are
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`other persons entitled hereunder to access to DESIGNATED MATERIAL. DESIGNATED
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`MATERIAL shall not be disclosed to any other persons unless prior authorization is obtained
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`from counsel representing the producing Party or from the Court.
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`13.
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`Parties may, at the deposition or hearing or within ten (10) days after receipt of a
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`deposition or hearing transcript, designate the deposition or hearing transcript or any portion
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`thereof as “CONFIDENTIAL – ATTORNEYS’ EYES ONLY” pursuant to this Order. Access to
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`the deposition or hearing transcript so designated shall be limited in accordance with the terms of
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`this Order. Until expiration of the 10-day period, the entire deposition or hearing transcript shall
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`be treated as DESIGNATED MATERIAL.
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`14.
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`Any DESIGNATED MATERIAL that is filed with the Court shall be filed under
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`seal and shall remain under seal until further order of the Court. The filing party shall be
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`responsible for informing the Clerk of the Court that the filing should be sealed and for placing
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`the legend “FILED UNDER SEAL PURSUANT TO PROTECTIVE ORDER” above the caption
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`and conspicuously on each page of the filing. Exhibits to a filing shall conform to the labeling
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`requirements set forth in this Order. If a pretrial pleading filed with the Court, or an exhibit
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`thereto, discloses or relies on confidential documents, information or material, such confidential
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`portions shall be redacted to the extent necessary and the pleading or exhibit filed publicly with
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`the Court to the extent required by the Local Rules.
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`15.
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`The Order applies to pretrial discovery. Prior to the introduction of any
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`DESIGNATED MATERIAL by a Party in a hearing, trial, or other proceeding, the Party seeking
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`to disclose DESIGNATED MATERIAL shall confer with the Designating Party, to the extent
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`that the Party seeking to disclose and the Designating Party differ. Any Party seeking to
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`preserve the confidentiality of the DESIGNATED MATERIAL may request that the Court
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`exclude from the courtroom any person who is not entitled under this Order to receive
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`DESIGNATED MATERIAL and/or may request that the transcript be marked appropriately.
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`16.
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`A Party may request in writing to the other Party that the designation given to any
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`DESIGNATED MATERIAL be modified or withdrawn. If the Designating Party does not agree
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`to re-designation within five (5) business days of receipt of the written request, the requesting
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`Party may apply to the Court for relief. Upon any such application to the Court, the burden shall
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`be on the Designating Party to show why its classification is proper. Pending the Court’s
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`determination of the application, the designation of the Designating Party shall be maintained.
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`17.
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`To the extent that any discovery is taken of persons who are not Parties to this
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`Action (“Third Parties”) and in the event that such Third Parties contend the discovery sought
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`involves trade secrets, confidential business information, or other proprietary information, then
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`such Third Parties may agree to be bound by this Order.
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`18.
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`To the extent that discovery or testimony is taken of Third Parties, the Third
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`Parties may designate as “CONFIDENTIAL – ATTORNEYS’ EYES ONLY” any documents,
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`information or other material, in whole or in part, produced or given by such Third Parties. The
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`provisions of this Order regarding the designating of materials shall govern Third Parties
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`agreeing to be bound by this Order.
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`Case 5:16-cv-00142-MOC-DSC Document 61 Filed 04/06/18 Page 9 of 15
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`19.
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`If a Third Party, court, or administrative agency subpoenas, orders, or requests
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`pursuant to Fed. R. Civ. P. 34 (or equivalent rule) production of DESIGNATED MATERIAL
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`that a Party has obtained under the terms of this Order, such Party shall promptly and in any case
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`within five (5) business days of receipt of such subpoena, order, or request (but in no event later
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`than the time for production of such material) give written notice to counsel for the Designating
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`Party, identifying the DESIGNATED MATERIAL sought and enclosing a copy of the subpoena,
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`order, or request. The Receiving Party shall not produce the DESIGNATED MATERIAL for at
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`least five (5) business days after providing the required notice to the Designating Party. If,
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`within five (5) business days of receiving such notice, the Designating Party provides written
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`notice to the Receiving Party that it opposes production of its DESIGNATED MATERIAL, the
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`Receiving Party shall not thereafter produce such DESIGNATED MATERIAL, except pursuant
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`to a court order or other order that subjects the Receiving Party to penalties for noncompliance.
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`The Receiving Party shall be solely responsible for asserting any objection to the requested or
`
`required production. Nothing herein shall be construed as requiring the Receiving Party or
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`anyone else covered by this order to object to, challenge, or appeal any such subpoena, order, or
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`request seeking or requiring production, subject itself to penalties for noncompliance, or seek
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`any relief from any court or administrative agency.
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`20. Within thirty (30) days of final termination of this Action, including any appeals,
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`all DESIGNATED MATERIAL, including all copies, duplicates, abstracts, indexes, summaries,
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`descriptions, and excerpts or extracts thereof (excluding excerpts or extracts incorporated into
`
`any privileged memoranda of the Parties and materials which have been admitted into evidence
`
`in this Action), shall at the producing Party’s election either be returned to the producing Party or
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`be destroyed. The Receiving Party shall verify the return or destruction by affidavit furnished to
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`Case 5:16-cv-00142-MOC-DSC Document 61 Filed 04/06/18 Page 10 of 15
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`the producing Party, upon the producing Party’s request. Notwithstanding the foregoing, outside
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`counsel for the Parties are permitted to retain one (1) working copy of all pleadings and
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`discovery containing any DESIGNATED MATERIAL.
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`21.
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`The failure to designate documents, information or material in accordance with
`
`this Order and the failure to object to a designation at a given time shall not preclude the filing of
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`a motion at a later date seeking to impose such designation or challenging the propriety thereof.
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`The entry of this Order and/or the production of documents, information and material hereunder
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`shall in no way constitute a waiver of any objection to the furnishing thereof, all such objections
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`being hereby preserved.
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`22.
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`This Order is binding on all Parties to this action, any persons who receive
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`DESIGNATED MATERIAL, and all non-parties who elect the protections of this Order, and
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`shall survive any settlement, discontinuance, stay, dismissal, judgment, or other disposition of
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`this action. This Order shall remain in force and effect until modified, superseded, or terminated
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`by further order of the Court.
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`23.
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`Any Party knowing or believing that any other party is in violation of or intends
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`to violate this Order and has raised the question of violation or potential violation with the
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`opposing party and has been unable to resolve the matter by agreement may move the Court for
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`such relief as may be appropriate in the circumstances. Pending disposition of the motion by the
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`Court, the Party alleged to be in violation of or intending to violate this Order shall discontinue
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`the performance of and/or shall not undertake the further performance of any action alleged to
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`constitute a violation of this Order.
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`24.
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`Production of DESIGNATED MATERIAL by each of the Parties shall not be
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`deemed a publication of the documents, information and material (or the contents thereof)
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`Case 5:16-cv-00142-MOC-DSC Document 61 Filed 04/06/18 Page 11 of 15
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`produced so as to void or make voidable whatever claim the Parties may have as to the
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`proprietary and confidential nature of the documents, information or other material or its
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`contents.
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`25.
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`Nothing in this Order shall be construed to effect an abrogation, waiver or
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`limitation of any kind on the rights of each of the Parties to assert any applicable discovery or
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`trial privilege.
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`26.
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`Each of the Parties shall also retain the right to file a motion with the Court (a) to
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`modify this Order to allow disclosure of DESIGNATED MATERIAL to additional persons or
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`entities if reasonably necessary to prepare and present this Action and (b) to apply for additional
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`protection of DESIGNATED MATERIAL.
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`SO ORDERED.
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`
`Signed: April 6, 2018
`
`IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD:
`
`THE VAN WINKLE LAW FIRM
`
`RAYBURN COOPER & DURHAM, P.A.
`
`/s/ Larry S. McDevitt
`Larry S. McDevitt
`David M. Wilkerson
`lmcdevitt@vwlawfirm.com
`dwilkerson@vwlawfirm.com
`11 North Market Street
`Asheville, NC 28801
`Telephone: (828) 258-2991
`Fax: (828) 255-0255
`
`Kenneth A. Gallo
`kgallo@paulweiss.com
`David E. Cole
`dcole@paulweiss.com
`
`/s/ James B. Gatehouse
`James B. Gatehouse
`(N.C. Bar No. 22811)
`227 W. Trade St. Suite 1200
`Charlotte, NC 28202-1672
`Telephone: (704)334-0891
`Facsimile: (704)377-1897
`Email: bgatehouse@rcdlaw.net
`
`SILL CUMMIS & GROSS P.C.
`Trent S. Dickey (Pro Hac Vice)
`Scott D. Stimpson (Pro Hac Vice)
`Tod M. Melgar (Pro Hac Vice)
`101 Park Avenue, 28th Floor
`New York, NY 10178
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`Case 5:16-cv-00142-MOC-DSC Document 61 Filed 04/06/18 Page 12 of 15
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`Tel. (212) 500-1550
`Fax (212) 643-6500
`tdickey@sillscummis.com
`sstimpson@sillscummis.com
`
`Attorneys for Defendants Lowe’s
`Companies, Inc., Lowe’s Home Centers,
`LLC, and L G Sourcing, Inc.
`
`
`PAUL, WEISS, RIFKIND,
`WHARTON & GARRISON LLP
`2001 K Street, NW
`Washington, DC 20006-1047
`Telephone: (202) 223-7300
`Fax: (202) 223-7420
`
`
`Catherine Nyarady
`enyarady@paulweiss.com
`Daniel J. Klein
`daklein@paulweiss.com
`PAUL, WEISS, RIFKIND,
`WHARTON & GARRISON LLP
`1285 Avenue of the Americas
`New York, NY 10019-6064
`Telephone: (212) 373-3000
`Fax: (212) 757-3990
`
`Attorneys for Plaintiff
`Nichia Corporation
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`Case 5:16-cv-00142-MOC-DSC Document 61 Filed 04/06/18 Page 13 of 15
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE WESTERN DISTRICT OF NORTH CAROLINA
`STATESVILLE DIVISION
`CIVIL ACTION NO. 5:16-CV-142
`
`
`
`Nichia Corporation,
`
`
`
`
`
`
`
`v.
`
`Plaintiff,
`
`
`
`
`
`
`
`
`
`
`Lowe’s Companies, Inc., Lowe’s Home Centers,
`LLC, and L G Sourcing, Inc.,
`
`
`
`Defendants.
`
`
`
`
`
`
`
`
`
`
`APPENDIX A
`UNDERTAKING OF EXPERTS OR CONSULTANTS
`REGARDING PROTECTIVE ORDER
`
`I, ___________________________ declare that:
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`1. My address is ______________________
`
`2. My current employer is ________________
`
`3. My current occupation is ________________
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`4. I have received a copy of the Protective Order in this action. I have carefully read
`
`and understand the provisions of the Protective Order.
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`5. I will comply with all of the provisions of the Protective Order. I will hold in
`
`confidence, will not disclose to anyone not qualified under the Protective Order, and will use
`
`only for purposes of this action any information designated as “CONFIDENTIAL –
`
`ATTORNEYS’ EYES ONLY” that is disclosed to me.
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`Case 5:16-cv-00142-MOC-DSC Document 61 Filed 04/06/18 Page 14 of 15
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`6. Promptly upon termination of these actions, I will return all documents and things
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`designated as “CONFIDENTIAL – ATTORNEYS’ EYES ONLY” that came into my
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`possession, and all documents and things that I have prepared relating thereto, to the outside
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`counsel for the party by whom I am employed.
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`7. I hereby submit to the jurisdiction of this Court for the purpose of enforcement of
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`the Protective Order in this Action.
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`I declare under penalty of perjury that the forgoing is true and correct.
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`Signature ________________________________
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`Date: ______________________________
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`Case 5:16-cv-00142-MOC-DSC Document 61 Filed 04/06/18 Page 15 of 15
`15
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