6:18-cv-02016-JMC Date Filed 11/19/19 Entry Number 70 Page 1 of 14
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF SOUTH CAROLINA
`GREENVILLE DIVISION
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`
`
`ZIPIT WIRELESS, INC.
`
`
`vs.
`LG ELECTRONICS, INC
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`
`
`
`
`
`
`Plaintiff,
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`Defendant
`
`
`
` Confidentiality Order
`
`
`) Civil Action No. 6:18-cv-02016-JMC
`)
`)
`)
`)
`)
`)
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`)
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`
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`Whereas, the parties to this Consent Confidentiality Order (“parties”), have stipulated
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`that certain discovery material is and should be treated as confidential, and have agreed to the
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`terms of this order; accordingly, it is this [consent day] day of [consent month], 2019,
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`ORDERED:
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`
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`1.
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`Scope. This Consent Order is entered into for the limited purpose of the
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`jurisdictional discovery ordered by the Court. See ECF No. 60. All documents produced in the
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`course of the jurisdictional discovery, all responses to jurisdictional discovery requests and any
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`deposition testimony and deposition exhibits related to jurisdictional discovery and any other
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`materials which may be subject to jurisdictional discovery (hereinafter collectively “documents”)
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`shall be subject to this Order concerning confidential information as set forth below. Should this
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`case proceed in this Court, any party may seek entry of a separate confidentiality order which
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`will apply to any additional discovery sought in this case.
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`
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`2.
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`Form and Timing of Designation. Confidential documents shall be so
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`designated by placing or affixing the word “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL
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`– ATTORNEYS’ EYES ONLY” on the document in a manner which will not interfere with the
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`legibility of the document and which will permit complete removal of the designation.
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`1
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`6:18-cv-02016-JMC Date Filed 11/19/19 Entry Number 70 Page 2 of 14
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`Documents shall be designated CONFIDENTIAL or “HIGHLY CONFIDENTIAL –
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`ATTORNEYS’ EYES ONLY” prior to, or contemporaneously with, the production or disclosure
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`of the documents. Inadvertent or unintentional production of documents without prior
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`designation as confidential shall not be deemed a waiver, in whole or in part, of the right to
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`designate documents as confidential as otherwise allowed by this Order.
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`3.
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`Documents Which May be Designated Confidential or Highly Confidential –
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`Attorneys’ Eyes Only.
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`a.
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` Any party may designate documents as Confidential but only after review of the
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`documents by an attorney1 who has, in good faith, determined that the documents contain
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`information protected from disclosure by statute, sensitive personal information, trade
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`secrets, or confidential research, development, or commercial information.
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`b.
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`Any party may designate documents as Highly Confidential -Attorneys’ Eyes
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`Only, but only after review of the documents by an attorney who has, in good faith,
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`determined that the documents contain extremely sensitive information, disclosure of
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`which to another party or non-party would create a substantial risk of serious harm that
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`could not be avoided by less restrictive means.
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`c.
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`The certifications made pursuant to this section shall be made concurrently with
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`the disclosure of the documents, using the form attached hereto at Attachment A which
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`shall be executed subject to the standards of Rule 11 of the Federal Rules of Civil
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`Procedure. Information or documents which are available in the public sector may not be
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`designated as confidential.
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`1 The attorney who reviews the documents and certifies them to be CONFIDENTIAL or
`HIGHLY CONFIDENTIAL - ATTORNEYS’ EYES ONLY must be admitted to the Bar of at
`least one state but need not be admitted to practice in the District of South Carolina and need not
`apply for pro hac vice admission. By signing the certification, counsel submits to the jurisdiction
`of this court in regard to the certification.
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`2
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`6:18-cv-02016-JMC Date Filed 11/19/19 Entry Number 70 Page 3 of 14
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`4.
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`Depositions. Portions of depositions shall be deemed confidential only if
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`designated as such when the deposition is taken or within seven business days after receipt of the
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`transcript. Confidentiality designations may be made more than seven days after the deposition
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`upon a showing of good cause. Such designation shall be specific as to the portions to be
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`protected. A deposition transcript shall be treated as if designated HIGHLY CONFIDENTIAL
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`ATTORNEYS’ EYES ONLY in its entirety unless otherwise agreed until the expiration of the
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`seven-day period. After the expiration of that period, the transcript shall be treated only as
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`actually designated.
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`5.
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`a.
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`Protection of Confidential Material.
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`General Protections. Documents designated CONFIDENTIAL or HIGHLY
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`CONFIDENTIAL under this Order shall not be used or disclosed by the parties or
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`counsel for the parties or any other persons identified below (¶ 5.b, c) for any purposes
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`whatsoever other than preparing for and conducting the litigation in which the documents
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`were disclosed (including any appeal of that litigation). The parties shall not disclose
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`documents designated as confidential to putative class members not named as plaintiffs in
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`putative class litigation unless and until one or more classes have been certified.
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`b.
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`Disclosure of CONFIDENTIAL information. The parties and counsel for the
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`parties shall not disclose or permit the disclosure of any documents designated
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`CONFIDENTIAL under the terms of this Order to any other person or entity except as
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`set forth in subparagraphs (1)-(7) below, and then only after the person to whom
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`disclosure is to be made has executed an acknowledgment (in the form set forth at
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`Attachment B hereto), that he or she has read and understands the terms of this Order and
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`is bound by it. Subject to these requirements, the following categories of persons may be
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`3
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`6:18-cv-02016-JMC Date Filed 11/19/19 Entry Number 70 Page 4 of 14
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`
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`allowed to review documents which have been designated CONFIDENTIAL pursuant to
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`this Order:
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`(1)
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`counsel and employees of counsel for the parties who have responsibility
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`for the preparation and trial of the lawsuit;
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`(2)
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`parties and employees of a party to this Order but only to the extent
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`counsel shall certify that the specifically named individual party or employee’s
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`assistance is necessary to the conduct of the litigation in which the information is
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`disclosed2;
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`(3)
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`court reporters engaged for depositions and those persons, if any,
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`specifically engaged for the limited purpose of making photocopies of documents;
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`()
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`consultants, investigators, or experts (hereinafter referred to collectively as
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`“experts”) employed by the parties or counsel for the parties to assist in the
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`preparation and trial of the lawsuit;
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`(5)
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`during their depositions, (i) witnesses of the producing party; and (ii) other
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`witnesses in the action to whom disclosure is reasonably necessary and who have
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`signed an acknowledgment (in the form set forth at Attachment B hereto), unless
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`the designating party objects to such disclosure or except as otherwise ordered by
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`the Court. Before making such a disclosure, the receiving party must provide the
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`designating party time to object;
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`2 At or prior to the time such party or employee completes his or her acknowledgment of review
`of this Order and agreement to be bound by it (Attachment B hereto), counsel shall complete a
`certification in the form shown at Attachment C hereto. Counsel shall retain the certification
`together with the form signed by the party or employee.
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`4
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`6:18-cv-02016-JMC Date Filed 11/19/19 Entry Number 70 Page 5 of 14
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`(6)
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`the author or recipient of a document containing the information or a
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`custodian or other person who otherwise possessed or personally knows the
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`information; and
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`(7)
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`other persons only upon consent of the producing party or upon order of
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`the court and on such conditions as are agreed to or ordered.
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`c.
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`Disclosure of HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY
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`information. The parties and counsel for the parties shall not disclose or permit the
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`disclosure of any documents designated HIGHLY CONFIDENTIAL – ATTORNEYS’
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`EYES ONLY under the terms of this Order to any other person or entity except as set
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`forth in subparagraphs (1)-(6) below, and then only after the person to whom disclosure
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`is to be made has executed an acknowledgment (in the form set forth at Attachment B
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`hereto), that he or she has read and understands the terms of this Order and is bound by it.
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`Subject to these requirements, the following categories of persons may be allowed to
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`review documents which have been designated HIGHLY CONFIDENTIAL –
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`ATTORNEYS’ EYES ONLY pursuant to this Order:
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`(1)
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`counsel and employees of counsel for the parties who have responsibility
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`for the preparation and trial of the lawsuit;
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`(2)
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`court reporters engaged for depositions and those persons, if any,
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`specifically engaged for the limited purpose of making photocopies of documents;
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`(3)
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`experts employed by the parties or counsel for the parties to assist in the
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`preparation and trial of the lawsuit;
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`(4)
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`during their deposition(s), witnesses of the producing party;
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`5
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`6:18-cv-02016-JMC Date Filed 11/19/19 Entry Number 70 Page 6 of 14
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`f(5)
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`the author or recipient of a document containing the information or a
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`custodian or other person who otherwise possessed or personally knows the
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`information; and
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`(6)
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`other persons only upon consent of the producing party or upon order of
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`the court and on such conditions as are agreed to or ordered.
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`d.
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`Control of Documents. Counsel for the parties shall take reasonable efforts to
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`prevent unauthorized disclosure of documents designated as Confidential or Highly
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`Confidential pursuant to the terms of this order. Counsel shall maintain a record of those
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`persons, including employees of counsel, who have reviewed or been given access to the
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`documents along with the originals of the forms signed by those persons acknowledging
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`their obligations under this Order.
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`e.
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`Copies. All copies, duplicates, extracts, summaries or descriptions (hereinafter
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`referred to collectively as “copies”), of documents designated as Confidential or Highly
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`Confidential under this Order or any portion of such a document, shall be immediately
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`affixed with the designation “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL –
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`ATTORNEYS’ EYES ONLY” if the word does not already appear on the copy. All such
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`copies shall be afforded the full protection of this Order.
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`6.
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`Filing of Confidential Materials. In the event a party seeks to file any material
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`that is subject to protection under this Order with the court, that party shall take appropriate
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`action to ensure that the documents receive proper protection from public disclosure including:
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`(1) filing a redacted document with the consent of the party who designated the document as
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`confidential; (2) where appropriate (e.g. in relation to discovery and evidentiary motions),
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`submitting the documents solely for in camera review; or (3) where the preceding measures are
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`not adequate, seeking permission to file the document under seal pursuant to the procedural steps
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`6:18-cv-02016-JMC Date Filed 11/19/19 Entry Number 70 Page 7 of 14
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`set forth in Local Civil Rule 5.03, DSC, or such other rule or procedure as may apply in the
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`relevant jurisdiction. Absent extraordinary circumstances making prior consultation impractical
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`or inappropriate, the party seeking to submit the document to the court shall first consult with
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`counsel for the party who designated the document as confidential to determine if some measure
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`less restrictive than filing the document under seal may serve to provide adequate protection.
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`This duty exists irrespective of the duty to consult on the underlying motion. Nothing in this
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`Order shall be construed as a prior directive to the Clerk of Court to allow any document be filed
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`under seal. The parties understand that documents may be filed under seal only with the
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`permission of the court after proper motion pursuant to Local Civil Rule 5.03.
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`7.
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`Greater Protection of Specific Documents. No party may withhold information
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`from discovery on the ground that it requires protection greater than that afforded by this Order
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`unless the party moves for an Order providing such special protection.
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`8.
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`Challenges to Designation as Confidential. Any CONFIDENTIAL or HIGHLY
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`CONFIDENTIAL designation is subject to challenge. The following procedures shall apply to
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`any such challenge.
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`a.
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`The burden of proving the necessity of a Confidential or Highly Confidential
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`designation remains with the party asserting confidentiality.
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`b.
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`A party who contends that documents designated CONFIDENTIAL or HIGHLY
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`CONFIDENTIAL are not entitled to confidential treatment shall give written notice to
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`the party who affixed the designation of the specific basis for the challenge. The party
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`who so designated the documents shall have fifteen (15) days from service of the written
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`notice to determine if the dispute can be resolved without judicial intervention and, if not,
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`to move for an Order confirming the Confidential or Highly Confidential designation.
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`7
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`6:18-cv-02016-JMC Date Filed 11/19/19 Entry Number 70 Page 8 of 14
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`c.
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`Notwithstanding any challenge to the designation of documents as confidential,
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`all material previously designated CONFIDENTIAL or HIGHLY CONFIDENTIAL-
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`ATTORNEYS’ EYES ONLY shall continue to be treated as subject to the full
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`protections of this Order until one of the following occurs:
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`(1)
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`the party who claims that the documents are confidential or highly
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`confidential withdraws such designation in writing; or
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`(2)
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`the party who
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`claims that the documents are confidential fails to move timely for an Order
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`designating the documents as confidential as set forth in paragraph 8.b. above; or
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`(3)
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`the court rules that the documents should no longer be designated as
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`confidential information.
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`d.
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`Challenges to the confidentiality of documents may be made at any time and are
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`not waived by the failure to raise the challenge at the time of initial disclosure or
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`designation.
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`9.
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`a.
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`Treatment on Conclusion of Litigation.
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`Order Remains in Effect. All provisions of this Order restricting the use of
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`documents designated CONFIDENTIAL or HIGHLY CONFIDENTIAL-ATTORNEYS’
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`EYES ONLY shall continue to be binding after the conclusion of the litigation unless
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`otherwise agreed or ordered.
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`b.
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`Return of CONFIDENTIAL or HIGHLY CONFIDENTIAL Documents.
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`Within thirty (30) days after the conclusion of the litigation, including conclusion of any
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`appeal, all documents treated as Confidential or Highly Confidential under this Order,
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`including copies as defined above (¶5.e.) shall be destroyed, or should the producing
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`party prefer, returned to the producing party at the producing party’s expense unless: (1)
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`the document has been entered as evidence or filed (unless introduced or filed under
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`6:18-cv-02016-JMC Date Filed 11/19/19 Entry Number 70 Page 9 of 14
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`seal); or (2) as to documents containing the notations, summations, or other mental
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`impressions of the receiving party, that party elects destruction. Notwithstanding the
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`above requirements to return or destroy documents, counsel may retain attorney work
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`product including an index which refers or relates to information designated
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`CONFIDENTIAL or HIGHLY CONFIDENTIAL so long as that work product does not
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`duplicate verbatim substantial portions of the text of confidential documents. This work
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`product continues to be Confidential or Highly Confidential under the terms of this
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`Order. An attorney may use his or her work product in a subsequent litigation provided
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`that its use does not disclose the confidential documents.
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`10. Third party discovery. A third party who produces information or is deposed in
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`this matter may invoke the provisions of this Order.
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`11.
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`a.
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`Designated materials sought in other litigation.
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`If a party is served with a subpoena issued by a court, arbitral, administrative, or
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`legislative body, or with a court order issued in other litigation that compels disclosure of
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`any information or items designated in this action as Confidential or Highly Confidential,
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`that party must:
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`(1)
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`promptly notify in writing the designating party. Such notification shall
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`include a copy of the subpoena or court order;
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`(2)
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`promptly notify in writing the person who caused the subpoena or order to
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`issue in the other litigation that some or all of the material covered by the
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`subpoena or order is subject to this Order. Such notification shall include a copy
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`of this Order; and
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`(3)
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`cooperate with respect to all reasonable procedures sought to be pursued
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`by the designating party whose confidential material may be affected.
`9
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`6:18-cv-02016-JMC Date Filed 11/19/19 Entry Number 70 Page 10 of 14
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`b.
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`If the designating party timely seeks a protective order, the party served with the
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`subpoena or court order shall not produce any information designated in this action as
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`Confidential or Highly Confidential before a determination by the court from which the
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`subpoena or order issued, unless the party has obtained the designating party’s
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`permission. The designating party shall bear the burden and expense of seeking
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`protection in that court of its confidential material – and nothing in these provisions
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`should be construed as authorizing or encouraging a receiving party in this action to
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`disobey a lawful directive from another court.
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`12.
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`Unauthorized disclosure of confidential material. If a receiving party learns
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`that, by inadvertence or otherwise, it has disclosed confidential material to any person or in any
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`circumstance not authorized under this Order, the receiving party must immediately (a) notify in
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`writing the designating party of the unauthorized disclosures, (b) use its best efforts to retrieve all
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`unauthorized copies of the confidential material, (c) inform the person or persons to whom
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`unauthorized disclosures were made of all the terms of this Order, and (d) request such person or
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`persons to execute the Acknowledgment that is attached hereto as Attachment B.
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`
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`13. Order Subject to Modification. This Order shall be subject to modification on
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`motion of any party or any other person who may show an adequate interest in the matter to
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`intervene for purposes of addressing the scope and terms of this Order. The Order shall not,
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`however, be modified until the parties shall have been given notice and an opportunity to be
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`heard on the proposed modification.
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`14.
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`No Judicial Determination. This Order is entered based on the representations
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`and agreements of the parties and for the purpose of facilitating discovery. Nothing herein shall
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`be construed or presented as a judicial determination that any specific document or item of
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`information designated as CONFIDENTIAL or HIGHLY CONFIDENTIAL by counsel is
`10
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`6:18-cv-02016-JMC Date Filed 11/19/19 Entry Number 70 Page 11 of 14
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`subject to protection under Rule 26(c) of the Federal Rules of Civil Procedure or otherwise until
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`such time as a document-specific ruling shall have been made.
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`15.
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`[If by consent] Persons Bound. This Order shall take effect when entered and
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`shall be binding upon: (1) counsel who signed below and their respective law firms; and (2) their
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`respective clients.
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`IT IS SO ORDERED.
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`November 19, 2019
`Columbia, South Carolina
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`s/J. Michelle Childs
`UNITED STATES DISTRICT JUDGE
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`11
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`

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`6:18-cv-02016-JMC Date Filed 11/19/19 Entry Number 70 Page 12 of 14
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`
`
`ATTACHMENT A
`CERTIFICATION BY COUNSEL OF DESIGNATION
`OF INFORMATION AS CONFIDENTIAL
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF SOUTH CAROLINA
`[DIVISION [all caps]] DIVISION
`
`Civil Action No. [Case Number]
`
`Certification by Counsel of Designation
` of Information as Confidential
`
`)
`)
`)
`)
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`)
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`)
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`Defendant
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`Check and complete one of the two options below.
`
`
`[Plaintiff]
`
`Plaintiff,
`
`
`vs.
`[Defendant]
`
`
`
`
`Documents produced herewith [whose bates numbers are listed below (or) which are
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`listed on the attached index] have been marked as CONFIDENTIAL subject to the
`Confidentiality Order entered in this action which Order is dated [confidentiality order date].
`
`By signing below, I am certifying that I have personally reviewed the marked documents
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`and believe, based on that review, that they are properly subject to protection under the terms of
`Paragraph 3 of the Confidentiality Order.
`
`
`
`
`
`❑
`
`I am a member of the Bar of the United States District Court for the District of
`South Carolina. My District Court Bar number is [District Court Bar #].
`
`
`
`
`❑
`
`I am not a member of the Bar of the United States District Court for the District of
`South Carolina but am admitted to the bar of one or more states. The state in
`which I conduct the majority of my practice is [state in which I practice most]
`where my Bar number is [that state's Bar #]. I understand that by completing this
`certification I am submitting to the jurisdiction of the United States District Court
`for the District of South Carolina as to any matter relating to this certification.
`
`
`Date: [date attachment A signed]
`
`
`
`[Signature of Counsel [s/name]]
`Signature of Counsel
`
`[Printed Name of Counsel [A]]
`Printed Name of Counsel
`
`12
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`

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`6:18-cv-02016-JMC Date Filed 11/19/19 Entry Number 70 Page 13 of 14
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`ATTACHMENT B
`
`ACKNOWLEDGMENT OF UNDERSTANDING
`AND
`AGREEMENT TO BE BOUND
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF SOUTH CAROLINA
`[DIVISION [all caps]] DIVISION
`
`
`
`Civil Action No. [Case Number]
`
`Acknowledgment of Understanding
`
`and
` Agreement to be Bound
`
`)
`)
`)
`)
`)
`)
`)
`)
`)
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`[Plaintiff]
`
`
`
`Plaintiff,
`vs.
`
`[Defendant]
`
`
`
`Defendant
`
`
`
`
`
`
` The undersigned hereby acknowledges that he or she has read the Confidentiality Order
`dated [confidentiality order date], in the above captioned action, understands the terms thereof,
`and agrees to be bound by such terms. The undersigned submits to the jurisdiction of the United
`States District Court for the District of South Carolina in matters relating to the Confidentiality
`Order and understands that the terms of said Order obligate him/her to use discovery materials
`designated CONFIDENTIAL solely for the purposes of the above-captioned action, and not to
`disclose any such confidential information to any other person, firm or concern.
`
`The undersigned acknowledges that violation of the Stipulated Confidentiality Order may
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`result in penalties for contempt of court.
`
`
`
`
`
`
`Name:
`
`Job Title:
`
`Employer:
`Business Address:
`
`[undersigned name [att B]]
`[Job Title [att B]]
`[Employer [att B]]
`[Business Address [att B]]
`
`
`
`
`Date: [date attachment B signed]
`
`
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`[Signature [attachment B]]
`Signature
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`13
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`6:18-cv-02016-JMC Date Filed 11/19/19 Entry Number 70 Page 14 of 14
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`ATTACHMENT C
`
`CERTIFICATION OF COUNSEL OF NEED
`FOR ASSISTANCE OF PARTY/EMPLOYEE
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF SOUTH CAROLINA
`[DIVISION [all caps]] DIVISION
`
`
`Civil Action No. [Case Number]
`
` Certification of Counsel
`of Need for Assistance of Party/Employee
`
`The individual named above is:
`
`
`
`)
`[Plaintiff]
`)
`
`
`)
`
`Plaintiff,
`)
`vs.
`
`)
`[Defendant]
`)
`
`
`)
`
`Defendant
`)
`
`
`___________________________________ )
`
`Pursuant to the Confidentiality Order entered in this action, most particularly the
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`provisions of Paragraph 5.b.2., I certify that the assistance of [name of assistant [att C]] is
`reasonably necessary to the conduct of this litigation and that this assistance requires the
`disclosure to this individual of information which has been designated as CONFIDENTIAL.
`
`I have explained the terms of the Confidentiality Order to the individual named above
`
`and will obtain his or her signature on an “Acknowledgment of Understanding and Agreement to
`be Bound” prior to releasing any confidential documents to the named individual and I will
`release only such confidential documents as are reasonably necessary to the conduct of the
`litigation.
`
`
`
`
`A named party;
`
`
`
`❑
`
`❑
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`An employee of named party [employee of named party]. This employee’s job
`title is [employee's job title] and work address is [employee's work address].
`
`
`
`Date: [date attachment C signed]
`
`
`
`
`
`
`
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`[Signature [attachment C]]
`Signature
`
`
`
`14
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`
`