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`EFiled: Dec 05 2024 05:04PM EST
`Transaction ID 75147916
`Case No. 2024-0211-MTZ
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`Transaction ID 75147916 {> vie)
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`Case No. 2024-0211-MTZ S77=)
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`EXHIBIT 1
`EXHIBIT 1
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`EFiled: Dec 05 2024 05:04PM EST
`Transaction ID 75147916
`Case No. 2024-0211-MTZ
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`IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE
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`Consolidated
`C.A. No. 2024-0211-MTZ
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`:::::::::::::::::
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`FORTILINE, INC. and PATRIOT
`SUPPLY HOLDINGS, INC.,
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`Plaintiffs,
`
`v.
`
`HAYNE MCCALL, CHRISTOPHER
`ANTOS, BRUCE ROBERTS,
`JEFFREY T. JENKINS, SIDNEY C.
`PETERSON III, CLIFFORD SPAHN,
`JAMES R. COOK, JR., and
`TIMOTHY L. VANEGMOND,
`
`Defendants.
`
`STIPULATION AND [PROPOSED] ORDER FOR
`THE PRODUCTION AND EXCHANGE OF CONFIDENTIAL
`AND HIGHLY CONFIDENTIAL INFORMATION
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`WHEREAS, the parties to the above-captioned action (the “Litigation”) will
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`engage, or are engaged, in discovery proceedings, which may include, among other
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`things, producing documents, responding to written discovery requests, and taking
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`depositions and
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`WHEREAS, those discovery proceedings may involve the production of
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`certain information that one or more of the parties to the Litigation (collectively
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`the “Parties,” and each a “Party”) believe to be confidential and sensitive
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`commercial, financial, or business information;
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`67514/0001-47594058v2
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`GRANTED
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`EFiled: May 06 2024 03:42PM EDT
`Transaction ID 72901945
`Case No. 2024-0211-MTZ
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`IT IS HEREBY STIPULATED AND AGREED, by the Parties hereto,
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`through their undersigned counsel, subject to the approval of the Court, pursuant
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`to Court of Chancery Rules 5.1 and 26(c), that this Stipulation and Order for the
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`Production and Exchange of Confidential and Highly Confidential Information (the
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`“Stipulation”) will govern the handling of documents, deposition testimony,
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`deposition exhibits, deposition transcripts, written discovery requests, interrogatory
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`responses, responses to requests for admissions, and responses to requests for
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`documents and electronically stored information, and any other information or
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`material produced, given or exchanged, including any information contained therein
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`or derived therefrom (“Discovery Material”) by or among any Party or non-Party
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`providing Discovery Material (each a “Producing Party”) in this Litigation.
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`1.
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`Any Producing Party may designate any Discovery Material as
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`“Confidential” under the terms of this Stipulation if such Producing Party in good
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`faith and reasonably believes that such Discovery Material contains nonpublic,
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`confidential, personal, business, strategic, proprietary, or commercially sensitive
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`information that requires the protections provided in this Stipulation (“Confidential
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`Discovery Material”). Any Producing Party may designate any Discovery Material
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`as “Highly Confidential” under the terms of this Stipulation if such Producing Party
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`in good faith and reasonably believes that disclosure of the Discovery Material other
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`than as permitted pursuant to Paragraph 6 of this Stipulation is substantially
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`likely to cause injury to the Producing Party (“Highly Confidential Discovery
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`Material”).
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`2.
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`The designation of Discovery Material as Confidential or Highly
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`Confidential Discovery Material shall be made in the following manner:
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`a.
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`In the case of documents or other materials (apart from
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`depositions or other pre-trial testimony): (i) by affixing the
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`legend
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`“Confidential” or “Highly Confidential” to each page containing any
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`Confidential or Highly Confidential Discovery Material, except that in the
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`case of multi-page documents bound together by staple or other permanent
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`binding, the word “Confidential” or “Highly Confidential” need only be
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`stamped on the first page of the document in order for the entire document to
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`be treated in accordance with its designation; or (ii) in the case of
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`electronically stored information produced in native format, by including
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`“Confidential” or “Highly Confidential” in the file or directory name, or by
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`affixing the legend “Confidential” or “Highly Confidential” to the media
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`containing the Discovery Material (e.g., CD-ROM, DVD flash drive) as
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`applicable.
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`b.
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`In the case of depositions or other pretrial testimony: (i) by a
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`statement on the record, by counsel, at the time of such disclosure or before
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`the conclusion of the deposition or testimony; or (ii) by written notice, sent to
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`all Parties within five (5) business days of receipt of the rough or final
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`transcript (whichever is received first) designating the entire transcript or
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`portions thereof; provided that only those portions of the transcript designated
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`as Confidential or Highly Confidential Discovery Material shall be deemed
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`Confidential or Highly Confidential Discovery Material. All depositions and
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`other pretrial testimony will be deemed to be Highly Confidential Discovery
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`Material until the expiration of the 5th business day after counsel receive a
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`copy of the rough or final transcript (whichever is received first), after which
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`such deposition and other pretrial testimony will be treated in accordance with
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`its confidentiality designation, if any. The Parties may modify this procedure
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`for any deposition or other pretrial testimony, through agreement on the
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`record at such deposition or testimony, without further order of the Court.
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`c.
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`In the case of any other Discovery Material, by written notice
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`that the Discovery Material constitutes Confidential or Highly Confidential
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`Discovery Material, as applicable.
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`3.
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`The designation of Discovery Material as Confidential or Highly
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`Confidential Discovery Material shall constitute a representation that such
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`Discovery Material has been reviewed by an attorney representing the Party
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`making the designation, and that there is a good faith basis for such designation.
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`Inadvertent failure to designate Discovery Material as Confidential or Highly
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`Confidential Discovery Material shall not constitute a waiver of such claim and may
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`be corrected promptly upon discovery of such failure. A Producing Party may
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`designate as “Confidential” or “Highly Confidential” any Discovery Material that
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`has already been produced, including Discovery Material that the Producing Party
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`inadvertently failed to designate as Confidential or Highly Confidential Discovery
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`Material, (i) by notifying in writing the Party to whom the production has been made
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`that the Discovery Material constitutes Confidential or Highly Confidential
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`Discovery Material, or (ii) in a manner consistent with Paragraph 2. The Party
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`making the designation shall mark and replace previously supplied Discovery
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`Material. Upon receiving notice of the inadvertent failure to designate, the Parties
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`shall thereafter treat the Discovery Material so designated as Confidential or Highly
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`Confidential Discovery Material, and such Discovery Material shall be fully subject
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`to this Stipulation from the date of such supplemental notice forward. The Party
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`receiving such notice shall make a reasonable, good faith effort to ensure that any
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`analyses, memoranda, notes, or other such materials generated based upon such
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`newly designated information are immediately treated as containing Confidential or
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`Highly Confidential Discovery Material.
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` In addition, upon receiving such
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`supplemental written notice, any receiving Party that disclosed the Discovery
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`Material before its designation as Confidential or Highly Confidential Discovery
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`Material shall exercise its best efforts to ensure (i) the return or destruction of such
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`Discovery Material by any person not authorized to receive the Confidential or
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`Highly Confidential Discovery Material under the terms of this Stipulation, (ii) that
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`any documents or other materials derived from such Discovery Material are treated
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`as if the Discovery Material had been designated as Confidential or Highly
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`Confidential Discovery Material when originally produced, (iii) that such Discovery
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`Material is not further disclosed except in accordance with the terms of this
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`Stipulation, and (iv) that any such Discovery Material, and any information derived
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`therefrom, is used solely for the purposes described in Paragraph 10 of this
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`Stipulation.
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`4.
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`Confidential Discovery Material may be disclosed, summarized,
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`described, characterized, or otherwise communicated or made available in whole or
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`in part only to the following persons for use in accordance with this Stipulation:
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`a.
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`The Parties and the directors, officers, general partners, limited
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`partners, managers, members, and employees of the Parties who are assisting
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`with or making decisions concerning the Litigation, to the extent deemed
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`reasonably necessary by counsel of record for the purpose of assisting in the
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`prosecution or defense of the Litigation;
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`b.
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`Counsel who represent Parties in this Litigation (whether or not
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`appearing as counsel of record, and including in-house counsel), and the
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`partners, counsel, associates, paralegals, secretaries, clerical, regular and
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`temporary employees, and service vendors of such counsel (including outside
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`copying and litigation support services) who are assisting with the Litigation;
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`c.
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`Counsel who represent parties (whether or not appearing as
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`counsel of record, and including in-house counsel) in the litigation pending in
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`South Carolina styled Fortiline, Inc. v. STAline Waterworks, Inc. et al., Case
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`No. 2023CP4006307, Richland County Court of Common Pleas (filed Nov.
`
`28, 2023) (the “South Carolina Action”) and in Texas, styled In re: Fortiline,
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`Inc., Cause No. 24-0557-C395; currently pending in the 395th Judicial District
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`Court of Williamson County, Texas (the “Texas Action”), and the partners,
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`counsel, associates, paralegals, secretaries, clerical, regular and temporary
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`employees, and service vendors of such counsel (including outside copying
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`and litigation support services) who are assisting with the South Carolina
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`Action and/or the Texas Action, and such other related cases as the Parties
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`may agree to add pursuant to the terms of this Stipulation;
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`d.
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`Subject to Paragraph 8, experts or consultants assisting counsel
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`for the Parties, and partners, associates, paralegals, secretaries, clerical,
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`regular and temporary employees, and service vendors of such experts or
`
`consultants (including outside copying services and outside support services)
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`who are assisting with the Litigation;
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`e.
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`Subject to Paragraph 9, witnesses or deponents, and their
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`counsel, only to the extent necessary to conduct or prepare for depositions or
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`testimony or to prepare and submit declarations or affidavits in this Litigation;
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`f.
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`Any person indicated on the face of a document or accompanying
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`cover letter, email, or other communication to be the author, addressee, or
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`an actual or intended recipient of the document (or indicated as a blind copy
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`recipient in such document/communication’s metadata); any person indicated
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`as the custodian of the document/communication in corresponding metadata
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`or as confirmed by the Producing Party; or, in the case of meeting minutes
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`and presentations, an attendee of the meeting;
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`g.
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`The Court, persons employed by the Court, and court reporters
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`transcribing any hearing, trial, or deposition in this Litigation or any appeal
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`therefrom; and
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`h.
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`Any other person only upon (i) order of the Court entered upon
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`notice to the Parties, or (ii) written stipulation of, or statement on the record
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`by, the Producing Party who provided the Confidential Discovery Material
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`being disclosed, provided that such person signs an undertaking in the form
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`attached as Exhibit A hereto.
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`5.
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`Highly Confidential Discovery Material may be disclosed,
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`summarized, described, characterized, or otherwise communicated or made
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`available in whole or in part only to the following persons for use in connection with
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`the Litigation and in accordance with this Stipulation:
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`a.
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`Counsel who represent Parties in this Litigation (whether or not
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`appearing as counsel of record, and including in-house counsel), and the
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`partners, counsel associates, paralegals, secretaries, clerical, regular and
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`temporary employees, and service vendors of such counsel (including outside
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`copying and litigation support services) who are assisting with the Litigation;
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`b.
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`Subject to Paragraph 8, experts or consultants assisting counsel
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`for the Parties, and partners, associates, paralegals, secretaries, clerical,
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`regular and temporary employees, and service vendors of such experts or
`
`consultants (including outside copying services and outside support services)
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`who are assisting with the Litigation;
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`c.
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`Subject to Paragraph 9, witnesses or deponents, and their
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`counsel, only to the extent necessary to conduct or prepare for depositions or
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`testimony or to prepare and submit declarations or affidavits in this Litigation;
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`d.
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`Any person indicated on the face of a document or accompanying
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`cover letter, email, or other communication to be the author, addressee, or an
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`actual or intended recipient of the document, (or indicated as a blind copy
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`recipient in such document/communication’s metadata); any person indicated
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`as the custodian of the document/communication in corresponding metadata
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`or as confirmed by the Producing Party; or, in the case of meeting minutes
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`and presentations, an attendee of the meeting;
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`e.
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`The Court, persons employed by the Court, and court reporters
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`transcribing any hearing, trial, or deposition in this Litigation or any appeal
`
`therefrom; and
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`f.
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`Any other person only upon (i) order of the Court entered upon
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`notice to the Parties, or (ii) written stipulation of, or statement on the record
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`by, the Producing Party who provided the Highly Confidential Discovery
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`Material being disclosed, and provided that such person signs an undertaking
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`in the form attached as Exhibit A hereto.
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`6.
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`Subject to Paragraph 25, to the extent that testimony is sought
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`concerning Confidential or Highly Confidential Discovery Material during any
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`deposition or in any other pretrial venue, any Party may exclude any person from
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`the deposition or other venue during such testimony if the Confidential or Highly
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`Confidential Discovery Material may not be disclosed to such person under the
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`terms of this Stipulation.
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`7.
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`Notwithstanding Paragraph 5(c) and 6(b), Confidential or Highly
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`Confidential Discovery Material may be provided to persons listed therein only to
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`the extent necessary for such expert or consultant to prepare a written opinion,
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`to prepare to testify, or to assist counsel in this Litigation, provided that such expert
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`or consultant (i) is not currently an employee of, or advising or discussing
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`employment with, or consultant to (aside from expert services provided in
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`connection with this Litigation), any Party or any known Competitor (as defined
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`below) or potential transaction counterparty of the Producing Party designating the
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`Confidential or Highly Confidential Discovery Material, as far as the expert or
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`consultant can reasonably determine, and (ii) is using said Confidential or Highly
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`Confidential Discovery Material pursuant to the terms of this Stipulation; and further
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`provided that such expert or consultant agrees to be bound by the terms of this
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`Stipulation by signing an undertaking in the form attached as Exhibit A hereto.
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`Counsel for the Party showing, providing, or disclosing Confidential or Highly
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`Confidential Discovery Material to any person required to execute an undertaking
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`pursuant to this paragraph shall be responsible for obtaining and retaining such
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`signed undertaking before provision of the Confidential or Highly Confidential
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`Discovery Material to such expert or consultant. Under no circumstances shall an
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`expert or consultant who is a Competitor or an employee of a Competitor of the
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`Producing Party, or who is providing services to any of the foregoing, be provided
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`access to Confidential or Highly Confidential Discovery Material absent further
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`order of the Court or consent of the Producing Party. “Competitors” are persons or
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`entities engaged in the same or similar lines of business as the Producing Party.
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`8.
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`Notwithstanding Paragraphs 5(d) and 6(c), Confidential or Highly
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`Confidential Discovery Material may be provided to persons listed therein only after
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`(i) such persons confirm their understanding and agreement to abide by the terms of
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`this Stipulation by making such a statement on the record, and/or by signing an
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`undertaking in the form attached as Exhibit A hereto, or (ii) a court of competent
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`jurisdiction orders them to abide by the terms of this Stipulation. Counsel for the
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`Party showing Confidential or Highly Confidential Discovery Material to any person
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`required to execute an undertaking pursuant to this paragraph shall be responsible
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`for obtaining and retaining such signed undertaking before the provision of such
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`Confidential or Highly Confidential Discovery Material to such person.
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`9.
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`Confidential or Highly Confidential Discovery Material shall be used
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`solely for purposes of this Litigation, or other related litigation identified herein, or
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`subsequently agreed to by the Parties, and only to the extent lead counsel for all
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`parties in such related litigation sign an undertaking in the form attached as Exhibit
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`A, and shall not be used for any other purpose, including, without limitation, any
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`business or commercial purpose; provided, however, that the foregoing shall not
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`apply to Confidential or Highly Confidential Discovery Material that is or properly
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`becomes part of the public record; and further provided that the restrictions on the
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`use of Confidential Discovery Material may be modified for good cause shown.
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`10. Every person to whom Confidential or Highly Confidential Discovery
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`Material is disclosed, summarized, described, characterized, or otherwise
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`communicated or made available, in whole or in part, shall be advised that the
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`information is being disclosed pursuant and subject to the terms of this Stipulation
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`and may not be disclosed or used for purposes other than those permitted hereunder.
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`Each such person shall maintain the Confidential or Highly Confidential Discovery
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`Material, or information derived therefrom, in a manner reasonably calculated to
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`prevent unauthorized disclosure. Any Party issuing a subpoena to a non-Party
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`shall enclose a copy of this Stipulation and notify the non-Party that the protections
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`of this Stipulation are available to such non-Party.
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`11. Any pleading, brief, memorandum, motion, letter, affidavit, exhibit or
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`other document filed with the Court that discloses, summarizes, describes,
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`characterizes, includes or attaches or otherwise communicates Confidential or
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`Highly Confidential Discovery Material (a “Confidential Filing”) must be filed
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`confidentially and not available for public access (“Confidential Treatment”) in
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`accordance with the provisions of Court of Chancery Rules 5.1 and 79.1 and the
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`Administrative Directive of the Chancellor of the Court of Chancery of the State
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`of Delaware Amended No. 2003-1, dated March 15, 2007, regarding e-File
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`Administrative Procedures, which may be accomplished by submitting
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`documents, every page of which shall have a footer stating:
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`THIS DOCUMENT IS A CONFIDENTIAL FILING.
`ACCESS IS PROHIBITED EXCEPT AS
`AUTHORIZED BY COURT ORDER.
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`In addition, every Confidential Filing must be submitted with a cover page
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`bearing the title of the Litigation, the title of the Confidential Filing, and stating:
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`YOU ARE IN POSSESSION OF A CONFIDENTIAL
`FILING FROM THE COURT OF CHANCERY OF
`THE STATE OF DELAWARE.
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`If you are not authorized by Court order to view or
`retrieve this document, read no further than this page.
`You should contact the following person:
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`[Filing Attorney or Party Name]
`[Filing Attorney Law Firm]
`[Filing Attorney or Party Address]
`[Filing Attorney or Party Telephone Number]
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`If a public version of the Confidential Filing will be filed in accordance with
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`Court of Chancery Rule 5.1(d), then the cover page shall also state:
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`A public version of this document will be filed on or
`before [DATE]
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`If a paper copy of that document is to be submitted to the Court for any reason, that
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`document shall be submitted in a sealed envelope or package marked with the title
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`of the Litigation and bearing a statement substantially in the following form:
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`CONFIDENTIAL
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`FILED UNDER SEAL PURSUANT TO A
`PROTECTIVE
`
`ORDER DATED ____________, 20__, GOVERNING
`
`CONFIDENTIALITY OF DOCUMENTS AND
`INFORMATION
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`OBTAINED DURING THE COURSE OF THIS
`LITIGATION.
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`THIS ENVELOPE IS NEITHER TO BE OPENED
`NOR THE CONTENTS THEREOF DISPLAYED
`OR REVEALED EXCEPT BY OR TO QUALIFIED
`PERSONS OR BY COURT ORDER.
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`12.
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`A Party making a Confidential Filing must comply with the provisions
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`of Court of Chancery Rule 5.1. The definition of Confidential or Highly
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`Confidential in this Stipulation may encompass Confidential or Highly Confidential
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`Discovery Information that falls within a broader range of material than is covered
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`by Rule 5.1. Nevertheless, when complying with Rule 5.1, parties must file a copy
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`of the Confidential Filing for public inspection that omits only such Confidential or
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`Highly Confidential Discovery Material as to which the Producing Party reasonably
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`and in good faith believes the public interest in access to Court proceedings is
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`outweighed by the harm public disclosure of such Discovery Material would cause
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`because it contains sensitive, non-public information. For avoidance of doubt, the
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`Parties have no obligation to file public versions of any exhibits, affidavits,
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`declarations or other attachments filed as part of a Confidential Filing, except as
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`required by Court of Chancery Rule 5.1(f)(1) or if otherwise ordered by the Court or
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`required by the Register in Chancery.
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`13.
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`All materials filed pursuant to Paragraph 12 shall be released from
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`Confidential Treatment (as defined in Court of Chancery Rule 5.1) by the Register
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`in Chancery only as provided in Court of Chancery Rules 5.1(d) and 5.1(g), as
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`applicable, or upon further order of this Court. When any Party receives a notice
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`from the Register in Chancery pursuant to Rule 5.1 concerning the release of
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`Confidential Filings that were filed with the Court by such Party but contain
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`Discovery Material designated as Confidential or Highly Confidential Discovery
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`Material by another Producing Party, the Party receiving the notice shall deliver a
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`copy of such notice (by hand, email, or facsimile transmission) to counsel for the
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`Producing Party (or Producing Parties) within three (3) business days of the receipt
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`of such notice, if such notice is not otherwise sent to such Producing Party by the
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`Register in Chancery, so as to enable the latter to seek further Confidential Treatment
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`or to have the documents returned or destroyed. The provisions of this Paragraph
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`may be waived only with the prior written consent of the Producing Party.
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`14.
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`In accordance with the provisions of Court of Chancery Rule 5.1(f), any
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`Party who objects to the continued restriction on public access to any Confidential
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`Filing, or any portion thereof, shall give written notice of the objection to the
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`Producing Party. If the Confidential Filing was a document for which the filing of
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`a public version was not required under Rule 5.1(d), the Producing Party seeking to
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`continue the restriction on public access to the Confidential Filing, or any portion
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`thereof, shall provide the notices and public filings within the time periods required
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`by Rule 5.1(f)(1). To the extent that the Producing Party seeks to continue the
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`restriction on public access to the Confidential Filing, or any portion thereof, to
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`which a public version is available, the Producing Party shall file a motion with the
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`Court within the five-day period mandated by Court of Chancery Rule 5.1(f)(2).
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`The filing of the motion constitutes a certification that the signer of the motion
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`personally reviewed the Confidential Filing and that continued Confidential
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`Treatment is appropriate. The person challenging Confidential Treatment shall
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`have five (5) days to file an opposition. The Court shall then determine whether
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`Confidential Treatment will be maintained, or whether a reply, hearing or further
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`proceedings are warranted. If a motion seeking continued Confidential Treatment
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`is not timely filed, then the Confidential Filing shall become part of the public
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`record, and the Register in Chancery shall permit access to the Confidential Filing
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`on the docket system to the same extent as any other public filing. If an opposition
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`to the motion is not timely filed, then the challenge shall be deemed withdrawn and
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`the Confidential Filing shall continue to receive Confidential Treatment.
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`15. During the pendency of this Litigation, any Party objecting to the
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`designation of any Discovery Material as Confidential or Highly Confidential
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`Discovery Material may, after making a good faith effort to resolve any such
`
`objection, move on reasonable notice for an order vacating the designation. While
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`such a motion is pending, the Discovery Material in question shall be treated as
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`Confidential or Highly Confidential Discovery Material pursuant to this Stipulation.
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`The provisions of this Stipulation are not intended to shift any burdens of proof,
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`including the burden of establishing that any Discovery Material validly constitutes
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`Confidential or Highly Confidential Discovery Material, which burden remains on
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`the Producing Party that designates such Discovery Material as Confidential or
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`Highly Confidential Discovery Material.
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`16.
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`The Parties reserve the right to apply, upon short notice, for an order
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`seeking additional safeguards with respect to the use and handling of Discovery
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`Material or to modify the terms of this Stipulation. The Parties agree to meet and
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`confer in good faith prior to moving the Court for any modifications or additional
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`safeguards.
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`17.
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`Entering into this Stipulation, or agreeing to and/or producing or
`
`receiving Discovery Material (regardless of confidentiality designation, if any) or
`
`otherwise complying with the terms of this Stipulation, shall not:
`
`a.
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`Prejudice in any way the rights of any Party to (i) seek production
`
`of documents or information the Party considers subject to discovery, or (ii)
`
`object to the production of documents or information it considers not subject
`
`to discovery;
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`b.
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`Operate as an admission by any Party that any Discovery
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`Material constitutes Confidential or Highly Confidential Discovery Material
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`
`
`or contains or reflects trade secrets or any other type of confidential
`
`information;
`
`Prejudice in any way the rights of any Party to (i) petition the Court for
`
`a further protective order relating to any purportedly Confidential or Highly
`
`Confidential Discovery Material, or (ii) seek a determination by the Court
`
`whether any Discovery Material (regardless of confidentiality designation, if
`
`any) should be subject to the terms of this Stipulation;
`
`c.
`
`Prevent any Party from agreeing in writing to alter or waive the
`
`provisions or protections provided herein with respect to any Discovery
`
`Material;
`
`d.
`
`Prejudice in any way the rights of any Party to object to the
`
`relevance, authenticity, use, or admissibility into evidence of any document,
`
`testimony, or other evidence subject to this Stipulation;
`
`e.
`
`Preclude any Party from objecting to discovery that it believes
`
`to be otherwise improper; or
`
`f.
`
`Operate as a waiver of any attorney-client, work product, business
`
`strategy, trade secret, or other privilege immunity or protection.
`
`18.
`
`This Stipulation has no effect upon, and shall not apply to, a
`
`Producing Party’s use or disclosure of its own Discovery Material for any purpose.
`
`Nothing herein shall: (i) prevent a Producing Party from disclosing its own
`19
`
`
`
`Confidential or Highly Confidential Discovery Material; or (ii) impose any
`
`restrictions on the use or disclosure by any person of documents, materials, or
`
`information designated as Confidential or Highly Confidential Discovery Material
`
`obtained lawfully by such person independently of the discovery proceedings in
`
`this Litigation, and not otherwise subject to confidentiality restrictions.
`
`19.
`
`If Discovery Material that is subject to a claim of attorney- client
`
`privilege, attorney work product, or any other applicable privilege or immunity or
`
`ground on which production of that information should not be made to any Party
`
`(“Inadvertent Production Material”) is inadvertently produced to that Party or
`
`Parties, such inadvertent production shall in no way prejudice or otherwise
`
`constitute a waiver of, or estoppel as to, any claim of attorney-client privilege,
`
`work product, or other applicable privilege or immunity; provided further:
`
`a.
`
`A claim of
`
`inadvertent production shall constitute
`
`a
`
`representation by that Producing Party that the Inadvertent Production
`
`Material has been reviewed by an attorney for such Producing Party and that
`
`there is a good faith basis for such claim of inadvertent production.
`
`b.
`
`If a claim of inadvertent production is made pursuant to this
`
`Stipulation, with respect to Discovery Material then in the custody of another
`
`Party, the Party possessing the Inadvertent Production Material shall: (i)
`
`refrain from any further examination or disclosure of the claimed Inadvertent
`20
`
`
`
`Production Material; (ii) if requested, promptly make a good-faith effort to
`
`return the claimed Inadvertent Production Material and all copies thereof
`
`(including summaries and excerpts) to counsel for the Producing Party, or
`
`destroy all such claimed Inadvertent Production Material (including
`
`summaries and excerpts) and all copies thereof, and certify in writing to that
`
`fact; and (iii) not use the Inadvertent Production Material for any purpose
`
`until further order of the Court.
`
`c.
`
`A Party may move the Court for an order compelling production
`
`of the claimed Inadvertent Production Material; and may retain a copy of the
`
`material on an attorney’s-eyes-only basis for the purpose of bringing such a
`
`motion; however, while such motion is pending, the Discovery Material in
`
`question shall be treated as Inadvertent Production Material, and such motion
`
`may not assert as a ground for entering such an order the fact or circumstance
`
`of the inadvertent production, nor shall such motion include or otherwise
`
`disclose, as an attachment, exhibit, or otherwise, the Inadvertent Production
`
`Material (or any portion thereof) that is the subject of such motion.
`
`20. Nothing herein shall be deemed to waive any applicable common law
`
`or statutory privilege or work product protection.
`
`21.
`
`In the event additional Parties join or are joined in this Litigation, they
`
`shall not have access to Confidential or Highly Confidential Discovery Material until
`21
`
`
`
`the newly joined Party by its counsel has executed and filed with the Court its
`
`agreement to be bound fully by this Stipulation.
`
`22.
`
`The Parties agree to be bound by the terms of this Stipulation pending
`
`the entry by the Court of this Stipulation, and any violation of its terms shall be
`
`subject to the same sanctions and penalties as if this Stipulation had been entered by
`
`the Court.
`
`23.
`
`Subject to the requirements of Court of Chancery Rule 5.1(g) and any
`
`applicable rule of the Delaware Supreme Court, the provisions of this Stipulation
`
`shall, absent written permission of the Producing Party or further order of the Court,
`
`continue to be binding throughout and after the conclusion of the Litigation,
`
`including, without limitation, any appeals therefrom, except as provided in
`
`Paragraph 25.
`
`24.
`
`In the event that any Confidential or Highly Confidential Discovery
`
`Material is used in open court during any court proceeding or lodged as a trial
`
`exhibit, the material shall lose its confidential status and become part of the public
`
`record, unless the Producing Party applies for and obtains an order from this Court
`
`specifically maintaining the confidential status of particular material. Prior to any
`
`court proceeding in which Confidential or Highly Confidential Discovery Material
`
`is to be used, counsel for the Parties shall confer in good faith on such procedures
`
`that may be necessary or advisable to
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