Case 6:20-cv-00420-ADA Document 61 Filed 07/14/21 Page 1 of 10
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE WESTERN DISTRICT OF TEXAS
`WACO DIVISION
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`EPISTAR CORPORATION,
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`Plaintiff,
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`v.
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`LOWE’S COMPANIES, INC.,
`LOWE’S HOME CENTERS, LLC,
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`Defendants.
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`CASE NO.: 6:20-cv-00420-ADA
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`JURY TRIAL DEMANDED
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`CONFIDENTIALITY AND PROTECTIVE ORDER
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`Before the court is the joint motion of the parties for the entry of a confidentiality and
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`protective order (“Protective Order”). After careful consideration, it is hereby ORDERED as
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`follows:
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`1.
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`Classified Information
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`“Classified Information” means any information of any type, kind, or character that is
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`designated as “Confidential”, “For Counsel Only”, or “Attorneys Eyes Only” by any of the
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`supplying or receiving persons, whether it be a document, information contained in a document,
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`information revealed during a deposition, information revealed in an interrogatory answer, or
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`otherwise.
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`2.
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`Qualified Persons
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`“Qualified Persons” means:
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`a.
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`For Counsel or Attorneys Only information:
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`i.
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`retained counsel for the parties in this litigation and their respective staff;
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`ii.
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`their
`independent experts or consultants (and
`actual or potential
`administrative or clerical staff) engaged in connection with this litigation
`(which shall not include the current employees, officers, members, or agents
`of parties or affiliates of parties) who, prior to any disclosure of Classified
`Information to such person, have signed a document agreeing to be bound
`by the terms of this Protective Order (such signed document to be maintained
`by the attorney retaining such person) and have been designated in writing
`by notice to all counsel;
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`iii.
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`this court and its staff and any other tribunal or dispute resolution officer
`duly appointed or assigned in connection with this litigation.
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`b.
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`For Confidential information:
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`i.
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`ii.
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`iii.
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`iv.
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`v.
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`the persons identified in subparagraph 2(a);
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`the party, if a natural person;
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`if the party is an entity, such officers or employees of the party who are
`actively involved in the prosecution or defense of this case who, prior to any
`disclosure of Confidential information to such person, have been designated
`in writing by notice to all counsel and have signed a document agreeing to
`be bound by the terms of this Protective Order (such signed document to be
`maintained by the attorney designating such person);
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`litigation vendors, court reporters, and other litigation support personnel;
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`any person who was an author, addressee, or intended or authorized recipient
`of the Confidential information and who agrees to keep the information
`confidential, provided that such persons may see and use the Confidential
`information but not retain a copy.
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`Such other person as this court may designate after notice and an opportunity to be
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`Designation Criteria
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`Nonclassified Information. Classified Information shall not include information that
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`i.
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`ii.
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`is in the public domain at the time of disclosure, as evidenced by a written
`document;
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`becomes part of the public domain through no fault of the recipient, as
`evidenced by a written document;
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`c.
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`3.
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`a.
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`heard.
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`either:
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`iii.
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`iv.
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`the receiving party can show by written document was in its rightful and
`lawful possession at the time of disclosure; or
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`lawfully comes into the recipient’s possession subsequent to the time of
`disclosure from another source without restriction as to disclosure, provided
`such third party has the right to make the disclosure to the receiving party.
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`b.
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`Classified Information. A party shall designate as Classified Information only such
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`information that the party in good faith believes in fact is confidential. Information that is generally
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`available to the public, such as public filings, catalogues, advertising materials, and the like, shall
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`not be designated as Classified.
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`Information and documents that may be designated as Classified Information include, but
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`are not limited to, trade secrets, confidential or proprietary financial information, operational data,
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`business plans, and competitive analyses, personnel files, personal information that is protected by
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`law, and other sensitive information that, if not restricted as set forth in this order, may subject the
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`producing or disclosing person to competitive or financial injury or potential legal liability to third
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`parties.
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`Correspondence and other communications between the parties or with nonparties may be
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`designated as Classified Information if the communication was made with the understanding or
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`reasonable expectation that the information would not become generally available to the public.
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`c.
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`For Counsel or Attorneys Only. The designation “For Counsel Only” or “Attorneys
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`Eyes Only” shall be reserved for information that is believed to be unknown to the opposing party
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`or parties, or any of the employees of a corporate party. For purposes of this order, so-designated
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`information includes, but is not limited to, product formula information, design information, non-
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`public financial information, pricing information, customer identification data, and certain study
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`methodologies.
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`d.
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`Ultrasensitive Information. At this point, the parties do not anticipate the need for
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`higher levels of confidentiality as to ultrasensitive documents or information. However, in the event
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`that a court orders that ultrasensitive documents or information be produced, the parties will
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`negotiate and ask the court to enter an ultrasensitive information protocol in advance of production
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`to further protect such information.
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`4.
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`Use of Classified Information
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`All Classified Information provided by any party or nonparty in the course of this litigation
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`shall be used solely for the purpose of preparation, trial, and appeal of this litigation and for no other
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`purpose, and shall not be disclosed except in accordance with the terms hereof.
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`5.
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`Marking of Documents
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`Documents provided in this litigation may be designated by the producing person or by any
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`party as Classified Information by marking each page of the documents so designated with a stamp
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`indicating that the information is “Confidential”, “For Counsel Only”, or “Attorneys Eyes Only”.
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`In lieu of marking the original of a document, if the original is not provided, the designating party
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`may mark the copies that are provided. Originals shall be preserved for inspection.
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`6.
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`Disclosure at Depositions
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`Information disclosed at (a) the deposition of a party or one of its present or former officers,
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`directors, employees, agents, consultants, representatives, or independent experts retained by
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`counsel for the purpose of this litigation, or (b) the deposition of a nonparty may be designated by
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`any party as Classified Information by indicating on the record at the deposition that the testimony
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`is “Confidential” or “For Counsel Only” and is subject to the provisions of this Order.
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`Any party also may designate information disclosed at a deposition as Classified
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`Information by notifying all parties in writing not later than 30 days of receipt of the transcript of
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`the specific pages and lines of the transcript that should be treated as Classified Information
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`thereafter. Each party shall attach a copy of each such written notice to the face of the transcript
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`and each copy thereof in that party’s possession, custody, or control. All deposition transcripts shall
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`be treated as For Counsel Only for a period of 30 days after initial receipt of the transcript.
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`To the extent possible, the court reporter shall segregate into separate transcripts information
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`designated as Classified Information with blank, consecutively numbered pages being provided in
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`a nondesignated main transcript. The separate transcript containing Classified Information shall
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`have page numbers that correspond to the blank pages in the main transcript.
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`Counsel for a party or a nonparty witness shall have the right to exclude from depositions
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`any person who is not authorized to receive Classified Information pursuant to this Protective Order,
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`but such right of exclusion shall be applicable only during periods of examination or testimony
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`during which Classified Information is being used or discussed.
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`7.
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`a.
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`Disclosure to Qualified Persons
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`To Whom. Classified Information shall not be disclosed or made available by the
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`receiving party to persons other than Qualified Persons except as necessary to comply with
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`applicable law or the valid order of a court of competent jurisdiction; provided, however, that in the
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`event of a disclosure compelled by law or court order, the receiving party will so notify the
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`producing party as promptly as practicable (if at all possible, prior to making such disclosure) and
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`shall seek a protective order or confidential treatment of such information. Information designated
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`as For Counsel Only shall be restricted in circulation to Qualified Persons described in subparagraph
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`2(a).
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`b.
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`Retention of Copies During this Litigation. Copies of For Counsel Only information
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`shall be maintained only in the offices of outside counsel for the receiving party and, to the extent
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`supplied to experts described in subparagraph 2(a)(ii), in the offices of those experts. Any
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`documents produced in this litigation, regardless of classification, that are provided to Qualified
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`Persons shall be maintained only at the office of such Qualified Person and only necessary working
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`copies of any such documents shall be made. Copies of documents and exhibits containing
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`Classified Information may be prepared by independent copy services, printers, or illustrators for
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`the purpose of this litigation.
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`c.
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`Each party’s outside counsel shall maintain a log of all copies of For Counsel Only
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`documents that are delivered to Qualified Persons.
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`8.
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`Unintentional Disclosures
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`Documents unintentionally produced without designation as Classified Information later
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`may be designated and shall be treated as Classified Information from the date written notice of the
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`designation is provided to the receiving party.
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`If a receiving party learns of any unauthorized disclosure of Confidential information or For
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`Counsel Only information, the party shall immediately upon learning of such disclosure inform the
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`producing party of all pertinent facts relating to such disclosure and shall make all reasonable efforts
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`to prevent disclosure by each unauthorized person who received such information.
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`9.
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`Documents Produced for Inspection Prior to Designation
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`In the event documents are produced for inspection prior to designation, the documents shall
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`be treated as For Counsel Only during inspection. At the time of copying for the receiving parties,
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`Classified Information shall be marked prominently “Confidential”, “For Counsel Only”, or
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`“Attorneys Eyes Only” by the producing party.
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`10.
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`Consent to Disclosure and Use in Examination
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`Nothing in this order shall prevent disclosure beyond the terms of this order if each party
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`designating the information as Classified Information consents to such disclosure or if the court,
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`after notice to all affected parties and nonparties, orders such disclosure. Nor shall anything in this
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`order prevent any counsel of record from utilizing Classified Information in the examination or
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`cross-examination of any person who is indicated on the document as being an author, source, or
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`recipient of the Classified Information, irrespective of which party produced such information.
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`11.
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`a.
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`Challenging the Designation
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`Classified Information. A party shall not be obligated to challenge the propriety of
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`a designation of Classified Information at the time such designation is made, and a failure to do so
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`shall not preclude a subsequent challenge to the designation. In the event that any party to this
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`litigation disagrees at any stage of these proceedings with the designation of any information as
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`Classified Information, the parties shall first try to resolve the dispute in good faith on an informal
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`basis, such as by production of redacted copies. If the dispute cannot be resolved, the objecting
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`party may invoke this Protective Order by objecting in writing to the party who designated the
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`document or information as Classified Information. The designating party shall then have 14 days
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`to move the court for an order preserving the designated status of the disputed information. The
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`disputed information shall remain Classified Information unless and until the court orders
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`otherwise. Failure to move for an order shall constitute a termination of the status of such item as
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`Classified Information.
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`b.
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`Qualified Persons. In the event that any party in good faith disagrees with the
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`designation of a person as a Qualified Person or the disclosure of particular Classified Information
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`to such person, the parties shall first try to resolve the dispute in good faith on an informal basis. If
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`the dispute cannot be resolved, the objecting party shall have 14 days from the date of the
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`designation or, in the event particular Classified Information is requested subsequent to the
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`designation of the Qualified Person, 14 days from service of the request to move the court for an
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`order denying the disposed person (a) status as a Qualified Person, or (b) access to particular
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`Classified Information. The objecting person shall have the burden of demonstrating that disclosure
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`to the disputed person would expose the objecting party to the risk of serious harm. Upon the timely
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`filing of such a motion, no disclosure of Classified Information shall be made to the disputed person
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`unless and until the court enters an order preserving the designation.
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`12. Manner of Use in Proceedings
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`In the event a party wishes to use any Classified Information in affidavits, declarations,
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`briefs, memoranda of law, or other papers filed in this litigation, the party shall do one of the
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`following: (1) with the consent of the producing party, file only a redacted copy of the information;
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`(2) where appropriate (e.g., in connection with discovery and evidentiary motions) provide the
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`information solely for in camera review; or (3) file such information under seal with the court
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`consistent with the sealing requirements of the court.
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`13.
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`Filing Under Seal
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`The clerk of this court is directed to maintain under seal all documents, transcripts of
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`deposition testimony, answers to interrogatories, admissions, and other papers filed under seal in
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`this litigation that have been designated, in whole or in part, as Classified Information by any party
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`to this litigation consistent with the sealing requirements of the court.
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`14.
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`Return of Documents
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`Not later than 120 days after conclusion of this litigation and any appeal related to it, any
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`Classified Information, all reproductions of such information, and any notes, summaries, or
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`descriptions of such information in the possession of any of the persons specified in paragraph 2
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`(except subparagraph 2(a)(iii)) shall be returned to the producing party or destroyed, except as this
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`court may otherwise order or to the extent such information has been used as evidence at any trial
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`or hearing. Notwithstanding this obligation to return or destroy information, counsel may retain
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`attorney work product, including document indices, so long as that work product does not duplicate
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`verbatim substantial portions of the text of any Classified Information.
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`15. Ongoing Obligations
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`Insofar as the provisions of this Protective Order, or any other protective orders entered in
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`this litigation, restrict the communication and use of the information protected by it, such provisions
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`shall continue to be binding after the conclusion of this litigation, except that (a) there shall be no
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`restriction on documents that are used as exhibits in open court unless such exhibits were filed under
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`seal, and (b) a party may seek the written permission of the producing party or order of the court
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`with respect to dissolution or modification of this, or any other, protective order.
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`16.
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`Advice to Clients
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`This order shall not bar any attorney in the course of rendering advice to such attorney’s
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`client with respect to this litigation from conveying to any party client the attorney’s evaluation in
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`a general way of Classified Information produced or exchanged under the terms of this order;
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`provided, however, that in rendering such advice and otherwise communicating with the client, the
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`attorney shall not disclose the specific contents of any Classified Information produced by another
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`party if such disclosure would be contrary to the terms of this Protective Order.
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`17.
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`Duty to Ensure Compliance
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`Any party designating any person as a Qualified Person shall have the duty to reasonably
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`ensure that such person observes the terms of this Protective Order and shall be responsible upon
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`breach of such duty for the failure of such person to observe the terms of this Protective Order.
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`18. Waiver
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`Pursuant to Federal Rule of Evidence 502, neither the attorney-client privilege nor work
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`product protection is waived by disclosure connected with this litigation.
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`19. Modification and Exceptions
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`The parties may, by stipulation, provide for exceptions to this order and any party may seek
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`an order of this court modifying this Protective Order.
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`14th
`July
`It is SO ORDERED this ____________ day of ___________________, 2021.
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`____________________________________
`UNITED STATES DISTRICT JUDGE
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