CMT USA, Inc. et al v. Apex Tool Group LLC et al

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
CASE NO. 3:24-CV-137-RJC-DCK
THIS MATTER IS BEFORE THE COURT regarding the parties’ proposed Protective
Order (Document No. 66) filed on April 5, 2024. The Court commends the parties and counsel
for reaching an agreement on this issue, and therefore, adopts the parties’ proposed Protective
Order as follows.
WHEREAS all of the parties to this action (collectively, the “Parties,” and individually, a
“Party”) request that this Court issue a protective order pursuant to Federal Rule of Civil Procedure
26(c) to protect the confidentiality of certain nonpublic and confidential material that will be
exchanged pursuant to and during the course of discovery in this case;
WHEREAS, the Parties, through counsel, agree to the following terms;
WHEREAS, the Parties acknowledge that this Protective Order does not confer blanket
protections on all disclosures or responses to discovery and that the protection it affords only
extends to the limited information or items that are entitled, under the applicable legal principles,
to confidential treatment;
CMT USA, INC. and
CMT UTENSILI S.P.A.,
)
)
)
Plaintiffs, )
)
v. ) PROTECTIVE ORDER
)
APEX TOOL GROUP LLC, and
APEX BRANDS, INC.,
)
)
)
Defendants. )
)
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WHEREAS, the Parties further acknowledge that this Protective Order does not create
entitlement to file confidential information under seal; and
WHEREAS, in light of these acknowledgements, and based on the representations of the
Parties that discovery in this case will involve confidential documents or information the public
disclosure of which will cause harm to the producing person and/or third party to whom a duty of
confidentiality is owed, and to protect against injury caused by dissemination of confidential
documents and information, this Court finds good cause for issuance of an appropriately tailored
confidentiality order governing the pretrial phase of this action;
IT IS, THEREFORE, ORDERED that any person subject to this Protective Order –
including without limitation the Parties to this action, their representatives, agents, experts and
consultants, all third parties providing discovery in this action, and all other interested persons
with actual or constructive notice of this Protective Order – shall adhere to the following terms:
1. Any person subject to this Protective Order who receives from any other person
subject to this Protective Order any “Discovery Material” (i.e., information of any kind produced
or disclosed pursuant to and in course of discovery in this action) that is designated as
“Confidential” or “Highly Confidential – Attorneys’ Eyes Only” pursuant to the terms of this
Protective Order (hereinafter “Confidential Discovery Material” and “Highly Confidential
Discovery Material,” respectively) shall not disclose such Confidential Discovery Material or
Highly Confidential Discovery Material to anyone else except as expressly permitted hereunder.
2. The person producing any given Discovery Material may designate as Confidential
only such portion of such material the public disclosure of which is either restricted by law or will
cause harm to the business, commercial, financial or personal interests of the producing person
and/or a third party to whom a duty of confidentiality is owed and that consists of:
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(a) material nonpublic insider information, confidential and/or commercially
sensitive or proprietary information;
(b) personnel files;
(c) information that a party is under a duty to preserve as confidential under a court
or administrative order, by agreement with or obligation to a third person;
(d) previously nondisclosed material relating to ownership or control of any non-
public company;
(e) any information of a personal or intimate nature regarding any individual;
(f) other information which the party believes in good faith must be maintained in
confidence in order to protect its business or commercial interests; or
(g) any other category of information hereinafter given confidential status by the
Court.
3. The person producing any given Discovery Material may designate as Highly
Confidential – Attorneys’ Eyes Only any such Discovery Material that the producing person
reasonably believes to qualify as so sensitive that its dissemination deserves even further limitation
and consists of:
(a) previously nondisclosed financial information (including without limitation
profitability reports or estimates, percentage fees, design fees, royalty rates, minimum guarantee
payments, sales reports, customer lists, and sale margins);
(b) previously nondisclosed business plans, product development information,
or marketing plans;
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(c) material which contains or discloses information of an extremely high
degree of commercial sensitivity such that it would provide a competitive disadvantage to a Party
(or a competitive advantage to a Party’s competitors) if disclosed.
4. With respect to the Confidential or Highly Confidential – Attorneys’ Eyes Only
portions of any Discovery Material other than deposition transcripts and exhibits, the producing
person or that person’s counsel may designate such portion as “Confidential” or “Highly
Confidential – Attorneys’ Eyes Only” by stamping or otherwise clearly marking as “Confidential”
or “Highly Confidential – Attorneys’ Eyes Only” the protected portion in a manner that will not
interfere with legibility or audibility.
5. With respect to deposition transcripts, a producing person or that person’s counsel
may designate such portion as Confidential or Highly Confidential – Attorneys’ Eyes Only either
by: (a) indicating on the record during the deposition that a question calls for Confidential or
Highly Confidential – Attorneys’ Eyes Only information, in which case the reporter will bind the
transcript of the designated testimony (consisting of question and answer) in a separate volume
and mark it as “Confidential Information Governed by Protective Order” or “Highly Confidential
Information Governed by Protective Order”; or (b) notifying the reporter and all counsel of record,
in writing, within 30 days after the deposition transcript is delivered, of the specific pages and lines
of the transcript and/or the specific exhibits that are to be designated Confidential or Highly
Confidential – Attorneys’ Eyes Only, in which case all counsel receiving the transcript will be
responsible for marking the copies of the designated transcript or exhibit (as the case may be), in
their possession or under their control as directed by the producing person or that person’s counsel
by the reporter. During the 30-day period following the delivery of the deposition transcript, the
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entire deposition transcript will be treated as if it had been designated Highly Confidential –
Attorneys’ Eyes Only.
6. When any inadvertent or mistaken disclosure of Discovery Material protected by
privilege or work-product immunity is discovered by the producing person and brought to the
attention of the receiving person, the receiving person shall treat such Discovery Material in
accordance with Federal Rule of Civil Procedure 26(b)(5)(B). Such inadvertent or mistaken
disclosure shall not by itself constitute a waiver by the producing person of any claims of privilege
or work-product immunity. However, nothing herein restricts the right of the receiving person to
challenge the producing person’s claim of privilege if appropriate within a reasonable time after
receiving notice of the inadvertent or mistaken disclosure.
7. If at any time prior to the trial of this action, a producing person realizes that some
portion(s) of Discovery Material that she, he, or it had previously produced without limitation
should be designated as Confidential or Highly Confidential – Attorneys’ Eyes Only, she, he, or it
may so designate by so apprising all prior recipients of the Discovery Material in writing, and
thereafter such designated portion(s) of the Discovery Material will thereafter be deemed to be and
treated as Confidential or Highly Confidential – Attorneys’ Eyes Only under the terms of this
Protective Order.
8. No person subject to this Protective Order other than the producing person shall
disclose any of the Discovery Material designated by the producing person as Confidential to any
other person whomsoever, except to:
(a) for each of Plaintiffs, collectively, and Defendants, collectively, up to three
(3) designated officers, directors, or employees of said party to whom disclosure is reasonably
necessary for this action;
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(b) outside counsel retained specifically for this action, including any paralegal,
clerical and other assistant employed by such counsel and assigned to this matter;
(c) for each of Plaintiffs, collectively, and Defendants, collectively, one (1) in-
house counsel for the Parties;
(d) outside vendors or service providers (such as copy-service providers and
document-management consultants, graphic production services or other litigation support
services) that counsel hire and assign to this matter, including computer service personnel
performing duties in relation to a computerized litigation system;
(e) any mediator or arbitrator that the Parties engage in this matter or that this Court
appoints, provided such person has first executed a Non-Disclosure Agreement in the form
annexed as an Exhibit hereto;
(f) as to any document, its author, its addressee, and any other person indicated on
the face of the document as having received a copy;
(g) any person retained by a Party to serve as an expert witness or otherwise provide
specialized advice to counsel in connection with this action, provided such person has first
executed a Non-Disclosure Agreement in the form annexed as an Exhibit hereto;
(h) stenographers engaged to transcribe depositions conducted in this action;
(i) this Court, including any appellate court, and the court reporters and support
personnel for the same; and
(j) any witness produced or otherwise put forth by the producing person.
9. No person subject to this Protective Order other than the producing person shall
disclose any of the Discovery Material designated by the producing person as Highly Confidential
– Attorneys’ Eyes Only to any other person whomsoever, except to any persons referred to in
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subparagraphs 8(b)-(j) above. However, if necessary to facilitate settlement discussions, the
Parties may meet and confer to agree upon an officer, director, or employee of each Party to whom
Highly Confidential Discovery Material may be disclosed to.
10. Prior to any disclosure of any Confidential Discovery Material to any person
referred to in subparagraphs 8(a), 8(c), or 8(g) above, or prior to any disclosure of any Highly
Confidential Discovery Material to any person referred to in subparagraph 8(c) or 8(g) above, such
person shall be provided by counsel with a copy of this Protective Order and shall sign a Non-
Disclosure Agreement in the form annexed as an Exhibit hereto stating that that person has read
this Protective Order and agrees to be bound by its terms. Said counsel must then identify the
person to be bound and serve the executed Non-Disclosure Agreement on all other Parties at least
seven (7) days prior to the disclosure of any other Party’s Confidential or Highly Confidential
Discovery Material. If the producing Party has good cause to object to the disclosure, it must serve
the Party proposing to make the disclosure with a written objection within seven (7) days after
service of the identification. Unless the Parties resolve the dispute within seven (7) days after
service of the objection, or a longer period if the parties so agree, the producing Party must move
the Court promptly for a ruling, and the Confidential or Highly Confidential Discovery Material
may not be disclosed to the person to be bound without the Court’s approval.
11. Any Party who objects to any designation of confidentiality may at any time prior
to the trial of this action serve upon counsel for the designating person a written notice stating with
particularity the grounds of the objection. If the Parties cannot reach agreement promptly, counsel
for all Parties will address their dispute to this Court.
12. A Party may be requested to produce Discovery Material that is subject to
contractual or other obligations of confidentiality owed to a third party. Within two business days
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of receiving the request, the receiving Party subject to such obligation shall inform the third party
of the request and that the third party may seek a protective order or other relief from this Court.
If neither the third party nor the receiving Party seeks a protective order or other relief from this
Court within 21 days of that notice, the receiving Party shall produce the information responsive
to the discovery request but may affix the appropriate controlling designation.
13. Recipients of Confidential or Highly Confidential Discovery Material under this
Protective Order may use such material solely for the prosecution and defense of this action and
any appeals thereto, and specifically (and by way of example and not limitations) may not use
Confidential or Highly Confidential Discovery Material for any business, commercial, or
competitive purpose. Nothing contained in this Protective Order, however, will affect or restrict
the rights of any person with respect to its own documents or information produced in this action.
Nor does anything contained in this Protective Order limit or restrict the rights of any person to
use or disclose information or material obtained independently from and not through or pursuant
to the Federal Rules of Civil Procedure.
14. Nothing in this Protective Order will prevent any person subject to it from
producing any Confidential or Highly Confidential Discovery Material in its possession in
response to a lawful subpoena or other compulsory process, or if required to produce by law or by
any government agency having jurisdiction, provided, however, that such person receiving a
request, will provide written notice to the producing person before disclosure and as soon as
reasonably possible, and, if permitted by the time allowed under the request, at least 10 days before
any disclosure. Upon receiving such notice, the producing person will have the right to oppose
compliance with the subpoena, other compulsory process, or other legal notice if the producing
person deems it appropriate to do so.
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15. All persons seeking to file redacted documents or documents under seal with the
Court shall follow LCvR 6.1 of this Court’s Rules of Practice and Procedure.
16. Each person who has access to Discovery Material that has been designated as
Confidential or Highly Confidential – Attorneys’ Eyes Only shall take all due precautions to
prevent the unauthorized or inadvertent disclosure of such material.
17. Any Personally Identifying Information (“PII”) (e.g., social security numbers,
financial account numbers, passwords, and information that may be used for identity theft)
exchanged in discovery shall be maintained by the persons who receive such information and are
bound by this Protective Order in a manner that is secure and confidential. In the event that the
person receiving PII experiences a data breach, she, he, or it shall immediately notify the producing
person of the same and cooperate with the producing person to address and remedy the breach.
Nothing herein shall preclude the producing person from asserting legal claims or constitute a
waiver of legal rights or defenses in the event of litigation arising out of the receiving person’s
failure to appropriately protect PII from unauthorized disclosure.
18. This Protective Order is entered without prejudice to the right of any Party to move
the court for modification of or relief from any of its terms.
19. This Protective Order shall survive the termination of the litigation and remains in
full force and effect unless modified by order of the Court or by written stipulation of the Parties
filed with the court. Within 30 days of the final disposition of this action, including any appeals,
all Discovery Material designated as “Confidential,” or “Highly Confidential – Attorneys’ Eyes
Only” and all copies thereof, shall be promptly returned to the producing person, or, upon
permission of the producing person, destroyed. Further, within 30 days of the final disposition of
this action, including any appeals, each Party shall destroy all copies of Confidential or Highly
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Confidential Discovery Material that contain and/or constitute attorney work product as well as
excerpts, summaries, and digests revealing Confidential or Highly Confidential Discovery
Material; provided, however, that counsel may retain complete copies of all transcripts and
pleadings, including any exhibits attached thereto, for archival purposes subject to the provisions
of this Protective Order.
20. All persons subject to this Protective Order acknowledge that willful violation of
this Protective Order could subject them to punishment for contempt of Court. This Court shall
retain jurisdiction over all persons subject to this Protective Order to the extent necessary to
enforce any obligations arising hereunder or to impose sanctions for any contempt thereof.
SO ORDERED.
Signed: April 9, 2024
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SO STIPULATED AND AGREED.
/s/ Robert E. Colletti
Dated: April 5, 2024
Ward Davis (NC Bar ID 27546)
Joshua B. Durham (NC Bar ID 25414)
BELL, DAVIS & PITT
227 W. Trade St., Suite 1800
Charlotte, NC 28202
(704) 227-0400
ward.davis@belldavispitt.com
jdurham@belldavispitt.com
Edgar H. Haug (pro hac vice)
Robert E. Colletti (pro hac vice)
Jessica M. Stookey (pro hac vice)
Patrick J. Lavery (pro hac vice)
HAUG PARTNERS LLP
745 Fifth Avenue
New York, NY 10151
(212) 588-0800
ehaug@haugpartners.com
rcolletti@haugpartners.com
jstookey@haugpartners.com
plavery@haugpartners.com
Attorneys for Plaintiffs CMT USA, Inc. and
CMT Untensili S.p.A.
/s/ Michael J. McCue
Dated: April 5, 2024
Jason M. Sneed
Megan E. Sneed
SNEED PLLC
445 S. Main St., Suite 400
Davidson, NC 28036
(844) 763-3347
JSneed@SneedLegal.com
MSneed@SneedLegal.com
Michael J. McCue
Aaron D. Johnson
David A. Jackson
LEWIS ROCA ROTHGERBER CHRISTIE LLP
100 Pine St., Ste. 1750
San Francisco, CA 94111
Tel: 650-687-8426
Fax: 650-391-1395
MMcCue@LewisRoca.com
ADJohnson@LewisRoca.com
DJackson@lewisroca.com
Attorneys for Defendants Apex Tool Group LLC
and Apex Brands, Inc.
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IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
CASE NO. 3:24-CV-137-RJC-DCK
I, ___________________________________, acknowledge that I have read and
understand the Protective Order in this action governing the non-disclosure of those portions of
Discovery Material that have been designated as Confidential or Highly Confidential – Attorneys’
Eyes Only. I agree that I will not disclose such Confidential or Highly Confidential Discovery
Material to anyone other than for purposes of this litigation and that at the conclusion of the
litigation I will either return all discovery information to the party or attorney from whom I
received it, or upon permission of the producing party, destroy such discovery information. By
acknowledging these obligations under the Protective Order, I understand that I am submitting
myself to the jurisdiction of the United States District Court for the Western District of North
Carolina for the purpose of any issue or dispute arising hereunder and that my willful violation of
any term of the Protective Order could subject me to punishment for contempt of Court.
Dated: ____________________________
CMT USA, INC. and
CMT UTENSILI S.P.A.,
)
)
)
Plaintiffs, )
)
NON-DISCLOSURE
AGREEMENT
v. )
)
APEX TOOL GROUP LLC, and
APEX BRANDS, INC.,
)
)
)
Defendants. )
)
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