Full title: Protective Order (re:189 Stipulation) (Whitney MNB) (Entered: 03/11/2021)
Document posted on Mar 10, 2021 in the bankruptcy, 9 pages and 0 tables.
UNITED STATES BANKRUPTCY COURT
FOR THE DISTRICT OF MINNESOTA
In re: Case No. 21-30037
Tea Olive I, LLC d/b/a Stock+Field,
Pursuant to the stipulation of the parties, the Court enters the following protective order:
1. Definitions. As used in this protective order:
(a) “attorney” means an attorney who has appeared in this bankruptcy case;(b) “confidential document” means a document designated as confidential under this protective order;
(c) to “destroy” electronically stored information means to delete from all databases, applications, and file systems so that the information is not accessible without the use of specialized tools or techniques typically used by a forensic expert;
(d) “document” means information, including electronically stored information, disclosed or produced in discovery in a contested matter in this bankruptcy case or under the auspices of Fed. R. Bankr. P. 2004, and also including at a deposition or other examination under oath;
(e) “notice” or “notify” means written notice;
NOTICE OF ELECTRONIC ENTRY AND
(f) “party” means any of the Debtor, Tea Olive I, LLC (the “Debtor”), theOfficial Committee of Unsecured Creditors (the “Committee”), SecondAvenue Capital Partners, LLC (“Second Ave”), Worldwide Distributors(“Worldwide”), other individuals or entities that may become parties to thisbankruptcy case, or other individuals or entities that the aforementionedparties may agree to and which agree to be bound by the terms of thisprotective order; and
(g) “protected document” means a document protected by a privilege or thework-product doctrine.
2 Designating a Document or Deposition as Confidential.
(a) A party or non-party disclosing or producing a document either in a contested matter in this bankruptcy case or under the auspices ofFed. R. Bankr. P. 2004, may designate any documents or testimony as“Confidential Material” or “Attorney’s-Eyes Only Material” in accordance with the following provisions:
(1) Confidential Material: A producing party may designate documents or testimony as “Confidential” if such producing party believes in good faith (or with respect to documents received from another person, has been reasonably advised by such other person) that such documents or testimony constitutes or contains nonpublic, proprietary and commercially sensitive information; or confidential technical, business, financial, personal or other information of a nature that is or properly can be protected under Federal Rule 26(c) or Bankruptcy Rules 7026 or 9018; or is subject by law or by contract to a legally protected right of privacy; or the producing party is under a pre-existing obligation to a non-party to treat as confidential; or the producing party has in good faith been requested by another party or non-party to so designate on the grounds that such other party or non-
party considers such material to contain information that is nonpublic, proprietary and commercially sensitive to such party or non-party.
(2) Attorney’s-Eyes Only Material: A producing party may designatenon-public documents as “Attorney’s’-Eyes Only” if such producingparty determines in good faith that disclosure of the documents otherthan to the people and entities identified in Paragraph 3(c) of thisOrder would pose a risk of competitive harm to the producing partyby exposing trade secrets, or sensitive financial or businessinformation, or the like.
(b) A party or non-party may designate a document as confidential by conspicuously marking each page with the word “confidential” or“attorney’s-eyes only.”
(c) Deposition or Fed. R. Bankr. P. 2004 testimony may be designated as confidential or attorney’s-eyes only:
(1) on the record at the deposition or examination; or
(2) after the deposition or examination, by notifying the parties and those who were present at the deposition within fifteen (15) days after a transcript from the deposition or examination becomes available.
(d) If a witness is expected to testify as to confidential, proprietary, orattorney’s-eyes only information, a party or non-party may request that thewitness’s deposition be taken in the presence of only those persons whoagree to be bound by the terms and conditions of this Order in accordancewith paragraph 3(b)(6)(B) below.
(e) If any receiving party objects to the designation of any document asconfidential or attorney’s eyes only, the receiving party shall first raise the
objection with the producing party in writing (if circumstances permit and, if not, orally to counsel to the producing party), and confer in good faith to attempt to resolve any dispute respecting the terms or operation of this Order. The receiving party may seek relief from the Court if the receiving party and the producing party cannot promptly resolve their dispute. Until the Court rules on such an issue, the designated material shall continue to be treated as designated by the producing party. Upon a motion, the Court may order the removal of the “Confidential” or “Attorney’s-Eyes Only” designation from any document or testimony so designated subject to the provisions of this Order. In connection with any request for relief concerning the propriety of a “Confidential” or “Attorney’s-Eyes Only” designation, the producing party shall bear the burden of proof. The producing party and the receiving party agree to confer in good faith as to the scheduling of any motion or request challenging the designation of any confidential or attorney’s-eyes only material.
3 Who May Receive a Confidential Document.
(a) A confidential or attorney’s-eyes only document may be used only in thisbankruptcy case and any associated adversary proceeding.
(b) No person receiving a confidential document may reveal it, except to:
(1) the Court and its staff;
(2) an attorney or an attorney’s partner, associate, or staff;
(3) a person shown on the face of the confidential document to haveauthored or received it;
(4) a court reporter or videographer retained in connection with thisbankruptcy case or any associated adversary proceeding;
(5) a party; and
(6) any person who:
(A) is retained to assist a party or attorney with this bankruptcycase or any associated adversary proceeding; and
(B) signs a declaration that contains the person’s name, address,employer, and title, and that is in substantially this form:
I have read, and agree to be bound by, the protective
order in the case captioned In re Tea Olive I, LLC, Chapter 11 Case No. 21-30037 in the United States Bankruptcy Court
for the District of Minnesota. As soon as my work in
connection with that action has ended, but not later than 30 days after the termination of that bankruptcy case or any
associated adversary proceeding (including any appeals), I
will return or destroy any confidential document that I
received, any copy of or excerpt from a confidential
document, and any notes or other document that contains
information from a confidential document.
I declare under penalty of perjury that the foregoing is
true and correct.
(c) A party may supplement the “confidential” mark (see paragraph 2(b)) withthe words “attorney’s eyes only,” in which case a confidential document sodesignated may be revealed only the people and entities identified inparagraph 3(b), above, except for those identified in paragraph 3(b)(5).
Notwithstanding the foregoing limitation, attorney’s-eyes only material
may be shared with the in-house attorney for any party working directly on this bankruptcy case or any related adversary proceeding.
(d) If a confidential document is revealed to someone not entitled to receive it,the parties must make reasonable efforts to retrieve it.
4 Serving This Protective Order on a Non-Party. A party serving a subpoena on a non-party must simultaneously serve a copy of this protective order and of Local Rule 9013-2(g).
5 Correcting an Error in Designation. A party or non-party who discloses or produces a confidential document not designated as confidential may, within 7 days after discovering the error, provide notice of the error and produce a copy of the document designated as confidential.
6 Use of a Confidential Document in Court.
(a) Filing. This protective order does not authorize the filing of any documentunder seal. To the extent that a party desires that any confidential orattorney’s-eyes only material be filed under seal, it must adhere to therequirements of Local Rule 9013-2(g).
(b) Presentation at a hearing or trial. A party intending to present anotherparty’s or a non-party’s confidential or attorney’s-eyes only document as anexhibit to any court filing, or at a hearing or trial, that party must promptlynotify the producing party or non-party reasonably in advance of doing soin order to permit the producing party or non-party to seek relief from theCourt.
7 Changing a Confidential Document’s Designation.
(a) Document disclosed or produced by a party. A confidential documentdisclosed or produced by a party remains confidential unless the partiesagree to change its designation or the Court orders otherwise.
(b) Document produced by a non-party. A confidential document produced bya non-party remains confidential unless the non-party agrees to change itsdesignation or the Court orders otherwise after providing an opportunity forthe non-party to be heard.
(c) Changing a designation by Court order. A party who cannot obtainagreement to change a designation may move the Court for an orderchanging the designation. If the motion affects a document produced by anon-party then, with respect to the motion, that non-party is entitled to thesame notice and opportunity to be heard as a party. The party or non-partywho designated a document as confidential must show that the designationsatisfies Fed. R. Civ. P. 26(c).
8 Handling a Confidential Document after Termination of Litigation.
(a) Within 90 days after the entry of an order dismissing, terminating, orconverting this bankruptcy case, each party must:
(1) return or destroy all confidential documents; and
(2) notify the disclosing or producing party that it has returned ordestroyed all confidential documents within the 90-day period.
(b) Notwithstanding paragraph 8(a), each attorney may retain a copy of anyconfidential document submitted to the Court.
9 Inadvertent Disclosure or Production to a Party of a Protected Document.
(1) A party or non-party who discovers that it has inadvertentlydisclosed or produced a protected document must promptly notifythe receiving party and describe the basis of the claim of privilege orprotection. If the party or non-party provides such notice anddescription, the privilege or protection is not waived.
(2) A party who discovers that it may have received an inadvertentlydisclosed or produced protected document must promptly notify thedisclosing or producing party or non-party.
(b) Handling of Protected Document. A party who is notified or discovers thatit may have received a protected document must comply with Fed. R. Civ.
10 Security Precautions and Data Breaches.
(a) Each party must make reasonable efforts to protect the confidentiality ofany confidential document disclosed or produced to that party.
(b) A party who learns of a breach of confidentiality must promptly notify thedisclosing or producing party of the scope and nature of that breach andmake reasonable efforts to remedy the breach.
11 Survival of Obligations. The obligations imposed by this protective order survive the termination of this bankruptcy case.
/e/ William J. Fisher
March 11, 2021
Dated: _________________ ____________________________________ William J. Fisher
United States Bankruptcy Judge