Tucker et al v. Southwestern Energy Company et al
PROTECTIVE ORDER. Signed by Judge D. P. Marshall Jr. on 12/16/11. (kpr)
IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
JAMES TUCKER AND
Case No. l:11-cv-44-DPM
SOUTHWESTERN ENERGY COMPANY;
CHESAPEAKE ENERGY CORPORATION;
AND BHP BILLITON PETROLEUM
PHILLIP BERRY AND
Case No. 1:11-cv-45-DPM
SOUTHWESTERN ENERGY COMPANY;
CHESAPEAKE ENERGY CORPORATION;
AND BHP BILLITON PETROLEUM
The Court holds that the following procedures and provisions shall apply to discovery in
the above-captioned civil action (the "Action") in order to protect information of a sensitive,
confidential, proprietary and/or legally protected nature, and the privacy rights of the parties or
certain non-parties. The entry of this Protective Order is not, and should not be construed as, a
waiver by any party or non-party of any privilege or objection to any particular discovery
"Party" means any current plaintiff or defendant in this Action (including those
listed in the caption above), and any plaintiff, defendant, or other party that may be joined in this
"Non-Party" means any person or entity not a Party who produces documents or
other information or provides testimony in response to a subpoena or other process in this
"Material" is defined as documents, electronically stored information, records,
tangible materials, testimony, responses to discovery, and other information produced by a Party
or Non-Party in discovery in this Action.
"Confidential Material" is dermed as Material that any Party or Non-Party
considers in good faith to be confidential information relating to: trade secrets, research,
development, strategic planning, financial, commercial, confidential, sensitive or proprietary
business, or personal information which, if disclosed, might adversely affect the competitive
position or business operations of the Party or Non-Party producing such materials, or invade the
privacy rights of any person. Each Party or Non-Party that designates information or items for
protection under this Protective Order must take care to limit any such designation to specific
material that qualifies under the appropriate standards.
The "Designator" is any Party or Non-Party who produces Material in this Action
and designates any such Material as "CONFIDENTIAL" in conformity with Paragraph III.
"Non-Related Person" shall mean any person or entity whose ostensible need for
access to Confidential Material is not directly related to furtherance of the judicial proceedings in
this litigation. By way of example, this would include but not be limited to a party or Non
Party's auditor or a regulatory agency (including AOGC or EPA).
DESIGNATION OF MATERIALS AS "CONFIDENTIAL"
Any Party or Non-Party who produces Material in the course of discovery in this
Action may designate such Material as Confidential Material if that Party or Non-Party believes
in good faith that the Material satisfies the definition of Confidential Material, as set forth in
The Designator shall mark the word "CONFIDENTIAL" on the face of each
document and each page so designated at the time it is produced or served, or, in the case of
Confidential Material contained in or on media other than paper, by affixing such a label to the
information or by using its best efforts to identify the information as Confidential Material.
In the event that a Party or Non-Party desires to designate specific answers or
. responses to interrogatories or requests for admission as Confidential Material, the Party or Non
Party shall insert the word "CONFIDENTIAL" in brackets at the beginning of the specific
answer or response.
In the case of depositions, designation of the portion of the transcript (including
exhibits) which contains Confidential Material shall be made within 15 business days after
receipt of the transcript by stamping "CONFIDENTIAL" on the pages that contain Confidential
Material and notifying all Parties and the deponent in writing of the page and line numbers which
have been designated as Confidential Material. In the absence of an agreement on the record or
in writing, or an order of the Court to the contrary, all deposition testimony shall be deemed
Confidential Material until the expiration of the aforementioned 15 business days.
For PUIposes of this Action, no Party concedes that any Material designated by
any other Designator as Confidential Material should be treated as Confidential Material. A
Party shall not be obligated to challenge the propriety of the designation of Material as
"CONFIDENTIAL" at the time made, and the failure to do so shall not preclude a subsequent
challenge in this or any other action. If a Party challenges a designation, it shall give written
notice to the Designator, and the Party and the Designator shall attempt to resolve any challenge
in good faith on an infonnal basis ("meet and confer''). If the challenge cannot be informally
resolved, the Party challenging the designation may seek appropriate relief from the Court;
however, the burden of proof shall be on the Designator. The Material shall continue to be
treated as Confidential Material until the issue relating to the propriety of the designation has
Any Designator may, at any time, withdraw the "CONFIDENTIAL" designation
of any Material produced by that Designator.
The inadvertent failure to designate or withhold any Material as confidential will
not be deemed to waive a later claim as to its confidential nature, or to preclude the producing
Party or Non-Party from designating such Material as confidential at a later date in writing and
with particularity. The Material shall be treated by the receiving Party as Confidential Material
from the time the receiving Party is notified in writing of the change in the designation.
USE AND HANDLING OF CONFIDENTIAL MATERIAL
Confidential Material shall be used only for purposes of preparing for and
litigating this Action (including appeals) and not for any other action or other purpose.
Access to Confidential Material shall be closely controlled and limited to
individuals who have a demonstrable and bona fide need to review it. Confidential Material
shall not be revealed or disclosed, directly or indirectly, in any manner or in any form, to any
person, entity, or judicial tribunal other than:
Counsel of record and any other counsel for the Parties in this
Action, including counsel for insurers for the claims involved in
this Action; members of their firms and associates, associate
attorneys, contract lawyers, paralegals, clerical and other
employees or agents of such counsel who are assisting in the
conduct andlor management of this action, insurers and reinsurers
of any Party who have a need with respect to this specific
litigation to review such information. Should any Party or Non
Party receive a request or subpoena to voluntarily provide
Confidential Material, designated by a Party or Non-Party other
than itself, to a Non-Related Person, then that Party or Non-Party
shall immediately give notice to the Designator and, to the extent
appropriate, allow the Designator to respond to the request or
subpoena. In the event a Party or Non-Party believe a voluntary
disclosure to a Non-Related Person is necessary, such Party and
the Designator shall confer, after which either party may object to
Party deponents and litigation control group personnel for this
The United States District Court, the Court of Appeals, the
Supreme Court of the United States, court personnel, court
reporters, and any jury empanelled in this Action;
Third party deponents and trial witnesses in this Action and their
counsel to the extent necessary for purposes of this Action;
Consultants, experts, and outside litigation support personnel
retained by counsel for any Party to this Action to assist the Party
in the preparation and/or litigation of this Action;
Any mediator retained by the Parties or appointed by the Court.
and employees of such mediator who are assisting in the conduct
of the mediation;
The person or entity that wrote or received the document or gave
the testimony designated as "CONFIDENTIAL"; and
In-house counsel of any Party, and paralegal, clerical, and other
employees assisting in-house counsel;
Others, if the Designator so agrees in writing or, for good cause
shown, the Court so permits.
Before any person described in Paragraphs III.B.I, m.B.5, III.B.6, and m.B.9 is
given access to Confidential Material, the person shall review the Protective Order and agree in
writing (by signing the Acknowledgement attached hereto as Exhibit A) to be bound by this
Protective Order. A copy of the Acknowledgement, together with a list of Confidential Material
disclosed to the person and the date of disclosure, shall be retained by counsel disclosing
Confidential Material until the conclusion of this litigation, including all appeals.
If Confidential Material is to be disclosed during a deposition or trial, the
agreement to be bound and consent to jurisdiction may be made on the record and under oath,
rather than in writing. No person to whom Confidential Material is disclosed may disclose such
Confidential Material to any person other than those persons described in Paragraph ill.B.,
All persons who have access to Confidential Material at any time shall take all
precautions necessary to prohibit access to such Confidential Material other than as provided for
Any summaries or copies of Confidential Material shall bear the appropriate
legend set forth in Paragraph II.B., above, and shall be subject to the tenns of this Protective
Order to the same extent as the infonnation or document from which such summary or copy is
No Party or Non-Party shall file with the Court in this action documents,
quotations from documents, or summaries or tabulations of documents, which have been
designated as Confidential Material without first obtaining leave of Court to file such
Confidential Material under seal, or written agreement of the Designator. Written agreement of
the Designator(s) may be given to the receiving Party to file a document containing Confidential
Material not under seal, in a redacted fonn, if the Designator(s) identifies in writing the
Confidential Material to be redacted, and the receiving Party redacts all such Confidential
Material prior to filing the document. The Parties acknowledge that this Protective Order creates
no entitlement to file Confidential Material under seal. If any Party wishes to file Material under
seal with the Court that incorporates or discloses Confidential Material, said Party must obtain
leave of Court before these documents may be filed under seal. After receiving Court approval,
such Party shall submit such pleadings or other submissions under seal.
Nothing contained in this Protective Order shall restrict or limit any Party's right
to present Confidential Material to a jUlY or a court during a trial or other hearing in this Action,
and the Parties and Non-Parties shall take reasonable steps to maintain the confidentiality of such
information at a hearing or at trial in such manner as the Court may direct.
The use of
Confidential Material at trial shall be governed by the pretrial order.
If any Party receives a subpoena or order demanding the production of any
Material designated in this Action as "CONFIDENTIAL," the Party receiving such subpoena or
order shall, within five (5) business days of the receipt of such request and not less than 10 days
prior to the production of any Confidential Material, notify the Designator of such subpoena or
This Protective Order shall not apply to information or tangible items obtained by
means independent of production by a Party or Non-Party through discovery or other
proceedings in this Action or in some other lawful manner. The restrictions set forth in this
Protective Order shall not apply to any Material which, at the time of production, is within the
public domain, or which the Designator subsequently released into the public arena.
Neither this Protective Order, production or disclosure of Material under this
Protective Order, nor designation or failure to designate Material under this Protective Order,
shall constitute a waiver of the right of the Designator to maintain the trade secret status or
confidentiality of that Material in other contexts.
This Protective Order may be modified or amended by agreement of the Parties
with the approval of the Court. To the extent that the Parties fail to agree on a modification
proposed by any Party or Non-Party, nothing contained herein shall be deemed to preclude any
Party or Non-Party from moving the Court, for good cause shown, for a ruling that modifies this
Protective Order in any respect.
This Protective Order shall not be construed as waiving any right to assert a claim
of privilege or objection as to relevance, admissibility or other grounds for not producing
This Protective Order shall survive and continue to be binding after the
conclusion of this Action, and this Court shall retain jurisdiction to enforce the provisions of this
This Protective Order shall operate retroactively to the inception of this Action.
Any Material produced prior to the signing of this Protective Order shall be treated as
Confidential upon designation as set forth above.
INADVERTENT DISCLOSURE OF PROTECTED OR PRIVILEGED
The inadvertent disclosure of Material covered by the attorney-client privilege or
work-product protection shall be governed by Federal Rule of Evidence 502 and this Protective
If, in connection with the pending litigation, a Party or Non-Party (the
"Disclosing Party') inadvertently discloses information subject to a claim of attorney-client
privilege or work-product protection ("Inadvertently Disclosed Information"), the disclosure of
the Inadvertently Disclosed Information shall not constitute or be deemed a waiver or forfeiture
of any claim of privilege or work-product protection that the Disclosing Party would otherwise
be entitled to assert with respect to the Inadvertently Disclosed Information and its subject
If a claim of inadvertent disclosure is made by a Disclosing Party with respect to
Inadvertently Disclosed Information, the Parties shall, within five (5) business days, return or
destroy all copies of the Inadvertently Disclosed Information and provide a certification of
counsel that all such Inadvertently Disclosed Information has been returned or destroyed.
Within 21 days of the notification that such Inadvertently Disclosed Infonnation
has been returned or destroyed, or within a different time upon written agreement of the Parties
or order of the Court, the Disclosing Party shall produce a privilege log with respect to the
Inadvertently Disclosed Information.
Nothing in this Protective Order shall limit the right of any Party to petition the
Court for an order compelling production of such Inadvertently Disclosed Information, or for an
in-camera review of the Inadvertently Disclosed Information.
LIMITS OF TIDS PROTECTIVE ORDER
Nothing contained in this Protective Order, and no action taken pursuant to it, shall
prejudice the right of any Party or Non-Party to contest the alleged relevancy, admissibility, or
discoverability ofthe Material sought. Nor shall this Protective Order prevent any Party or NonParty from objecting to discovery that it believes to be otherwise improper.
IT IS SO ORDERED THIS
l(Pfft DAY OF ~
ACKNOWLEDGEMENT OF PROTECTIVE ORDER
AND AGREEMENT TO BE BOUND
I hereby acknowledge that I,
, am about to receive
information that is being supplied by one or more of the parties in the case of Tucker, et at. v.
Southwestern Energy Company, et at., pending in the United States District Court for the Eastern
District of Arkansas, Northern Division. I understand that the infonnation is or may be subject
to the terms of a Protective Order entered by the Court in said case. I hereby certify my
understanding that such information is being provided to me pursuant to the teIDls and
restrictions of the Protective Order. I have been given a copy of said Protective Order, have read
it, and agree to be bound by its terms. I understand that infonnation and any documentary
material covered by the Protective Order (which includes any notes or other record that I make of
such material) shall not be disclosed to others, except those listed in paragraph III.B. of the
Protective Order and under the terms set forth therein.
MITCHELL, WILLIAMS, SltLlG~
GATES 8f. WOODYARD, l?L.L.C.
425 W. Capitol Av
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