McGlothlin et al v. Drake et al

Filing 53

PROTECTIVE ORDER regarding confidential information 48 . Signed by Judge J. Leon Holmes on 8/14/12. (vjt)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF ARKANSAS
BATESVILLE DIVISION
DANNY MCGLOTHLIN, et al.

PLAINTIFFS
NO.l:ll-CV-55 JLH

v.

FRANK DRAKE, et al.

DEFENDANTS
PROTECTIVE ORDER

The Court recognizes that at least some of the documents and information
("materials") being sought through discovery in the above-captioned action are, for
competitive reasons, normally kept confidential by the parties. The materials to be
exchanged throughout the course of the litigation between the parties may contain
trade secret or other confidential research, technical, cost, price, marketing or other
commercial information, as is contemplated by Federal Rule of Civil Procedure 26(c)(7).
The purpose of this Order is to protect the confidentiality of such materials as much as
practical during the litigation. THEREFORE:
DEFINITIONS
1.

The term "Confidential Information" will mean and include information

contained or disclosed in any materials, including documents, portions of documents,
answers to interrogatories, responses to requests for admissions, trial testimony,
deposition testimony, and transcripts of trial testimony and depositions, including data,
summaries, and compilations derived therefrom that is deemed to be Confidential
Information by any party to which it belongs.

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2.

The term 11 materials 11 will include, but is not be limited to: documents;

correspondence; memoranda; bulletins; blueprints; specifications; customer lists or
other material that identify customers or potential customers; price lists or schedules or
other matter identifying pricing; minutes; telegrams; letters; statements; cancelled
checks; contracts; invoices; drafts; books of account; worksheets; notes of conversations;
desk diaries; appointment books; expense accounts; recordings; photographs; motion
pictures; compilations from which information can be obtained and translated into
reasonably usable form through detection devices; sketches; drawings; notes (including
laboratory notebooks and records); reports; instructions; disclosures; other writings;
models and prototypes and other physical objects.
3.

The term 11 counsel 11 will mean outside counsel of record, and other

attorneys, paralegals, secretaries, and other support staff employed by the law firms of
McDonald Hopkins LLC, Sutter & Gillham, P.L.L.C., or Stewart Law Firm.
GENERAL RULES
4.

Each party to this litigation that produces or discloses any materials,

answers to interrogatories, responses to requests for admission, trial testimony,
deposition testimony, and transcripts of trial testimony and depositions, or information
that the producing party believes should be subject to this Protective Order may
designate the same as 11 CONFIDENTIAU or 11 CONFIDENTIAL - FOR COUNSEL
ONLY."
a.

Designation as 11 CONFIDENTIAU: Any party may designate information

as 11 CONFIDENTIAL 11 only if, in the good faith belief of such party and its counsel, the

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umestricted disclosure of such information could be potentially prejudicial to the
business or operations of such party.
b.

Designation as "CONFIDENTIAL - FOR COUNSEL ONLY": Any party

may designate information as "CONFIDENTIAL - FOR COUNSEL ONLY" only if, in
the good faith belief of such party and its counsel, the information is among that
considered to be most sensitive by the party, including but not limited to trade secret or
other confidential research, development, financial or other commercial information.
5.

In the event the producing party elects to produce materials for

inspection, no marking need be made by the producing party in advance of the initial
inspection. For purposes of the initial inspection, all materials produced will be
considered as "CONFIDENTIAL - FOR COUNSEL ONLY," and must be treated as such
pursuant to the terms of this Order. Thereafter, upon selection of specified materials for
copying by the inspecting party, the producing party must, within a reasonable time
prior to producing those materials to the inspecting party, mark the copies of those
materials that contain Confidential Information with the appropriate confidentiality
marking.
6.

Whenever a deposition taken on behalf of any party involves a disclosure

of Confidential Information of any party:
a.

the deposition or portions of the deposition must be designated as
containing Confidential Information subject to the provisions of this
Order; such designation must be made on the record whenever possible,
but a party may designate portions of depositions as containing

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Confidential Information after transcription of the proceedings; [A] party
will have until twenty-one (21) days after receipt of the deposition
transcript to inform the other party or parties to the action of the portions
of the transcript to be designated "CONFIDENTIAL" or "CONFIDENTIAL
-FOR COUNSEL ONLY."
b.

the disclosing party will have the right to exclude from attendance at the
deposition, during such time as the Confidential Information is to be
disclosed, any person other than the deponent, counsel (including their
staff and associates), the court reporter, and the person(s) agreed upon
pursuant to paragraph 8 below; and

c.

the originals of the deposition transcripts and all copies of the deposition
must bear the legend "CONFIDENTIAL" or "CONFIDENTIAL - FOR
COUNSEL ONLY," as appropriate, and the original or any copy
ultimately presented to a court for filing must not be filed unless it can be
accomplished under seal, identified as being subject to this Order, and
protected from being opened except by order of this Court.

7.

All Confidential Information designated as "CONFIDENTIAL" or

"CONFIDENTIAL - FOR COUNSEL ONLY" must not be disclosed by the receiving
party to anyone other than those persons designated within this order and must be
handled in the manner set forth below and, in any event, must not be used for any
purpose other than in connection with this litigation, unless and until such designation
is removed either by agreement of the parties, or by order of the Court.

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8.

Information designated "CONFIDENTIAL - FOR COUNSEL ONLY" must

be viewed only by counsel (as defined in paragraph 3) of the receiving party, and by
independent experts under the conditions set forth in this Paragraph. The right of any
independent expert to receive any Confidential Information will be subject to the
advance approval of such expert by the producing party or by permission of the Court.
The party seeking approval of an independent expert must provide the producing party
with the name and curriculum vitae of the proposed independent expert, and an
executed copy of the form attached hereto as Exhibit A, in advance of providing any
Confidential Information of the producing party to the expert. Any objection by the
producing party to an independent expert receiving Confidential Information must be
supported by the producing party's good faith belief that: (a) the expert has a conflict of
interest; (b) the expert cannot be trusted to obey the protective order; or (c) disclosure of
Confidential Information to the expert could result in competitive harm to the
producing party or could otherwise threaten its business. Such objection must be made
in writing within fourteen (14) days following receipt of the identification of the
proposed expert. Confidential Information may be disclosed to an independent expert if
the fourteen (14) day period has passed and no objection has been made. The approval
of independent experts must not be unreasonably withheld.
9.

Information designated "CONFIDENTIAV' must be viewed only by

counsel (as defined in paragraph 3) of the receiving party, by independent experts
(pursuant to the terms of paragraph 8), and by the additional individuals listed below,

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provided each such individual has read this Order in advance of disclosure and has
agreed in writing to be bound by its terms:
(a)

Executives who are required to participate in policy decisions with
reference to this action;

(b)

Technical personnel of the parties with whom Counsel for the parties find
it necessary to consult, in the discretion of such counsel, in preparation for
trial of this action; and

(c)

Stenographic and clerical employees associated with the individuals
identified above.

10.

With

respect

to

material

designated

"CONFIDENTIAL"

or

"CONFIDENTIAL - FOR COUNSEL ONLY," any person indicated on the face of the
document to be its originator, author or a recipient of a copy of the document, may be
shown the same.
11.

All information which has been designated as "CONFIDENTIAL" or

"CONFIDENTIAL - FOR COUNSEL ONLY" by the producing or disclosing party, and
any and all reproductions of that information, must be retained in the custody of the
counsel for the receiving party identified in paragraph 3, except that independent
experts authorized to view such information under the terms of this Order may retain
custody of copies such as are necessary for their participation in this litigation.
12.

Confidential Information may be required to be filed with the Court and

with the Clerk of this Court and shall be filed under seal. Documents containing
Confidential Information may be filed in a redacted form so that those portions of the

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document containing confidential information will not be visible to the public. Only the
Court, Court personnel, and counsel shall have access to the sealed record in this
proceeding until further Order of this Court.
13.

At any stage of these proceedings, any party may object to a designation

of the materials as Confidential Information. The party objecting to confidentiality must
notify, in writing, counsel for the designating party of the objected-to materials and the
grounds for the objection. If the dispute is not resolved consensually between the
parties within fourteen (14) days of receipt of such a notice of objections, the objecting
party may move the Court for a ruling on the objection. The materials at issue must be
treated as Confidential Information, as designated by the designating party, until the
Court has ruled on the objection or the matter has been otherwise resolved.
14.

All Confidential Information must be held in confidence by those

inspecting or receiving it, and must be used only for purposes of this action. Counsel for
each party, and each person receiving Confidential Information must take reasonable
precautions to prevent the unauthorized or inadvertent disclosure of such information.
If Confidential Information is disclosed to any person other than a person authorized by

this Order, the party responsible for the unauthorized disclosure must immediately
bring all pertinent facts relating to the unauthorized disclosure to the attention of the
other parties and, without prejudice to any rights and remedies of the other parties,
make every effort to prevent further disclosure by the party and by the person(s)
receiving the unauthorized disclosure.

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15.

No party will be responsible to another party for disclosure of

Confidential Information under this Order if the information in question is not labeled
or otherwise identified as such in accordance with this Order.
16.

If a party, through inadvertence, produces any Confidential Information

without labeling or marking or otherwise designating it as such in accordance with this
Order, the designating party may give written notice to the receiving party that the
document or thing produced is deemed Confidential Information, and that the
document or thing produced should be treated as such in accordance with that
designation under this Order. The receiving party must treat the materials as
confidential, once the designating party so notifies the receiving party. If the receiving
party has disclosed the materials before receiving the designation, the receiving party
must notify the designating party in writing of each such disclosure. Counsel for the
parties will agree on a mutually acceptable manner of labeling or marking the
inadvertently produced materials as 11 CONFIDENTIAL 11 or 11 CONFIDENTIAL - FOR
COUNSEL ONLY." A party may not designate or re-designate a previously produced
document under this Paragraph 16 less than 30 days before the dispositive motion
deadline unless counsel for that party certifies in writing that the original designation
(or lack thereof) resulted from a genuine mistake and that the designation or redesignation is sought in good faith. 17. Nothing within this order will prejudice the
right of any party to object to the production of any discovery material on the grounds
that the material is protected as privileged or as attorney work product.

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18.

Nothing in this Order will bar counsel from rendering advice to their

clients with respect to this litigation and, in the course thereof, relying upon any
information designated as Confidential Information, provided that the contents of the
information must not be disclosed.
19.

This Order will be without prejudice to the right of any party to oppose

production of any information for lack of relevance or any other ground other than the
mere presence of Confidential Information. The existence of this Order must not be
used by either party as a basis for discovery that is otherwise improper under the
Federal Rules of Civil Procedure.
20.

Nothing within this order will be construed to prevent disclosure of

Confidential Information if such disclosure is required by law or by order of the Court.
21.

Upon final termination of this action, including any and all appeals,

counsel for each party must, upon request of the producing party, return all
Confidential Information to the party that produced the information, including any
copies, excerpts, and summaries of that information, or must destroy same at the option
of the receiving party, and must purge all such information from all machine-readable
media on which it resides. Notwithstanding the foregoing, counsel for each party may
retain copies of any Confidential Information as counsel reasonably deems necessary to
the proper maintenance of counsel's files with respect to this action. Such copies shall
not be disclosed to anyone outside of counsel's law firm, and counsel will continue to
be bound by this Order with respect to all such retained information.

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22.

The restrictions and obligations set forth within this order will not apply

to any information that: (a) the parties agree should not be designated Confidential
Information; (b) the parties agree, or the Court rules, is already public knowledge; (c)
the parties agree, or the Court rules, has become public knowledge other than as a
result of disclosure by the receiving party, its employees, or its agents in violation of
this Order; or (d) has come or will come into the receiving party's legitimate knowledge
independently of the production by the designating party. Prior knowledge must be
established by preproduction documentation.
23.

The restrictions and obligations within this order will not be deemed to

prohibit discussions of any Confidential Information with anyone if that person already
has or obtains legitimate possession of that information.
24.

Transmission by facsimile is acceptable for all notification purposes within

this order.
25.

This Order may be modified by agreement of the parties, subject to

approval by the Court.
26.

The Court may modify the terms and conditions of this Order for good

cause, or in the interest of justice, or on its own order at any time in these proceedings.
The parties prefer that the Court provide them with notice of the Court's intent to
modify the Order and the content of those modifications, prior to entry of such an
order.
IT IS so ORDERED this R_ day of

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AMgu.s+

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".'

.'

EXHIBIT A
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF ARKANSAS
BATESVILLE DIVISION
DANNY MCGLOTHLIN, et al.

PLAINTIFFS
NO.l:ll-CV-55 JLH

v.

FRANK DRAKE, et al.

DEFENDANTS

AGREEMENT TO BE BOUND BY PROTECTIVE ORDER

I, _ _ _ _ _ _ _ _ _ _ _ _ _ _ , declare and say that:
1.

I am employed as _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ by

2.

I have read the Protective Order entered in Danny McGlothlin, et al. v.

Frank Drake, et al, Case No.l:ll-CV-55-JLH, and have received a copy of the Protective

Order.
3.

I promise that I will use any and all "CONFIDENTIAL"

or

"CONFIDENTIAL - FOR COUNSEL ONLY" information, as defined in the Protective
Order, given to me only in a manner authorized by the Protective Order, and only to
assist counsel in the litigation of this matter.
4.

I promise that I will not disclose or discuss such "CONFIDENTIAL" or

"CONFIDENTIAL - FOR COUNSEL ONLY" information with anyone other than the
persons described in paragraphs 3, 8 and 9 of the Protective Order.

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5.

I acknowledge that, by signing this agreement, I am subjecting myself to

the jurisdiction of the United States District Court for the Eastern District of Arkansas
with respect to enforcement of the Protective Order.
6.

I understand that any disclosure or use of "CONFIDENTIAL" or

"CONFIDENTIAL- FOR COUNSEL ONLY" information in any manner contrary to the
provisions of the Protective Order may subject me to sanctions for contempt of court.

I declare under penalty of perjury that the foregoing is true and correct.

Date: _ _ _ _ _ _ _ _ __

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