Federal Trade Commission v. Abernathy Motor Company et al

Filing 33

AGREED PROTECTIVE ORDER. Signed by Judge Billy Roy Wilson on 4/22/2015. (jak)

Case 3:14-cv-00063-BRW Document 28-1 Filed 04/06/15 Page 1 of 5

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
JONESBORO DIVISION
FEDERAL TRADE COMMISSION,

Civil Action No. 3:14-cv-63 BRW/BD

Plaintiff,
v.

ABERNATHY MOTOR COMPANY,
an Arkansas corporation,
WESLEY ABERNATHY, individually,
and as owner of Abernathy Motor
Company,
and
DAVID ABERNATHY, individually,
and as owner and an officer of
Abernathy Motor Company, and
doing business as Ab ' s Best Buys
AMC Inc. Affiliated,
Defendants.

AGREED PROTECTIVE ORDER
The Court enters this protective order pursuant to Fed. R. Civ. P. 26(c).
1.

An attorney marking material as "Confidential Material" certifies in good faith

that it contains (a) sensitive personal information, or (b) trade secret(s) or other confidential
research, development, or commercial information.
2.

" Sensitive Personallnformation" means any (a) Social Security number; (b)

sensitive health-related data including medical records; (c) biometric identifier; or (d) any one or
more of the following when combined with an individual ' s name, address, or phone number: (i)

Case 3:14-cv-00063-BRW Document 28-1

Filed 04/06/15

Page 2 of 5

date of birth, (ii) driver' s license or other state identification number, or a foreign equivalent, (iii)
military identification number, (iv) passport number, (v) financial institution account number,
(vi) credit or debit card number; or (e) other sensitive information relating to an individual
entitled to confidential status under applicable law, by order of this Court, or by agreement of the
parties.
3.

Confidential Material must be designated as follows:
a.

Mark paper materials "CONFIDENTIAL." If paper material is only

confidential in part, mark only the portions of the material that are confidential.
b.

Mark electronic materials " CONFIDENTIAL" by marking each electronic

page or subpart that is confidential. If the electronic material cannot be marked by page
or subpart, the designee shall meet and confer with the recipient to determine a means to
delineate the confidential material. Also mark the electronic storage medium, as well as
any electronic file and folder name CONFIDENTIAL.
c.

Designate deposition transcripts as Confidential Material within I 0 days

of receipt ofthe final transcript by identifying the specific page(s) and line number(s) that
are confidential. lftestimony is identified as confidential during a deposition, absent
agreement on the scope of confidentiality, the entire transcript shall be treated as
confidential until the time for designation expires.
4.

An inadvertent failure to mark Confidential Material prior to disclosure does not

preclude a subsequent designation , but no prior disclosure of newly designated Confidential
Material by a recipient shall violate this Order.
5.

Within ten (1 0) days of a written objection to the designation of Confidential

Material, the designating party must move the Court to uphold the designation. The burden of

2

Case 3:14-cv-00063-BRW

Document 28-1

Filed 04/06/15

Page 3 of 5

proving that the designation is proper is on the designating party. Failure to seek timely an order
upholding the designation terminates confidential treatment.
6. Confidential Material may only be disclosed to:
a.

the Court and court personnel ;

b.

the parties ' outside counsel and designated employees only to the extent

necessary to ass ist in the liti gation ;
c.

experts and contractors consu lted or retained by the parties or counsel , and

thei r employees, provided that they agree in writing to abide by this protective order or
execute FTC Form X33-Nondisclosure Agreement for Contractors ;
d.

any person who had prior access to the Confidentia l Material or

participated in a communication that is the subject of the Confidential Material;
e.

witnesses and their counse l, provided that they agree in writing to abide by

this protective order.
7.

Disclosure of confidential material to any person described in Paragraph 6 shall

be only for the purposes of the preparation and hearing of this proceeding, or any appeal ,
therefrom, and for no other purpose whatsoever. Provided, however, that the Commission may,
subject to taking appropriate steps to preserve the confidentiality of such material, use or disclose
confidential material as provided by its Rules of Practice ; sections 6 and 21 of the Federal Trade
Commission Act; or any other legal obligation imposed upon the Commission.
8.

Confidential Material shall only be filed with a motion to seal the material , unless

the party introducing the material provides the designee notice of its intention to publicly file the
material at least 14 days in advance of filing to provide an opportunity for the designee to seek
further protection from the Court. 1fthe designee seeks protection within the 14 days, the

3

Case 3:14-cv-00063-BRW

Document 28-1

Filed 04/06/15

Page 4 of 5

materials may only be filed with a motion to seal until the Court has ruled on the designee ' s
request.
9.

Within 180 days of the conclusion of this case, any consultant or other person

retained to assist counsel in the preparation of this action shall destroy or return all Confidential
Materials and any other materials containing confidential information. All Confidential
Materials held by the parties shall be destroyed or returned to the designee, except that the FTC
shall retain, return , or destroy Confidential Materials in accordance with Rule 4.12 of the FTC's
Rules of Practice.
I 0.

This Order continues to govern Confidential Information after conclusion of the

case absent further order of the Court.

DATED: ~n( ~J._.

'2015.

BILLY ROY WILSON
UNITED STATES DISTRICT JUDGE

4

Case 3:14-cv-00063-BRW

Document 28-1 Filed 04/06/15

AGREED TO:

Eric Roberson
Reid Tepfer
Attorney for Plaintiff Federal Trade Commission

Dustin McDaniel
Bart Calhoun
Martin Lilly
Attorney for Defendant Abernathy Motor Company
and Wesley Abernathy

~~re
Attorney for Def~dant David Abernathy

5

Page 5 of 5