Scriber v. Conseco Life Insurance Company

Filing 34

PROTECTIVE ORDER. Signed by Judge D. P. Marshall Jr. on 9/28/2017. (jak)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
JONESBORO DIVISION
MARCIE P. SCRIBER, Trustee of the
Ladd J. Scriber Life Insurance Trust,

)
)
)

Plaintiff,

)
)

v.

)

Civil Action No. 3:15-cv-00244-DPM

)

CONSECO LIFE INSURANCE
COMPANY,

)
)
)

Defundant

)
PROTECTIVE ORDER

With the parties' agreement, and pursuant to Federal Rule of Civil Procedure
26(c), the Court orders:

1.

PURPOSES AND LIMITATIONS

Disclosure and discovery in this action are likely to involve production of
confidential, proprietary, or private information for which special protection from
public disclosure and from use for any purpose other than prosecuting this
litigation is warranted.
Those provisions of the Court's Scheduling Order (Doc. No. 24 at 2-3), including
the Court's procedure for discovery disputes set forth therein, are incorporated by
reference in this this Order.
2.

DEFINITIONS

2.1 Party: any party to this action, including any officer, director, employee,
representative, agent, consultant, retained expert, outside counsel (and their support
staff), or other person or entity acting or purporting to act on behalf or at the
direction of any party.

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2.2 Disclosure or Discovery Material: all items or information, regardless of the
medium or manner generated, stored, or maintained (including, among other
things, testimony, transcripts, or tangible things) that are produced or generated in
disclosures or responses to discovery in this matter.
2.3 "Confidential" Information or Items: information (regardless of how generated,
stored or maintained) or tangible thing that qualifies for protection.
2.4 Receiving Party: a Party that receives Disclosure or Discovery Material from a
Producing Party.
2.5 Producing Party: a Party or non-party that produces Disclosure or Discovery
Material in this action.
2.6 Designating Party: a Party or non-party that designates information or items
that it produces in disclosures or in responses to discovery as "Confidential."
2. 7 Protected Material: any Disclosure or Discovery Material that is designated as
"Confidential."
2.8 Outside Counsel: attorneys who are not employees of a Party but who are
retained to represent or advise a Party in this action.
2.9 House Counsel: attorneys who are employees of a Party.
2.10 Counsel (without qualifier): Outside Counsel and House Counsel (as well as
their support staffs).
2.11 Expert: a person with specialized knowledge or experience in a matter
pertinent to the litigation who has been retained by a Party or its counsel to serve
as an expert witness or as a consultant in this action and who is not a past or a
current employee of a Party or of a competitor of a Party's and who, at the time of
retention, is not anticipated to become an employee of a Party or a competitor of a
Party's. This definition includes a professional jury or trial consultant retained in
connection with this litigation.
2.12 Professional Vendors: persons or entitles that provide litigation support
services (e.g., photocopying; videotaping; translating; preparing exhibits or
demonstrations; organizing, storing, retrieving data in any form or medium; etc.)
and their employees and subcontractors.
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3.

SCOPE

The protections conferred by this Order cover not only Protected Material (as
defined above), but also any information copied or extracted from Protected
Material, as well as all copies, excerpts, summaries, or compilations thereof, plus
testimony, conversations, or presentations by parties or counsel to or in court or in
other settings that might reveal Protected Material.
4.

DURATION

The Court's authority to enforce this Order will expire one year after the final
termination of this litigation; after that, the obligation of the parties and others will
be strictly contractual.
5.

DESIGNATING PROTECTED MATERIAL

5 .1 Manner and Timing of Designations. Except as otherwise provided in this
Order, or as otherwise ordered, material that qualifies for protection under this
Order must be clearly designated before the material is disclosed or produced.
Designation in conformity with this Order requires:
(a) for information in documentary form (apart from transcripts of
depositions or other pretrial or trial proceedings), that the Producing Party affix the
legend "Confidential" on each page that contains protected material. A Party or
non party that makes original documents or materials available for inspection need
not designate them for protection until after the inspecting Party has indicated
which material it would like copied and produced. During the inspection and
before the designation, all of the material made available for inspection shall be
deemed "Confidential." After the inspecting Party has identified the documents it
wants copied and produced, the Producing Party must determine which documents,
or portions thereof, qualify for protection under this Order, then, before producing
the specified documents, the Producing Party must affix the appropriate legend
("Confidential") at the top of each page that contains Protected Material.
(b) for testimony given in deposition or in other pretrial or trial proceedings,
that the Party or non party offering or sponsoring the testimony identify on the
record, within 20 days after the transcript is received after the close of the
deposition, hearing, or other proceeding, all protected testimony, and further
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specify any portions of the testimony that qualify as "Confidential." Only those
portions of the testimony that are appropriately designated for protection within the
20 days shall be covered by the provisions of this Protective Order.
Transcript pages containing Protected Material must be separately bound by
the court reporter, who must affix to the top of each such page the legend
"Confidential" as instructed by the Party or non party offering or sponsoring the
witness or presenting the testimony.
(c) for information produced in some form other than documentary, and for
any other tangible items, that the Producing Party affix in a prominent place on the
exterior of the container or containers in which the information or item is stored
the legend "Confidential."
5.2 Inadvertent Failures to Designate. If timely corrected, an inadvertent failure to
designate qualified information or items as "Confidential" does not, standing alone,
waive the Designating Party's right to secure protection under this Order for such
material. If material is appropriately designated as "Confidential" after the material
was initially produced, the Receiving Party, on timely notification of the
designation, must make reasonable efforts to assure that the material is treated in
accordance with the provisions of this Order.
6.

CHALLENGING CONFIDENTIALITY DESIGNATIONS

Counsel should confer in good faith in person before bringing any discovery
dispute, including any challenge to a confidentiality designation, to the Court. The
parties shall not file motions to compel. The parties shall not file a motion to quash
or for protective order unless there is an emergency. If the parties reach a discovery
impasse, they should file a joint report explaining the disagreement. File this paper
under the CM/ECF event called "Joint Report of Discovery Dispute". The joint
report must not exceed ten pages, excluding the style and signature block. Each
side gets five pages. The parties shall not file a motion asking for more pages. Use
double spacing and avoid footnotes. Attach documents (such as disputed written
discovery or responses) as needed. The parties shall redact any attachments as
required by Federal Rule of Civil Procedure 5.2 to protect confidential information.
The parties shall file the joint report sufficiently before the discovery cutoff so that
the dispute can be resolved, and any additional discovery completed, without
undermining other pretrial deadlines. The Court will rule or schedule a hearing.
The parties shall alert the law clerk on the case to the joint report's filing. If a
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dispute arises during a deposition, call chambers so the Judge can rule during the
deposition.
7.

ACCESS TO AND USE OF PROTECTED MATERIAL

7.1 Basic Principles. A Receiving Party may use Protected Material that is
disclosed or produced by another Party or by a non party in connection with this
case only for prosecuting, defending, or attempting to settle this litigation. Such
Protected Material may be disclosed only to the categories of persons and under
the conditions described in this Order. When the litigation has been terminated, a
Receiving Party must comply with the provisions of section 11, below (FINAL
DISPOSITION).
Protected Material must be stored and maintained by a Receiving Party at a
location and in a secure manner that ensures that access is limited to the persons
authorized under this Order.
7.2 Disclosure of "Confidential" Information or Items. Unless otherwise ordered by
the court or permitted in writing by the Designating Party, a Receiving Party may
disclose any information or item designated "Confidential" only to:
(a) the Receiving Party's Outside Counsel of record in this action, as well as
employees of said Counsel to whom it is reasonably necessary to disclose the
information for this Litigation and who have signed the "Agreement to Be Bound
by Protective Order" that is attached hereto as Exhibit 1;
(b) parties to this Litigation, including the officers, directors, and employees
(including House Counsel) of the Receiving Party to whom disclosure is
reasonably necessary for this Litigation;
(c) experts (as defined in this Order) of the Receiving Party to whom
disclosure is reasonably necessary for this Litigation and who have signed the
"Agreement to Be Bound by Protective Order" (Exhibit 1);
(d) the Court and its personnel;
(e) jurors selected for the trial of this matter;
(f) any person present in the courtroom during any hearing on this matter,
the trial of this matter, or any appellate hearing on this matter;
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(g) court reporters, their staffs, and professional vendors to whom disclosure
is reasonably necessary for this Litigation and who have signed the "Agreement to
Be Bound by Protective Order" (Exhibit 1);
(h) during their depositions, witnesses in the action to whom disclosure is
reasonably necessary and who have signed the "Agreement to Be Bound by
Protective Order" (Exhibit 1). Pages of transcribed deposition testimony or exhibits
to depositions that reveal Protected Material must be separately bound by the court
reporter and may not be disclosed to anyone except as permitted under this
Protective Order.

(i) the author of the document or the original source of the information.
7.3 Nothing herein shall restrict the manner in which the Producing Party may use
or disclose its own Protected Material.
8.

PROTECTED MATERIAL SUBPOENAED OR ORDERED
PRODUCED IN OTHER LITIGATION

If a Receiving Party is served with a subpoena or an order issued in other litigation
that would compel disclosure of any information or items designated in this action
as "Confidential" the Receiving Party must so notify the Producing Party, in
writing (by fax or e-mail, if possible) immediately and in no event more than three
court days after receiving the subpoena or order. Such notification must include a
copy of the subpoena or court order. The Receiving Party also must immediately
inform in writing the Party who caused the subpoena or order to issue in the other
litigation that some or all the material covered by the subpoena or order is the
subject of this Protective Order. In addition, the Receiving Party must deliver a
copy of this Protective Order promptly to the Party in the other action that caused
the subpoena or order to issue. The purpose of imposing these duties is to alert the
interested parties to the existence of this Protective Order and to afford the
Producing Party in this case an opportunity to try to protect its confidentiality
interests in the court from which the subpoena or order issued. The Producing
Party shall bear the burdens and the expenses of seeking protection in that court of
its confidential material and nothing in these provisions should be construed as
authorizing or encouraging a Receiving Party in this action to disobey a lawful
directive from another court.

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9.

UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL

If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed
Protected Material to any person or in any circumstance not authorized under this
Protective Order, the Receiving Party must immediately (a) notify in writing the
Producing Party of the unauthorized disclosures, (b) use its best efforts to retrieve
all copies of the Protected Material, (c) inform the person or persons to whom
unauthorized disclosures were made of all the terms of this Order, and (d) request
such person or persons to execute the "Acknowledgment and Agreement to be
Bound" that is attached hereto as Exhibit 1.

10.

FILING PROTECTED MATERIAL

The Parties shall redact confidential information, pursuant to Federal Rule of Civil
Procedure 5.2, if practicable. If that cannot be done, the Parties must move for
permission to file documents under seal.
11.

USE OF PROTECTED MATERIAL AT TRIAL OR IN
DEPOSITION

Nothing herein shall prevent any of the parties from using "Confidential" materials
in connection with any trial, hearing, deposition of a party or third party witness, or
any other proceeding in this matter or from seeking further protection with respect
to the use of any such "Confidential" materials in connection with such trial,
hearing, deposition of a party or third party witness or other proceeding in this
matter.
12.

FINAL DISPOSITION

Unless otherwise ordered or agreed in writing by the Producing Party, within
thirty (30) days after the final termination of this action, each Receiving Party must
destroy or return all Protected Material to the Producing Party. As used in this
subdivision, "all Protected Material" includes all copies, abstracts, compilations,
summaries or any other form of reproducing or capturing any of the Protected
Material. Whether the Protected Material is returned or destroyed, the Receiving
Party must submit a written certification to the Producing Party (and, if not the
same person or entity, to the Designating Party) by the thirty (30) day deadline that
identifies (by category, where appropriate) all the Protected Material that was
returned or destroyed and that affirms that the Receiving Party has not retained any
copies, abstracts, compilations, summanes or other forms of reproducing or
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capturing any of the Protected Material. Notwithstanding this provision, Counsel
are entitled to retain an archival copy of all pleadings, motion papers, transcripts,
legal memoranda, correspondence or attorney work product, even if such materials
contain Protected Material. Any such archival copies that contain or constitute
Protected Material remain subject to this Protective Order as set forth in Section 4
(DURATION), above.
13.

INADVERTENT PRODUCTION OF PRIVILEGED
INFORMATION

13.1 Nothing in this Order shall require disclosure of information that counsel
contends is protected from disclosure by the attorney-client privilege, the workproduct immunity, or any other legally cognizable privilege. If information subject
to a claim of attorney-client privilege, work product immunity, or any other
applicable privilege is inadvertently or mistakenly produced, such production shall
in no way prejudice or otherwise constitute a waiver of, or estoppel as to, any
claim of privilege or work-product immunity for such information. If a Party has
inadvertently or mistakenly produced a document subject to a claim of immunity
or privilege, upon request by the Producing Party within three (3) business days of
discovery of such inadvertent or mistaken production, the document for which a
claim of inadvertent production is made shall be returned within three (3) business
days of such request and all copies of that document that may have been made
shall be destroyed to the extent reasonably practicable, and the Receiving Party
shall not use such information for any purpose other than in connection with a
motion to compel. To the extent during the interim that any privileged information
has been disclosed to persons not entitled to view it, and the Producing Party has
made request for its return within the time permitted by this Order, the Receiving
Party shall use its best efforts to retrieve the privileged information from such
person(s ). The Party returning such material may then move the Court for an order
compelling production of the material, but said motion shall not assert as a ground
for entering such an order the fact or circumstance of the inadvertent production.
14.

MISCELLANEOUS

14.1 Right to Further Relief. Nothing in this Order abridges the right of any person
to seek its modification by the Court in the future.
14.2 Right to Assert Other Objections. By complying with this Protective Order no
Party waives any right it otherwise would have to object to disclosing or producing
any information or item on any ground not addressed in this Protective Order.
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. ···- ···--·-·

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Similarly, no Party waives any right to object on any ground to use in evidence of
any of the material covered by this Protective Order.
14.3 Right to Request or Agree Upon Additional Protection. Nothing in this order
abridges the right of any person to seek additional protection of documents from
the court or to agree upon additional protection of documents with any other
person. The parties may seek or request additional protection of documents from
the court or the parties upon a showing of good cause provided the efforts to seek
or request additional protection are made in good faith and without the intent to
harass or annoy a party or to delay discovery.
14.4 If a third-party provides discovery in connection with the Action, and if the
third-party so elects, then the provisions of this Order shall apply to such discovery
as if such discovery were being provided by a Party. Under such circumstances, the
third-party shall have the same rights and obligations under this Order.
14.5 Disclosure to Regulatory Entities. Nothing in this order shall act to prevent
any party from disclosing information, producing documents to or otherwise
cooperating with any entity or agency that regulates the business of one or all of
the parties.
So Ordered.
D.P. Marshall Jr.
United States District Judge

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EXHIBIT 1
ACKNOWLEDGMENTANDAGREEMENTTOBEBOUND
I,

[print or type full name], of
[print or type full address], declare under penalty of
perjury that I have read in its entirety and understand the Protective Order that was
issued in the case of

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I agree to comply with and to be bound by all the terms of this Protective
Order and I understand and acknowledge that failure to so comply could expose
me to sanctions and punishment in the nature of contempt. I submit to the
jurisdiction of the United States District Court for the Eastern District of Arkansas
for purposes of enforcing this Agreement and the Protective Order.
I solemnly promise that I will not disclose in any manner any information or
item that is subject to this Protective Order to any person or entity except in strict
compliance with the provisions of this Order.

City and State where sworn and signed: _ _ _ _ _ _ _ _ _ _ _ __
Printed name:
Signature:

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