Parker v. BASF Corporation

Filing 38

AGREED JOINT PROTECTIVE ORDER. Signed by Judge James M. Moody Jr. on 5/17/2018. (jak)

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
JONESBORO DIVISION
LATOYA PARKER, Individually,
and on behalf of herself and others
similarly situated,
Plaintiff,
v.

Case No. 3:17-cv-00250

BASF CORPORATION, a Delaware
Corporation

Complaint – Class Action
FLSA Opt-In Collective Action

Defendant.

JURY TRIAL DEMANDED

AGREED JOINT PROTECTIVE ORDER

WHEREAS, parties and non-parties to this action ("Litigation"), have been or may be
requested in the course of discovery or other proceedings to produce or disclose testimony,
documents, or other information (“Discovery Material”) that one or more of the parties consider
to be private, confidential, or proprietary); and
WHEREAS, Plaintiff Latoya Parker, on behalf of herself and others similarly situated
(collectively “Plaintiffs”), and Defendant BASF Corporation (collectively, the “Parties”), have
agreed, by their undersigned attorneys, to set forth procedures for, and rules governing, the use
of such Discovery Material in this Agreed Joint Protective Order (the “Order”);
The parties hereby stipulate and agree as follows:

NON-DISCLOSURE OF ALL DOCUMENTS STAMPED CONFIDENTIAL
1. The parties to this action agree to the following conditions regarding the treatment of
Discovery Material that one or more parties consider to be private, confidential or proprietary
with respect to the above-styled action and any resulting appeals or retrials (collectively, “the
Litigation”).
2. If, in the course of discovery or other proceedings in this action, Defendants, Plaintiffs, any
other party to the Litigation, or any third party, produces or discloses Discovery Material
they deem to be private, confidential, or proprietary, the producing party may designate such
Discovery Material as "Confidential." Discovery Material designated as Confidential, and all
copies, summaries, or extracts thereof, shall be referred to herein as "Confidential Material"
and shall be subject to all the terms of this Order.
3. All Confidential Material produced in discovery in the Litigation shall be used solely for
purposes of the Litigation and for no other purpose.
4. To the extent the Parties have produced documents or information in the Litigation prior to
entering into this Order, the Producing Party may retroactively designate any such documents
or information as Confidential Material by notifying the Requesting Party of such
designation.
5. For purposes of this Order, the term “document(s)” means all written, recorded, electronic, or
graphic materials, whether produced or created by a party or another person, whether
produced pursuant to the Federal Rules of Civil Procedure, subpoena, by agent, or otherwise.
Any person in possession of Confidential Material shall maintain it in a reasonable and
appropriate manner so as to avoid disclosure of its contents in any manner not permitted by
this Order.

2

6. A hard copy document may be designated as Confidential by stamping or marking or
otherwise identifying on the face of the document that it is “Confidential.” Electronically
stored information and documents may be designated as Confidential through a marking of
“Confidential” in the title of a .pdf version of the document, on the first page of the electronic
.pdf document, and/or through a designation in writing from the producing party that it
deems the information and documents to be Confidential pursuant to this Order.

If a

document (other than a deposition or hearing transcript) is designated as Confidential on the
initial page of the document, then the entire document will be presumed to be Confidential,
unless otherwise indicated on the first page of the document. All or part of a deposition or
hearing transcript may be designated Confidential by a statement on the record by counsel
requesting the designation, or by a letter to all counsel of record prior to the filing of such
deposition with the Court or its use at trial, in a hearing, in deposition or in any other manner
in connection with this Litigation. Additionally, a party may, at its election, designate any
deposition transcript Confidential in its entirety pending receipt and review of the final
transcript. Such designation shall be stated on the record during the deposition and shall
persist until thirty days after receipt of the final deposition transcript from the court reporter.
7. The designation of documents or other forms of information as Confidential under this Order
does not create any presumption for or against the confidentiality of such information where
the issue is presented to the Court for determination.
8. Confidential Material shall not be disclosed, except as provided in paragraph 9 below, except
upon prior written consent of the designating party.

3

PERMISSIBLE DISCLOSURE OF CONFIDENTIAL INFORMATION
9. Confidential Material may be disclosed only to the extent reasonably necessary for the
conduct of the Litigation and only to the following:
(a)

the Court (including any appellate court) and Court personnel;

(b)

court reporters in connection with the taking of a deposition or the transcription of
court proceedings;

(c)

attorneys (including in-house and outside counsel, associated attorneys, and/or
related legal services) of the parties to the Litigation (or the corporate parent of a
party to the Litigation) who are directly involved in the Litigation and such
attorneys' employees who are directly involved in the Litigation;

(d)

the creator of such Confidential Material;

(e)

parties to the Litigation and their officers, directors, trustees, supervisors, and/or
managers;

(f)

anticipated and actual non-party fact witnesses other than the parties to the
Litigation, provided that counsel has a good-faith basis to disclose such
information to such witness; and

(g)

experts engaged to assist directly in the Litigation.

10. With respect to persons specified in paragraph 9(e)-(g) above, counsel shall obtain that
person's written agreement to be bound by the terms of this Order prior to the release of any
Confidential Material and notify all other parties of such designation for 9(f) only at least
three (3) business days prior to disclosing Confidential Material. With respect to persons
specified in paragraph 9(e)-(g) above, any testimony concerning Confidential Material shall
itself be deemed Confidential Material. The requirement of obtaining written agreement may
be satisfied by obtaining the signature of such person at the foot of a copy of this Order
provided to such person. A person's written agreement to be bound by the terms of this
Order is also an agreement to submit to the jurisdiction of the Court solely for purposes of
enforcing this Order. Counsel of record for each of the parties to the Litigation shall

4

maintain a file of executed agreements/Orders, and such file shall be made available for
inspection by counsel for any person claiming confidentiality upon order of the Court
following a showing of good cause.
11. A party may challenge the classification of any person as qualifying for access under
paragraph 9(f). The party challenging such classification has the burden of conferring with
the other party making such classification, and if an agreement cannot be reached, then the
parties will confer by telephone or in person with the assigned Magistrate Judge pursuant to
the local rules, and if given leave, file the appropriate motion with the Court. At such time,
the party seeking to make the disclosure to a person they assert qualifies for access under
paragraph 9(f) shall have the burden of establishing such qualification. The Requesting Party
shall withhold all Confidential Material from such person unless and until the Court confirms
that the person(s) at issue qualify for access under paragraph 9(f).
12. A party may challenge a designation of material as Confidential. The party challenging such
designation has the burden of conferring with the other party making such designation, and if
an agreement cannot be reached, then the parties will confer by telephone or in person with
the assigned Magistrate Judge pursuant to the local rules, and if given leave, file the
appropriate motion with the Court. At such time, the party claiming Confidential status shall
have the burden of establishing the need for such status. The Requesting Party shall hold the
designated material as Confidential unless and until such time as the Court rules that the
Confidential designation is inappropriate.
13. This Order neither expands nor contracts any party’s rights or obligations to produce or
respond to discovery requests or to object thereto, in accordance with the Federal Rules of
Civil Procedure. No party waives the right to use and to offer into evidence, or the right to

5

object to the use or offering into evidence, at pretrial hearings and at trial, material that has
been designated Confidential for purposes of allowing discovery.
14. The restrictions against disclosure set forth in this Order shall not apply to information
received by one party bearing the “Confidential” legend of an opposing party, when such
information: 1) is at any time independently developed by the receiving party without the
use of or reliance upon any of the opposing party’s discovery materials bearing the
“Confidential” legend; 2) is rightfully acquired by the receiving party from an independent
source; 3) was, prior to disclosure, rightfully in the possession or knowledge of the receiving
party; 4) is publicly available in substantially the same form in which it was provided by the
party claiming confidentiality; 5) is required by law to be made available to third parties (a
party receiving a subpoena for a producing party’s confidential documents has the duty to
notify said producing party as soon as practicable); or 6) was, is or becomes public
knowledge, not in violation of this Order.
USE
This Order shall have no effect upon a designating party's use of its own Confidential
Material.
NON-TERMINATION

15. The provisions of this Order shall not terminate at the conclusion of this Litigation.
16. Within 60 days after final conclusion of all aspects of this Litigation the parties and all of the
persons to whom Confidential Material has been disclosed shall (a) return or destroy all
documents or copies containing any of the Confidential Material to the Producing Party’s
attorneys, and if destroyed, provide a declaration to the Producing Party’s attorneys advising
of the date, place and method of destruction upon request; (b) secure the return or destruction

6

of all copies, notes, abstracts, summaries or other materials reflecting such Confidential
Material; and (c) make certification of compliance with “(a)” and “(b)” above and deliver
said certification to counsel for the Producing Party upon request. Counsel for the parties are
permitted to keep one archival copy (including one hard copy paper version and one
electronic version) in a Confidential manner.

(Counsel may release one copy of such

materials designated as Confidential to their client(s) with a records request as permitted by
the Tennessee Rules of Professional Responsibility (or other applicable governing Rules) if
the requirements specified in Paragraph 9 and 10 have been met.)
17. The provisions of this Order shall continue until released and shall survive the entry of a final
judgment herein.
MODIFICATION PERMITTED
The foregoing Order may be amended by written agreement of the parties and/or by order of the
Court.
NON-WAIVER OF PRIVILEGE OR OTHER PROTECTIVE DOCTRINE BY
INADVERTENT DISCLOSURE
18. The inadvertent disclosure of any electronically stored information (“ESI”) or paper record
which is subject to a legitimate claim that the ESI or paper record should have been withheld
from disclosure as work product material or privileged material (“Protected Material”) shall
NOT waive any privilege or other applicable protective doctrine for that ESI or paper record
or for the subject matter of the inadvertently disclosed information, if the Producing Party,
upon becoming aware of the disclosure, promptly requests its return.

The inadvertent

disclosure shall also not estop that party or the privilege holder from designating the
information or document as attorney-client privileged or subject to the work product doctrine
or any level of confidentiality at a later date. In order to be entitled to this protection, there

7

shall be no requirement for the producing party to prove that it took reasonable steps to
prevent disclosure, including, without limitation, proof that its efforts to review for privileged
or confidential information or documents were reasonable.
19. Except in the event that the Requesting Party disputes the claim, any ESI or paper record that
the Producing Party deems to contain inadvertently disclosed Protected Material shall be,
upon written request, promptly returned to the Producing Party or destroyed at the Producing
Party’s option. This includes all copies, electronic or otherwise, of any such information. In
the event that the Producing Party requests destruction, the Requesting Party shall provide
written certification of compliance within thirty (30) days of such written request.
20. In the event that the Requesting Party disputes the Producing Party’s claim as to the
protected nature of the inadvertently disclosed material, a single set of copies may be
sequestered and retained by and under the control of the Requesting Party for the sole
purpose of seeking a determination by the Court of the issue pursuant to Federal Rule of
Civil Procedure 26(b)(5)(B) which, regardless of whether it governs this Litigation, the
Parties agree to follow for purposes of this agreement as closely as possible. The Requesting
Party may promptly present the information to the Court under seal for a determination of the
claim. If the Requesting Party disclosed the information before being notified, it must take
reasonable steps to retrieve it. The Producing Party must preserve the information until the
claim is resolved.

WE STIPULATE TO THE ENTRY OF THE ABOVE AGREED ORDER:
s/ Gordon E. Jackson
Gordon E. Jackson* (TN Bar No. 08323)
J. Russ Bryant* (TN Bar No. 033830)
Paula R. Jackson* (TN Bar No. 20149)

8

JACKSON, SHIELDS, YEISER & HOLT
262 German Oak Drive
Memphis, TN 38018
Telephone: [phone]
Facsimile: [phone]
[e-mail]
[e-mail]
[e-mail]
COUNSEL FOR PLAINTIFF AND ALL
OTHERS SIMILARLY SITUATED
/s/ Michael A. Correll (with permission)
Michael A. Correll
Morgan, Lewis & Bockius LLP
CM/ECF - ARED - LIVE Page 1 of 4
https://ecf.ared.uscourts.gov/cgibin/DktRpt.pl?106715353862767-L_1_0-1
2/9/2018
1717 Main Street, Suite 3200
Dallas, TX 75201
214-466-4000
Fax: [phone]
[e-mail]
PRO HAC VICE
Paulo B. McKeeby
Morgan, Lewis & Bockius LLP
1717 Main Street, Suite 3200
Dallas, TX 75201
214-466-4000
Fax: [phone]
[e-mail]
PRO HAC VICE
Audrey Calkins
Ogletree, Deakins, Nash, Smoak &
Stewart, P.C.
6410 Poplar Avenue
Suite 300
Memphis, TN 38119
901-767-6160
[e-mail]
COUNSEL FOR DEFENDANT BASF
CORPORATION

9

IT IS SO ORDERED, this 17th day of May,2018.

UNITED STATES DISTRICT JUDGE

10