Windstream Corporation et al v. Da Gragnano et al
PROTECTIVE ORDER regarding confidential information. Signed by Chief Judge J. Leon Holmes on 8/11/11. (vjt)
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF ARKANSAS
WINDSTREAM BENEFITS COMMITTEE,
WINDSTREAM SYSTEMS OF THE
MIDWEST, INC., and
VALOR TELECOMMUNICATIONS OF
TEXAS, L.P., d/b/a Windstream
DANNY AMMONS, et ai.,
Individually and as Representatives of
Persons Similarly Situated,
COMMUNICATIONS WORKERS OF
VALOR TELECOMMUNICATIONS OF
TEXAS, L.P. d/b/a WINDSTREAM
Case No.: 4:09-CV-953JLH
IT IS HEREBY ORDERED THAT:
Scope. This Protective Order shall govern all documents, information, and other
materials produced in response to discovery requests, subpoenas, and any deposition transcripts
or their equivalent in the above-captioned case ("Discovery Materials").
Definitions. As used in this Protective Order, these terms have the following
"Documents" are all materials within the scope of Rule 34 of the Federal
Rules of Civil Procedure;
"Outside Vendors" means messenger, copy, coding, and other c1erical
services vendors not employed by a party or its Attorneys; and
"Attorneys" means counsel of record;
"Written Assurance" means an executed document in the form attached as
Use of Information. All Confidential documents, along with the information
contained in the documents, shall be used solely for the purpose of this action, and no person
receiving such documents shall, directly or indirectly, use, transfer, disclose, or communicate in
any way the documents or their contents to any person other than those specified in paragraph 4.
Any other use is prohibited.
Access. Access to any Confidential document shall be limited to:
Attorneys and their office associates, legal assistants, stenographic and
clerical employees, and their Outside Vendors;
persons shown on the face of the document to have authored or received
court reporters retained to transcribe testimony;
the parties and their employees; and
the Court and its staff;
outside independent persons (i.e., persons not currently or formerly
employed by, consulting with, or otherwise associated with any party)
who are retained by a party or its Attorneys to provide assistance, or to
furnish technical or expert services, or to provide assistance as mock
jurors or focus group members or the like, and/or to give testimony in this
Designating Confidential Material. During the course of litigation, any party to
this action may seek to have Discovery Materials they are producing, or that have been produced
by any other person, classified as "Confidential." Any party may designate as Confidential any
Discovery Material it determines in good faith contains confidential commercial, financial,
proprietary, or personal information. To designate a document to be produced as Confidential,
the designating party shall mark each page of a paper document that contains Confidential
information, or label other media containing such information, with the word "Confidential"
prior to the production to the other party. Any document or deposition transcript (or portions
thereof) so designated, copies thereof, and information contained therein shall be "Confidential
Materials" and subject to the restrictions set forth herein.
Third-Party Designation of Confidential Materials. Third parties producing
documents in the course of this action may also designate documents as "Confidential" subject to
the same protections and constraints as the parties to the action. A copy of the Protective Order
shall be served along with any subpoena served in connection with this action after this Order is
Each person designated pursuant to paragraphs 4(f) to
receive Confidential information shall execute a "Written Assurance" in the form attached as
Depositions. All depositions or portions of depositions taken in this action that
contain confidential information may be designated "Confidential" and thereby obtain the
protections accorded other "Confidential" documents.
Confidentiality designations for
depositions shall be made either on the record or by written notice to the other party within 30
days of receipt of the transcript specifying the particular potion of the transcript as
"Confidential." Upon designation by a party, the reporter shall stamp or mark the relevant
portion of the transcript as Confidential. The deposition of any witness (or any portion of such
deposition) that encompasses Confidential information shall be taken only in the presence of
persons who are qualified to have access to such information.
Inadvertent Failure to Designate. Any party who inadvertently fails to identify
documents as "Confidential" shall, promptly upon discovery of its oversight, provide written
notice of the error and substitute appropriately-designated documents. Any party receiving such
improperly-designated documents shall retrieve such documents from persons not entitled to
receive those documents and, upon receipt of the substitute documents, shall either return the
improperly-designated documents and any copies thereof within 10 days or destroy such
documents within 10 days and provide written certification to that effect.
Inadvertent Production of Documents. Any party who inadvertently produces
documents that are privileged or otherwise immune from discovery shall, promptly upon
discovery of such inadvertent disclosure, so advise the receiving party and request that the
documents be returned. The receiving party shall return such inadvertently produced documents,
including all copies, within 10 days of receiving such a written request. The party returning such
inadvertently produced documents may thereafter seek re-production of any such documents
pursuant to applicable law.
Objections to Confidentiality Designations. If at any time a party objects to a
designation of Discovery Materials as Confidential under this Order, the objecting party may
notify the designating party in writing. The notice shall identify the materials in question and
shall specify in reasonable detail the reason or reasons for the objection. The parties agree to
meet and confer promptly in good faith to resolve any disagreements regarding the propriety of
any designation of Discovery Materials as Confidential. If the parties are unable to reach a
mutual agreement after conferring, the designating party shall-within 10 days of receipt of the
notice objecting to the designation-either withdraw the designation or apply to the Court for a
ruling on the Confidential status of the Discovery Materials at issue. If the designating party
applies to the Court for such a ruling, the Confidential status of the Discovery Materials shall be
maintained until the Court has rendered a final ruling on the application. If the designating party
does not apply to the Court for such a ruling within the 10-day period, the designation in dispute
shall be deemed withdrawn.
Filing with the Court.
In the event that a party intends to include any
Confidential documents in a Court filing, the party may, at least two business days prior to the
date of the filing, inform the party who designated the material(s) as Confidential of the identity
of the Confidential documents to be filed. If the filing party does so, the designating party must,
by the end of the business day prior to the filing date, indicate which Confidential documents it
wishes to be filed under seal, if any. If the designating party fails to respond to the filing party
by the end of the business day prior to the filing date, then the filing party may file the
Confidential documents in the public record. If the filing party does not inform the designating
party of its intent within two business days of the filing, and in all other instances, Confidential
documents that are contained in any Court filing shall be filed under seal.
documents that are filed under seal, must be filed in a sealed envelope in compliance with
Section IV.B of the Court's CM/ECF Administrative Policies and Procedures Manual for Civil
Filings. The sealed envelope also must contain the following statement:
"CONFIDENTIAL: THE CONTENTS OF THIS ENVELOPE ARE NOT TO
BE SCANNED AND ARE SUBJECT TO A PROTECTIVE ORDER OF THIS
COURT AND SHALL NOT BE SHOWN TO ANY PERSONS OTHER THAN
A JUDGE OF THIS COURT OR ANY ATTORNEY OF THIS CASE."
Either party may file a motion to unseal documents that have been filed under seal, and the
proponent of a document's confidential designation shall bear the burden of demonstrating that
the document should be excluded from the public court file pursuant to Fed. R. Civ. P 26(c).
Termination of Action. The termination of this action shall not relieve any
person possessing Confidential documents from the obligations imposed by this Protective Order
unless the Court orders or permits otherwise. Further, the parties stipulate that all Confidential
documents, including any copies, will be destroyed within 60 days after the conclusion of this
action, except that counsel shall be permitted to maintain the complete integrity of their
respective case files for a reasonable period of time provided that they continue to comply with
the terms of this Protective Order.
Modification or Other Court Order. Nothing in this Protective Order precludes
any party from seeking from the Court and obtaining, on an appropriate showing, a modification
of this Protective Order, protection for particular Discovery Materials that is different from or in
addition to the protection provided pursuant to this Protective Order, or permission to disclose
Confidential documents other than as permitted under this Protective Order.
No Waiver of Any Claim or Defense. No action taken in accordance with this
Protective Order shall be construed as a waiver of any claim or defense in the action or of any
position as to discoverability or admissibility of evidence.
Dated this tfictay of
APPROVED AS TO FORM AND CONTENT:
lsi Richard S. Krumholz
Troy A. Price (88010)
Stephen R. Lancaster (93061)
Michelle M. Kaemmerling (2001227)
WRIGHT, LINDSEY & JENNINGS L.L.P.
200 West Capitol Avenue, Suite 2300
Little Rock, AR 72201
Telephone: (501) 371-0808
Facsimile (502) 376-9442
Richard S. Krumholz
Texas State Bar No. 00784425
Member of the E.D. ofArkansas Bar
Lindsy Nicole Alleman
Texas State Bar No. 24055094
Admitted Pro Hac Vice
FULBRIGHT & JAWORSKI L.L.P.
2200 Ross Avenue, Suite 2800
Dallas, TX 75201
Telephone: (214) 855-8000
Facsimile: (214) 855-8200
lsi David Van Os
David Van Os
Texas State Bar No. 20450700
Texas State Bar No. 24026937
DAVID VAN OS & ASSOCIATES, P.c.
The Milam Building
115 E. Travis Street, Suite 618
San Antonio, Texas 78205
Telephone: (210) 1800
Facsimile: (210) 299-1801
John L. Burnett
Arkansas State Bar No. 77021
LAVEY AND BURNETT
904 W. 2d Street
P.O. Box 2657
Little Rock, Arkansas 72203
ATTORNEYS FOR COUNSEL FOR
DEFENDANT JOHNNY LEE AND FOR
COMMUNICATION WORKERS OF
Mark S. Miller
Texas State Bar No. 14099600
Admitted Pro Hac Vice
Texas State Bar No. 24050870
Admitted Pro Hac Vice
FULBRIGHT & JAWORSKI L.L.P.
1301 McKinney, Suite 5100
Houston, Texas 77010-3095
Telephone: (713) 651-5151
Facsimile: (713) 651-5246
COUNSEL FOR PLAINTIFFS WINDSTREAM
CORPORATION, WINDSTREAM BENEFITS COMMITTEE,
WINDSTREAM SYSTEMS OF THE MIDWEST, INC. AND
VALOR TELECOMMUNICATIONS OF TEXAS, L.P., DIBIA
WINDSTREAM COMMUNICATIONS SOUTHWEST
_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ declares that:
I reside at
_ _ _ _ _ _, County of
in the City of
, State of
My telephone number is
I am currently employed by
, and my current job title
I have read and I understand the terms of the Protective Order dated - - - - - filed in Case No. 4:09-cv-00953, pending in the United States District Court for the Eastern
District of Arkansas, Western Division. I agree to comply with and be bound by the provisions
of the Protective Order. I understand that any violation of the Protective Order may subject me
to sanctions by the Court.
I shall not divulge any documents, or copies of documents, designated "Confidential"
obtained pursuant to such Protective Order, or the contents of such documents, to any person
other than those specifically authorized by the Protective Order. I shall not copy or use such
documents except for the purposes of this action and pursuant to the terms of the Protective
As soon as practical, but no later than 30 days after final termination of this action, I shall
return to the attorney from whom I have received them, any documents in my possession
designated "Confidential," including all copies, excerpts, summaries, notes, digests, abstracts,
and indices relating to such documents.
I submit myself to the jurisdiction of the United States District Court for the Eastern
District of Arkansas, Western Division for the purpose of enforcing or otherwise providing relief
relating to the Protective Order.
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