JMAR Express Inc et al v. Peterbilt of Memphis Inc et al

Filing 86

STIPULATED PROTECTIVE ORDER. Signed by Judge Billy Roy Wilson on 11/2/11. (kpr)

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF ARKANSAS

WESTERN DIVISION

JMAR EXPRESS, INC.
CHRISCAT LEASING, INC.

PLAINTIFFS

NO. 4:1 O-CV-01231-BRW

VS.

PETERBILT OF MEMPHIS, INC., PACCAR INC.,

CATERPILLAR II\lC., & CUMIVIINS, II\lC.

DEFENDANTS

STIPULATED PROTECTIVE ORDER
[DKT #
1
The parties have informed the Court that certain documents and information
have been and may be sought, produced or exhibited by and between the parties in this
proceeding (the "Proceeding") and that some of these documents relate to the parties'
and third parties' financial information, competitive information, or other types of
sensitive information which the party making the production deems confidential. It has
been agreed by the parties to the Proceeding, through their respective counsel, that to
expedite the flow of discovery material and to preserve the confidentiality of certain
documents and information, a protective order should be entered by the Court.
Court has reviewed the terms and conditions of this Protective Order.

The

Based on the

parties' stipulations and after a review of the parties' joint proposal, it is hereby
ORDERED that:

1.

Scope
a.

This Order shall govern all documents, the information contained therein,

and all other information produced or disclosed during the Proceeding whether revealed

in a document, deposition, other testimony, discovery response or otherwise, by any
party, including any third-party, in this Proceeding (the "Supplying Party") to any other
party, including any third-party, (the "Receiving Party"), when same is designated with
the procedures set forth herein.

This Order is binding upon the parties to the

Proceeding, including their respective corporate parents, subsidiaries and affiliates as
well as their respective attorneys, agents, representatives, officers and employees and
others as set forth in this Order. This Order is also binding on and applies to all third
parties who either produce or receive documents or information in connection with this
Proceeding.
b.

Under this Order, any Supplying Party shall have the right to identify and

designate as "Confidential" any document or other information it produces or provides,
or any testimony given in this Proceeding, which testimony or discovery material is
believed in good faith by that Supplying Party, and by the Supplying Party's counsel, to
constitute, reflect or disclose trade secret or other confidential research, development,
or commercial information contemplated under Rule 26(c) of the Federal Rules of Civil
Procedure ("Designated Material").
c.

"Confidential Information" as used herein means any Designated Material

that is designated pursuant to this Protective Order as "Confidential" by the Supplying
Party, whether it is a document, information contained in a document, information
revealed during a deposition or other testimony, information revealed in an interrogatory
answer or information otherwise revealed.
d.

All

documents

and

information described

in

Paragraph

(1 )(c)

as

Confidential Information and which a party, and the party's counsel, believes to be

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extremely sensitive confidential and/or proprietary information, the disclosure of which,
even limited to the restrictions placed on Confidential Information in this Order, would
compromise and/or jeopardize the Supplying Party's competitive business interests
("Highly Confidential Information"), may be designated as "Highly Confidential" by said
party and the parties have advised the Court that a separate Protective Order is
contemplated to address the disclosure of Highly Confidential Information. The parties
have advised that additional protections will be sought with respect to Highly
Confidential documents prior to their production.
e.

A party

may designate as "Confidential" or "Highly Confidential"

information in the possession of and supplied by a third party if the information was
transmitted to the third party under an agreement or an obligation that it would remain
confidential and the information otherwise complies with Paragraph 1(c) and (d).
f.

Subject to paragraph 12(c), all documents and other materials produced in

this lawsuit shall be used only for purposes of this lawsuit whether or not a Supplying
Party designates such documents or materials as "Confidential" or "Highly Confidential."

2.

Designation of Confidentiality
Documents or information may be designated CONFIDENTIAL or HIGHLY

CONFIDENTIAL within the meaning of this Order in the following ways:
a.

Specific documents produced by a Supplying Party shall, if appropriate, be

designated as "Confidential" or "Highly Confidential" by marking the first page of the
document and each subsequent page thereof containing Confidential or Highly
Confidential

information with the

legend:

"CONFIDEI\JTIAL," "CONFIDENTIAL­

SUBJECT TO PROTECTIVE ORDER," "HIGHLY COf\IFIDENTIAL" or "HIGHLY
CONFIDEI\JTIAL-SUBJECT TO PROTECTIVE ORDER."

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b.

In the case of interrogatory answers and responses to requests for

admissions, if appropriate, designation of Confidential or Highly Confidential information
shall be made by means of a statement in the answers or responses specifying that the
answers or responses or specific parts thereof are designated "CONFIDENTIAL or
HIGHLY CONFIDENTIAL."

The following legend shall be placed on each page of

interrogatory answers or responses to requests for admission containing Confidential
Information

or

Highly

Confidential

Information:

"CONTAINS

CONFIDENTIAL

INFORMATION" or "CONTAINS HIGHLY COt\IFIDENTIAL 1t\IFORMATION."
c.

In the case of depositions and the information contained in depositions

(including exhibits), designation of the portions of the transcript (including exhibits)
which contain Confidential Information or Highly Confidential Information shall be made
by a statement to such effect on the record in the course of the deposition by counsel
for the party or witness producing such information, or by letter from such counsel within
thirty (30) days of receipt of the deposition transcript or copy thereof (or written
notification that the transcript is available). The entire deposition transcript (including
exhibits) shall be treated as Highly Confidential under this Order until the expiration of
the above-referenced thirty-day period for designation by letter, except that the
deponent may review the transcript of his or her own deposition during this thirty-day
period. After the expiration of the thirty (30) day period, the following legend shall be
conspicuously placed on the front and back of any original deposition transcript, and on
each copy thereof, which contains Confidential Information or Highly Confidential
Information: "CONTAINS CONFIDENTIAL INFORMATION" or "CONTAINS HIGHLY
COI\JFIDENTIAL

INFORMATION."

If portions of a videotaped

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deposition

are

designated as "CONFIDENTIAL" or "HIGHLY CONFIDENTIAL," the videocassette or
other videotape container shall be labeled with the same legend provided for in
paragraph 2(a).

Nothing in this Stipulated Order shall be interpreted to require an

attorney for a party to leave or otherwise not participate in a deposition.
d.

To the extent that matter stored or recorded in the form of electronic or

magnetic media (including information, files, databases, or programs stored on any
digital or analog machine-readable device, computers, discs, networks or tapes)
("Computerized Material") is produced by any party in such form, the Supplying Party
may designate such matter as "CONFIDENTIAL" or "HIGHLY CONFIDENTIAL" by
cover letter referring generally to such matter or by affixing to such media a label with
the legend provided for in paragraph 2(a) above.

Whenever any party to whom

Computerized Material designated as "CONFIDENTIAL" or "HIGHLY CONFIDENTIAL"
is produced reduces such material to hard-copy form, such party shall mark such hard­
copy form with the legend provided for in paragraph 2(a) above.
e.

To the extent that any party or counsel for any party creates, develops or

otherwise establishes on any digital or analog machine-readable device, recording
media, computer, disc, network, tape, file, database or program information designated
CONFIDENTIAL and/or HIGHLY CONFIDENTIAL, that party and/or its counsel must
take all necessary steps to ensure that access to such media is properly restricted to
those persons who, by the terms of this Order, may have access to Confidential
Information and/or Highly Confidential Information, and will affix to any media containing
such information a label with the legend provided for in paragraph 2(a) above.

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f.

The filing of any documents and materials with the Court containing or

reflecting the contents of Confidential Information or Highly Confidential Information
shall be labeled

"CONFIDENTIAL INFORMATION (or HIGHLY CONFIDENTIAL

INFORMATION) - SUBJECT TO COURT ORDER"

and shall also bear the legend

"FILED UNDER SEAL" on the cover page of the document. Only those portions of such
documents and materials containing or reflecting Confidential Information or Highly
Confidential Information shall be considered Confidential or Highly Confidential and may
be disclosed only in accordance with this Order. Each party shall use its best efforts to
minimize filings that necessitate the filing of documents and materials designated
Confidential or Highly Confidential under seal.

No party or other person may have

access to any sealed document from the files of the Court without an order of the Court.
This provision does not relieve the filing party of serving the document on other parties
in accordance with ordinary procedures established by the civil and local rules or Court
order. Regardless of any provision in this Order to the contrary, a party does not have
to file a document under seal if the Confidential Information or Highly Confidential
Information contained or reflected in the document was so designated solely by that
party.
g.
3.

Documents filed under seal may be unsealed at the Court's discretion.

Use of Confidential Information or HighlY Confidential Information
Subject to Paragraph 12(c), Confidential Information or Highly Confidential

Information shall not be used by any person, other than the Supplying Party, for any
purpose other than conducting this Proceeding, Case No. 10-1231, which is currently
pending in the United States District Court for the Eastern District of Arkansas, and in

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no event shall such information be used for any business, competitive, personal,
private, public or other purpose.
4.

Disclosure of Confidential Information
a.

The attorneys of record are responsible for employing reasonable

measures, consistent with this Order, to control access to, and distribution of
information designated "CONFIDENTIAL" pursuant to this Order.
b.

Subject to

Paragraph 6 below,

"CONFIDENTIAL" pursuant to this
i.

Ord~r

access to

information

designated

shall be limited to the following persons:

The parties, including outside and in-house counsel for the parties,
as well as members and employees of their firms including but not
limited to their paralegals, investigative, secretarial and clerical
personnel who are employed by and engaged in assisting such
counsel in this Proceeding.

ii.

Outside photocopying, data processing or graphic production
services employed by the parties or their counsel to assist in this
Proceeding.

iii.

Any outside expert or consultant (or any employee of such outside
expert or consultant) who is retained, or sought to be retained, by
counsel for a party in this Proceeding, for purposes of consulting,
and/or testifying in this Proceeding, and to whom counsel in good
faith has deemed disclosure of such "CONFIDENTIAL" material is
reasonably necessary in order to assist in the preparation or the
conduct of this Proceeding.

This paragraph shall not relieve,

change or otherwise affect any obligations or limitations imposed

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on any person by contract or law regarding the disclosure or use of
trade secrets or other confidential or proprietary information.
iv.

Five (and no more than five) directors, officers, employees or other
representatives of a party or its corporate parent whose review of
the specific Confidential Information is reasonably necessary to
assist in the prosecution or defense of this Proceeding. However, a
party that originally designated information as "CONFIDENTIAL"
may reveal such information to any of its own directors, officers,
employees or other representatives.

v.

Any fact witness, at the witness' deposition in this Proceeding, but
only if counsel who discloses "COI\IFIDENTIAL" information to the
witness

determines,

in

good

faith,

that

such

disclosure is

reasonably necessary and appropriate to assist in the conduct of
this Proceeding.
vi.

Any person (a) who was involved in the preparation of the
document or other tangible medium containing the Confidential
Information and/or who is shown on the face of "CONFIDENTIAL"
material to have authored or received the "CONFIDENTIAL"
material sought to be disclosed to that person, or (b) who is
specifically referenced by name and substantively discussed in the
"CONFIDENTIAL" material, but only as to the specific material the
person authored or received, or in which such person is referenced
and discussed.

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VII.

This Court or any other Court exercising jurisdiction with respect to
this

lawsuit,

(including

Court personnel, jurors,

necessary clerical

personnel)

and

qualified

recording,

persons
taking

or

transcribing testimony or argument at any deposition, hearing, trial
or appeal in this lawsuit; and
viii.

Any other person to whom the Supplying Party agrees in writing or
on the record in advance of the disclosure, provided that the party
seeking to make the disclosure must first submit a request, in
writing or on the record, to the Supplying Party explaining why the
disclosure is necessary. If the Supplying Party does not agree to
allow the disclosure, the party seeking to make the disclosure may
file a motion with the Court for approval to make the disclosure.

5.

Disclosure of Highly Confidential Information
The parties have advised the Court that a separate Protective Order is

contemplated to address the disclosure of Highly Confidential Information.

6.

Notification of Protective Order
Confidential Information and Highly Confidential Information shall not be

disclosed to a person described in paragraphs 4(b)(iii), 4(b)(iv), 4(b)(v), 4(b)(viii),
5(c)(iii), 5(c)(v), or 5(c)(vi) unless and until such person has executed an Agreement of
Confidentiality in substantially the form attached hereto as Exhibit A. The originals of an
executed Agreement of Confidentiality shall be maintained by counsel for the party who
obtained it until the final resolution of this lawsuit, and shall not be subject to discovery
except upon motion on notice and a showing of good cause. This prohibition includes

9

either direct or indirect disclosure, including but not limited to, any disclosure by counsel
or experts.

7.

Use of Confidential or Highly Confidential Information at Trial
The rules and procedures governing the use of Confidential and Highly

Confidential Information at trial shall be determined by the Court at the final pretrial
conference.

8.

Objections to Designations
A party may, at any time, make a good faith challenge to the propriety of a

Confidential or Highly Confidential Information designation. In the event a party objects
to the designation of any material under this Order, the objecting party shall consult with
the designating party to attempt to resolve their differences. If the parties are unable to
reach an accord as to the proper designation of the material, after giving notice to the
designating party, the objecting party may apply to the Court for a ruling that the
material shall not be so designated. If such a motion is made, the designating party has
the burden of establishing that the designation is proper. If no such motion is made, the
material will retain its designation.

Any documents or other materials that have been

designated "CONFIDENTIAL" or "HIGHLY CONFIDENTIAL" shall be treated as
Confidential or Highly Confidential until such time as the Court rules that such materials
should not be treated as Confidential or Highly Confidential.

9.

Preservation of Rights and Privileges
Nothing contained in this Order shall affect the right, if any, of any party or

witness to make any other type of objection, claim, or other response to discovery
requests, including, without limitation, interrogatories, requests for admissions, requests
for production of documents or questions at a deposition.

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Nor shall this Order be

construed as a waiver by any party of any legally cognizable privilege to withhold any
Confidential Information or Highly Confidential Information other than on the basis that it
has been designated Confidential or Highly Confidential, or of any right which any party
may have to assert such privilege at any stage of this lawsuit.

10.

No Waiver
Other than as specified herein, the taking of or the failure to take any action to

enforce the provisions of this Protective Order, or the failure to object to any designation
or any such action or omission, shall not constitute a waiver of any right to seek and
obtain protection or relief in this action or any other action, such right including, but not
limited to, the right to claim that any information is or is not proprietary to any party, is or
is not entitled to particular protection or that such information does or does not embody
trade secrets of any party. The procedures set forth herein shall not affect the rights of
parties to object to discovery on grounds other than those related to trade secrets or
proprietary information claims, nor shall it relieve a party of the necessity of proper
response to discovery devices.

11.

Return of Materials
Within sixty (60) business days after the final resolution of this lawsuit, all

Confidential Information or Highly Confidential Information and copies thereof shall be
returned to counsel for the party that produced it. As to those materials that contain or
reflect Confidential Information or Highly Confidential Information, but that constitute or
reflect counsel's work product, counsel of record for the parties shall be entitled to retain
such work product in their files in accordance with the provisions of this Order, so long
as it is clearly marked to reflect that it contains information subject to this Order. Such
materials may not be used in connection with any other proceeding or action. Counsel
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shall be entitled to retain pleadings, affidavits, motions, briefs, other papers filed with the
Court, deposition transcripts, and the trial record (including exhibits) even if such
materials contain Confidential Information or Highly Confidential Information, so long as
such materials are clearly marked to reflect that they contain information subject to this
Order and may not be used in connection with any other proceeding or action.
12.

Inadvertent or Unintentional Disclosure

A Supplying Party that inadvertently fails to designate discovery material as
"Confidential" or "Highly

Confidential" or mis-designates

discovery

material

as

"Confidential" or "Highly Confidential" pursuant to this Order at the time of its production
shall be entitled to make a correction to its designation within a reasonable time of the
discovery of the non- or mis-designation. Such correction and notice thereof shall be
made in writing, accompanied by substitute copies of each item of discovery material,
appropriately designated. Those individuals who received the discovery material prior
to notice of non- or mis-designation by the Supplying Party shall within five (5) days of
receipt of the substitute copies, take reasonable steps to destroy or return to the law
firm representing the Supplying Party all copies of such mis-designated documents.
The obligation to treat such material pursuant to the corrected designation shall be
prospective only, and those individuals who reviewed the mis-designated discovery
material prior to notice of the mis-designation by the Supplying Party shall abide by the
provisions of this Order with respect to all future use and disclosure of any information
contained in the mis-designated materials.
13.

Other Provisions

a.

The restrictions set forth in this Order shall not apply to documents or

information designated Confidential or Highly Confidential that are publicly available or

12

that are obtained independently and under rightful means by the Receiving Party,
unless they became so due to a violation of this Order.
b.

A party's compliance with the terms of this Order shall not operate as an

admission that any particular document is or is not (a) confidential, (b) privileged or (c)
admissible in evidence at trial.
c.

Any party or person in possession of Confidential Information or Highly

Confidential Information who receives a subpoena (or other process) from any person
(including natural persons, corporations, partnerships, firms, governmental agencies,
departments or bodies, boards or associations) who is not a party to this Order, which
subpoena seeks production or other disclosure of such Confidential Information or
Highly Confidential Information shall immediately give written notice by electronic mail to
counsel for the other party or person who produced the materials designated as
Confidential or Highly Confidential. The written notice shall identify the materials sought
and enclose a copy of the subpoena or other process, unless ordered otherwise by a
court of competent jurisdiction. Nothing herein shall be construed to obligate the person
subject to service or other process to make a motion or undertake other legal process,
or to appear before any court or administrative body in opposition to a motion or other
legal process seeking production of any Confidential or Highly Confidential materials,
provided such person invokes, to the extent reasonably possible, the highest level of
confidentiality available under applicable law, rule, regulation, court order, or other
compulsory process, at the time of disclosure of such Confidential materials.
d.

This Order shall apply to non parties who provide discovery, by deposition,

production of documents or otherwise, in this lawsuit, if said non party requests, in

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writing, the protection of this Order as to said non party's Confidential Information or
Highly Confidential Information and complies with the provisions of this Order.
e.

Upon the final resolution of this lawsuit (including conclusion of any

appeal), this Order shall remain in effect and continue to be binding, unless expressly
modified, superseded, or terminated by consent of all parties or by Order of the Court.
This Court expressly retains jurisdiction over this action for enforcement of the
provisions of this Order following the final resolution of this lawsuit.

f.

This Order shall not prevent a party from applying to the Court for relief

therefrom, or from applying to the Court for further or additional protective orders, or
from agreeing to modifications of t~i~er, subject to the approval of the Court.
IT IS SO ORDERED

thiS~~011.

/s/Billy Roy Wilson
UNITED STATES DISTRICT JUDGE

EXHIBIT A

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF ARKAI\JSAS

WESTERN DIVISION

JMAR EXPRESS, INC.
CHRISCAT LEASING, INC.

PLAINTIFFS

I\JO. 4:1 0-CV-01231-BRW

VS.

PETERBILT OF MEMPHIS, INC., PACCAR INC.,

CATERPILLAR INC., & CUMMINS, INC.

DEFENDANTS

CERTIFICATION
1.

My name is

_

I live at

_

I am employed as (state position)

_

by (state name and address of employer)
2.

_

I have read the Confidentiality Order that has been entered in this case, and a

copy of it has been given to me. I understand the provisions of this Order, and agree to

comply with and to be bound by its provisions.

3.

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

Executed this

day of

, 200_
by

_
(signature).

EXHIBIT B

IN THE UNITED STATES DISTRICT COURT FOR

THE EASTERN DISTRICT OF ARKANSAS

..IMAR EXPRESS, INC.
CHRISCAT LEASING, INC.

PLAINTIFFS

NO.4:10-CV-01231-BRW

VS.

PETERBILT OF MEMPHIS, INC., PACCAR INC.,

CATERPILLAR INC., & CUMMINS, INC.

DEFENDANTS

NOTICE TO DEPOSITION WITNESSES
You are being shown one or more documents which have been designated as
"Confidential" or "Highly Confidential" pursuant to an Order of this Court.

Except for

providing testimony at this deposition, you may not disclose these documents or their
contents to any person other than the attorney who represents you at this deposition.
Further, neither these documents nor their contents may be used by you for any
purpose except that you may use them for your testimony in connection with this
lawsuit. In any event, you are prohibited from using them for any business, competitive,
personal, private, public, or other non litigation purpose. The improper disclosure or use
of these documents or their contents may result in the imposition of sanctions upon you
by the Court. If you wish a complete copy of the Court Order, a copy will be provided to
you upon request.
Respectfully submitted,

By: