Barber et al v. Chesapeake Exploration LLC

Filing 20

AGREED PROTECTIVE ORDER REGARDING CONFIDENTIAL INFORMATION. Signed by Chief Judge J. Leon Holmes on 10/12/11. (vjt)

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF ARKANSAS

WESTERN DIVISION

DEWAYNE BARBER AND PAULElTE
BARBER, HUSBAND AND WIFE
v.

PLAINTIFFS

CASE NO.4: II-CV-0234 JLH

CHESAPEAKE EXPLORATION, LLC;
BP AMERICA PRODUCTION COMPANY; AND
BHP BILLITON PETROLEUM (FAYETTEVILLE) LLC

DEFENDANTS

AGREED PROTECTIVE ORDER REGARDING
CONFIDENTIAL INFORMATION
The parties to this case have sought, and/or may in the future seek, the discovery of
certain intormation from each othel' which a party considers to be trade secret and/or confidential
or proprietary information. To expedite the flow of discovery material, adequately protect and
ensure the confidentiality of designated documents, records, communications, deposition
testimony and other materials, and facilitate the prompt resolution of any disputes over
confidentiality, Plaintiffs and Defendants hereby agree to the entry of this protective order.
Accordingly, this Order is being entered pursuant to the Court's authority under Rule 26(c) of the
Federal Rules of Civil Procedure.

IT IS HEREBY ORDERED THAT:
1.

Definitions:
a.

"Parties" shall include Plaintiffs and Defendants, as defined below.

b.

"Plaintiffs" shall mean Dewayne Barber and Paulette Barber, Husband and

Wife, and their agents, servants, employees, attomeys, legal representatives, and all other
persons acting on their behalf
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c.

"Defendants" shall mean BHP Billiton Petroleum (Fayetteville) LLC,

Chesapeake Exploration, LLC, and BP America Production Company, and their respective
divisions, SLiccessors, assigns. predecessors, affiliates, agents, servants, employees, attorneys,
suppliers, officers, directors, shareholders, legal representatives, insurers, subsidiaries, sister and
parent corporations, and all other persons, firms, corporations or other business entities that are
or have been aftiliated with or related to them.
d.

"Document" shall have the meaning set forth in Fed. R. Civ. P. 34(a)(1).

e.

"Confidential Information" shall mean non-public information contained

in any Document, tangible medium of expression, or Discovery Material that is designated by
any Producing Party as confidential and that contains trade secrets or other confidential research,
development, or commercial information, such as customer identification, personal information,
financial in fonnation, proprietary information, and other fonns of sensitive business information.

f.

"Discovery Material" shall mean any Document, including the contents,

copies, excerpts and summaries thereof, furnished, provided, produced, filed, or served in
response to any discovery request Illade by Plaintiffs or Defendants, used as an exhibit at a
deposition or court hearing or trial, or otherwise exchanged in furtherance of the resolution ofthe
above-captioned case. "Discovery Material" shall also mean any interrogatory answer or any
testimony taken in this case or transcript thereof, including the contents, copies, excerpts and
summaries thereof.
g.

"Person" shall mean any individual, corporation, partnership, association,

unincorporated organization or other entity.
h.

"Producing Party" shall mean the person or entity that produces any
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information that is subject to the terms of this Order.
2.

This Order shall govern any Discovery Material designated as Confidential

Information in accordance herewith.
3.

Any Producing Party may designate Discovery Material it produces as

Confidential Information, provided the Producing Party has a good faith belief that such
into~malion

constitutes Confidential Information as defined herein, and that such designation is

in accordance with any applicable law. The Producing P~rty may designate a Document as
Confidential Information by placing the word "CONFIDENTIAL" on the document.

The

Producing Party may designate specifically identitied portions of deposition testimony of a
witness as Confidential Information at the time that the deposition testimony is elicited by
indicating on the record at the deposition that the testimony is "Confidential," or by notifying the
other parties in writing within 30 days of receipt of the transcript of the portion(s) of the
transcript being designated as "Confidential." Nothing in this Order shall be construed as
prejudicial to the rights ofany party or non-party to designate any other materials as confidential,
or to the rights of the Parties to contest any such designation of confidentiality. If any of the
Parties contests the designation of any document or information as "Confidential" under this
Order, the contest must be made in writing within 30 days of receipt of notice of the designation.

It: after an attempt to meet and confer, no resolution is reached, any party shall have the right to
challenge any designation of confidentiality by a Producing Party by seeking an order of the
Court with respect to any Contidentiallnformation. During the pendency of any such challenge,
any Discovery Material designated as "Contidential" shall remain protected unless and until the
Court rules otherwise.

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4.

Discovery Material designated herein as "Confidential" may be used by the

Parties only tor purposes of preparing tor and conducting pretrial and trial proceedings in this
action.

Except as provided herein, Discovery Material designated as "Confidential," and

information derived therefi'om, shall be shown only to the following persons:
4.1

Named plaintiffs Dewayne Barber and Paulette Barber, and officers and

employees of Defendants who are involved in assisting counsel in the defense of this
case.
4.2

Counsel of record for the Parties and employees of such counsel as are

required to assist in the preparation or conduct of this action;
4.3

Persons who do not fall within the category described in Section 4.1 above

and who are witnesses at any deposition, hearing or trial in this action who counsel for
the disclosing party believes in good faith are likely to have knowledge pertaining to the
content of the Confidential Discovery Material; provided that, before being shown any
"Confidential" Discovery Material, such persons shall be given a copy of this Order. and
have executed the Acknowledgement attached as Exhibit A hereto;
4.4

Persons hired or consulted with as experts during the course of this

litigation; provided that, before being shown any "Confidential" Discovery Material, such
persons shall be given a copy of this Order, and have executed the Acknowledgement
attached as Exhibit A hereto.
4.5

COLIrt personnel, including stenogl·aphic, video reporters and/or translators

engaged in such proceedings as are necessarily incident to the preparation or trial of this

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action. as well as personnel of any other court where disclosure

IS

necessary in

connection with a motion or other matter relating to this case; and
4.6

(fthis Court so elects. any other person designated by Order of this Court,

after notice to and an opportunity to be heard by all parties.
5.

The persons described in Paragraph 4 as having access to the "Confidential"

Discovery Material shall be prohibited from disclosing any such information to any other person
except as provided herein, and each such person shall take appropriate measures to safeguard the
confidentiality of the "Confidential" Discovery Material to prevent the willful or inadvertent
disclosure thereof and to assure that the provisions of th is Order are accomplished.
6.

Any and all documents and materials subject to this protective order shall be kept

so that they are not amenable to being read or seen by anyone other than the Parties, their
attorneys, and others who have permission to view or obtain such documents and materials.
7.

If it becomes necessary for "Confidential" Discovery Material to be filed with the

Court, the party seeking to file the "Confidential" Discovery Material shall file an appropriate
motion with the Court seeking leave to me the material under-seal. Any Document designated as
a trial exhibit (in accordance with the applicable rules of Court and orders of the Court) which
contains Confidential Information may be offered into evidence and used in open court at trial
unless the Producing Party obtains an appropriate order from the Court closing the courtroom.
8.

A non-party that produces documents or provides testimony in this case may

designate such information as "Confidential" provided that the non-party subscribes hereto by
executing the Acknowledgement attached as Exhibit A hereto.

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9.

Upon final conclusion of this action. all copies of "Confidential" Discovery

Material, including designated deposition testimony. shall be promptly returned to the Producing
Party or destroyed. In addition. upon the Producing Party's request within forty-five (45) days of
the conclusion of this action, an affidavit of compliance shall be provided to the Producing Party
swearing or affirming that all "Confidential" Discovery Material and all copies thereof in the
possession of the party so attesting have been returned to the Producing Party or destroyed.
10.

In the event that any party is dismissed as a party to this action, it shall continue to

be bound by and have rights under this Agreement.

A party that is in possession of

"Confidential" Discovery Material at the time it is dismissed from this action shall comply with
Paragraph 9 promptly after the dismissal becomes final (i.e., when all appeals have concluded or
when the time to appeal has expired without a notice of appeal being filed).
11.

If a party determines in good faith that "Discovery Material" which was not

previously designated as "Confidential" should have been so designated as "Confidential" under
paragraph 3, that party may make sllch designation at that time. A designation under this
paragraph shall take effect at the time it is made.
12.

The inadvertent production of a document otherwise subject to protection under

the attorney-client privilege, work product doctrine or any other privilege recognized by
applicable law shall not be deemed to be a waiver of said privilege. Any party who contends that
SUCll

a document was inadvertently produced shall notify the other party within ten days of its

discovery of such inadvertent production. The party to which the document was produced may
return the document to the Producing Party and reserve all of its rights to seek an order from the
Court compellillg production of the document at the appropriate time. Alternatively, the party to

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which the document was produced may retain the document, provided that the party seeks relief
from the Court within 30 days from receipt of notification to compel production of such
document on the ground that the document is properly subject to production.

No such

documents shall be copied or distributed until resolution of the privilege issue by the Court. The
production or a document that a party believes to fall \vithin any privilege or immunity shall not
constitute a categorical waiver of such privilege
13.

01'

immunity.

Nothing in this Order shall be construed to impede or restrict use of Confidential

Information by this Court or any of its personnel to the extent that such information is presented
to the Court whether before or during trial. Nothing in this Order shall be deemed to restrict in
any way a Producing Party or its attorneys with respect to the party's own documents or prevent
a Producing Party from using or disclosing information obtained from public documents or other
documents legally and properly obtained other than through discovery in this case.
14.

It is agreed that this Agreed Protective Order contains the entire agreement and

understanding between and among the parties hereto and supersedes any prior agreements and
understandings among them respecting the subject matter hereof. There are no agreements or
understandings (oral or written) between and among the parties hereto relating to the subject
matter of this Order that are not set forth or expressly referred to herein. The agreement of the
parties reflected herein may not be modified or amended except in a writing executed on behalf
of all the parties hereto and approved by the Court.
SIGNED this ~ day

~f

Cttow

7

, 2011.

UNITED STATES DISTRICT JUDGE

AGREED TO:

PLAINTIFFS DEWAYNE BARBER AND
PAULETTE BARBER, H ~ N DWIFE

/~_#'-/-----

By: -----r-/
.....
M;frtin
owen

)3owen Law Firm, PLLC

, ~. O. Box 7273

Little Rock, AR 72217

Attorney/or Plaintij!\'

DEFENDANTS CHESAPEAKE EXPLORATION, LLC,
BHP BILLITON PETROLEUM (ARKANSAS) INC., and
BP ~,M~ERICA COMPANY
~RODUCTJON

B~~"":"""":'--iJ~~~

Lindsey K. Bell

Millar Jiles Cullipher, LLP

40 I W. Center

P.O. Box 1406

Searcy, AR 72145-1406

AIlOI'l1CyS jor

Defendants

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EXHIBIT A
IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF ARKANSAS

WESTERN DIVISION

DEWAYNE BARBER AND PAULEn"E
BARBER, HUSBAND AND WIFE

v.

PLAINTIFFS

CASE NO.4: II-CV-0234 JLH

CHESAPEAKE EXPLORATION. LLC;
BP AMERICA PRODUCTION COMPANY; AND
BHP BILLITON PETROLEUM (FAYETTEVILLE) LLC

DEFENDANTS

ACKNOWLEDGEMENT OF PROTECTIVE ORDER

The undersigned acknowledges that he/she has read the Agreed Protective Order
Regarding Contidential Information entered by the Court in the above-captioned case,
understands the terms thereof and agrees to be bOllnd by such terms. The undersigned accepts
responsibility for the return or destruction of any Confidential lnformation received under the
terms ofthe Order.

Signature

Date

Print Name (if executing on behalf of an
entity please so indicate)

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