Lambert v. Sears Roebuck & Company et al

Filing 15

AGREED PROTECTIVE ORDER regarding confidential information. Signed by Judge Susan Webber Wright on 8/30/11. (vjt)

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
WESTERN DIVISION

MYLES LAMBERT BELL, AS SPECIAL
ADMINISTRATOR OF THE ESTATE
OF MURL DEAN BELL, deceased
v.

PLAINTIFF

CASE NO. 4:11-cv-314 (SWW)

SEARS, ROEBUCK AND CO.
and JOHN DOES 1-5

DEFENDANTS

AGREED PROTECTIVE ORDER
Upon consideration of this joint submission of the parties and for good cause shown, the
Court hereby enters the following Protective Order:
1.

This Order shall be applicable to and govern all documents (“documents”

includes documents or materials, items, testimony elicited in depositions, or other information,
including information produced in electronic format, and also includes any derivative,
compilation or summary of any “documents,” and the information therein) designed as
confidential and produced in this Litigation (the “Litigation”) between the Plaintiff and
Defendants, and any additional Parties hereafter served, with summons or entering an
appearance herein (collectively “Party or Parties”).

The documents and any information

contained in those documents designated confidential are hereby entitled to the protections of
this Order, provided those documents and information contained in such documents which are
(a) already of public record at the time this Order is entered, (b) obtainable from independent
third Parties free of any Party’s right or claim of confidentiality, or (c) voluntarily, but not

inadvertently, disclosed or released by either Party, shall not be considered or treated as
confidential except as required by this Order.
2.

The documents covered by this Order include any document produced by the

Parties to the Litigation and any documents produced by third Parties pursuant to subpoenas or
other document requests by any of the Parties, which are designated confidential under the
procedures outlined in this Order.
3.

Any Party to this Litigation or any other person who produces or supplies

information, documents or tangible items for use in this Litigation in the course of discovery
(hereafter “Designating Party” or “Producing Party”) may designate as “Confidential” any
material that the Party reasonably and in good faith believes constitutes confidential, private, or
similarly protected information under applicable statutory or common law; however, nothing in
this Order shall be construed as a waiver by any Party of the right to assert a timely, good faith
and reasonable objection to production of certain information on the basis that the information
sought is confidential, private or similarly protected information under applicable statutory or
common law.
4.

Documents, information or tangible items which a Party does produce, either

voluntarily or by Court Order, and which the Party believes reasonably and in good faith is
confidential shall be designated as confidential either by marking “CONFIDENTIAL” on the
face of the original or photocopy of the document.
5.

Documents and information designated as confidential pursuant to this Order

shall not be furnished or disclosed to any person except as provided for herein, and shall be used
solely for the purposes of this Litigation and shall not be used for any business or other purpose.

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6.

Material designated as confidential shall be disclosed only to the following

persons:
A.

This Court and its personnel.

B.

Counsel of record in this Litigation, and their respective clients and client

representatives who have a “need to know”.
C.

Other attorneys employed by the Parties and/or employees of the counsel’s

law firms to the extent reasonably necessary to render professional services in the
Litigation; provided that, prior to disclosure, counsel of record have advised such other attorneys
and employees of their obligations under this Order.
D.

Any consultant, investigator or independent expert (collectively, “Expert”) who is

assisting in the preparation or trial of this Litigation, but only to the extent reasonably necessary
to enable such Expert to render such assistance; provided that, prior to disclosure, each such
Expert shall execute the Confidentiality Agreement, attached hereto as Exhibit “A”.
Counsel of record retaining such consultant shall maintain a copy of each such
Agreement during the course of this litigation.
E.

Persons noticed for depositions or designated as trial witnesses to the

extent reasonably necessary to prepare to testify; provided that, prior to disclosure, each such
person shall execute the Confidentiality Agreement, attached hereto as Exhibit “A”. Counsel
shall maintain a copy of each such Confidentiality Agreement, and shall provide, if requested, a
copy of the signed Agreement to counsel for the requesting Parties. As to any witness shown
documents or information designated as confidential, disclosure shall not include the physical
transfer to or retention by such individual of any documents or any tangible item containing

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confidential information, unless that witness is an Expert referred to in subparagraph D
above.
F.

Court reporters retained for depositions, hearing or other events in the

Litigation; provided that said reporter has been advised of this Order and
verbally agrees to be bound by its terms.
G.

Outside copying services; provided that the copying service has been

advised of this Order and verbally agrees to be bound by its terms.
7.

Counsel for each Party agrees, acknowledges, and affirms that they shall instruct

their respective clients as to the protected nature of all documents or information designated as
confidential, and that said documents and their contents shall not be discussed or disclosed to
anyone, other than in strict accordance with this Protective Order; and, that the use of any such
documents or information produced in the Litigation in contravention of the terms of this Order
may subject the violating entity/entities or individuals to civil action and penalties as may be
allowed by law, and any and all remedies deemed appropriate by the Court.
8.

Where any documents designated as confidential are included as exhibits to any

pleadings, motions, briefs, papers, documents or depositions filed with the Court, unless
expressly waived or excused by the Designating Party, such materials shall be placed in a sealed
envelope marked with the caption of the case and words that in substance state “ConfidentialSubject to Court Protective Order.” The materials shall be held under seal.
9.

If documents designated as confidential are initially disclosed, or if documents

previously designated as confidential are discussed or used as exhibits as a deposition in this
case, counsel for the Party claiming such confidentiality may designate them as confidential by
(a) so indicating on the record of the deposition, or (b) advising other counsel in the case and
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notifying the court reporter in writing, within ten (10) days after receiving the transcript of the
deposition, of any exhibits and the page and lines of the transcript in which confidential
information appears. This written notice shall be served on the deponent, if not a Party. In
addition to any document or information designated as confidential pursuant to this Protective
Order which is used or shown to the witness during the course of a deposition, the portion of the
deposition transcript reflecting the colloquy related to such document or information, or if
necessary the entire deposition, may also be designated as confidential as provided in the first
sentence of this paragraph.

With respect to such deposition testimony, the witness under

deposition or his/her counsel, and/or any counsel representing any party or non-party at the
deposition, may invoke the provisions of this Protective Order if such reasonably and in good
faith believes the deposition testimony to contain confidential information. Those portions of
the deposition transcript to designated and any confidential documents that are marked as
exhibits to the deposition shall be treated as confidential unless the Court orders otherwise, and
shall be subject to the terms of this Protective Order.
10.

Non-parties producing documents in this case pursuant to subpoena or other

document request may designate such documents as confidential in accordance with paragraphs
4 and 7 above before production. If a Party wishes to designate documents produced by third
parties as confidential, the Designating Party will have twenty (20) days, which may be extended
by agreement, after the receipt of the documents to provide a log to the other Parties, identifying
the confidential documents by Bates number, if available, or by other sufficient description to
identify the documents to be protected under this Order. The Parties will then prominently mark
the documents “CONFIDENTIAL” on all such documents in their possession.

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11.

Any Party may, at any time after production of information designated

confidential under this Order, object to its designation by notifying the Designating Party in
writing of that objection and specifying the designated material to which the objection is made.
Within ten (10) days of service of the written objections, the Parties shall confer concerning the
objection. If the objection is not resolved, the Party objecting to the designation shall, within
fifteen (15) days of the conference, file and serve a motion to resolve the dispute over the
designation. The Designating Party shall bear the burden of proof on the issue.
12.

Review of the confidential information by any person under paragraph 5 of this

Order shall not waive the confidentiality of the documents or objections to production, nor shall
the in camera disclosure of confidential information, under any circumstances, be deemed a
waiver, in whole or in part, of any Party’s claim of confidentiality.
13.

The inadvertent or unintentional failure to designate any information confidential

pursuant to this Order or to assert a claim of privilege or work product immunity shall not
constitute a waiver of any otherwise valid claim for protection, so long as such claim is asserted
within ten (10) days of the discovery of the inadvertent or unintentional failure to so designate.
At such time, arrangements shall be made for the designating Party to substitute properly labeled
copies or, in the case of inadvertently produced privileged or work product documents, the
documents shall be returned forthwith to the Party claiming privilege or work product immunity,
unless the Party possessing the documents in good faith disputes the claim that disclosure was
inadvertent, in which case the Parties shall present their dispute to the Court through proper
motions and briefs.
14.

This Order shall not prevent any of the Parties from moving this Court for an

order that information designated as confidential may be disclosed other than in accordance with
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this Order. Any Party may seek modification of this Order from the Court at any time; however,
it shall remaining in effect until such time as it is modified, amended or rescinded by the Court.
Intervening parties and additional parties added to this Litigation after the entry of this Order
shall be subject to its terms and conditions unless and until any such party obtains relief from the
Court pursuant to motion and notice to the other Parties.
15.

Nothing contained in this Protective Order and no action taken pursuant to it shall

prejudice the right of any Party to contest the alleged relevancy, admissibility, or discoverability
of the confidential documents and information sought. The parties reserve all proprietary and
other rights in any such documents and information produced in accordance with the Protective
Order. Disclosure of such documents and information in accordance with the Protective Order is
required by applicable rules of civil procedure and shall not be construed to constitute waiver of
confidentiality or any proprietary or other rights, or construed as consent to the use, disclosure,
or publication of such information or documents except in strict compliance with this Protective
Order.
16.

This Protective Order is not intended to govern the use of the confidential

information at trial. Questions regarding the protection of confidential information during trial
will be presented to the Court prior to or during the trial as needed.
17.

Subject to the other provisions of this Protective Order, this Order will not

terminate at the conclusion of the litigation. Within ninety (90) days after final termination of
the litigation (including any appeal), unless a difference date is otherwise agreed by the parties,
every confidential document was produced by a Party to the Litigation during discovery
(including any copy thereof shall be returned to, and at the expense of, the Producing or
Designating Party, except to the extent that Party agrees in writing that some or all of such
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documents may be destroyed in lieu of returning the documents. Each attorney of record shall
certify his or her compliance with this section in writing, and deliver the certification to the
producing party no later than ninety (90) days after final termination of litigation.
18.

Neither the termination of this Litigation nor the termination of employment of

any person who has access to confidential information shall relieve any such person from the
obligation of maintaining both the confidentiality and the restrictions on use of any information
disclosed pursuant to this Order.
ENTERED this 30th day of August, 2011.

/s/Susan Webber Wright
United States District Judge

APPROVED AS TO FORM:
By:/s/ Stephen C. Smith
Stephen C. Smith, ABA # 2003014
SMITH, COHEN & HORAN, PLC
1206 Garrison Avenue
P.O. Box 10205
Fort Smith, AR 72917-0205
Telephone:
479-782-1001

By:/s/ Stephen L. Curry________
Stephen L. Curry, ABA# 81041
CROCKETT LAW FIRM
P.O. BOX 56439
Little Rock, AR 7215
Telephone: [phone]

EXHIBIT “A”
CONFIDENTIALITY AGREEMENT
I, _______________________________, state the following:
I have read and understand the Protective Order to which this Exhibit “A” is annexed,
and I attest to my understanding that access to information designated as “confidential” may be
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provided to me, conditioned upon and pursuant to the terms, conditions and restrictions of the
Protective Order. I agree to be bound by the terms of the Order, both with respect to the Court’s
powers of supervision of the Litigation, and contractually to any designating party, which I
acknowledge to be an expressly intended beneficiary of the undertakings I give in this
Confidentiality Agreement.
I understand that certain of the confidential information which I may receive or be given
access to may constitute material, nonpublic information regarding the affairs and plans of one
or more Parties named as Defendants in this case, and/or their subsidiaries and affiliates. I
understand that the use of such information by me, or the disclosure of such information by me
to others for a competitive advantage, or for any other improper purpose, may subject me to
sanctions and penalties. I hereby agree not to use any such confidential information for any
prohibited purpose or to encourage or knowingly permit others to use such information for any
such purpose.
DATED this ___ day of _______________________, 2011.

SIGNATURE: _______________________________
Stephen L. Curry

EXHIBIT “A”
CONFIDENTIALITY AGREEMENT
I, _______________________________, state the following:
I have read and understand the Protective Order to which this Exhibit “A” is annexed,
and I attest to my understanding that access to information designated as “confidential” may be
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provided to me, conditioned upon and pursuant to the terms, conditions and restrictions of the
Protective Order. I agree to be bound by the terms of the Order, both with respect to the Court’s
powers of supervision of the Litigation, and contractually to any designating party, which I
acknowledge to be an expressly intended beneficiary of the undertakings I give in this
Confidentiality Agreement.
I understand that certain of the confidential information which I may receive or be given
access to may constitute material, nonpublic information regarding the affairs and plans of one
or more Parties named as Defendants in this case, and/or their subsidiaries and affiliates. I
understand that the use of such information by me, or the disclosure of such information by me
to others for a competitive advantage, or for any other improper purpose, may subject me to
sanctions and penalties. I hereby agree not to use any such confidential information for any
prohibited purpose or to encourage or knowingly permit others to use such information for any
such purpose.
DATED this ___ day of _______________________, 2011.

SIGNATURE: _______________________________
Stephen C. Smith

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