Hearn v. BHP Billiton Petroleum (Arkansas) Inc et al

Filing 40

PROTECTIVE ORDER regarding confidential information. Signed by Chief Judge J. Leon Holmes on 12/6/11. (vjt)

us~Um~J?uRT

EASTERN DISTRICT ARKANSAS

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

STEPHEN HEARN, on behalf of himself
and all others similarly situated;
JESSE and SUSAN FREY, on behalf of themselves
and all others similarly situated;
RANDY and JOYCE PALMER, on behalf of
themselves and all others similarly situated;
SAM and APRIL LANE, on behalf of themselves
And all others similarly situated
PLAINTIFFS
v.

BHP BILLITON PETROLEUM (ARKANSAS) INC.,
BHP BILLITON PETROLEUM (FAYETTEVILLE)
LLC, CHESAPEAKE OPERATING, INC., and
CLARITA OPERATING, LLC
DEFENDANTS

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DEC 06 2011
~~ES w., MCCORMA~~iEkr=RK
fJE CLERK

Case No.4: II-cv-0474-JLH

PROTECTIVE ORDER

The Court holds that the following procedures and provisions shall apply to discovery in
the above-captioned civil action (the "Action") in order to protect information of a sensitive,
confidential, proprietary and/or legally protected nature, and the privacy rights of the parties or
certain non-parties. The entry of this Protective Order is not, and should not be construed as, a
waiver by any party"o~ non-party of any privilege or objection to any particular discovery
request.

I

I.

DEFINITIONS
A.

"Party" means any current plaintiff or defendant in this Action (including those

listed in the caption above), and any plaintiff, defendant, or other party that may be joined in this
action.
B.

"Non-Party" means any person or entity not a Party who produces documents or

other information or provides testimony in response to a subpoena or other process in this
Action.
C.

"Material" is defined as documents, electronically stored information, records,

tangible materials, testimony, responses to discovery, and other information produced by a Party
or Non-Party in discovery in this Action.
D.

"Confidential Material" is defined as trade secrets, medical records, and other

information the confidentially or privacy of which is protected by statute. Each Party or NonParty that designates information or items for protection under this Protective Order must take
care to limit any such designation to specific material that qualifies under the appropriate
standards.
E.

The "Designator" is any Party or Non-Party who produces Material in this Action

and designates any such Material as "CONFIDENTIAL" in conformity with Paragraph III.

II.

DESIGNATION OF MATERIALS AS "CONFIDENTIAL"
A.

Any Party or Non-Party who produces Material in the course of discovery in this

Action may designate such Material as Confidential Material if that Party or Non-Party believes
in good faith that the Material satisfies the definition of Confidential Material, as set forth in
Paragraph I.D.
B.

The Designator shall mark the word "CONFIDENTIAL" on the face of each

document and each page so designated at the time it is produced or served, or, in the case of
2

Confidential Material contained in or on media other than paper, by affixing such a label to the
infOlmation or by using its best efforts to identify the information as Confidential Material.
C.

In the event that a Party or Non-Party desires to designate specific answers or

responses to interrogatories or requests for admission as Confidential Material, the Party or NonPatty shall inselt the word "CONFIDENTIAL" in brackets at the beginning of the specific
answer or response.
D.

In the case of depositions, designation of the portion of the transcript (including

exhibits) which contains Confidential Material shall be made within 15 business days after
receipt of the transcript by stamping "CONFIDENTIAL" on the pages that contain Confidential
Material and notifying all Parties and the deponent in writing of the page and line numbers which
have been designated as Confidential Material. In the absence of an agreement on the record or
in writing, or an order of the Court to the contrary, all deposition testimony shall be deemed
Confidential Material until the expiration of the aforementioned 15 business days.
E.

For purposes of this Action, no Party concedes that any Material designated by

any other Designator as Confidential Material should be treated as Confidential Material. A
.Party shall not be obligated to challenge the propriety of the designation of Material as
"CONFIDENTIAL" at the time made, and the failure to do so shall not preclude a subsequent
challenge in this or any other action. If a Party challenges a designation, it shall give written
notice to the Designator, and the Party and the Designator shall attempt to resolve any challenge
in good faith on an informal basis ("meet and confer"). If the challenge cannot be informally
resolved, the Party challenging the designation may seek appropriate relief from the Court;
however, the burden of proof shall be on the Designator. The Material shall continue to be

3

treated as Confidential Material until the issue relating to the propriety of the designation has
been resolved.
F.

Any Designator may, at any time, withdraw the "CONFIDENTIAL" designation

of any Material produced by that Designator.
G.

The inadvertent failure to designate or withhold any Material as confidential will

not be deemed to waive a later claim as to its confidential nature, or to preclude the producing
Party or Non-Party from designating such Material as confidential at a later date in writing and
with particularity. The Material shall be treated by the receiving Party as Confidential Material
from the time the receiving Party is notified in writing of the change in the designation.

III.

USE AND HANDLING OF CONFIDENTIAL MATERIAL
A.

Confidential Material shall be used only for purposes of preparing for and

litigating this Action (including appeals) and not for any other action or other purpose.
B.

Access to Confidential Material shall be closely controlled and limited to

individuals who have a demonstrable and bona fide need to review it. Confidential Material
shall not be revealed or disclosed, directly or indirectly, in any manner or in any fonn, to any
person, entity, or judicial tribunal other than:
I.

Counsel of record and any other counsel for the Parties in this
Action, including counsel for insurers for the claims involved in
this Action; members of their finns and associates, associate
attorneys, contract lawyers, paralegals, clerical and other
employees or agents of such counsel who are assisting in the
conduct and/or management of this action; auditors, regulators,
insurers and reinsurers of any Party who have a need to review
such infonnation;

2.

In-house counsel of any Party, and paralegal, clerical, and other
employees assisting in-house counsel;

3.

Named-Plaintiffs; party deponents, current and fonner employees,
officers, members, or directors of any Party or its affiliate who are
assisting in the conduct of this Action;
4

4.

5.

Third party deponents and trial witnesses in this Action and their
counsel for purposes of this Action;

6.

Consultants, experts, and outside litigation support personnel
retained by counsel for any Party to this Action to assist the Party
in the preparation and/or litigation of this Action;

7.

Any mediator retained by the Parties or appointed by the Court,
and employees of such mediator who are assisting in the conduct
of the mediation;

8.

The person or entity that wrote or received the document or gave
the testimony designated as "CONFIDENTIAL"; and

9.
C.

The United States District Court, the Court of Appeals, the
Supreme Court of the United States, court personnel, court
reporters, and any jury empanelled in this Action;

Others, if the Designator so agrees in writing or, for good cause
shown, the Court so permits.

Before any person described in Paragraphs IlLB.5, IlLB.6, and III.B.9 is given

access to Confidential Material, the person shall review the Protective Order and agree in writing
(by signing the Acknowledgement attached hereto as Exhibit A) to be bound by this Protective
Order. A copy of the Acknowledgement, together with a list of Confidential Material disclosed
to the person and the date of disclosure, shall be retained by counsel disclosing Confidential
Material until the conclusion of this litigation, including all appeals.
D.

If Confidential Material is to be disclosed during a deposition or trial, the

agreement to be bound and consent to jurisdiction may be made on the record and under oath,
rather than in writing. No person to whom Confidential Material is disclosed may disclose such
Confidential Material to any person other than those persons described in Paragraph IlLB.,
above.

5

E.

All persons who have access to Confidential Material at any time shall take all

precautions necessary to prohibit access to such Confidential Material other than as provided for
herein.
F.

Any summanes or copies of Confidential Material shall bear the appropriate

legend set forth in Paragraph II.B., above, and shall be subject to the tenns of this Protective
Order to the same extent as the infonnation or document from which such summary or copy is
made.
G.

No Party or Non-Party shall file with the Court in this action documents which

have been designated as Confidential Material without first obtaining leave of Court to file such
Confidential Material under seal, or written agreement of the Designator. Written agreement of
the Designator(s) may be given to the receiving Party to file a document containing Confidential
Material not under seal, in a redacted form, if the Designator(s) identifies in writing the
Confidential Material to be redacted, and the receiving Party redacts all such Confidential
Material prior to filing the document. The Parties acknowledge that this Protective Order creates
no entitlement to file Confidential Material under seal. If any Party wishes to file Material under
seal with the Court that incorporates or discloses Confidential Material, said Party must obtain
leave of Court before these documents may be filed under seal. After receiving Court approval,
such Party shall submit such pleadings or other submissions under seal.
IV.

GENERAL PROVISIONS

A.

Nothing contained in this Protective Order shall restrict or limit any Party's right

to present Confidential Material to a jury or a court during a trial or other hearing in this Action,
and the Parties and Non-Parties shall take reasonable steps to maintain the confidentiality of such

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information at a hearing or at trial in such manner as the Court may direct.

The use of

Confidential Material at trial shall be governed by the pretrial order.
B.

If any Party receives a subpoena or order demanding the production of any

Material designated in this Action as "CONFIDENTIAL," the Patty receiving such subpoena 01'
order shall, within five (5) business days of the receipt of such request and not less than 10 days
prior to the production of any Confidential Material, notify the Designator of such subpoena or
order.
C.

This Protective Order shall not apply to information 01' tangible items obtained by

means independent of production by a Party
proceedings in this Action

01'

01'

Non-Party through discovery

01'

other

in some other lawful manner. The restrictions set forth in this

Protective Order shall not apply to any Material which, at the time of production, is within the
public domain,
D.

01'

which the Designator subsequently released into the public arena.

Neither this Protective Order, production or disclosure of Material under this

Protective Order, nor designation

01'

failure to designate Material under this Protective Order,

shall constitute a waiver of the right of the Designator to maintain the trade secret status or
confidentiality of that Material in other contexts.
E.

This Protective Order may be modified

01'

amended by agreement of the Patties

with the approval of the Court. To the extent that the Parties fail to agree on a modification
proposed by any Party

01'

Non-Party, nothing contained herein shall be deemed to preclude any

Party 01' Non-Party from moving the Court, for good cause shown, for a ruling that modifies this
Protective Order in any respect.

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F.

This Protective Order shall not be construed as waiving any right to assert a claim

of privilege or objection as to relevance, admissibility or other grounds for not producing
Material.
G.

This Protective Order shall survive and continue to be binding after the

conclusion of this Action, and this Court shall retain jurisdiction to enforce the provisions of this
Protective Order.
H.

This Protective Order shall operate retroactively to the inception of this Action.

Any Material produced prior to the signing of this Protective Order shall be treated as
Confidential upon designation as set forth above.
V.

INADVERTENT DISCLOSURE OF PROTECTED OR PRIVILEGED
INFORMATION
A.

The inadvertent disclosure of Material covered by the attorney-client privilege or

work-product protection shall be governed by Federal Rule of Evidence 502 and this Protective
Order.
B.

If, in connection with the pending litigation, a Party or Non-Party (the

"Disclosing Patiy') inadvertently discloses information subject to a claim of attorney-client
privilege or work-product protection ("Inadvertently Disclosed Information"), the disclosure of
the Inadvertently Disclosed Information shall not constitute or be deemed a waiver or forfeiture
of any claim of privilege or work-product protection that the Disclosing Party would otherwise
be entitled to assert with respect to the Inadvertently Disclosed Information and its subject
matter.
C.

If a claim of inadvertent disclosure is made by a Disclosing Party with respect to

Inadvertently Disclosed Information, the Parties shall, within five (5) business days, return or
destroy all copies of the Inadvertently Disclosed Information and provide a certification of
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counsel that all such Inadvertently Disclosed Information has been returned or destroyed.
D.

Within 21 days of the notification that such Inadvertently Disclosed Information

has been returned or destroyed, or within a different time upon written agreement of the Parties
or order of the Court, the Disclosing Party shall produce a privilege log with respect to the
Inadvertently Disclosed Information.
E.

Nothing in this Protective Order shall limit the right of any Party to petition the

Court for an order compelling production of such Inadvertently Disclosed Information, or for an
in-camera review of the Inadvertently Disclosed Information.
VI.

LIMITS OF THIS PROTECTIVE ORDER

Nothing contained in this Protective Order, and no action taken pursuant to it, shall
prejudice the right of any Party or Non-Party to contest the alleged relevancy, admissibility, or
discoverability of the Material sought. Nor shall this Protective Order prevent any Party or NonParty from objecting to discovery that it believes to be otherwise improper.
IT IS SO ORDERED THIS

b1b

DAY OF J)ece4"be.r

9

, 2011.

Exhibit A

ACKNOWLEDGEMENT OF PROTECTIVE ORDER
AND AGREEMENT TO BE BOUND

I hereby acknowledge that I,

, am about to receive

information that is being supplied by one or more of the parties in the case of Hearn, et al. v.
BHP BUNton Petroleum (Arkansas) Inc., et al., pending in the United States District Court for

the Eastern District of Arkansas, Western Division. I understand that the information is or may
be subject to the terms of a Protective Order entered by the Court in said case. I hereby certify
my understanding that such information is being provided to me pursuant to the terms and
restrictions of the Protective Order. I have been given a copy of said Protective Order, have read
it, and agree to be bound by its terms. I understand that infOlmation and any documentary
material covered by the Protective Order (which includes any notes or other record that I make of
such material) shall not be disclosed to others, except those listed in paragraph III.B. of the
Protective Order and under the terms set forth therein.

Signature:
Print Name:
Date:

10

t

•

MITCHELL, WILLIAMS, SELIG,
GATES & WOODYARD, P.L.L.C.

425 W. Capitol Avenue, Suite 1800
Little Rock, AR 72201
Attorneys for Chesapeake Operating, Inc,

BY:~~2Spillyards
Lyn P. PrulttrJlleYL.

FRIDAY, ELDREDGE & CLARK, LLP
400 W, Capitol Avenue, Suite 2000
Little Rock, AR 72201·3522
Attorneys for BHP Petroleum (Arkansas) Inc.
and~~IX) (Faxette:lle) LLC

By:

,1/,.

David D. Wllson

"

EMERSON POYNTER LLP
The Museum Center
500 President Clinton Ave., Suite 305
Little Rock, AR 72201
Atto leys Pla!n,tll'l'''''',

1.I