ArborMetrics Solutions Inc v. Superior Forestry Service Inc
Filing
23
CONFIDENTIALITY AGREEMENT AND PROTECTIVE ORDER regarding confidential information. Signed by Judge Susan Webber Wright on 1/3/12. (vjt)
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FILED
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U.S. DISTRICT COURT
EASTERN DISTRICT ARKANSAS
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF ARKANSAS
WESTERN DIVISION
JAN 0 3 2012
~A~ES W. McCORMACK, ~K
XPkeRK
y
ARBORMETRICS SOLUTIONS, INC.
PLAINTIFF
No. 4:11-CV-502 SWW
v.
SUPERIOR FORESTRY SERVICE, INC.
DEFENDANT
CONFIDENTIALITY AGREEMENT AND PROTECTIVE ORDER
WHEREAS, ArborMetrics Solutions, Inc. and Superior Forestry Service, Inc. (the
"Parties") are engaged in discovery in the above-captioned action (the "Action"); and
WHEREAS, the Parties are or may in the future be producing "Confidential Documents,"
as defined in paragraph 1 ("Confidential Documents"), or providing disclosures, written
discovery responses, or deposition testimony containing "Confidential Information," as defined
in paragraph 2 ("Confidential Information"), as a result of the proceedings in this Action; and
WHEREAS, the Parties desire to maintain the confidentiality of the Confidential
Documents and Confidential Infonnation that may be produced in this Action; and
WHEREAS, the Parties desire to adopt an efficient and practical procedure for handling
confidentiality issues without incuning significant but potentially unnecessary expenses; and
WHEREAS, for the foregoing reasons the Parties desire to enter into this Confidentiality
Agreement and Protective Order ("Confidentiality Order");
NOW, THEREFORE, the Parties agree as follows:
1.
For purposes of this Confidentiality Order, "Confidential Documents" shall
include any documents that a Party or its counsel designate as confidential based upon a goodfaith belief that the designation is appropriate because the documents contain proprietary or
confidential business or financial infonnation, salary and other similar employee personnel
information, trade secrets, or non-public information of a commercially sensitive, personal, or
private nature. Any documents produced by a non-Party in this Action, pursuant to subpoena or
otherwise, may be designated by such non-Party or by any Party or counsel for any Party as
"Confidential Documents" under the terms of this Confidentiality Order.
Confidential
Documents may include infonnation of whatever kind, including but not limited to written
information and information othe1wise recorded on any medium, including without limitation
paper, photographs, recordings, and electronic, optical, and magnetic disks and files.
2.
For purposes of this Confidentiality Order, "Confidential Information" shall
include any information provided in disclosures, in response to a written discovery request, or in
response to a deposition question that a Party or its counsel designate as confidential based upon
a good-faith belief that the designation is appropriate because of the proprietary or confidential
business or financial nature of the information, trade secrets contained in the information, or the
non-public, sensitive, personal, or private nature of the information.
3.
At the time a Party or non-Party produces documents in this Action, the Party or
non-Party producing the documents (the "Producing Party") may designate any such documents
as Confidential Documents by stamping on each page of such documents the word
"Confidential."
4.
At the time a Party responds to a written discovery request, the Party producing
information may designate such information as Confidential Information by stating in writing in
response to the written discovery request that the infonnation is Confidential Information and by
indicating on the first page of the written discovery responses that the document contains
Confidential Information.
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5.
During any deposition, a deponent or counsel for a deponent or a Party or counsel
for a Party may designate testimony being provided in response to a deposition question as
Confidential Information. In addition, a deponent or counsel for a deponent or a Pmiy or counsel
for a Party may designate additional Confidential Information by indicating to all Parties, in
writing, 15 days following receipt of a deposition transcript the specific line numbers and page
numbers of the transcript that contain Confidential h1f01mation.
6.
If any Party receiving Confidential Documents or Confidential Information (the
"Receiving Party") believes that such documents or infmmation is not entitled to the protections
set forth in this Confidentiality Order, the Receiving Party shall, within three weeks of receiving
such documents or information, indicate to the Producing Pmiy, in writing, copying all Parties to
this Action, the specific documents or information that the Receiving Party believes falls outside
of the protections set forth in this Confidentiality Order ("Identified Documents or h1formation")
and state in writing the rationale for the removal of such Identified Documents or Information
from the protections set forth in this Confidentiality Order.
7.
If the Producing Party or any Party to this Action objects, in writing, to the
Receiving Party's written notice that the Identified Documents or Infmmation falls outside of the
protections set forth in this Confidentiality Order, such objection shall be made within three
weeks of receiving such written notice, or the claim of confidentiality shall be waived. If such
objection is made in writing, it shall state the rationale for maintaining the Identified Documents
or Information under the protections set forth in this Confidentiality Order. If the Receiving
Party desires to challenge the claim of confidentiality, the Receiving Party shall move the Court
for an order on the issue.
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8.
Neither the service of the written notice described in paragraph 6 nor the service
of the written objection or filing of a motion described in paragraph 7 shall remove the Identified
Documents or Information from the protections set forth in this Confidentiality Order. Until the
Parties resolve the dispute among themselves, the Producing Pmiy or Party claiming
confidentiality waives the claim of confidentiality, or the Court resolves the dispute, the
Identified Documents or Information shall retain the protections set forth in this Confidentiality
Order.
9.
The Pmiies agree that Confidential Documents and Confidential Information shall
not be disclosed, directly or indirectly, to anyone other than the Parties, attorneys for the Parties
(including paralegals and staff), witnesses, consultants, and expert witnesses specially retained or
specially employed for purposes of the Action. To the extent any Confidential Documents or
Confidential Infonnation is provided to non-Party witnesses, consultants, or expert witnesses,
each non-Party witness, consultant, or expe1i witness shall agree in writing, in the form attached
to this Confidentiality Order as Exhibit A, prior to receiving any Confidential Documents or
Confidential Information, that he (a) shall be bound by the te1ms of this Confidentiality Order
and (b) shall return all Confidential Documents and Confidential Information upon conclusion of
the Action.
Nothing in this Confidentiality Order prevents any Party from disclosing
Confidential Documents and Confidential Information to the Court, its staff, and court reporters
at deposition or trial, subject to such protections as the Court may order with respect to the
treatment of Confidential Documents and Confidential Infonnation at trial.
Nothing in this
Confidentiality Order restricts what a Producing Party may do with Confidential Documents or
Confidential Information it produces.
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10.
The inadvertent, unintentional, or in camera disclosure of Confidential
Documents and Confidential Infonnation shall not, under any circumstances, be deemed a
waiver, in whole or in part, of any claims of confidentiality. If Confidential Documents or
Confidential Information is inadvertently produced without the appropriate designation of
confidentiality, the Receiving Party shall, upon notice of the confidential status of the documents
or infonnation, treat the documents or infonnation as if it had been appropriately designated
confidential at the moment it was produced.
11.
The Parties and all persons subject to the provisions of this Confidentiality Order
agree to use Confidential Documents and Confidential Infmmation solely and exclusively for
purposes of preparing for, conducting, and patiicipating in the Action and not for any other
litigation and not for any other business purpose, personal purpose, or other purpose whatsoever.
12.
The Parties' agreement to produce Confidential Documents and Confidential
Infmmation pursuant to this Confidentiality Order shall not be deemed an agreement that such
information and documents (1) constitute or contain confidential information or trade secrets or
other confidential research, development, financial, commercial, or personal information or (2)
are relevant to any matter at issue in the Action. Each Party reserves the right to object to, and to
seek an appropriate order limiting, any use that any other Patiy may seek to make of such
Confidential Documents or Confidential Information either in discovery or at the trial of the
Action.
13.
The Parties agree that no copies of Confidential Documents or Confidential
Infonnation will be made except as necessary for the purposes of this Action. If it becomes
necessary to include information obtained from Confidential Documents or Confidential
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Information or to use Confidential Documents or Confidential Information in any court filing,
then any Confidential Documents and Confidential Infonnation, and any information obtained
from those sources, shall be filed under seal, if not prohibited by law.
14.
Upon the conclusion of the Action, all Confidential Documents and Confidential
Information and all copies, extracts, summaries, and facsimiles thereof and all electronically,
optically, or magnetically stored information of any kind, including without limitation diskettes,
compact disks, computer files, and similar storage media ("Electronically Stored Documents"),
containing Confidential Documents or Confidential Information shall, by the Receiving Party, be
destroyed or deleted, uninstalled, or otherwise removed from each computer, diskette, compact
disk, computer file, and any other storage media. Additionally, upon request, a sworn certificate
attesting to the destruction and electronic file deletion and indicating that no electronic
infonnation has been retained shall be executed by each Party and by counsel for each Party and
delivered to all Parties within 120 days after the conclusion of the case, including any appeal.
15.
The Patties agree that nothing in this Confidentiality Order is intended to alter or
diminish the protections of the attorney-client privilege or the work-product doctrine.
16.
Because a violation of this Confidentiality Order by a Receiving Party could
cause ineparable injury to the Producing Party, and there is no adequate remedy at law for such
violation, the Parties shall have the right, in addition to any other remedies available to them at
law or in equity, to seek to enjoin a Receiving Party in this Court from any violation of this
Confidentiality Order.
17.
This Confidentiality Order shall inure to the benefit of, and be binding upon, the
Patties and their respective successors, heirs, agents, personal representatives, and assigns.
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18.
Any individual or entity that becomes a party to this Action and has not
subscribed to this Confidentiality Order as of the time it is presented to the Court for approval
and entry may thereafter become a party to this Confidentiality Order by having its counsel sign
and date a copy of this Confidentiality Order and filing it with the Comi and serving such signed
copy upon the other Parties to this Confidentiality Order.
19.
This Confidentiality Order is applicable to the Parties for the sole purpose of
facilitating discovery in the Action.
This Confidentiality Order and the confidentiality
designations made pursuant to this Confidentiality Order may not be used in any manner,
directly or indirectly, as evidence at trial or any hearing or refened to at trial or any hearing in
this Action, save and except for a hearing that involves issues related to the enforcement of any
provision of this Confidentiality Order.
20.
Any time limit contemplated by this Confidentiality Order may be extended by an
agreement in writing signed by counsel of record for each Party.
21.
This Confidentiality Order is the entire agreement between the Parties. It may not
be amended in any manner whatsoever except by an agreement in writing signed by counsel of
record for each Party and adopted by Order of this Court.
IT IS SO ORDERED this 0
~
day oa1!U@kA
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I
, 201L
~~ST~E
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APPROVED AND ENTRY REQUESTED BY:
CROSS, GUNTER, WITHERSPOON
& GALCHUS, P.C.
500 President Clinton Avenue, Suite 200
Little Rock, Arkansas 72201
Telephone: (501) 371-9999
Facsimile: (501) 371-0035
dgalchus@cgwg.com
mcooper@cgwg.com
By:--=-~~J_Wt---=~Donna S. Galchus (80049)
Michael K. Redd (87141)
Mary Galchus Cooper (2007241)
Attorneys for ArborMetrics Solutions, Inc.
and
QUATTLEBAUM, GROOMS,
TULL & BURROW PLLC
111 Center Street, Suite 1900
Little Rock, Arkansas 72201
Telephone: (501) 379-1700
Facsimile: (501) 379-1701
cchiles@qgtb.com
bdowler@qgtb.com
By~
John E. Tull III (84150)
E. B. Chiles IV (96179)
Bradley G. Dowler (2006177)
Attorneys for Superior Forestry Service, Inc.
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EXHIBIT A
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF ARKANSAS
WESTERN DIVISION
PLAINTIFF
ARBORMETRICS SOLUTIONS, INC.
No. 4: 11-CV-502 SWW
v.
SUPERIOR FORESTRY SERVICE, INC.
DEFENDANT
AGREEMENT
I have been asked to serve as a ------------------ in this Action on behalf of
______________________, one of the parties to the Action. I acknowledge that I have
received and read the Confidentiality Agreement and Protective Order ("Confidentiality Order")
attached hereto. I agree to be bound by the terms of the Confidentiality Order.
I hereby submit to the jurisdiction of this Court solely for the purpose of enforcement of
the Confidentiality Order in this Action.
Dated this_ day of ___________ , 2011.
[NAME]
By: ______~---------------------
Subscribed and sworn to before me
this ____ day of _________, 2011.
Notary Public
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