Helena Chemical Company et al v. Skinner et al
PROTECTIVE ORDER regarding confidential information 20 . Signed by Judge Susan Webber Wright on 10/4/11. (vjt)
IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
HELENA CHEMICAL COMPANY
and FEDERAL INSURANCE COMPANY
CASE NO. 4:11CV00691-SWW
JOHN BOSWELL SKINNER, JR.,
THOMAS CHRIS COLEMAN,
KURT NELSON CATLETT,
ADAM ROSS CATLETT, and
WAYNE NORMAN BASS
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, including but not limited to customer
proprietary network information (“CPNI”)1, and the privacy rights of the parties or certain nonparties. The entry of this Protective Order is not, and should not be construed as, a waiver by
any party or non-party of any privilege or objection to any particular discovery request.
“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
The term “Customer Proprietary Network Information” is defined in 47 U.S.C.
“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
“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.
“Confidential Material” is defined as Material that any Party or Non-Party
considers in good faith to be confidential information relating to: trade secrets, research,
development, strategic planning, financial, commercial, confidential, sensitive or proprietary
business, or personal information which, if disclosed, might adversely affect the competitive
position or business operations of the Party or Non-Party producing such materials, or invade the
privacy rights of any person. Confidential Material includes any Customer Proprietary Network
Information. Each Party or Non-Party 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.
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
“Customer Proprietary Network Information” shall have the meaning set forth in
47 U.S.C. § 222(c).
DESIGNATION OF MATERIALS AS “CONFIDENTIAL”
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
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
Confidential Material contained in or on media other than paper, by affixing such a label to the
information or by using its best efforts to identify the information as Confidential Material.
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 NonParty shall insert the word “CONFIDENTIAL” in brackets at the beginning of the specific
answer or response.
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.
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
treated as Confidential Material until the issue relating to the propriety of the designation has
Any Designator may, at any time, withdraw the “CONFIDENTIAL” designation
of any Material produced by that Designator.
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.
USE AND HANDLING OF CONFIDENTIAL MATERIAL
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.
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 form, to any
person, entity, or judicial tribunal other than:
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 firms 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
Party deponents, current and former employees, officers,
members, or directors of any Party or its affiliate who are assisting
in the conduct of this Action;
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;
Third party deponents and trial witnesses in this Action and their
counsel for purposes of this Action;
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;
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;
The person or entity that wrote or received the document or gave
the testimony designated as “CONFIDENTIAL”; and
In-house counsel of any Party, and paralegal, clerical, and other
employees assisting in-house counsel;
Others, if the Designator so agrees in writing or, for good cause
shown, the Court so permits.
Before any person described in Paragraphs III.B.5, III.B.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 Acknowledgment attached hereto as Exhibit A) to be
bound by this Protective Order. A copy of the Acknowledgment, 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.
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 III.B., above.
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.
Any summaries or copies of Confidential Material shall bear the
appropriate legend set forth in Paragraph II.B., above, and shall be subject to the terms of
this Protective Order to the same extent as the information or document from which such
summary or copy is made.
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.
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 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
If any Party receives a subpoena or order demanding the production of
any Material designated in this Action as “CONFIDENTIAL,” the Party receiving such
subpoena or 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.
This Protective Order shall not apply to information or tangible items
obtained by means independent of production by a Party or Non-Party through discovery
or other proceedings in this Action or 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, or which the Designator subsequently released
into the public arena.
Neither this Protective Order, production or disclosure of Material under
this Protective Order, nor designation or 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.
This Protective Order may be modified or amended by agreement of the
Parties with the approval of the Court. To the extent that the Parties fail to agree on a
modification proposed by any Party or Non-Party, nothing contained herein shall be
deemed to preclude any Party or Non-Party from moving the Court, for good cause
shown, for a ruling that modifies this Protective Order in any respect.
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
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.
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.
INADVERTENT DISCLOSURE OF PROTECTED OR PRIVILEGED
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.
If, in connection with the pending litigation, a Party or Non-Party (the
“Disclosing Party’) inadvertently discloses information subject to a claim of attorneyclient 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.
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 counsel that all such Inadvertently Disclosed Information has been
returned or destroyed.
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.
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.
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 Non-Party from objecting to discovery that it believes to be
IT IS SO ORDERED THIS 4th DAY OF OCTOBER, 2011.
/s/Susan Webber Wright
UNITED STATES DISTRICT JUDGE
ACKNOWLEDGMENT 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 Helena
Chemical Company et al. v. Skinner et al.; Case No. 4:11CV00691-SWW, 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 information 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.
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