Maclin et al v. Montgomery and Sons Construction Inc et al

Filing 98

PROTECTIVE ORDER is adopted, with minor changes, as set forth in this Order. Signed by Judge D. P. Marshall Jr. on 5/2/13. (kpr)

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
WESTERN DIVISION
STEPHEN MACLIN; RUBEN TOBIN;
DUSTIN ROBINSON; and GERARD
JOHNSON, Individually and on behalf
of others similarly situated

PLAINTIFFS

No.: 4:12-cv-5-DPM

v.

MONTGOMERY AND SONS
CONSTRUCTION, INC., and JOHN
MONTGOMERY, Individually, and as
Owner/Manager of Montgomery and
Sons Construction, Inc.

DEFENDANTS

ORDER
The Court adopts the parties' proposed stipulated protective
order, NQ 95, with minor changes, and orders as follows:
1.

Definition of Confidential Information

Confidential Information includes:
(a)

Personnel documents pertaining to current and

former employees and alleged employees
Montgomery

and

Sons

Construction,

of Defendants

Inc.,

and

John

Montgomery (other than Plaintiffs), including, but not limited to,
employee compensation information, tax information, supervisory
notes, and discipline reports; and
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(b)

Non-public financial information of Defendants

Montgomery and Sons Construction, Inc., and John Montgomery;
and
(c)

Trade secret or proprietary documents and

information of Defendants Montgomery and Sons Construction,
Inc., and John Montgomery, including trade secrets, future business
plans, market analysis, and confidential research.

2 Designation of Confidential Information:
All u confidential" information as described in this Order is
deemed confidential between the parties and shall not be disclosed
except as set forth in this Order.
Any

deposition

transcript

page,

interrogatory

answer,

produced document, item produced or examined, and each answer
to request for admission, which in good faith is deemed by counsel
for a party to disclose confidential information of that party, shall
be identified and marked

u

CONFIDENTIAL" by that party's

counsel. The identification and marking shall be made: (a) in the
case of an answer to an interrogatory or a response to a request for
admission, at the time when the answer or response is served by
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the requested party; (b) in the case of another document, when a
copy of the document is provided to another party. In the case of
transcript pages, the designating party shall advise opposing
counsel of the specific pages to be maintained in confidence within
20 calendar days after receipt of the transcript of the deposition.
Pending notification from opposing counsel during the 20 calendarday

period,

all

transcript

pages

shall

be

treated

as

uCONFIDENTIAL" and may be used only in accordance with this
Order.
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Treatment of Confidential Information and Persons
Entitled to Access:
Until and unless the Court rules that any information,
document, or thing designated as Confidential is not confidential
information, or may be disclosed beyond the limits permitted by
this Order, access, copying, and dissemination of that information,
documents, or thing is limited to the following persons:
(A)

Attomeys of record in this litigation and staff and

supporting counsel of those attorneys who are working directly on
this litigation under the direction of those attorneys and to whom

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the materials are disclosed for purposes of this litigation as well as
the named parties to this case;
(B)

Inside counsel of a party working directly on the

litigation, including staff and support personnel who are working
directly on the litigation under the direction of counsel and to whom
it is necessary that the material be shown for purposes of this
litigation;
(C)

Party's representatives and potential witnesses;

(D)

The Court, stenographers, court clerks, and other court

personnel employed by the court; and
(E)

Any expert utilized by the parties, who shall be

provided a copy of this Order and be further made aware of this
Order and the fact the documents produced are confidential
information.
Restrictions on Use and Dissemination of Designated
Information:

4.

All information produced by a party in the course of this
litigation and designated as CONFIDENTIAL pursuant to this
Order shall be used by the receiving party solely for the purpose

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of

this

litigation.

Any

person

receiving

information

designated as CONFIDENTIAL pursuant to the provisions of this
Order shall be advised of this Order.
5.

Certain Information Not Subject to Scope of Order:

The restrictions of this Order shall not apply to information
which (a) was, is, or becomes public knowledge, not in violation of
this Order, or (b) was or is acquired from a third party having no
obligation of confidentiality to the designating party, or (c) the
receiving party can establish was in its rightful and lawful
possession at the time of disclosure or is developed independently
by the receiving party without the use of Confidential Information.
The burden of proving that information falls within the scope of one
or more of the exceptions provided for in this paragraph shall fall on
the receiving party.
6.

Exceptions by Order or by Agreement by Parties:

Nothing shall prevent disclosure beyond the terms of this
Order if the party designating the information consents in writing
to the disclosure, or if the Court, after notice to the other party and
the opportunity to be heard, orders disclosure.
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7.

Inadvertent or Unintentional Disclosure:

The

inadvertent

or

unintentional

disclosure

by

the

supplying party of information designated under this Order,
regardless of whether the information was designated at the time of
disclosure, shall not be deemed a waiver in whole or in part of a
party's claim of confidentiality, either as to the specific information
disclosed or as to any other information relating to the disclosure
or on the same or related subject matter. Counsel for the parties
shall in any event, to the extent possible, upon discovery of
inadvertent error, cooperate to restore the confidentiality of the
designated information. Upon receipt of written notification
and identification of inadvertent disclosure of CONFIDENTIAL
information, the receiving party shall either mark the materials
with the appropriate designation or return them to the producing
party for marking.
8.

Challenges to Designations:

A party shall not be obligated to challenge the propriety of a
designation under this Order at the time made, and failure to do so
shall not preclude a subsequent challenge. In the event that either
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party to this litigation disagrees at any point in these proceedings
with the designation by the supplying party of any information, the
parties shall first attempt to resolve the dispute in good faith on an
informal basis. If the dispute cannot be resolved, the objecting
party may seek appropriate relief from this Court, and the
party asserting confidentiality shall have the burden of proving
the proper designation.
9.

Documents Under Seal:

In the

event any documents or pleadings containing

confidential information are filed with the Clerk's office, the
documents shall be redacted. FED. R. CIV. P. 5.2. If redaction is
impracticable,
u

the

documents

shall

be

marked

as

CONFIDENTIAL." The clerk shall accept the information, which

shall be contained in a sealed envelope and prominently
marked uCONFIDENTIAL - TO BE OPENED AS DIRECTED
BY THE COURT." A similar notification shall be placed on the cover
page of the document being filed. The parties are directed to file
under seal only when absolutely necessary.

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Filing of Briefs or Mfidavits Containing Confidential
Information:

10.

In the event that a party wishes to use any information
designated under this Order in any affidavit, brief, memorandum
of law, or other paper filed with the Court in this litigation, any
confidential information in the paper shall be redacted when
practicable, and if not, filed under seal and maintained under seal
by the Court as provided in Paragraph 9. Nothing in this paragraph
shall be construed to preclude a party from delivering an
additional courtesy copy of any paper containing designated
information, unsealed, directly to the Court responsible for the
litigation.
11.

Modification of Protective Order:

A party may seek the written permission of the other party or
further Order of this Court, after notice to the other party and
opportunity to be heard, with respect to modification of this Order.
The parties may, by written stipulation, provide for exceptions to
this Order.

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12.

Continuing Effect:

Insofar as the provisions of this Order restrict the
communication and use of the documents produced under it, this
Order shall continue to be binding until one year after the
conclusion of this litigation, including any appeals. The Order will
thereafter endure as a contract between the parties. However, a
party may seek the written permission of the other party or further
order of this Court, after notice to the other party and opportunity
to be heard, with respect to dissolution or modification of this
Order.
13.

Advice to Client Based on Confidential Information:

Nothing in this Order shall bar or otherwise restrict any
attomey from rendering advice to his or her client with respect to
this litigation, referring to or relying upon the attorney's or parties'
examination of designated information.
14.

Discovery Objections, Claim of Privilege:

It is the intention of this Order to deal with discovery

objections, to produce, answer, or respond to those objections on
grounds of proprietary information, trade secret information, or
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otherwise, and it is agreed by the parties that any party to this
Order may seek further relief from this Order or additional
protective orders from the Court as may be appropriate under the
Federal Rules of Civil Procedure.

Examination of Witness Regarding Confidential
Information:

15.

Notwithstanding any of the provisions of this Order, any
witness subject to a noticed deposition in this litigation and his
counsel of record may be shown, and questioned, concerning any
document of which he is alleged or claims to be the author of a
recipient or of which he is alleged to have knowledge. Nothing in
this Order shall preclude a certified reporter retained to transcribe
depositions or litigation proceedings in this litigation from access
to designated materials during litigation proceedings or depositions
in this litigation.
So Ordered.
D.P. MarshallJf.
United States District Judge

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