Hibbett Sporting Goods Inc v. Military Capital Venture LLC

Filing 14

PROTECTIVE ORDER. Signed by Judge D. P. Marshall Jr. on 2/4/13. (kpr)

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
WESTERN DIVISION
HIBBETT SPORTING GOODS, INC.
v.

PLAINTIFF

No. 4:12-cv-20-DPM

MILITARY CAPITAL VENTURE, LLC

DEFENDANT

PROTECTIVE ORDER
The Court holds that the following procedures and provisions shall
apply to discovery in this case (the “Action”) in order to protect
information of a sensitive, confidential, proprietary, 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 or non-party of any privilege or objection to any
particular discovery request.
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 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. 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.

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E.
Material

The “Designator” is any Party or Non-Party who produces
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 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.
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 Non-Party shall insert the word
“CONFIDENTIAL” in brackets at the beginning of the specific answer or
response.
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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
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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 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.
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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 form, to any person, entity, or
judicial tribunal other than:
1.

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 such
information;

2.

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

3.

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;

4.

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;

5.

Third party deponents and trial witnesses in this
Action and their counsel for purposes of this
Action;
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6.

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.

Consultants, experts, and outside litigation support
personnel retained by counsel for any Party to this
Action to assist the Party in the preparation or
litigation of 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 III.B.5, III.B.6, and

III.B.9 is given access to Confidential Material, the person shall review this
Protective Order and agree in writing (by signing the Acknowledgement
attached 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
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whom Confidential Material is disclosed may disclose such Confidential
Material to any person other than those persons described in Paragraph
III.B., above.
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 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.
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 the 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
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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, the
Party shall submit the filing 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 NonParties 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
order.
B.
production

If any Party receives a subpoena or order demanding the
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.
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C.

This Protective Order shall not apply to information or tangible

items obtained by means independent of production by a Party or NonParty 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.
D.

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.
E.

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 NonParty, 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.

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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

for one year after this Court enters judgment in this Action, and this Court
shall retain jurisdiction to enforce the provisions of this Protective Order
during the one-year period. For good cause, the parties may move for an
extension of the one-year period.
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 Party’) inadvertently discloses information subject to
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a

claim

of

(“Inadvertently

attorney-client
Disclosed

privilege

or

Information”),

work-product
the

disclosure

protection
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 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
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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.
So Ordered.
________________________
D.P. Marshall Jr.
United States District Judge
4 February 2013

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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 Hibbett Sporting Goods, Inc. v. Military Capital Venture, LLC,
pending in the United States District Court, Eastern District of Arkansas,
Western Division Case No. 4:12-CV-00020-DPM. 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.

Signature: ___________________________________
Print Name:

___________________________________

Date:

___________________________________

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