Monte Carlo Aviation Corporation v. Dassault Falcon Jet Corporation

Filing 68

AGREED PROTECTIVE ORDER. Signed by Judge J. Leon Holmes on 11/04/2013. (jak)

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

MONTE-CARLO AVIATION
CORPORATION
v.

PLAINTIFF
CASE NO.: 4:12-cv-0028-JLH

DASSAULTFALCON JET
CORPORATION

DEFENDANT

AGREED PROTECTIVE ORDER
1.

PURPOSES AND LIMITATIONS

The Court holds that the following procedures and provisions shall apply to discovery in
the
the above-captioned civil action. _(1 "Action") in order to protect information of a sensitive,

JL,(I
confidential, proprietary and~ legally protected nature, including but not limited to customer
proprietary network information ("CPNI"), 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.
2.

DEFINITIONS

2.1

Party: any party to this Action, including all of the party's officers, directors,

employees, consultants, retained experts, and outside counsel (and their support staff).
2.2

Disclosure or Discovery Material: all items or information, regardless of the

medium or manner generated, stored, or maintained (including, among other things, testimony,
transcripts, or tangible things) that have been or will be produced or generated in disclosures or
responses to discovery in this matter.

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2.3

"Confidential" Information or Items: information (regardless of how generated,

stored or maintained) or tangible things that qualify for protection under standards developed
under Fed.R.Civ.P. 26(c).
2.4

"Highly Confidential - Attorneys' Eyes Only" Information or Items: extremely

sensitive "Confidential Information or Items" whose disclosure to another Party or non-party
would create a substantial risk of serious injury that could not be avoided by less restrictive
means.
2.5

Receiving Partv: a Party that receives Disclosure or Discovery Material from a

Producing Party.
2.6

Producing Party: a Party or non-party that produces Disclosure or Discovery

Material in this Action.
2.7

Designating Party: a Party or non-party that designates Disclosure or Discovery

Material that it produces as "Confidential" or "Highly Confidential- Attorneys' Eyes Only."
2.8

Protected Material: any Disclosure or Discovery Material that is designated as

"Confidential" or as "Highly Confidential- Attorneys' Eyes Only."
2.9

Outside Counsel: attorneys who are not employees of a Party but who are retained

to represent or advise a Party in this Action and are attorney's of record in the Action.
2.10

House Counsel: attorneys who are employees of a Party.

2.11

Counsel (without qualifier): Outside Counsel and House Counsel (as well as their

support staffs).
2.12 Expert: a person with specialized knowledge or experience in a matter pertinent to
the Action who has been retained by a Party or its Counsel to serve as an expert witness or as a
consultant in this Action and who is not a past or a current employee of a Party and who, at the
time of retention, is not anticipated to become an employee of a Party. This definition includes a
professional jury or trial consultant retained in connection with this Action.
2.13

Professional Vendors: persons or entities that provide litigation support services

(e.g., photocopying; videotaping; translating; preparing exhibits or demonstrations; organizing,
storing, retrieving data in any form or medium; etc.) and their employees and !subcontractors.
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2.14

Customer Proprietary Network Information (CPNI): information having the

meaning set forth in 47 U.S.C. § 222(c).

3.

SCOPE

The protections conferred by this Order cover not only Protected Material (as defined
above), but also any information copied or extracted therefrom, as well as all copies, excerpts,
summaries, or compilations thereof, plus testimony, conversations, or presentations by parties or
counsel to or in court or in other settings that might reveal Protected Material.

4.

DURATION

Even after the termination of this Action, the confidentiality obligations imposed by this
Order shall remain in effect until a Designating Party agrees otherwise in writing or a court order
otherwise directs.

5.

DESIGNATING PROTECTED MATERIAL

5.1

Exercise of Restraint and Care in Designating Material for Protection. Each Party

or non-party that designates information or items for protection under this Order must take care
to limit any such designation to specific material that qualifies under the appropriate standards.
A Designating Party must take care to designate for protection only those parts of material,
documents, items, or oral or written communications that qualify, so that other portions of the
material, documents, items, or communications for which protection is not warranted are not
swept unjustifiably within the ambit of this Order.
Mass, indiscriminate, or routinized designations are prohibited. Designations that are
shown to be clearly unjustified, or that have been made for an improper purpose (e.g., to
unnecessarily encumber or retard the case development process, or to impose unnecessary
expenses and burdens on other parties), expose the Designating Party to the possibility of
sanctions.
If it comes to a Party's or a non-party's attention that information or items that it
designated for protection do not qualify for protection at all, or do not qualify for the level of
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protection initially asserted, that Party or non-party must promptly notify all other parties that it
is withdrawing the mistaken designation.
5.2

Manner and Timing of Designations. Except as otherWise provided in this Order

(see, e.g., second paragraph of section 5.2(a), below), or as otherwise stipulated or ordered,
material that qualifies for protection under this Order must be clearly so designated before the
material is disclosed or produced. Designation in conformity with this Order requires:.
(a) for information in documentary form (apart from transcripts of depositions or
other

pretrial

or

trial

proceedings),

that

the

Designating

Paqy

affix

the

legend

"CO FIDENTIAL" or "HIGHLY CONFIDENTIAL- ATTORNEYS' EYES ONLY" on each
Jage that contains protected material. If only a portion or portions of the material on a page
rites for protection, the Producing Party also must clearly identify the protected portion(s)
lg., by making appropriate markings in the margins) and must specify, for each portion, the
lrel of protection being asserted (either "CONFIDENTIAL" or "HIGHLY CONFIDENTIAL -

1}TTORNEYS' EYES ONLY").
!

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A Party or non-party that makes original documents or materials available for

i~spection need not designate them for protection until after the inspecting Party has indicated
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Which material it would like copied and produced.
I

~esignation,

During the inspection and before the

all of the material made available for inspection shall be deemed "HIGHLY

CONFIDENTIAL- ATTORNEYS' EYES ONLY." After the inspecting Party has identified
the documents it wants copied and produced, the Producing Party must determine which
documents, or portions thereof qualify for protection under this Order, then, after copying but
before producing the specified documents, the Producing Party must affix the legend
"CONFIDENTIAL" or "HIGHLY CONFIDENTIAL- ATTORNEYS' EYES ONLY" on each
page that contains Protected Material. If only a portion or portions of the material on a page
qualifies for protection, the Producing Party also must clearly identify the protected portion(s)
(e.g., by making appropriate markings in the margins) and must specify, for each portion, the
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level of protection being asserted (either "CONFIDENTIAL" or "HIGHLY CONFIDENTIAL ATTORNEYS' EYES ONLY").
In order to afford the Parties time to review and designate as confidential
documents or material produced by non-parties, all such documents produced shall be treated by
the Parties as confidential for the first 30 days after their production.
(b) for testimony given in deposition or in other pretrial or trial proceedings, that
the Party or non-party offering or sponsoring the testimony identify on the reco1d, before the
close of the deposition, hearing, or

othe~ proceeding, all protected testimony, ru.1d·further specify

any portions of the testimony that qualifies as "HIGHLY CONFIDENTIAL- ATTORNEYS'
EYES ONLY." When it is impractical to identify separately each portion of testimony that is
entitled to protection, and when it appears that substantial portions of the testimony may qualify
for protection, the Party or non-party that sponsors, offers, or gives the testimony may invoke on
the record (before the deposition or proceeding is concluded) a right to have up to 30 days to
identify the specific portions of the testimony as to which protection is sought and to specify the
level of protection being asserted ("CONFIDENTIAL" or "HIGHLY CONFIDENTIAL ATTORNEYS' EYES ONLY"). Only those portions of the testimony that are appropriately
designated for protection within the 30 days shall be covered by the provisions of this Order.
Transcript pages containing Protected Material must be separately bound by the
court reporter, who must affix to the top of each such page the legend "CONFIDENTIAL" or
"HIGHLY CONFIDENTIAL- ATTORNEYS' EYES ONLY," as instructed by the Party or
non-party offering or sponsoring the witness or presenting the testimony.
(c) for information produced in some form other than documentary, and for any
other tangible items, that the Designating Party affix in a prominent place on the exterior of the
container or containers in which the information or item is stored the legend "CONFIDENTIAL"
or "HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY."

If only portions of the

information or item warrant protection, the Designating Party, to the extent practicable, shall
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identify the protected portions, specifying whether they qualify as "Confidential or as "Highly
Confidential- Attorneys' Eyes Only."
5.3

Inadvertent Failures to Designate. If timely corrected, an inadvertent failure to

designate qualified information or items as "Confidential" or "Highly Confidential- Attorneys'
Eyes Only" does not, standing alone, waive the Designating Party's right to secure protection
under this Order for such material. If material is appropriately designated as "Confidential" or
"Highly Confidential - Attorneys' Eyes Only" after the material was initially produced, the
Receiving Party,

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timely notification of the designation, must make reasonable efforts to

assure that the material is treated in accordance with the provisions of this Order.

6.

CHALLENGING CONFIDENTIALITY DESIGNATIONS

6.1

Timing of Challenges.

Unless a prompt challenge to a Designating Party's

confidentiality designation is necessary to avoid foreseeable substantial unfairness, unnecessary
economic burdens, or a later significant disruption or delay of the Action, a Party does not waive
its right to challenge a confidentiality designation by electing not to mount a challenge promptly
after the original designation is disclosed.
6.2

Meet and Confer. A Party that elects to initiate a challenge to a Designating

Party's confidentiality designation must do so in good faith and must begin the process by
conferring directly (in voice to voice dialogue; other forms of communication are not sufficient)
with counsel for the Designating Party. In conferring, the challenging Party must explain the
basis for its belief that the confidentiality designation was not proper and must give the
Designating Party an opportunity to review the designated material, to reconsider the
circumstances, and, if no change in designation is offered, to explain the basis for the chosen
designation. A challenging Party may proceed to the next stage of the challenge process only if
it has engaged in this meet and confer process first.
6.3

Judicial Intervention. A Party that elects to press a challenge to a confidentiality

designation after considering the justification offered by the Designating Party may file and
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serve a motion under the then-applicable Rules of this Court that identifies the challenged
material and sets forth in detail the basis for the challenge.

Each such motion must be

accompanied by a competent declaration that affirms that the movant has complied with the meet
and confer requirements imposed in the preceding paragraph and that sets forth with specificity
the justification for the

confidenti~lity

designation that was given by the Designating Party in the

meet and confer dialogue.
The burden of persuasion in any such challenge proceeding shall be on the Designating
Party. Until the court rules on the challenge, all parties shall continue to afford the material in
question the level of protection to which it is entitled under the Producing Party's designation.

7.

ACCESS TO AND USE OF PROTECTED MATERIAL

7.1

Basic Principles. A Receiving Party may use Protected Material that is disclosed

or produced by another Party or by a non-party in connection with this case only for prosecuting,
defending, or attempting to settle this Action. Such Protected Material may be disclosed only to
the categories of persons and under the conditions described in this Order. When the Action has
been terminated, a Receiving Party must comply with the provisions of section 11, below
(FINAL DISPOSITION).
Protected Material must be stored and maintained by a Receiving Party at a location and
in a secure manner that ensures that access is limited tp the persons authorized under this Order.
7.2

Disclosure of "CONFIDENTIAL" Information or Items.

Unless otherwise

ordered by the court or permitted in writing by the Designating Party, a Receiving Party may
disclose any information or item designated "CONFIDENTIAL" only to:
(a) the Receiving Party's Outside Counsel in this Action, as well as employees of
such Counsel to whom it is reasonably necessary to disclose the information for this Action and
who have signed the "Acknowledgment and Agreement to Be Bound" that is attached hereto as
Exhibit A;
(b) the officers, directors, and employees (including House Counsel) of the
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Receiving Party to whom disclosure is reasonably necessary for this Action and who have signed
the "Acknowledgment and Agreement to Be Bound" (Exhibit A);
(c) experts (as defined in this Order) of the Receiving Party to whom disclosure is
reasonably necessary for this Action and who have signed the "Acknowledgment and Agreement
to Be Bound" (Exhibit A);
(d) the Court and its personnel;
(e) court reporters, their staffs, and professional vendors to whom disclosure is
reasonably necessary for this Action and who have signed the "Acknowiedgment and Agreement
to Be Bound" (Exhibit A);
(f) during their depositions, witnesses in the Action to whom disclosure is
reasonably necessary and who have signed the "Acknowledgment and Agreement to Be Bound"
(Exhibit A). Pages of transcribed deposition testimony or exhibits to depositions that reveal
Protected Material must be separately bound by the court reporter and may not be disclosed to
anyone except as permitted under this Protective Order; and
(g) the author of the document or the original source of the information.
7.3

Disclosure of"HIGHLY CONFIDENTIAL- ATTORNEYS' EYES ONLY"

Information or Items. Unless otherwise ordered by the court or permitted in writing by the
Designating Party, a Receiving Party may disclose any information or item designated
"HIGHLY CONFIDENTIAL -ATTORNEYS' EYES ONLY" only to:
(a) the Receiving Party's Outside Counsel in this Action, as well as employees of
said Counsel to whom it is reasonably necessary to disclose the information for this Action and
who have signed the "Acknowledgment and Agreement to Be Bound" that is attached hereto as
Exhibit A~
(b) House Counsel of a Receiving Party (1) to whom disclosure is reasonably
necessary for this Action, and (2) who has signed the "Acknowledgment and Agreement to Be
Bound" (Exhibit A);
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(c) the Court and its personnel;
(d) court reporters, their staffs, and professional vendors to whom disclosure is
reasonably necessary for this Action and who have signed the "Acknowledgment and Agreement
to Be Bound" (Exhibit A); and
(e) the author of the document or the original source of the information.
8.

PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED
IN OTHER LITIGATION

If a Receiving Party is served with a subpoena or an order issued in other litigation that
would compel disclosure of any information or items designated in this Action as
"CONFIDENTIAL" or "HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY," the
Receiving Party must so notify the Designating Party, in writing (by e-mail or fax, if possible)
immediately and in no event more than three calendar days after receiving the subpoena or order.
Such notification must include a copy of the subpoena or court order.
The Receiving Party also must immediately inform in writing the Party who caused the
subpoena or order to issue in the other litigation that some or all the material covered by the
subpoena or order is the subject of this Order. In addition, the Receiving Party must deliver a
copy of this Order promptly to the Party in the other Action that caused the subpoena or order to
issue.
The purpose of imposing these duties is to alert the interested parties to the existence of
this Protective Order and to afford the Designating Party in this case an opportunity to try to
protect its confidentiality interests in the court from which the subpoena or order issued. The
Designating Party shall bear the burdens and the expenses of seeking protection in that court of
its confidential material, and nothing in these provisions should be construed as authorizing or
encouraging a Receiving Party in this Action to disobey a lawful directive from another court.
9.
9.1
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UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL
Disclosure of Protected Material.

If a Receiving Party learns that,
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by

inadvertence or otherwise, it has disclosed Protected Material to any person or in any
circumstance not authorized under this Protective Order, the Receiving Party must immediately
(a) notify in writing the Designating Party of the unauthorized disclosures,
(b) use its best efforts to retrieve all copies of the Protected Material,
(c) inform the person or persons to whom unauthorized disclosures were made of
all the terms of this Order, and
(d) request such person or persons to execute the "Acknowledgment and
Agreement to Be Bound" that is attached hereto as Exhibit A.
9.2

No Waiver of Privileges; Procedures. Any inadvertent disclosure or production of

documents or other information protected by the attorney-client privilege, the work-product
protection, the common interest doctrine, and other applicable privileges and immunities
("Privileged Material") will not constitute a waiver of any available privilege or protection by the
disclosing party.
(a) In the event that the Receiving Party discovers that it has received Privileged
Material, or the Producing Party discovers that it has inadvertently produced Privileged Material,
that Party will bring that fact to the attention of the Producing Party and/or Receiving Party
immediately upon discovery. Thereafter, the Privileged Material shall not be disclosed in any
way.
(b) Upon the request of the Producing Party, the Receiving Party will promptly
return to the Producing Party within fourteen (14) business days the Privileged Material and any
copies that the Receiving Party may have made.
(c) Upon the request of the Producing Party, the Receiving Party will promptly
disclose the names of any individuals who have read or have had access to the Privileged
Material. At the request of the Producing Party, said recipients shall destroy any copies of the
Privileged Material within fourteen (14) business days, and shall acknowledge in writing that
they have done so.
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(d) No such inadvertently produced Privileged Material may be used during
discovery or admitted as evidence against the Producing Party absent a Court Order.

10.

FILING PROTECTED MATERIAL

Without written permission from the Designating Party or a court order secured after
appropriate notice to all interested persons, a Party may not file in the public record in this
Action any Protected Material. A Party that seeks to file under seal any Protected Material must
comply with the then-applicable Rules of this Court.

11.

FINAL DISPOSITION

Unless otherwise ordered or agreed in writing by the Producing Party, within sixty (60)
days after the final termination of this Action, each Receiving Party must return all Protected
Material to the Producing Party. As used in this subdivision, "all Protected Material" includes
all copies, abstracts, compilations, summaries or any other form of reproducing or capturing any
of the Protected Material. With permission in writing from the Designating Party, the Receiving
Party may destroy some or all of the Protected Material instead of returning it. Whether the
Protected Material is returned or destroyed, the Receiving Party must submit a written
certification to the Producing Party (and, if not the same person or entity, to the Designating
Party) by the sixty (60) day deadline that identifies (by category, where appropriate) all the
Protected Material that was returned or destroyed and that affirms that the Receiving Party has
not retained any copies, abstracts, compilations, summaries or other forms of reproducing or
capturing any of the Protected Material. Notwithstanding this provision, Counsel are entitled to
retain an archival copy of all pleadings, motion papers, transcripts, legal memoranda,
correspondence or attorney work product, even if such materials contain Protected Material.
Any such archival copies that contain or constitute Protected Material remain subject to this
Protective Order as set forth in Section 4 (DURATION), above.

12.
12.1
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MISCELLANEOUS
Right to Further Relief. Nothing in this Order abridges the right of any person to
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seek modification of this Order by the Court in the future.

12.2

Right to Assert Other Objections. By stipulating to the entry of this Order no

Party waives any right it otherwise would have to object to disclosing or producing any
information or item on any ground not addressed in this Protective Order. Similarly, no Party
waives any right to object on any ground to use in evidence of any of the material covered by
this Protective Order.
IT IS SO ORDERED this

f$--

day of

k~A

~~tiW

'2013.

J. LEON
UNITED STATES DISTRICT COURT JUDGE

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EXHIBIT A
ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND

I,

[print

or

type

full

name],

of

- - - - - - - - - - - - - - - - - - - - - - - [print or type full address],
declare under penalty of perjury that I have received a copy of the Protective Order that was
entered by the United States District Court of the Eastern District of Arkansas on
_ _ _ _ _ _ _ _ _ [insert date] in the case of Monte-Carlo Aviation Corporation v.
Dassault Falcon Jet Corporation; Case No. 4:12-cv-0028-JLH. I agree to comply with a..'ld to be
bound by all the terms of said Protective Order and I understand and acknowledge that failure to
so comply could expose me to sanctions and punishment in the nature of contempt. I solemnly
promise that I will not disclose in any manner any Protected Material that is subject to the
Protective Order to any person or entity except in strict compliance with the provisions of said
Order. I further agree to submit to the jurisdiction of the United States District Court for the
Eastern District of Arkansas for the purpose of enforcing the terms of the Protective Order, even
if such enforcement proceedings occur after termination of this Action.
I hereby submit to the jurisdiction of this Court for the purpose of enforcement of the
Protective Order in this case.
Date:
City and State where signed:
Signature:
Printed Name:

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