Humphrey v. Electrolux Home Products Inc
STIPULATED PROTECTIVE ORDER. Signed by Judge D. P. Marshall Jr. on 3/4/13. (kpr)
IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
TAMMIE HUMPHREY, on behalf of herself
and all others similarly situated
ELECTROLUX HOME PRODUCTS, INC.
STIPULATED PROTECTIVE ORDER
Upon joint motion and stipulation of the parties for a Protective Order,
Document No. 39, pursuant to Rule 26(c) of the Federal Rules of Civil Procedure,
and the Court being fully advised and upon good cause shown, the Court orders the
This Protective Order shall apply to documents and things that any
Party deems, in good faith, to constitute or contain Confidential Information, as
defined below. The parties and any non-party shall limit to whatever extent
possible designating information as Confidential Information.
Definitions. For the purposes of this Protective Order, the following
terms are defined as follows:
Confidential Information shall be defined as documents, testimony,
or other information that
is obtained from another entity and is required to be kept
confidential pursuant to an agreement entered in the regular course of
business or pursuant to an existing confidentiality order, provided, however,
that the information designated as confidential is not part of the public
domain and not obtained through sources bound under an existing
confidentiality order. A non-party to an agreement or protective order upon
which a designation of Confidential Information is made may challenge the
designation by the means permitted in this order; or
contains or discloses trade secrets, confidential technical
information, practices, methods or other know-how, including but not
limited to confidential research, development, or commercial information
that is not available to the public through prior publication or other lawful
means, such as proprietary licensing, distribution, marketing, product
analysis, design, development, research, and manufacturing information
regarding products or technology, pricing data, financial data, sales
information, customer-confidential information, strategic business plans,
marketing strategies or projections, or information about employees.
Documents shall be defined to include, but shall not be limited to,
those categories of information that constitute "documents" under Rule 34(a) of the
Federal Rules of Civil Procedure.
Party shall be defined to include Plaintiff, Defendant, and any third
party that may be called upon to provide documents, testimony, or other
information pursuant to subpoena or other lawful process.
Originating Party shall be defined as the Party from which a
Producing Party obtained a document produced in this matter.
Producing Party shall be defined as the Party producing materials
designated as Confidential Information.
Receiving Party shall be defined as the Party receiving materials
designated as Confidential Information.
Challenging Party shall mean a party which seeks to challenge a
Designating Party's designation of a document as containing Confidential
Protective Order shall mean this Stipulated Protective Order entered
by the Court and agreed-upon by the parties.
Action shall mean this case, Humphrey v. Electrolux Home Products,
Inc., No. 4:12-cv-157-DPM (E.D. Ark.).
Good Faith Basis for Designation. A Producing Party must have a
good-faith belief that the documents or information constitute a trade secret or
other confidential information within the meaning of Rule 26(c) of the Federal
Rules of Civil Procedure. Confidential Information must be described in sufficient
detail to justify its protection under this Protective Order.
How the Designation is Made. All documents deemed by a Party to
constitute or contain Confidential Information of that Party will be so identified
and marked Confidential -
Subject to Protective Order by the Producing
Such identification or marking shall be made by a Producing
Party when the Confidential Information is served upon or provided to the
other Party (the "Receiving Party").
The originals of documents produced for inspection need not be
marked as Confidential Information prior to the inspection, and making
documents available for inspection shall not constitute a waiver of any claim
of confidentiality. All materials made available for inspection shall be
treated as if designated as Confidential -
Subject to Protective Order
pursuant to this Protective Order at the time of inspection. However, all
copies of documents inspected by the Receiving Party must be marked
Subject to Protective Order by the Producing Party when
they are supplied to the Receiving Party to make copies of them subject to
this Protective Order.
If the Producing Party inadvertently omits the marking
Subject to Protective Order from a copy of a produced
document, the Producing Party may notify the Receiving Party in writing to
mark the document as Confidential -
Subject to Protective Order. In
addition, if the Producing Party obtained the document or information from
another Originating Party, the Originating Party, within 30 days after
learning that the Producing Party has produced its Confidential Information
without an appropriate designation, may notify the Receiving Party in
writing to mark such document as Confidential (by [Originating Party])
Subject to Protective Order. Upon receiving either of the notifications
provided for in this Paragraph, the Receiving Party and its counsel shall take
all reasonable steps to retrieve all copies of the documents not marked with
the appropriate confidential legend and to mark said documents in
accordance with the instructions of the Producing Party or Originating Party.
Should the notification from either the Producing Party or Originating Party
refer to more than 200 documents, the Producing Party or the Originating
Party shall provide copies of properly-marked documents to the Receiving
Party, and the Receiving Party shall destroy all of its copies of the unmarked
documents and confirm the destruction in writing within 14 days. From the
point at which the Receiving Party and its counsel have notice that the
appropriate confidential legend was omitted from a copy of a produced
document, the Receiving Party and its counsel shall treat the produced
document as Confidential Information pursuant to the terms of this
Tangible objects constituting or containing Confidential
Information may be designated Confidential Information by affixing to the
object or its container a label or tag marked Confidential -
Designation During Deposition. In the event that any question is
asked at a deposition which a Party or non-Party asserts calls for the disclosure of
Confidential Information, the question shall be answered by the witness fully and
completely, to the extent required by law. Counsel for the Party making the
confidential designation shall, either at the deposition or within twenty (20) days
after receipt of the transcript, notify all counsel on the record or in writing that the
information provided in the answer contains Confidential Information subject to
this Protective Order. Counsel for the Party making the confidential designation
shall specify the testimony being designated confidential by page and line number,
at which point, said testimony shall be subject to this Protective Order, and the
entire transcript of the deposition shall be treated as confidential and subject to this
Protective Order for twenty (20) days.
After page and line designations of
Confidential Information have been made, the Receiving Party may redact the
portions of the deposition and use a redacted version of the deposition as if it were
not designated Confidential Information.
Prior Litigation, Documents from Agents and Employees. A Party
may designate as confidential testimony of, or documents produced by, that Party's
agents, employees, sales representatives, or technical or business consultants,
provided that good cause for the designation exists and that the testimony or
documents contain Confidential Information as described herein. Additionally,
any documents or information produced in prior litigation by any Party and
designated in that litigation, in some manner, as confidential information pursuant
to a protective order operative in that case, shall, unless and until the Producing
Party provides different instructions, be treated as Confidential Information under
this Protective Order, notwithstanding any failure to separately designate the
documents in this litigation as Confidential Information. Nothing herein shall
impose any restriction on the use or disclosure by a Party of its own information or
information that lawfully came into the possession of the Party independent of any
disclosure of information in this litigation, unless the latter information is subject
to any protective order.
Application to Notes and Summaries. Any summary, notes, or copy
containing designated Confidential Information shall be subject to the terms of this
Protective Order to the same extent as the information or document from which the
summary or copy was made.
Access to Confidential Information. Unless and until this Court rules
otherwise, access to documents and materials identified as Confidential-- Subject
to Protective Order shall be limited solely to
attorneys and secretarial, paralegal, and staff personnel of
outside attorneys of record in this action, namely the firms of
Wheeler Trigg O'Donnell, LLP, Wright, Lindsey and
Jennings LLP, Wexler Wallace LLP, Hansen Reynolds
Dickinson Crueger LLC, Greg Coleman Law PC, and
Carney Williams Bates Pulliam & Bowman, PLLC, along
with any successors, substitutes or additional co-counsel of
independent expert(s) or consultant(s) (not a regular employee
or agent of the party employing the expert or consultant) to the
extent necessary to prepare for this litigation, provided that
before any such disclosure is made, said independent expert(s)
or consultant(s) executes an Acknowledgment of this Protective
Order in the form attached hereto, a copy of which, for an
identified testifying expert only, shall then be held by counsel;
the Parties' insurance carriers, as well as claims representatives
affiliated with such insurance carriers, to the extent involved in
the pending litigation.
Witnesses' Access to Confidential Information. Notwithstanding the
provisions of Paragraph 8, any person (including employees of a corporate party)
expected to testify at a scheduled deposition or designated as a trial or hearing
witness may be shown Confidential Information designated Confidential Subject to Protective Order to the extent that the Confidential Information can be
foreseen to relate to his/her proposed testimony.
The person to whom the
disclosure is to be made must execute an Acknowledgment of this Protective Order
in the form attached hereto, either before or immediately after the deposition or
testimony (a copy of which shall then be held by counsel and transmitted to
counsel for each of the other parties).
Confidential Information identified and marked in accordance with this Protective
Order may be filed with the Court or included in whole or in part in pleadings,
motions, or briefs with the Confidential Information redacted without the need to
move to seal such document. If a Party seeks to file any Confidential Information,
the filing must be under seal in accordance with Section IV .B of the CM/ECF
Administrative Policies and Procedures Manual for Civil Filings in the United
States District Court for the Eastern District of Arkansas.
The clerk shall maintain the documents as restricted documents for a period
of 63 days following the final disposition of this case including appeals. Except
where the Court, in response to a request of a Party or on its own motion, orders
otherwise, or pending an appeal, at the end of the 63-day period, the clerk shall
return the restricted documents in the sealed enclosure to the attorney or Party who
or which filed it, or destroy them.
Filing of all documents shall be done in
accordance with the above procedures and in compliance with the United States
District Court for the Eastern District of Arkansas's CM/ECF Administrative
Policies and Procedures Manual for Civil Filings,§ IV.B.
Confidential Information in Depositions. When any testimony in this
action is taken during pre-trial litigation in a deposition, or when any item of
information, document, or thing marked or identified as Confidential Information
in accordance with this Protective Order is presented, disclosed, or marked for
identification, counsel for any Party may, before or during the testimony, give
notice to counsel for all other parties that Confidential Information may be
disclosed during said testimony and such counsel may request that the testimony
go forward with only the stenographer recording the testimony and those
categories of persons permitted by Paragraph 8 in attendance. Any Confidential
Information used pursuant to this Paragraph shall not lose the protections of this
Protective Order as a result of such use. The stenotype tape or other means of
recording the proceeding with respect to which the notice provided for in the
Paragraph is given or in which any Confidential Information marked or identified
in accordance with this Protective Order is disclosed, presented, or marked for
identification shall itself be deemed to be Confidential Information subject to this
Protective Order. The transcript or copies thereof of any such testimony shall be
provided only to those categories of persons permitted by Paragraph 8 hereof, the
stenographer (if necessary), the Court, and necessary personnel; however, if all
Confidential Information is redacted in a transcript, that transcript is not subject to
transcripts, exhibits, or other documents, information, or things identified in
accordance with this Protective Order may be copied by the Receiving Party's
counsel, but are to be returned (the original and all copies) to counsel for the
Producing Party within thirty (30) days after the termination of this litigation
(which shall include any appeal) or destroyed; and any extracts, descriptions, or
summaries thereof shall be destroyed after termination of the litigation, save for
those extracts, descriptions, or summaries which are included in counsel's work
product. A certification of destruction of Confidential documents shall be provided
to the Producing Party within thirty (30) days after termination of litigation if the
documents are not returned.
Use of Confidential Information. Confidential Information identified
in accordance with this Protective Order may only be used (a) in connection with
motions filed in this action; (b) during testimony in this action, both during trial
and during discovery; (c) as evidence at the trial of this action subject to the rules
of evidence, this Protective Order, and any further order of this Court; (d) to
prepare for discovery or trial of this action; and (e) in connection with any appeal
of this action to a court of competent jurisdiction. Confidential Information may
not be used for any other purpose.
14. Use of Confidential Information at Trial or Hearings. Disputes arising as
to the use of Confidential Material or information at trial or hearings will be
resolved by the Court prior to the disclosure of such materials. The treatment at
trial of material previously designated Confidential will be addressed at the pretrial hearing.
Withdrawal of Confidentiality Designation. In the event that the
Producing Party determines that any Confidential Information should no longer be
subject to this Protective Order, it shall notify each Party that its designation
thereof as confidential is withdrawn and shall provide each Party with a copy of
the document with the confidential designation removed, and the specific bates
label number of the document with the inoperative confidentiality designation.
From and after the receipt by a Party of such a copy, such information and all
actions taken with respect to such information shall no longer be subject to this
Restrictions Not Applicable to Producing Party or Parties' Attorneys.
With respect to any particular item of Confidential Information, the restriction on
dissemination, access, disclosure, and use of such item(s), or of information
contained therein, shall not apply to the Producing Party or such Party's attorneys.
No Concessions Upon Acceptance. Acceptance by a Receiving Party
of information, documents, or things marked as Confidential Information shall not
(a) constitute a concession that such information, documents, or things in fact are,
or include, Confidential Information; or (b) constitute an agreement or admission
by either party with respect to the competency, relevancy, or materiality of any
such information, document, or thing.
No Waiver of Objections. This Protective Order does not address,
limit, or determine the relevance, discoverability, or admission into evidence of
any document. The Parties do not waive any objections as to the production,
discoverability, or confidentiality of documents.
Parties May Agree to Disclose. Nothing herein shall prevent
disclosure beyond the terms of this Protective Order if the parties mutually agree in
writing to such disclosure, or if the Court, after notice to all affected parties, orders
Challenges to Designation. A Party shall not be obligated to challenge
the propriety of a confidential designation at the time made, and a failure to do so
shall not preclude a subsequent challenge to such confidential designation. In the
event any Party to this litigation disagrees with a confidential designation, the
parties shall first try to resolve the dispute in good faith on an informal basis. The
Challenging Party shall provide written notice to the Designating Party, identifying
the Confidential Discovery Material, by bates number, whose designation it
challenges and setting forth the basis, with basic legal authority, for the challenge
for each document or portion of document. Within a reasonable time after its
receipt of written notice of the challenge to its designation, or such other time
period as may be agreed to by the Parties, the Parties shall meet and confer and
make a good faith effort to resolve any dispute concerning the designation by
agreement or stipulation. If the dispute cannot be resolved, the parties will file a
joint five-page report explaining the disagreement in accordance with the Court's
scheduling order, and the Court will rule or schedule a hearing.
asserting the information, document, or thing that is or contains Confidential
Information shall have the burden of provind the propriety of its designation.
Inadvertent Production Not Operative as Waiver. Inadvertent
production of any document subject to the attorney-client privilege, the attorney
work product immunity, or any other applicable privilege or immunity shall not
constitute a waiver of the privilege or immunity, provided that the Producing Party
promptly notifies the Receiving Party in writing of such inadvertent production
after the Producing Party discovers such inadvertent production. If prompt
notification is made and the Producing Party establishes the circumstances
surrounding the document's inadvertent production and the grounds for an
applicable privilege or immunity, such inadvertently produced document and all
copies thereof shall be returned to the Producing Party or destroyed, upon request,
within seven (7) days of the Receiving Party's receipt of the written request to
return or destroy. The Receiving Party shall not make any use of such document
during deposition, hearing or trial, nor shall the Receiving Party show the
document to anyone who was not already given access to it prior to the Producing
Party's request to return or destroy. If, after conferring, the parties cannot agree as
to whether a document should be protected from disclosure by a privilege or
immunity, the Producing Party shall have ten (10) business days to file a motion
with the Court seeking the return or destruction of the produced document. While
such a motion is pending, the Receiving Party shall not make any use of such
document during deposition, hearing or trial, and such document shall not be
shown by the Receiving Party to anyone who was not already given access to such
document prior to the Producing Party's request to return or destroy.
Further Relief. Nothing in this Protective Order shall prevent any
Party including members of the public from contesting this Protective Order or
applying to the Court for further or additional protection for any document or
information the characteristics of which are such that the protections afforded by
this Protective Order may be insufficient or inadequate to ensure the confidentiality
of such document or information or to prevent injury to the Producing Party.
Consistent with Federal and Local Rules. The parties intend that this
Protective Order shall be consistent with the Federal Rules of Civil Procedure, the
Federal Rules of Evidence, the Court's scheduling order, and any applicable Local
Rules. For purposes of computing any period of time under this Protective Order,
the provisions of Federal Rule Civil Procedure 6 and the Local Rules of the Court
Duration of the Protective Order. This Protective Order shall survive
the termination of the above-captioned action and shall continue in full force and
effect for one year after this litigation, including appeals, has ended, subject to
further order of this Court.
Modifications to Order. Nothing in this Protective Order shall
interfere with the parties' right to move this Court to modify, supplement, or
dissolve this Protective Order.
IT IS SO ORDERED:
Dated: 4 March , 20 13
Judge D.P. Marshall, Jr.
IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
TAMMIE HUMPHREY, on behalf of herself
and all others similarly situated
ELECTROLUX HOME PRODUCTS, INC.
ACKNOWLEDGEMENT OF PROTECTIVE ORDER
The undersigned has read and understands the Protective Order issued in the
above-captioned proceedings, a copy of which is attached hereto, and the
undersigned hereby acknowledges and agrees to abide by the restrictions and
requirements of said Protective Order, and submits the jurisdiction of said Court
solely for the purpose of enforcement.
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