Razorbacks Moisture v. Graphic Packaging International Inc

Filing 38

AGREED PROTECTIVE ORDER. Signed by Judge Kristine G. Baker on 6/18/13. (kpr)

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

RAZORBACK MOISTURE,
A California General Partnership
v.

PLAINTIFF
Case No. 4:12-cv-158- KGB

GRAPHIC PACKAGING
INTERNATIONAL, INC.

DEFENDANT
AGREED PROTECTIVE ORDER

Before the Court is defendant Graphic Packaging International, Inc.’s, agreed motion for
protective order (Dkt. No. 22)., The parties, by and through their undersigned attorneys of
record, hereby stipulate and agree that the following terms and conditions shall govern the
voluntary disclosure and production of trade secrets, confidential research, development and
commercial information, and other information whose confidentiality is protected under
applicable law.
DEFINITIONS
1.

The following definitions apply to this Order:
(a)

The term "document" or "documents" shall include all writings

discoverable under the Rules of Civil Procedure.
(b)

"Confidential Information" refers to any information, documents, and

things which are subject to discovery in this action which include proprietary information, trade
secrets, information regarding business decisions, employee training, or contracts with third
parties that are entitled to or allowed confidential treatment under Arkansas law. This Protective
Order is not intended to protect documents or information that have been placed in the public

domain or documents and information that do not disclose trade secrets or sensitive, proprietary
information about a product or service that would otherwise not be discoverable by a competitor,
or similar information entitled to confidential treatment under Arkansas law.
PURPOSE
2.

This Protective Order shall govern the use and dissemination of all information,

documents, or materials that are produced by the parties or other persons in the action and
designated as Confidential Information in accordance with the terms of this Protective Order.
This Protective Order is not intended to address or govern claims of work product or privilege
that may be asserted by any of the parties, except as otherwise provided in this Order.
DESIGNATION AND TREATMENT
3.

Any party to this action or other person who produces or supplies information,

documents or other materials in this action (hereinafter the "Designating Party") may designate
as "Confidential Information" any information, document or material that meets the definitions
in ¶ 1(b) of this Protective Order. The designations "Confidential Information" shall be made by
affixing on the document or material containing such information, and upon each page so
designated if practicable, words that in substance state, "CONFIDENTIAL- SUBJECT TO
PROTECTIVE ORDER." Any material, document, or information for which it is impracticable
to affix such a legend may be designated by written notice to that effect with a reasonable
description of the material in question.
4.

At the option of the Designating Party, and to facilitate prompt discovery by

allowing inspection or review before formal designation in the manner specified above, all
information, material, or documents produced in response to a subpoena or discovery request
shall be treated as Confidential Information pending inspection and copying.

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5.

All persons having access to Confidential Information shall maintain it in a safe

and secure manner to ensure compliance with this Order. Any summary, extract, paraphrase,
quotation, restatement, compilation, notes, or copy containing Confidential Information, or any
electronic image or database containing Confidential Information, shall be subject to the terms of
this Order to the same extent as the material or information from which such summary, extract,
paraphrase, quotation, restatement, compilation, notes, copy, electronic image, or database is
derived.
6.

A Designating Party may in good faith redact non-responsive and/or irrelevant

Confidential Information from any document or material. However, unredacted copies of such
documents shall be maintained by the Designating Party.
“ATTORNEYS EYES ONLY” DESIGNATION
7.

A party to this action may designate a document as "attorneys eyes only

(“AEO”)" if dissemination of the document would reveal the development of marketing plans,
business plans, or financial plans. A party designating a document as AEO will accompany the
document designation with a written statement to the non designating party as to the reason for
the AEO designation. An objection to the AEO designation will follow the procedure outlined in
¶16 of this Order with the following exception: in the event that that objection is not cured at a
meet and confer, the designating party will file a motion to resolve the dispute within 10 days of
the objection.
LIMITATIONS ON USE
8.

Except to the extent expressly authorized by this Order, Confidential Information

shall not be used or disclosed for any purpose other than the preparation and trial of this case and
in any appeal taken from any judgment herein. Nothing designated as Confidential Information

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shall be used for any commercial, business, marketing, competitive, personal, or other purposes
whatsoever.
LIMITATIONS ON DISCLOSURE
9.

Except with the prior written consent of the Designating Party, or as expressly

authorized by this Order, no person receiving Confidential Information may disclose it to any
other person. Nothing in this Order, however, shall be deemed to restrict in any manner the
Designating Party's use of its own Confidential Information. Each party may disclose its own
Confidential Information without regard to this Order.
10.

Any person to whom Confidential Information may be disclosed pursuant to this

Order, except this Court and its personnel, first shall be required to read a copy of this Protective
Order and such person shall be subject to the terms and conditions of this Protective Order and
shall not use any of the Confidential Information for any purpose other than the prosecution or
defense of this case. The party making the disclosure of the Confidential Information to such
persons shall be responsible for assuring compliance with this provision.
11.

Access to Confidential Information shall be limited to:
(a)

officers, employees, agents, and representatives of the receiving party or

attorneys, paralegals, assistants, and clerical employees who are assisting in the prosecution,
defense and/or appeal of this action;
(b)

Any consultant, investigator, or expert (collectively, "Expert") who is

assisting in the preparation and/or trial of the Action, but only to the extent reasonably necessary
to enable such Expert to render such assistance;
(c)

Court reporters and videographers involved in rendering professional

services in the action; and

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(d)

professional vendors (including the employees and contractors of the

vendors) who provide litigation support services in this action;
(e)

people who generated or received the documents;

(f)

other potential or anticipated deposition or other fact witnesses, who have

or reasonably may have knowledge relating to the contents of the documents or information
designated “CONFIDENTIAL” or the specific events, transactions, or date reflected in the
confidential information;
(g)

witnesses at depositions, hearings, or trials who are not otherwise

described above; and
(h)
12.

The Court and its personnel, subject to the provisions of ¶15 of this Order.

If a party or other person receiving Confidential Information pursuant to this

Order thereafter receives a subpoena or order to produce such information in any other action or
proceeding before any other court or agency, such party or person shall, before the due date of
the request, notify the Designating Party of the pendency of the subpoena, public records request,
or order in writing. To give the Designating Party an opportunity to obtain such relief, the party
or person from whom the information is sought shall not make the disclosure before the actual
due date of compliance set forth in the subpoena or order. To the extent a court in another
jurisdiction determines that the documents or information produced in this litigation are
discoverable in another lawsuit, this provision shall not prevent the use or production of
“Confidential Information” produced in this case, subject to any Protective Orders entered by the
Court of the other jurisdiction.

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DEPOSITIONS INVOLVING CONFIDENTIAL INFORMATION
13.

Portions of a deposition or depositions in their entirety may be designated

Confidential Information by counsel for the deponent or the Designating Party, with respect to
documents or information that it has produced, by indicating that fact on the record at the
deposition or in writing no later than 30 days after the receipt of the deposition transcript. The
court reporter shall include on the cover page a clear indication that the deposition has been so
designated. Once designated, any deposition transcript in which Confidential Information is
discussed, and any exhibits containing Confidential Information, shall be treated as such.
14.

No one may attend, or review the transcripts of, the portions of any depositions at

which Confidential Information is shown or discussed, other than persons authorized to receive
access to Confidential Information.
FILING OR USE OF CONFIDENTIAL INFORMATION AS EVIDENCE
15.

Where any Confidential Information or information derived therefrom is included

in any court filing, such filing shall be marked "CONFIDENTIAL - SUBJECT TO
PROTECTIVE ORDER" and shall be placed in a sealed envelope marked with the caption of the
case and held under seal.
OBJECTIONS TO DESIGNATIONS
16.

Any party may, after production of material designated under this Protective

Order, until 60 days prior to the Trial, object to its designation by notifying the Designating Party
in writing of that objection and specifying the designated material to which the objection is
made. The parties shall confer within 10 days of service of any written objection. If the
objection is not resolved, the Designating Party shall, within 20 days of the objection, file and
serve a motion to resolve the dispute. If the Designating Party does not file a Motion to resolve

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the dispute within 20 days of the objection, the documents or information objected to shall not be
deemed confidential. In doing so, the Designating Party shall follow the procedures of ¶15 of
this Order, if applicable.
INADVERTENT WAIVER
17.

Inadvertent failure to designate any information pursuant to this Protective Order

shall not constitute a waiver of any otherwise valid claim for protection, so long as such claim is
asserted within 15 days of the discovery of the inadvertent failure. At such time, arrangements
shall be made for the Designating Party to substitute properly labeled copies.
NON-TERMINATION
18.

Any information or documents designated as Confidential Information shall

continue to be treated as such until such time as (i) the Designating Party expressly agrees in
writing that the information, documents, testimony or other materials in question are no longer
Confidential; (ii) there is a finding by the Court that the information or documents are not the
proper subject of protection under this order; or (iii) the Designating Party fails to file a Motion
to resolve a dispute as to the confidential treatment of designated materials objected to by a party
as provided in ¶16. Issues regarding the protection of Confidential Information during trial may
be presented to the Court as each party deems appropriate.
19.

The obligations and protections imposed by this Order shall continue beyond the

conclusion of this action, including any appeals, or until the Court orders otherwise. Within 60
days after receipt of a request from the Designating Party, made after this action has concluded
and the time for possible appeal has been resolved, Confidential Information (other than exhibits
at the official court of record) shall be returned to the appropriate Designating Party or shall be
destroyed by the receiving party. Counsel for any party or third party receiving Confidential

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Information in this action shall make written certification of compliance with this provision and
shall deliver the same to counsel for each Designating Party within 180 days after such request.
ADMISSIBILITY
20.

Nothing contained herein shall be construed to affect in any way the admissibility

of any document, testimony, or other evidence at trial.
21.

Any

party

may

introduce

relevant

and

admissible

CONFIDENTIAL

INFORMATION at trial or at a hearing before the Court in this action. The party or non-party
that produced the CONFIDENTIAL INFORMATION may seek to restrict the portion of the trial
or hearing dealing with such materials.
OTHER DEFENSES TO PRODUCTION
22.

Nothing contained herein shall be construed to or in any way affect or impair the

right of any party to seek additional protection or to raise or assert any defense, objection,
privilege, or immunity to the discovery or production of documents or confidential information
contained therein or to the use of any evidence.
23.

Nothing contained herein shall require the disclosure or dissemination of material

which is covered by the attorney-client privilege or the work product doctrine.
24.

In the event that only part of the document is claimed to be privileged or

protected, in addition to furnishing the entire document designated confidential, the producing
party shall furnish redacted copies of such document, removing only the part(s) thereof claimed
to be privileged or protected, to all Receiving Parties.
25.

The designation of any document or any portion of a document or any

information produced in discovery as confidential shall be made in good faith and shall
constitute a certification by counsel that the designation is, in counsel’s opinion, a trade secret or

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other confidential research, development, or commercial information entitled to confidential
treatment under Arkansas law. If a Receiving Party disputes in good faith the Producing Party’s
claim of privilege or protection, (a) the Receiving Party and Producing Party shall promptly meet
and confer to attempt to resolve the claim of privilege or protection, and (b) the Receiving Party
shall refrain from further using or otherwise disclosing the document or its contents or part(s) of
the document claimed to be privileged or protected until the dispute is resolved.
CONTINUING JURISDICTION
26.

This Court shall have continuing jurisdiction to modify, amend, enforce or

interpret this Protective Order notwithstanding the termination of this action.
IT IS SO ORDERED this the 18th day of June, 2013.

________________________________
KRISTINE G. BAKER
UNITED STATES DISTRICT JUDGE

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