Settle v. TJX Companies Inc et al

Filing 32

PROTECTIVE ORDER 25 . Signed by Judge Kristine G. Baker on 10/9/13. (kpr)

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
WESTERN DIVISION
MARION SETTLE
v.

PLAINTIFF
Case No. 4:12-CV-00558-KGB

TJX COMPANIES, INC., ET AL.

DEFENDANTS

PROTECTIVE ORDER
Before the Court is Defendants’ motion for protective order (Dkt. No. 25). Defendants
submitted the terms of this protective order to the Court. Plaintiff Marion Settle did not file a
response, but Plaintiff’s counsel objected during negotiation of the protective order to the
provision regarding post-litigation preservation of confidential information. See infra, ¶ 7. For
good cause shown, it is hereby ordered that the following terms and conditions shall govern the
production, disclosure, and use of information designated as “CONFIDENTIAL” in this Action:
1.

Information (in any form) may be designated CONFIDENTIAL if it is:

(a) personnel information that is of a generally understood personal and confidential nature
relating to current and/or former employees of Defendants (e.g., personnel files, health and
benefit information, bank account deposit records, tax returns, payroll records, physical and
electronic mail addresses, telephone numbers, social security numbers or other personal and
confidential identifiers, insurance elections and dependents, leaves of absence or duty restrictions
due to medical or other highly personal reasons, and corrective and disciplinary counseling);
and/or (b) confidential information about Defendants and/or their businesses that is proprietary in
nature (e.g., employee handbooks, policies and procedures) and/or derives independent economic
value from not being generally known to, and not being readily ascertainable by proper means
by, Defendants’ competitors and/or other persons who can obtain economic value from its

disclosure or use (e.g., business and strategic plans, internal studies, internal communications,
and non-public financial information).
2.

Information may be designated CONFIDENTIAL by any party.

Such

designation shall thereafter subject the information disclosed (including any copies and/or
derivatives of that information) to the provisions of this Order. Such designation may take place
in any manner reasonably calculated to convey the designation to all Parties to the Action.
3.

Except upon prior written consent of the Party or persons designating

information as CONFIDENTIAL, information designated as CONFIDENTIAL shall be held in
strict confidence and shall only be used for purposes of the Action and for no other purpose
whatsoever except as otherwise permitted by this Order or required by law. CONFIDENTIAL
information shall not be disclosed to anyone except:
a.

Counsel of record for any party to the Action and their associates,

paralegals, or clerical or service support staff;
b.

Plaintiff;

c.

Any current or former employees, officers, or directors of Defendants who

have a need to review the information in connection with the defense of the Action as determined
by counsel of record for Defendants;
d.

Designated experts and/or consultants (including their employees,

associates, or other support staff) retained by a party to the Action for consultation or testimony
in this Action, but only if: (i) they are not current or former employees of Defendants or related
to any current or former employee of Defendants; (ii) they are not employed by any competitor
of Defendants; and (iii) they have read this Order and agreed in writing to be bound by this Order
by signing the Acknowledgement attached hereto;

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e.

Court personnel and members of the jury;

f.

Stenographic reporters, court reporters, and videographers who are

engaged in proceedings necessarily incident to the conduct of this action;
Deponents and witnesses, to the extent such disclosure is necessary to the

g.

witness’s relevant testimony; provided, however, that the individual first reads this Order and
agrees in writing to be bound by this Order by signing the Acknowledgement attached hereto;
Outside photocopying, graphic production services or litigation support

h.

services employed by the Parties or their counsel to assist in this action, so long as reasonable
measures are taken to ensure that such services preserve the confidentiality of the information;
Other persons to whom the Court specifically allows disclosure, after

i.

application by the party seeking such disclosure and an opportunity to reply by the producing
party or parties; and
j.

Other persons by written agreement of the Parties.

Nothing in this Order shall be construed to allow CONFIDENTIAL information to be
used or disclosed in any other actual or potential legal proceeding other than the above-captioned
Action.
4.

Whenever any party desires to use or disclose information designated as

CONFIDENTIAL in any Court proceeding and/or filing, then prior to the proceeding and/or
filing, the party shall confer with the party who designated the information as CONFIDENTIAL
in an attempt to reach agreement about the use or disclosure of the information in the Court
proceeding and/or filing (e.g., to allow disclosure without any special protection, to allow
disclosure of a document if certain information is redacted first, etc.). If the Parties are unable to
reach agreement: (a) the party seeking to use or disclose the information must file a motion

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requesting leave of Court to close the proceeding and/or allow the filing of the information under
seal; (b) the party who designated the information as CONFIDENTIAL must be given an
opportunity to state his/her/its position to the Court with respect to the need to have the
information disclosed only in a closed proceeding and/or filed under seal; (c) the information
must not be used or disclosed in any manner allowing review by members of the public while the
motion is pending; and (d) the information must thereafter be used and/or disclosed only in
accordance with the Court’s adjudication of the party’s motion. In no event shall information
designated as CONFIDENTIAL be disclosed in a proceeding and/or filed with the Court, under
seal or otherwise, without written consent of the party who designated the information as
CONFIDENTIAL or direction from the Court.

The Parties shall follow the Court’s

administrative procedures for electronically filing documents under seal.
5.

If any party to the Action disputes the designation of any information as

CONFIDENTIAL, the Parties shall attempt to resolve by agreement the question whether or on
what terms the information is entitled to the designated treatment. If the Parties are unable to
reach agreement, they may, by motion, apply to the Court for an inspection of the information
and, subsequent to that inspection, a ruling from the Court about the appropriate designation for
the information as follows:
a.

If the Parties are unable to agree as to whether information is properly

designated as CONFIDENTIAL, counsel for the party objecting to the designation may file an
appropriate motion with the Court, seeking an order determining that the person or entity
asserting the CONFIDENTIAL designation is not entitled to treat the information as
CONFIDENTIAL. The burden rests upon the person or entity challenging the designation to
demonstrate that such designation is improper. Until a final resolution of the dispute is achieved

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either through consent or Court order, all parties shall treat the designated information as
designated.
Any motion regarding designation of materials that is filed with the Clerk

b.

of Court and/or through the Court’s electronic filing system shall not disclose or include any
information designated as CONFIDENTIAL. Such information and materials may be submitted
to the Court in accordance with Paragraph 4 if necessary.
6.

Nothing in this Order shall prevent any person or entity from using or disclosing

his/her/its own information for any purpose, recognizing that such use or disclosure may impact
whether the information would remain entitled to the CONFIDENTIAL designation.
7.

Within thirty days following the final disposition of this action, including all

appeals therefrom, unless other arrangements are agreed upon, the Parties agree that all original
and copies of CONFIDENTIAL information shall be returned to counsel for the designating
party. The Parties further agree that those CONFIDENTIAL materials shall then be retained by
counsel for the designating party for a period of three years following the final disposition of this
action, including all appeals therefrom. (This return or destroy provision does not apply to the
Clerk of the Court for the United States District Court for the Eastern District of Arkansas,
Western Division).
8.

Nothing in this Order shall preclude any party or third person from seeking

additional protection (via a jointly-proposed supplemental protective order and/or a contested
motion for supplemental protective order) for information deemed by the party or third person to
be entitled to such additional protection (e.g., allowing specific information to be designated as
“CONFIDENTIAL” even though it does not fit within the scope of Paragraph 1, allowing
information to be designated as “COUNSEL ONLY”, etc.).

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9.

All Parties and anyone who joins this Action as a party are governed by this

Protective Order and subject to the jurisdiction of this Court over their person for the purpose of
any proceeding to enforce the Protective Order, or for any action for contempt for violation of
the terms of this Protective Order. This Protective Order is not binding on Court personnel or
members of the jury.
10.

Any party may seek leave to reopen the case to enforce the provisions of this

Protective Order.
11.

This Order may be modified or amended by order of the Court for good cause

shown.
SO ORDERED this 9th day of October, 2013.

__________________________________
KRISTINE G. BAKER
UNITED STATES DISTRICT JUDGE

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IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
WESTERN DIVISION
MARION SETTLE
v.

PLAINTIFF
Case No. 4:12-CV-00558-KGB

TJX COMPANIES, INC., ET AL.

DEFENDANTS

ACKNOWLEDGMENT
I, ________________________, hereby acknowledge that I have reviewed the Protective
Order entered in the above-captioned action and that I agree to be bound by the Protective Order.
I further agree to the following limitations upon the use and disclosure of the CONFIDENTIAL
information which I am being provided:
1.
That the CONFIDENTIAL information shall be used by me solely in connection
with the proceedings in the above-entitled action and for no other purpose;
2.
That I will not use or disclose any of the CONFIDENTIAL information to any
other person or entity except as authorized by the Protective Order; and
3.
That upon request, I will immediately return any CONFIDENTIAL information
which I have been provided, and all copies and derivatives thereof, immediately to the attorney
who provided the material to me.
I understand and recognize that violation of any of the provisions of this
Acknowledgment may subject me to liability or sanctions including, but not limited to, personal
liability for any damages resulting from such violation.
Dated this _______ day of ________________, ________.

(Signature)

(Print Name)

(Print Address)

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