Fallen v. Kubota Tractor Corporation

Filing 16

STIPULATION AND PROTECTIVE ORDER REGARDING CONFIDENTIALITY OF DOCUMENTS AND MATERIALS. Signed by Judge Susan Webber Wright on 1/16/2014. (ks)

FILED

US DiSTRICT COURT

EASTERN DISTRICT ARKANSAS

JAN 1 6 2u·;;l
IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
WESTERN DMSION

JAMESW.
By:_-#-:::::JC-=-::::;..:._;~

LESLIE ANN FALLEN, AS
ADMINISTRATRIX OF THE ESTATE
OF HAYDEN DANIEL FALLEN,
DECEASED, AND SURVIVORS

v.

PLAINTIFF

CASE NO.: 4:13-CV-00387 SWW

KUBOTA TRACTOR CORPORATION

DEFENDANT

STIPULATION AND PROTECTIVE ORDER REGARDING
CONFIDENTIALITY OF DOCUMENTS AND MATERIALS
WHEREAS, Plaintiff, Leslie Fallen, as Administratrix of the Estate of Hayden Daniel
Fallen, by and through her attorneys, have requested Defendant, Kubota Tractor Corporation
("Kubota") and, to make available for inspection and/or copying documents and various
materials, including, but not limited to, materials regarding the design, testing, manufacture, and
marketing of the Kubota Tractor Model No.: L2800 ("Product"); and
WHEREAS, Kubota contends that some of these documents, information and other
materials, including materials regarding the design, testing manufacturing, and marketing of the
Product are in whole or in part proprietary information, confidential business records, and/or
trade secrets, all of which is "competitively sensitive date" as hereinafter defined; and
WHEREAS, Kubota requires that the confidentiality of the documents and/or materials,
and the information contained in the documents and materials, as well as the confidentiality of
the fact of the existence of the documents and materials and their description and identity, be
maintained; and
WHEREAS, Plaintiff and her attorneys have agreed to comply with the letter and intent
of said confidentiality;

4839-0090-4983 .I

IT IS HEREBY STIPULATED THAT:
1.

At such time as Kubota delivers to Plaintiff and her attorneys any documents or

materials by way of discovery in this case, or divulges any documents or materials or any
information contained therein, Kubota shall designate as "confidential" any such documents,
materials or information it claims constitutes or contains trade secrets or confidential business
information.
2.

Plaintiff and/or her attorneys shall not give, show or otherwise directly or

indirectly disclose any such confidential documents, materials or information produced by
Kubota in this action, or the substance thereof, or the existence thereof, to any entity or person
except by Plaintiff or her attorneys in connection with and solely for this action.
3.

Any and all of Plaintiff's experts, consultants and/or counsel associated in this

litigation and any other individuals who have access to confidential documents and/or materials
and/or information subject to this Stipulation and Protective Order, or to the substance thereof, or
to any copies, prints, negatives or summaries thereof, shall be presented with a copy of this
Stipulation and Protective Order and shall execute a copy of this Stipulation and Protective
Order, and shall agree to be bound by its terms and conditions. Those experts, consultants,
counsel, and other individuals shall not give, show or otherwise directly or indirectly disclose
any of the confidential documents or materials or information subject to this Stipulation and
Protective Order, or the substance thereof, or the existence thereof, or any copies, prints,
negatives, or summaries thereof, to any entity or person, except as may be necessary in preparing
to render, or rendering, expert advice or assistance in this lawsuit only.
4.

At the conclusion of the work of such experts, consultants, counsel or other

persons as described in Paragraph 3 herein, all confidential documents and materials and all

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4839-0090-4983.1

copies, prints, negatives, and summaries thereof shall be returned to the attorneys who retained
the expert or consultant or otherwise provided access to the confidential documents and/or
materials and/or information. At the time of such re-delivery, an Affidavit in the form of
Exhibit A attached hereto shall be executed by such experts, consultants, counsel and/or other

persons who have had access to the confidential documents and/or materials and/or information,
who shall attest that they have complied with the provisions of this Stipulation and Protective
Order. Such Affidavit shall be returned to the attorneys who provided access to the confidential
documents and/or materials and/or information and be maintained by them. Upon completion of
the trial and any appeals in this action and the satisfaction of any judgment, or upon the dismissal
of the action or conclusion of any settlement, Plaintiff's attorneys shall provide to counsel for
Kubota all competitively sensitive data produced under the terms of this Stipulation and
Protective Order. Plaintiff's attorneys shall further provide to counsel for Kubota at such time of
re-delivery an Affidavit in the form of Exhibit A attached hereto representing compliance, as
outlined herein, with the terms of this Stipulation and Protective Order and all Affidavits
received by Plaintiff's counsel pursuant to this paragraph as well as a copy of all executed
Stipulations and Protective Orders executed by any consultant or testifying expert that had access
to the confidential information.
5.

The parties to this action and her attorneys agree that all" objections, including, but

not limited to, objections based on relevancy, materiality, and privilege, are reserved; and all
questions of admissibility may be asserted at the time of trial of any action in which such
confidential documents and/or materials are used or proffered should any such party deem it
proper.

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4839-0090-4983 .I

6.

Confidential documents and materials, as those terms are used herein, mean

information, including confidential and proprietary information, about Kubota's business,
Product, practices or procedures that, in the ordinary course of business, is not voluntarily
disclosed to the public or to third persons or entities who do not gave a need to know.
Documents or materials that concerns, reflect, embody or constitute the foregoing may include,
but shall not be limited to, correspondence, memoranda, notes, plans, specification, blueprints,
drawings, test reports, test procedures, test manuals, photographs, motion pictures, accident
reports, claims, videotapes, graphs, charts, financial and budget information, and deposition or
trial transcripts and exhibits thereto.

Confidential documents and materials shall be so

designated by prominent markings place on each document or item at or before the time the
document or item is divulged or produced for inspection. If Plaintiff or her attorneys require
more than one copy of any confidential document or material produced pursuant to this
Stipulation and Protective Order, they must ensure that each copy is made with the original red
marking designating the confidentiality of the document and/or material and the information
contained therein. Plaintiff and her attorneys shall limit the number of copies to that which is
absolutely necessary to prepare Plaintiffs cases adequately and shall ensure that copies are
returned to Plaintiffs attorneys and that unnecessary copies are destroyed. Any and all copies
shall be treated in accordance with the terms of this Stipulation and Protective Order.
7.

Plaintiff and/or her counsel shall have the right to contest any "confidential"

designation made by Kubota. Plaintiff and/or her counsel may object to the designation of
particular information as confidential material by notifying the producing party's counsel, by
identifying each of the documents or the information that they believe to be exempt, and by
specifying in detail the reason(s) why they believe each of the documents or information is

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4839-0090-4983.1

exempt. Within ten (10) days of the producing party's receiving the objection and identification,
the parties will confer and attempt to resolve whether the document or information should be
subject to the protection of this Stipulation and Protective Order. If the parties cannot agree, the
producing party shall file a Motion with the Court for a ruling whether the confidential material
to which an objection has been made shall be treated as confidential. Kubota shall bear the
burden of establishing that the information or document should be afforded confidential status.
If the producing party fails to make a Motion within twenty (20) days after the parties cannot

agree on the status of the information, the document or information will lose its confidential
protection. Any document or information that is submitted to counsel or this Court pursuant to
this Paragraph shall be treated as confidential material until the status of the document or
information is resolved.
8.

No party hereto shall be bound by this Stipulation as to any information that it

possessed prior to this action, unless the information was obtained from the other party under
circumstances requiring the first party to treat it as confidential.
9.

Any party claiming that information designated by the other party as confidential

has been in the possession of such first party or has been in the possession of the public prior to
disclosure of such information in discovery herein shall have the burden of proving such earlier
possession or such public knowledge of such information.
10.

This Stipulation shall be without prejudice to the rights of the parties in any other

action and applies solely to the above-captioned action.
11.

By this Stipulation the parties do not waive any rights they may possess to compel

further discovery responses or to object to any further discovery requests made by either party.

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12.

Any confidential documents or materials attached as an exhibit to any deposition

taken in this action, and any deposition testimony containing information from confidential
documents and materials, and any papers filed with the Court in this action, which include or
summarize any deposition transcripts, testimony or exhibits containing confidential information,
as described herein, shall be sealed and protected from disclosure pursuant to this Stipulation and
Protective Order; and, after the conclusion of this litigation, whether by judgment or settlement
or by any other means of dispute resolution, neither Plaintiff nor her attorneys nor any other
party hereto shall attach the proprietary of the sealing or protection of such confidential
documents and materials or any deposition, exhibits or papers filed with the Court. The use of
such confidential information during deposition in this action does not waive the terms of this
Stipulation and Protective Order.
13.

Any confidential documents and materials produced during discovery and/or

offered and/or admitted into evidence during pre-trial proceedings, trial or post-trial proceedings,
and any testimony relating to such confidential documents and materials, and any papers filed
with the Court in this action, which attach, include or summarize any such confidential
information, shall be sealed and protected from disclosure pursuant to this Stipulation and
Protective Order; and, after the conclusion of this litigation, whether by judgment or settlement
or by any other means of dispute resolution, neither Plaintiff nor her attorneys nor any other
party hereto shall attack the propriety of the sealing or protection of such confidential documents
and materials or evidence. Such productions and/or offerings and/or admission into evidence do
not waive the terms of this Stipulation and Protective Order.
14.

The terms of this Stipulation and Protective Order shall remain fully active until

released by written consent of Kubota. The Court shall retain jurisdiction over the parties, this

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4839-0090-4983.1

Stipulation and Protective Order, and recipients of confidential documents and materials, for the
sole purpose of enforcing this Stipulation and Protective Order and adjudicating claims of
breaches thereof and administering damages and other remedies related thereto. The provisions
of this Stipulation and protective Order shall continue to be binding as to the confidential
documents and materials produced pursuant to it.
IT IS SO STIPULATED.
DATED:

--~--=----c;c...~f\_,_._ _Li
J ___, 2014.

J.R arroll
Kutak Rock, LLP
234 East Millsap Road, Suite 400
Fayetteville, AR 72703-4099

Counsel for
Corporation

Defendant,

Kubota

Tractor

DATED: _ _
-5'_,am~.----'-/-=3;,..__ ___

Bruce cMath
ath Woods, P.A.
711 West Third Street
Little Rock, AR 72201

Counsel for Plaintiff, Leslie Ann Fallen, as
Administratrix of the Estate of Hayden Daniel
Fallen, Deceased, and Survivors

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4839-0090-4983.1

IT IS SO ORDERED.
Dated this

J(.pfflday of

Jifnuary ,2014.

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4839-0090-4983.1

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
WESTERN DIVISION
LESLIE ANN FALLEN, AS
ADMINISTRATRIX OF THE ESTATE
OF HAYDEN DANIEL FALLEN,
DECEASED, AND SURVIVORS

v.

PLAINTIFF

CASE NO.: 4:13-CV-387 SWW

KUBOTA TRACTOR CORPORATION

DEFENDANT

AFFIDAVIT REGARDING DOCUMENTS PROVIDED
PURSUANT TO STIPULATION AND PROTECTIVE ORDER REGARDING
CONFIDENTIALITY OF DOCUMENTS AND MATERIALS
I,
1.

, being duly sworn, upon my oath, depose and say:
I have been provided copies of, or access to, confidential documents, materials,

and information that are subject to a Stipulation and Protective Order Regarding Confidentiality
of Documents and Materials ("Stipulation and Protective Order") in the above-captioned action
(hereinafter" Confidential Data").
2.

I have read and complied with all of the provision of the Stipulation and

Protective Order entered into this action regarding the Confidential Data.
3.

In formulating my opinions or in preparing for and/or assisting in the trial of the

above-captioned action, I have provided the following individuals copies of, or access to, the
Confidential Data at the address stated:

4.

The individuals listed in Paragraph 3 are the only individuals to whom I provided

copies of, or access to, the Confidential Data.

4812-9519-4135.1

A

5.

Before providing copies of, or access to, the Confidential Data to the individuals

listed in Paragraph 3, I required that said individuals read a copy of the Stipulation and
Protective Order in this action.
6.

The individuals listed in Paragraph 3 have executed Affidavits stating that they

have complied with the terms of the Stipulation and Protective Order and have returned all
copies of Confidential Data and a copy of each such Affidavit is attached hereto.
7.

I have made no copies of the Confidential Data provided pursuant to the

Stipulation and Protective Order, other than those that have been returned to Plaintiffs' counsel.
8.

With the Affidavit, I have returned all copies of confidential documents and

materials provided to me in the above-captioned action pursuant to the Stipulation and Protective
Order and have returned all Affidavits of those individuals to whom I provided copies of, or
access to, the Confidential Data.
9.

After submitting this Affidavit and the attached Affidavit(s) Regarding

Confidential Data and all copies of confidential documents and materials to Plaintiffs' counsel,
pursuant to the requirements set forth in the Stipulation and Protective Order, I will not have any
copies of the Confidential Data.
10.

I have otherwise complied with all of the terms of the Stipulation and Protective

Order covering confidential documents and materials produced in the above-captioned action.

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4812-9519-4135.1

SUBSCRIBED AND SWORN to before me this _ _ day of _ _ _ _ _ _, 2014.

Notary Public
My Commission Expires on:

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