Kay et al v. Peak Water Systems LLC et al
PROTECTIVE ORDER. Signed by Judge D. P. Marshall Jr. on 2/27/2014. (jak)
IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
MARVIN AND LAURA KAY
CASE NO. 4:13-CV-487 DPM
PEAK WATER SYSTEMS, LLC; and
FOXBOROUGH ENERGY COMPANY, LLC
The Court holds that the following procedures and provisions shall apply to
discovery in this civil action (the "Action") in order to protect information of a
sensitive, confidential, proprietary, or legally protected nature, and the privacy
rights of the parties or certain non-parties. 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.
"Party" means any current plaintiff or defendant in this Action, and
any plaintiff, defendant, or other party that is joined in this Action.
"Non-Party" means any person or entity not a Party who produces
documents or other information or provides testimony in response to a subpoena or
other process in this Action.
"Material" is defined as documents, electronically stored information,
records, tangible materials, testimony, responses to discovery, and other
information produced by a Party or Non-Party in discovery in this Action.
"Confidential Material" is defined as Material that any Party or Non-
Party considers in good faith to be confidential information relating to: trade
secrets, research, development, strategic planning, financial, commercial,
confidential, sensitive or proprietary business, or personal information which, if
disclosed, might adversely affect the competitive position or business operations of
the Party or Non-Party producing the materials, or invade the privacy rights of any
person. Each Party or Non-Party that designates information or items for
protection under this Protective Order must take care to limit any designation to
specific material that qualifies under the appropriate standards.
The "Designator" is any Party or Non-Party who produces Material in
this Action and designates any such Material as "CONFIDENTIAL" in conformity
with Section II.
DESIGNATION OF MATERIALS AS "CONFIDENTIAL"
Any Party or Non-Party who produces Material in the course of
discovery in this Action may designate such Material as Confidential Material if
that Party or Non-Party believes in good faith that the Material satisfies the
definition of Confidential Material, as set forth in Paragraph I.D.
The Designator shall mark the word "CONFIDENTIAL" on the face of
each document and each page so designated at the time it is produced or served, or,
in the case of Confidential Material contained in or on media other than paper, by
affixing such a label to the information or by using its best efforts to identify the
information as Confidential Material.
In the event that a Party or Non-Party desires to designate specific
answers or responses to interrogatories or requests for admission as Confidential
Material, the Party or Non-Party shall insert the word "CONFIDENTIAL" in
brackets at the beginning of the specific answer or response.
In the case of depositions, designation of the portion of the transcript
(including exhibits) which contains Confidential Material shall be made within
fifteen business days after receipt of the transcript by stamping "CONFIDENTIAL"
on the pages that contain Confidential Material and notifying all Parties and the
deponent in writing of the page and line numbers which have been designated as
Confidential Material. In the absence of an agreement on the record or in writing,
or an order of the Court to the contrary, all deposition testimony shall be deemed
Confidential Material until the expiration of the fifteen-business-days period.
For purposes of this Action, no Party concedes that any Material
designated by any other Designator as Confidential Material should be treated as
Confidential Material. A Party shall not be obligated to challenge the propriety of
the designation of Material as "CONFIDENTIAL" at the time made, and the failure
to do so shall not preclude a later challenge in this or any other action. If a Party
challenges a designation, it shall give written notice to the Designator, and the
Party and the Designator shall attempt to resolve any challenge in good faith on an
informal basis ("meet and confer"). If the challenge cannot be informally resolved,
the Party challenging the designation may seek appropriate relief from the Court
through a Joint Report pursuant to the Scheduling Order; however, the burden of
proof shall be on the Designator. The Material shall continue to be treated as
Confidential Material until the issue relating to the propriety of the designation has
Any Designator may, at any time, withdraw the "CONFIDENTIAL"
designation of any Material produced by that Desiglator.
The inadvertent failure to designate or rithhold any Material as
confidential will not be deemed to waive a later clair as to its confidential nature,
or to preclude the producing Party or Non-Party fro~ designating the Material as
confidential at a later date in writing and with particularity. The Material shall be
treated by the receiving Party as Confidential Material from the time the receiving
Party is notified in writing of the change in the
III. USE AND HANDLING OF CONFIDENTIAL !MATERIAL
Confidential Material shall be used only for purposes of preparing for
and litigating this Action (including appeals) and not for any other action or other
Access to Confidential Material shall be closely controlled and limited
to individuals who have a demonstrable and bona fide need to review it.
Confidential Material shall not be revealed or disclosed, directly or indirectly, in
any manner or in any form, to any person, entity, or judicial tribunal other than:
Counsel of record and any other counsel for the Parties in this
Action, including counsel for insurers for the claims involved in
this Action, members of their firms and associates, associate
attorneys, contract lawyers, paralegals, clerical and other
employees or agents of such counsel who are assisting in the
conduct or management of this Action, insurers and reinsurers
of any Party who have a need with respect to this specific Action
to review this information;
Party deponents and litigation control group personnel for this
The United States District Court, the Court of Appeals, the
Supreme Court of the United States, court personnel, court
reporters, and any jury empanelled in this Action;
Third party deponents and trial witnesses in this Action and
their counsel to the extent necessary for purposes of this Action;
Consultants, experts, and outside litigation support personnel
retained by any Party to this Action to assist the Party in the
preparation or litigation of this Action;
Any mediator retained by the Parties or appointed by the Court,
and employees of such mediator who are assisting in the conduct
of the mediation;
The person or entity that wrote or received the document or
gave the testimony designated as "CONFIDENTIAL"; and
In-house counsel of any Party, and paralegal, clerical, and other
employees assisting in-house counsel;
Others, if the Designator so agrees in writing or, for good cause
shown, the Court so permits.
Before any person described in Paragraphs III.B.5, III.B.6, and III.B.9
is given access to Confidential Material, the person shall review this Protective
Order and agree in writing (by signing the Acknowledgement attached as Exhibit A)
to be bound by this Protective Order. A copy of the Acknowledgement, together with
a list of Confidential Material disclosed to the person and the date of disclosure,
shall be retained by counsel disclosing Confidential Material until the conclusion of
this litigation, including all appeals.
If Confidential Material is to be disclosed during a deposition or trial,
the agreement to be bound and consent to jurisdiction may be made on the record
and under oath, rather than in writing. No person to whom Confidential Material
is disclosed may disclose Confidential Material to any person other than those
persons described in Paragraph III.B., above.
All persons who have access to Confidential Material at any time shall
take all precautions necessary to prohibit access to the Confidential Material other
than as provided for herein.
Any summaries or copies of Confidential Material shall bear the
appropriate legend set forth in Paragraph II.B., above, and shall be subject to the
terms of this Protective Order to the same extent as the information or document
from which such summary or copy is made.
No Party or Non-Party shall file with the Court in this Action
documents, quotations from documents, or summaries or tabulations of documents,
which have been designated as Confidential Material without first obtaining leave
of Court to file the Confidential Material under seal, or written agreement of the
Designator. Written agreement of the Designator(s) may be given to the receiving
Party to file a document containing Confidential Material not under seal, in a
redacted form, if the Designator(s) identifies in writing the Confidential Material to
be redacted, and the receiving Party redacts all such Confidential Material prior to
filing the document. The Parties acknowledge that this Protective Order creates no
entitlement to file Confidential Material under seal. If any Party wishes to file
Material under seal with the Court that incorporates or discloses Confidential
Material, the Party must obtain prior leave of Court. After receiving Court
approval, the Party shall file the submission under seal.
Upon termination of this Action, whether by judgment, order,
agreement, or otherwise, each Party, counsel, and other persons having possession
of Confidential Material shall destroy all Confidential Material obtained from
another Party or Non-Party and shall, upon request, provide written certification,
under oath, of such destruction to the Designator including all copies provided by
the Party or Non-Party to any person described in Paragraphs III.B.5, IIIB.6, and
III.B.9. This requirement shall not apply to Confidential Materials necessarily
included within pleadings or records of proceedings.
Nothing contained in this Protective Order shall restrict or limit any
Party's right to present Confidential Material to a jury or a court during a trial or
other hearing in this Action, and the Parties and Non-Parties shall take reasonable
steps to maintain the confidentiality of information at a hearing or at trial in the
manner as the Court may direct. The use of Confidential Material at trial shall be
governed by the pretrial order.
If any Party or Non-Party receives discovery, a subpoena, or Order
demanding the production of any Material designated in this Action as
"CONFIDENTIAL," the Party or Non-Party receiving the subpoena or Order shall,
within five business days of the receipt of the request and not less than ten business
days before the production of any Confidential Material, notify the Designator of the
subpoena or Order in writing. The receiving Party or Non-Party shall also, within
five business days of the receipt of the request, notify the party issuing the
discovery, subpoena, or Order of the existence of this Order covering Confidential
Material. The Party or Non-Party receiving a request to produce Confidential
Material is not relieved of its obligations to comply with lawful subpoenas or other
Order, and any efforts by the designating party to oppose production must occur
within the time limitations imposed for complying with the subpoena or Order.
This Protective Order shall not apply to information or tangible items
obtained by means independent of production by a Party or Non-Party through
discovery or other proceedings in this Action or in some other lawful manner. The
restrictions set forth in this Protective Order shall not apply to any Material which,
at the time ofproduction, is within the public domain, or which the Designator later
releases into the public arena.
Neither this Protective Order, production or disclosure of Material
under this Protective Order, nor designation or failure to designate Material under
this Protective Order, shall constitute a waiver of the right of the Designator to
maintain the trade secret status or confidentiality of that Material in other
This Protective Order may be modified or amended by agreement of
the Parties with the approval of the Court. To the extent that the Parties fail to
agree on a modification proposed by any Party or Non-Party, nothing contained
herein shall be deemed to preclude any Party or Non-Party from seeking relief from
the Court by Joint Report, for good cause shown, for a ruling that modifies this
Protective Order in any respect.
This Protective Order shall not be construed as waiving any right to
assert a claim of privilege or objection as to relevance, admissibility, or other
grounds for not producing Material.
This Protective Order shall remain in effect and continue to be binding
for one year after the conclusion of this Action, and this Court shall retain
jurisdiction to enforce this Protective Order during that period.
This Protective Order ,shall operate retroactively to the inception of
this Action. Any Material produced before the signing of this Protective Order shall
be treated as Confidential upon designation as set forth above.
INADVERTENT DISCLOSURE OF PROTECTED OR PRIVILEGED
The inadvertent disclosure of Material covered by the attorney-client
privilege or work-product protection shall be governed by Federal Rule of Evidence
502 and this Protective Order.
If, in connection with the pending litigation, a Party or Non-Party (the
"Disclosing Party") inadvertently discloses information subject to a claim of
attorney-client privilege or work-product protection ("Inadvertently Disclosed
Information"), the disclosure of the Inadvertently Disclosed Information shall not
constitute or be deemed a waiver or
of any claim of privilege or work-
product protection that the Disclosing Party would otherwise be entitled to assert
with respect to the Inadvertently Disclosed Information and its subject matter.
If a claim of inadvertent disclosure is made by a Disclosing Party with
respect to Inadvertently Disclosed Information, the Parties shall, within five
business days, return or destroy all copies of the Inadvertently Disclosed
Information and provide a certification of counsel that all Inadvertently Disclosed
Information has been returned or destroyed.
Within thirty days of the notification that Inadvertently Disclosed
Information has been returned or destroyed, or within a different time upon written
agreement of the Parties or Order of the Court, the Disclosing Party shall produce a
privilege log with respect to the Inadvertently Disclosed Information.
The Parties agree that pursuant to Rule 502(d): (1) a statement by a
Disclosing Party that production of Inadvertently Disclosed Information was
inadvertent shall be dispositive; (2) the Parties have taken reasonable steps to
prevent disclosure of privileged material; and (3) a Disclosing Party shall be deemed
to have taken prompt and reasonable steps to rectify the Inadvertently Disclosed
Information if it notifies the receiving Party within fourteen business days of it
learning of the inadvertent production.
Nothing in this Protective Order shall limit the right of any Party to
file a Joint Report seeking an order compelling production of Inadvertently
Disclosed Information, or an in-camera review of the Inadvertently Disclosed
LIMITS OF THIS PROTECTIVE ORDER
Nothing contained in this Protective Order, and no action taken pursuant to
it, shall prejudice the right of any Party or Non-Party to contest the alleged
relevancy, admissibility, or discoverability of the Material sought. Nor shall this
Protective Order prevent any Party or Non-Party from objecting to discovery that it
believes to be otherwise improper.
United States Districlf Court Judge
ACKNOWLEDGEMENT OF PROTECTIVE ORDER
AND AGREEMENT TO BE BOUND
I hereby acknowledge that I, __________, am about to receive
information that is being supplied by one or more of the parties in the case of Kay,
et al. u. Peah Water Systems, LLC and Foxborough Energy Company, LLC, pending
in the United States District Court for the Eastern District of Arkansas, Western
Division. I understand that the information is or may be subject to the terms of a
Protective Order entered by the Court in said case. I hereby certify my
understanding that such information is being provided to me pursuant to the terms
and restrictions of the Protective Order. I have been given a copy of the Protective
Order, have read it, and agree to be bound by its terms. I understand that
information and any documentary material covered by the Protective Order (which
includes any notes or other record that I make of this material) shall not be
disclosed to others, except those listed in paragraph III. B. of the Protective Order
and under the terms set forth therein. I understand that upon termination of this
Action or termination of my services in this Action, whichever is sooner, I have an
absolute duty to destroy all Confidential Material (as defined in the Protective
Order) and shall, upon request, provide written certification, under oath, of this
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