May et al v. BHP Billiton Petroleum (Fayetteville) LLC
Filing
48
AMENDED PROTECTIVE ORDER. Signed by Judge D. P. Marshall Jr. on 12/11/2014. (jak) (Additional attachment(s) added on 12/12/2014: # 1 Main Document - Correct) (thd).
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF ARKANSAS
EASTERN DIVISION
KENNETH JOE MAY AND MARY ANN MAY and
STEVE SNOWDEN AND CINDY SNOWDEN
v.
PLAINTIFFS
CASE NO. 4:13-CV-0494-DPM
BHP BILLITON PETROLEUM (FAYETTEVILLE) LLC
DEFENDANT
AMENDED PROTECTIVE ORDER
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.
I.
DEFINITIONS
A.
"Party" means any current plaintiff or defendant in this Action, and any plaintiff,
defendant, or other party that may be joined in this Action.
B.
"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.
C.
"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.
D.
"Confidential Material" is defined as Material that any Party or Non-Party
considers in good faith to contain confidential, non-public information of a commercially sensitive
nature.
Each Party or Non-Party that designates information or items for protection under this
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Protective Order must take care to limit any designation to specific material that qualifies under
the appropriate standards.
E.
"Highly Confidential -Attorneys' Eyes Only Material" is defined as Material that
any Party or Non-Party considers in good faith to be highly confidential information relating to:
trade secrets, research, development, strategic planning, financial, commercial, 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.
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.
F.
The "Designator" is any Party or Non-Party who produces Material in this Action
and designates any such Material as "CONFIDENTIAL" or "HIGHLY CONFIDENTIAL ATTORNEYS' EYES ONLY" in conformity with Section II.
G.
"Joint Report" shall constitute a report of five-pages or less authored jointly by the
Parties explaining a discovery impasse or disagreement that remains after counsels have conferred
in good faith but prior to the filing of a motion to compel. Parties may attach documents to the
report, as necessary. If a dispute arises during a deposition, a joint telephone call to chambers by
counsels shall act in place of such report.
II.
DESIGNATION OF MATERIALS AS "CONFIDENTIAL" OR "CONFIDENTIAL
- ATTORNEYS' EYES ONLY"
A.
Any Party or Non-Party who produces Material in the course of discovery in this
Action may designate such Material as Confidential Material or Highly Confidential -Attorneys'
Eyes Only Material if that Party or Non-Party believes in good faith the Material satisfies the
definitions set forth in Section I.
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B.
The Designator shall mark the word "CONFIDENTIAL" or "HIGHLY
CONFIDENTIAL - ATTORNEYS' EYES ONLY" 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 or Highly
Confidential - Attorneys' Eyes Only 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 or Highly Confidential -Attorneys' Eyes Only Material.
C.
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 NonParty shall insert the words "CONFIDENTIAL" or "HIGHLY CONFIDENTIAL ATTORNEYS' EYES ONLY" in brackets at the beginning of the specific answer or response.
D.
In the case of depositions, designation of the portion of the transcript (including
exhibits) which contains Confidential Material or Highly Confidential - Attorneys' Eyes Only
Material shall be made within fifteen business days after receipt of the transcript by stamping
"CONFIDENTIAL" or "HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY" on the
pages that contain the Material and notifying all Parties and the deponent in writing of the page
and line numbers which have been designated as Confidential Material or Highly Confidential Attorneys' Eyes Only 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.
E.
For purposes of this Action, no Party concedes that any Material designated by any
other Designator as Confidential Material or Highly Confidential-Attorneys' Eyes Only Material
should be treated as such. A Party shall not be obligated to challenge the propriety of the
designation of Material as "CONFIDENTIAL" or "HIGHLY CONFIDENTIAL-ATTORNEYS'
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EYES ONLY" 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 or Highly Confidential -Attorneys'
Eyes Only Material until the issue relating to the propriety of the designation has been resolved.
F.
Any Designator may, at any time, withdraw the "CONFIDENTIAL" or "HIGHLY
CONFIDENTIAL -ATTORNEYS' EYES ONLY" designation of any Material produced by that
Designator.
G.
The inadvertent failure to designate or withhold any Material as confidential will
not be deemed to waive a later claim as to its confidential nature, or to preclude the producing
Party or Non-Party from 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 or
Highly Confidential - Attorneys' Eyes Only Material from the time the receiving Party is notified
in writing of the change in the designation.
III.
USE AND HANDLING OF CONFIDENTIAL MATERIAL AND HIGHLY
CONFDIENTIAL -ATTORNEYS' EYES ONLY MATERIAL
A.
Confidential Material or Highly Confidential-Attorneys' Eyes Only Material shall
be used only for purposes of preparing for and litigating this Action (including appeals) and not
for any other action or other purpose.
B.
Access to Confidential Material shall be closely controlled and limited to
individuals who are listed below and have a demonstrable and bona fide need to review it.
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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:
1.
2.
In-house counsel of any Party, and paralegal, clerical, and other
employees assisting in-house counsel;
3.
To the extent necessary, Parties, Party deponents and trial witnesses
and their respective counsels in this Action;
4.
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;
5.
Third party deponents and trial witnesses in this Action and their
counsel to the extent necessary for purposes of this Action;
6.
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;
7.
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;
8.
The person or entity that wrote or received the document or gave
the testimony designated as CONFIDENTIAL MATERIAL; and
9.
C.
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 these 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;
Others, if the Designator so agrees in writing or, for good cause
shown, the Court so permits.
Before any person described in Paragraphs IIl.B.5, IIl.B.6, and 111.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
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and the date of disclosure, shall be retained by counsel disclosing Confidential Material until the
conclusion of this litigation, including all appeals. ,
D.
Access to Highly Confidential - Attorneys' Eyes Only Material shall be strictly
controlled and limited to persons who are listed below and have a demonstrable and bona fide need
to review it. Highly Confidential - Attorneys' Eyes Only Material and all copies thereof shall only
be kept by those listed below in secured offices under lock-and-key and-if electronic data--on
secured, password-protected computers and networks. Highly Confidential - Attorneys' Eyes
Only 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:
1. 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 these
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;
2. 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;
3. Consultants and experts retained by any Party to this Action to assist
the Party in the preparation or litigation of this Action;
4. The person(s) or entity that authored or received the document or gave
the testimony designated as "HIGHLY CONFIDENTIAL"; and
5. Others, including without limitation Parties and Party deponents, if the
Designator so agrees in writing, consent to which shall not be
unreasonably withheld, or, for good cause shown, the Court so permits.
E.
Before any person described in Paragraphs III.D.3 and 111.D.5 is given access to
Highly Confidential - Attorneys' Eyes Only Material, the person's area of expertise,
qualifications, or both that would reasonably entitle him or her to access the Highly Confidential
- Attorneys' Eyes Only Material must be disclosed to the Designator, and he or she shall review
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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
Highly Confidential - Attorneys' Eyes Only Material disclosed to the person and the date of
disclosure, shall be retained by counsel disclosing Highly Confidential - Attorneys' Eyes Only
Material until the conclusion of this litigation, including all appeals.
In addition to the
requirements set forth in Fed. R. Civ. P. 26, the identity of all persons (including all consultants
and non-testifying experts) who have been provided access to Highly Confidential - Attorneys'
Eyes Only Material must be disclosed to the Designator promptly following the discovery deadline
set by the Final Scheduling Order.
F.
If Confidential Material or Highly Confidential - Attorneys' Eyes Only Material is
to be disclosed during a deposition or trial, advance notice shall be given such that the portion of
the hearing or deposition is restricted to persons who may receive the information under this
Amended Protective Order. 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. No person to whom Highly Confidential-Attorneys' Eyes Only Material
is disclosed may disclose Highly Confidential-Attorneys' Eyes Only Material to any person other
than those persons described in Paragraph IIl.D.
G.
All persons who have access to Confidential Material or Highly Confidential -
Attorneys' Eyes Only Material at any time shall take all precautions necessary to prohibit access
to the Material other than as provided for herein.
H.
Any summaries or copies of Confidential Material or Highly Confidential -
Attorneys' Eyes Only Material shall bear the appropriate legend set forth in Paragraph 11.B., above,
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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. For Highly Confidential-Attorneys' Eyes
Only Material, only five copies, inclusive of electronic and hard copies, shall exist at any given
time and the location of each of these copies shall be logged by the receiving attorney.
I.
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 or Highly Confidential - Attorneys' Eyes Only Material without first
obtaining leave of Court to file the 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 or Highly Confidential - Attorneys' Eyes Only Material not
under seal, in a redacted form, if the Designator(s) identifies in writing the Confidential Material
or Highly Confidential - Attorneys' Eyes Only Material to be redacted, and the receiving Party
redacts all such Confidential Material or Highly Confidential - Attorneys' Eyes Only Material
prior to filing the document. The Parties acknowledge that this Protective Order creates no
entitlement to file Confidential Material or Highly Confidential - Attorneys' Eyes Only Material
under seal. If any Party wishes to file Material under seal with the Court that incorporates or
discloses Confidential Material or Highly Confidential - Attorneys' Eyes Only Material, the Party
must obtain prior leave of Court. After receiving Court approval, the Party shall file the submission
under seal.
J.
Upon termination of this Action, whether by judgment, order, agreement, or
otherwise, each Party, counsel, and other persons having possession of Confidential Material or
Highly Confidential - Attorneys' Eyes Only Material shall destroy all Confidential Material or
Highly Confidential - Attorneys' Eyes Only Material obtained from another Party or Non-Party
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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, IIl.B.6, and 111.B.9 and 111.D.4 and 111.D.6. This requirement shall not apply
to Confidential Materials or Highly Confidential - Attorneys' Eyes Only Material necessarily
included within pleadings or records of proceedings. In addition, a copy of all Acknowledgements,
together with a list of Confidential Material and/or Highly Confidential - Attorneys' Eyes Only
Material disclosed to each individual and the date of disclosure, shall be produced to the
Designator.
IV.
GENERAL PROVISIONS
A.
Nothing contained in this Protective Order shall restrict or limit any Party's right to
present Confidential Material or Highly Confidential -Attorneys' Eyes Only 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 or Highly Confidential - Attorneys'
Eyes Only Material at trial shall be governed by the pretrial order.
B.
If any Party or Non-Party receives discovery, a subpoena, or Order demanding the
production of any Material designated in this Action as "CONFIDENTIAL" or "CONFIDENTIAL
- ATTORNEYS' EYES ONLY," 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 or Highly Confidential - Attorneys' Eyes Only
Material, notify the Designator of the subpoena or Order in writing. The receiving Party or NonParty 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 or
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Highly Confidential-Attorneys' Eyes Only Material. The Party or Non-Party receiving a request
to produce Confidential Material or Highly Confidential - Attorneys' Eyes Only 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.
C.
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 of production, is within the public domain, or
which the Designator later releases into the public arena.
D.
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 contexts.
E.
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.
F.
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.
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G.
This Protective Order shall remain in effect and continue to be binding for one (1)
year after the conclusion of this Action, and this Court shall retain jurisdiction to enforce this
Protective Order during that period.
H.
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
or Highly Confidential - Attorneys' Eyes Only upon designation as set forth above.
V.
INADVERTENT DISCLOSURE OF PROTECTED OR PRIVILEGED
INFORMATION
A.
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.
B.
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 workproduct protection ("Inadvertently Disclosed Information"), the disclosure of the Inadvertently
Disclosed Information shall not constitute or be deemed a waiver or forfeiture 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.
C.
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.
D.
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
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Inadvertently Disclosed Information.
E.
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.
F.
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 incamera review of the Inadvertently Disclosed Information.
VI.
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 NonParty from objecting to discovery that it believes to be otherwise improper.
SO ORDERED.
United States District Court Judge
Date
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Exhibit A
ACKNOWLEDGEMENT OF PROTECTIVE ORDER
ANDAGREEMENTTOBEBOUND
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 KENNETH JOE
MAY AND MARY ANN MAY and STEVE SNOWDEN AND CINDY SNOWDEN, v. BHP BILLITON
PETROLEUM (FAYETTEVILLE) LLC, Case No. 4:13-CV-0494-DPM, pending in the United
States District Court for the Eastern District of Arkansas, Eastern Division.
I certify that I do not own any interest in, am not employed by, and am not affiliated with any
competitor of BHP BILLITON PETROLEUM (FAYETTEVILLE) LLC, its parent and
subsidiaries, or any entity whose business includes exploration, development, production,
gathering, or marketing of hydrocarbons within the United States. I further certify that I am
unaware of any actual or potential interest that may create the appearance of a conflict of interest
with the parties, and, in the event I learn of this kind of interest or conflict, I will immediately
notify the appropriate parties in writing.
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. and lll.D. 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
destruction.
Signature:
Print Name:
Date:
13
S. Third St., Ste. 2
Heber Springs, Arkansas 72 43
Tel: (501) 362-0055
Fax: (501) 362-0059
rhmays@richardmayslawfirm.com
julie@opgmrlaw.com
PPGMR LAW, PLLC
P.O. Box 251618
Little Rock, Arkansas 72225-1618
Tel: (501) 603-9000
Fax: (501) 603-0556
-andQUATTLEBAUM, GROOMS,
TULL & BURROW PLLC
111 Center Street, Suite 1900
Little Rock, Arkansas 72201
Tel: (501) 379-1700
Fax: (501) 379-1701
guattlebaum@ggtb.com
Attorneys for Defendant BHP BILUTON PETROLEUM (FAYETTEVIUE) LLC
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