Hunter et al v. Inliten LLC et al
AGREED PROTECTIVE ORDER re 13 14 defendants' unopposed motions. Signed by Judge Kristine G. Baker on 2/10/2014. (mmd)
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF ARKANSAS
LARRY HUNTER and CHRIS HUNTER
Case No. 4:13-cv-00511 KGB
INLITEN, L.L.C., OSRAM SYLVANIA, INC.,
and HOME DEPOT U.S.A., INC., d/b/a THE
AGREED PROTECTIVE ORDER
Before the Court are defendants’ unopposed motions for Protective Order (Dkt. Nos. 13,
14). Each party and each counsel of record stipulate and move the Court for a Protective Order
pursuant to Rule 26(c) of the Federal Rules of Civil Procedure concerning the treatment of
Confidential Information (as hereinafter defined). Based on the stipulation of counsel and
parties, the Court finds good cause to enter this Order.
It is hereby ordered that:
In this action, at least one of the Parties has sought and/or is seeking
Confidential Information as defined in Paragraph 2 below. The Parties also anticipate seeking
additional Confidential Information during discovery and that there will be questioning
concerning Confidential Information in the course of depositions, hearings and other
proceedings. The Parties assert the disclosure of such Confidential Information outside
of this litigation could result in significant injury to one or more of the parties’ business or
privacy interests. The parties have entered into this Stipulation and request the Court to
enter this Protective Order for the purpose of preventing the disclosure and use of Confidential
Information except as set forth herein and prohibiting the parties from using or disclosing the
Confidential Information for any purpose other than this litigation.
“Confidential Information” means any document, file, portions of
files, transcribed testimony, or response to a discovery request, including any extract, abstract,
chart, summary, note, or copy made therefrom and designated by one of the parties in the
manner provided in Paragraph 5 below. “Confidential Information” includes:
trade secret or other confidential research, development, or commercial
information, as such terms are used in Fed. R. Civ. P. 26(c); or
data in which the Producing Party (defined below) or a third party
claims a common law privacy interest, statutory privacy interest, or
regulatory privacy interest.
“Producing Party” means the party that produces Confidential Information.
“Receiving Party” means the party receiving Confidential Information.
Designation of Material
Where Confidential Information is produced, provided, or otherwise disclosed by
a party in response to any discovery request or otherwise, it will be designated in the following
By imprinting the word “Confidential” on each page of the
document produced, in such a manner as will not
interfere with the legibility
With respect to electronically stored information that is not
Bates numbered, by imprinting the word “Confidential” on the compact disc
(or other media) containing the material produced or by including the word
“Confidential” in the file name;
By imprinting the word “Confidential” next to or above any response to a
discovery request; or
With respect to transcribed testimony or deposition exhibits, by
giving written notice to opposing counsel designating testimony or exhibits as
“Confidential” no later than thirty calendar days after receipt of the final
transcribed testimony or by designating on the record at the deposition such
portions as “Confidential.”
In order to permit time for such
designation, all deposition testimony and deposition exhibits shall be
treated as “Confidential” for thirty days after the date of the receipt of the final
Challenge to Designation
Information from Public and Other Rightful Sources.
documents or information as Confidential Information shall not be effective as to
information obtained from the public domain or from sources (other than the Producing
Party) who were rightfully in possession of the information, regardless of whether such
information is also contained in material designated as Confidential Information by a
Challenge to Designation. Any party may challenge the designation
of Confidential Information within 120 days of its production. A failure of a party to
challenge expressly a designation of Confidential Information shall not constitute a waiver
of the right to assert at any subsequent time that the material designated does not
constitute Confidential Information.
Procedures for Challenge. Any Party that disagrees with the designation of any
information as Confidential Information may notify the opposing Party. The designating
Party shall then have 30 days from receipt of the notification to move the Court for an Order
upholding the designation. The burden of proving that the designation is proper shall be
upon the designating party.
The designated information shall be treated as Confidential
Information until the Court rules on the designating party’s timely motion. If the designating
party fails to move the Court in accordance with this paragraph, or if the Court finds the
designation of Confidential Information to have been inappropriate, the challenged
designation shall be considered rescinded. The parties thereafter shall not be required to
treat the information as Confidential Information.
Restrictions on the Use of Designated Material
All Confidential Information provided by a Party in response to a
discovery request or in transcribed testimony shall be subject to the following restrictions:
It shall not be disclosed, revealed, leaked to the media, or be used for any
other purpose or business whatsoever except the preparation and trial of this
It shall not be communicated or disclosed by any party’s counsel or a
party in any manner, either directly or indirectly, to anyone except: (1) the Court
and Court personnel, (2) mediators, (3) the author, addressee, or recipient of the
document, (4) the custodian of the document, (5) employees of the entity
producing the document, (6) persons (and their counsel) whom counsel for
the parties believe in good faith to have, or have had, prior access to such
Confidential Information, (7) those individuals employed by the law firms
representing the parties, (8) designated testifying or non-testifying experts,
including employees of the firm with which the expert or consultant is
associated to the extent necessary to assist the expert’s work in this action,
(9) rebuttal experts, (10) consultants, (11) necessary third party vendors for
purposes of this case (e.g., copying services, electronic discovery services,
stenographers, etc.); and
It shall not be communicated or disclosed by the parties, their
counsel and/or the persons employed by the law firms representing the
parties, unless an affidavit in the form of Exhibit A has been signed by the person
receiving such communications or disclosures with exception of the
individuals identified by the following subsections listed in Paragraph 9(b)
above: (1), (2), (3), (4), (5), (7), and (11), for whom no affidavit in the form
of Exhibit A is required.
Individuals authorized to review Confidential Information pursuant to
this Protective Order shall hold Confidential Information in confidence and shall not divulge
such information, either verbally or in writing, to any other person, entity, or government
agency unless compelled to do so by Court Order or as otherwise permitted by this Protective
Counsel for the Receiving Party shall be responsible for assuring compliance with
the terms of this Protective Order with respect to persons to whom such
Confidential Information is disclosed and shall obtain and retain the original affidavits signed
by qualified recipients of such information.
No copies of Confidential Information shall be made except by or on behalf
of counsel in this litigation and such copies shall be made and used solely for purposes
of this litigation and pursuant to this Protective Order.
During the pendency of this litigation, counsel shall retain custody of Confidential
Information and copies made therefrom.
Motions to Seal
In the event Confidential Information is used in any court filing or proceeding
in this action, including but not limited to its use at trial, it shall not lose its confidential
status as between the parties through such use. In the event it is necessary for the
parties to file Confidential Information as well as briefs quoting or discussing confidential
information with the Court in connection with any proceeding or motion, the Confidential
Information shall be filed under seal in accordance with Court rules, policies, and procedures,
including but not limited to CM/ECF Administrative Policies and Procedures Manual for Civil
Disclosure of Privileged or Protected Information
If documents or information subject to a claim of attorney-client privilege, work
product immunity, or any other privilege or immunity, the production of which should not
be made to any party, is inadvertently produced to such party, the procedures of Fed. R.
Civ. P. 26(b)(5)(B) shall apply.
Failure to designate any information as Confidential 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 30 days of discovery of the failure. At such time,
arrangements shall be made for the return of the information that should have been
marked Confidential to the Producing Party to substitute properly labeled copies. The
party failing to designate such information as Confidential Information must notify the
Receiving Party in writing of such failure. The Receiving Party will take reasonable steps to
see that the information is thereafter treated in accordance with the designation. No person or
party, however, shall incur any liability hereunder with respect to any disclosure that
occurred prior to receipt of written notice of a belated designation.
Completion of Litigation
The termination of this action shall not relieve counsel or other persons obligated
hereunder from their responsibility to maintain the confidentiality of Confidential
Information pursuant to this Protective Order, and the Court shall retain continuing
jurisdiction to modify, amend, or enforce the terms of this Protective Order.
The provisions of this Protective Order shall, absent written permission of the
Producing Party or further order of this Court, continue to be binding throughout and after the
conclusion of the case, including, without limitation, any appeals therefrom. Unless all of
the parties agree in writing otherwise, 45 days after receiving notice of the entry of an
order, judgment, or decree finally disposing of all litigation in which Confidential
Information was produced, all Receiving Parties shall assemble and return to any
Producing Party or, alternatively, destroy and provide certification of destruction, all
Confidential Information received directly or indirectly from the Producing Party, including all
copies thereof and all summaries and/or other materials containing or disclosing such
Confidential Information. The return of such material shall be acknowledged by the Producing
Party in writing.
Nothing in this Protective Order shall preclude any party from filing a
motion seeking further or different protection from the Court under Rule 26(c) of the
Federal Rules of Civil Procedure, or from filing a motion with respect to the manner in
which Confidential Information shall be treated at trial.
Nothing in this Protective Order shall preclude any party from challenging the
Confidential Information designation of any Producing Party with the Court.
Nothing in this Order shall prevent a party from seeking an Order compelling
documentation under the Federal Rules of Civil Procedure.
Nothing in this Order shall be construed to affect the use of or admissibility
of any document, material, or information at any trial or hearing.
If another Court or an administrative agency subpoenas or orders production of
Confidential Information which a Receiving Party has obtained under the terms of this Protective
Order, the Receiving Party shall promptly notify the Producing Party before complying with
Notwithstanding anything to the contrary herein, any party may freely disclose its
own Confidential Information material in any manner it chooses, including to third
parties, without impairing the obligations imposed by this Protective Order upon others.
The parties agree that this agreement does not constitute a global waiver by any
party as to whether any Confidential Information is discoverable, but rather, is a mechanism
by which Confidential Information that is disclosed is prevented from being used for any
purpose outside this litigation by any party.
The Parties and any other person subject to the terms of this Agreement, including
permitted recipients of Confidential Information pursuant to this Agreement, agree that the
United States District Court for the Eastern District of Arkansas, Western Division, shall have
exclusive jurisdiction over all persons producing or receiving information under this Agreement
for the purpose of enforcing this Agreement.
SO ORDERED this 10th day of February, 2014.
Kristine G. Baker
United States District Judge
EXHIBIT A TO AGREED PROTECTIVE ORDER
AGREEMENT CONCERNING MATERIAL COVERED BY AN ORDER
ENTERED IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF ARKANSAS
The undersigned hereby acknowledges that he or she has read the attached Agreed
Protective Order entered in the United States District Court for the Eastern District of Arkansas,
Western Division, in the action entitled Larry Hunter and Chris Hunter, plaintiffs, v. Inliten,
L.L.C., OSRAM Sylvania, Inc., and Home Depot U.S.A, Inc., d/b/a The Home Depot, defendants,
Case No. 4:13-cv-00511 KGB, and understands the terms thereof and agrees to be bound by such
Typed or printed name
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