Hicks Dowty MCauley & Schell Inc v. Manor at Benton LLC et al
PROTECTIVE ORDER signed by Judge Susan Webber Wright on 6/22/2016. (mef)
US DISfl~ICT COURT
EASTEf~N DIS rn1c l Al~KANSAS
JUN 2 2 2016
IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS JAMES~mu~CLERK
111 DEP CLERK
HICKS, DOWTY, MCCAULEY & SCHEEL, INC.
and RICK MOONEY CONSTRUCTION, INC.
CASE NO. 4:15-CV-787-SWW
THE MANOR AT BENTON, LLC
and THE DESIGN GROUP, INC.
The Court holds that the following procedures and provisions shall apply to
discovery in the above-captioned civil action (the "Action") in order to protect
information of a sensitive, confidential, proprietary and/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 (including
those listed in the caption above), and any plaintiff, defendant, or other party that may be
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 such
materials, or invade the privacy rights of any person. Confidential Material includes any
Customer Proprietary Network Information. Each Party or Non-Party that designates
information or items for protection under this Protective Order must take care to limit any
such 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
DESIGN ATION 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 NonParty believes in good faith that the Material satisfies the definition of Confidential
Material, as set forth in Paragraph l.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
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 15
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 aforementioned 15 business days.
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 subsequent 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; 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 been
Any Designator may, at any time, withdraw the "CONFIDENTIAL"
designation of any Material produced by that Designator.
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 such 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 designation.
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 purpose.
Access to Confidential Material shall be closely controlled and limited to
individuals who have a demonstrable and bona fide need to review it.
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 and/or management of this action; auditors,
regulators, insurers and reinsurers of any Party who have a
need to review such information;
Party deponents, current and former employees, officers,
members, or directors of any Party or its affiliate who are
assisting in the conduct of this Action;
The United States District Court for the Eastern District of
Arkansas, Western Division, the Eighth Circuit Court of
Appeals, the Supreme Court of the United States, court
personnel, court reporters, and any jury empanelled in this
Third party deponents and trial witnesses in this Action and
their counsel for purposes of this Action;
Consultants, experts, and outside litigation support personnel
retained by counsel for any Party to this Action to assist the
Party in the preparation and/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 111.B.5, 111.B.6, and 111.B.9 is
given access to Confidential Material, the person shall review the Protective Order and
agree in writing (by signing the Acknowledgement attached hereto 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 such Confidential Material to any person other than those persons described in
Paragraph 111.B., above.
All persons who have access to Confidential Material at any time shall take
all precautions necessary to prohibit access to such Confidential Material other than as
provided for herein.
Any summaries or copies of Confidential Material shall bear the
appropriate legend set forth in Paragraph 11.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
which have been designated as Confidential Material without first obtaining leave of
Court to file such 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, said Party must obtain leave of Court
before these documents may be filed under seal. After receiving Court approval, such
Party shall submit such pleadings or other submissions under seal.
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 such information at a hearing or at trial in such manner as the Court
may direct. The use of Confidential Material at trial shall be governed by the pretrial
If any Party receives a subpoena or order demanding the production of any
Material designated in this Action as "CONFIDENTIAL," the Party receiving such
subpoena or order shall, within five (5) business days of the receipt of such request and
not less than 10 days prior to the production of any Confidential Material, notify the
Designator of such 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 of
production, is within the public domain, or which the Designator subsequently released
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 contexts.
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 moving the Court, 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
This Protective Order shall survive and continue to be binding after the
conclusion of this Action, and this Court shall retain jurisdiction to enforce the provisions
of this Protective Order.
This Protective Order shall operate retroactively to the inception of this
Action. Any Material produced prior to 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 attomeyclient privilege or work-product 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.
If a claim of inadvertent disclosure is made by a Disclosing Party with
respect to Inadvertently Disclosed Information, the Parties shall, within five (5) business
days, return or destroy all copies of the Inadvertently Disclosed Information and provide
a certification of counsel that all such Inadvertently Disclosed Information has been
returned or destroyed.
Within 21 days of the notification that such 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.
Nothing in this Protective Order shall limit the right of any Party to petition
the Court for an order compelling production of such Inadvertently Disclosed
Information, or for an in-camera review of the Inadvertently Disclosed Information.
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.
IT IS SO ORDERED TIIlS
ev~ 2¥f. J~- WRIGHT
HONORABL SUSAN WE-f:R
Isl Jason J. Campbell
JASON J. CAMPBELL
BAR NO. 2001119
Anderson, Murphy & Hopkins, L.L.P.
400 West Capitol A venue, Suite 2400
Little Rock, Arkansas 72201
(501) 372-1887 phone; (501) 372-7706 fax
Isl Alex T. Gray
Alex T. Gray, Ark. Bar No. 2008127
STEEL, WRIGHT & COLLIER, PLLC
400 W. Capitol Ave., Suite 2910
Little Rock, Arkansas 72201
(501) 251-1587 Phone
Isl David Gershner
DAVIDSON LAW FIRM
724 Garland, Cantrell at State
P.O. Box 1300
Little Rock, Arkansas 72203
ACKNOWLEDGEMENT OF PROTECTIVE ORDER
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 Hicks,
Dowty, McCauley & Scheel, Inc., et al vs. The Manor at Benton, LLC, et al.; Case No.
4:15-cv-787-SWW, 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 said 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 such material) shall not be disclosed to others, except those listed in
paragraph 111.B. of the Protective Order and under the terms set forth therein.
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?