McGehee et al v. Hutchinson et al

Filing 18

PROTECTIVE ORDER. Signed by Judge Kristine G. Baker on 4/4/2017. (thd)

****EXECUTIONS SCHEDULED FOR APRIL 17, 20, 24, and 27, 2017****
IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
LITTLE ROCK DIVISION
CAPITAL CASE
JASON MCGEHEE, et al.
v.

PLAINTIFFS
Case No. 4:17-cv-00179 KGB

ASA HUTCHINSON, et al.

DEFENDANTS
PROTECTIVE ORDER

The parties to the above-styled action, by and through their respective counsel, have agreed
and stipulated to the entry of this Agreed Protective Order, subject to the approval of the Court.
The Court hereby approves of and enters this Agreed Protective Order. The parties and their
counsel agree to comply with all the terms of this Agreed Protective Order as set forth below.
1)

This Agreed Protective Order between the Plaintiffs and Defendants covers the use

and disclosure of confidential material (“Confidential Material”) of any kind produced in
connection with this case by the parties to this litigation and by third parties (collectively, the
“Producing Parties”).
2)

All material produced in this action is deemed Confidential Material, and may not

be disclosed to any persons or entities other than those specified in paragraph 9 of this Order,
provided such material is designated as Confidential Material by the Producing Party in accordance
with the provisions of this Agreed Protective Order. In addition, the following materials and
information, if produced in this action, are and shall be deemed “Confidential Material” whether
or not so designated by the Producing Party:

a. The written execution protocol adopted by the Arkansas Department of Correction
(“ADC”), and any drafts or amendments to the protocol, with the exception of
Attachment C;
b. Information contained within the ADC’s execution protocol, with the exception of
Attachment C;
c. All testimony, documents, or information referring to the ADC’s procedures with
respect to Death Row inmates that identify or discuss security procedures, security
personnel, or pre-execution schedules;
d. Identities of the entities or persons who participate in the execution process or
administer the lethal injection; and
e. Identities of the entities or persons who compound, test, sell, or supply the drug or
drugs used in the execution procedure, or supply medical supplies or medical
equipment for the execution process, as well as information that could lead to the
identification of such entities or persons (such as lot and batch numbers on FDAapproved drug labels).
Documents or other information that are already in the public domain will not become confidential
by virtue of this Order. However, to the extent that only a portion of information in a document
was in the public domain, only that portion of information—not the entire document—will be
considered non-Confidential.
3)

Except where indicated otherwise in the terms of this Order, the term “Confidential

Material” includes “Highly Confidential Material.” “Highly Confidential Material” potentially
includes the information covered by Paragraphs 2(d) and 2(e). Should the information covered by

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Paragraphs 2(d) and 2(e) become the subject of court-ordered discovery, the parties will negotiate
the status of this material at that time.
4)

The provisions of this Order extend to all Confidential Material regardless of the

manner or form in which it is disclosed, including but not limited to documents, interrogatory
responses, deposition transcripts, deposition exhibits, testimony and any other materials produced
by a party in response to or in connection with any discovery conducted in this litigation, and to
any copies, notes, abstracts, summaries, analyses, demonstrative exhibits or other documents that
reflect information contained in the foregoing materials.
5)

The designation of Confidential Material for the purposes of this Agreed Protective

Order shall be made by plainly marking the item, or where that is not possible, by marking a
container or tag, with the legend “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL.” In the
case of depositions, the parties shall designate the Confidential Material: (i) by a statement on the
record by counsel for the Producing Party at the time of such disclosure; or (ii) by written notice,
sent by counsel for the Producing Party to counsel of record for the parties to this Action within
three (3) business days after receipt of the transcript of the deposition. All deposition transcripts
(including exhibits) shall be considered Confidential Material and shall be subject to this Agreed
Protective Order until expiration of such three-day period. The court reporter shall be instructed
to mark each designated page as “CONFIDENTIAL” and the cover page of any transcript
containing Confidential Material shall indicate that the transcript contains such Confidential
Material.
6)

Whenever any Confidential Material is to be discussed or disclosed in a deposition,

the Producing Party may exclude from the room any person who is not entitled to receive such
information.

The parties further agree that they can arrange for the review of potentially

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Confidential Material prior to designation without waiver of any claim to confidentiality. After
such Material is reviewed, the Producing Party may designate copies of the Material requested
Confidential as appropriate before providing copies to the receiving party (“Receiving Party”).
7)

The inadvertent failure to designate specific information or material as Confidential

Material shall not be deemed a waiver in whole or in part of the Producing Party’s claim of
confidentiality as to such information or material.
a. In the event that information or material, whether in written or oral form, has been
provided without any designation of confidentiality, such information may be
designated as Confidential Material within three (3) days of the discovery by the
Producing Party that such information should have been so designated. Upon
receipt of such notice, that information or material shall be treated as Confidential
Material by all parties as though such information had been so designated when
originally provided.
b. If, prior to receiving notice pursuant to paragraph 7(a), such information or material
has already been disclosed to individuals who otherwise would not have been
entitled to have access to Confidential Material, the Receiving Party shall notify the
Producing Party immediately. In addition, the Receiving Party shall immediately
comply with all the procedures applicable to the inadvertent disclosure of
Confidential Material, as discussed below in paragraph 10 of this Agreed Protective
Order.
c. If a Producing Party decides to designate previously provided information or
material Confidential, or decides to delete the designation on an item previously
produced, the Producing Party shall provide the parties substitute copies of such

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documents bearing the desired designation within three (3) days of re-designation.
The parties to whom substitute copies of such documents are produced shall
substitute the later-produced documents and shall destroy or return to the Producing
Party the previously produced documents in their possession and all copies thereof.
8)

Confidential Material may be used solely in connection with the instant litigation.

The identity, content, and/or any summary of Confidential Material shall be maintained in strict
confidence by the Receiving Party. Confidential Material may not be disclosed to any persons or
entities other than those specified in paragraph 9.
9)

The Receiving Party may show or otherwise divulge Confidential Material only to

the following persons:
a. Counsel of record in this case and other counsel for the parties employed in the
same office as counsel of record, provided that the names of other counsel are
disclosed by email to opposing counsel prior to the sharing of Confidential
Material;
b. Parties’ experts, including testifying experts where the information is relevant to
their testimony, and investigators;
c. Up to ten (10) staff persons assisting counsel of record, including, but not limited
to, secretaries, photocopying personnel, and legal assistants and in the event that
more than 10 staff persons are needed to assist counsel of record, the names of those
additional staff persons shall be disclosed to opposing counsel by email and shall
sign an acknowledgment form, acknowledging that they are bound by this Agreed
Protective Order;

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d. The Court and Court personnel, including court reporters and others involved in the
recording of depositions;
e. Any other person who the Producing Party agrees in writing, or who the Court
directs, may have access to the Confidential Material.
Material designated “Highly Confidential” may be shown or divulged only to the (1) individuals
listed in Paragraph 9(a) of this Order and (2) a designated person or persons included in Paragraph
9(c), to be disclosed to opposing counsel prior to the sharing of Highly Confidential Material. Each
person (with the exception of those specified in (a), (c), and (d) above) who is permitted to see
Confidential Material, or to whom the Confidential Material is otherwise divulged, must certify
that they agree to be bound by the provisions of this Agreed Protective Order and must sign a copy
of an acknowledgment form, acknowledging that they are bound by this Agreed Protective Order.
All signed acknowledgments must be maintained in the files of counsel who disclosed the
Confidential Material, and counsel must produce copies of these signed acknowledgments to the
court and/or to the Producing Party upon request.
10)

Should any person inadvertently disclose Confidential Material to any person,

entity, or court other than those persons described in paragraph 9, counsel for the party responsible
for the inadvertent disclosure shall immediately, meaning within 1 hour of knowledge: (1) notify
the Producing Party of the disclosure; (2) provide in the notification to the Producing Party the
identity and current contact information (including full name, address, telephone number(s) and
email address) of all persons or entities who inadvertently received the Confidential Material; (3)
advise all persons or entities who inadvertently received the Confidential Material that such
information and its use are governed by this Agreed Protective Order; (4) take reasonable steps to
ensure the return or permanent destruction of the Confidential Material and all copies thereof; and

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(5) inform counsel for the Producing Party of the steps that have been taken to ensure the return
or permanent destruction of the material. Nothing in this paragraph shall prohibit the Producing
Party from taking any further action it deems necessary to protect the secrecy of the Confidential
Material or from seeking redress for the disclosure thereof.
11)

If any person receiving Confidential Material covered by this Agreed Protective

Order is subpoenaed in another action or proceeding or served with a document demand, and such
subpoena or document demand seeks Confidential Material discussed in this Order, the person
receiving the subpoena or document demand shall give prompt written notice to the Producing
Party and shall, to the extent permitted by law, withhold production of the subpoenaed Confidential
Material.
a. Before a Receiving Party produces or otherwise reveals the identity, content, and/or
summary of any Confidential Material pursuant to law or court order, the Receiving
Party shall provide the Producing Party with as much notice as possible and at least
fifteen (15) business days’ notice, unless otherwise impracticable due to deadlines
imposed in the subpoena or document demand, so that the Producing Party may
seek further protection from, and an opportunity to be heard by, a court. In no event
shall the Receiving Party produce, disclose, or otherwise reveal any Confidential
Material without making a good-faith attempt to provide notice to the Producing
Party. In the event the Producing Party seeks such protection, the Receiving Party
shall not disclose, produce, or otherwise reveal the identity, content, and/or
summary of any Confidential Material unless and until further ordered by the court.
12)

In the event a party wishes to use any Confidential Material, or any papers or other

materials containing or making reference to the contents of such Confidential Material, in any

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pleading or document filed with this Court in this litigation, such pleading or document and
Confidential Material shall be filed under seal, unless or until such time as the Court orders
otherwise or denies permission to file under seal.

Documents, pleadings, or other filings

containing or referencing such Confidential Material shall be filed under seal in accordance with
this Court’s usual procedures for filing redacted documents or documents under seal. To the extent
that a filing contains information that is not Confidential, such filing shall be filed publicly, and
the Confidential Material shall be redacted. These redacted items should plainly state, in bold
type, on the first page of any document “Public Version; Redacted Copy.” In addition, such items
filed under seal shall plainly state, in bold type, on the first page of any bound or stapled document:
“Confidential—Filed Under Seal” and shall be filed only in sealed envelopes on which shall be
endorsed the caption of this Action and a statement substantially in the following form:
CONFIDENTIAL
This envelope contains documents that are subject to a Protective Order by the
parties to this Action. This envelope shall neither be opened nor the contents
revealed except by order of the Court.
The parties shall also follow in an expeditious manner any additional procedures imposed by this
Court as a prerequisite to filing any document under seal.
13)

To the extent the Court orders, the parties may email sealed documents to the Court

for filing if hand delivery cannot be accomplished on the day of filing. The parties shall follow
whatever procedures the Court and/or the Clerk’s Office set forth for email filing.
14)

If any party believes that a document designated “Confidential Material” does not

warrant such designation, the Receiving Party shall raise the matter with the Producing Party. The
parties shall promptly engage in a good-faith effort to resolve the dispute. It is the contemplation
of this Order that a document will be designated “Confidential Material” only when legitimately

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called for. If a dispute over designation cannot be resolved, the Receiving Party may file an
appropriate motion with the Court to determine whether the document or other item warrants the
designation. The Receiving Party shall not disclose any such designated document unless and
until an order of the Court is entered allowing disclosure.
15)

Within sixty (60) days of the termination of this Action and all appeals of this

Action, any Confidential Material provided by any Producing Party, as well as any copies, extracts
and summaries thereof, shall be either: (1) returned to the Producing Party or (2) permanently
destroyed, in which case the Receiving Party must provide to the Producing Party certification of
this permanent destruction. Notwithstanding the foregoing, counsel may retain an archival copy
of any pleading and/or attorney work product that references Confidential Material. Such archival
documents shall be retained and treated in accordance with the terms of this Order.
16)

A party’s compliance with the terms of this Agreed Protective Order shall not

operate as an admission that any particular document or information is or is not: (a) confidential;
(b) privileged; (c) relevant; (d) material to any matter at issue; (e) authentic; or (f) admissible in
evidence at any trial or hearing.
17)

The terms of this Agreed Protective Order shall survive and remain in full force

and effect through the course of, and after the final termination of, this Action. This Court shall
retain jurisdiction to resolve any dispute concerning the use or disclosure of Confidential Material
that is disclosed hereunder.
So ordered this 4th day of April, 2017.

__________________________________
Kristine G. Baker
United States District Judge

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