Tanner v. Ziegenhorn et al

Filing 13

PROTECTIVE ORDER. Signed by Judge D. P. Marshall Jr. on 7/27/2018. (jak)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF ARKANSAS
WESTERN DIVISION
JAMES ANDREW TANNER

PLAINTIFF

CASE NO. 4:17·CV·780·DPM

v.

DEFENDANTS

KURT ZIEGENHORN, et al.
PROTECTIVE ORDER

This Protective Order governs the parties to this action and their lawyers, as
follows:
1.

All

documents,

information,

copies,

transcriptions,

or

other

reproductions of documents or information (hereinafter "Information") produced in
this action that contain, describe, identify, or refer to confidential and/or private
Information may be stamped "CONFIDENTIAL" by the producing party and, if so
stamped, will be subject to the provisions of this Protective Order.
2.

A lawyer who wishes to challenge the "CONFIDENTIAL" designation

made by the producing party of any Information must first attempt in good faith to
confer in person with lawyers for the producing party in an effort to resolve the issue
amicably. If agreement cannot be reached, the parties should file a joint report
explaining the disagreement; the joint report shall be drafted and filed and in
accordance with the Final Scheduling Order (DE 10) issued by this Court.
Information designated as "CONFIDENTIAL" will continue to be treated as such and
subject to the provisions of this Protective Order pending determination by the Court.

3.
action

Information designated as "CONFIDENTIAL" may be used only for this
and

for

no

other

action

or

purpose.

Information

designated

as

"CONFIDENTIAL" may not, without leave of this Court, be disclosed to any person
or entity other than this Court (under seal) except as stated in this Protective Order.
4.

The

disclosure

by

a

lawyer

of

Information

designated

as

"CONFIDENTIAL" to that lawyer's client, to paralegals and clerical staff employed
by that lawyer's office, or to experts retained by that lawyer, will not constitute a
violation of or waiver of the protection afforded by this Protective Order so long as
the person to whom disclosure is made has executed an Affidavit in the form attached
hereto as Exhibit A. A lawyer who discloses Information designated as
"CONFIDENTIAL" pursuant to this paragraph must maintain each Affidavit
executed by persons to whom that lawyer has disclosed Information designated as
"CONFIDENTIAL."
5.

If Information designated as "CONFIDENTIAL" is to be identified,

discussed, or disclosed during a deposition taken in this action of any person or entity
other than those persons or entities described in paragraphs 3 and 4 above, the
deponent must be required to acknowledge on the record, before any identification,
discussion or disclosure of Information occurs, that he or she has been advised of and
has agreed to be bound by the terms of this Protective Order.
6.

A party may designate as "CONFIDENTIAL" portions of any deposition

transcript wherein Information designated as "CONFIDENTIAL" is identified,
discussed, or disclosed. Portions of a deposition transcript so designated will be

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subject to the terms of this Protective Order. The designation must be made on the
record during the deposition or by letter sent by facsimile or electronic mail to
opposing counsel within five business days after receipt of the transcript. The
portions of a deposition transcript that mention or discuss Information designated as
"CONFIDENTIAL" must be treated as "CONFIDENTIAL" and therefore subject to
this Protective Order until 5:00 p.m. Central Time on the fifth business day after
receipt of the transcript. All portions of the deposition transcript not designated as
"CONFIDENTIAL" by 5:00 p.m. Central Time on the fifth business day after receipt
of the transcript are excluded from the protections of this Protective Order.
7.

If, during the course ofpre·trial or trial proceedings, a lawyer for a party

intends to identify, discuss, or disclose Information produced by the opposing party
and designated as "CONFIDENTIAL," that lawyer must give prior notice to opposing
counsel so that the producing party may seek appropriate protection.
8.

Information designated as "CONFIDENTIAL" must not be filed on the

public docket. If practicable, it should be redacted. Fed. R. Civ. P. 5.2. If an entire page
contains Information designated as "CONFIDENTIAL," substituting a page marked
"Redacted" is an acceptable redaction method. If redaction is impracticable, a party must
move for permission to file any Information designated as "CONFIDENTIAL" and an
related motion, brief, or paper, containing that material under seal. The moving party
must justify sealing with specifics and solid reasons, including an explanation about why
redaction cannot be done. Sealed papers must be filed in compliance with Section IV.B
of this Court's CM/ECF Administrative Policies and Procedures Manual for Civil
. 3.

Filings. Accordingly, affixed to the exterior of the envelope shall be a cover sheet
containing: (1) the case caption; (2) the name of the document if it can be disclosed
publicly, otherwise an appropriate title by which the document may be identified on
the public docket; and (3) the name, address, and telephone number of the person
filing the document.
9.

No lawyer for a party may comment in the presence of the jury on the

reasons or motivation for designating Information as "CONFIDENTIAL" without
first having obtained permission of the Court to do so.
10.

This Order shall remain in effect for one year after this case ends, including

any appeal. Thereafter, the obligations imposed shall continue, but shall be solely a
matter of contract between the parties.
11.

Within sixty (60) days after final adjudication of this action, all

Information designated as "CONFIDENTIAL" by the producing party must be
destroyed or returned. Upon request by the producing party, a party must verify that
all such items have been destroyed or returned to the producing party. The
verification must be made by Affidavit in the form of Exhibit B to this Protective
Order.
12.

Nothing in this Protective Order will preclude a party from seeking

additional protection for Information designated as "CONFIDENTIAL" or from
otherwise seeking a modification of this Protective Order.

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13.

Nothing in this Protective Order will prevent this Court from disclosing

any facts relied upon by it in making or rendering any findings, ruling, order,
judgment or decree of whatever description.
IT IS SO ORDERED this

2-7-f{

day of ~

, 2018.

D.P. MARSHALL JR.
UNITED STATES DISTRICT JUDGE
By:

Isl Reid Adkins
Reid Adkins, Ark Bar No. 2015216
Assistant Attorney General
Arkansas Attorney General's Office
323 Center Street, Suite 200
Little Rock, AR 72201
Phone: (501) 682·1080
Fax:
(501) 682·2591
Email: [e-mail],
Isl William C Bird III
William C. Bird III, Ark Bar No. 2005149
Assistant Attorney General
Arkansas Attorney General's Office
323 Center Street, Suite 200
Little Rock, AR 72201
Phone: (501) 682·1080
Fax:
(501) 682·2591
Email: [e-mail]

Attorneys for the Defendants
AND
By:

Isl Wi]liam Whitfield Hyman
William Whitfield Hyman, ABN 2013237
KING LAW GROUP, PLLC
300 N. Sixth Street
Fort Smith, AR 72901
Phone: (479) 782·1125
Fax: [phone]
Email: [e-mail]
Attorney for Plaintiff
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EXHIBIT A
AFFIDAVIT OF _ _ _ _ _ __
STATE OF _ _ _ _ _~ )
) ss:
COUNTY OF_ _ _ _ _ _)
Before me, the undersigned Notary Public, in and for said County and State,
personally appeared _ _ _ _ _ _ _ _ _ _ , who after first being duly sworn,
states as follows:
1.

My name is _ _ _ _ _ _ _ _ . I am over the age of 18 years and am

a resident of _ _ _ _ _ County, _______ . I make this Affidavit based
upon my personal knowledge, and I am competent to testify to the matters stated
herein.
2.

I am aware that a Protective Order has been entered in Tanner v.

Ziegenhorn, et al., Case No. 4:17CV00780-DPM, which is pending in the United
States District Court for the Eastern District of Arkansas, Western Division. A copy
of that Protective Order has been shown to me, and I have read and understand its
contents.
3.

By signing this Affidavit, I promise that I will use the Information

designated "CONFIDENTIAL" pursuant to the above-described Protective Order for
the purpose of assisting counsel for a party to the above-described civil action in the
adjudication of that action, or for the purpose of preparing testimony for that action,
and for no other purpose.

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4.
disclose,

By signing this Affidavit, I also promise that I will not communicate,
discuss,

identify,

or

otherwise

use

Information

designated

"CONFIDENTIAL" pursuant to the above-described Protective Order with, to, or for
any person or entity other than the Court, a party to the above-described civil action,
counsel for a party to the above-described civil action, including other counsel,
paralegals, and clerical staff employed in his or her office, persons permitted by the
above-described Protective Order to attend depositions taken in the above-described
civil action, and persons or entities assisting such counsel who have executed an
affidavit in the same form as this Affidavit.
5.

By signing this Affidavit, I also promise that I will not copy, transcribe,

or otherwise reproduce, or cause to be copied, transcribed, or otherwise reproduced,
by any means whatsoever, any Information designated "CONFIDENTIAL" pursuant
to the above-described Protective Order except to the extent to which I am directed
to do so by counsel for a party to the above-described civil action, in which case all
such copies, transcriptions, or reproductions shall be made solely for my own use in
connection with my work in the above matter. I further promise at the conclusion of
this case to deliver upon request all Information (originals and copies) designated
"CONFIDENTIAL" to the counsel who originally directed that Information be
provided to me.
6.

I understand that, by signing this agreement, I am agreeing to subject

myself to the jurisdiction of this Court.

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7.

I understand that any use or distribution of Information designated

"CONFIDENTIAL" pursuant to the above-described Protective Order in any manner
contrary to the provisions of the Protective Order will subject me, among other things,
to the sanctions of this Court for contempt.
FURTHER AFFIANT SAYETH NOT.

Signature of Affiant
Subscribed and sworn to before me,
this _ _ _ day of _ _ _ _ __

Notary Public

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EXHIBITB
AFFIDAVIT OF _ _ _ _ _ __
STATE OF _ _ _ _ _ _)
) ss:
COUNTY OF_ _ _ _ _~)
Before me, the undersigned Notary Public, in and for said County and State,
personally appeared _ _ _ _ _ _ _ _ __, Esq., who after first being duly sworn,
states as follows:
1.

My name is _ _ _ _ _ _ _ _ . I am an attorney with the law firm of

_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ . I make this Affidavit based upon my
personal knowledge, and I am competent to testify to the matters stated herein.
2.

All Information designated as "CONFIDENTIAL" by the opposing party

in Tanner v. Ziegenhorn, et al., Case No. 4:17CV00780· DPM, has been destroyed or
returned to the opposing party as required by the Protective Order in that case.
FURTHER AFFIANT SAYETH NOT.

Signature of Affiant
Subscribed and sworn to before me,
this _ _ _ day of _ _ _ _ __

Notary Public

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