Lindley v. Alyzen Medical Physics Inc et al
PROTECTIVE ORDER. Signed by Judge Kristine G. Baker on 7/15/2021. (jbh)
IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
CHARLES D. LINDLEY
Case No. 4:20-cv-00795-KGB
ALYZEN MEDICAL PHYSICS, INC.
And MARK DEWEESE
Before the Court is the parties’ joint motion for stipulated protective order (Dkt. No. 39).
For good cause shown, the Court enters the parties’ stipulated protective order. Pursuant to the
Court’s authority under Federal Rule of Civil Procedure 26(c), it is hereby ordered:
PURPOSES AND LIMITATIONS.
Disclosure and discovery activity in this action are likely to involve the production of
confidential, proprietary, or private information for which special protection from public
disclosure and from use for any purpose other than prosecuting this litigation may be warranted.
Accordingly, the parties hereby stipulate to and petition the Court to enter the following Stipulated
Protective Order. The parties acknowledge that this Stipulated Protective Order does not confer
blanket protections on all disclosures or responses to discovery and that the protection it affords
from public disclosure and use extends only to the limited information or items that are entitled to
confidential treatment under the applicable legal principles. The parties further acknowledge, as
set forth in Section 12.3, below, that this Stipulated Protective Order does not entitle them to file
confidential information under seal. Confidential information may only be filed under seal
pursuant to a court order authorizing the sealing of the specific confidential information at issue.
Action: the instant action: Lindley v. Alyzen Medical Physics & Deweese, U.S.
District Court, E.D. Ark., Case No. 4:20-cv-00795-KGB.
Challenging Party: a Party or Non-Party that challenges the designation of
information or items under this Stipulated Protective Order.
“CONFIDENTIAL” Information or Items: information (regardless of how it is
generated, stored or maintained) or tangible things that qualify for protection under
Federal Rule of Civil Procedure 26(c).
Counsel (without qualifier): Outside Counsel of Record and House Counsel (as
well as their support staff).
Designating Party: a Party or Non-Party that designates information or items that
it produces in disclosures or in responses to discovery as [“CONFIDENTIAL” /
“CONFIDENTIAL” or “HIGHLY CONFIDENTIAL”.]
Disclosure or Discovery Material: all items or information, regardless of the
medium or manner in which it is generated, stored, or maintained (including, among
other things, testimony, transcripts, and tangible things), that are produced or
generated in disclosures or responses to discovery in this Action.
Expert: a person with specialized knowledge or experience in a matter pertinent to
the litigation who has been retained by a Party or its counsel to serve as an expert
witness or as a consultant in this Action.
House Counsel: attorneys who are employees of a party to this Action. House
Counsel does not include Outside Counsel of Record or any other outside counsel.
Non-Party: any natural person, partnership, corporation, association, or other legal
entity not named as a Party to this Action.
Outside Counsel of Record: attorneys who are not employees of a party to this
Action but are retained to represent or advise a party to this Action and have
appeared in this Action on behalf of that party or are affiliated with a law firm that
has appeared on behalf of that party, and includes support staff.
Party: any party to this Action, including all of its officers, directors, employees,
consultants, retained experts, and Outside Counsel of Record (and their support
Producing Party: a Party or Non-Party that produces Disclosure or Discovery
Material in this Action.
Professional Vendors: persons or entities that provide litigation support services
(e.g., photocopying, videotaping, translating, preparing exhibits or demonstrations,
and organizing, storing, or retrieving data in any form or medium) and their
employees and subcontractors.
Protected Material: any Disclosure or Discovery Material that is designated as
[“CONFIDENTIAL” / “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL”.]
Receiving Party: a Party that receives Disclosure or Discovery Material from a
The protections conferred by this Stipulated Protective Order cover not only Protected
Material (as defined above), but also (1) any information copied or extracted from Protected
Material; (2) all copies, excerpts, summaries, or compilations of Protected Material; and (3) any
testimony, conversations, or presentations by Parties or their Counsel that might reveal Protected
Material. However, the protections conferred by this Stipulated Protective Order do not cover the
following information: (a) any information that is in the public domain at the time of disclosure to
a Receiving Party or becomes part of the public domain after its disclosure to a Receiving Party as
a result of publication not involving a violation of this Stipulated Protective Order, including
becoming part of the public record through trial or otherwise; and (b) any information known to
the Receiving Party prior to the disclosure or obtained by the Receiving Party after the disclosure
from a source who obtained the information lawfully and under no obligation of confidentiality to
the Designating Party. Any use of Protected Material at trial shall be governed by a separate
agreement or order.
Even after final disposition of this Action, the confidentiality obligations imposed by this
Stipulated Protective Order shall remain in effect until a Designating Party agrees otherwise in
writing or a court order otherwise directs. Final disposition shall be deemed to be the later of (1)
dismissal of all claims and defenses in this Action, with or without prejudice; and (2) final
judgment herein after the completion and exhaustion of all appeals, rehearings, remands, trials, or
reviews of this Action, including the time limits for filing any motions or applications for extension
of time pursuant to applicable law.
DESIGNATING PROTECTED MATERIAL.
Exercise of Restraint and Care in Designating Material for Protection. Each
Party or Non-Party that designates information or items for protection under this
Stipulated Protective Order must take care to limit any such designation to specific
material that qualifies under the appropriate standards. The Designating Party must
designate for protection only those parts of material, documents, items, or oral or
written communications that qualify so that other portions of the material,
documents, items, or communications for which protection is not warranted are not
swept unjustifiably within the ambit of this Stipulated Protective Order.
Mass, indiscriminate, or routinized designations are prohibited. Designations that
are shown to be clearly unjustified or that have been made for an improper purpose
(e.g., to unnecessarily encumber or retard the case development process or to
impose unnecessary expenses and burdens on other parties) expose the Designating
Party to sanctions.
If it comes to a Designating Party’s attention that information or items that it
designated for protection do not qualify for protection, that Designating Party must
promptly notify all other Parties that it is withdrawing the mistaken designation.
Manner and Timing of Designations. Except as otherwise provided in this
Stipulated Protective Order (see, e.g., second paragraph of Section (a) below), or
as otherwise stipulated or ordered, Disclosure or Discovery Material that qualifies
for protection under this Stipulated Protective Order must be clearly so designated
before the material is disclosed or produced.
Designation in conformity with this Stipulated Protective Order requires:
for information in documentary form (e.g., paper or electronic documents, but
excluding transcripts of depositions or other pretrial or trial proceedings), that
“CONFIDENTIAL” or “HIGHLY CONFIDENTIAL”] to each page that
contains Protected Material. If only a portion or portions of the material on a
page qualifies for protection, the Producing Party also must clearly identify
the protected portion(s) (e.g., by making appropriate markings in the
A Party or Non-Party that makes original documents or materials available
for inspection need not designate them for protection until after the inspecting
Party has indicated which material it would like copied and produced. During
the inspection and before the designation, all of the material made available
for inspection shall be deemed “CONFIDENTIAL”. After the inspecting
Party has identified the documents it wants copied and produced, the
Producing Party must determine which documents, or portions thereof,
qualify for protection under this Stipulated Protective Order. Then, before
producing the specified documents, the Producing Party must affix the
CONFIDENTIAL”] legend to each page that contains Protected Material. If
only a portion or portions of the material on a page qualifies for protection,
the Producing Party also must clearly identify the protected portion(s) (e.g.,
by making appropriate markings in the margins).
for testimony given in depositions or in other pretrial or trial proceedings, that
the Designating Party identify on the record, before the close of the
deposition, hearing, or other proceeding, all protected testimony.
for information produced in some form other than documentary and for any
other tangible items, that the Producing Party affix in a prominent place on
the exterior of the container or containers in which the information or item is
stored the legend [“CONFIDENTIAL” / “CONFIDENTIAL” or “HIGHLY
CONFIDENTIAL”]. If only a portion or portions of the information or item
warrant protection, the Producing Party, to the extent practicable, shall
identify the protected portion(s).
Inadvertent Failures to Designate. If timely corrected, an inadvertent failure to
designate qualified information or items does not, standing alone, waive the
Designating Party’s right to secure protection under this Stipulated Protective Order
for such material. Upon timely correction of a designation, the Receiving Party
must make reasonable efforts to assure that the material is treated in accordance
with the provisions of this Stipulated Protective Order.
CHALLENGING CONFIDENTIALITY DESIGNATIONS.
Timing of Challenges. Any Party or Non-Party may challenge a designation of
confidentiality at any time. Unless a prompt challenge to a Designating Party’s
confidentiality designation is necessary to avoid foreseeable, substantial unfairness,
unnecessary economic burdens, or a significant disruption or delay of the litigation,
a Party or Non-Party does not waive its right to challenge a confidentiality
designation by electing not to mount a challenge promptly after the original
designation is disclosed.
Meet and Confer. The Challenging Party shall initiate the dispute resolution
process by providing written notice of each designation it is challenging and
describing the basis for each challenge. To avoid ambiguity as to whether a
challenge has been made, the written notice must recite that the challenge to
confidentiality is being made in accordance with this specific paragraph of the
Stipulated Protective Order. The parties shall attempt to resolve each challenge in
good faith and must begin the process by conferring directly (in voice to voice
dialogue; other forms of communication are not sufficient) within 14 days of the
date of service of the notice. In conferring, the Challenging Party must explain the
basis for its belief that the confidentiality designation was not proper and must give
the Designating Party an opportunity to review the designated material, to
reconsider the circumstances, and, if no change in designation is offered, to explain
the basis for the chosen designation. A Challenging Party may proceed to the next
stage of the challenge process only if it has engaged in this meet and confer process
first or establishes that the Designating Party is unwilling to participate in the meet
and confer process in a timely manner.
Judicial Intervention. If the Parties cannot resolve a challenge without court
intervention, the Designating Party shall file and serve a motion to retain
confidentiality under seal within 5 business days of the initial notice of challenge
or within 5 business days of the parties agreeing that the meet and confer process
will not resolve their dispute, whichever is earlier. Each such motion must be
accompanied by a competent declaration affirming that the movant has complied
with the meet and confer requirements imposed in the preceding paragraph. Failure
by the Designating Party to make such a motion, including the required declaration,
within required time shall automatically waive the confidentiality designation for
each challenged designation. In addition, the Challenging Party may file a motion
challenging a confidentiality designation at any time if there is good cause for doing
so, including a challenge to the designation of a deposition transcript or any
portions thereof. Any motion brought pursuant to this provision must be
accompanied by a competent declaration affirming that the movant has complied
with the meet and confer requirements imposed by the preceding paragraph.
The burden of persuasion in any such challenge proceeding shall be on the
Designating Party. Frivolous challenges, and those made for an improper purpose
(e.g., to harass or impose unnecessary expenses and burdens on other parties) may
expose the Challenging Party to sanctions. Unless the Designating Party has waived
the confidentiality designation by failing to file a motion to retain confidentiality as
described above, all parties shall continue to afford the material in question the level
of protection to which it is entitled under the Producing Party’s designation until
the Court rules on the challenge.
ACCESS TO AND USE OF PROTECTED MATERIAL.
Basic Principles. A Receiving Party may use Protected Material that is disclosed
or produced by another Party or by a Non-Party in connection with this case only
for prosecuting, defending, or attempting to settle this litigation. Such Protected
Material may be disclosed only to the categories of persons and under the
conditions described in this Stipulated Protective Order. When the litigation has
been terminated, a Receiving Party must comply with the provisions of Section 13
below (FINAL DISPOSITION).
Protected Material must be stored and maintained by a Receiving Party at a location
and in a secure manner that ensures that access is limited to the persons authorized
under this Stipulated Protective Order.
Disclosure of “CONFIDENTIAL” Information or Items. Unless otherwise
ordered by the Court or permitted in writing by the Designating Party, a Receiving
Party may disclose any information or item designated “CONFIDENTIAL” only
the Receiving Party’s Outside Counsel of Record in this action, as well as
employees of said Outside Counsel of Record to whom it is reasonably
necessary to disclose the information for this Action and who have signed the
“Acknowledgment and Agreement to Be Bound” that is attached hereto as
the officers, directors, and employees (including House Counsel) of the
Receiving Party to whom disclosure is reasonably necessary for this Action
and who have signed the “Acknowledgment and Agreement to Be Bound”
Experts (as defined in this Stipulated Protective Order) of the Receiving Party
to whom disclosure is reasonably necessary for this Action and who have
signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A);
the Court and its personnel;
private court reporters and their staff, professional jury or trial consultants,
mock jurors, and Professional Vendors to whom disclosure is reasonably
necessary for this Action and who have signed the “Acknowledgment and
Agreement to Be Bound” (Exhibit A);
during their depositions, witnesses and attorneys for witnesses, in the Action
to whom disclosure is reasonably necessary and who have signed the
“Acknowledgment and Agreement to Be Bound” (Exhibit A), unless
otherwise agreed by the Designating Party or ordered by the Court. Pages of
transcribed deposition testimony or exhibits to depositions that reveal
Protected Material must be separately bound by the court reporter and may
not be disclosed to anyone except as permitted under this Stipulated Protective
the author or recipient of a document containing the information or a
custodian or other person who otherwise possessed or knew the information.
any mediator or settlement officer, and their supporting personnel, mutually
agreed upon by any the parties engaged in settlement discussion.
PROTECTED MATERIAL SUBPOENAED OR ORDERED
PRODUCED IN OTHER LITIGATION.
If a Party is served with a subpoena or a court order issued in other litigation that compels
disclosure of any information or items designated in this action as [“CONFIDENTIAL” /
“CONFIDENTIAL” or “HIGHLY CONFIDENTIAL”], that Party must:
promptly notify in writing the Designating Party. Such notification shall
include a copy of the subpoena or court order;
promptly notify in writing the party who caused the subpoena or order to issue
in the other litigation that some or all of the material covered by the subpoena
or order is subject to this Stipulated Protective Order. Such notification shall
include a copy of this Stipulated Protective Order; and
cooperate with respect to all reasonable procedures sought to be pursued by
the Designating Party whose Protected Material may be affected.
If the Designating Party timely seeks a protective order, the Party served with the subpoena
or court order shall not produce any information designated in this Action as [“CONFIDENTIAL”
/ “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL”] before a determination by the Court from
which the subpoena or order issued, unless the Party has obtained the Designating Party’s
permission. The Designating Party shall bear the burden and expense of seeking protection in that
Court of its confidential material – and nothing in these provisions should be construed as
authorizing or encouraging a Receiving Party in this action to disobey a lawful directive from
A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE
PRODUCED IN THIS LITIGATION.
The terms of this Stipulated Protective Order are applicable to information
CONFIDENTIAL”]. Such information produced by Non-Parties in
connection with this Action is protected by the remedies and relief provided
by this Stipulated Protective Order. Nothing in these provisions should be
construed as prohibiting a Non-Party from seeking additional protections.
In the event that a Party is required, by a valid discovery request, to produce
a Non-Party’s confidential information in its possession, and the Party is
subject to an agreement with the Non-Party not to produce the Non-Party’s
confidential information, then the Party shall:
(1) promptly notify in writing the Requesting Party and the Non-Party that
some or all of the information requested is subject to a confidentiality
agreement with a Non-Party;
(2) promptly provide the Non-Party with a copy of the Stipulated Protective
Order in this litigation, the relevant discovery request(s), and a
reasonably specific description of the information requested; and
(3) make the information requested available for inspection by the NonParty.
If the Non-Party fails to object or seek a protective order from this Court
within 14 days of receiving the notice and accompanying information, the
Receiving Party may produce the Non-Party’s confidential information
responsive to the discovery request. If the Non-Party timely seeks a protective
order, the Receiving Party shall not produce any information in its possession
or control that is subject to the confidentiality agreement with the Non-Party
before a determination by the Court. Absent a court order to the contrary, the
Non-Party shall bear the burden and expense of seeking protection in this
Court of its Protected Material.
UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL.
If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed Protected
Material to any person or in any circumstance not authorized under this Stipulated Protective
Order, the Receiving Party must immediately:
notify in writing the Designating Party of the unauthorized disclosures;
use its best efforts to retrieve all unauthorized copies of the Protected
inform the person or persons to whom unauthorized disclosures were made of
all the terms of this Stipulated Protective Order; and
request such person or persons to execute the “Acknowledgment and
Agreement to Be Bound” that is attached hereto as Exhibit A.
OTHERWISE PROTECTED MATERIAL.
When a Producing Party gives notice to Receiving Parties that certain inadvertently
produced material is subject to a claim of privilege or other protection, the obligations of the
Receiving Parties are those set forth in Federal Rule of Civil Procedure 26(b)(5)(B). This provision
is not intended to modify whatever procedure may be established in an e-discovery order that
provides for production without prior privilege review. Pursuant to Federal Rule of Evidence
502(d) and (e), insofar as the Parties reach an agreement on the effect of disclosure of a
communication or information covered by the attorney-client privilege or work product protection,
the Parties may incorporate their agreement in the Stipulated Protective Order submitted to the
Right to Further Relief. Nothing in this Stipulated Protective Order abridges the
right of any person to seek its modification by the Court in the future.
Right to Assert Other Objections. By stipulating to the entry of this Stipulated
Protective Order no Party waives any right it otherwise would have to object to
disclosing or producing any information or item on any ground not addressed in
this Stipulated Protective Order. Similarly, no Party waives any right to object on
any ground to use in evidence of any of the material covered by this Stipulated
Filing Protected Material. Without written permission from the Designating Party
or a court order secured after appropriate notice to all interested persons, a Party
may not file in the public record in this Action any Protected Material. A Party that
seeks to file under seal any Protected Material must comply with this Court’s rules
and with any pertinent orders of the assigned District Judge and Magistrate Judge.
Protected Material may only be filed under seal pursuant to a court order
authorizing the sealing of the specific Protected Material at issue. If a Receiving
Party’s request to file Protected Material under seal is denied by the Court, then the
Receiving Party may file the information in the public record unless otherwise
instructed by the Court.
Within 60 days after the final disposition of this Action, as defined in Section 4, each
Receiving Party must return all Protected Material to the Producing Party or destroy such material.
As used in this subdivision, “all Protected Material” includes all copies, abstracts, compilations,
summaries, and any other format reproducing or capturing any of the Protected Material. Whether
the Protected Material is returned or destroyed, the Receiving Party must submit a written
certification to the Producing Party (and, if not the same person or entity, to the Designating Party)
by the 60 day deadline that:
identifies (by category, where appropriate) all the Protected Material that was
returned or destroyed; and
affirms that the Receiving Party has not retained any copies, abstracts,
compilations, summaries or any other format reproducing or capturing any of
the Protected Material. Notwithstanding this provision, Counsel are entitled
to retain an archival copy of all pleadings, motion papers, trial, deposition,
and hearing transcripts, legal memoranda, correspondence, deposition and
trial exhibits, expert reports, attorney work product, and consultant and expert
work product, even if such materials contain Protected Material. Any such
archival copies that contain or constitute Protected Material remain subject to
this Protective Order as set forth in Section 4 (DURATION).
It is so ordered this 15th day of July, 2021.
Kristine G. Baker
United States District Judge
It is so stipulated, through counsel of record.
BARBER LAW FIRM PLLC
A. Cale Block
Allison R Gladden
425 West Capitol Ave, Suite 3400
Little Rock, AR 72201
Attorneys for Defendants
BEQUETTE, BILLINGSLEY & KEES,
425 West Captol Ave., Suite 3200
Little Rock, Arkansas 72201
Attorneys for Plaintiff
EXHIBIT A ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND
I, _____________________________ [print or type full name], of _________________ [print or
type full address], declare under penalty of perjury that I have read in its entirety and understand
the Stipulated Protective Order that was issued by the United States District Court for the Eastern
District of Arkansas on __________ [date] in the case of Lindley v. Alyzen Medical Physics &
Deweese, U.S. District Court, E.D. Ark., Case No. 4:20-cv-00795-KGB. I agree to comply with
and to be bound by all the terms of this Stipulated Protective Order and I understand and
acknowledge that failure to so comply could expose me to sanctions and punishment in the nature
of contempt. I solemnly promise that I will not disclose in any manner any information or item
that is subject to this Stipulated Protective Order to any person or entity except in strict compliance
with the provisions of this Order.
I further agree to submit to the jurisdiction of the United States District Court for Eastern District
of Arkansas for the purpose of enforcing the terms of this Stipulated Protective Order, even if such
enforcement proceedings occur after termination of this Action.
I hereby appoint __________________________ [print or type full name] of
_______________________________________ [print or type full address and telephone number]
as my Arkansas agent for service of process in connection with this Action or any proceedings
related to enforcement of this Stipulated Protective Order.
City and State where sworn and signed:
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