Hughes v. Russell et al

Filing 31

PROTECTIVE ORDER. Signed by Judge James M. Moody Jr. on 7/15/2021. (jbh)

United States District Court for the Eastern District of Arkansas
Central Division
Evon N. Hughes
v.

Plaintiff
Case No. 4:20-cv-1160-JM

David Lee Russell, Eric Evans,
and Sharon Marie Properties LLC

Defendants

Protective Order
This Order allows the parties to this action to designate certain documents
produced in discovery – for example, documents containing personal information,
medical information and medical records – as confidential and subject to an enhanced
level of protection from disclosure. This Order strikes an appropriate balance between the
parties’ interests in prosecuting and defending this case, the judicial interest in the
efficiency and integrity of the discovery process, and the public interest in access to
information. Therefore, due notice having been given, and the Court being duly advised
in the premises, the Court enters the following Order:
1.

When used in this Order, the following words shall have the following

meanings:
“Documents” means (1) all written, recorded or graphic matter whatsoever and
information produced on computer disks or tapes, including all written materials,
and (2) any copies, reproductions or summaries of the foregoing, including
microfilmed, imaged or electronic copies.
“Discovery Materials” means (1) documents or other information produced by any
party or third person, whether pursuant to the applicable civil rules, by subpoena
or by agreement, other than documents that are publicly available; (2)
interrogatory or other discovery responses; and (3) deposition testimony of any
party or third person taken in this action, exhibits thereto and/or any videos or
transcripts thereof, whether in written or computer format, and all contents of the
foregoing.
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“Producing Party” means any party or third person producing discovery materials,
whether pursuant to the applicable civil rules, by subpoena, or by agreement.
“Receiving Party” means any party receiving discovery materials from a producing
party, whether pursuant to the applicable civil rules, by subpoena, or by
agreement.
“Disclose” (and any variant thereof) means to show, give, make available,
reproduce, or communicate any discovery materials, or any part or content
thereof.
“Confidential Discovery Materials” means any discovery materials that are
designated in good faith as “Confidential” by any party or third person.
Confidential Discovery Materials are those materials that constitute or contain
personal or confidential information of the parties to the action or third parties,
including personnel/employment information and other confidential or
proprietary information.
“Attorneys of Record” means attorneys of record for any of the parties to this
action, members of the firm of the attorneys of record for the parties, and any inhouse attorneys who are employed by the parties.
2.

Any Confidential Discovery Materials produced by the producing party and

designated as such shall be used solely for the purposes of this litigation and shall not be
used by the parties for any other litigation, except by agreement of the parties or subject
to a Court Order.
3.

Medical records received pursuant to a written HIPAA compliant

authorization shall be deemed confidential and subject to this Protective Order and shall
not be used for any purpose beyond this litigation.
4.

Disclosure of Confidential Discovery Materials other than in accordance

with the terms of this Order may subject the disclosing party to such sanctions and
remedies as the Court may deem appropriate.
5.

Subject to the terms, conditions, and restrictions of this Order, Confidential

Discovery Materials marked “Confidential” may be disclosed only to the following persons

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and only to the extent such persons have a legitimate need to know the particular
Confidential Discovery Materials disclosed to them:
-

Persons employed by the Court and the jury empaneled in connection with the
handling of this action;

-

Attorneys of Record;

-

Employees of the Attorneys of Record working under the direct supervision of such
Attorneys of Record;

-

The parties, including current employees, officers, partners or directors;

-

Outside experts or consultants provided that prior to any disclosure the Attorney
of Record who retains the outside expert or consultant obtains such expert’s or
consultant’s agreement to the non-disclosure agreement described in paragraph 6
below;

-

Certified shorthand reporters and videotape operators for the purposes of
recording the testimony of deposition witnesses and preparing a written or
videotaped record of testimony;

-

Any other person who is designated by written stipulation of the parties to have
access to Confidential Discovery Materials, or by order of the Court after notice to
all parties upon a showing of good cause why such person shall be so designated
and opposing parties have had an opportunity to be heard in opposition thereto.
6.

Any party desiring to designate particular Discovery Materials as

Confidential Discovery Materials must place upon such materials in a conspicuous
manner so as to not obliterate, cover, or interfere with the reading of such material a
marking which reads: “CONFIDENTIAL.”
7.

Discovery Materials disclosed at a deposition may be designated by a party

as Confidential Discovery Materials by indicating on the record at the deposition that the
specific part of the testimony and/or any exhibits marked for identification is confidential
and is subject to the provisions of the Order. In such situations, the questions and answers
designated as confidential may be transcribed separately from the remainder of the
deposition. Counsel for any party may exclude from the room during any portion of a
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deposition any person not entitled under this Order to receive Confidential Discovery
Materials while such materials are being disclosed and/or discussed. A party may also
designate discovery materials disclosed at such depositions as confidential by notifying
all parties in writing, within fifteen (15) days of receipt of the transcript by the attorneys
of record for the designating party, of the specific pages and lines of the transcript which
contain Confidential Discovery Materials. Each party shall attach a copy of such written
statement to the face of the transcript and each copy thereof in his or her possession,
custody or control. During such fifteen (15) day period, all Discovery Materials shall be
treated as Confidential Discovery Materials.
8.

By making any such Confidential Discovery Materials available during the

course of this litigation, the producing party does not waive any confidential protection
that might otherwise be afforded over those materials. Furthermore, by designating any
Discovery Materials “Confidential,” the parties do not acknowledge that any such
Discovery Materials are relevant or discoverable in this action. This Order shall not
constitute a waiver of any right to seek discovery of, or alternatively to resist discovery of,
any material in this action.
9.

Inadvertent failure to designate Discovery Materials as confidential at the

time of production may be remedied by supplemental written notice. If such notice is
given, the identified materials shall thereafter be fully subject to this Order as if they had
initially been designated as Confidential Discovery Materials, provided that there shall be
no sanction for any use or disclosure of such material prior to designation. The
inadvertent disclosure by the producing party of Confidential Discovery Materials,
regardless of whether such materials were so designated at the time of disclosure, shall
not be deemed a waiver, in whole or in part, of a party’s claim of confidentiality, either as
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to the specific discovery materials disclosed or as to any other Discovery Materials
relating thereto or on the same or related subject matter.
10.

If a receiving party desires to disclose any part of any Confidential Discovery

Materials in any manner not in accordance with the terms of this Order, the party seeking
to make such disclosure shall obtain the written agreement of the producing party to so
proceed or, in the absence of such agreement, shall seek the approval of the Court by way
of a motion filed with the Court.
11.

This Order is without prejudice to any party’s right to assert the attorney-

client, work product, or other privileges or doctrines, or to any party’s right to contest the
designation of Confidential Discovery Materials. A party shall not be obligated to
challenge the designation of any particular Discovery Materials as being confidential at
the time such designation is made and failure to do so shall not preclude a subsequent
challenge thereto. If any party to this litigation disagrees at any point in these proceedings
with the designation by the producing party of Discovery Materials as being confidential,
the parties shall first try to dispose of such dispute in good faith on an informal basis by
conferring directly with counsel for the producing party. The challenging party must
explain the basis for its belief that the designation was not proper and must give the
producing 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
designation. If the dispute cannot be resolved, the objecting party may seek appropriate
relief from the court. Any objections to such a designation, when made, shall be in writing
and shall specify the nature of any objection. Any designated Confidential Discovery
Materials shall remain as such under the terms of this Order until the Court makes a
determination otherwise.
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12.

Nothing in this Order restricts or affects the rights of the producing party to

use or disclose any Confidential Discovery Materials produced by such party. Any such
use or disclosure of Confidential Discovery Materials by the producing party shall not be
deemed a waiver of the terms of this Order. Nothing in this Order, or any proceeding
undertaken pursuant hereto, shall be deemed to have the effect of a waiver by any Party
of, or otherwise deemed to alter the confidentiality or non-confidentiality of, any
information. Nor shall compliance with this Order operate as an admission as to the
admissibility of any information.
13.

All Discovery Materials provided by non-parties may be made, by separate

written agreement, specifically subject to the terms of this Order. Such non-parties and/or
the parties may designate Discovery Materials as confidential in accordance with this
Order. Any designation by such non-parties and/or the parties shall have the same force
and effect as if made pursuant to the terms of this Order. The above-provisions relating
to a challenge on the assertion of confidential status shall apply to Discovery Materials
designated confidential by non-parties.
14.

Any confidential material disclosed in any pleading, motion, deposition

transcript, brief, exhibit, or other filing with the Court shall be maintained under seal. To
the extent such confidential filing is capable of redaction, the redacted version of the
document is to be filed on the public docket, with the unredacted version delivered in hard
copy to the Clerk’s Office for filing underseal. The redacted version of a confidential filing
may include, when necessary, slip sheets appropriately labeled “UNDER SEAL” to
indicate the exhibits or other materials that have been omitted in their entirety from the
public filing.

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15.

Confidential Discovery Material may be introduced by any party at the time

of trial or at any court hearing, provided that at the time that such material is introduced,
the Court shall issue such Order as it deems appropriate for maintaining the
confidentiality of such material.
16.

If a receiving party learns that, by inadvertence or otherwise, it has disclosed

any Confidential Discovery Materials to any person or in any circumstance not authorized
under this Protective Order, the receiving party must immediately (a) notify the
producing party in writing of the unauthorized disclosures, (b) use its best efforts to
retrieve all copies of the Confidential Discovery Materials, (c) inform the person or
persons to whom the unauthorized disclosures were made of all the terms of this
Protective Order, and (d) request such person or persons to execute the non-disclosure
agreement.
17.

The Parties shall confer in good faith prior to trial in an attempt to devise

protective procedures to be applicable at trial that are satisfactory to the Court.
18.

At the conclusion of this litigation, including any appeals from any

judgment or order entered by the Court and any retrial, at the request of the producing
party, the receiving party shall retrieve all Confidential Discovery Materials from
testifying experts, consulting experts, and any other person or non-governmental entity
to whom the receiving party has disclosed Confidential Discovery Materials, and shall
destroy all received Confidential Discovery Materials by such party and shall certify in
writing that such destruction has occurred.
19.

This Order shall be without prejudice to the right of the parties or any third

person to request additional protection under applicable laws for discovery requests

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hereafter served by any party or to seek modification of this Order upon a showing of good
cause.
20.

The terms of this Order shall not be construed as any limitation upon the

right of any party to offer into evidence any documents, response, or information
designated as confidential.
21.

This Order shall be binding upon the parties hereto, counsel for the parties,

and upon the parties’ and their counsels’ successors, executors, personal representatives,
administrators, heirs, legal representatives, assigns, subsidiaries, divisions, employees,
agents, independent contractors, and other persons or organizations over which they have
control. The parties, their counsel and employees of such counsel, and their expert
witnesses, consultants and representatives retained in connection with this action each
expressly stipulates to the personal jurisdiction of this Court for purposes of any
proceeding brought by a party to this action to enforce this Order.
22.

This Court retains jurisdiction over the parties, counsel for the parties, and

all persons, firms, corporations or organizations to whom this Order applies for purposes
of enforcement of this Order following the conclusion of this action.
Plaintiff’s Motion for Protective Order (ECF No. 29) is GRANTED.
IT IS SO ORDERED this 15th day of July 2021.

____________________________
Judge James M. Moody Jr.
United States District Judge

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