Gates v. First Orion Corp

Filing 17

PROTECTIVE ORDER. Signed by Judge Lee P. Rudofsky on 11/13/2023. (ldb)

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
CENTRAL DIVISION
DONNIE GATES
v.

PLAINTIFF
Case No. 4:23-cv-00695-LPR

FIRST ORION CORP.

DEFENDANT
PROTECTIVE ORDER

On this, the 13th day of November, 2023, the Court reviewed the stipulation and agreement
for a Protective Order, and makes the following Orders. The following governs discovery in this
matter (i.e., produced documents, answered interrogatories, deposition testimony, and deposition
exhibits):
1.

Confidential Information, as later defined herein, that is obtained by one party from

the other in this action, shall be used by the party receiving such Confidential Information only for
the purpose of this specific litigation (Case No. 4:23-cv-00695-LPR) and for no other purpose
whatsoever, and shall not be given, shown, made available or communicated in any way to anyone
except Qualified Persons, as herein defined or without leave of the Court. Notwithstanding the
foregoing, or anything else in this Protective Order, nothing in this Protective Order automatically
entitles a party to a sealed courtroom or transcript during any part of the trial.
2.

Confidential Information shall include any document(s) containing confidential

personal information, such as social security numbers, contact information, and dates of birth;
documents relating to the operation and organization of First Orion Corp. (First Orion), or Donnie
Gates (Gates), that may be sensitive; and payroll, customer/client information and financial

information, personnel files, or other personnel information of current or former employees of
First Orion, financial information, and information on others who are not parties to this litigation.
Notwithstanding the foregoing, Confidential Information shall not include information that is
publicly known or publicly available prior to being disclosed, furnished, or submitted in this
litigation. Counsel shall not use the confidentiality designation except where counsel has a good
faith belief that the documentation/information meets the criteria of this Paragraph 2 and is
consistent with the intent of this Order. For example, and without limitation, counsel shall not use
the confidential designation for tactical purposes, or otherwise to gain advantage in this litigation
or to conceal or encumber non-sensitive information.
3.

Any Confidential Information such as set forth in Paragraph 2 herein as may be,

from time to time, produced by either party herein must be declared by that party at the time of
production to be “Confidential Information.” To designate a document as one containing
confidential information, the producing party must conspicuously mark the document’s front page
and/or bates stamp the document with the word “confidential” or “Confidential Information,” or
may be designated as confidential by bates number, and if not otherwise provided in the response
or via the document, should provide the recipient with sufficient information to identify the
confidential documents being produced. No person shall have any liability for disclosure, view,
use or dissemination of any document or information in violation of this Protective Order unless
prior to disclosure, view, use and/or dissemination complained of, the document or information
was designated “CONFIDENTIAL” or “CONFIDENTIAL – SUBJECT TO PROTECTIVE
ORDER” by the producing party. No marking shall cover up any substance within the document.
4.

To designate an interrogatory answer as confidential, the answering party should

insert the word “confidential” in brackets at the beginning of each answer claimed to contain

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confidential information. The designation of an answer to an interrogatory as confidential can be
made after the responding party has otherwise provided the response to the interrogatory, by
designating it as “confidential” as described in Paragraph 4.
5.

Information disclosed at (a) the deposition of a party or one of its present or former

officers, directors, employees, agents, consultants, representatives, or independent experts retained
by counsel for the purpose of this litigation, or (b) the deposition of a nonparty may be designated
by any party as Confidential Information by indicating on the record at the deposition that the
testimony is “Confidential” and/or is subject to the provisions of this Order. Any party may also
designate deposition testimony as confidential. Parties should designate parts of a deposition as
confidential by notifying all parties in writing not later than 30 days after receipt of the transcript
of the specific pages and lines of the transcript that should be treated as Confidential Information
thereafter.
6.

Nothing contained in this Order shall preclude any party from: (i) designating that

party’s own information as Confidential Information; (ii) using that party’s own Confidential
Information in the regular course of its business; or (iii) revealing that party’s own Confidential
Information to whomever it chooses. However, this Paragraph shall not be interpreted as allowing
any party to: (i) designate the opposing party’s information as Confidential Information; (ii) use
the opposing party’s Confidential Information in the regular course of business; or (iii) reveal the
opposing party’s Confidential Information to anyone, except as set forth herein.
7.

In the event that counsel for any signatory to this Order at any time believes that

Confidential Information should cease to be so designated, such counsel shall so notify counsel
for the designating party. Counsel for the challenging and designating parties shall confer in good
faith within 10 business days of such notification in an effort to resolve the matter by agreement.

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If agreement is not reached within 10 business days, the party claiming confidentiality shall have
the burden of moving, upon proper notice, within 10 business days to obtain an appropriate order.
In the event that such a motion is made, any disputed Discovery Material shall remain subject to
and protected by this Order until further order of the Court on the motion. A party shall not be
obligated to challenge the propriety of a designation of Confidential Information at the time such
designation is made, and a failure to do so shall not preclude a subsequent challenge to the
designation.
8.

Confidential information may not, without the written consent of the disclosing

party or a court or administrative tribunal order, be given, shown, made available, or
communicated to anyone except the following “Qualified Persons”:
A.

Anyone to whom the parties agree in writing or the Court or administrative
tribunal orders;

B.

The party, if a natural person;

C.

If the party is an entity, such officers or employees of the party who are
actively involved in the prosecution or defense of this case who, prior to
any disclosure of Confidential information to such person, have signed the
attached Exhibit 1, thereby agreeing to be bound by the terms of this
Protective Order (such signed document to be maintained by the attorney
designating such person).

D.

The parties’ current or future lawyers, counsel’s employees, expert
witnesses, or agents who are assisting counsel in connection with this case;

E.

Any court or administrative tribunal and its staff (including court reporters
and recorders engaged for depositions);

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F.

Lay witnesses at trial or deposition and to whom disclosure is reasonably
necessary;

9.

G.

The original author or recipient of the document; and

H.

The jury.

Experts to whom the parties’ counsel provides confidential information shall, prior

to receipt, read a copy of this Order and execute an undertaking in the form attached as Exhibit 1,
affirming that the recipient (a) has read this Protective Order and understands its terms, (b) agrees
to abide by and to be bound by the terms of same; and (c) agrees to submit to the Court’s
jurisdiction for purposes of enforcement of this Protective Order. Counsel shall retain such
undertaking until such time as this litigation, including all appeals, is concluded.
10.

When giving confidential information to anyone (other than a court, administrative

tribunal, jury, or its staff, counsel of record or their employees) the disclosing party must provide
the recipient with a copy of this order.
11.

Production of documents or information containing confidential information that a

party failed to designate as Confidential Information shall not be deemed a waiver in whole or in
part of a claim for confidential treatment. Documents produced without designation as confidential
later may be designated and shall be treated as Confidential Information from the date written
notice of the designation is provided to the receiving party.
12.

If a receiving party learns of any unauthorized disclosure of Confidential

Information, the party shall immediately upon learning of such disclosure inform the producing
party of all pertinent facts relating to such disclosure and shall make all reasonable efforts to
prevent disclosure by each unauthorized person who received such information.

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13.

The parties may seek modification of this Order only after doing their good faith

best efforts to agree on changes. A motion seeking modification of this Order must state whether
the parties agree to the requested changes.
14.

This Order, insofar as it restricts the communication in any way and use of

Confidential Information, shall continue to be binding through the conclusion of this litigation,
and for one year after the conclusion of the litigation, including all appeals.
15.

If this matter is appealed to the Eighth Circuit or United States Supreme Court, and

a party intends to file a motion or response to a motion with the Court containing exhibits marked
by a party as confidential in this proceeding, subject to Orders of the Court, the pleading must be
filed under seal if redactions under Fed. R. Civ. P. 5.2 are impractical. 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 under seal. 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. If the case is appealed, the parties will seek a Protective Order consistent with the
terms of this Order, or as dictated by the Eighth Circuit or United States Supreme Court.
16.

The parties will comply with Fed. R. Civ. P. 5.2 as it relates to redaction. If

redaction is impractical, then Confidential Information may be filed with the Court and filed under
seal subject to Orders of the Court. Only the Court, Court’s personnel, Parties, and their counsel,
if any, shall have access to the sealed record in this proceeding until further Order of the Court.

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17.

Any party designating any person as a Qualified Person shall have the duty to

reasonably ensure that such person observes the terms of this Protective Order. Pursuant to Federal
Rule of Evidence 502, neither the attorney-client privilege nor work product protection is waived
by disclosure connected with this litigation.
18.

This Protective Order does not address any other appropriate discovery objections

or constitute a waiver of any objections to discovery, does not require the production of any
discovery, and does not preclude any party from challenging those objections or moving for relief
under the applicable rules of procedure or evidence., except on the basis of confidentiality.
19.

This Protective Order does not address any objections to admission of evidence at

trial or other pretrial proceedings.
IT IS SO ORDERED this 13th day of November, 2023.

_______________________________
LEE P. RUDOFSKY
UNITED STATES DISTRICT JUDGE
APPROVED:
Cynthia W. Kolb, Ark. Bar No. 2000156
Mary E. Buckley, Ark. Bar No. 2015215
ROSE LAW FIRM,
A Professional Association
TEL: [phone] / FAX: [phone]
120 E. Fourth Street
Little Rock, AR 72201
E-mail: [e-mail]
[e-mail]
COUNSEL FOR FIRST ORION CORP.
-And-

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Patrick R. James, Ark. Bar No. 82084
William JW James, Ark. Bar No. 20049
JAMES, HOUSE, SWANN & DOWNING, P.A.
801 West Third Street
P.O. Box 3585
Little Rock, AR 72203
E-mail: [e-mail]
[e-mail]
COUNSEL FOR DONNIE GATES

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EXHIBIT 1
UNDERTAKING REGARDING CONFIDENTIALITY
The undersigned individual hereby certifies that he/she has read the foregoing Protective
Order, understands the terms thereof, and agrees to be bound thereby personally if receiving
Confidential Information in the course of the above-captioned litigation.
I hereby submit to the jurisdiction of this Court for the purpose of enforcement of the
Protective Order in this action.
Date:____________________

Name.________________________

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