Van Horn v. Martin et al

Filing 23

PROTECTIVE ORDER. Signed by Judge D. P. Marshall Jr. on 3/28/2014. (jak)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
PINE BLUFF DIVISION
PLAINTIFF

YEVONNE VAN HORN
VS.

CASE NO.: 5:13-CV-0074-DPM

ARKANSAS SECRETARY OF STATE,
MARK MARTIN, In his Official Capacity as
ARKANSAS SECRETARY OF STATE,
DARRELL S. HEDDEN, In his Individual
And Official Capacity as Chief of Police for
STATE CAPITOL POLICE

FILED

U.S. DISTRICT COURT
EASTERN DISTRidT ARKANSAS

MAR 2'8 2014
JAM~W.~cCORMACK, CLERK
By: ..L:: >c frv'l:1.n . . . . .
DEPCL!iiRK

DEFENDANTS

PROTECTIVE ORDER
The Parties to this proceeding having determined that certain documents and information
produced or to be produced during discovery in this litigation should be kept confidential in
order to protect the legitimate interests of the Parties and other persons, including non-parties to
this litigation. The Parties agree on all provisions of this Order except paragraph 25 which the
Court has resolved.
Definitions
1.

For the purposes of this Order:
(a)

"Document" includes all tangible written, recorded or graphic material,

and intangible data files in accordance with Rules 26 and 34 of the Federal Rules of Civil
Procedure.
(b)

"Confidential Information" means any trade secret or other confidential

financial, commercial, governmental or regulatory information, or personally identifiable
information contained in any document or testimony that is entitled to such protection due to its
sensitivity; and includes, specifically, identifiable health information, personal financial
information, non-public parts of any and all personnel records including all records not leading
to termination or suspension.

(c)

"Party" means a named Plaintiff or Defendant, its employees and agents in

the above-captioned action.
(d)

"Third Party" means any natural person, partnership, corporation,

association, or other legal entity that is not named as a Party to the above-captioned actions and
that produces documents or information in the above-captioned actions.
(e)

The "Permitted-Use Action" means the Second Amended Complaint (and

any subsequent amendments and Answers thereto).
Permissible Use of Confidential Information

2.

All persons obtaining access to Confidential Information in the Permitted-Use

Action shall use the documents or information only for purposes of the Permitted-Use Action,
including any appeals, and shall not use these documents or information for any other purpose,
including, without limitation, for any administrative or other judicial proceeding unless
requested through discovery in those proceedings. This Stipulated Protective Order shall not
restrict the use or disclosure of documents or information not obtained as a result of these
actions.
3.

Confidential Information shall not be copied or reproduced except to the extent

copying or reproduction is reasonably necessary to the conduct of the Permitted-Use Action, and
all copies or reproductions shall be subject to the terms of this Stipulated Protective Order. If the
duplicating process by which copies or reproductions of Confidential Information are made does
not preserve the confidentiality designation that appears on the original documents, all copies or
reproductions shall be stamped "CONFIDENTIAL".

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Designation of Confidential Information

4.

A Party or Third Party may designate documents or information provided as

Confidential Information by placing on or affixing to a document containing such information
(in such manner as will not interfere with the legibility thereof) the words "CONFIDENTIAL"
on each page of the document entitled to such designation. In the case of documents produced in
electronic form where it is not practicable to place the designation on each page produced, or
where for other reasons such placement is not practicable, the designation shall be placed on the
disc or other medium by which the documents are produced.
5.

A "CONFIDENTIAL" designation shall constitute a representation to the Court,

made m good faith that counsel believes that the information so designated constitutes
Confidential Information as defined in this Stipulated Protective Order.
6.

Transcripts of depositions taken in these actions shall be given the protections

afforded Confidential Information under this Stipulated Protective Order for a period of forty
five (45) business days after a complete copy of the transcript has been provided to the deponent
or his or her counsel in order to give the Parties and Third Parties an opportunity to designate
information contained in that transcript as Confidential Information.
7.

No more than of forty five (45) business days after receipt of the complete

transcript, counsel for any of the Parties or the deponent may designate the portions of the
deponent's deposition that qualify as Confidential Information by page number and line number.
Such designation shall be communicated in writing to all Parties. Any Party or deponent may
also designate testimony or transcript pages as Confidential Information by notice on the record
at the deposition.

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Permissible Disclosure of Confidential Information

8.

No Confidential Information or any portion or summary thereof may be given,

shown, disclosed or communicated by the non-producing parties in any way to any person or
entity other than:
(a)

Attorneys of record for the Parties, including in-house attorneys, paralegal

assistants and secretaries, and employees or agents of counsel of record (including reputable
litigation support firms) to the extent reasonably necessary to render professional services in
these actions and provided that these persons are actively engaged in the prosecution or defense
of these actions;
(b)

Persons identified in a document designated as "CONFIDENTIAL" as an

author of the document in part or in whole, or persons to whom a copy of such document was
sent prior to its production in these actions;
(c)

Court officials involved in the Litigations;

(d)

Stenographic reporting personnel involved m taking or transcribing

testimony in the Litigation (including persons operating video equipment at depositions and
trial); and
(e)

Outside consultants or experts retained for the purpose of providing

testimony or assisting counsel in the Litigation.
(f)

Parties to this litigation;

(g)

Attorneys retained to represent Third Parties at hearings, depositions, or

trial;

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(h)

Any arbitrator, mediator, or other alternative dispute resolution facilitator

in front of whom the Parties agree to appear or are ordered to appear; and
(i)

Anticipated and actual deponents, trial witnesses and hearing witnesses in

this litigation, but only as necessary to their testimony or anticipated testimony and subject to the
provisions of, 10 and , 11.
9.

Notwithstanding the provisions of, 8, a person or Party is free to disclose its own

Confidential Information without restriction. Moreover, nothing shall prevent disclosure beyond
the terms of this Stipulated Protective Order if the Party or other person designating the
documents as Confidential Information expressly consents to such disclosure in writing.
Confidentiality Declaration

10.

Before any person described in, 8 (a), and 8(i), is given access to Confidential

Information, the individual to whom disclosure is to be made shall first read this Stipulated
Protective Order and then sign and date an agreement substantially in the form of the attached
hereto Exhibit A. A copy of such agreement(s) shall be held by counsel of record for the Party so
disclosing the Confidential Information. The agreement(s) executed pursuant to this paragraph
shall only be discoverable upon order of the Court for good cause shown in the context of a bona
fide dispute about compliance with this protective order.
11.

Confidential Information may be disclosed to any person referred to in , 8(i),

only on the condition that such person is provided with a copy of this Stipulated Protective Order
and is informed that he or she is bound by this Stipulated Protective Order on the record of the
hearings, trial or depositions. Such person shall be bound by this Stipulated Protective Order.

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12.

Counsel for the Parties to whom Confidential Information has been furnished

shall be responsible for restricting disclosure in accordance with the provisions of this Stipulated
Protective Order, and shall take reasonable precautions with regard to storage, custody, and use
to prevent the unauthorized or inadvertent disclosure of Confidential Information.
13.

If any Confidential Information is filed or otherwise presented to the Court by any

Party in a manner that requires its inclusion in the file maintained in the Clerk's Office, unless
the Parties agree otherwise, the documents shall be redacted if practicable, and if not, the
document shall be filed under seal, which means, in a sealed envelope marked
"CONFIDENTIAL" with the case caption and a brief title or exhibit number describing the
enclosed material on the front of the envelope.

This Paragraph shall not prevent the use of any

document or data designated as Confidential Information in connection with mediation,
facilitation, motions, or other Court-ordered proceedings, provided that the use of the
documents/information is in accordance with this Stipulated Protective Order. Where
practicable, only confidential portions of filings with the Court shall be filed under seal. A public
copy of such court papers with all Confidential Information redacted therefrom may also be filed
in the Clerk's office.
14.

All documents and every portion thereof designated as Confidential Information

and produced pursuant to any discovery procedure or informal exchange of documents in this
matter, shall be considered Confidential Information for purposes of this Stipulated Protective
Order and shall only be used by the non-producing parties for the preparation for and conduct of
proceedings herein and not for any business or other purpose whatsoever. However, the nonproducing party may challenge the Confidential Information designation at any time up to the

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end of discovery. Upon filing a motion challenging confidentiality, the burden shall be upon the
party asserting confidentiality to sustain such designation. In any event, all documents shall be
treated as Confidential Information until agreed otherwise or until the Court issues an Order
declaring that such documents shall not be considered Confidential.
15.

Any party that inadvertently produces documents or information that it believes to

contain Confidential Information but fails to so designate reserves the right to make this
designation at any later time. However, no other party shall be deemed to have violated this
order by disclosing or disseminating such documents or information at any time prior to the time
at which the belated designation is made. The failure to designate information in accordance
with this Stipulated Protective Order shall not preclude the filing of a motion at a later date
seeking to impose this designation or challenge the propriety thereof.
16.

Any document designated as Confidential Information may be used to examine or

cross-examine any witness at any hearing, deposition, or trial in this action. However, to the
extent that any other person is present at such hearing, deposition, trial, or other legal proceeding
and is not a person to whom the designated Confidential document or information may be
disclosed, and subject to any agreement or order from the Court, there shall be no disclosure of
the designated Confidential Information or document unless and until all such persons are
excluded from the proceeding during the disclosure or use of the material. Every court reporter
taking any testimony relating to designated Confidential Information shall be informed of and
provided with a copy of this Stipulated Protective Order, and shall adhere to its provisions.

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Non-Waiver of Privileges

17.

The inadvertent production in the course of discovery in these actions of any

document or information (whether designated as Confidential Information or not) shall not be
deemed to waive whatever attorney-client privilege, work product protection or other privilege
or immunity that would otherwise attach to the document or information produced or to other
documents or information, so long as the producing Party or person, promptly after discovery,
notifies the other Party or Parties of the claim of privilege or other protection or immunity. Upon
notice, the other Party or Parties shall promptly destroy all copies of the referenced documents or
information and notify the producing Party or person that he, she or it has done so. This
destruction and notice shall not constitute an acknowledgment that the claimed document or
information is in fact privileged or entitled to protections or immunity.
Non-waiver of Objection to Discovery

18.

Nothing shall affect any Party's or person's right to object to any discovery

request, including the right to assert that no discovery should be had of certain documents or
information. Nor shall anything affect any Party's right to seek the production of documents,
testimony or any other information from any other source.
Non-waiver of Arguments

19.

Nothing shall constitute any waiver of (a) any right or argument concerning the

scope of the discovery to which a Party may contend it is entitled or (b) any argument a Party
may have that documents or information designated by another Party or person as Confidential
Information are not in fact entitled to such protection.

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Subpoenas Seeking Confidential Information

20.

If any Party or person that has obtained Confidential Information under the terms

of this Stipulated Protective Order receives a subpoena or other legal process commanding the
production of any such documents or information (the "subpoena"), such Party or person shall
promptly notify in writing the Party or person that designated the information or documents as
Confidential Information of the service of the subpoena. The Party or person receiving the
subpoena shall not produce any Confidential Information in response to the subpoena without
either (i) the prior written consent of the Party or person that designated the documents or
information as Confidential Information, (ii) at least three weeks having elapsed after providing
the designating Party or person with written notice under this paragraph, in order to allow that
Party or person to seek relief from the subpoena, or (iii) an order of a court of competent
jurisdiction. However, the Party or person that designated such Confidential Information in such
case shall have the burden of seeking a court order relieving the subpoenaed Party or person of
the obligations of the subpoena prior to the return date of such subpoena, or the subpoenaed
person or Party shall be relieved of its obligations under this paragraph.
Procedure Upon Termination of Litigation

21.

The provisions of this Stipulated Protective Order shall not terminate at the

conclusion of this litigation.

Within 45 days after final termination of the Permitted Use

Actions, including by judgment, settlement, appeals or otherwise (if no appeal is taken then 45
days after the time for appeal shall have ended)(the "Return or Destruction Date"), all
Confidential Information furnished or produced under the terms of this Stipulated Protective
Order, and all copies of same,

and all documents containing, quoting from, or otherwise

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disclosing the specific contents of Confidential Information, except one copy of pleadings filed
with the Court, Agreement Concerning Confidentiality executed pursuant to this Stipulated
Protective Order, all exhibits marked in discovery or at trial, and materials which, in the
judgment of the attorney in possession of the materials, are work product materials, shall be
destroyed or delivered to counsel for the producing Party, unless otherwise agreed in writing.
The above-described pleadings, exhibits, and work product materials may be retained in
confidence under the terms of this Stipulated Protective Order by outside counsel for the Party.
All Parties or persons that received Confidential Information pursuant to the terms of this
Stipulated Protective Order shall certify compliance with this section and shall deliver same to
counsel for the person that produced the Confidential Information not later than the Return or
Destruction Date. The Court shall retain jurisdiction for one year from the conclusion of the
case to resolve any disputes under this Order. Thereafter this Order is a contract between the
parties.
22.

This Stipulated Protective Order is without prejudice to the right of any Party to

seek relief from the Court from any of the restrictions provided above upon good cause shown or
for any other grounds provided by applicable law.
23.

The Court shall have the discretion to impose sanctions upon any person who

grants access to Confidential Information for any purpose other than the preparation or trial of
this matter or who otherwise violates the terms of this Stipulated Protective Order, including
sanctions, costs, attorneys' fees and other appropriate relief to the original disclosing party.

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Amendment of This Stipulated Protective Order

24.

The provisions of this Stipulated Protective Order may be modified only by order

of the Court. Any Party or Third Party is free to request such modification for good cause
shown.
Limited Scope of Protective Order

25.

Disclosure of information may be limited by court order under the explicit

exceptions to the Arkansas Freedom of Information Act.

If the parties disagree during

discovery in this case regarding how the AFOIA applies, the parties are directed to let the Court
know by joint report. The Court will rule once concrete circumstances are presented. Neither
Plaintiff or her counsel or anyone bound by the Order shall be held in contempt by republishing
facts inadvertently placed in public records in Burton v. Arkansas Secretary of State No.4:11CV-710KGB.
To minimize future disclosure or publications the parties shall follow the terms of this
Order in handling Burton material.

The disclosing party will create a confidential log

containing names of persons and corresponding numeric code, whose personnel matters are
being disclosed.

The log will be filed under seal with the Court.

Information produced

pursuant to discovery requests will then be redacted to remove confidential identifying
information and the corresponding numeric code will be used to identify each current or former
employee of the Secretary of State.

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SO ORDERED.

D.~;:.d/7
United States District Judge

APPROVED AS TO FORM:
Attorney for Plaintiff
By: /s/ Robert Newcomb
Robert Newcomb, Bar No. 73087
Attorney at Law
400 W. Capitol Avenue, Suite 1700
Little Rock, AR 72201
[phone]
[e-mail]

And
Attorney for Defendants
By: /s/ Denise Reid Hoggard
DENISE REID HOGGARD, Bar No. 84072
Rainwater, Holt & Sexton, PA
POBox 17250
Little Rock, Arkansas 72222
[phone]
[phone] Fax
[e-mail]

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"EXHIBIT "A"
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
PINE BLUFF DIVISION

PLAINTIFF

YEVONNE VAN HORN

vs.

CASE NO.: 5:13-CV-0074-DPM

ARKANSAS SECRETARY OF STATE,
MARK MARTIN, In his Official Capacity as
ARKANSAS SECRETARY OF STATE,
DARRELL S. HEDDEN, In his Individual
And Official Capacity as Chief of Police for
STATE CAPITOL POLICE

DEFENDANTS

AGREEMENT CONCERNING CONFIDENTIALITY
I, _ _ _ _ _ _ _ _ _ _, do hereby acknowledge that I have read a copy of the
attached Stipulated Protective Order, and I agree to be bound by the terms of the Stipulated
Protective Order. I agree to use the information provided to me in this case only for purposes of
this litigation, and to be subject to the jurisdiction of this Court for enforcement of all terms of

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the Stipulated Protective Order and for judicial action for any violation of the Stipulated
Protective Order.
I understand that my failure to abide by the terms of the Stipulated Protective Order may
subject me to penalties for contempt of Court.
I submit to the jurisdiction of the Court in this litigation for the purpose of enforcing the
terms of the Stipulated Protective Order, and freely and knowingly waive any right that I may
otherwise have to object to the jurisdiction of said Court for said purpose.

DATED this ___ day of _ _ _ _ _ _ _ 20_ _

STATE OF _ _ _ __
COUNTY OF _ _ __

)
)

Subscribed and sworn to before me this ___ day of _ _ _ _ 20

Notary Public
My commission expires: _ _ __

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