Beard v. Manpower US Inc et al
ORDER adopting the parties' 21 Joint Motion for Protective Order with minor changes. Signed by Judge D. P. Marshall Jr. on 7/29/2014. (jak)
IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
PINE BLUFF DIVISION
MANPOWER US INC.;
MANPOWERGROUP US INC.;
BRIDGETT RHODES; and RENAE PATTERSON
The parties have proposed an agreed protective order, which the
Court adopts with minor changes.
All materials produced or adduced in the course of
discovery, including initial disclosures, responses to discovery requests,
deposition testimony and exhibits, and information derived directly
therefrom (hereinafter collectively documents"), shall be subject to this
Order concerning Confidential Information as defined below. This Order is
subject to the Local Rules of this District and the Federal Rules of Civil
Procedure on matters of procedure and calculation of time periods.
2. Confidential Information. As used in this Order, Confidential
Information" means information designated as "CONFIDENTIAL" by the
producing party that falls within one or more of the following categories:
(a) information that reveals trade secrets or other confidential or
proprietary business information the disclosure of which would potentially
cause competitive harm; (b) research, technical, commercial or financial
information that the party has maintained as confidential;
information concerning any individual; (d) personal identity information;
(e) income tax returns (including attached schedules and forms), W-2 forms
and 1099 forms; or (f) personnel or employment records of a person who is
not a party to the case. Information or documents that are available to the
public may not be designated as Confidential Information.
3. Designation. A party may designate a document as Confidential
Information for protection under this Order by placing or affixing the
words "CONFIDENTIAL" on the document and on all copies in a manner
that will not interfere with the legibility of the document. As used in this
Order, "copies" includes electronic images, duplicates, extracts, summaries
or descriptions that contain the Confidential Information. The marking
"CONFIDENTIAL" shall be applied before or at the time of the documents
are produced or disclosed. Applying the marking "CONFIDENTIAL" to a
document does not mean that the document has any status or protection by
statute or otherwise except to the extent and for the purposes of this Order.
Any copies that are made of any documents marked uCONFIDENTIAL"
shall also be so marked, except that indices, electronic databases or lists of
documents that do not contain substantial portions or images of the text of
marked documents and do not otherwise disclose the substance of the
Confidential Information are not required to be marked.
4. Depositions. Deposition testimony is protected by this Order only
if designated as uCONFIDENTIAL" on the record at the time the testimony
is taken. This designation shall be specific as to the portions that contain
Deposition testimony so designated shall be
treated as Confidential Information protected by this Order until fourteen
days after delivery of the transcript by the court reporter to any party or
Within fourteen days after delivery of the transcript, a
designating party may serve a Notice of Designation to all parties of record
identifying the specific portions of the transcript that are designated
Confidential Information, and thereafter those portions identified in the
Notice of Designation shall be protected under the terms of this Order. The
failure to serve a timely Notice of Designation waives any designation of
deposition testimony as Confidential Information that was made on the
record of the deposition, unless otherwise ordered by the Court.
5. Protection of Confidential Material.
(a) General Protections. Confidential Information shall not be used
or disclosed by the parties, counsel for the parties or any other persons
identified in subparagraph (b) for any purpose whatsoever other than in
this litigation, including any appeal.
(b) Limited Third-Party Disclosures. The parties and counsel for
the parties shall not disclose or permit the disclosure of any Confidential
Information to any third person or entity except as set forth in
subparagraphs (1)-(9). Subject to these requirements, the following
categories of persons may be allowed to review Confidential Information:
(1) Counsel. Counsel for the parties and employees of counsel
who have responsibility for the action;
(2) Parties. Individual parties and employees of a party but
only to the extent counsel determines in good faith that the
employee's assistance is reasonably necessary to the conduct of
the litigation in which the information is disclosed;
(3) The Court and its personnel;
(4) Court Reporters and Recorders. Court reporters and
recorders engaged for depositions;
(5) Contractors. Those persons specifically engaged for the
limited purpose of making copies of documents or organizing
or processing documents, including outside vendors hired to
process electronically stored documents;
(6) Consultants and Experts. Consultants, investigators, or
experts employed by the parties or counsel for the parties to
assist in the preparation and trial of this action;
Witnesses at depositions.
During their depositions,
witnesses in this action to whom disclosure
Witnesses shall not retain a copy of documents
containing Confidential Information, except witnesses may
receive a copy of all exhibits marked at their depositions in
connection with review of the transcripts. Pages of transcribed
deposition testimony or exhibits to depositions that are
designated as Confidential Information pursuant to the process
set out in this Order must be separately bound by the court
reporter and may not be disclosed to anyone except as
permitted under this Order.
(8) Author or recipient. The author or recipient of the
document (not including a person who received the document
in the course of litigation); and
(9) Others by cdnsent. Other persons only by written consent
of the producing party or upon order of the Court and on
conditions as may be agreed or ordered.
Control of Documents.
Counsel for the parties shall make
reasonable efforts to prevent unauthorized or inadvertent disclosure of
Confidential Information. Counsel shall maintain the originals of the forms
signed by persons acknowledging their obligations under this Order for a
period of three years after the termination of the case.
Inadvertent Failure to Designate.
An inadvertent failure to
designate a document as Confidential Information does not, standing
alone, waive the right to so designate the document; provided, however,
that a failure to serve a timely Notice of Designation of deposition
testimony as required by this Order, even if inadvertent, waives any
protection for deposition testimony. If a party designates a document as
Confidential Information after it was initially produced, the receiving
party, on notification of the designation, must make a reasonable effort to
assure that the document is treated in accordance with the provisions of
this Order. No party shall be found to have violated this Order for failing
to maintain the confidentiality of material during a time when that material
has not been designated Confidential Information, even where the failure
to so designate was inadvertent and where the material is later designated
Filing of Confidential Information. This Order does not, by
itself, authorize the filing of any document under seal. Any party wishing
to file a document designated as Confidential Information in connection
with a motion, brief or other submission to the Court must comply with
Local Rules and Federal Rule of Civil Procedure 5.2' s redact-if-possible
Challenges by a Party to Designation as Confidential
Information. The designation of any material or document as Confidential
Information is subject to challenge by any party. The following procedure
Meet and Confer.
A party challenging the designation of
Confidential Information must do so in good faith and must begin the
process by conferring directly with counsel for the designating party. In
conferring, the challenging party must explain the basis for its belief that
the confidentiality designation was not proper and must g1ve the
designating party an opportunity to review the designated material, to
reconsider the designation, and, if no change in designation is offered, to
explain the basis for the designation. The designating party must respond
to the challenge within five business days.
A party that elects to challenge a
confidentiality designation may file and serve a motion that identifies the
challenged material and sets forth in detail the basis for the challenge.
Each motion must be accompanied by a competent declaration that affirms
that the movant has complied with the meet and confer requirements of
this procedure. The burden of persuasion in any challenge proceeding
shall be on the designating party. Until the Court rules on the challenge,
all parties shall continue to treat the materials as Confidential Information
under the terms of this Order.
Action by the Court. Applications to the Court for an order
relating to materials or documents designated Confidential Information
shall be by motion. Nothing in this Order or any action or agreement of a
party under this Order limits the Court's power to make orders concerning
the disclosure of documents produced in discovery or at trial.
Use of Confidential Documents or Information at Trial.
Nothing in this Order shall be construed to affect the use of any document,
material, or information at any trial or hearing. A party that intends to
present or that anticipates that another party may present Confidential
Information at a hearing or trial shall bring that issue to the Court's and
parties' attention by motion or in a pretrial memorandum without
disclosing the Confidential Information. The Court may thereafter make
orders as are necessary to govern the use of the documents or information
11. Confidential Information Subpoenaed or Ordered Produced in
(a) If a receiving party is served with a subpoena or an order issued
In other litigation that would compel disclosure of any material or
document designated in this action as Confidential Information, the
receiving party must notify the designating party, in writing, immediately
and in no event more than three court days after receiving the subpoena or
order. This notification must include a copy of the subpoena or court
(b) The receiving party also must immediately inform 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 the subject
of this Order. In addition, the receiving party must deliver a copy of this
Order promptly to the party in the other action that caused the subpoena to
(c) The purpose of imposing these duties is to alert the interested
persons to the existence of this Order and to afford the designating party in
this case an opportunity to try to protect its Confidential Information in the
court from which the subpoena or order issued. The designating party
shall bear the burden and the expense of seeking protection in that court of
its Confidential Information, and nothing in these provisions should be
construed as authorizing or encouraging a receiving party in this action to
disobey a lawful directive from another court. The obligations set forth in
this paragraph remain in effect while the party has in its possession,
custody or control Confidential Information by the other party to this case.
12. Challenges by Members of the Public to Sealing Orders. A
party or interested member of the public has a right to challenge the sealing
of particular documents that have been filed under seal, and the party
asserting confidentiality will have the burden of demonstrating the
propriety of filing under seal.
13. Obligations on Conclusion of Litigation.
(a) This Order shall remain in force for one year after the conclusion
of this litigation, including all appeals. Thereafter, this Order shall remain
a contract between the parties.
(b) Within sixty-three days after dismissal or entry of final judgment
not subject to further appeal, all Confidential Information and documents
marked "CONFIDENTIAL" under this Order, including copies as defined
in ,-r 3(a), shall be returned to the producing party unless: (1) the document
has been offered into evidence or filed without restriction as to disclosure;
(2) the parties agree to destruction to the extent practicable in lieu of
return;1 or (3) as to documents bearing the notations, summations, or other
mental impressions of the receiving party, that party elects to destroy the
documents and certifies to the producing party that it has done so.
Notwithstanding the above requirements to return or destroy documents,
The parties may choose to agree that the receiving party
documents containing Confidential Information and certify
destruction, and that the receiving party shall not be required to
and return e-mails (including attachments to e-mails) that
Confidential Information, or Confidential Information contained
transcripts or drafts or final expert reports.
the fact of
counsel may retain attorney work product, including an index that refers
or relates to designated Confidential Information so long as that work
product does not duplicate verbatim substantial portions of Confidential
Information, and one complete set of all documents filed with the Court
including those filed under seal. An attorney may use his or her work
product in later litigation provided that its use does not disclose or use
Deletion of Documents Filed under Seal from ECF System.
Filings under seal shall be deleted from the ECF system only upon order of
14. Order Subject to Modification. This Order shall be subject to
modification by the Court on its own initiative or on motion of a party or
any other person with standing concerning the subject matter.
15. No Prior Judicial Determination. This Order is entered based on
the representations and agreements of the parties and for the purpose of
facilitating discovery. Nothing shall be construed or presented as a judicial
determination that any document or material designated Confidential
Information by counsel or the parties is entitled to protection under Rule
26(c) of the Federal Rules of Civil Procedure or otherwise until such time as
the Court may rule on a specific document or issue.
16. Persons Bound. This Order shall take effect when entered and
shall be binding upon all counsel of record and their law firms, the parties,
and persons made subject to this Order by its terms.
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