Culver v. Baldor Electric Company

Filing 16

PROTECTIVE ORDER. Signed by Honorable Paul K. Holmes, III on June 14, 2011. (lw)

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
FORT SMITH DIVISION
HEATHER M. CULVER
v.

PLAINTIFF
Case No. 2:10-CV-02145

BALDOR ELECTRIC COMPANY

DEFENDANT
PROTECTIVE ORDER

Before this Court is the parties’ Joint Stipulated Protective
Order. (Doc. 14-1). The Court has made only minor amendments to the
agreed protective order where it deemed such amendments to be
warranted. In accordance with the parties’ stipulated protective
order, the Court orders as follows:
IT IS STIPULATED AND AGREED by and between Plaintiff Heather
M. Culver (“Culver” or “Plaintiff”) and Defendant Baldor Electric
Company (“Baldor” or “Defendant”), after conferring in good faith
on the issues contained herein, and is ORDERED by the Court, that
the following terms and conditions shall govern the treatment of
confidential and proprietary information in this litigation:
1.
including

DEFINITIONS: In connection with discovery in this action,

responses,

the

production

deposition

of

documents

testimony

and

and

things,

exhibits,

that

discovery
contain

confidential, trade secret or other commercial information, as
those terms are used in Fed. R. Civ. P. 26(c)(7), or any other
information the disclosure of which would cause competitive harm,
embarrassment or oppression to the disclosing individual under Fed.
R. Civ. P. 26(c) (hereinafter “Confidential Information”), which a
party or nonparty deems to contain Confidential Information, may be
designated by such party as “CONFIDENTIAL” pursuant to the terms of

this Protective Order.
2. DESIGNATION:
(a) Production: Any documents, things, discovery responses or
depositions or portions thereof designated to be “CONFIDENTIAL”
shall be so designated by the producing party or nonparty at the
time of their production by stamping the designated materials with
the legend “CONFIDENTIAL,” or if necessary, by separate written
statement, or as set forth in Paragraph 3 of this Stipulation and
Protective Order.
(b) Depositions: If any question asked during a deposition
calls for the disclosure of Confidential Information, counsel for
the

disclosing

or

non-disclosing

party

shall,

to

the

extent

possible, designate those portions of the depositions for which
such claim is

made at the time the testimony is given. The

transcript or portions thereof shall be stamped “CONFIDENTIAL,”
except as otherwise set forth in Paragraph 3 of this Stipulated
Protective Order.
(i) Any party may appropriately designate portions of the
transcript of depositions as containing Confidential Information
after transcription as in the case of any other document or
tangible thing, provided that written notice of such designation is
given to the other party within 14 days after receipt of the
transcript. Following such notice the parties shall confer as to
the most convenient way to segregate the designated portions of
this transcript.
(ii) Receiving parties shall not disseminate a deposition
transcript or the contents thereof beyond the class of Qualified
Persons designated in subparagraph 6(a) herein for a period of 21

days after receipt to allow adequate time for notice as set forth
in subparagraph 2(b)(i) of this paragraph.
(c) Filing with the Court: All Confidential Information,
properly designated under this Protective Order, that is filed with
the Court during this litigation, shall be filed under seal with
the Clerk of Court in sealed envelopes or other appropriate sealed
containers, or in other similar manner approved by the Court. Such
material shall be labeled with the title of this action, an
indication of the nature of the content of such sealed envelope or
container, the designation of “CONFIDENTIAL” and a statement as
follows:
FILED UNDER SEAL BY [NAME OF PARTY] PURSUANT
TO THE PROTECTIVE ORDER ENTERED IN THIS
ACTION, AND IS TO BE MAINTAINED UNDER SEAL
UNTIL FURTHER ORDER OF THE COURT
Filing of Confidential Information under seal shall not prevent or
limit access in any manner consistent with this Order of that
information by the Court or counsel of record for the parties.
(d) The designation of any document as CONFIDENTIAL shall not
preclude any party from showing such Confidential Information to
any person who appears as the author or as an addressee or
recipient on the face of the document, or who has been identified
by the designating party as having been provided with the document
or the information therein by the designating party.
(e) Confidential Information shall be used solely for the
purposes of this litigation. Nothing in this Stipulation and
Protective Order is intended to prevent or restrict any party or
nonparty from using or disclosing its own Confidential Information
in any manner or for any purpose. This Order shall not restrict the

use or disclosure by a party or nonparty of materials obtained in
good faith

and

independently

of

discovery

in

this

action

or

obtained or obtainable from another source or already in the
possession

or

knowledge

of

a

party

or

nonparty,

who

is

not

obligated to maintain such documents in confidence.
(f) The terms of this Stipulated Protective Order shall not
prejudice the right of any party to introduce at trial information
designated as CONFIDENTIAL pursuant to this Order.
3. REDESIGNATION OF MATERIAL: A producing party or nonparty
may redesignate under Paragraphs 1 through 3 hereof any material
that it has previously produced, but did not previously designate
as

Confidential

Information,

provided,

however,

that

such

“redesignation” shall be effective only as of the date it is
received. The redesignating party or nonparty shall notify each
other party in writing specifically identifying the documents by
production number or otherwise and whether those documents should
be redesignated as CONFIDENTIAL. Upon receipt of such written
notice, receiving counsel shall:
(a)

immediately

redesignated

take

material

in

reasonable
the

steps

possession

to

of

retrieve

any

person

not

any

identified as a “Qualified Person” under Paragraph 6 hereof and
notify any person known to have possession of the material of the
effect of such designation;
(b)

if

not

objecting

to

the

redesignation,

affix

the

appropriate legend on the redesignated material in accordance with
Paragraphs 2 and 3 hereof;
(c) if objecting to the redesignation, counsel shall treat the
materials

at

issue

as

designated

pending

resolution

of

the

objection. Any objections shall be in accordance with Paragraph 5
hereof.
If the materials are redesignated in accordance with the terms
of

this

Stipulated

Protective

Order,

failure

to

originally

designate those materials as Confidential Material shall not be
deemed a waiver of any claims of confidentiality and shall not be
used as grounds for a claim of such a waiver.
4. PRIVILEGED MATERIAL: In the event that any privileged
materials are inadvertently produced, such production shall not be
deemed a waiver of the attorney-client privilege, work-product
doctrine or other privilege or immunity. Upon notification of such
inadvertent disclosure, the receiving party shall immediately make
every effort to prevent further disclosure of the materials,
collect and return any copies of the privileged materials and
inform any person(s) having received or reviewed such materials as
to the privileged nature of the materials.
5. OBJECTIONS: A party may move the Court for an order that
material designated as confidential or privileged information is
not, in fact, confidential or privileged. On such a motion, the
party asserting confidentiality or privilege shall have the burden
of

proving

that

the

information

designated

CONFIDENTIAL

or

PRIVILEGED embodies trade secrets or other confidential research,
development or commercial information or is otherwise entitled to
protection. Before such a motion is brought, the parties will
attempt to resolve their differences informally. No party shall be
obligated to challenge a confidential or privileged designation,
and failure to do so shall not preclude a subsequent challenge to
such a designation. Designations, challenges to designations, and

failures to challenge designations made pursuant to this Order are
not an admission or waiver of any party, and are not admissible in
evidence on the trial of any issue in this case, including the
issue of

whether

the information

is in

fact

confidential

or

privileged.
6. QUALIFIED PERSONS: Materials designated as Confidential
Information may be disclosed or made available by the party or
nonparty receiving such information only to a “Qualified Person,”
as defined below:
(a) Documents designated as CONFIDENTIAL may be disclosed to:
(i) the Court;
(ii) counsel of record to the parties to this action, and
the members and employees of the law firms of counsel of record,
and organizations retained by counsel to provide litigation support
services in this action and the employees of those organizations;
(iii) court reporters or stenographers whose services are
used in connection with this action, and other persons working for
such reporters or stenographers;
(iv) directors, officers and employees of each party, and
individuals named as parties, who must see such documents to assist
in the prosecution or defense of that party’s claims in the
lawsuit;
(v) any deponent during a deposition who is a former
employee, officer or director of the party that produced the
Confidential Information, who is not involved in litigation with
the party, provided that the document was addressed to, reviewed or
received by the deponent prior to deponent’s departure from the
party;

(vi) consultants or experts retained by the parties in
connection with this litigation, and the employees of such experts
or

consultants

who

are

assisting

them

in

this

action.

Each

consultant or expert must execute the certification set forth as
Exhibit A hereto, and the disclosing party shall deliver to all
other parties a copy of the executed certification;
(vii) such other persons who the parties may designate by
written

agreement

or

by

Court

Order,

permitting

additional

disclosure; and
(viii) the authors, addressees, and recipients of the
designated documents.
(b) Any Qualified Persons identified in subparagraph 6(a)(vi),
shall be given a copy of this Order and shall agree in writing in
the form attached hereto as Exhibit A, to be bound by the terms of
this agreement, and counsel for the disclosing party shall maintain
possession of the executed agreements and shall make them available
in cases of claims of breach of this Order.
(c) This Order shall be binding on the parties, their agents,
successors, heirs, assigns, subsidiaries, employees, and other
persons or organizations over which they have control.
7. POST LITIGATION:
(a) Within one hundred and twenty (120) days of the final
termination of this action, each party or counsel in possession,
custody or control of Confidential Information, or any tabulations,
analyses, studies or compilations derived therefrom, shall either
destroy

or

materials.

return
Upon

(at

written

the

producing

request

by

the

party’s

option)

producing

those

party,

the

receiving party shall certify in writing, that such materials have

been destroyed. Destruction of such materials shall be certified in
writing by an officer of the receiving party. Counsel for each
party, however, may retain abstracts or summaries of discovery
materials

or

copies

of

materials

which

contain

attorney-work

product or which incorporate Confidential Information in documents
filed with the Court; and
(b) this Court shall retain jurisdiction over the parties and
recipients of any Confidential Information for enforcement of the
provisions of this Order following termination of this litigation.

IT IS SO ORDERED this 14th day of June 2011.

/s/Paul K. Holmes, III
PAUL K. HOLMES, III
UNITED STATES DISTRICT JUDGE