Boudreaux v. Henry Schein, Inc.
Filing
14
PROTECTIVE ORDER. Refer to the order for information. Signed by Honorable P. K. Holmes, III on March 8, 2013. (jas)
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
FORT SMITH DIVISION
BRIN MARIE BOUDREAUX
PLAINTIFF
v.
Case No. 2:12-CV-02122
HENRY SCHEIN, INC.
DEFENDANT
PROTECTIVE ORDER
Before the Court is the parties’ Joint Motion for Stipulated Confidentiality Agreement and
Protective Order (Doc. 13), which is hereby GRANTED. The parties provided the Court with a
proposed order, which the Court has revised in part and set forth below. Based on the agreement
of the parties and pursuant to the Court’s authority under Rule 26(c) of the Federal Rules of Civil
Procedure,
IT IS ORDERED, ADJUDGED, AND DECREED AS FOLLOWS:
Plaintiff and Defendant (the “Parties”) are engaged in discovery in the above-captioned
action (the “Action”). The Parties are or may in the future be producing documents, written
discovery answers, or deposition testimony containing “Confidential Information,” as defined herein
in paragraph 2 (“Confidential Information”), as a result of the proceedings in this Action. The
Parties desire to maintain the confidentiality of the Confidential Information that may be produced
in this Action. They therefore enter into this Stipulated Confidentiality Agreement and Protective
Order (“Confidentiality Order”) and agree as follows:
1.
This Confidentiality Order and any amendments or modifications hereto shall govern
any document, information, or other thing furnished by any party, to any other party, and includes
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non-parties who receive a subpoena in connection with the above-captioned action. The information
protected includes, but is not limited to, initial disclosures or supplemental initial disclosures,
answers to interrogatories, answers to requests for admission, responses to requests for production
of documents, deposition transcripts and videotapes, deposition exhibits, and other writings or things
produced, given, or filed in this action that are designated by a party as “Confidential Information”
in accordance with the terms of this Confidentiality Order, as well as to any copies, excerpts,
abstracts, analyses, summaries, descriptions, or other forms of recorded information containing,
reflecting, or disclosing such information.
2.
For purposes of this Confidentiality Order, “Confidential Information” shall include
any information that a Party or its counsel designates as confidential because the information relates
to (i) policy materials, (ii) proprietary or confidential business or financial information the disclosure
of which would reveal or affect the competitive or privacy posture of either Party or the customers
and related entities of Defendant, (iii) trade secrets, (iv) non-public information regarding
Defendant’s sales, services, or customers, (v) the identity of or other information related to
individuals who work or worked for Defendant or its related entities, (vi) compensation plans and
practices, salaries, financial, medical, employee benefits, or other personnel data of individual
employees, and (vii) sensitive, personal, or private information. The party making the designation
must reasonably and in good faith believe that the information should be subject to protection in
accordance with the standards set forth in Rule 26(c) of the Federal Rules of Civil Procedure before
making the designation.
3.
Documents, information, and things produced during the course of this Action may
be designated as containing Confidential Information by any method that is sufficient to
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communicate the designation to the Parties to the Action. For example, a party producing a paper
document or thing containing Confidential Information may place on each page and each thing a
legend substantially as follows:
CONFIDENTIAL INFORMATION
SUBJECT TO PROTECTIVE ORDER
Where it will not be feasible for the producing party to place a legend on every page and
thing so produced (e.g., electronically stored information that is produced in its native format), the
producing party may use (and identify to the receiving party) other reasonable means to designate
the information as Confidential Information.
It is the responsibility of counsel for each party to maintain materials containing Confidential
Information in a secure manner and appropriately identified so as to allow access to such information
only to such persons and under such terms as is permitted under this Protective Order.
4.
The inadvertent failure to designate information as “Confidential Information” will
not be deemed to waive a later claim as to its confidential nature, or to stop the producing party from
designating such information as confidential at a later date in writing and with particularity. The
information shall be treated by the receiving party as “Confidential Information” from the time the
receiving party is notified in writing of the designation, subject to the right of any party to challenge
a designation in accordance with this Order.
5.
A receiving party may challenge a producing party’s designation at any time. Any
receiving party disagreeing with a designation may request in writing that the producing party change
the designation, and if the parties are unable to reach agreement with respect to the designation, the
receiving party may thereafter seek a Court Order to alter the confidential status of the designated
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information. The party asserting the confidentiality shall have the burden of demonstrating the
propriety of the designation in accordance with the standards set forth in Rule 26(c) of the Federal
Rules of Civil Procedure. Until any dispute under this paragraph is ruled upon by the Court, the
designation shall remain in full force and effect and the information shall continue to be accorded
the confidential treatment required by this Protective Order.
6.
Information designated as Confidential Information may only be used for purposes
of preparation, trial, and appeal of this action, except as may be addressed elsewhere in this
Confidentiality Order.
7.
Confidential Information may be disclosed by the receiving party only to the
following individuals provided that such individuals are informed of the terms of this Protective
Order:
a) Plaintiff;
b) Defendant (limited to current or former employees, officers, or directors of
Defendant who have a need to review the information in connection with the defense
of the Action as determined by counsel of record for Defendant);
c) Counsel of record for any party to the Action, as well as supporting personnel
employed by counsel of record, such as secretaries, paralegal assistants, and clerical
personnel who are engaged in assisting counsel in this action;
d) Designated experts and/or consultants (including their employees, associates, or other
support staff) retained by a party to this action for consultation or testimony in this
action, but only if: (i) they are not current or former employees of Defendant;
(ii) they are not employed by any competitor of Defendant; and (iii) they have read
this Confidentiality Order and agreed in writing to be bound by this Confidentiality
Order by signing the Acknowledgement attached hereto;
e) Any persons requested by counsel to furnish services such as document coding,
image scanning, mock trial, jury profiling, translation services, court reporting
services, demonstrative exhibit preparation, or the creation of any computer database
from documents, but only if they have first read this Confidentiality Order and agreed
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in writing to be bound by this Confidentiality Order by signing the
Acknowledgement attached hereto;
f) Mediators or Special Masters jointly retained by the parties or appointed by the Court
(and their employees), but only if they have first read this Confidentiality Order and
agreed in writing to be bound by this Confidentiality Order by signing the
Acknowledgement attached hereto;
g) Witnesses who are identified by name in a party’s initial disclosures or supplemental
initial disclosures as an individual that the disclosing party may use to support its
claims or defenses in this action, but only if they have first read this Confidentiality
Order and agreed in writing to be bound by this Confidentiality Order by signing the
Acknowledgement attached hereto;
h) Individuals who are being deposed in this action, but only at their deposition and only
if they have first read this Confidentiality Order and agreed in writing to be bound
by this Confidentiality Order by signing the Acknowledgement attached hereto; and
i) Any other person if counsel for the party who designated the information as
Confidential Information consents to the disclosure.
8.
The existence of this Confidentiality Order shall be disclosed to any person producing
documents, tangible things, or testimony in this action (e.g., in response to a subpoena) who may
reasonably be expected to desire confidential treatment for such documents, tangible things or
testimony. Any such person may designate documents, tangible things, or testimony confidential
pursuant to this Confidentiality Order.
9.
In the event that any party wishes to submit Confidential Information to the Court,
then prior to the proceeding and/or filing, the party seeking to submit the information to the Court
may (but is not required to) confer with the party who made the confidential designation in an
attempt to reach agreement about the use or disclosure of the information in the Court proceeding
or filing (i.e., to allow disclosure without any special protection, to allow disclosure of a document
if certain information is redacted first, etc.). Absent such agreement: (a) the party seeking to submit
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the information to the Court must give the party who designated the information as Confidential
Information three (3) full court days (excluding weekends and court holidays) advance notice via
electronic mail of her/its intent to submit the information and specifying which information she/it
intends to submit; (b) the party who designated the information as Confidential Information may,
during the notice period, file a motion requesting leave of Court to close the proceeding and/or allow
the filing of the information under seal; (c) if the party who designated the information as
Confidential Information does not file such a motion within the notice period, the party seeking to
use or disclose the information may thereafter do so in a manner consistent with the advance notice;
(d) if the party who designated the information as Confidential Information does file such a motion
within the notice period, then (i) the information must not be used or disclosed in any manner
allowing review by members of the public while the motion is pending; (ii) the information must
thereafter be used and/or disclosed only in accordance with the Court’s adjudication of the party’s
motion; and (iii) any applicable deadline with respect to the filing of the information (e.g., a deadline
for filing exhibits in support of a motion for summary judgment) shall be deemed to have been tolled
while the motion was pending and for three (3) additional court days following the Court’s
adjudication of the motion, to allow the filing party sufficient time to file the information in a
manner consistent with the Court’s adjudication. The Parties shall follow any applicable local rules
and administrative procedures for electronically filing documents under seal.
10.
Producing or receiving Confidential Information, or otherwise complying with the
terms of this Confidentiality Order, shall not (a) prejudice the rights of a party to object to the
production of information or material that the party does not consider to be within the scope of
discovery; (b) prejudice the rights of a party to seek a determination by the Court that particular
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materials be produced; (c) prejudice the rights of a party to apply to the Court for further protective
orders; or (d) prevent the parties from agreeing in writing to alter or waive the provisions or
protections provided for herein with respect to any particular information or material.
11.
The Parties agree that documents and information produced prior to the entry of the
Confidentiality Order may be designated as containing Confidential Information any time after the
entry of this Confidentiality Order and subject to the terms of this Confidentiality Order.
12.
The inadvertent failure to designate or withhold any information as protected by the
attorney-client privilege and/or work product protection shall be governed by the applicable Federal
Rules of Civil Procedure [including Rule 26(b)(5)(B)] and Federal Rules of Evidence [including
Rule 502(d)]. In accordance with Rule 502(d) of the Federal Rules of Evidence, the Court hereby
orders that the attorney-client privilege or work-product protection is not waived by disclosure
connected with the litigation pending before the Court.
13.
Within sixty (60) calendar days after final judgment in this action, including the
exhaustion of all appeals, or within sixty (60) calendar days after dismissal pursuant to a settlement
agreement, each party or other person subject to the terms of this Confidentiality Order shall be
under an obligation to destroy or return to the producing party all materials and documents
containing Confidential Information, and to certify to the producing party such destruction or return.
However, outside counsel for any party shall be entitled to retain all court papers, trial transcripts,
exhibits, and attorney work product, including but not limited to abstracts or summaries of
Confidential Information, provided that any such materials are maintained and protected in
accordance with the terms of this Confidentiality Order.
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14.
Any party may petition the Court for good cause shown, in the event such party
desires relief from a term or condition of this Order.
15.
Nothing in this Order shall preclude any party or third person from seeking additional
protection (via a jointly-proposed supplemental protective order and/or a contested motion for
supplemental protective order) for information deemed by the party or third person to entitled to such
additional protection (e.g., allowing specific information to be designated as Confidential
Information even though it may not fall expressly within the scope of Paragraph 2; allowing
information to be designated as “Counsel Only” or “Attorneys’ Eyes Only”; etc.).
16.
This Order may be modified or amended by further order of the Court for good cause
shown.
IT IS SO ORDERED this 8th day of March, 2013.
/s/P. K. Holmes, III
P.K. HOLMES, III
CHIEF U.S. DISTRICT JUDGE
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