Eastwood v. Southern Farm Bureau Casualty Insurance Company

Filing 44

ORDER granting 43 Motion for Protective Order. Signed by Honorable P. K. Holmes, III on August 2, 2012. (lw)

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
HARRISON DIVISION
VINCENT EASTWOOD, individually and on behalf
of and All Others Similarly Situated
v.

PLAINTIFF

Case No. 3:11-CV-03075

SOUTHERN FARM BUREAU CASUALTY
INSURANCE COMPANY

DEFENDANT

AGREED PROTECTIVE ORDER
Before the Court is the parties’ Joint Motion for Protective Order (Doc. 43), which is hereby
GRANTED. 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:
(1)

All Confidential Information produced or exchanged in the course of this Litigation

shall be used solely for the purpose of this Litigation.
(2)

“Confidential Information” as used herein means any type or classification of

information which is designated as confidential by the supplying party, whether it be a document,
information contained in a document, information revealed during a deposition, information revealed
in any other form of disclosure, discovery or otherwise. In designating information as confidential,
the supplying party will make such designation only as to that information that it in good faith
believes contains (a) information, the disclosure of which would embarrass or annoy any person, (b)
personal financial information, or (c) trade secret or (d) other confidential commercial information.
Information or material which is available to the public shall not be designated as confidential.
(3)

“Qualified Persons” as used herein means:

(a)
Attorneys of records and their party clients to this litigation and attorneys
designated as of counsel in this Litigation and employees of such attorneys to whom it is necessary
that the material be shown for purposes of this litigation.
(b)
Inside counsel of a party working directly on the litigation, including staff and
support personnel who are working directly on the litigation under the direction of counsel and to
whom it is necessary that the material be shown for purposes of this litigation.
(c)
Persons retained by a party or its attorneys of record in this litigation solely
for the purpose of discovery in this litigation or assisting in the preparation of this litigation for trial,
such as independent (i.e. non-employee) technical experts, consultants, witnesses or prospective
witnesses, who have signed the written Confidentiality Agreement attached hereto as Exhibit “A.”
(d)
Any other person who is designated as a Qualified Person by Order of this
Court after notice to all parties.
(4)

Documents produced by a party may be designated as Confidential Information by

marking the initial page:
“CONFIDENTIAL”
In lieu of marking the original of a document if the original is not produced, the party may
mark the copies that are produced or exchanged.
(5)

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

officers, directors, employees, agents, or independent experts retained by a party for purposes of this
litigation may be designated by that party as Confidential Information by indicating on the record
at the deposition that the testimony is confidential and subject to the provisions of this order. The
party may also designate information disclosed at such deposition as confidential by notifying all
parties in writing, within thirty days of receipt of the transcript, of the specific pages and lines of the
transcript which are confidential. Each party shall attach a copy of such written statement to the face
of the transcript and each copy thereof in his possession, custody or control. All depositions shall
be treated as confidential for a period of forty-five (45) days after receipt of the transcript.
(6)

Confidential Information shall not be made available to persons other than Qualified

Persons or the party who produced the Confidential Information, or any person or party who is the
proprietor or source of the Confidential Information.
(7)

Nothing shall prevent disclosure beyond the terms of this Agreement and Order to

any local, state or federal governmental or law enforcement agency pursuant to and in accordance
with subpoenas or other lawful directives.
(8)

No party shall be responsible to another party for any use made of information

produced and not designated as “Confidential Information.”
(9)

The inadvertent or unintentional disclosure by the supplying party of Confidential

Information regardless of whether the information was so designated at the time of disclosure, shall
not be deemed a waiver in whole or in part of a party’s claim of confidentiality, either as to the
specific information disclosed or as to any other information relating thereto or on the same or
related subject matter.
(10)

A party shall not be obligated to challenge the propriety of a confidentiality

designation at the time made, and a failure to do so shall not preclude a subsequent challenge thereto.
In the event that any party to this litigation disagrees at any stage of these proceedings with the
designation by the supplying party of any information as confidential, the parties shall try first to
resolve such dispute in good faith on an informal basis. If the dispute cannot be resolved, the
objecting party may seek appropriate relief from this Court. The parties may by stipulation provide
for exceptions to this order and any party may seek an order of this Court modifying this protective
order. This order shall be without prejudice to any party to bring before the Court at any time the
question of whether any particular information is or is not in fact confidential information as that
term may be determined by the Court; upon such hearing the party asserting Confidential
Information shall have the burden of establishing same. Nothing shall be regarded as Confidential

Information if it is information that either:
(a)

is in the public domain at the time of disclosure as evidenced by a written

document;
(b)
becomes part of the public domain, through no fault of the other party, as
evidenced by a written document; or
(c)
the receiving party can show by written document that the information was
in its possession at the time of disclosure.
(11)

The Clerk of this Court is directed to maintain under seal all documents and

transcripts of deposition testimony and any other documents filed in Court in this litigation which
have been designated, in whole or in part, as Confidential Information by a party to this action.
(12)

In the event that a party wishes to use any Confidential Information in any affidavits,

briefs, memoranda of law, or other papers filed in Court in this litigation, such Confidential
Information shall be maintained under seal by the Court.
(13)

Within sixty (60) days after the conclusion of this litigation, any originals or

reproductions of any documents produced by a party shall be returned to the producing party. Insofar
as the provisions of any protective orders entered in this action restrict the communication and use
of the documents produced thereunder, such orders shall continue to be binding after the conclusion
of this litigation except (a) that there shall be no restriction on documents that are used as exhibits
in Court (unless such exhibits were filed under seal) and (b) that a party may seek the written
permission of the producing party or further order of the Court with respect to dissolution or
modification of such protective orders.
(14)

Nothing in this Order shall bar or otherwise restrict any attorney herein from

rendering advice to his client with respect to this litigation and, in the course thereof, referring to or
relying upon his examination of Confidential Information produced or exchanged herein; provided,

however that in rendering such advice and in otherwise representing his clients, the attorney shall
not disclose the contents of or the source of any Confidential Information produced by another party
herein to a party not represented by him or her which disclosure would be contrary to the terms of
this order.
(15)

Nothing herein shall affect or inhibit the right of any party to offer for admission into

evidence at trial or submit to the Court in connection with any filed pleadings in this case, any
purportedly “Confidential” document provided, however, that “Confidential” documents shall be
submitted under seal in connection with any filed pleadings prior to trial. Notwithstanding anything
herein to the contrary, nothing herein shall prohibit a party from offering any “Confidential”
document into evidence, provided however, if either party desires to condition or limit the admission
into evidence any “Confidential” document, said party shall file an appropriate motion, no less than
thirty (30) days prior to trial, for the Court’s consideration, or otherwise make an appropriate and
timely objection. It is the intention of the parties that this Stipulation and Order, and the procedure
set out herein, not expand, limit or in any way whatsoever alter the substantive rules otherwise
applicable to the admission of evidence in the trial this case.
IT IS SO ORDERED this 2nd day of August, 2012.

/s/P. K. Holmes, III
P.K. HOLMES, III
CHIEF U.S. DISTRICT JUDGE