Holt v. Ford Motor Company

Filing 8

AGREED PROTECTIVE ORDER. Signed by Circuit Judge Brent Haltom on 9/24/12. (Originally filed in state court) (mll)

IN THE CIRCUIT COLIRT OF MILLER COUNTY, }iliKANSAS
SECOND DIVISION
KEvlN HOLT, On Behalf of Himself
and All Others Similarly Situated

VS.

PLAINTIFF

NO. CV 2012-0165-2

FORD MOTOR COMPANY

DEFE~1)ANT

AGREED PROTECTIVE ORDER
Discovery in this action is likely to involve production of material that the
producing party contends is confidential, proprietary, or private information for

...

which special protection from public disclosure and from use for any pUl-pose other
than prosecuting this litigation would be warranted, including but not limited to (1)
engineering documents, including design drawings and specifications, (2) test
documents and testing procedures; (3) manufacturing specifications and procedures;
(4) internal business or financial information; and (5) any other similar proprietary,
confidential, or private information, including but not limited to trade secrets. A
protective order is necessary for information in categories (1), (2), (3) and (4)
because the producing party operates in a highly competitive, global marketplace
and is dependent upon its technical and business know-how to achieve and
maintain a competitive advantage. Disclosure of this information could result in
serious and immediate competitive and economic harm. Information in category (5)
may include such things as personally identifying information, trade secrets not
falling within one of the other categories, and competitive intelligence, and must be
protected for personal privacy or competitive protection reasons.

Because

information produced in this case may be shared with consulting and testifying
experts, a private agreement between the parties would not suffice, and a court
order is required.
Therefore, to expedite the flow of discovery material, facilitate the prompt
resolution of disputes over confidentiality, adequately protect material entitled to be
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kept confidential, and ensure that protection is afforded only to material so entitled,
the parties stipulate and agree to the following form of protective order:

1.

Scope of Order.

This Order is intended to facilitate the Parties'

production of information and documents as Pal·t of voluntary disclosure and in
response to discovery requests. Nothing in this Order is to be construed to eJ...-pand
or limit the Parties' discovery obligations. This Order covers the production and use
of all Protected Documents in this action that constitute, contain or disclose, in
whole or in Pal-t, information which the Designating Pal-ty designates as
"Confidential." This Order is also intended to apply to any documents produced to
the Pal·ties by a non-party in connection with a subpoena.
2.

General Definitions. For purposes of this Order, the following terms

have the following meanings:
a.

"Confidential Information" shall mean trade secrets or other

confidential research, development, or commercially sensitive business information,
the disclosure of which would cause competitive harm, that is contained in
Protected Documents.
b.

"Designating Party" shall mean the Party or non-party

designating Discovery Material as "Confidential."
c.

"Discovery Materials"

shall mean

and include,

without

limitation, Documents, including Electronically Stored Information (ESI), responses
to interrogatories, requests for admissions, or other discovery requests, physical

objects, samples, CD-ROMs, tapes or other items, deposition transcripts and
exhibits thereto, and information provided by or on behalf of the Parties or any non­
party witness pursuant to subpoena or otherwise in the course of discovery.
d.

''Document'' shall mean and include, without limitation, all

written material, videotapes and all other tangible items, produced in whatever
format (e.g., hard copy, electronic, digital, etc.) and on whatever media (e.g., hard
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copy, videotape, computer diskette, CD·ROM, DvlJ, hard drive or otherwise)
defined as broadly as permitted under FRCP 34.
e.

"Party" or "Parties" shall mean and include the parties to this

f.

''Pleadings'' shall mean and include, without limitation, all

litigation.

papers, motions, briefs, affidavits, declarations, exhibits, etc., filed with the Court.
g.

''Protected Documents" shall mean documents to be produced in

this litigation which contain Confidential Information.
~.

Designating Confidential Information.
a.

All designations of Confidential Information shall be made in

good faith by the Designating Party and made at the time of disclosure, production,
or tender.
b.

The designation of Confidential Information may be made by

marking or placing the

applicable notice

"Subject to Protective

Order,"

"Confidential," or substantially similar notice, on the document, or, where a copy of
the original docwnent is to be produced, on that copy.
c.

Any document or any information designated as "Subject to

Protective Order," "Confidential," or similar language in accordance with the
provisions of this Order shall only be used, shown or disclosed as provided in this
Order.
d.

The burden of proving that a Protected Document contains

Confidential Information is on the Designating Party. Prior to designating any
material as "Confidential," the Designating Party must make a bona fide
determination that the material is, in fact, a trade secret or other confidential
research, development, or commercial information pursuant to Arkansas or federal
law.

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e.

If a Party disagrees 'with the "Confidential" designation of any

Protected Document, the party will so notify the Designating Party in writing.
Counsel shall confer in good faith in an effort to resolve any dispute concerning such
designation or redaction. If the objection cannot be resolved by agreement, the
Party challenging the "Confidential" designation may move the Court to overrule
the confidentiality designation or redaction. The Designating Party shall have the
burden of proving that the "Confidential" designation is appropriate.

Any

opposition to such motion shall be filed within ten (10) business days of the filing of
such motion.

The document or information whose "Confidential" designation or

redaction is objected to shall conti.."1ue to be treated as "Confidential," as applicable,
until the motion has been decided by the Court. In the event that a motion to
overrule a confidentiality designation is granted, the Designating Party shall cause
the confidentiality legend or redaction to be removed from such documents within
ten (10) business days following entry of the Court's order.
4.

Use and Disclosure of Protected Documents.
a.

Protected Documents

and

any

copies

thereof received

pursuant to this Protective Order shall be maintained Confidential by the receiving
party, hislher attorney, other representatives, and expert witnesses, and shall be
used only for purposes of this action, only, subject to the limitations set forth herein.
The persons or entities identified in Paragraph 4(b)(i)-(ix) below to whom Protected
Documents are disclosed pursuant to this Order shall keep all such materials and
information, and any copies, notes, extracts, summaries, or descriptions of such
material, within their exclusive possession and control, shall treat all such copies,
notes, extracts, summaries, or descriptions of the Protected Documents or any
portion thereof as Confidential, shall take all necessary and prudent measures to
maintain the confidentiality of all such materials or information, and shall not
disseminate such Protected Documents other than in accordance with this Order.
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b.

Protected Documents shall be disclosed only to "Qualified

Persons." Qualified Persons are limited to:
1.

The Court and its personnel

ll.

The Parties to this litigation;

iii. Employees of Parties to this litigation
iv. Counsel of record in this litigation, as \vell as paralegals, technical,
administrative and clerical employees working under the direct
supervision of such counsel;
v. Experts and non-attorney consultants retained by the Parties for the
preparation or trial of this case, provided that no disclosure shall be
made to any expert or consultant who is currently employed by an
automobile manufacturer competitor ofFord;
vi. A potential, anticipated or actual fact witness whom counsel for the
disclosing Party believes in good faith is likely to have knowledge
pertaining to the content of the Protected Documents to be disclosed;
vii. The author(s) or any recipient of the document;
viii. Litigation support consultants and vendors who provide litigation
support services (e.g., photocopying, electronic discovery, videotaping,
translating, preparing exhibits or demonstrations, etc.);
ix. Court reporters recording andlor transcribing deposition testimony;
x. any person expressly named and agreed to in writing by the Parties or
by further Order of the Court; and
1.

counsel in the Daniel, et al. v. Ford Motor Company, et al. class
action pending in the United States District Court for the
Eastern District of California.

c.

V\Thile the Parties may provide Protected Documents in

accordance with the provisions of this Protective Order in an electronic form, such
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I

I

documents may not be posted on any website or internet accessible document
repository that is accessible to anyone other than "Qualified Persons" listed above.
iill persons described in Paragraph 4(b)(i)-(viii) above shall

d.

not under any circumstance sell, offer for sale, advertise, or publicize either the
Protected Documents and the Confidential information contained therein or the fact
that such persons

have

obtained Protected Documents

and

Confidential

Inform a tion.
e.

Pursuant to Paragraph 4(b)(iv) above, for those persons that

are designated experts, each such expert shall not have access to Protected
Documents without having first read, acknowledged, and agreed to be bound by this
Order by executing the

~crreement

to be Bound attached as Exhibit A (the

"Agreement to be Bound").
5.

Each Party's counsel shall retain each such executed Agreement to be

Bound and shall keep a list identifying (a) all persons to whom Protected
Documents have been disclosed, and (b) all Protected Documents disclosed to such
persons. Each such executed Agreement to be Bound shall not be made available to
the Designating Party during the pendency of the litigation but shall only be
available for an in camera inspection by the Court if good cause for review is
demonstrated by the Designating Party. However, each such executed Agreement to
be Bound and list shall be submitted to counsel for the Designating Party at the
termination of this litigation.

6.

Designation of Deposition Testimony.
a.

Deposition testimony that counsel for the Party or non-party

witness tendering such testimony, in good faith, believes refers to Protected
Documents

or

information

obtained

therefrom

shall

be

designated

as

"CONFIDENTIAL," as applicable, by such counsel by making a statement on the

I

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I

record for inclusion in the deposition transcript or, in writing, Virithin thirty (30)
calendar days after receipt of the transcript.
b.
IS

wnen Protected Documents or information obtained therefrom

designated as confidential L11 a deposition transcript, the counsel making the

designation shall instruct the reporter to imprint the legend "THIS TR..ANSCRIPT
CONTAINS CONFIDENTIAL IJ\TFORMATION" on the cover page of the transcript
and to include, at the front of the transcript, a page identifying all pages and lines
designated "CONFIDENTIAL" in the transcript.
c.

To the extent that Protected Documents or information

obtained therefrom are used in the taking of depositions and/or used as exhibits at
trial, such documents or information shall remain subject to the provisions of this
Order, along with the transcript pages of the deposition testimony and/or trial
testimony dealing with the Protected Documents or information.
d.

Any court reporter or transcriber who reports or transcribes

testimony in this action shall agree that all Confidential Information designated as
such under this Order shall remain Confidential and shall not be disclosed by them,
except pursuant to the terms of this Order, and that any notes or transcriptions of
such testimony (and any accompanying exhibits) will be retained by the reporter or
delivered to counsel of record.

7.

Filing Under Seal.
a.

If any party wishes to file or lodge Protected Documents with

the Court, that party must provide the producing party with written notice that the
Protected Documents will be placed in the public court file unless the producing
party files a timely motion or application to seal the records under the Arkansas
Rules of Civil Procedure or other applicable rules. Within seven (7) business days of
this notification, the producing party may file a motion or application for an order
sealing the Protected Documents. Pending determination of the motion or
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application, the lodged document(s) will be conditionally under seal. Until such
time as the Court issues an order sealing the Protected Documents, the party
seeking to use the Protected Documents may refer only to a redacted version. Upon
granting of an order sealing the record, the Protected Documents ,\1i,rill be sealed and
labeled by the cOUl1; clerk according to the Arkansas Rules of Civil Procedure or
other applicable rules. Upon denial of such an order, the documents may
the public court file.
b.

filed in

t

\Vithin ninety (90) days after the conclusion ofthis case,

counsel for the Party who has received Protected Documents shall either: (a) retui'n
..
to the Designating Party the Protected Documents, including any documents which
any such Party disclosed to any Qualified Person, or (b) securely destroy the
Protected Documents, including any documents which any such Party disclosed to
any Qualified Person, and certify in writing such destruction to the Designating
Pal'ty.
8.

Inadvertent Production.
a.

Inadvertent or unintentional production of documents or

information containing information which should have been designated as
Confidential shall not be deemed a waiver in whole or in part of the Party's claims
of confidentiality.

If a Party

inadvertently or unintentionally produced

information which should have been designated as Confidential, the producing
Party will notify the receiving Party within twenty-one (21) days of discovery, of the
inadvertent production and request that the Confidential designation be applied to
such documents or information. If a receiving party objects to the producing Party's
Confidentiality designation, it will notify the producing Pru.1;y of its objections in
writing within seven (7) business days of receipt of the notification described above.
Within seven (7) business days, the producing Party may then move the Court for
an order compelling the protection of such information. Pending the Court's ruling,
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a receiving Party agrees to maintain the documents as Confidential under the terms
oftJ:...is Order.
b.

Inadvertent or unintentional production of documents or

information containing information which should have been designated as
privileged shall not be deemed a waiver in whole or in part of the Pal'ty's claims of
privilege.

Pursuant to i:\.rk. R. Civ. P. 26(b)(5), if a Party has inadvertently or

unintentionally produced information subject to a claim of immunity or privilege,
upon written request made by the producing Party within fourteen (14) calendar
days o! discovery, all copies of such information shall be returned to the producing
Party within fourteen (14) calendar days of such request unless the receiving party
intends to challenge the producing Party's assertion of privilege or immunity. After
receiving such notice, the receiving party may not use or disclose the materials in
any way. If a receiving party objects to the return of such information within the
fourteen (14) calendar day period described above, the producing Party may move
the Court for an order compelling the return of such information. Such a motion
will be decided based upon the standards set forth in Ark. R. Civ, P. 26(b)(5)(D).
Pending the Court's ruling, a receiving Party may sequester the inadvertently or
unintentionally produced documents in a sealed envelope and shall not make any
use of such information.
9.

Right to Use Own Information.
a.

Nothing in this Order shall limit any Party's right to disclose to

any person, or use for any purpose, its own information and documents.

10.

Subpoena or Order.
a.

If a Party is served with a subpoena or an order issued

other

litigation that would compel disclosure of any information or items designated in
this action as Confidential, counsel for the receiving Party must promptly notify
counsel for the Designating Party in writing, and in no event, more than five (5)
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business days after receiving the subpoena or order. Counsel for the receiving Party
also must inform, in writing, the Party who caused the subpoena or order to issue in
the other litigation that some or all the material covered by the subpoena or order is
the subj ect of this Order.

11.

Modification.
a.

This Protective Order may not be waived, modified, abandoned or

terminated, in whole or part, except by an instrument in writing signed by the
Parties or pursuant to further Court Order.

If any provision of this Protective

..

Order shall be held invalid for any reason whatsoever, the remaining provisions
.

shall not be affected thereby.

12.

Duration.
a.

After termination of this litigation, the provisions of this Order

shall continue to be binding, This Court retains and shall have jurisdiction over
the parties and recipients of the Protected Documents for enforcement of the
provisions of this Order following termination of this litigation.
This Protective Order shall be binding upon the parties hereto, upon their
attorneys, and upon the PaTties' and their attorneys' successors, executors, personal
representatives, administrators, heirs, legal representatives, assigns, subsidiaries,
divisions, employees, agents, independent contractors, or other persons or
organizations over which they have control.

IT IS SO ORDERED.

CIRCllT JUDGE

d~dX o2O/;L.
DATE

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C"":: .

Approved as to form and content:
WRIGHT, LINDSEY

r

& JE:t\TNINGS LLP

~~~.--

By: '-..::::.~..1.)

Gary D. Mar

,,~

Jr.

Attorneys for~nt :::otor Co.

By:_---,.'''f/--='----_ _ _ _ _ _ _
~_--"'-_

neys for Plaintiff Kevin Holt

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EXHIBIT A
AGREEMENT TO BE BOUND
AFFIDA'lIT OF _ _ _ _ _ _ _ _ _ _ _ _ _ _-', being duly sworn
and personally appearing before the undersigned attesting officer, duly authorized
by law to administer oaths, deposes and says that the within statements are true
and correct:
l.

I have read the Agreed Protective Order attached hereto, and I understand
its terms and meanings.
2.

I agree that my signature below submits me to the jurisdiction of the
Circuit Court of Miller County, Arkansas, in which the action Kevin Holt us.
Ford Motor Company is pending, and binds me to the provisions of the Agreed
Protective Order, including to all promises undertaken in the Oreier, as if
originally agreed by me.
Further Affiant sayeth not.

Thls

dayof _________________

AFFIANT

llS6285-vl

STATE OF _ _ _ _ _ _-(

COUNTY

SUBSCRIBED MID SWORN to before me, a Notary Public, on
this

day of _ _ _ _ _ __
Notary Public

My Commission Expires:

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