Zurich American Insurance Company v. Fikes Truck Line, LLC
***PLEASE DISREGARD. INCORRECT ORDER ATTACHED*** ORDER granting 49 Motion for Order to Garnishee; granting 59 Motion for Order to Garnishee Hope Water & Light Company. (See Order for specifics.) Signed by Honorable Susan O. Hickey on March 28, 2016. (mll) Modified on 3/28/2016 (mll).
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
EL DORADO DIVISION
TRACI MORGAN, et al.
Case No. 1:16-cv-01007
EL DORADO HOME CARE
SERVICES, LLC, et al.
Before the Court is a Joint Motion for Protective Order. (ECF No. 29). The parties, through
counsel, have agreed to the form and entry of this Order. They request that the Protective Order
govern the protection and production of confidential information, documents, and other materials.
The Court finds that the Motion should be GRANTED. The text of the Order, pursuant to Rule
26(c) of the Federal Rules of Civil Procedure, is as follows:
1. This Order governs the handling of confidential, non-public, and/or sensitive information,
documents, and other materials produced, provided, or obtained in the above-captioned lawsuit (the
“Litigation”). Such information, documents, and other materials and confidential information
include but are not necessarily limited to all non-public business, personnel, wage and salary records,
pay calculations, financial and organizational records, employment or personal information and
records relating to the plaintiffs, putative class members, defendants, and third parties which have
been or will be provided, produced, or obtained in this Litigation.
2. Either party may designate as “Confidential” any information, documents, and/or other
materials which they believe in good faith contain confidential, sensitive, non-public, and/or
privileged information by notifying opposing counsel of the designation specific to the information,
document(s), or material(s). All documents clearly marked with the word “Confidential,” and all
documents, written responses to interrogatories or questions, transcripts, or portions of transcripts
otherwise clearly identified as such by a party or its counsel in this Litigation, shall be subject to this
Consent Protective Order. For purposes of this Order, such information, documents, and other
materials shall be referred to hereafter as “Confidential Materials.”
3. Confidential Materials shall be used solely for legitimate purposes of this Litigation,
including, among other things, use in conjunction with testimony and as exhibits at trial, in
conjunction with motions, hearings, depositions, or witness preparation, and preparation for trial or
any motion, hearing, deposition, or other proceeding connected with this Litigation. Such use shall
be subject to the restrictions of this Order. Confidential Materials shall not be used in any
proceedings other than this Litigation or to further or to disrupt the business interests of any person
(other than the preparation and prosecution of claims and defenses in this Litigation). Use or
disclosure of Confidential Materials beyond the restrictions of this Order, whether during this
Litigation or after its conclusion, may occur only with the express consent of the party who provided
or produced the materials or of its counsel of record in this Litigation, or as required by law or by
order of any court of competent jurisdiction.
4. Any party to this Litigation that desires to use any document clearly marked with the words
“Confidential,” and/or any document, written response to an interrogatory and/or any question,
transcript, or portion of a transcript otherwise clearly identified as “Confidential,” in conjunction
with any filing with the Court, or to otherwise place such materials in the public record, must file
said materials under seal.
5. Confidential Materials shall not be published, circulated, disclosed, delivered, or made
available to anyone who is not a “Qualified Person” as defined in Paragraph 6 of this Order, except
as specifically provided herein. In the event a party and/or her/its counsel of record deem(s) it
necessary for purposes of this Litigation to disclose any documents or other materials designated as
“Confidential” to a person who is not a Qualified Person as defined in Paragraph 6, such party or
counsel must first require such person to read this Order and agree, by executing an agreement in the
form of Exhibit A attached to the parties’ Motion for Protective Order, as follows: (a) to be bound
by the terms of this Order; (b) not to disclose, deliver, or make available Confidential Materials to
anyone other than a Qualified Person; and (c) to use any Confidential Materials solely for the
purposes of this Litigation. The party or attorney who discloses, delivers, or makes available the
Confidential Materials to the person shall retain all executed agreements in the form of the Exhibit
A attached to the parties’ Motion for Protective Order evidencing such an undertaking(s) and shall
turn over all such executed agreements to the other party’s attorney at his or her request within thirty
(30) days after the Conclusion of this Litigation (after final order of the Court and after all appeal
rights have expired) or as otherwise ordered by the Court. It shall not be necessary to secure or
obtain executed agreements with respect to Qualified Persons.
6. “Qualified Person(s)” as used in this Order means:
a. All parties and their designated representatives and attorneys of record in this
Litigation, other attorneys employed by or consulting with the attorneys of record for purposes of
this Litigation, and other employees and/or consultants of such attorneys to whom it is reasonably
necessary that Confidential Materials be shown for purposes of this Litigation;
b. Experts retained or utilized by the parties or their attorneys of record in this
Litigation for the purpose of assisting in the preparation of this Litigation for trial, such as,
statisticians, economists, or other experts, including staff and support personnel to whom it is
necessary that Confidential Materials be shown for purposes of assisting in such preparation;
c. Custodians and/or authors of the Confidential Materials, to whom it is reasonably
necessary that the Confidential Materials be shown, provided that such persons shall not be deemed
“Qualified Persons” with respect to other Confidential Materials of which the person was not an
author or custodian;
d. Any person who is being questioned in a deposition in this Litigation during such
deposition, provided that counsel disclosing the Confidential Materials has a good faith basis for
believing the documents are relevant to the person’s testimony or knowledge, and provided that such
person shall not be deemed a “Qualified Person” with respect to other Confidential Materials which
are not relevant to the person’s testimony or knowledge;
e. Any person who is scheduled to be deposed or to testify in this Litigation during
preparation for such deposition or testimony, provided that counsel disclosing the Confidential
Materials to such person has a good faith basis for believing the documents are relevant to the
person’s testimony or knowledge, and provided that such person shall not be deemed a “Qualified
Person” with respect to other Confidential Materials which are not relevant to the person’s testimony
or knowledge; and
f. Any other person who is designated as a Qualified Person by agreement of the
parties or by order of the Court. The parties will be expected to confer in good faith and not to
withhold consent to the designation of a person as a Qualified Person without legitimate reason.
7. Nothing contained in this Order shall limit use of Confidential Materials at trial of this
action or at any hearing or deposition related to this Litigation for any purpose, except that the parties
reserve the right to object to the production, use, or admission into evidence of any such information,
documents, or materials for any reason grounded upon the Federal Rules of Civil Procedure and/or
the Federal Rules of Evidence. Further, the parties reserve the right to petition the Court to seal
records of the Litigation containing Confidential Materials, and reserve the right to seek additional
protective order(s) if the need arises.
8. In the event any party to this Litigation disagrees with the designation of any information,
documents, or materials as “Confidential,” or the restriction of the use or disclosure of such
information, documents, or materials pursuant to this Order, that party must in good faith attempt
to resolve the disagreement on an informal basis. If the parties are unable to resolve the
disagreement informally after attempting in good faith to do so, the party seeking disclosure or
production of the documents or other information may apply for appropriate relief from the Court.
The Court may resolve the dispute upon in camera inspection of the materials designated
“Confidential” and may determine upon good cause shown whether the restrictions of this Order
should not apply to such materials. To the extent a dispute under this paragraph results in substantial
delay in the discovery process, the non-prevailing party in such dispute will not object to the
continuance of discovery with respect to the information, documents, or materials in question beyond
the expiration of the discovery period.
9. This Order shall not operate as a waiver by any party to this Litigation of any objection to
producing or providing any documents, information, or other materials, nor shall it operate as a
waiver by any party of any objection to entry of any document or other material into evidence at trial
or in any other proceedings in this Litigation on grounds other than those addressed in this Order.
This Order also does not constitute a waiver of any argument regarding the timeliness of objections
or production of documents.
10. After the Conclusion of this Litigation (after final order of the Court and after all appeal
rights have expired), all originals and reproductions of any Confidential Materials shall be returned
to the party who produced them or shall be destroyed upon that party’s request by arrangement of
that party and at that party’s expense within thirty (30) days after the Conclusion of this Litigation.
11. Under no circumstance will any party or the representative(s) of any party to this
Litigation provide any Confidential Materials that have been provided, produced, or obtained during
this Litigation to the press or media, to other current or former employees of defendant, or to any
other employer, except as otherwise expressly allowed under the terms of this Order.
12. The parties to this action and their experts and witnesses agree that the attorney work
product or any other privilege is not waived by any party by providing the other party with
calculations and supporting documentation regarding pay or hours worked by any plaintiff or
putative class member, as to the information provided or any further information, documentation,
work product, or attorney-client communication, in connection with pay or hours worked or
otherwise. The parties to this action and their experts and witnesses further agree that the disclosure
of any calculations and supporting documentation regarding pay or hours worked by any plaintiff
or putative class member is not a waiver of any other privilege, including the attorney-client
IT IS SO ORDERED, this 28th day of March, 2016.
/s/ Susan O. Hickey
Susan O. Hickey
United States District Judge
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