PICKERING v. ALS ENTERPRISES INC et al

Filing 44

ORDER: 42 Stipulation for Entry of Proposed Protective Order is GRANTED. Signed by MAGISTRATE JUDGE GARY R JONES on 3/14/2012. (jws)

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IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF FLORIDA
GAINESVILLE DIVISION
DENNIS PICKERING,
Plaintiff,
v.

CASE NO. 1:09-cv-00087-MP-GRJ

ALS ENTERPRISES INC, et al.,
Defendants.
_
____________________________/
ORDER
This matter is before the Court on the parties’ Stipulation for Entry of Proposed
Protective Order.

(Doc. 42).

Pursuant to Rule 26(c) of the Federal Rules of Civil

Procedure, that trade secret or other confidential or proprietary information be disclosed
only in designated ways, the parties’ move the Court for entry of a protective order
governing confidential information and attorneys eyes only information.
Accordingly, it is now ORDERED as follows:
1.

Named Plaintiffs, Defendants and third parties, upon producing documents

or information, including electronically stored information (the “Producing Party”), may
designate documents or information produced or disclosed as “CONFIDENTIAL” any
information produced by it in this action which contains, reflects, or otherwise discloses
confidential technical, business or financial information. (hereinafter “Confidential
Information”).
2.

Named Plaintiffs, Defendants and third parties, upon producing documents

or information, including electronically stored information (the “Producing Party”), may
designate documents or information produced or disclosed as “AEO” or “ATTORNEYS
EYES ONLY”1 any information produced in this action which contains, reflects, or otherwise
discloses trade secrets, current research and development, or competitively sensitive

1

For the purposes of this Order, “AEO” and “ATTORNEYS EYES ONLY” are used
interchangeably.

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information (hereinafter “AEO Information”).
3.

Documents, discovery responses, pleadings, affidavits, deposition transcripts,

or testimony shall be subject to the provisions of this Order if they have been designated
clearly on their face as “CONFIDENTIAL” or “AEO.” If it is difficult to mark such documents
as “CONFIDENTIAL” or “AEO” on their face, then some other method will be used to
indicate their confidentiality, such as marking a CD that contains electronic documents as
“CONFIDENTIAL” or “AEO” on the outside of the CD case.
4.

Documents, discovery responses, pleadings, affidavits, deposition transcripts,

or testimony containing Confidential Information or AEO Information, if filed with the Court,
shall be filed under seal in an envelope marked “CONFIDENTIAL-Filed Under Seal
Pursuant to Court Order” or “AEO-Filed Under Seal Pursuant to Court Order” respectively
and bearing the caption of the case and title of the pleading or other document, or the
equivalent if filed electronically.
5.

Documents or information designated as “CONFIDENTIAL” may only be

disclosed to the following with use of such Confidential Information limited to this action:
a.

the parties;

b.

attorneys appearing in and/or working on this Litigation, including their
paralegals and support staff (including outside photocopying, graphic
production services or litigation support services employed by the
parties or their counsel to assist in this Litigation, and computer
service personnel performing duties in relation to a computerized
litigation system);

c.

outside experts or consultants retained to assist in the preparation of
this case by any attorney described in subparagraph (b) above, as
well as employees of such expert or consultants;

d.

employees and agents of the parties for purposes related to this
Litigation;

e.

any person whose deposition is taken by any party;

f.

the Court, witnesses, court reporters, stenographers, videographers,
court personnel, jurors and alternate jurors, if any;

Case No: 1:09-cv-00087-MP-GRJ

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g.

mock jurors, provided all mock jurors agree not to discuss or disclose
any protected information outside the context of the mock jury
exercises, and that no materials bearing Confidential information or
AEO information are left in the possession of the mock jurors after
conclusion of the mock jury exercises; and

h.

other persons to whom the Court specifically allows disclosure, after
application by the party seeking such disclosure and an opportunity
to reply by the Producing Party or Parties.

6.

Documents or information designated as “AEO” may be disclosed only to

persons qualifying under Paragraph 5, subparts b, c, e, f, g, and h above, absent the
written consent of the Producing Party.
7.

Counsel for the respective parties shall be responsible for obtaining, prior to

disclosure of Confidential Information or AEO Information, the written agreement to be
bound by the terms of this Order, of any person listed in paragraph 5, subparts c and e.
Counsel for the respective parties shall be responsible for obtaining such a written
agreement of their own client or their client's employee(s) if their client or their client's
employee(s) are noticed for deposition. Such written agreement shall be in the form of
Attachment A. If a non-party witness refuses to execute Attachment A, the deposing
counsel shall advise the non-party witness that he or she is subject to sanctions for
violating the terms of this Order and that admonition shall serve as a substitute for the
execution of Attachment A and shall permit examination of the witness on documents or
other information as permitted by Paragraph 5 and Paragraph 6.
8.

Nothing in this Order shall prevent a Producing Party from using or disclosing

its own documents or information as it deems appropriate without impairing the
confidentiality obligations imposed upon all other parties and persons subject to this Order.
9.

At the deposition, or within thirty (30) days of receipt of the transcript, the

deponent, the deponent's counsel, or any other party must designate, if appropriate, all or
portions of a deposition transcript as “CONFIDENTIAL” or “AEO” and that designation shall
remain in effect for the duration of this Order. If no such designations are made within thirty
(30) days of receipt of the transcript, the transcript will not be subject to the provisions of

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this Order. The deponent, their counsel, or another party making such a designation must
advise counsel for the parties and the court reporter of any changes to the original
designation. The court reporter shall mark the face of the transcript appropriately. If any
portion of a videotaped deposition is designated “CONFIDENTIAL” or “AEO” pursuant to
this Order, the physical videocassette, CD-ROM or other media shall be labeled
“CONFIDENTIAL” or “AEO”. Nothing in this paragraph shall prevent a party from making
specific designations on the record during the deposition, and the court reporter shall mark
the face of the transcript appropriately in that event.
10.

Nothing contained in this Order shall be construed to prejudice any party's

right to use at trial or in any hearing before the Court any Confidential Information or AEO
Information. Nothing in this Order shall be deemed or construed to be a waiver by the
Producing Party of its right to object on any grounds to the use of any Confidential
Information or AEO Information, or any portions thereof, or to seek protection from the
Court to prevent Confidential Information or AEO Information from being disclosed to the
public, at trial or any hearing before the Court.
11.

Production of documents or information for the purpose of inspection and

copying shall not constitute a waiver of confidentiality. If documents or information
produced for purposes of inspection and copying have not been designated prior to
inspection, the Producing Party shall advise the inspecting party that such documents or
information may be designated as “CONFIDENTIAL” or “AEO” and that the documents or
information should be treated as Confidential Information or AEO Information respectively
until such time as the Producing Party produces properly designated copies of the
documents or information.
12.

The inadvertent or unintentional failure to designate Confidential Information

as “CONFIDENTIAL” or AEO Information as “AEO” by the Producing Party~shall not be
deemed a waiver in whole or in part of the Producing Party's claim of confidentiality, either
as to the specific document or information disclosed or as to any other documents or
information relating thereto or on the same or related subject matter. Upon the Producing
Party's discovery that a document or information was not correctly designated, the
Producing Party shall provide notice to the other parties that the document or information

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was inappropriately designated. The Producing Party shall then have seven (7) business
days in which to redesignate and produce the properly designated document or information.
During the seven days after notice, the document or information shall be treated as
Confidential Information or AEO Information as provided in the Producing Party's notice.
13.

If one of the Parties reasonably believes that any document or information

should not have been designated as “CONFIDENTIAL” or “AEO”, that party must specify,
in writing, to the Producing Party: (a) the document or information at issue and; (b) the
grounds for questioning the confidentiality designation. The party questioning the
designation and the Producing Party must meet and confer in good faith to attempt to
resolve the designation without the Court's intervention. Upon written notice to the
Producing Party that the disagreement with respect to the designation cannot be resolved
informally, the Producing Party has ten (10) days (or within such additional time as is
reasonable taking into account the number of documents or other information at issue and
is agreed to by counselor as ordered by the Court) to move the Court for a protective order
approving the Producing Party's designation. Until the Court rules, the confidentiality
designation shall remain in effect. If the Producing Party's motion for protection is denied,
the document or information shall no longer be designated as “CONFIDENTIAL” or “AEO”.
Nothing in this paragraph shall be construed as changing the burden of proof set forth in
the Federal Rules of Civil Procedure. A party shall not be obligated to challenge the
propriety of a Confidential Information or AEO Information designation at the time made,
and a failure to do so shall not preclude any subsequent challenge.
14.

After termination of the pending action, entry of a final judgment, whether by

trial, appeal, settlement or otherwise, and after the termination of all appeals and the time
to file any further appeals has passed, the provisions of this Order with respect to the use
and dissemination of Confidential Information or AEO Information shall continue to be
binding and all copies of any Confidential Information or AEO Information received by the
parties or their counsel shall be returned to the Producing Party or destroyed within 60
days. Notwithstanding the foregoing, counsel for any party may retain copies of briefs and
other papers filed with the Court, deposition transcripts, and attorney work product that
contains or constitutes Confidential Information or AEO Information, so long as such briefs

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and other papers are maintained in confidence in accordance with the provisions of this
Order. Even following termination of this litigation, the Court shall retain jurisdiction over the
parties and recipients of Confidential Information or AEO Information in order to enforce the
provisions of this Order.
15.

If a party inadvertently produces a document containing Confidential

Information or AEO Information without marking or labeling it as such, the information shall
not lose its protected status through such production and the parties shall take all steps
reasonably required to assure its continued confidentiality if the designating party provides
written notice to the receiving party within ten (10) days of the discovery of the inadvertent
production of the document, identifying the document in question and of the corrected
confidential designation for the document.
16.

Inadvertent production of any document that a party later claims should not

have been produced because of a privilege, including but not limited to the attorney-client
privilege or work product doctrine (“Inadvertently Produced Privileged Document”), will not
be deemed to waive any privilege. The designating party may request the return of any
Inadvertently Produced Privileged Document. A request for the return of an Inadvertently
Produced Privileged Document shall identify the document inadvertently produced and the
basis for withholding such document from production. If a party or nonparty requests the
return, pursuant to this paragraph, of any Inadvertently Produced Privileged Document then
in the custody of another party or nonparty, such other party shall within five (5) business
days return to the requesting party or nonparty the Inadvertently Produced Privileged
Document and all copies thereof. The party returning such material may then move the
Court for an order compelling production of the material, but that party shall not assert as
a ground for entering such an order the fact or circumstances of the inadvertent production.
17.

If the proposed class is certified, this Order shall extend to all members of the

18.

Nothing herein shall govern the procedures to be used at trial, which shall be

class.

set by this Court immediately preceding the commencement of trial.

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19.

The Court retains jurisdiction to enforce or, upon stipulation of the parties to

this action, to amend or modify, this Order.
DONE AND ORDERED this 13th day of March, 2012.

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GARY R. JONES
United States Magistrate Judge

Case No: 1:09-cv-00087-MP-GRJ