Bryant Holdings LLC v. YRC Worldwide Inc. et al

Filing 59

STIPULATED PROTECTIVE ORDER. The court finds good cause to enter the protective order submitted by the parties. Signed by Magistrate Judge James P. O'Hara on 11/15/2012. (est)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

STAN BETTER and YRC INVESTORS
GROUP, Individually and on Behalf of
All Others Similarly Situated

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Plaintiffs,
v.
YRC WORLDWIDE INC., WILLIAM D.
ZOLLARS, MICHAEL SMID, TIMOTHY
A. WICKS, and STEPHEN L. BRUFFETT,
Defendants.

Case No. 11-CV-2072 KHV/JPO

STIPULATED PROTECTIVE ORDER
Discovery between the parties in this case is expected to encompass trade secrets or
other confidential and proprietary documents and information of defendants concerning
marketing, investment and strategic planning; competitive strategies and actions; financial,
sales and accounting data and information, including any financial planning and pricing
information; computer system information; information relating to customer utilization;
and trade secrets; the disclosure of which to anyone and particularly to competitors would
undermine the defendants’ competitive position and could result in immediate and severe
financial hardship.

Accordingly, PlaintiffS Stan Better and YRC Investors Group and

Defendants YRC Worldwide Inc., William D. Zollars, Michael Smid, Timothy A. Wicks
and Stephen L. Bruffett have agreed, pursuant to Fed. R. Civ. P. 26(c), that the following
Protective Order may be entered by the Court, and the Court finds that it should be entered

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for good cause shown.

This Order governs the production and use of material and

documents produced or to which access has been given by the Parties in this case, subject
to the provisions set forth below.
IT IS HEREBY ORDERED THAT:
1.

Each party and all persons bound by the terms of this Protective Order shall use

any properly designated Confidential Information (as defined herein) provided to them pursuant
to this Protective Order only for the purpose of prosecution or defense of this action, not for any
other purpose or in any other action. No party or person bound by the terms of this Protective
Order shall disclose or release to any person not qualified under this Protective Order any
properly designated Confidential Information provided to them for any purpose, or to any person
qualified under this Protective Order for any purpose other than the prosecution or defense of
this action. Nothing contained herein shall otherwise limit the ability of any party or person to
make statements, disclosures or comments (including, but not limited to, those that may concern
the pending litigation, or products, trademarks, tradenames or parties to the case) using
information other than Confidential Information.
2.

The term “Confidential Information” as used herein means confidential and

proprietary information (including trade secrets) relating to product development and design;
research; technical information; product marketing, investment and strategic planning;
competitive strategies and actions; financial, sales and accounting data and information including
any financial planning and pricing information; computer system information; information
relating to customer utilization; and/or other confidential and proprietary information which is
designated as CONFIDENTIAL or CONFIDENTIAL ATTORNEYS ONLY pursuant to this
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Protective Order by the supplying party (including any third persons or entities supplying such
information) in connection with this case. Confidential Information may include information or
data of any format or nature, including, but not limited to, information contained in documents
(including electronic documents or data); information revealed during depositions, disclosures or
discovery responses; and information incorporated in an exhibit, tabulation, abstract, summary,
compilation or work sheet for use, disclosure or presentation in the case.
3.

The term “documents” as used herein has the same meaning as in Fed. R. Civ. P.

34 and includes without limitation, any written, electronic, recorded, stored, or graphic matter,
data or information.
4.

The provisions of this Protective Order apply only to the following named

categories of documents, information, items, or materials (including electronically-stored
information) to the extent that they are properly designated as Confidential Information
hereunder: deposition transcripts; affidavits; declarations; discovery disclosures and responses;
supplier lists; customer lists; vendor lists; tax records and returns; personnel files and
information; sales records; accounting/financial records; design, strategy and planning
documents and communications; and other documents, information, items, or materials
(including electronically-stored information) containing or referring to confidential information
such as business accounting or financial information, product design, product planning or
strategy, competitive information or analysis, advertising strategy or analysis, customer
feedback, customer identity, vendor identity, supplier identity, product formulation, product
manufacturing processes and methods, future business development plans, and trade secrets.

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5.

Designation of information contained in documents (including electronic

documents or data) or in discovery disclosures or responses as CONFIDENTIAL OR
CONFIDENTIAL ATTORNEYS ONLY shall be made by one of the following methods: (a)
by stamping the first page (or each page) of any document containing Confidential Information
with the legend CONFIDENTIAL or CONFIDENTIAL ATTORNEYS ONLY prior to its
production; (b) by clearly marking the page(s) of any disclosure or discovery response
containing Confidential Information with the legend CONFIDENTIAL or CONFIDENTIAL
ATTORNEYS ONLY; or (c) in the case of electronic data or information not readily subject to
page marking, by clearly designating in writing at the time of disclosure that such materials are
CONFIDENTIAL or CONFIDENTIAL ATTORNEYS ONLY.
6.

Deposition

transcripts,

or

portions

thereof,

may

be

designated

as

CONFIDENTIAL or CONFIDENTIAL ATTORNEYS ONLY subject to this Protective
Order either (a) at the time of such deposition, by designation upon the record of the deposition;
or (b) within thirty (30) days following receipt of the deposition transcript by providing written
notice to all counsel of record of the designation by page and line numbers. All deposition
transcripts not previously designated shall be deemed to be, and shall be treated as,
CONFIDENTIAL ATTORNEYS ONLY, for a period of thirty (30) days after receipt of the
transcript. Whenever matter designated as CONFIDENTIAL or CONFIDENTIAL
ATTORNEYS ONLY is to be discussed in a deposition, any party claiming such
confidentiality may have excluded from the deposition (for the duration of that discussion
only) any person who is not entitled under this Protective Order to receive information
designated as CONFIDENTIAL or CONFIDENTIAL ATTORNEYS ONLY.

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7.

In designating information as CONFIDENTIAL pursuant to this Protective

Order, the supplying party will make such designation only as to that information or material that
the designating party in good faith believes contains Confidential Information and not for the
purpose of harassing the receiving party or of unnecessarily restricting the receiving party's
access to information concerning the lawsuit. Information which is available to the public, such
as issued patents or trademarks, published patent applications or trademark applications (and any
supporting materials submitted to a governmental agency that are subject to public disclosure or
access), advertising materials, and the like, shall not be designated as confidential.
8.

In designating information as CONFIDENTIAL ATTORNEYS ONLY

pursuant to this Protective Order, the supplying party will make such designation only as to that
information or material that the designating party in good faith believes contains Confidential
Information, and in addition is extremely sensitive, the disclosure of which, even limited to the
restrictions placed on information designated as CONFIDENTIAL in this Order, may
jeopardize and/or compromise the producing party’s interests to the point that disclosure should
appropriately be limited as provided in paragraph 10 below.
9.

Documents or information designated as CONFIDENTIAL shall be disclosed by

the recipient thereof, on a need-to-know basis only to:
(a).

The attorneys of record for the parties to this action and their staff;

(b).

The Court, court personnel, and court reporters;

(c).

Any persons retained or employed by the parties or their attorneys of

record in this litigation as outside experts or consultants, and their staff, to whom it is necessary
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that the material be shown for purposes of this litigation, provided that each such person must,
prior to receipt of the materials designated as CONFIDENTIAL, execute an agreement in the
form attached hereto as Exhibit A;
(d).

Employees and officers of the producing party;

(e).

Authors or drafters, addressees, and those who received the documents or

information prior to the commencement of this action;
(f).

Counsel for insurance companies that may be liable to satisfy part or all of

a judgment that may be entered in this litigation;
(g).

Contractors and their employees involved solely in document management

services for this litigation provided that each such person must, prior to receipt of the materials
designated as CONFIDENTIAL, execute an agreement in the form attached hereto as Exhibit
A; and;
(h).

Employees and officers of the receiving party, provided that each such

person must, prior to receipt of the materials designated as CONFIDENTIAL, execute an
agreement in the form attached hereto as Exhibit A; and
(i).

Any other person designated by written stipulation of the parties or order

of the Court.
10.

Documents or information designated as CONFIDENTIAL ATTORNEYS

ONLY shall be disclosed by the recipient thereof only to:

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(a).

The attorneys of record and in-house counsel for the parties to this action

(b).

The Court, court personnel, and court reporters;

(c).

Any persons retained or employed by the parties or their attorneys of

and their staff;

record in this litigation as outside experts or consultants, and their staff, to whom it is necessary
that the material be shown for purposes of this litigation, provided that each such person must,
prior to receipt of the materials designated as CONFIDENTIAL ATTORNEYS ONLY,
execute an agreement in the form attached hereto as Exhibit A;
(d).

Authors or drafters, addressees, and those who legitimately received and

retained the documents or information prior to the commencement of this action; and
(e).

Any other person designated by written stipulation of the parties or order

of this Court after notice to both parties.
11.

Documents

and

information

designated

as

CONFIDENTIAL

or

CONFIDENTIAL ATTORNEYS ONLY shall include:
(a).

All copies, extracts, and complete or partial summaries prepared from

such documents or information;
(b).

Portions of deposition transcripts and exhibits thereto which contain or

reflect the content of any such documents, copies, extracts, or summaries;

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(c).

Portions of briefs, memoranda, or any other writing filed with the Court

and exhibits thereto which contain or reflect the content of any such documents, copies, extracts,
or summaries; and
(d).
12.

Deposition testimony designated in accordance with Paragraph 6.

Notwithstanding any other provisions of this Protective Order: (a) nothing herein

shall prevent disclosure if the party designating the information as CONFIDENTIAL or
CONFIDENTIAL ATTORNEYS ONLY expressly consents to such disclosure, either in
writing or in the record of any proceeding in this case, or if the Court enters an order requiring or
permitting the disclosure after notice to both parties; (b) any party may use or disclose its own
Confidential Information without limitation, and may use or disclose information without
limitation that was previously in its possession prior to receipt pursuant to the Protective Order,
or subsequently acquired from a source that is not subject to the Protective Order.
13.

If timely corrected, a failure to designate information as CONFIDENTIAL or

CONFIDENTIAL ATTORNEYS ONLY does not, standing alone, waive the producing party's
right to secure protection under this Protective Order for such information. In the event of a
production or disclosure of such information, the producing or disclosing party shall notify the
receiving party of the designation of material as CONFIDENTIAL or CONFIDENTIAL
ATTORNEYS ONLY, and the receiving party shall thereafter treat such information as
designated subject to the Protective Order, without waiving any right to challenge the
designation of such material.
14.

Neither party will be obligated to challenge the propriety of a confidential

designation at the time made, and a failure to do so will not preclude a subsequent challenge
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thereto. A failure of either party to challenge a party's designation of a document or information
as CONFIDENTIAL or CONFIDENTIAL ATTORNEYS ONLY will not prejudice any party
or person and will not constitute an agreement or admission that the designation is valid by
reason of such failure to object. In the event that either party disagrees at any stage of these
proceedings with the designation by the other party of any information as CONFIDENTIAL or
CONFIDENTIAL ATTORNEYS ONLY, the parties will try first to resolve such dispute in
good faith on an informal basis. Any party may request the party asserting confidentiality for:
(a).

A change in the designation of any document or information as

CONFIDENTIAL to non-confidential;
(b).

A change in the designation of any document or information as

CONFIDENTIAL ATTORNEYS ONLY to CONFIDENTIAL or non-confidential; and
(c).

Permission to disclose such documents or information to persons in

addition to those specified in Paragraph 9 and/or Paragraph 10.
Such request will be by written notice served on counsel for the party who designated the
subject matter CONFIDENTIAL or CONFIDENTIAL ATTORNEYS ONLY. The written
notice will state the grounds for the request, and contain an identification of the documents by
production number or other reasonably clear description, and where less than the entire
document is at issue, a particularized description of the information from that document for
which a change in designation is requested. The party asserting the propriety of the designation
will have the burden of establishing the need for the designation, provided that party is provided
with a written notice as set forth herein. If the dispute cannot be resolved, the party seeking the
change to an assertion of protection under this Protective Order may seek appropriate relief from
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the Court within 20 days of the written notice of dispute, and during such time and until the
Court rules on the request for relief, the document shall be maintained in accordance with its
initial designation under this Protective Order. The parties may seek an order of the Court and at
any time bring before the Court the question of whether any particular information is properly
designated.
15.

Insofar as the provisions of any protective orders entered in this action restrict the

communication and use of the documents produced thereunder, the parties (and any person who
agrees to be bound hereunder) agree that they will abide by such orders after the conclusion of
this litigation. Consistent with the protective order guidelines posted on the Court's website, the
Court’s jurisdiction to enforce the provisions of this Protective Order shall be terminated upon
the final disposition of this case, unless and until a party seeks leave to reopen the case to enforce
the provisions of this Protective Order.
16.

Nothing in this Protective Order limits any of the parties from applying to the

Court for modification of, or relief from, this Protective Order, or for such further or additional
protective orders as the Court may deem appropriate.
17.

Except as may otherwise be ordered by the Court, documents designated as

CONFIDENTIAL or CONFIDENTIAL ATTORNEYS ONLY shall not be filed with the
Court for any purpose, including affidavits, briefs, or memoranda of law, except under seal (as
must first be permitted by order of the Court) according to the Local Rules for the District of
Kansas. A party seeking to file a document designated as CONFIDENTIAL or
CONFIDENTIAL ATTORNEYS ONLY must first file a motion with the Court and be granted
leave to file the particular document under seal.
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18.

Whenever any person who has agreed in writing in the form of Exhibit A to be

bound by this Protective Order is requested by a subpoena, request for production of documents,
civil investigative demand, or other legal process, to disclose to persons or entities not parties to
this action, any documents, objects, things, or testimony designated CONFIDENTIAL or
CONFIDENTIAL ATTORNEYS ONLY in this action, such person, unless otherwise
prohibited from doing so by law, shall as soon as reasonably practical and prior to production,
but in no event later than five (5) business days after receipt of the request, notify the designating
party (or its counsel of record) by overnight express mail or facsimile, of the existence and terms
of such request. If a response to such request is due in less than ten (10) days, the notice shall be
given orally and confirmed in writing sent by facsimile within forty-eight (48) hours after receipt
of such request. Subject to a court order prohibiting disclosure or production, the party receiving
such request shall be entitled to make disclosure or production.
19.

A party who receives documents or information designated as CONFIDENTIAL

or CONFIDENTIAL ATTORNEYS ONLY from any other party shall maintain those
documents or information in a secure place that is reasonably inaccessible to anyone other than
those persons authorized under this Protective Order to receive such information.
20.

Notwithstanding any other provision of this Order, the production of documents

by any Party will not operate as a waiver of any common law or statutory privilege, protection,
or immunity applicable to those documents, including, but not limited to any attorney-client
privilege, work product protection, joint or common interest doctrine, information that is subject
to protection as trial preparation material, or that is protected from discovery by any other
applicable privilege, protection, immunity, law, or rules (collectively “Privileges”). If a Party
discloses, produces, or makes available for inspection and copying information subject to any
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Privilege (“Disclosed Privileged Information”), such disclosure shall not constitute or be deemed
a waiver or forfeiture of any claim of such Privilege applicable to such Disclosed Privileged
Information or any related subject matter, in this litigation or in any other court, administrative
action, investigation, or legal proceeding.
21.

Any Party who realizes that it, he, or she has produced or received Disclosed

Privileged Information, as soon as practicable, shall (i) notify, in writing, all other Parties and/or
other persons producing or receiving such information that disclosure was made, (ii) identify the
document(s) disclosed, (iii) make reasonable efforts to retrieve all copies of and prevent further
disclosure of the Disclosed Privileged Information, and (iv) refrain from using or further
disclosing the Disclosed Privileged Information (including, but not limited to, using the
information in depositions or a trial). Any person or entity receiving notice that Disclosed
Privileged Information has been produced shall, within five (5) business days, return, destroy,
sequester or delete all copies of the Disclosed Privileged Information, as well as any abstracts,
charts, memoranda, notes, summaries, compilations, or indices of same, and provide a
representation of counsel that all such information has been returned, destroyed, sequestered or
deleted. To the extent the claim of Privilege is disputed, the Parties shall meet and confer to
resolve any such dispute, and in the event such dispute cannot be resolved, the Party receiving
such information may promptly present the information to the Court, under seal, pursuant to the
Local Rules of this Court, and seek such further relief from the Court regarding the claim of
Privilege. The Party claiming the Privilege shall preserve the Disclosed Privileged Information
until the claim of Privilege is resolved either by agreement of the Parties or by the Court.
22.

The Parties contemplate that the documents that may be requested or produced in

this case may be voluminous and may be produced in this action without a full and complete
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privilege review. For the sake of efficiency and mitigation of costs related to the production of
documents, the Court finds that the procedures described herein, constitute reasonable steps by
the Parties to preserve any applicable privileges, without further showing.
23.

The terms of this Protective Order are applicable to CONFIDENTIAL or

CONFIDENTIAL ATTORNEYS ONLY information submitted by non-parties to this action
who have agreed in writing in the form of Exhibit A to be bound by this Protective Order, which
information shall be protected by the remedies and relief provided by the Protective Order.
24.

The restrictions and obligations set forth herein shall not apply to any information

that: (a) the parties agree, or the Court rules, is already public knowledge; (b) the parties agree,
or the Court rules, has become public knowledge other than as a result of disclosure by the
receiving party, its employees, or its agents in violation of this Order; or (c) has come or shall
come into the receiving party’s legitimate knowledge and was legitimately retained
independently of the production by the designating party. Prior knowledge must be established
by pre-production documentation.
25.

The restrictions and obligations herein shall not be deemed to prohibit discussions

of any Confidential Information with anyone if that person already has or obtains legitimate
possession and retention thereof.
26.

Upon final termination of this action, unless otherwise agreed to in writing by an

attorney of record for the designating party, each party shall assemble and return or destroy, such
returning or destruction being at the option of the receiving party, all material produced by the
designating party and designated as CONFIDENTIAL or CONFIDENTIAL ATTORNEYS
ONLY, including all copies, extracts, and summaries thereof, to the party from whom the
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designated material was obtained, except that any documents or copies which contain or
constitute, or which reflect, attorney work product or attorney-client privileged communications
may be retained by counsel. If the receiving party elects to destroy designated materials rather
than return them to the designating party, the designating party is entitled to request in writing
and be provided with a certificate of destruction evidencing the destruction of the designated
materials that were produced by the designating party. Notwithstanding the foregoing, outside
counsel of record for the receiving party may retain for its archives (i) one full set of copies of all
pleadings, affidavits, declarations, briefs, memoranda, expert reports, exhibits, and all other
papers filed and/or served in this action; (ii) one set of transcripts of all testimony taken at any
depositions, hearings, or trial (with exhibits); and (iii) all of its own work product generated in
connection with this action.
27.

The procedures established by this Protective Order are intended to be cumulative

and in addition to any party’s right to seek further or different protection from the Court
regarding issues addressed herein.
SHAMBERG, JOHNSON & BEGRMAN, CHTD.

MORGAN, LEWIS & BOCKIUS LLP

Lynn R. Johnson
2600 Grand Blvd., Suite 550
Kansas City, MO 64108
Telephone: [phone]
Facsimile: [phone]

s/ Marc J. Sonnenfeld
Marc J. Sonnenfeld (admitted pro hac vice)
Karen Pieslak Pohlmann (admitted pro hac
vice)
1701 Market Street
Philadelphia, PA 19103-2921
Telephone: [phone]
Facsimile: 215.963.5001
[e-mail]
[e-mail]

Local Counsel

-and-

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KAHN SWICK & FOTI, LLC

STINSON MORRISON HECKER LLP

s/ Kim Miller
Kim Miller (admitted pro hac vice)
500 Fifth Avenue, Suite 1810
New York, NY 10110
Telephone: [phone]
Facsimile: [phone]
[e-mail]

J. Emmett Logan KS # 10699
Kristin L. Farnen, KS # 17517
1201 Walnut Suite 2900
Kansas City, MO 64106
Telephone: [phone]
Facsimile: 816.691.3495
[e-mail]
[e-mail]

-andCounsel for Defendants
Lewis S. Kahn
206 Covington Street
Madisonville, LA 70447
Telephone: [phone]
Facsimile: [phone]
[e-mail]
Co-Lead Counsel
JOHNSON & WEAVER, LLP
Frank J. Johnson
Shawn E. Fields
110 West “A” Street, Suite 750
San Diego, CA 92101
Telephone: [phone]
Facsimile: [phone]
[e-mail]
[e-mail]
Co-Lead Counsel

IT IS SO ORDERED.
Dated November 15, 2012, at Kansas City, Kansas.

s/ James P. O’Hara
James P. O’Hara
U. S. Magistrate Judge

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EXHIBIT A
AGREEMENT TO COMPLY WITH PROTECTIVE ORDER
I hereby acknowledge receipt of materials or information designated as Confidential
and/or Confidential Attorneys Only pursuant to the Agreed Protective Order issued by the
Court in the case of Better v. YRC Worldwide Inc., et al., No. 11-CV-2072-KHV/JPO in the
United States District Court for the District of Kansas. I have been given a copy of and have read
the Protective Order. I agree to comply with the provisions of the Protective Order and hereby
submit myself to the jurisdiction of the United States District Court for the District of Kansas for
the purpose of enforcement of the Agreed Protective Order. I will keep information designated as
Confidential and/or Confidential Attorneys Only in confidence and will not divulge it to
anyone other than those permitted to have access under the terms of the Agreed Protective Order
or copy or use it except solely for the purposes of the case.
Date

Signature

Printed Name

Address

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