Bourgeois v. LBC of Baton Rouge, LLC
Filing
14
ORDER granting 13 Motion For Entry of Agreed Protective Order Regarding Confidential Information. Signed by Magistrate Judge Stephen C. Riedlinger on 10/04/2013. (NLT)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
CHRIS JOSEPH BOURGEOIS
CIVIL ACTION
VERSUS
NO. 13-160-BAJ-SCR
LBC BATON ROUGE, LLC
AGREED PROTECTIVE ORDER
Defendant’s Unopposed Motion for Entry of Agreed Protective Order Regarding
Confidential Information, record document number 13, is GRANTED.
This Agreed Protective Order shall remain in effect for the duration of the abovecaptioned litigation unless otherwise ordered by the Court or agreed by the Parties.
The purpose of this Agreed Protective Order is to protect against the unnecessary
disclosure of confidential and/or proprietary information, such as, but not limited to, all
employment applications, employee manuals, company forms, company manuals and guides,
client information, and personnel documents regarding Plaintiff Chris Joseph Bourgeios
(hereinafter referred to as “Plaintiff”), and Defendant LBC Baton Rouge, LLC (hereinafter
referred to as “Defendant” or “LBC”), or Defendant’s present and former employees. All
documents produced by any of the Parties in this action and designated as Confidential Material
shall be subject to this Agreed Protective Order (“Order”).
IT IS HEREBY ORDERED that:
1.
Definitions: For the purpose of this Order, the following definitions shall apply:
A.
“Action” shall mean the above-captioned action, Chris Joseph Bourgeois v. LBC
Baton Rouge, LLC, Civil Action No. 13-160-BAJ-SCR, pending in the United States District
Court for the Middle District of Louisiana, and, if applicable, all subsequent appellate, review,
remand, and any severed proceedings related thereto.
B.
“Disclosure” or “to disclose” shall mean to divulge, reveal, describe, summarize,
paraphrase, quote, transmit, or otherwise provide or communicate to any person or entity the
protected materials, whether pursuant to request, interrogatory, process, or otherwise, and
whether in accordance with the Federal Rules of Civil Procedure or otherwise.
C.
“Parties” shall mean the named parties to this Action. A “Party” shall mean any
of the Parties.
D.
“Third Party” shall mean any natural person, partnership, corporation, association
or other legal entity that is not a named Party, as defined above.
E.
“Producing Party” shall mean any Party or Third Party that produces, intends to
produce or has been requested, subpoenaed or otherwise required to produce any Confidential
Material, as hereinafter defined, in this Action.
F.
“Receiving Party” shall mean any Party that receives any Confidential Material,
as hereinafter defined, in this Action.
G.
Confidential Material” shall mean all material that a Party asserts in good faith to
be of a proprietary business or confidential nature and which the Party would not normally reveal
to competitors, potential competitors, and/or other Third Parties, or which the Party would cause
Third Parties to maintain in confidence, including but not limited to the following examples:
i.
employment applications;
ii.
employee manuals;
iii.
personnel files and evaluations;
iv.
company forms, manuals and guides;
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v.
marketing and sales information;
vi.
client information;
vii.
information subject to confidentiality or non-disclosure agreements;
viii.
information that is protected by rights of privacy under state and federal
ix.
any other information that would qualify as confidential pursuant to the
constitutions;
Federal Rules of Civil Procedure or any other applicable legal standard.
2.
Use of Confidential Material:
A.
Confidential Material received by a Party shall be used by that Party and its
counsel solely for purposes of this Action and shall not be used for any other purpose, including
without limitation any business, commercial or personal purpose.
B.
This Order shall not be deemed to preclude or affect a Producing Party’s use of its
own Confidential Material, for any purpose, or a Party’s use of any documents, materials or
information obtained independently of discovery in this Action.
C.
The Parties, in conducting discovery from Third Parties after the date of this
Order, shall attach to such discovery requests a copy of this Order and a cover letter that will
apprise such Third Parties of their rights hereunder.
3.
Designation of Confidential Material:
A.
A Producing Party may designate material as Confidential Material by placing on
or affixing to it (or otherwise declaring, if affixation is not practical), in a manner that shall not
interfere with its legibility, the notation “CONFIDENTIAL” on each page or part of the
document or thing containing Confidential Material. Such a designation shall constitute a goodfaith representation by counsel for the Producing Party that the document or thing constitutes or
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contains Confidential Material. Such a designation shall, where practicable, be made prior to or
contemporaneously with production or disclosure except in the case of depositions and except in
other circumstances where such contemporaneous designation by affixation is not practicable, in
which case the Producing Party shall make the designation as soon as practicable after
production. Depositions shall be designated as Confidential Material as set forth in paragraph 6
herein. To the extent the Parties have produced material before the entry of this Order, all such
material shall be deemed “Confidential Material” regardless of whether it is so marked.
4.
Disclosure of Confidential Material:
A.
Confidential Material shall not, directly or indirectly, be disclosed or otherwise
provided to anyone except:
i.
ii.
The Court and its personnel;
iii.
The Parties;
iv.
Counsel to the Parties;
v.
Clerks, paralegals, secretaries and other persons employed by such
Counsel to provide litigation support regarding this Action;
vi.
Experts and professional consultants who have been retained by the
Parties’ counsel and who have a need to know said Confidential Material in order to assist
Counsel in this litigation, including preparation for the trial;
vii.
The jury, subject to paragraph 8 below;
viii.
Court reporters and deposition transcript reporters;
ix.
Any of the author(s) and recipient(s) of such Confidential Material, as
indicated on the face of the document, record or thing or as otherwise established; and
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x.
A potential witness whose deposition is being taken, provided that
witness:
a.
has personal knowledge as to the substance of the Confidential
Material, provided that non-parties do not receive copies of the documents or otherwise
record for their use any information contained in the documents;
b.
is an Expert who is designated by a Producing Party or who is
entitled to access to such Confidential Material under the terms of this Order; or
c.
B.
is a designated corporate representative witness.
Counsel for the Parties and/or their staff shall at all times have and maintain
physical custody and control over all Confidential Material and also be responsible for ensuring
that such Confidential Material does not leave their custody and/or is not disclosed orally.
Failure to make diligent efforts to do so shall be grounds for imposition of sanctions at the
discretion of the Court.
5.
Disclosure to Experts:
A.
Prior to disclosing or seeking to disclose any Confidential Material to any Expert,
counsel for the Party in question shall determine that disclosure to such Expert of such
Confidential Material is, in that counsel’s good-faith judgment, reasonably necessary to that
counsel’s representation of a Party in this Action.
B.
Confidential Material shall not, directly or indirectly, be disclosed or otherwise
provided to an Expert unless such Expert executes an Agreement Concerning Material Covered
By Agreed Protective Order and agrees in writing:
i.
to maintain the security of such Confidential Material when such
Confidential Material is not being reviewed;
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ii.
to return such Confidential Material and all copies thereof to counsel for
Plaintiff or Defendant, as appropriate, upon the conclusion of the Expert’s assignment or
retention; and
iii.
not to disclose such Confidential Material to anyone, except as permitted
by this Order; and to use such Confidential Material and the information contained therein solely
for the purpose of rendering expert witness services to a Party to this Action, including providing
testimony in this Action.
C.
A Party that discloses any Confidential Material to an Expert shall maintain a file
of all executed Agreements Concerning Material Covered By Agreed Protective Order in the
form attached hereto. Unless good cause is shown, the Party shall not be required to disclose to
the other Party the identity of Experts with whom it has shared Confidential Material.
6.
Use of Confidential Material at Depositions:
The portions of any deposition transcript that Counsel for any Party has designated on the
record at the deposition as confidential and any Confidential Material that is marked as a
deposition exhibit shall be treated as Confidential Material. Notwithstanding the foregoing, the
entirety of all deposition transcripts shall be deemed Confidential Material for twenty (20) days
after the transcript is delivered to all Parties’ Counsel. During that 20-day period, any Party’s
Counsel may designate via letter to all counsel, by page and line number (insofar as practicable),
any portion of a deposition transcript, to the extent not previously designated, as Confidential
Material.
7.
Presentation of Confidential Material to the Court:
A.
Stamped Confidential Material shall not be filed with the clerk of court except
when required in connection with dispositive motions or motions to dismiss, motions to
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determine confidentiality, motions related to discovery disputes if the Confidential Material is
relevant to the motion, and in appendices, briefs, or pleadings relating to an appeal. Confidential
Material shall not lose its confidential status as between the Parties through such use. Before
Plaintiff files with the clerk of Court Confidential Material or any pleadings or briefs quoting or
discussing Confidential Material produced by Defendant, Plaintiff must first notify Defendant of
Plaintiff’s intent to file such Confidential Material at least ten (10) days prior to filing the
Confidential Material. Once so notified by Plaintiff, Defendant may require Plaintiff to file such
Confidential Material “under seal” or otherwise kept out of the public record in this action, in
accordance with the requirements of the Court in which this Action is pending.
B.
As to testimony elicited or exhibits offered or used during the hearings and other
proceedings or at the trial of this Action, the courtroom and proceedings shall remain open unless
otherwise ordered by the Court.
8.
Confidential Material at Trial:
Subject to the Federal Rules of Evidence, Confidential Material may be offered in
evidence at trial or any Court hearing, provided that the proponent of the evidence has indicated
on any Exhibit List any proposed exhibits that are designated as Confidential Material. Any
Party may move the Court for an Order that the Confidential Material be received in camera or
under such other conditions as are necessary to prevent disclosure. The Court will then determine
whether the proffered evidence should continue to be treated as Confidential Material and, if so,
what protection may be afforded such information at the trial or hearing. Under no circumstances
shall a jury be advised that information has been designated Confidential Material.
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9.
Inadvertent Disclosure of Confidential Material:
Inadvertent failure to designate any material as Confidential Material pursuant to this
Order shall not constitute a waiver of any otherwise valid claim for protection thereof, so long as
such claim is asserted within fifteen (15) days of the discovery of the inadvertent failure. At such
time, arrangements shall be made for the Producing Party appropriately to mark such material in
accordance with this Order.
10.
Inadvertent Disclosure of Work Product or Privileged Information:
The inadvertent or mistaken production of material subject to a claim of attorney-client,
work product or other privilege or protection shall not be deemed a waiver of a claim of
privilege. A Producing Party that mistakenly or inadvertently produces material subject to any
claim of privilege or protection from discovery may, promptly upon discovery of such
disclosure, request that the Parties receiving such material return it. A Party receiving such
material shall use its best efforts to return all copies thereof within three (3) business days after
the request is received and the Producing Party serves on the receiving Party a privilege log that
lists the items to be returned in a manner and with sufficient detail to comply with applicable
law. The Party receiving such material shall use its best efforts to destroy or redact any notes or
summaries referring or relating to the privileged information in any such material.
11.
Duty to Report:
When any counsel of record in this Action or any counsel who has executed or filed a
confidentiality agreement or confidentiality undertaking becomes aware of any violation of this
Order or of a confidentiality agreement or undertaking related to this Action, or of facts
constituting good cause to believe that such a violation may have occurred, such counsel shall
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promptly report, with all relevant particulars to assist in aiding any investigation, to this Court
and to counsel for the Producing Party that there may have been such a violation.
12.
Continuing Jurisdiction:
After the conclusion of this Action, the provisions of this Order shall continue to be
binding until further order of this Court, and this Court shall retain jurisdiction over the Parties
and any other person who has had access to Confidential Material pursuant to this Order, in order
to enforce the provisions of the Order.
13.
Conclusion of Litigation:
Upon conclusion of this litigation, whether by judgment, settlement, or otherwise,
counsel of record and each Party, person, and entity who obtained Confidential Materials subject
to this Order shall assemble and return all Confidential Materials to the Producing Party. No
originals, copies, summaries, or other embodiment of any such Confidential Materials will be
retained by any person or entity to whom disclosure was made.
14.
Privilege:
Nothing in this Order shall constitute a waiver of the attorney-client, attorney work
product, or trial preparation privileges or limit any Party to object to the scope of discovery or to
any particular discovery request in this litigation.
Nothing in this Order shall prevent or
otherwise restrict any counsel from rendering advice to his or her client and, in the course
thereof, relying generally on his or her examination of confidential items.
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15.
Violations:
Any violation of the terms of this Order may result in sanctions to be affixed by the Court
in its discretion.
Baton Rouge, Louisiana, October 4, 2013.
s
STEPHEN C. RIEDLINGER
UNITED STATES MAGISTRATE JUDGE
APPROVED AND ENTRY REQUESTED:
Respectfully submitted,
Respectfully submitted,
SEYFARTH SHAW LLP
By: /s/ Jean-Paul Robert (with permission)
Jean-Paul Robert, Bar #27628
Attorney at Law, L.L.C.
2315 S. Burnside Ave.
Gonzales, Louisiana 70737
Telephone: (225) 647-9200
Telecopier: (225) 647-9300
ATTORNEYS FOR PLAINTIFF
CHRIS JOSEPH BOURGEOIS
By:/s/ Timothy M. Watson
_____
Timothy M. Watson, pro hac vice
Texas Bar No. 20963575
Rachel M. Hoffer, pro hac vice
Texas Bar No. 24065432
700 Louisiana Street, Suite 3700
Houston, Texas 77002-2797
Telephone:
(713) 225-2300
Telecopier: (713) 225-2340
twatson@seyfarth.com
rhoffer@seyfarth.com
Melissa M. Shirley
Louisiana Bar Roll No. 25248
BREAZEALE, SACHSE & WILSON,
L.L.P.
One American Place, 23rd Floor
Post Office Box 3197
Baton Rouge, Louisiana 70821-3197
ATTORNEYS FOR DEFENDANT
LBC BATON ROUGE, LLC
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AGREEMENT CONCERNING MATERIAL
COVERED BY AGREED PROTECTIVE ORDER
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
CHRIS JOSEPH BOURGEOIS
CIVIL ACTION
VERSUS
NO. 13-160-BAJ-SCR
LBC BATON ROUGE, LLC
AGREEMENT CONCERNING MATERIAL
COVERED BY AGREED PROTECTIVE ORDER
The undersigned hereby acknowledges that s/he has read the Agreed Protective Order
entered in this action on _______ day of ____________________ 2013, that s/he understands the
terms thereof, and that he/she agrees to be bound by such terms.
Date:
(Please Print)
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