Picht v. James Hardie Building Products, Inc.

Filing 108

STIPULATED PROTECTIVE ORDER 13 .(Written Opinion). Signed by Chief Judge Michael J. Davis on 9/28/12. Associated Cases: 0:12-md-02359-MJD-LIB et al.(GRR)

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA

Case No. 12-md-2359
MDL No. 2359
ALL CASES

In re:
HARDIEPLANK FIBER CEMENT
SIDING LITIGATION

STIPULATED PROTECTIVE ORDER
This matter is before the Court on the Stipulated Motion for Protective Order
(“Motion”) filed by all of the parties to this action. This Motion seeks a protective order
to restrict the use of documents or other information that constitutes: trade secrets;
customer lists or information; sensitive business or financial information; confidential
research, development or commercial information; cost, pricing, sales, or production
data; confidential or private personal information; market studies; business plans; or any
other information that a party is obligated to preserve as confidential.
Federal Rule of Civil Procedure 26 permits litigants to seek an order to protect
relevant and discoverable material. The parties to this action stipulate that these records
will only be used for the purpose of this litigation and that this Protective Order will
secure protected information from unauthorized disclosure. The Court finds that good
cause exists for issuance of an order permitting limited disclosure of such information.
THEREFORE, It is –
ORDERED: That the Motion is GRANTED.
IT IS FURTHER ORDERED:

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That pursuant to Rule 26(c) of the Federal Rules of Civil Procedure, the Court
hereby orders that the following procedures are to be employed in this action for the
protection of the parties against disclosure or any improper use of confidential and
proprietary information produced in discovery or filed with this Court.
1.

Definition of “Confidential Information”. “Confidential Information” is

defined as follows: trade secrets; customer lists or information; sensitive business or
financial information; confidential research, development or commercial information;
cost, pricing, sales, or production data; confidential or private personal information;
market information; business plans; or any other information that a party is obligated to
preserve as confidential. Confidential Information does not include information that has
been disclosed in the public domain.
2.

Application of Protective Order. This Protective Order governs the

handling of all Confidential Information, including documents, testimony, and other
information (and including all copies, excerpts, and summaries thereof) produced, given
or filed during discovery and other proceedings in this action. The provisions of this
Protective Order shall apply to the parties to this action, and any other persons producing
or disclosing Confidential Information in this action who agree or are ordered to be
bound by this Protective Order. The term “person” shall include both the named parties
and third parties who have agreed or been ordered to be bound by this Protective Order.
3.

Designation of Confidential Information. Any party or person that

produces or gives Confidential Information may designate information as Confidential
Information if the attorney for the producing party or person in good faith determines that
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the information meets the definition stated in Paragraph 1. If any designating party
believes that a document or information that does not meet the definition stated in
Paragraph 1 should nevertheless be considered “Confidential Information,” that party
may make an application to the Court. The parties acknowledge that this Protective
Order does not confer blanket protections on all disclosures or responses to discovery and
that the protection it affords extends only to information that is entitled to being treated as
confidential under applicable legal principles.
(a)

Designation of Documents. Documents may be designated as

Confidential Information by stamping “Confidential” or “Confidential – Attorneys’ Eyes
Only” on each page prior to production. A party that in good faith believes any particular
Confidential Information is so sensitive that it should not be disclosed to any individual
party, or to a director, officer, or employee of a party, may designate that Confidential
Information as “Confidential – Attorneys’ Eyes Only.” Information that is designated
“Confidential” or “Confidential – Attorneys’ Eyes Only” shall be used solely for the
purposes set forth in Paragraph 4 below and shall be disclosed to only those persons set
forth in Paragraph 5(b) below.
(b)

Designation of Deposition Testimony. Deposition testimony may be

designated, in whole or in part, as Confidential Information by either (i) oral designation
on the record during the course of the deposition, or (ii) in writing served upon counsel
for all parties by noting the page and line numbers designated within twenty-one (21)
days after the designating party receives a copy of the final deposition transcript. If
deposition testimony is designated as Confidential Information, the court reporter shall
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separately bind the “Confidential” and “Confidential – Attorneys’ Eyes Only” portions of
the deposition transcript and shall stamp the words “Confidential” or “Confidential –
Attorneys’ Eyes Only,” as appropriate, on each page. The cover page of a deposition
transcript containing any designated portions shall also indicate that it contains portions
of testimony subject to this Protective Order. During the time period between the
deposition testimony and the deadline to designate such testimony as Confidential
Information, the deposition testimony in its entirety shall be designated and treated as
“Confidential – Attorneys’ Eyes Only.”
(c)

Inadvertent Failure to Designate. The inadvertent failure to

designate qualified information as Confidential Information does not, standing alone,
waive the designating party’s right to secure protection under this Protective Order for
such information. If material is appropriately designated as Confidential Information
after the material was initially produced, the party receiving the information, upon timely
written notification of the designation, must make reasonable efforts to assure that the
material is treated in accordance with this Protective Order. Where a party or third party
changes the designation of confidentiality under this Order, that party or third party shall
promptly furnish the information re-designated in accordance with this Paragraph 3.
Similarly, an inadvertent disclosure of information protected from
disclosure by the attorney-client privilege, the work product doctrine, or any other
applicable law, privilege, or immunity does not, standing alone, waive the privilege or
protection over that information. Federal Rule of Evidence 502 shall govern all
limitations on waiver of attorney-client privilege and work product. The parties shall act
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in accordance with Federal Rule of Civil Procedure 26(b)(5)(B) should a producing party
assert that privileged or otherwise protected information has been inadvertently produced.
4.

Use of Confidential Information. All Confidential Information that is

produced in the course of discovery proceedings shall be used only for the purpose of
preparing for and conducting this action (including appeals) and not for any business or
other purpose whatsoever. Confidential Information shall not be given, shown, or made
available or communicated in any way to anyone except those specified below who have
read and are bound by the terms of this Protective Order, and to whom it is necessary that
such Confidential Information be given or shown for the purposes permitted under this
Paragraph 4. The persons to whom Confidential Information is disclosed shall, before
such disclosure, agree to be bound by this Protective Order by signing a copy of the
Confidentiality Agreement attached as Exhibit A.
5.

Persons to Whom Confidential Information May Be Disclosed.

(a)

“Confidential” Information. Except as otherwise provided by this

Protective Order, information designated as “Confidential” shall be disclosed only to:
(i)

outside counsel of record for the parties in this action, and other
clerical, paralegal and other staff employed by such counsel, and any
independent experts or independent consultants who are assisting in
the prosecution or defense of this action and only for the purposes of
this action;

(ii)

in-house counsel for the defendant;

(iii)

the named plaintiff and officers, directors, or employees of the
defendant;

(iv)

the Court and court personnel (in the manner provided by Paragraph
7 below);

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(v)
(vi)

witnesses at deposition, but only in connection with preparation for
and during the course of his or her deposition, or at trial; and

(vii)
(b)

any other person as to whom the producing party agrees in writing;

court reporters employed in connection with this action.

“Confidential – Attorneys’ Eyes Only” Information: Except as otherwise

provided by this Protective Order, information designated as “Confidential – Attorneys’
Eyes Only” shall be disclosed only to the persons set forth in Paragraph 5(a)(i), (ii), (iv),
and (v) above who have agreed or who have been ordered to be bound by this Protective
Order.
(c)

Disclosure of Confidential Transcripts to the Deponent. Deposition

transcripts containing Confidential Information may be shown to the deponent for the
purpose of correction, but the deponent may not retain a copy of the transcript unless
(s)he agrees to be bound by this Protective Order by signing a copy of the Confidentiality
Agreement attached as Exhibit A.
(d)

Exceptions. This Protective Order shall not apply to the disclosure of

documents, or the contents thereof, to persons who were the authors or addressees of
those documents or who are shown as having received copies. In addition, the
restrictions on disclosure in this Protective Order shall not apply to the party designating
the material as Confidential Information; such party shall have the absolute right to make
any disclosures of its own information as it chooses, except that if a party discloses
Confidential Information to any non-party or entity not a part of this Protective Order in a
manner that is inconsistent with maintaining the confidentiality of the information, then

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the disclosing party must re-produce the disclosed documents with the confidentiality
designation removed.
6.

Disclosure of Confidential Information to Experts or Consultants. Each

party represents and warrants that it will confirm before providing any “Confidential” or
“Confidential – Attorneys’ Eyes Only” information to any expert or consultant that the
expert or consultant is independent from and has no conflict of interest with the opposing
party. A conflict of interest shall arise if an expert or consultant has ever been engaged
by a party as an employee or independent contractor for purposes other than this
litigation.
7.

Filing of Confidential Information. If a party files a document containing

Confidential Information with the Court, it shall do in compliance with the Electronic
Case Filing Procedures for the District of Minnesota. Prior to disclosure at trial or a
hearing of materials or information designated “Confidential” or “Confidential –
Attorneys’ Eyes Only”, the parties may seek further protections against public disclosure
from the Court.
8.

Duty of Good Faith. Each party or non-party that designates information or

items for protection under this Protective Order must act in good faith to limit any such
designation to specific material that qualifies under the appropriate standards. Mass,
indiscriminate designations are prohibited. If it comes to a party’s or a non-party’s
attention that information or items that it designated for protection do not qualify for
protection at all, or do not qualify for the level of protection initially asserted, that party

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or non-party must promptly notify all other parties that it is withdrawing the incorrect
designation.
9.

Objections to Designation of Confidential Information. Whenever a party

objects to the treatment of material as Confidential Information, it shall inform the
designating party in writing of the party’s objection and the basis for that objection. The
parties shall meet and confer in good faith to attempt to resolve the dispute. If the parties
are unable to resolve the dispute, the objecting party may apply to the Court by motion for
a ruling that the document or transcript shall no longer be treated as “Confidential” or
“Confidential – Attorneys’ Eyes Only.” Upon such an application, the party asserting
confidentiality bears the burden to establish the same. Until the Court enters an order, if
any, changing the designation of the document or transcript that is to be the subject of the
application, the material shall continue to be afforded the “Confidential” or “Confidential
– Attorneys’ Eyes Only” treatment described in Paragraph 5 herein.
10.

Advance Notification of Potential Third Party Disclosures. If any person

receiving Confidential Information covered by this Protective Order (a) is subpoenaed in
another action or proceeding, (b) is served with a demand in another action or proceeding
to which (s)he or it is a party or is otherwise involved, or (c) is served with any other
process by one not a party to this litigation, seeking material designated as Confidential
Information by another party, the receiving party shall give written notice within three (3)
business days of receipt of such subpoena, demand or process to the party that designated
the material as Confidential Information. The receiving party shall not produce any of the
Confidential Information for a period of at least ten (10) days, or within such lesser time
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period as ordered by a court, after providing the required notice to the designating party.
If, within that period, the designating party gives notice to the receiving party that the
designating party opposes production, the receiving party shall not thereafter produce such
Confidential Information except pursuant to a court order requiring compliance with the
subpoena, demand, or other process. The designating party shall be solely responsible for
asserting any objection to the requested production.
11.

Unauthorized Disclosure of Confidential Information. If a party receiving

Confidential Information learns that, by inadvertence or otherwise, (s)he or it has
disclosed that Confidential Information to any person or in any way not authorized under
this Protective Order, that party shall immediately: (a) notify the designating party in
writing of the unauthorized disclosure; (b) use their best efforts to retrieve all copies of the
disclosed Confidential Information; and (c) inform the person(s) to whom unauthorized
disclosure was made of all of the terms of this Protective Order.
12.

Disposition of Confidential Information at Conclusion of Litigation. At the

conclusion of this litigation (i.e., upon its final dismissal), all materials designated as
“Confidential” or “Confidential – Attorneys’ Eyes Only,” and any copies thereof, shall
either be destroyed or returned to the party or person furnishing the same. In addition, all
copies of all summaries or other materials containing or disclosing information contained
in “Confidential” or “Confidential – Attorneys’ Eyes Only” materials shall be either
destroyed or returned to the party or person furnishing the same. However, the attorneys
for all of the parties may keep a copy of any transcripts, pleadings, and exhibits and
maintain them in confidence. In the event that material are destroyed, the parties shall
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certify in writing to the designating party that destruction has occurred. This Protective
Order shall continue to be binding after the conclusion of this litigation, except that, unless
otherwise ordered by this Court, there shall be no restriction on documents or transcripts
that become a part of the public record without breach of this Protective Order.
13.

No Application to Evidentiary Issues. This Protective Order does not apply

to the offer of or admission into evidence of Confidential Information at trial, nor does it
apply for any other purpose under the Federal Rules of Evidence. Such evidentiary issues
may be raised as a separate matter upon the motion of any party at the time of trial.
14.

Modification of Protective Order. This Protective Order remains subject to

modification by the Court for good cause shown.

DATED: September 28, 2012

s/ Michael J. Davis
The Honorable Michael J. Davis
Chief United States District Judge

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UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA

Case No. 12-md-2359
MDL No. 2359
ALL CASES

In re:
HARDIEPLANK FIBER CEMENT
SIDING LITIGATION

CONFIDENTIALITY AGREEMENT
I am authorized by _______________ [party name] to review Confidential
Information as that term is used in the Protective Order dated September ____, 2012, and
hereby request access to that Confidential Information for use in this litigation.
I have been provided with a copy of the Protective Order dated September ____,
2012 in the above-captioned proceeding. I have read that Protective Order and hereby
agree to be bound by all of the limitations regarding disclosure of Confidential
Information contained in that Protective Order.
I understand that failure to comply with the terms of that Protective Order may be
punishable by contempt of court and may result in civil liability to any party or person
damaged thereby.
I consent to the United States District Court for the District of Minnesota
exercising jurisdiction over me for the purpose of enforcing that Protective Order or for
any contempt proceedings against me arising out of my failure to comply with the terms
of that Protective Order.
EXHIBIT A
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Dated:

_____.

Signature of Person Requesting
Access to Confidential Information

Typed Name of Person Requesting
Access to Confidential Information

DM_US 30462078-2.054178.0012

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