Lee v. Figueron et al

Filing 40

AGREED PROTECTIVE ORDER. Signed by Magistrate Judge Jane M. Virden on 4/29/19. (ncb)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF MISSISSIPPI
OXFORD DIVISION
ARNELL LEE
VS.

PLAINTIFF
CIVIL ACTION NO.: 3:18-CV-00058-NBB-JMV

F. FIGUEROA, WARDEN (TCCF); T. ELROD (COB) (TCCF);
SECRETARY SCOTT KERNAN (CDC&R); DOES 1 THROUGH 5;
CORRECTIONAL CORPORATION OF AMERICA;
SUED IN THEIR INDIVIDUAL, OFFICIAL &
PERSONAL CAPACITIES DEFENDANTS
ANSWER AND AFFIRMATIVE

DEFENDANTS

AGREED PROTECTIVE ORDER
Because discovery in the above-captioned case is likely to involve the disclosure of
confidential information, it is ORDERED as follows:
1.

Any party to this litigation and any third-party shall have the right to designate

as “Confidential” and subject to this Protective Order any information, document, or thing, or
portion of any document or thing that: (a) contains trade secrets, competitively sensitive
technical, marketing, financial, employee, sales, or other confidential business information;
(b) contains private or confidential personal information; (c) contains prison policies,
procedures, protocols, post orders, or investigative documents, or contains the identity of
prison officials involved in the incident at issue in this litigation (the “Subject Incident” or
related, relevant events; or (d) is a document the producing party otherwise believes in good
faith to be entitled to protection under Rule 26(c)(1)(G) of the Federal Rules of Civil
Procedure. Any party to this litigation or any third party covered by this Protective Order, who
produces or discloses any Confidential material, including without limitation any information,
document, thing, interrogatory answer, admission, pleading, or testimony, shall mark the same
with the following or similar legend: “CONFIDENTIAL” or “CONFIDENTIAL—SUBJECT

Agreed Protective Order 1

TO PROTECTIVE ORDER” (hereinafter “Confidential”). For purposes of this Protective
Order, “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
Confidential materials, whether pursuant to request, interrogatory, process, or otherwise, and
whether in accordance with the Federal Rules of Civil Procedure or otherwise.
2.

Confidential material and the contents of Confidential material may be disclosed

only to the following individuals under the following conditions:
a. Outside counsel (defined as any attorney at the parties’ outside law firms)
and relevant in-house counsel for the parties;
b. Outside experts or consultants retained by outside counsel for purposes of
this action, provided that they have signed a non-disclosure agreement in the
form attached as Exhibit A;
c. Secretarial, paralegal, clerical, duplicating, and data-processing personnel of
outside counsel, outside experts, or consultants retained by outside counsel
or experts;
d. The Court and court personnel;
e. Any deponent, witness, or potential witness, provided that they have signed
a non-disclosure agreement in the form attached as Exhibit A; and
f. Vendors retained by or for the parties to assist in preparing for pretrial
discovery, trial, or hearings, including, but not limited to, court reporters,
litigation-support personnel, jury consultants (including mock jurors),
individuals to prepare demonstrative and audiovisual aids for use in the
courtroom or depositions or mock-jury sessions, as well as their staff,

Agreed Protective Order 2

stenographic, and clerical employees whose duties and responsibilities
require access to such materials.
Confidential materials shall not be disclosed to Plaintiff Arnell Lee or any other current
or former inmate under any circumstances without prior written consent of Defendants’
counsel.
Confidential material shall be used only by individuals permitted access to it under
Paragraph 2.
Confidential material, copies thereof, and the information contained therein, shall not be
disclosed in any manner to any other individual, until and unless (a) outside counsel for the party
asserting confidentiality consents; or (b) the Court orders such disclosure. With respect to any
depositions that involve a disclosure of Confidential material of a party to this action, such party
shall have until thirty (30) days after receipt of the final deposition transcript within which to
inform all other parties that portions of the transcript are to be designated Confidential, which
period may be extended by agreement of the parties. No such deposition transcript shall be
disclosed to any individual other than the individuals described in Paragraph 2 above and the
deponent during these thirty (30) days, and no individual attending such a deposition shall
disclose the contents of the deposition to any individual other than those described in Paragraph
2 above during that period. Upon being informed that certain portions of a deposition are to be
designated as Confidential, all parties shall immediately cause each copy of the transcript in its
custody or control to be appropriately marked and limit disclosure of that transcript in
accordance with Paragraph 2.
5.

If counsel for a party receiving documents or information designated as

Confidential objects to such designation, the following procedure shall apply:

Agreed Protective Order 3

a. Counsel for the objecting party shall serve on the designating party or third
party a written objection to the designation, which shall describe with
particularity the documents or information in question and shall state the
grounds for objection. Counsel for the designating party or third party shall
respond in writing to the objection within fourteen (14) days and shall state
with particularity the grounds for asserting that the document or information
is Confidential. If no timely written response is made to the objection, the
challenged designation will be deemed to be void. If the designating party
or third party makes a timely response to such objection asserting the
propriety of the designation, counsel shall then confer in good faith in an
effort to resolve the dispute.
b. If a dispute as to Confidential designation of a document or item of
information cannot be resolved by agreement, the party seeking to challenge
the designation of the subject document or item of information shall file a
formal motion seeking appropriate relief. The document or information that
is the subject of the filing shall be treated as originally designated pending
resolution of the dispute.
6.

If a party wishes to file in the court record or introduce into evidence any

document designated by another party as Confidential or document containing information
designated as Confidential, the filing party must provide written notification to the party who
has designated the document or information as Confidential, and that notification is to be
provided no later than forty (40) days prior to the desired filing. Within ten (10) days of
receiving that notification, the party who designated the document or information as

Agreed Protective Order 4

Confidential must either withdraw the Confidential designation or must file a motion to seal in
accordance with Local Rule 79. Nothing in this provision is intended to limit or restrict a party
from filing in the court record, introducing into evidence, or moving the Court to seal the
party’s own Confidential materials. Further, nothing in this provision is intended to limit or
restrict a party from utilizing a document in the event the Court denies a motion to seal. Local
Rule 79 will apply to the procedure for the sealing of court records.
7.

If the need arises during trial or at any hearing before the Court for any party to

disclose Confidential information, it may do so only after giving notice to the producing party
and as directed by the Court.
8.

To the extent consistent with applicable law, the inadvertent or unintentional

disclosure of Confidential material that should have been designated as such, regardless of
whether the information, document, or thing was so designated at the time of disclosure, shall
not be deemed a waiver in whole or in part of a party’s claim of confidentiality, either as to the
specific information, document, or thing disclosed, or as to any other material or information
concerning the same or related subject matter. Such inadvertent or unintentional disclosure
may be rectified by notifying in writing counsel for all parties to whom the material was
disclosed that the material should have been designated Confidential within a reasonable time
after disclosure. Such notice shall constitute a designation of the information, document, or
thing as Confidential under this Protective Order.
9.

When the inadvertent or mistaken disclosure of any information, documents, or

thing protected by privilege or work-product immunity is discovered by the producing party and
brought to the attention of the receiving party, the receiving party’s treatment of such material
shall be in accordance with Federal Rule of Civil Procedure 26(b)(5)(B). Such inadvertent or

Agreed Protective Order 5

mistaken disclosure of such information, document, or thing shall not by itself constitute a
waiver by the producing party of any claims of privilege or work-product immunity. Nothing in
this Protective Order, however, restricts the right of the receiving party to challenge the
producing party’s claim of privilege if appropriate within a reasonable time after having received
notice of the inadvertent or mistaken disclosure.
10.

No information that is in the public domain shall be deemed or considered to be

Confidential material under this Protective Order.
11.

If in any proceeding other than this litigation, a person or entity should

subpoena or otherwise request a party to produce Confidential material received from another
party or third party, the party receiving the subpoena or request shall promptly notify the
producing party in writing. Should the producing party seek relief from the subpoena or
request, the party that received the subpoena or request shall not produce the material in
question until the matter is resolved by the producing party or unless ordered by the Court,
unless compliance is otherwise required as a matter of law.
12.

This Protective Order shall not deprive any party of its right to object to

discovery by any other party or on any otherwise permitted ground. This Protective Order is
being entered without prejudice to the right of any party to move the Court for modification or
for relief from any of its terms.
13.

Nothing in this Protective Order is intended, or shall be construed, to prevent any

Party or other person from cooperating with any investigation or proceeding conducted by any
governmental agency.
14.

Nothing in this Protective Order shall prevent a party from any use of its own

Confidential materials.

Agreed Protective Order 6

15.

This Protective Order shall survive the termination of this action and shall

remain in full force and effect unless modified by an Order of this Court or by the written
stipulation of the parties filed with the Court.
16.

Within ninety (90) days following the final conclusion of this litigation, each

party or other individual subject to this Protective Order shall be under an obligation to
assemble and to return to the originating source all originals and unmarked copies of
documents and things containing Confidential material and to destroy, should such source so
request, all copies of Confidential material that contain or constitute work product as well as
excerpts, summaries, and digests revealing Confidential material; provided, however, that
counsel may retain complete copies of all transcripts and pleadings including any exhibits
attached for archival purposes, subject to the provisions of this Protective Order.
17.

The Court retains the right to allow disclosure of any subject covered by this

Protective Order or to modify this Protective Order at any time in the interest of justice.

SO, ORDERED.

Dated: April 29 _____, 2019

/s/ Jane M. Virden ______________________
UNITED STATES MAGISTRATE JUDGE

Agreed Protective Order 7

EXHIBIT A
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF MISSISSIPPI
OXFORD DIVISION
ARNELL LEE

PLAINTIFF

VS.

CIVIL ACTION NO.: 3:18-CV-00058-NBB-JMV

F. FIGUEROA, WARDEN (TCCF); T. ELROD (COB) (TCCF);
SECRETARY SCOTT KERNAN (CDC&R); DOES 1 THROUGH 5;
CORRECTIONAL CORPORATION OF AMERICA;
SUED IN THEIR INDIVIDUAL, OFFICIAL &
PERSONAL CAPACITIES DEFENDANTS
ANSWER AND AFFIRMATIVE

DEFENDANTS

AGREEMENT TO BE BOUND BY PROTECTIVE ORDER
I, __________________________, being duly sworn, state that:
1. My address is:
_______________________________________________________________________
2. My present employer is:
_______________________________________________________________________
3. The address of my present employment is:
_______________________________________________________________________
4. My present occupation or job description is:
_______________________________________________________________________
5. I have carefully read and understood the provisions of the Protective Order in this case
signed by the Court, and I will comply with all provisions of the Protective Order.
6. I will hold in confidence and not disclose to anyone not qualified under the Protective
Order any Confidential material or any words, summaries, abstracts, or indices of
Confidential information disclosed to me.
Exhibit A to Agreed Protective Order, Page 1

7.

I will limit use of Confidential material disclosed to me solely for purpose of this action.

8. No later than the final conclusion of the case, I will return all Confidential material, and
any summaries, abstracts, and indices that come into my possession, and documents or
things that I have prepared relating to Confidential material, to counsel for the party for
whom I was employed or retained.
I declare under penalty of perjury that the foregoing is true and correct.

Dated this ____ day of _______________, ______.
___________________________________
Name (Print)
____________________________________
Signature

Exhibit A to Agreed Protective Order, Page 2