Franklin American Mortgage Corporation v. First Educators Credit Union

Filing 20

AGREED PROTECTIVE ORDER. Signed by Magistrate Judge John S. Bryant on 5/16/12. (dt)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF TENNESSEE
AT NASHVILLE
FRANKLIN AMERICAN MORTGAGE
CORPORATION,
)
Plaintiff, )
)
v.
)
FIRST EDUCATORS CREDIT UNION,
)

Defendant. )

)
)

)

Civil Action No. 3:11-cv-00749

)
)

Judge Todd J. Campbell
Magistrate Judge John S. Bryant

AGREED PROTECTIVE ORDER
This m atter cam e bef ore the Court o n the Jo int Motion f or Entry of Agreed Pro tective
Order (the “Joint Motion”) f

iled by Plaintiff Franklin Am

erican Mortgage Corporation

(“FAMC”) and Defendant Firs t Educators Credit Union (“First Educators”) (each a “Party” an d,
collectively, the “Parties” ). The Parties have consented to the requested relief, and good cause
exists f or th at re lief. Accordingly , the Jo int Motion is hereby grante d, and this Order shall
constitute the Agreed Protective Order governing this case. The Court hereby orders as follows:
1.

Any infor mation, document, or thing pr oduced in connection with this litigation

that is reaso nably believ ed by any Party o r th ird party to contain or constitu te: (1 ) nonpublic
personal information or (2) trade secrets and/or c onfidential or proprietary inform ation of such
Party or a third party, including, but not limited to, nonpublic pricing data, competitive analyses,
customer lis ts and other custom er-related inform ation of s uch Party or third parties, shall be
designated as

Confidential or

Highly Confidential/Attorneys Eyes Only Information

(collectively, “Conf idential Inf ormation”).

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As used herein, Confidential Inform

ation m ay

include: (a) all paper, tape

s, docum ents (including answers to docum

ent requests,

interrogatories, and reques ts for admission), disks, diskettes, and other tangible things produced
by or obtained from any person in connection with this litigation; (b) transcripts of depositions
herein and exhibits thereto; (c) all copies, extracts, and com plete or partial summaries or charts
or notes prepared or derived from such papers, documents or things, (d) expert reports, and (e)
items listed in (a) through (d) that a Party produces that have been previously designated as being
“CONFIDENTIAL,” “CONFI DENTIAL - SUBJEC T TO PROTECTIVE ORDER,” or other
words of sim ilar m eaning. Before designatin g any Confidential Inform ation, the designating
Party’s counsel shall m ake a good faith determ ination that the inform ation warrants protection.
The handlin g of such Confidential Infor mation sh all b e m ade in acco rdance with the term s of
this Agreed Protective Order.
2.

The designation of C

onfidential Inform ation m ay be m ade by m arking or

otherwise identifying the material in writing as Confidential or Highly Confidential/Attorneys
Eyes Only.
3.

If a producing Party ina dvertently fails to mark Confidential Information upon its

production, such Party m ay subseq uently designate such Confid ential Inform ation by giving
written notice to the r eceiving Party and providing properly m arked or designated copies within
fifteen (15) days of such notice. Deposition transcripts and exhibits thereto may be designated as
Confidential Inf ormation on th e r ecord at th e depos ition and m ay also be d esignated a s
Confidential Information for a period of thirty (30) days (or such longer peri od if the Parties so
agree) after receipt of the transcript from the court reporter. Until the expiration of the period set
forth in the preced ing sentenc e, an d unless oth erwise agre ed to by th e Parties, all depos ition

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transcripts and exhibits shall be deemed Confidential Information until such time that the Party is
required to make its confidentiality designations.
4.

Any Party may at any time request in writing that any Confidential Information be

released from the requirem ents of t his Agreed Protective Order (the “R equesting Party”), and,
unless otherwise agreed in writ ing, the Party producing such m aterial (“Producing Party”) shall
meet and confer with the Requestin g Party within ten (10) days of receipt of a request. If an
agreement cannot be reached by negotiation, the Re questing Party m ay file a m otion seeking to
de-designate the docum ent. In the event that such m otion is m ade in accordan ce with th e
procedures herein and applicable r ules of th is Court, th e Conf idential Inf ormation shall be
submitted to the Court u nder seal, as described herein, for the Court’s re view, and th e terms of
this Order shall continue to app ly to such Conf idential Information until the Court r ules on the
motion. The above procedure shall not preclude

application to the Court on a m ore expedited

basis as circumstances warrant.
5.

All Confidential Informa tion received from any Produc ing Party shall be used

solely in connection with, and only as necessary to, this litigation and the preparation and trial of
this case, or any related appellate proceeding, and not for a ny other purpose, includ ing without
limitation any other litigation or any business, competitive, or governmental purpose or function.
To that end, the Parties shall not distribu te or disclose any Confidential Infor mation received in
this litiga tion to any th ird par ty (or any of the Pa rties’ agents, consultant s, officers, directors,
employees, or representatives except on a need
consultant, em ployee, officer,

to know basis and pursuant to such agent,

director, o r repre sentative’s oblig ation to m

aintain th e

confidentiality of such document or information). Furthermore, counsel shall make a reasonable
and good faith effort to ensure that no docum
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ents or inform ation disclosed in this litigation,

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including d ocuments that are no t design ated as Confidential Inform ation, are u sed for any
prohibited purpose.
6.

Confidential Information and information derived from Confidential Information,

including, without limitation, an

y testim ony about an exhibi

t designated as Confidential

Information, shall not be disclosed except as set forth in paragraphs 7 and 8.
7.

Any information, document, or thing designated as Confidential may be disclosed

only to the following persons:
(a)

Outside counsel of record for any Party to this action;

(b)

Paralegal, stenographic, clerical , and secretarial personnel em ployed by
counsel listed in (a) (including, but not lim

ited to, photocopy service

personnel and docum ent m anagement vendors, such as coders and dataentry personnel, retained by outside counsel);
(c)

In-house counsel em ployed by a Party to this action (inc luding their staff
whose functions require access to su

ch information ), business person s

employed by a Party to this action whos e functions require that they have
access to C onfidential Infor mation in connectio n with th e p rosecution o r
defense of t his action, and persons em ployed by an insurer of a Party to
this action whose functions require that they h ave access to Confidential
Information in connection with the prosecution or defense of this action;
(d)

Court personnel, including stenographi c, video or audio reporters engaged
to record depositions in this litiga
translators;

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tion, and certified in terpreters and/or

(e)

Non-party expert(s) or consultant(s) and their secr etarial, technical, an d
clerical em ployees (including, bu t not lim ited to, photocopy service
personnel and docum ent m anagement vendors, such as coders and dataentry personnel, retained by outside

counsel) who actively assist in the

preparation of this action;
(f)

Any person identified on the face of any such C onfidential Information as
an author or as recipient thereof;

(g)

Any person who is determ ined to have been an author and/or previous
recipient of the Confidential Information, but are not identified on the face
thereof, provided there is prior testimony of actual authorship or receipt of
the Conf idential Inf ormation by su ch person prior to such person being
shown any Confidential Information;

(h)

Any non-party engaged by the Parties or appointed by the Court for
purposes of acting as a Discovery Refe ree, Special Master, and/or neutral
arbitrator or m ediator in any al ternative di spute resolution procedures in
which the Parties may participate; and

(i)
8.

Any person as ordered by the Court.

Any Party to this Agreed Protective

document, or thing produced in co

Order m ay designate any inform ation,

nnection with this

litigation as

Highly

Confidential/Attorneys Eyes Only Information. Such designation shall apply only to
materials and inform ation of a pr oprietary business or technical nature that m ight reasonably be
of value to a com petitor or po tential customer of the Party or non-party holding the proprietary
rights thereto, and m
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aterials and inform ation that m ight reasonably pose a commercial

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disadvantage to the Producing Party. Any in formation, document or thing designated as Highly
Confidential/Attorneys Eyes Only Information may be disclosed to the following persons:
(a)

Outside counsel of reco rd for any Party to this action and any paralegal,
stenographic personnel, clerical pe rsonnel, photocopy service personnel,
document management personnel (including coders and data-entry
personnel), and secretarial personnel employed by outside counsel;

(b)

Court personnel including stenographi c, video or audio reporters engaged
to record depositions in this litiga

tion, and certified in terpreters and/or

translators;
(c)

A non-party engaged by the Parties or appointed by the Court for purposes
of acting as a Discovery Referee, Special Master, and/or neutral arbitrator
or mediator in any alternative disput e resolution procedures in which the
Parties may participate; and

(d)

Independent experts or technical

and/or business consultants or sim ilar

persons whose assistance m ay be requi red for p reparation for and/o r trial
of this action and who a re retained by a Party for the purpose of assisting
with the prosecution or defense of t his action, provided such persons are
not employees, officers or agents of a ny Party to this action or em ployees,
officers or agents of a competitor of any Party to this action.
9.

Any person to whom Confidential Info rmation is furnished, shown, or disclosed

shall, p rior to the tim e he or she receives access to su ch m aterials, be provided , by counsel
furnishing such m aterial, a copy of this Agreed Protective Order and ag ree to be bound by its
terms. Counsel shall further undertake a reasonable and good faith e ffort to ensure that any such
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persons cannot utilize any Confid ential Information or other documents or information produced
in this litigation except as permitted by paragraph 5 of this Order.
10.

The restrictions on the use of Confid ential Inform ation established pursuant to

this Agreed Protective Order do not apply to

the use by a Party, p erson, or entity of the

Confidential Information it produces. A Party, pe rson or entity which pr oduces the Confidential
Information m ay use the Conf idential Inf ormation they produced in
appropriate. The Parties’ use of their own C

any m anner they deem

onfidential Inform ation shall not be deem ed a

waiver of the Parties’ respective rights to insist on compliance with this Order.
11.

Notwithstanding the provisions of th

is Agreed Protective Order, persons

authorized to review Confid ential Infor mation under this Or der m ay m ake generalized, nonspecific disclosure of infor mation derived fr om Conf idential Inf ormation withou t revea ling
specific facts or figures of Conf idential Inf ormation to sen ior execu tives of a Party as m ay be
reasonably necessary in connecti on with the m anagement, prosecution, and/or settlem ent of this
litigation. S uch disclosure sha ll not include any detailed Confid ential Infor mation of the other
Party and sh all be as limited as poss ible for such executiv e(s) to make decisions with respect to
this litigation.
12.

The provisions of this Agreed Protec tive Order are without prejudice to the right

of any Party to this Order to:
(a)

Resist o r c ompel disc overy with respec t to, or seek to
different protection for, m

obtain add itional or

aterial clai med to be protected work product or

privileged under applicable state or fe

deral law, m aterial as to which the

Producing Party claims a legal obligation no t to disclose, or m aterial not required
to be provided pursuant to applicable state or federal law;
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(b)

Seek to modify or obtain relief from any aspect of this Order; or

(c)

Object to th e use, relevance or adm issibility at trial or otherwise of any m aterial,
whether or not designated in whole or

in p art as Conf idential Inf ormation

governed by this Order. This Order shal l not govern the use or admissibility of
any evidence at trial or the procedures fo r using such documents or information at
trial.
13.

Confidential Information may be referred to in interrogato ries, interrogatory
answers, motions, briefs, or other papers filed with the Court and may be used in depositions and
oral argum ents in this action, either as exhib

its or as the basis for questions. Confidential

Information and pleadings, briefs , or other papers quoting, disc ussing, or otherwise disclosing
Confidential Infor mation shall be filed under the s eal of the Court, as described herein. The
Parties agree to cooperate to de-designate Confidential Information to be filed in Court filings to
the largest extent possible so as to m

inimize the necessity to file infor

mation under seal.

Notwithstanding the foregoing, any party seeking to file any such m aterial under seal shall fir st
seek leave of court to file the particular document(s) under seal from the judge presiding over the
particular hearing for which that party seeks to

f ile the docum ent(s), and shall not f ile said

document(s) without a court order corresponding to the particular document(s).
14.

All Confidential Information, and any pleadings, brie fs, or other papers quoting,
discussing, or otherwise disclosing Confidential Information filed with the Court shall be filed in
a sealed env elope marked “CONFIDENTIAL” with a s tatement in substantially th e following
form:

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This envelope, containing documents which were filed in this case, is not to be opened or
the contents displayed or revealed, except by Order of this Court upon written consent of
counsel for all parties to this action.
15.

If, either during the cour se of this litigation or follo wing the conclusi on thereof,

including the final exhaustion of all appeals, Confidential Information is disclosed to any person
other than in the m anner authorized by this Agr eed Protective Order, the person responsible for
the disc losure m ust imm ediately bring all per tinent f acts rela ting to such disclosure to th e
attention of counsel for all Parties and the C

ourt and, without prejudice to other rights and

remedies of any party, make every effort to prevent further disclosure.
16.

If Confidential Inform ation is disclo sed at a deposition, only the stenographic,

video or audio reporter and t

hose persons wh o are au thorized by th e term s of this Agre ed

Protective Order to receive such m aterial may be present. The portions of the transcripts of all
testimony designated

as Confiden tial Inform ation shall be labeled with the appropriate

designation by the reporter. If any document

or inform ation designated as Confidential

Information pursuant to this Ord er is used dur ing the course of a deposit ion herein, that portion
of the dep osition r ecord r eflecting such m aterial shall be labe

led with the

approp riate

designation.
17.

In the event of a hearing or trial in

this m atter at which any Party intends to

present Confidential Inform ation or m aterials designated hereunder to the Court or a jury,
counsel for the Parties will m eet and confer to determ ine what safeguards, if any, m

ay be

necessary to protect against the disclosure of the designated info rmation or m aterials, and shall
attempt to determ ine the leas t in trusive and b urdensome m eans of protec ting su ch m aterials
during the proceed ing. Counsel
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for the Parties sh all co nfer on app ropriate pro cedures for

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protecting the confidentiality of any documents, information and transcripts used in the course of
any court p roceedings, and shall in corporate su ch procedures, as app ropriate, in th e pre-trial
order.
18.

With respect to documentation in the possession of a receiving Party, within sixty

(60) calendar days after the conclusion of the tr ial and of any appeals, or upon other term ination
of this litig ation, all C onfidential Inform ation received u nder the provisions of this Agreed
Protective Order, shall be tendered back to th

e Producing Party or, at the direction of the

Producing Party, destroyed, except to the extent th at any of the foregoing includes or reflects
work product of the receiving Party (which work product may be m aintained by outside counsel
for the Parties, but not b y the Parties themselves), and except to the ex tent that such material has
been filed with a cou rt in which proceedings re lated to this action are b eing conducted, provided
such information is stored in a m

anner so as to preserve its confidentiality. If Confidential

Information is destroyed rather than tendere

d back, counsel for the Party destroying the

Confidential Inf ormation shall prov ide with in s even (7) days of such

destruction a cer tificate

reflecting such destruction.
19.

With respect to docum entation in the po ssession of the Court, within sixty (60)

calendar days after the conclusion of the trial and of any appeal s, or upon other term ination of
this litigation, the Producing

Party of any Confidential Infor

mation, Attorneys’ Eyes Only

Material, and sealed docum ents shall obtain ex p arte authorization from the court f or the re turn
or destruction of the respective document(s).
20.

If at any tim e any Confidential Inf ormation protected by this Agreed Protective

Order or inf ormation produced in this litigation is subpoenaed from the receiving Party by any
court, administrative or legislative body, or is requested by any other pers on or entity purporting
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to have authority to require the production of such info rmation, the Party to whom the subpoena
or other request is directed sh all immediately give written n otice thereof to the Producing Party
with respect to such inform ation and shall a fford the Producing Party reasonable opportunity to
pursue formal objections to such disclosures.
21.

Nothing in the Agreed Protective Order

shall restrict the ri ght of any Party to

move the C ourt for a d etermination that th e documents designated as Confidential Inform ation
need not be protected against the unauthorized disclosure and shall not be treated as Confidential
Information.
22.

Nothing in the Agreed Protective Order

shall restrict the ri ght of any Party to

utilize documents or inform ation which they ha ve obtained from independent sources, provided
that this shall not inc lude documents or inf ormation obtained from the Parties which have been
previously designated as Confidential Information.
23.

The term s of this Agreed Protective Order shall be effective and enforceable as

between the Parties immediately upon its execution by counsel for such Parties.
24.

All persons subject to the term s of th is Agreed Protective Order agree that this

Court shall retain jurisdiction over them for the purpose of enforcing this Order.
25.

Before any materials produced in discove ry, answers to interrogatories, responses

to requests for adm issions, depos ition transcripts, or other doc uments which are designated as
Confidential Information are f iled with the Court for any purpose, the party seeking to file such
material shall seek permission of the Court to file said material under seal.
26.

The Court m ay modify the term s and c onditions of this Agreed Protective Order

for good cause, or in the interest of justice, or on its own order at any time in these proceedings.

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The parties prefer that the Court provide them with notice of the Court’s intent to modif y this
Order and the content of those modifications, prior to entry of such an order.
27.

Without separate court order, this Agreed Protective Order and Stipulation are not

intended to, and shall not be inte rpreted to change, am end, or circumvent any court rule or local
rule.
16th
SO ORDERED this, the ____ day of May, 2012.

JOHN
United

s/ John S. Bryant
S. BRYANT
States Magistrate Judge

Approved for entry:
s/Derek W. Edwards
Derek W. Edwards (TN Bar No. 021455)
Jacquelyne D. Garfield (TN Bar No. 030498)
WALLER LANSDEN DORTCH & DAVIS, LLP
Nashville City Center
511 Union Street, Suite 2700
Post Office Box 198966
Nashville, Tennessee 37219-8966
Telephone: (615)
244-6380
Facsimile: (615)
244-6804
Email:
[e-mail]
jackie.garf
[e-mail]
Attorneys for Defendant First Educators Credit Union
and
s/Charles M. Cain II (with permission)
Charles M. Cain II (TN Bar No. 025301)
Cain Law Firm, PLLC
219 Third Avenue North
Franklin, Tennessee 37064
Telephone: (615)
599-1785
Facsimile: (615)
724-1848
Email:
[e-mail]
Attorneys for Plaintiff Franklin American Mortgage Company
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