Dunn v. Automotive Finance Corporation et al
Filing
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PROTECTIVE ORDER. Signed by District Judge Aleta A. Trauger on 6/15/12. (dt)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF TENNESSEE
AT NASHVILLE
ROBERT DOUGLASS DUNN,
Plaintiff,
vs.
AUTOMOTIVE FINANCE CORPORATION,
KAR AUCTION SERVICES, INC., AND
ADESA, INC.
Defendants.
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Case No. 3:11-cv-01079
Judge Trauger
Magistrate Judge Brown
PROTECTIVE ORDER
To adequately protect material entitled to be kept confidential, expedite the flow of
discovery and facilitate the prompt resolution of disputes over confidentiality, it is HEREBY
ORDERED that:
1.
Documents or information produced or provided by the parties during the course
of discovery in the above-styled matter may be designated as “Confidential Information” or “For
Attorney Eyes Only” so long as the party who seeks confidentiality has a good faith belief that
such document or information is entitled to confidentiality under the terms of this Order.
2.
For purposes of this Order, “Confidential Information” means (a) any personnel
or personal information for employees of Defendants, other than Plaintiff, (b) any document or
information designated as confidential in accordance with paragraph 6 of this Order, and (c) any
aggregation of Confidential Information.
The identification of an individual document or
category of documents or information as Confidential Information under paragraphs 2(b) or 2(c)
may be challenged pursuant to paragraph 10 of this Order.
“For Attorney Eyes Only
Information” shall include any Confidential Information which the producing party or non-party
reasonably believes to be a trade secret or so competitively sensitive that it is entitled to
extraordinary protections.
3.
For purposes of this Order, “Document” means all written, recorded, or graphic
material, in hard copy or electronic format, including but not limited to deposition transcripts and
exhibits, trial and hearing transcripts and exhibits, pleadings, motions, affidavits, and briefs that
may quote, summarize, or contain Confidential Information or For Attorney Eyes Only
Information.
4.
For purposes of this Order, “Producing Party” means a party that produces
Confidential Information, For Attorney Eyes Only Information or other information in
connection with this litigation.
5.
For purposes of this Order, “Recipient” means a named party in this litigation (or
counsel thereto and their agents) who receives Confidential Information, For Attorney Eyes Only
Information or other information in connection with the litigation.
6.
A.
The Producing Party may designate as Confidential Information any
information it believes to be confidential, including, without limitation, (i) non-public
information about a past, present or potential employee of Defendants or a related company,
including personnel records, evaluations, compensation levels, databases, surveys, statistical
analyses, analyses of personnel practices, or other information incorporating or aggregating
information pertaining to individuals, and (ii) trade secrets or other non-public proprietary,
strategic or commercial information, data or research of Defendants or related companies.
B. The Producing Party may designate as For Attorney Eyes Only Information
any information it believes to be any Confidential Information which the producing party or non-
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party reasonably believes to be a trade secret or so competitively sensitive that it is entitled to
extraordinary protections.
C. To designate Confidential Information or For Attorney Eyes Only Information
on Documents, the Producing Party shall place a legend or stamp upon the Document indicating
such in a way that brings the designation to the attention of a reasonable examiner, or otherwise
puts the Recipient on reasonable notice that it contains Confidential Information or For Attorney
Eyes Only Information. To designate Confidential Information or For Attorney Eyes Only
Information in testimony (or in exhibits referred to therein), the Producing Party shall (a) make
an oral statement to that effect on the record, or (b) notify the Recipient in writing at any time up
until twenty (20) days after receipt of the transcript.
7.
The Recipient of Confidential Information shall use that information solely in
connection with this litigation, and shall not disclose Confidential Information to any person
except:
a)
a named plaintiff, in accordance with the procedures set forth in
paragraph 8 of this Order;
b)
the Court and its officers (including court reporters);
c)
counsel of record in this action and employees of counsel in this
action who have been actively engaged in the conduct of this
litigation;
d)
Defendants’ in-house counsel;
e)
experts or litigation consultants engaged by counsel to assist in this
litigation, provided that these expert witnesses or litigation
consultants expressly agree to be bound by the terms of this Order
and not to disclose Confidential Information except as permitted
herein;
f)
fact witnesses providing testimony by deposition or at any court
proceeding in this case but only in accordance with the procedures
set forth in paragraph 8 of this Order.
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“For Attorney Eyes Only Information” may be disclosed only to any persons falling
within categories (b) through (e) above and shall not be disclosed or revealed to any party and
shall be used solely in connection with this litigation.
8.
The Recipient of Confidential Information shall disclose such information to
persons set forth in paragraphs 7(a) through 7(f) of this Order only under the conditions set forth
below:
a)
Prior to disclosure of Confidential Information, the Recipient shall
advise that person that, pursuant to this Order, he or she may not
divulge such information to any other individual.
b)
Any person who receives Confidential Information pursuant to
paragraphs 7(a) through 7(f), shall execute an Agreement in the
form annexed hereto as Exhibit A. Each original, executed
Agreement shall be maintained in the files of the Recipient and
shall be available for review by all counsel and parties upon
reasonable notice.
c)
The Recipient who discloses Confidential Information pursuant to
paragraphs 7(a) through 7(f), shall maintain a list specifically
identifying the persons to whom the information was disclosed and
the Bates number and/or other means sufficient to identify such
information disclosed.
The recipient of For Attorneys’ Eyes Only Information shall disclose such information to
persons set forth in paragraphs 7(b) through 7(e) of this Order only under the conditions set forth
above in paragraph 8(a) through 8(c). The recipient of For Attorneys’ Eyes Only Information
shall also advise the persons set forth in paragraphs 7(b) through 7(e) above that such
information is “Attorneys’ Eyes Only” and may not be disclosed to any person, including
persons identified in paragraphs 7(a) and 7(f) above.
9.
In the event the Recipient disputes the Producing Party’s designation of individual
documents or a category of documents or information as Confidential Information or For
Attorney Eyes Only Information, the Recipient shall notify the Producing Party in writing of
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such dispute. In an effort to settle such dispute without judicial intervention, the parties shall
meet and confer to determine whether the restrictions imposed by this Order are warranted with
respect to such disputed information.
If resolution of the dispute cannot be reached, the
Recipient may apply to the Court for an appropriate determination. In connection with such an
application, the Producing Party shall bear the burden to show that the information is entitled to
continued protection under the Federal Rules of Civil Procedure and applicable case law. During
the pendency of such dispute or application and until the court may rule otherwise, the
information designated Confidential Information or For Attorney Eyes Only Information shall
remain subject to the designations and restrictions of this Order.
10.
Inadvertent failure to designate Confidential Information or For Attorney Eyes
Only Information shall not be construed as a waiver, in whole or in part, and may be corrected by
the Producing Party by written notification to the Recipient promptly upon discovery of the
failure to designate.
11.
All information obtained by a Recipient in discovery in this litigation shall be
used by the Recipient solely for the prosecution or defense of the claims in this litigation, and
shall not be used by the Recipient in any other legal action, or for any business, commercial,
competitive, personal, publicity, media or other purpose, except that nothing herein shall
preclude Defendants from pursuing legal or other business action in discovered instances of
misconduct as to its own employees or ensuring that its employees are acting in accordance with
the law. No Recipient or other person to whom Confidential Information or For Attorney Eyes
Only Information is disclosed shall copy, transcribe, or otherwise reproduce in written or any
other form any part or portion of any Confidential Information or For Attorney Eyes Only
Information except as necessary for purposes of the litigation.
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12.
Within fifteen business days after the conclusion of this litigation, by adjudication
(including appeals) or otherwise, the Recipient shall return to the Producing Party all
Confidential Information or For Attorney Eyes Only Information, all copies of such information,
and any Documents incorporating such information.
Alternatively, at the request of the
Producing Party, the Recipient shall destroy all such materials and certify in writing that all such
materials have been destroyed.
13.
Confidential Information or For Attorney Eyes Only Information shall not be
filed in the public record of this litigation. Any Confidential Information or For Attorney Eyes
Only Information that is filed with the Court, and any pleadings, motions, or other papers filed
with the Court containing such information, shall be filed in a sealed envelope accompanied by a
request that the Court file and maintain the information under seal. Where possible, only the
portions of filings containing Confidential Information or For Attorney Eyes Only Information
shall be filed with the Court under seal.
14.
The restrictions set forth in this Order shall not apply to:
a)
information that was, is or becomes public knowledge through its
authorized release by a person or entity who rightfully obtained and possesses
such information during the normal course of business, and not in violation of this
Order;
b)
Defendants with respect to its own information or information received or
created during the normal course of its own business.
Whether information that becomes a matter of public record in any other manner may
still be subject to protection as confidential shall be determined according to the standards and
procedures set forth in paragraphs 2 through 10 of this Order. The owner of Confidential
Information or For Attorney Eyes Only Information shall be able to seek protection of that
information in accordance with paragraph 6 of this Order even if it did not produce that
information in discovery.
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15.
Nothing in this Order shall be deemed to be a limit or waiver of the attorney-
client privilege, the work product privilege, or any other relevant privilege. Further, inadvertent
production of privileged information shall not waive the privilege. If privileged information is
inadvertently produced, the Recipient agrees that, upon request from the Producing Party, it shall
promptly return all copies of Documents containing the privileged information, delete any
versions of the Documents containing the privileged information on any database or computer
filing system it maintains, and make no use of the privileged information.
16.
Nothing in this Order shall prohibit any party from objecting to the production or
disclosure of Confidential Information or For Attorney Eyes Only Information solely on the
grounds that such information is confidential or sensitive, or on any other grounds. Furthermore,
nothing in this Order shall preclude the parties from objecting to the admissibility or use of
Confidential Information or For Attorney Eyes Only Information.
17.
In the event a party or their counsel obtain information of opposing party from a
third party that the opposing party believes is confidential, that party may designate such
information Confidential Information pursuant to this and Order and it shall be treated as such in
accordance with this Order.
18.
If a Recipient discloses Confidential Information or For Attorney Eyes Only
Information in a manner not authorized herein, the Recipient must immediately and in writing
notify the Producing Party of all pertinent facts relating to such disclosure and, without prejudice
to other rights and remedies of the Producing Party, make every effort to prevent further
disclosure by the Recipient or by the person to whom the Recipient disclosed such information.
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19.
The Court shall retain jurisdiction, both before and after the entry of final
judgment in this case, whether by settlement or adjudication, to construe, enforce, and amend the
provisions of this Order.
June
ENTERED this 15th day of ____________________, 2012.
_____
________________________________________
ALETA A. TRAUGER
U.S. District Judge
APPROVED FOR ENTRY:
s/ Ann Buntin Steiner
Ann Buntin Steiner #11697
The Law Offices of Steiner & Steiner
613 Woodland Street
Nashville, Tennessee 37206
(615) 244-5063
Attorneys for Plaintiff, Robert Douglas Dunn
OGLETREE, DEAKINS, NASH,
SMOAK & STEWART, P.C.
s/ William S. Rutchow
William S. Rutchow (BPR # 17183)
Jennifer S. Rusie (BPR # 026009)
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OGLETREE, DEAKINS, NASH,
SMOAK & STEWART, P.C.
SunTrust Plaza, Suite 1200
401 Commerce Street
Nashville, TN 37219
(615) 254-1900
(615) 254-1908 (Facsimile)
Attorneys for Defendants
Automotive Finance Corporation,
ADESA, Inc. and KAR Auction Services, Inc.
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EXHIBIT A
AGREEMENT CONCERNING INFORMATION COVERED BY A
PROTECTIVE ORDER ENTERED IN THE UNITED STATES
DISTRICT COURT FOR THE MIDDLE DISTRICT OF TENNESSEE
The undersigned hereby acknowledges that he/she has read the Protective Order
(“Order”) in Dunn v. ADESA, Inc. et al., Civil Action Case No. 3: 11-cv-01079 and understands
its terms, agrees to be bound by each of those terms, and agrees to subject himself/herself
personally to the jurisdiction of the Middle District of Tennessee for the purpose of enforcing its
terms. Specifically, and without limitation upon such terms, the undersigned agrees not to use or
disclose any Confidential Information or For Attorneys’ Eyes Only Information made available
to him/her other than in accordance with the Order.
Dated: ___________________, 2012
By: ______________________________
_________________________________
(Type or print name of individual)
Of: ______________________________
Name of Employer
12381632.1 (OGLETREE)
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