Perritt et al v. The Cupcakery, et al
RESPONSE in Opposition re 64 Opposed MOTION for Protective Order Regarding Confidential Information filed by Buster Baking, Ricky B Perritt, The Cupcakery, The Woodlands Baking, LLC. (Attachments: # 1 Text of Proposed Order)(Siebman, Clyde)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TEXAS
RICKY B. PERRITT, Individually;
THE CUPCAKERY, LLC, a Texas Limited
Liability Company; BUSTER BAKING,
LLC, a Texas Limited Liability Company;
THE WOODLANDS BAKING, LLC,
a Texas Limited Liability Company;
CUSTOM VERSION CORPORATION,
a Texas Corporation
PAMELA F. JENKINS, Individually; and
THE CUPCAKERY LLC, a Nevada
Limited Liability Company
Civil Action No. 4:11-CV-23
PROTECTIVE ORDER REGARDING CONFIDENTIAL INFORMATION
Before the Court is Defendants’ Motion for Entry of Protective Order Regarding
Confidential Information (Docket No. 64) and Plaintiffs’ Response in Opposition to the same.
Having considered the submissions of the Parties, the Court DENIES Defendants’ Motion
(Docket No. 64) in its entirety and hereby ORDERS that pursuant to Federal Rule of Civil
Procedure 26(c), and good cause having been shown, IT IS ORDERED THAT:
This Protective Order Regarding Confidential Information
(referred to herein as the “Order”) shall govern the disclosure, distribution, and use of all
Confidential Material, as defined herein, produced by Plaintiffs Ricky B. Perritt (“Perritt”), The
Cupcakery, LLC, a Texas Limited Liability Company (the “Texas Cupcakery”), Buster Baking,
LLC, a Texas Limited Liability Company (“Buster Baking”), the Woodlands Baking, LLC, a
Texas Limited Liability Company’s (“Woodlands Baking”), and Custom Version Corporation, a
Texas Corporation (“Custom Version”) (collectively, Perritt, the Texas Cupcakery, Buster
Baking, Woodlands Baking, and Custom Version are the “Plaintiffs”) and Defendant Pamela F.
Jenkins (“Jenkins”) and Defendant The Cupcakery, LLC, a Nevada Limited Liability Company
(the “Nevada Cupcakery”) (collectively, Jenkins and the Nevada Cupcakery are the
“Defendants”) (Plaintiffs and Defendants shall be referred to collectively as “parties”).
Any party, to the extent set forth in this Order, may designate as
“Confidential” or “Attorneys Eyes Only” all or any part of the following discovery material: (i)
answers to interrogatories; (ii) transcripts of depositions; (iii) documents produced by it or made
available for inspection; and (iv) any other information produced or disclosed during the course
of this litigation. The material designated as either “Confidential” or “Attorneys Eyes Only” is
referred to herein as the “Confidential Material.” Material designated as “Confidential” shall
include only that material which the designating party believes in good faith constitutes a trade
secret, proprietary business or financial information, or other confidential information, including
research, development, and/or commercial information and which is timely designated as such
hereunder. Material designated as “Attorneys Eyes Only” shall include only that material which
the designating party believes in good faith cannot be disclosed to non-attorney employees or
representatives of Plaintiffs or Defendants without impairing the disclosing party’s legitimate
interest in the designated material and which is timely designated as such hereunder.
Designation of Confidential Material.
The designation of material as
“Confidential” or “Attorneys Eyes Only” must be made prior to disclosure of such material
either: (i) by stamping or otherwise marking such materials “Confidential” or “Attorneys Eyes
Only,” or the equivalent, in a manner such that the legend is capable of being reproduced in the
normal process of photocopying and will not interfere with the legibility of the document; or (ii)
by notifying counsel of record for the parties in writing specifically identifying the material to be
designated as “Confidential” or “Attorneys Eyes Only” before it is disclosed.
Deposition transcripts (or portions thereof) may be designated
“Confidential” or “Attorneys Eyes Only” by any party or third-party if during the deposition the
party states on the record that particular testimony is being given pursuant to a protective order
and is designated as “Confidential” or “Attorneys Eyes Only” as appropriate.
designation(s) shall be made at the beginning of the testimony alleged to be confidential and at
the end of such testimony alleged to be confidential it shall be stated that the alleged confidential
portion of the testimony has ended. Only those portions of the testimony, and exhibits, that are
expressly designated as confidential pursuant to this protective order are protected hereunder.
Such designation(s) shall be made in good-faith to prevent the over-inclusion of confidential
information under the protective order.
Restrictions on Use of Material. Confidential Material produced by the parties
shall be used and disclosed solely for the prosecution or defense of the claims in this action and
any appeal thereof, and shall not be used or disclosed except by the party who produced such
Confidential Material, for any business, commercial, competitive, personal, or other purpose
unless otherwise agreed by the parties.
Notwithstanding anything to the contrary contained in this Order, this Order shall not
limit the use of anything provided or obtained hereunder if it is obtained or was obtained by a
party through other means and/or if the party was otherwise entitled to it by contract or
Access to Discovery Materials. Confidential Material shall be maintained in
confidence by the party to whom such material is produced or disclosed solely for use as
provided in Paragraph 5 of this Order and shall not be disclosed to any person except:
The Court and its staff, which shall include the trial court and any appellate court,
as well as any court reporters, stenographers, and video equipment operators who are
retained for use in this case including for depositions;
Counsel of record and employees of counsel of record;
In-house counsel for a party and in-house counsel staff working on this litigation,
provided that said counsel and staff members are not involved in the competitive
activities of their company, and provided that they have signed a Certificate of
Acknowledgment in the form of Exhibit “A” hereto;
Plaintiffs, Defendants, and their partners, members, agents, officers, directors, and
Persons not employees of any party who are expressly retained to assist such
party’s counsel in the preparation of this action for trial and who have signed a Certificate
of Acknowledgment in the form of Exhibit “A” hereto;
Deponents not otherwise authorized by this Order to the extent necessary to
prepare the person for deposition or to depose the person;
Material third-party witnesses who have signed a Certificate of Acknowledgment
in the form of Exhibit “A” hereto;
The members of the jury venire, members of the jury, including any alternates,
and such other persons as ordered by the Court; and
Any mediator agreed to by the parties or appointed by the Court.
Nothing herein shall prevent the use of such Confidential Material in the trial of this matter.
Access to “Attorneys Eye Only” Materials. Discovery materials designated
“Attorneys Eyes Only” shall be maintained in confidence for use by outside counsel for the
parties and solely for use as provided in Paragraph 5 of this Order and shall not be disclosed to
any persons other than those identified in subparagraphs 6(a)-(c), (e) and (g)-(i) above. Nothing
herein shall prevent the use of such Confidential Material in the trial of this matter and/or at
depositions or for preparation for depositions.
Copies and Summaries. Any person who obtains access to material designated
as “Confidential” or “Attorneys Eyes Only” under this Order shall not make copies, abstracts,
extracts, analyses summaries, or other materials which contain, reflect or disclose Confidential
Material, except for use in this litigation, and each such copy, abstract, extract analysis,
summary, or other material which contains, reflects or discloses Confidential Material, is to be
treated in accordance with the provisions of this Order.
All copies of material stamped
“Confidential” or “Attorneys Eyes Only” in accordance with Paragraph 3 of this Order shall
again be stamped with the respective designation if the original stamp was not reproduced in the
Filing Confidential Material. A party filing any “Confidential” or “Attorneys
Eyes Only” material with the Court shall file the same under seal in accordance with the local
rules and governing procedures of the Eastern District of Texas and the parties hereby consent to
any necessary motions to file under seal to accomplish such filing. This Order shall neither
apply to nor restrict the use or disclosure of any “Confidential” or “Attorneys Eyes Only”
material as an exhibit at any mediation, hearing, the trial or any appeal in this litigation.
Procedure for Contesting Designation of Confidential Material. A party shall
not be obligated to challenge the designation of material as confidential at the time the
designation is made, and a failure to do so shall not preclude a subsequent challenge to the
designation. In the event of a dispute with respect to the designation of any discovery material as
“Confidential” or “Attorneys Eyes Only,” counsel shall attempt to resolve the dispute on an
informal basis before presenting the matter to the Court for resolution. The party challenging
any confidential designation shall notify the designating party in writing, stating that the
confidential designation is being challenged, naming the specific material for which the
designation is being challenged. Within five (5) business days of the designating party’s receipt
of such written notice, the parties shall confer in an attempt to reach an agreement regarding the
disputed designation. In the event that no agreement is reached, the designating party shall have
fourteen (14) days thereafter within which to move the Court to maintain the confidential
designation, whether “Confidential” or “Attorneys Eyes Only.” In the event that the party that
made the confidential designation does not so move the Court within such fourteen (14) days,
then the confidential designation will automatically terminate and be of no force or effect as to
the material described in the notice. The party challenging any confidential designation shall
identify the subject material by its document identification number (its Bates number) or by other
reasonable means of identification. Such “Confidential” or “Attorneys Eyes Only” information
shall be maintained in accordance with this Order until such time as the challenge is resolved
either by agreement of the parties, by the expiration of the fourteen (14) day period provided
above, or by the Court.
Maintenance of Confidential Material. All “Confidential” or “Attorneys Eyes
Only” material produced by a party and delivered to another party shall be maintained under the
control of each counsel of record who has received such material and who shall be responsible
for preventing any disclosure thereof, except as permitted hereunder.
Request for Disclosure of Confidential Materials in Another Proceeding. If
any party is requested or required (by oral questions, interrogatories, requests for information or
documents, subpoena, civil investigative demand, or other process or otherwise in connection
with any investigation or litigation) to disclose any Confidential Material produced by another
party hereto pursuant to this Order, such party shall provide to the other parties hereto prompt
notice of any such request or requirement, unless otherwise prohibited by law. Court ordered
disclosure of any information protected under this Order shall not be considered a breach hereof.
Protective Orders. This Order shall be without prejudice to the rights of the
parties or third-parties to present a motion to the Court for a protective order as to any particular
material, including a request for restrictions or disclosures that differ from those supplied herein.
This Order shall not be deemed to prejudice the parties or third-parties in any way in any motion
or application for modification of this Order.
Disposition of Confidential Material After the Case. Following the final
adjudication, or resolution through settlement, of this case, counsel for the parties shall, within
thirty (30) days from counsel’s receipt of written request, assemble and return to each other all
documents, materials, and deposition transcripts for which a confidential designation is
maintained hereunder through such date, and all copies of same, or shall certify the destruction
thereof; provided, however, that counsel for any party shall be entitled to retain pleadings,
memoranda, declarations, motions, exhibits, affidavits or deposition transcripts, which attach,
contain or refer to such designated material, but only to preserve a file with respect to this action.
Notwithstanding anything to the contrary contained in this Order, this Order shall not require the
return or destruction of anything provided or obtained hereunder if it is obtained or was obtained
by a party through other means and/or if the party was otherwise entitled to it by contract or
No Waiver of Rights. This Order shall not be deemed a waiver of:
Any party’s right to object to any discovery requests on any ground;
Any party’s right to seek an order compelling discovery with respect to any
Any party’s right at any proceeding herein to object to the admission of any
evidence on any ground;
Any party’s right to use its own documents with complete discretion;
Any party’s right to move the Court to revoke or amend any portion of this Order;
Any party’s right to present a motion to the Court for a protective order; or
Any party’s right to use any Confidential Material as an exhibit at any hearing,
the trial or any appeal in this litigation.
Notwithstanding anything else herein to the contrary, this Order shall not have
any retroactive effect and shall not pertain to materials obtained, received or provided
before its entry.
Use of Material at Trial. Nothing herein prohibits the use at any hearing trial or
appeal of any material designated pursuant to this Order as “Confidential” or “Attorneys Eyes
Only,” or affects or prohibits the admissibility or use of any Confidential Material as evidence.
Restricting Attendance at Depositions. At the request of any party, attendance
at depositions may be restricted to persons qualified to see Confidential Material under
Paragraph 6 and the attorney for the deponent during the portion of depositions at which
disclosure of Confidential Material is being made. Otherwise, attendance at depositions shall not
Duration. This Order shall survive the final termination of this action, to the
extent that the material contained in “Confidential” or “Attorneys Eyes Only” material is not or
does not become known to the public other than in breach of any agreement between the parties
or contrary to the terms of this Order, and the Court shall retain jurisdiction to resolve any
dispute concerning the use of material disclosed hereunder.
CERTIFICATE OF ACKNOWLEDGMENT OF PROTECTIVE ORDER
REGARDING CONFIDENTIAL INFORMATION
I declare that:
I have been given a copy of and have read the Protective Order Regarding Confidential
Information (hereinafter “Order”), relating to the case, Ricky B. Perritt, et al. v. Pamela F.
Jenkins, et al., Civil Action No. 4:11-CV-23, pending in the United States District Court for the
Eastern District of Texas, Sherman Division. I agree to abide by the Order and not to reveal or
otherwise communicate to anyone any of the material designated as “Confidential” or “Attorneys
Eyes Only” that is disclosed to me except in accordance with the terms of such Order or as may
be authorized by the Court. I acknowledge that any violation of the Order may be punishable for
contempt of court, and agree to submit to the jurisdiction of the United States District Court for
the Eastern District of Texas, Sherman Division, for all matters relating to such Order.
Signature of Declarant
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?