Perritt et al v. The Cupcakery, et al

Filing 79

REPLY to Response to Motion re 64 Opposed MOTION for Protective Order Regarding Confidential Information filed by Pamela F. Jenkins, The Cupcakery. (Slater, Jodie)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TEXAS
SHERMAN DIVISION
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,
Plaintiffs,
v.
PAMELA F. JENKINS, Individually; and
THE CUPCAKERY LLC, a Nevada
Limited Liability Company,
Defendants.

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Civil Action No. 4:11-CV-23

DEFENDANTS’ REPLY BRIEF IN SUPPORT OF THEIR MOTION FOR ENTRY OF
PROTECTIVE ORDER REGARDING CONFIDENTIAL INFORMATION

Defendant Pamela F. Jenkins (“Jenkins”) and Defendant The Cupcakery, LLC, a Nevada
Limited Liability Company (“Nevada Cupcakery”) (collectively, Jenkins and The Nevada
Cupcakery are the “Defendants”) hereby file this, their Reply Brief in Support of Their Motion
for Entry of Protective Order Regarding Confidential Information, and would show the Court as
follows:
ARGUMENT
As detailed in Defendants’ opening motion, counsel for Defendants gave counsel for
Plaintiffs numerous opportunities to work together on an agreed protective order, but counsel for

REPLY BRIEF IN SUPPORT OF MOTION FOR ENTRY OF
PROTECTIVE ORDER REGARDING CONFIDENTIAL INFORMATION

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Plaintiffs never responded.1 After the status conference on May 11, 2011, when the Court
specifically requested that the parties work together to submit an agreed protective order, counsel
for Plaintiffs still did not provide any comments or suggested changes to the draft Protective
Order. Instead of reaching out to Defendants to discuss the terms of an agreed order, and despite
being granted an extension to respond, Plaintiffs elected to file their Response Brief in
Opposition to Defendants’ Motion for Entry of Protective Order Regarding Confidential
Information on May 26, 2011 (the “Response”). None of the complaints or requested changes in
Plaintiff’s Response was raised until the Response was filed.
Plaintiffs’ biggest complaint regarding the draft Protective Order is that it should not
have a retroactive effect. The hypocrisy is stunning. The very parties who have refused to
cooperate, who have refused to engage in a dialogue regarding the draft Protective Order, who
have delayed the entry of an agreed protective order, and who moved to compel the deposition of
Pamela Jenkins when there was not a protective order in place, now claim a protective order
cannot be retroactive.2 First, it is standard to have a time period following a deposition to review

1

On February 4, 2011, counsel for Plaintiffs requested that counsel for Defendants draft and circulate a proposed
Protective Order. Counsel for Defendants circulated a draft Protective Order to counsel for Plaintiffs on February
14, 2011. Having received no response thereafter, counsel for Defendants re-circulated the draft Protective Order to
counsel for Plaintiffs on March 8, 2011. Counsel for Defendants followed up with counsel for Plaintiffs on April
20, 2011 regarding the draft Protective Order, and counsel for Plaintiffs indicated he would review the Protective
Order and respond with comments. Having received no response, on April 27, 2011, counsel for Defendants
requested counsel for Plaintiffs respond regarding the draft Protective Order by close of business on April 29, 2011,
or counsel for Defendants would submit a motion for entry of the Protective Order as an opposed motion. On May 9,
2011, when counsel for Plaintiffs had not provided any input or comments to the draft Protective Order, Defendants
filed the instant motion.
2

Plaintiffs try to argue some “gotcha” point by stating that a protective order must be in place for any testimony or
deposition exhibit to be treated as confidential while pointing out that “[i]n the instant case, no protective order is
currently in existence.” See Resp. p. 4. It is worth noting that at the status conference on May 11, 2011, counsel for
Plaintiffs represented to the Court that it was his understanding that a protective order actually was in place in this
case.

REPLY BRIEF IN SUPPORT OF MOTION FOR ENTRY OF
PROTECTIVE ORDER REGARDING CONFIDENTIAL INFORMATION

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and assess whether deposition testimony is confidential. Alternatively, the Standing Protective
Order in the Eastern District of Texas protects confidential materials automatically:
To the extent that Protected Documents or information contained
therein are used in depositions, at hearings, or at trial, such documents
or information shall remain subject to the provisions of this Order,
along with the transcript pages of the deposition testimony and/or trial
testimony referring to the Protected Documents or information
contained therein.
In the Standing Protective Order for the Eastern District of Texas, testimony referring to
Protected Documents or information contained in those Protected Documents is deemed
confidential. The Defendants’ proposed Protective Order simply creates a timeline for spelling
out those portions of a transcript that a party considers confidential.
With regard to inadvertent disclosure, the draft Protective Order simply expands on Fed.
R. Evid. 502 and Fed. R. Civ. P. 26(b)(5)(B) by spelling out how to proceed in the event of
inadvertent production (including deadlines for returning inadvertently produced documents, for
example). If Plaintiffs’ counsel would like to discuss concerns with “the level of detail” in the
draft Protective Order, Defendants are willing to engage in that dialogue.
Last, Plaintiffs are mistaken that the draft Protective Order does not include provisions
for filing documents under seal. Paragraph 9 specifically addresses the filing of confidential
materials. Defendants would not oppose adding a provision to the draft Protective Order that
provides that all parties consent to filings under seal. As drafted, however, Plaintiffs’ proposed
language leaves the decision regarding filing under seal to the filing party only. Defendants are
willing to rework the section on filing and use of confidential materials in court proceedings to
the agreement of both parties.

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CONCLUSION
There is no dispute that the Settlement Agreement at the heart of this contract dispute is a
confidential agreement, nor is there any dispute that the parties’ trade secrets and other business
materials are confidential. The need for a protective order is apparent. Plaintiffs’ counsel
requested counsel for Defendants draft and circulate a protective order on February 4, 2011, yet
Plaintiffs’ counsel never responded with comments. Plaintiffs’ counsel has never conferred with
counsel for Defendants regarding any of the complaints or requested changes presented in
Plaintiffs’ Response. To enter Plaintiffs’ proposed protective order would only reward Plaintiffs
for their inaction. Additionally, it is troubling that the very parties opposing a protective order
that allows deposition transcripts to be designated confidential after the conclusion of the
deposition are the same parties who compelled a deposition in a dispute centered around a
confidential agreement when no protective order was in place. Plaintiffs’ proposed protective
order should not be entered, the parties should work together on the terms of the protective order,
or the Court should enter the Defendants’ proposed Protective Order. Defendants pray for any
further relief to which they are entitled.

REPLY BRIEF IN SUPPORT OF MOTION FOR ENTRY OF
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Respectfully submitted,

/s/Jodie A. Slater
Jodie A. Slater
Texas State Bar No. 24046862
STRONG & NOLAN, LLP
1701 N. Market St., Suite 200
Dallas, Texas 75202
[phone] (telephone)
[phone] (telecopy)
[e-mail]
ATTORNEY FOR DEFEDANTS

CERTIFICATE OF SERVICE
I hereby certify that on the 2nd day of June, 2011, I electronically filed the foregoing with
the Clerk of Court using the CM/ECF system which will send notification of such filing to the
following:
Michael J. Whitten
Michael J. Whitten & Associates, P.C.
218 N. Elm Street
Denton, Texas 76201
Clyde M. Siebman
Bryan H. Burg
Stephanie R. Barnes
Siebman, Burg, Phillips & Smith, LLP
Federal Courthouse Square
300 North Travis Street
Sherman, TX 75090

/s/Jodie A. Slater
Jodie A. Slater

REPLY BRIEF IN SUPPORT OF MOTION FOR ENTRY OF
PROTECTIVE ORDER REGARDING CONFIDENTIAL INFORMATION

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