Perritt et al v. The Cupcakery, et al
Filing
80
SUR-REPLY to Reply to Response to Motion 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 Exhibit A)(Siebman, Clyde)
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
EDITOR’S NOTE: THE PORTIONS THAT ARE AGREEABLE TO BOTH PLAINTIFFS
AND DEFENDANTS ARE IN BLACK COLORED TEXT. THE PORTIONS THAT ARE
AGREEABLE TO PLAINTIFFS ONLY ARE IN RED COLORED TEXT. THE PORTIONS
THAT ARE AGREEABLE TO DEFENDANTS ONLY ARE IN BLUE COLORED TEXT.
PROTECTIVE ORDER CONCERNING CONFIDENTIAL INFORMATION
Pursuant to Federal Rule of Civil Procedure 26(c) and good cause having been shown, ON
THIS ___ DAY OF _____, 2011, IT IS ORDERED THAT:
1.
Applicability. This Protective Order Concerning Confidential Information (referred
to herein as the “Protective Order”) shall govern the disclosure, distribution, and use of all
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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 (“BBLLC”), the Woodlands Baking, LLC, a Texas
Limited Liability Company (“WBLLC”), and Custom Version Corporation, a Texas Corporation
(“CVC”) (collectively, Perritt, Texas Cupcakery, BBLLC, WBLLC, and CVC are the “Plaintiffs”)
and 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”) (Plaintiffs and Defendants shall be referred to collectively as
“parties”).
2.
Scope. Any party, to the extent set forth in this Protective 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.
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3.
Designation of Confidential Material.
The designation of material as
“Confidential” or “Attorneys Eyes Only” shall be made either: 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.
All information and/or documents that are inadvertently produced by either of the parties
in connection with discovery proceedings in the lawsuit, which but for such inadvertent
production would otherwise have been entitled to be protected from discovery by any privilege
or immunity, shall continue to be protected by such privilege or immunity, subject to specific
objections to the contrary that may be filed by the parties, and such inadvertent production shall
not be deemed to be a waiver of any such privilege or immunity. Upon identification of any
inadvertently produced information and/or documents, the producing party shall provide to the
other party written notification identifying the document that has been inadvertently produced
and stating the privilege or immunity under which such document is allegedly protected. Upon
receipt of such written notification from the producing party, the other party shall, within seven
(7) business days, return to the producing party each inadvertently produced document or item
containing the information and any and all copies made of such document or item. To the extent
that prior to such notice a party receiving the material may have disclosed it to persons other
than authorized persons pursuant to this Protective Order, the party shall not be deemed to
have violated this Protective Order in any respect, but the party shall make every reasonable
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effort to retrieve any such material promptly from such persons and to limit any further
disclosure pursuant to this Protective Order. The return of inadvertently produced documents
shall not prevent any party from asserting specific objections to any claims of privilege or
immunity regarding such documents as would normally be made.
Two alternative Paragraph number 4.
4.
Depositions. Deposition transcripts (or portions thereof) may be designated
“Confidential” or “Attorneys Eyes Only” by any party or third-party either: (i) during the
deposition; or (ii) by written notice to the reporter and to all counsel of record given within
twenty (20) days after the deposition transcript is received by the deponent or the deponent’s
counsel, whichever is earlier. Pending the expiration of twenty (20) days after a deposition
transcript is received by the deponent or the deponent’s counsel, all parties and persons shall
treat the deposition transcript as if it has been designated “Confidential.” The April 12, 2011
deposition of Pamela Jenkins is hereby designated “Confidential.”
4. Depositions.
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. Such
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-
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inclusion of confidential information under the protective order.
5.
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 Protective Order, this Protective
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 otherwise.
6.
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 Protective Order and shall not be disclosed to any person except:
a.
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;
b.
Counsel of record and employees of counsel of record;
c.
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;
d.
Plaintiffs, Defendants, and their partners, members, agents, officers, directors, and
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employees;
e.
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;
f.
Deponents not otherwise authorized by this Protective Order, who have signed a
Certificate of Acknowledgement in the form of Exhibit “A” hereto, to the extent
necessary to prepare the person for deposition or to depose the person;
g.
Material third-party witnesses who have signed a Certificate of Acknowledgment in
the form of Exhibit “A” hereto;
h.
The members of the jury venire, members of the jury, including any alternates, and
such other persons as ordered by the Court; and
i.
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.
7.
Access to “Attorneys Eye Only” Materials. Discovery materials designated
“Attorneys Eyes Only” shall be maintained in confidence for use by counsel for the parties and
solely for use as provided in Paragraph 5 of this Protective 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 Confidential Material in the trial of this matter and/or at depositions or for
preparation for depositions, in compliance with Paragraph 6 herein.
8.
Copies and Summaries. Any person who obtains access to material designated as
“Confidential” or “Attorneys Eyes Only” under this Protective Order shall not make copies,
abstracts, extracts, analyses summaries, or other materials which contain, reflect or disclose
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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 Protective Order. All copies of material stamped
“Confidential” or “Attorneys Eyes Only” in accordance with Paragraph 3 of this Protective Order
shall again be stamped with the respective designation if the original stamp was not reproduced in
the duplicating process.
9.
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 Protective 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.
10.
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
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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 Protective 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.
11.
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.
12.
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 Protective 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 Protective Order shall not be considered a breach
hereof.
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13.
Protective Orders. This Protective 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 Protective Order shall not be deemed to prejudice the parties or third-parties in any way in any
motion or application for modification of this Protective Order.
14.
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 the extent necessary to preserve a file with respect to this action.
Notwithstanding anything to the contrary contained in this Protective Order, this Protective 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 otherwise.
15.
No Waiver of Rights. This Protective Order shall not be deemed a waiver of:
a.
Any party’s right to object to any discovery requests on any ground;
b.
Any party’s right to seek an order compelling discovery with respect to any
discovery request;
c.
Any party’s right at any proceeding herein to object to the admission of any evidence
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on any ground;
d.
Any party’s right to use its own documents with complete discretion;
e.
Any party’s right to move the Court to revoke or amend any portion of this Protective
Order;
f.
Any party’s right to present a motion to the Court for a protective order; or
g.
Any party’s right to use any Confidential Material as an exhibit at any hearing, the
trial or any appeal in this litigation.
h.
Notwithstanding anything else herein to the contrary, this Protective Order shall
not have any retroactive effect and shall not pertain to materials obtained, received or
provided before its entry.
16.
Use of Material at Trial. Nothing herein prohibits the use at any hearing trial or
appeal of any material designated pursuant to this Protective Order as “Confidential” or “Attorneys
Eyes Only,” or affects or prohibits the admissibility or use of any Confidential Material as evidence.
17.
Use of Material at Depositions. Confidential Material shall not lose its protected
status simply because the documents are designated as exhibits to a deposition, regardless of
whether the deposition or deposition transcript is later designated, in whole or in part, as
Confidential Material.
17. 18. 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 be limited in
accordance with the Federal Rules of Civil Procedure.
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18. 19. Duration. This Protective 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 Protective Order, and the Court shall retain jurisdiction to resolve any
dispute concerning the use of material disclosed hereunder.
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EXHIBIT “A”
CERTIFICATE OF ACKNOWLEDGMENT OF
PROTECTIVE ORDER
CONCERNING CONFIDENTIAL INFORMATION
I declare that:
I have been given a copy of and have read the Protective Order Concerning Confidential
Information (hereinafter the “Protective 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 terms of the Protective
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 the Protective Order or as may be authorized by the Court. I acknowledge that any violation of
the Protective Order may be punishable for contempt of court, and I 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 Protective Order.
Dated:
Signature of Declarant
Printed Name
Street Address
City/State
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Telephone Number
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