American Airlines Inc v. Travelport Limited et al

Filing 368

Appendix in Support filed by Travelport Limited, Travelport, LP re #367 Response/Objection (Falls, Craig)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
FORT WORTH DIVISION

AMERICAN AIRLINES, INC.,
Plaintiff,
vs.
TRAVELPORT LIMITED, et al.,
Defendants.

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) Case No. 4:11-cv-00244-Y
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APPENDIX TO OPPOSITION TO AMERICAN AIRLINES, INC.’S
MOTION TO AMEND THE PROTECTIVE ORDER
Appendix
Exhibit
(APP. ___)
1
2
3
4
5
6
7
8

Description

Page(s)

Protective Order, American Airlines Inc. v. Travelport Limited, et al.,
No. 4:11-cv-00244-Y (N.D. Tex. entered Mar. 20, 2012).
Protective Order, American Airlines, Inc. v. Sabre, Inc., et al., No. 0672429214-10 (Tarrant Cnty, TX, 67th Judicial District entered Apr. 25,
2012).
Email from Fusco to Pentz, et al. (June 27, 2012)
Email from Fusco to Pentz, et al. (June 29, 2012 at 5:15 PM)
Email from Fusco to Pentz, et al. (June 29, 2012 at 7:15 PM)
Email from Feeney to Fusco, et al. (July 2, 2012)
Email from Fusco to Feeney, et al. (July 2, 2012)
Email from Falls to Fusco, et al. (July 9, 2012)

5-24

Dated: July 9, 2012

25-38
39-40
41-43
44
45-47
48-49
50-51

Respectfully submitted,
/s/ Michael L. Weiner
Michael L. Weiner
[e-mail]
DECHERT LLP
1095 Avenue of the Americas
New York, New York 10036-6797
212.698.3608
212.698.3599 (Fax)

1

Mike Cowie
[e-mail]
Craig G. Falls
[e-mail]
DECHERT LLP
1775 I Street, NW
Washington, D.C. 20006-2401
202.261.3300
202.261.3333 (Fax)
Carolyn H. Feeney
[e-mail]
Justin N. Pentz
[e-mail]
DECHERT LLP
2929 Arch Street
Philadelphia, PA 19104
215.994.4000
215.994.2222 (Fax)
Walker C. Friedman
State Bar No. 07472500
[e-mail]
Christian D. Tucker
State Bar No. 00795690
[e-mail]
FRIEDMAN, SUDER & COOKE, P.C.
Tindall Square Warehouse No. 1
604 East 4th Street, Suite 200
Fort Worth, Texas 76102
817.334.0400
817.334.0401 (Fax)
John T. Schriver
[e-mail]
Paul E. Chronis
[e-mail]
DUANE MORRIS LLP
190 South LaSalle Street, Suite 3700
Chicago, Illinois 60603-3433
312.499.6700
312.499.6701 (Fax)

2

Faith E. Gay
[e-mail]
Steig D. Olson
[e-mail]
QUINN EMANUEL URQUHART &
SULLIVAN, LLP
51 Madison Avenue, 22nd Floor
New York, New York 10010
212.849.7000
212.849.7100 (Fax)
ATTORNEYS FOR DEFENDANTS
TRAVELPORT LIMITED and
TRAVELPORT, LP

3

CERTIFICATE OF SERVICE
I hereby certify that on the 9th day of July, 2012, I electronically filed the foregoing
document with the clerk of the court for the U.S. District Court, Northern District of Texas, Fort
Worth Division, using the electronic case filing system of the court. The electronic case filing
system sent a “Notice of Electronic Filing” to the attorneys of record who have consented in
writing to accept this Notice as service of this document by electronic means.

/s/ Craig G. Falls
Craig G. Falls

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IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
FORT WORTH DIVISION
AMERICAN AIRLINES, INC.
VS.
TRAVELPORT LIMITED, et al.

§
§
§ CIVIL ACTION NO. 4:11-CV-244-Y
§
§

FIRST AMENDED STIPULATED PROTECTIVE ORDER
The Court enters this First Amended Stipulated Protective Order (“Protective
Order”) pursuant to Federal Rule of Civil Procedure 26.

The parties stipulate as

follows:
1.

Certain documents and information have been and may be sought,

produced, or exhibited by and between the parties to the above-styled proceeding
(“Proceeding”) that relate to the parties’ trade secrets, confidential information, and other
kinds of commercially sensitive information that the party making the production deems
confidential; and
2.

To preserve the confidentiality of certain documents and information, a

protective order should be entered by the Court; and
3.

The confidentiality designation of any materials cannot be used in

evidence or as proof of anything.
Pursuant to the parties’ stipulations and Rule 26(c), the following is hereby
ORDERED:
1.

This Protective Order shall govern all documents, the information

contained therein, and all other information produced or disclosed during the Proceeding
whether revealed in a document, deposition, other testimony, discovery response or

Travelport Appendix
Exhibit 1

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otherwise, by any party in this Proceeding ( “Supplying Party”) to any other party
(“Receiving Party”), when the same is designated in accordance with the procedures set
forth herein.

This Protective Order is binding upon the parties to the Proceeding,

including their respective corporate parents, subsidiaries and affiliates and their
respective attorneys, agents, representatives, consulting and testifying experts, officers
and employees and others as set forth in this Protective Order.
2.

A subpoenaed third party who so elects in a writing served on all parties

may avail itself of, and agree to be bound by, the terms and conditions of this Protective
Order and thereby become a Supplying Party for purposes of this Protective Order. The
parties, in conducting discovery from third parties, shall attach to such discovery requests
a copy of this Protective Order so as to apprise such third parties of their rights herein.
A third party that elects to become a Supplying Party for purposes of this Protective
Order shall have the same rights and obligations as any other Supplying Party to
designate any “Confidential” or “Outside Attorneys’ Eyes Only” material it produces
consistent with the provisions in this Protective Order.
3.

Any Supplying Party shall have the right to identify and designate as

“Confidential” or “Outside Attorneys’ Eyes Only” any document or other materials it
produces or provides (whether pursuant to court order, subpoena or by agreement), or any
testimony given in this Proceeding, which testimony or discovery material is believed in
good faith by that supplying party to constitute, reflect or disclose its confidential,
proprietary, or trade secret information, as those terms are understood under applicable
state and federal law (“Designated Material”).

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4.

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Designated Material as used herein includes without limitation documents,

information contained in documents, information revealed during a deposition or other
testimony, information revealed in an interrogatory answer, or information otherwise
revealed during the Proceeding.
5.

“Inside Counselors” as used herein refers to no more than two in-house

attorneys for each party who are primarily responsible for managing the litigation in this
Proceeding.

Inside Counselors shall agree not to participate in negotiations of

commercial agreements between the parties on behalf of their respective clients during
the pendency of this litigation (including appeals) and for two (2) years thereafter. The
designated Inside Counselors for each party are as follows:
(a)

For American Airlines, Inc: Bruce Wark and Donald Broadfield,
Jr.

(b)

For Travelport Limited and Travelport, LP d/b/a Travelport:
Richard Hastings and Shaun Redgrave.

(c)

For Sabre Inc., Sabre Holdings Corp., and Sabre Travel
International Limited d/b/a Sabre Travel Network: Sonia Ferguson
and David Schwarte.

(d)

For Orbitz Worldwide, LLC d/b/a Orbitz: Craig Sonnenschein and
Suzanne Browne.

Any Party may change the designation of its Inside Counselors upon written
notice to all other parties if the previously-designated Inside Counselor is no longer
employed by the Party or with the Court’s permission for good cause shown.
6.

Specific documents and interrogatory answers produced by a Supplying

Party shall, if appropriate, be designated pursuant to this Protective Order by marking the

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first page of the document and each subsequent page thereof containing Confidential
Information with the legend:
“CONFIDENTIAL (No. 4:11-cv-00244-Y)”
or
“OUTSIDE ATTORNEYS’ EYES ONLY (No. 4:11-cv-00244-Y)”
Alternatively, a Supplying Party may designate information as Confidential
Information by indicating in a writing served to all counsel of record the page range or
bates-stamp range or otherwise identifying the materials in a manner that is readily
ascertainable.
7.
Information disclosed at a deposition taken in connection with this
Proceeding may be designated pursuant to this order as follows:
(a)

(b)

8.

A Supplying Party (or its counsel) may designate testimony, given
by any fact or expert witness as “Confidential” or “Outside
Attorneys’ Eyes Only” on the record during the taking of the
deposition, in which case the stenographic employee or court
reporter recording or transcribing such testimony shall be directed
either to bind any transcript page(s) containing Confidential
Information separately and apart from any transcript page(s)
containing no such Confidential Information or to ensure that the
transcript identifies the page-range of the Confidential
Information; or
A Supplying Party (or its counsel) may notify all other parties to
this Protective Order in writing, within twenty-one (21) calendar
days of receipt of the transcript of a deposition of any witness of
specific pages and lines of the transcript which are designated as
“Confidential” or “Outside Attorneys’ Eyes Only,” whereupon
each party shall treat the designated excerpts in accordance with
this Order.
To facilitate the designation of Confidential
Information, all transcripts of depositions shall be treated in their
entirety as “Outside Attorneys’ Eyes Only” for a period of twentyone (21) calendar days following delivery by court reporter of
certified transcripts to all parties.

Confidential Information shall be disclosed by the Receiving Party only to

the following persons:

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(a)

(b)

Inside Counselors, as that term is defined in Paragraph 5 of this
Order;

(c)

Any outside consultant or expert who is retained in connection
with this Proceeding and to whom it is necessary to disclose
Confidential Information for the purpose of assisting in, or
consulting with respect to, the preparation of this Proceeding and
who signs the document attached hereto as Exhibit A, agreeing to
be bound by the terms of this Protective Order;

(d)

The Court and any members of its staff to whom it is necessary to
disclose Confidential Information for the purpose of assisting the
Court in this Proceeding;

(e)

Witnesses in this action to whom disclosure is reasonably
necessary for this litigation and who have signed the document
attached as Exhibit A, agreeing to be bound by the terms of this
Protective Order;

(f)

Stenographic employees and court reporters recording or
transcribing testimony relating to the Proceeding;

(g)

The author, addressees, or recipients of the document, or the
original source of the Confidential Information, provided such
authors, addressees, or recipients sign the document attached
hereto as Exhibit A, agreeing to be bound by the terms of this
Protective Order; and

(h)

9.

Outside counsel for the Plaintiff and Defendants whose lawyers
have filed appearances in this Proceeding, including their
attorneys, paralegals, investigators, stenographic and clerical
employees; the personnel supplied by any independent contractor
(including litigation support service personnel or attorneys and
paralegals assisting in document review) with whom such
attorneys work in connection with the Proceeding;

Any other person to whom the Supplying Party agrees in writing or
on the record, provided that such person signs the document
attached hereto as Exhibit A, agreeing to be bound by the terms of
this Protective Order.

Persons having knowledge of Confidential Information by virtue of the

disclosure of such information by a Supplying Party in discovery in this Proceeding shall

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use that Protected Information only in connection with the prosecution or appeal of the
Proceeding, and shall neither use such Confidential Information for any other purpose nor
disclose such Confidential Information to any person who is not identified in paragraph 7
of this Protective Order. The parties agree that Confidential Information can be used in
any other proceeding between the parties and in which a protective order agreed to by the
parties is in place, with the written permission of the Supplying Party, which permission
shall not be unreasonably withheld.

In the event that permission to use Confidential

Information is not given by the Supplying Party, the Receiving Party may petition the
Court for relief.
10.

Nothing shall prevent disclosure of Confidential Information beyond the

terms of this Protective Order (a) if the Supplying Party (or its counsel) consents in
writing to such disclosure, (b) if a Supplying Party knowingly discloses its own
Confidential Information in a public or non-redacted pleading filed in the Court’s public
record or in a publication disseminated to the general public, or (c) the Court, after
reasonable written notice to counsel for all the parties, and after an opportunity to be
heard by counsel for the Supplying Party, orders such disclosure.
11.

The Parties expect the Proceeding will require the production (in hard

copy and/or electronic form) of certain categories of extremely sensitive confidential
trade secret or proprietary information that the Supplying Party reasonably believes may
substantially compromise and/or jeopardize the Supplying Party’s business interests, even
if limited to the persons listed in Paragraph 8 above (“Outside Attorneys’ Eyes Only
Information”).

Outside Attorneys’ Eyes Only Information may include without

limitation: (a) the negotiation, terms, and course of performance of legal agreements; (b)

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pricing information; (c) financial information, including sales and profits, that is not
otherwise public information; (d) the content of and strategy related to current and past
business dealings, including confidential communications with customers (e) intellectual
property; (f) trade secrets, know-how, or proprietary data; (g) information relating to
unreleased products and services, or products and services that may still be in
development”).
12.

All the provisions set forth above applicable to Confidential Information

shall apply equally to Outside Attorneys’ Eyes Only Information, except that disclosure
of Outside Attorneys’ Eyes Only Information by the receiving party shall be limited to
the following persons:
(a)

Outside counsel for the Plaintiff and the Defendants whose lawyers
have filed appearances in this Proceeding (specifically excluding
in-house counsel), including their attorneys, paralegals,
investigators, stenographic and clerical employees; the personnel
supplied by any independent contractor (including litigation
support service personnel or attorneys and paralegals assisting in
document review) with whom such attorneys work in connection
with the Proceeding;

(b)

Any outside consultant or expert who retained in connection with
this Proceeding and to whom it is necessary to disclose Outside
Attorneys’ Eyes Only Information for the purpose of assisting in,
or consulting with respect to, the prosecution or defense of this
Proceeding, and who signs the document attached hereto as Exhibit
A, agreeing to be bound to the terms of this Protective Order;

(c)

The author, addressees, or recipients of the document, or the
original source of the Outside Attorneys’ Eyes Only Information
who signs the document attached hereto as Exhibit A, agreeing to
be bound to the terms of this Protective Order;

(d)

The Court and any members of its staff to whom it is necessary to
disclose Outside Attorneys’ Eyes Only Information for the purpose
of assisting the Court with respect to the Proceeding;

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(e)

13.

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Stenographic employees and court reporters recording or
transcribing testimony relating to the Proceeding.

There may be certain limited pieces of information—documents,

interrogatory answers and/or deposition testimony—that are marked “Outside Attorneys’
Eyes Only” by a Supplying Party and that the Receiving Party believes it must show to its
clients to adequately prepare its case for trial.

If a Receiving Party believes that

information falls within this category, it shall identify the information to the Supplying
Party with specificity and disclose the in-house personnel to whom it wishes to disclose
the information.

The Supplying Party will provide a good faith response concerning its

willingness (or lack of willingness) to permit the information to be shown to the disclosed
in-house personnel within five (5) business days. If the Supplying Party is unwilling to
permit the Receiving Party to show the information to the Receiving Party’s clients, the
Receiving Party may then raise the matter with the Court.
14.

Persons having knowledge of Outside Attorneys’ Eyes Only Information

by virtue of the disclosure of such information by a Supplying Party in discovery in this
Proceeding shall use that Outside Attorneys’ Eyes Only Information only in connection
with the prosecution or appeal of the Proceeding, and shall neither use such Outside
Attorneys’ Eyes Only Information for any other purpose nor disclose such Outside
Attorneys’ Eyes Only Information to any person who is not identified in paragraph 12 of
this Protective Order. The parties agree that Outside Attorneys’ Eyes Only Information
can be used in any other proceeding in which a protective order agreed to by the parties is
in place, with the written permission of the Supplying Party, which permission shall not

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be unreasonably withheld. In the event that permission to use Confidential Information
is not given by the Supplying Party, the Receiving Party may petition the Court for relief.
15.

Prior to the disclosure of any Designated Material to any person identified

in paragraphs 8 (b), (c), (e), (g) or (h) or 12 (b) or (c), such person shall be provided with
a copy of this Protective Order, which he or she shall read and upon reading shall sign a
Certification, in the form attached hereto as Exhibit A, acknowledging that he or she has
read this Protective Order and shall abide by its terms.

Counsel for the party seeking to

disclose Designated Material to any person identified in paragraphs 8(b) or (g) or 12(c)
shall then serve all other parties in this Proceeding with a copy of the executed
Certification.

Counsel for the party seeking to disclose Designated Material to any

person identified in paragraphs 8(e) or (h), or any person identified in paragraphs 8(c) or
12(b) other than the parties’ outside economists, shall then serve all other parties in this
Proceeding with a copy of the executed Certification and shall refrain from disclosing
Designated Material for one business day, during which time the other parties may raise
objections. If such an objection is raised, counsel for the party seeking to disclose
Designated Material shall not do so until the matter is resolved by the Court.

Failure to

raise an objection within 24 hours does not waive the right of a party to lodge an
objection at a later date and seek relief from the Court.

Executed Certifications signed

by outside economists shall be maintained by the party retaining them, but need not be
served on the other parties.

Persons who come into contact with Designated Material

for clerical, administrative, paralegal, stenographic or court reporting purposes are not
required to execute acknowledgements.

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16.

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All deponents, their counsel and all witnesses to depositions, shall be

advised of this Protective Order and its terms on the record at the beginning of all
depositions in the Proceeding (such advising not to count against the time limits for such
depositions).

A deponent shall not be permitted to retain copies of Designated Material

unless the deponent is otherwise entitled to receive and retain such copies under the terms
of this Protective Order.

A deponent’s counsel shall not be permitted to retain any

copies of Designated Material unless such counsel represents one of the parties in this
Proceeding or is otherwise entitled to receive and retain such copies under the terms of
this Protective Order. Nothing in this paragraph shall prevent a deponent or deponent’s
counsel from having reasonable access to the deponent’s deposition, including exhibits
thereto, for purposes of executing the deposition, preparing to testify further in this
Proceeding, or for other purposes agreed to by all the parties.
17.

Any party (the “Objecting Party”) may challenge the propriety of the

designation (or re-designation) of specific material as “Confidential” or “Outside
Attorneys’ Eyes Only” by serving a written objection that identifies the particular
material being challenged (by Bates number or other reasonable description or
identification), and provides the basis for the challenge. The Supplying Party or its
counsel shall thereafter respond to the objection in writing within five (5) business days
of its receipt of such written objection by either (i) agreeing to remove the designation, or
(ii) stating the reasons why the designation was made.

If the Objecting Party and the

Supplying Party are subsequently unable to agree upon the terms and conditions of
disclosure for the material(s) at issue, the Objecting Party may file a motion with the
Court in order to resolve the disputed designation.

Pending the resolution of the

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disputed designation, the material(s) at issue shall continue to be treated in accordance
with the Supplying Party’s designation of the material unless and until differing treatment
is directed pursuant to order of the Court.
18.

Nothing in this Protective Order shall restrict any party’s outside counsel

from rendering advice to its clients with respect to this Proceeding and, in the course
thereof, relying upon Confidential Information or Outside Attorneys’ Eyes Only
Information; provided, however, that in rendering such advice, outside counsel shall not
disclose any other party’s Confidential Information or Outside Attorneys’ Eyes Only
Information other than in a manner provided for in this Protective Order.
19.

Inadvertent production of any document or information without an

appropriate designation of confidentiality will not be deemed to waive a later claim as to
its confidential nature or stop the Supplying Party from designating said document or
information at a later date by complying with the provisions above.

Disclosure of said

document or information by any party prior to such subsequent designation shall not be
deemed a violation of this Protective Order; provided, however, that any party that
disclosed the redesignated material shall make a good-faith effort promptly to procure all
copies of such redesignated material from any persons known to have possession of any
such redesignated material who are no longer entitled to receipt under paragraphs 8 and
12 above.
20.

If a Supplying Party inadvertently discloses information that is subject to

the attorney-client privilege or the work-product doctrine, such disclosure shall not
constitute a waiver of, or an estoppel as to any claim of, such privilege or protection if—
upon discovery of such disclosure—the Supplying Party promptly informs the Receiving

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Party that the information is subject to a claim of privilege, immunity, or protection. If
the Supplying Party notifies the Receiving Party that the information is subject to a claim
of privilege, immunity or protection, then counsel for the Receiving Party shall comply
with Fed. R. Civ. P. 26(b)(5)(B).
21.

Except as agreed in writing by counsel for the Supplying Party, to the

extent that any Designated Material is, in whole or in part, contained in, incorporated in,
disclosed in or attached to any pleading, motion, memorandum, appendix or other
judicial filing, counsel shall file the submission under seal, and the submission shall be
designated and treated as a “Sealed Document,” in accordance with the Court’s order of
June 9, 2011. (Doc. 69.) All Sealed Documents, filed under seal pursuant to this
Protective Order, shall be electronically filed under seal and shall remain sealed until
sixty days after the final disposition of this case in accordance with local rule 79.4. (See
Doc. 69.) Such Sealed Documents shall be released by the Clerk of the Court only upon
further order of the Court, with appropriate notice to all and an opportunity to be heard by
all parties to the Proceeding.
22.

If Designated Material is used during depositions, it shall not lose its

confidential status through such use, and counsel shall exercise their best efforts and take
all steps reasonably required to protect its confidentiality during such use.
23.

Nothing in this Protective Order shall be deemed a waiver of any objection

or privilege a party may claim to the production of any documents, nor shall anything in
this Protective Order prevent the parties from seeking an order from the Court, upon
proper notice to all parties, further restricting the disclosure of documents or information
designated pursuant to this order.

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24.

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Upon the conclusion of the Proceeding, including any appeal related

thereto, at the written request and option of the Supplying Party, within thirty (30)
calendar days of such request any person or entity having custody or control of
Designated Material or of recordings, notes, memoranda, summaries or other written
materials, and all copies thereof, relating to or containing Designated Material shall
certify that all such Designated Material and any copies thereof, any and all records,
notes, memoranda, summaries or other written material regarding the Designated
Material have been destroyed or returned to the Supplying Party.

Any request for return

or destruction shall be made within ninety (90) days of the conclusion of this Proceeding,
including all appeals. If a Supplying Party does not request the return of its Designated
Material within the specified time period, parties in possession of said material shall
destroy the material, and a Clerk of Court in possession of said material may destroy the
material consistent with the terms of this Protective Order.
25.

To the extent Designated Material is in the possession of outside counsel

to a Party at the conclusion of the Proceeding, outside counsel shall make reasonable
efforts to destroy all Designated Material, including: (a) destroying all hard copies of
documents designated as “Confidential” or “Outside Attorneys’ Eyes Only,”; (b)
eliminating any electronic databases that have been created to assist in the prosecution or
defense of the Proceeding that hold electronic copies of documents designated as
“Confidential” or “Outside Attorneys’ Eyes Only”; and (c) informing all personnel who
have worked on the Proceeding that documents designated as “Confidential” or “Outside
Attorneys’ Eyes Only” must be automatically destroyed pursuant to outside counsel’s
typical document retention policy.

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26.

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If Designated Material is disclosed to any person other than in the manner

authorized by this Protective Order, the party responsible for the disclosure shall within
two (2) business days after learning of such disclosure, inform the Supplying Party of all
pertinent facts relating to such disclosure and shall make every effort to prevent
disclosure by each unauthorized person who received such information.
27.

If a Receiving Party is served with a discovery request, subpoena or an

order issued in other litigation or proceedings that would compel disclosure of any
information or items designated in this action as “Confidential” or “Outside Attorneys’
Eyes Only,” the Receiving Party must:

Party.

a.
Notify in writing, as soon as reasonably practicable, the Supplying
Such notification shall include a copy of the subpoena or court order;

b.
Notify in writing, as soon as reasonably practicable, the party who
caused the subpoena or order to issue in the other litigation that some or all of the
material covered by the subpoena or order is subject to this Protective Order. Such
notification shall include a copy of this Protective Order; and
If the Supplying Party timely seeks a protective order, the Receiving Party served
with the subpoena or court order shall not produce any information designated in this
action as “Confidential” or “Outside Attorneys’ Eyes Only” before a determination by the
court from which the subpoena or order issued, unless the Receiving party has obtained
the Supplying Party’s permission. The Supplying Party shall bear the burden and
expense of seeking protection in that court of its Designated Material – and nothing in
these provisions should be construed as authorizing or encouraging a Receiving Party in
this action to disobey a lawful directive from another court.
28.
Subject to the applicable rules of evidence, Designated Material may be
offered in evidence at trial or any court hearing, provided that the party offering
Designated Material (“the Offering Party”) provides reasonable notice to the Supplying
Party.

Any party or third party may move the Court for an order that evidence,

including documents and testimony, be received in camera or under other conditions to
prevent unnecessary disclosure of Confidential or Outside Attorneys’ Eyes Only

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Information.

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Prior to trial or to a hearing in open court, the Court may determine what

protection, if any, will be afforded to such information at the trial or hearing. In the
event the Offering Party cannot practicably provide notice to the Supplying Party, the
Offering Party shall, prior to offering in evidence any Designated Material, move the
Court for an order that evidence, including documents and testimony, be received in
camera or under other conditions to prevent unnecessary disclosure of Confidential or
Outside Attorneys’ Eyes Only Information.
29.

The terms of this Protective Order shall be binding upon all current and

future parties to this Proceeding and their counsel.

If any new party and its counsel

should enter this litigation, within five (5) days of the entry of appearance by a new party
and its counsel to this Proceeding, Plaintiff shall serve the new party and its counsel with
a copy of this Protective Order, and the new party shall be required to sign it or lodge any
objections to this Protective Order within three (3) business days after receiving service
of the Protective Order.
30.

Nothing contained in this Protective Order shall preclude any party from

using its own Confidential Information or Outside Attorneys’ Eyes Only Information in
any manner it sees fit, without prior consent of any party or the Court. If a Supplying
Party knowingly discloses its own Confidential Information or Outside Attorneys’ Eyes
Only Information in a public or non-redacted pleading filed in the Court’s public record
or in a publication disseminated to the general public, the Supplying Party shall be
deemed thereby to have consented to the removal of that designation with respect to the
information disclosed.

15
19

Case 4:11-cv-00244-Y Document 267

31.

Filed 03/20/12

Page 16 of 20 PageID 6627

By written agreement of the parties or upon motion and order of the Court

the terms of this Protective Order may be amended, modified or vacated.
Unless this order includes a clause that explicitly states that a particular local
civil rule is modified as applied to this case, nothing in this order shall be construed
to modify the provisions, operation, or effect of any local civil rule of this court.
SIGNED March 20, 2012.

____________________________
TERRY R. MEANS
UNITED STATES DISTRICT JUDGE
Dated: March 14, 2012
AGREED BY AND ENTRY REQUESTED:

AGREED BY AND ENTRY REQUESTED:

/s Yolanda C. Garcia
R. Paul Yetter
State Bar No. 22154200
Anna Rotman
State Bar No. 24046761
YETTER COLEMAN LLP
909 Fannin, Suite 3600
Houston, Texas 77010
713.632.8000
713.632.8002 (fax)

/s Walker C. Friedman
Walker C. Friedman
State Bar No. 07472500
[e-mail]
FRIEDMAN, SUDER & COOKE
604 E. 4th Street, Suite 200
Fort Worth, Texas 76102
817.334.0144
817.334.0401 (fax)
Michael L. Weiner
[e-mail]
Dechert LLP
1095 Avenue of the Americas
New York, New York 10036-6797
212.698.3608
212.698.3599 (Fax)

Bill Bogle
State Bar No. 025661000
Roland K. Johnson
State Bar No. 00000084
HARRIS, FINLEY & BOGLE, P.C.
777 Main Street, Suite 3600
Fort Worth, Texas 76102
817.870.8700
817.332.6121 (fax)

Mike Cowie
[e-mail]

16
20

Case 4:11-cv-00244-Y Document 267

Filed 03/20/12

Craig Falls
[e-mail]
Dechert LLP
1775 I Street, NW
Washington, D.C. 20006-2401
202.261.3300
202.261.3333 (Fax)

Yolanda C. Garcia
State Bar No. 24012457
Michelle Hartmann
State Bar No. 24032401
WEIL, GOTSHAL & MANGES LLP
200 Crescent Court, Suite 300
Dallas, Texas 75201-6950
214.746.7700
214.746.7777 (fax)

John T. Schriver
[e-mail]
Paul E. Chronis
[e-mail]
Duane Morris LLP
Suite 3700
190 South LaSalle Street
Chicago, Illinois 60603-3433
312.499.6700
312.499.6701 (Fax)

Of Counsel:
DEWEY & LEBOEUF LLP
M.J. Moltenbrey
1101 New York Ave. NW
Washington, D.C. 20005
202.346.8738
202.346.8102 (fax)

Attorneys for Defendants
Travelport, L.P.,

WEIL, GOTSHAL & MANGES LLP
Richard A. Rothman
James W. Quinn
767 Fifth Avenue
New York, New York
212.310.8426
212.310.8285 (fax)

Page 17 of 20 PageID 6628

Travelport

Ltd.,

/s Christopher S. Yates____________________
Christopher S. Yates
Email: [e-mail]

10153

Daniel M. Wall
Email: [e-mail]

Attorneys for Plaintiff American Airlines, Inc.

Brendan A. McShane
Email: [e-mail]
LATHAM & WATKINS LLP
505 Montgomery Street, Suite 2000
San Francisco, CA 94111-6538
Telephone: [phone]
Facsimile: [phone]
John J. Little
Email: [e-mail]
Stephen G. Gleboff
Texas State Bar No. 08024500
Email: [e-mail]
Megan K. Dredla
Email: [e-mail]
LITTLE PEDERSEN FANKHAUSER LLP

17
21

Case 4:11-cv-00244-Y Document 267

Filed 03/20/12

Page 18 of 20 PageID 6629

901 Main Street, Suite 4110
Dallas, TX 75202-3714
Telephone: [phone]
Facsimile: [phone]
Attorneys for Defendant Orbitz Worldwide, LLC

/s Scott A. Fredricks
Scott A. Fredricks
Texas Bar No. 24012657
([e-mail])
Ralph H. Duggins
Texas Bar No. 06183700
([e-mail])
Philip A. Vickers
Texas Bar No. 24051699
([e-mail])
CANTEY HANGER LLP
Cantey Hanger Plaza
600 West 6th Street, Suite 300
Fort Worth, TX 76102-3685
Phone: [phone]
Facsimile: [phone]
Donald E. Scott
Colorado Bar No. 21219, Illinois Bar No.
2531321
([e-mail])
Karma M. Giulianelli
Colorado Bar No. 30919, California Bar No.
184175
([e-mail])
Sean C. Grimsley
Colorado Bar No. 36422, California Bar No.
216741
([e-mail])
Sundeep K. (Rob) Addy
Colorado Bar No. 38754
([e-mail])
BARTLIT BECK HERMAN PALENCHAR & SCOTT
LLP
1899 Wynkoop Street, 8th Floor
Denver, Colorado 80202
Phone: [phone]
18
22

Case 4:11-cv-00244-Y Document 267

Filed 03/20/12

Page 19 of 20 PageID 6630

Facsimile: [phone]
Chris Lind
Illinois Bar No. 6225464, Colorado Bar No
27719
([e-mail])
Andrew K. Polovin
Illinois Bar No. 6275707
([e-mail])
Katherine M. Swift
Illinois Bar No. 6290878
([e-mail])
BARTLIT BECK HERMAN PALENCHAR & SCOTT
LLP
54 West Hubbard Street, Suite 300
Chicago, IL 60610
Phone: [phone]
Facsimile: [phone]
George S. Cary
([e-mail])
Steven J. Kaiser
([e-mail])
CLEARY GOTTLIEB STEEN & HAMILTON LLP
2000 Pennsylvania Ave., N.W.
Washington, DC 20006
Telephone: [phone]
Facsimile: [phone]
Attorneys for Sabre Inc., Sabre Holdings
Corporation, and Sabre Travel Int’l Ltd. d/b/a
Sabre Travel Network

19
23

Case 4:11-cv-00244-Y Document 267

Filed 03/20/12

Page 20 of 20 PageID 6631

Exhibit A
AMERICAN AIRLINES, INC.
VS.
TRAVELPORT LIMITED, et al.

§
§
§ CIVIL ACTION NO. 4:11-CV-244-Y
§
§

I hereby certify (i) my understanding that Designated Material and/or Confidential
Information and/or Outside Attorneys’ Eyes Only Information are being provided to me
pursuant to the terms and restrictions of the Protective Order (the “Order”) entered by the
United States District Court for the Northern District of Texas (the “District Court”) in
the above-captioned Action, and (ii) that I have read and understood the terms the Order.
I hereby agree to be fully bound by the Order and further agree to submit to the
jurisdiction of the District Court for purposes of enforcement of the Order.

I certify that

I will not use any information disclosed to me under the terms of this Order other than for
the purposes described in the Order. I understand that violation of the Order may be
punishable by contempt of Court.

Dated:

Signature:

Printed Name and Title:

Business Address:

20
24

NO. 067-249214-10
AMERICAN AIRLINES, INC.,

§

§
§
§
§
§
§

v.
SABRE, INC.,
SABRE HOLDINGS CORPORATION, and
SABRE TRAVEL INTERNATIONAL LTD.

IN THE JUDICIAL DISTRICT COURT

OF TARRANT COUNTY, TEXAS

67TH JUDICIAL DISTRICT

SECOND AMENDED CONFIDENTIALITY STIPULATION
AND PROTECTIVE ORDER
Having determined that certain information to be filed with the Conrt or produced during
discovery by American Airlines, Inc., Sabre Inc., Sabre Holdings, Inc. and/or Sabre Travel
International Limited (the "Parties') or other Persons is "Confidential Information" (as defined
in paragraph 1 below) that could be used by competitors to gain a competitive advantage, and the
unauthorized disclosure of which would be greatly detrimental to the legitimate commercial or
privacy interests of the Parties and Persons and could cause irreparable injury to such Parties and
Persons. Therefore, the Court enters the following Stipulation and Order:
1.

Definition of "Confidential Information": "Confidential Information" is

defined as follows: trade secrets, sensitive business or financial information; confidential
research, development or conm1ercial information; and confidential or private personal
information the disclosure of which would greatly negatively impact specific, serious and
substantial interests of the Party or Person to whom the Confidential Information belongs and
would not have any effect on the health or safety of the public.
2.

Scope of Order: This Confidentiality Stipulation and Protective Order (the

"Protective Order") governs the handling of all documents, testimony and other information,
including all copies, excerpts, and summaries thereof, produced, given or filed during discovery
and other proceedings in this action, including Confidential Information, produced, given or filed

1

Travelport Appendix
Exhibit 2

25

in this case prior to the date of this Protective Order, either voluntarily or as required by
discovery requests made pursuant to the Texas Rules of Civil Procedure.
a.

If any person who is a party to another legal proceeding, or a court or an

administrative agency, through discovery, demands, subpoenas, or orders production of
Confidential Information that has come into possession of a party hereto in this litigation, the
party receiving such subpoena or order or demand for such Confidential Information shall
promptly, and before producing Confidential Information to such other party, court or
administrative agency, notify:
(i)

the requesting party, court or administrative agency of this

Protective Order, and
(ii)

the producing Party or Person of the pendency of such discovery

demand, subpoena or order to produce.
The notification to the producing party must be accomplished by email and by certified mail
return receipt requested to the counsel whose signature is below at the addresses provided below
their signatures. Notification to any non-party must be sent by email and certified mail, return
receipt requested, to counsel for the non-party who assisted in the original production of
documents or information.
Notification to the producing Party or Person must be accomplished at least five business
days prior to the disclosure, or as soon as possible if five business days' notice is rendered
impossible through no fault of the possessing party.
3.

Persons Subject to Order: The provisions of this Protective Order shall apply to

the Parties, and any other Person producing or disclosing Confidential Information in this action
who agrees or is ordered to be bound by this Protective Order.

As used herein, "Person"

2

26

includes both the Parties and third parties who have agreed or been ordered to be bound by this
Protective Order. If, in this action, discovery is sought from third parties that would require such
parties to disclose and/or produce Confidential Information, such third parties may gain the
protections of this Protective Order by agreeing in writing to produce documents pursuant to this
Order and to be bound by it. No further order of this Court shall be necessary to extend the
protections of this Order to third parties.
4.

Designation of Confidential Information: Any Party or Person who produces,

gives, or files Confidential Information may designate information as Confidential Information if
it meets the definition stated in Paragraph 1. Designation of any documents or information as
Confidential Information under this Confidentiality Stipulation and Protective Order shall
constitute a representation that such documents or information have been reviewed by an
attorney for the producing party or attorney for the party to this Confidentiality Stipulation and
Protective Order who so designated the documents or information; that there is a valid, good
faith basis for such designation, and that no less restrictive means will adequately and effectively
protect the party's interests.
a.

Designation of Documents: Documents may be designated as

Confidential Information by stamping "Confidential" (or some other similar legend) on each
page prior to production. It is further agreed and stipulated that the courtesy copy of the Brief in
Opposition to American Airlines, Inc.'s Application for Temporary Restraining Order and
Temporary Injunction submitted to the Court by the Sabre parties on January 10, 2011 shall be
returned to the Sabre parties so that it may be marked to conform with this Order and
resubmitted in accordance with this Order. It is further agreed and stipulated that American will
move to resubmit its Amended Original Petition and Application for Temporary Restraining

3

27

Order and Temporary Injunction and the accompany affidavit and exhibits that were filed with
the Court by American on January 10, 2011 so that it may be marked to conform with this Order
and re-submitted in accordance with this Order.
b.

Increased levels of protection. If a Party or Person that in good faith

believes any particular Confidential Information is so highly sensitive that it should not be
disclosed to an individual plaintiff or defendant, or to a director, officer, or employee thereof, the
party may designate that Confidential Information as "Confidential--Outside Counsel Only" or
"Highly Confidential." Information that is designated "Confidential," "Confidential-Outside
Counsel Only," or "Highly Confidential" shall be used by the Parties or Persons solely as
described below.
c.

Redaction of Documents: In addition to designating documents as

Confidential Information, the Parties or Persons may redact highly sensitive material from
documents, including information that if disclosed would invade a specific individual's privacy,
as long as counsel reasonably believes the redacted portions are not relevant to any issues in this
case and do not significantly hinder the opposing party from utilizing the relevant portions of the
document.

Disputes over redactions will be handled in the same manner as that for

confidentiality designations.
d.

Designation of Deposition Testimony: Deposition testimony may be

designated, in whole or in part, as Confidential Information by (I) oral designation of same on
the record; or (2) by written designation made and served on all Parties within 30 days after the
court reporter issues the final transcript. Until the expiration of that 30-day period, the entire
deposition transcript and all exhibits shall be treated as "Highly Confidential." If Confidential
Information previously produced and designated by a non-party is the subject of deposition

4

28

testimony or is attached thereto as an exhibit, that portion of testimony related to the Confidential
Information and any such Confidential Information shaH automaticaHy retain the original
designation as "Confidential," "Confidential-Outside Counsel Only" or "Highly Confidential,"
as the case may be, without any additional action by the original designating non-party.
Moreover, the non-party shaH be notified by the Party that noticed the deposition within five
business days after the testimony in question of the fact that the non-party's Confidential
Information was used or discussed at the deposition, and upon request by the non-party, shaH be
provided to the non-party a copy of the relevant portions of the transcript and related documents
(appropriately redacted to shield any Confidential Information of other Persons or Parties). After
making any designations of all or part of the transctipt as Confidential Information, the
information wiii remain so designated unless the procedures set forth herein for designation
disputes are foHowed. Upon designation of confidentiality, the Court Reporter shaH separately
bind the "Confidential," "Confidential-Outside Counsel Only," and "Highly Confidential"
portions of the deposition transcript and shaH· stamp the words "Confidential," "ConfidentialOutside Counsel Only," or "Highly Confidential" as appropriate, on each page.
e.

Subsequent Designation: Documents, deposition transcripts, and other

information may be designated as "Confidential," "Confidential-Outside Counsel Only," or
"Highly Confidential" pursuant to the above subparagraphs after they have been produced
without having been so designated only under the foHowing conditions:
(i)

Persons to whom such documents, testimony, or other information,

have been disclosed must be advised in writing of the new designation;
(ii)

The new designation applies only as of the date and time of receipt

of notice of the new designation by each person notified;

5

29

(iii)

Persons to whom such documents, testimony, or other information

have been disclosed shall not be responsible for any disclosure to third parties occurring
before receipt of notice described in Paragraph 4(e)(i); and
(iv)

Persons to whom such documents, testimony, or other information

have been disclosed must be provided with another copy of the documents, deposition
testimony, or other information that bears the proper designation.
f.

Inadvertent Disclosure: The inadvertent disclosure of Confidential

Information by a producing party without designation at the time of disclosure shall not be
treated as a waiver of the confidentiality of the subject matter, nor as a waiver as to the specific
information except as dese1ibed above.

A receiving party that has inadvertently disclosed

Confidential Information to a person or entity not entitled to receive such Confidential
Information must immediately provide written notice by email and certified mail, return receipt
requested, to the Person who originally produced the Confidential Information, and provide all
details concerning the inadvertent disclosure, including what has been disclosed, to whom, when,
under what circumstances, and all steps taken to minimize additional damage and to protect
against further dissemination.
g.

Inspected Documents: If documents are inspected, as opposed to copied,

all such documents shall be presumed at such inspection to have been designated as Confidential
Information by the producing party until such time as the producing party provides copies to the
receiving party.
5.

Use Limitations: All Confidential Information that is produced in the course of

discovery proceedings herein shall be used only for the purpose of preparing for and conducting
this action (including appeals) and not for any business or other purpose whatsoever, and shall

6

30

not be given, shown, or made available or communicated in any way to anyone except those
specified below who have read and are bound by the terms of this Protective Order, and to whom
it is necessary that such Confidential Information be given or shown for the purposes permitted
under this paragraph.

Indeed, the parties and other persons bound by this Protective Order

acknowledge and agree that the misuse and unauthorized disclosure of Confidential Information
will result in material harm to the producing party. Thus, the persons to whom Confidential
Information is disclosed shall, before such disclosure, agree to be bound by this Protective Order
by signing a copy of the acknowledgment form attached as Exhibit A and be advised that the
violation of the terms of this Protective Order (by use of the Confidential Information for
business purposes or in any other impermissible manner) may constitute contempt of Court, or
form the basis for other claims.
6.

Persons To Whom Confidential Information May be Disclosed:
a.

"Confidential" Information: Except as otherwise provided by this

Protective Order, information designated as "Confidential" shall be disclosed only to:
(i)

Outside counsel of record for the Parties, and other attorneys,

clerical, paralegal and other staff employed by outside counsel and any Independent
Experts (as defined and subject to the terms provided below) who are assisting outside
counsel in the prosecution or defense of this action and who are not current employees of
a party;
(ii)

inside counsel for the Parties;

(iii)

such officers, directors, or employees of the Parties, as counsel, in

good faith, requires to provide assistance in the prosecution or defense of this action, and
for no other purpose;

7

31

(iv)

the Court (in the manner provided by paragraphs 8 and 9 hereof)

and court personnel;
(v)

any other Person as to whom the producing Person agrees m

(vi)

witnesses where such witness is employed by the party making the

writing;

designation at deposition, trial, and other evidentiary hearings or similar proceedings; and
(vii)

court reporters or other outside contractors such as document

management personnel employed in connection with this action.
b.

"Confidential-Outside Counsel Only" Information:

Except as

otherwise provided by this Protective Order, information designated as "Confidential-outside
Counsel Only" shall be disclosed only to Persons described in paragraph 6(a)(i), (iv), (v), (vi)
and (vii) above who have agreed or who have been ordered to be bound by this Protective Order.
In addition, "Confidential-outside Counsel Only" information may also be disclosed to one in-

house attorney for each party. Specifically, "Confidential-Outside Counsel Only" information
may be disclosed to Camille Penniman for Sabre and Don Broadfield for American, each of
whom shall use this information solely for purposes of this litigation and not for any business
purpose whatsoever and each of whom agrees not to participate in any future contract
negotiations between the parties relating to any amendments to the Participating Carrier
Agreement.

Furthermore, these in-house attorneys shall not disclose "Confidential-Outside

Counsel Only" information to other officers, directors, or current or future employees of the
Party they represent.
c.

"Highly Confidential" Information: Except as otherwise provided by

this Protective Order, information designated as "Highly Confidential" shall be disclosed only to

8

32

Persons described in paragraph 6(a)(i), (iv), (v), (vi) and (vii) above who have agreed or who
have been ordered to be bound by this Protective Order.
d.

Disclosure to Independent Experts: The term "Independent Expert" for

a party shall be defined as any person (1) with whom counsel for a Party may deem it necessary
to consult concerning teclmical, financial, or other aspects of this case for the preparation of trial
thereof; (2) who is not a current or past employee of any Party; (3) who have not worked or will
not work in the foreseeable future with a Party on business matters, and (4) who has been cleared
to receive Confidential Information pursuant to this Paragraph. No Independent Expert may be
shown any Confidential Information until such person reads this Protective Order and agrees to
be bound by its terms by signing the form attached hereto as Exhibit A.
e.

Disclosure of Confidential Transcripts to the Deponent: Deposition

transcripts containing Confidential Information may be shown to the deponent for the purpose of
correction, but the deponent may not retain a copy of the transcript unless the deponent agrees to
be bound by this Protective Order by signing a copy of the acknowledgment form.
f.

Limited Exceptions:
(i)

Authors/Addressees: This Protective Order shall not apply to the

disclosure of documents, or the contents thereof, to persons who were the authors or
addressees of those documents or who are shown on the face of the document as having
received copies.
(ii)

Witnesses: If a document designated as Confidential Information

refers with particularity to a potential witness, the Parties' attorneys may show only the
relevant portion of that document to the potential witness in preparing that witness for his
or her testimony. If a document designated as Confidential Information refers generally

9

33

to a potential witness, the Parties' attorneys may discuss generally the relevant content of
the document without revealing the details of the document or showing the document to
the potential witness. If a party reveals Confidential Information of a non-party to a
potential witness under this paragraph, that fact must be disclosed in writing by email and
certified mail, return receipt requested, to counsel for the non-party that originally
designated the Confidential Information as soon as practicable in advance of the expected
testimony, but no later than five business days after such disclosure.

A person is

considered to be a "potential witness" if that person is listed by at least one party as a
person with knowledge of relevant facts, has been the subject of a pending deposition
notice or request, or is reasonably expected to testify at a hearing scheduled by the Court
or at trial.
(iii)

Certain Information Not Subject to Scope of Order: The

restrictions of this Protective Order shall not apply to information which (a) was, is, or
becomes public knowledge, not in violation of this Protective Order, or (b) was or is
acquired from a third party possessing such information and having no obligation of
confidentiality to the designating party, or (c) the receiving party can establish that the
information is in its rightful and lawful possession at the time of disclosure or is
developed independently by the receiving party without the use of Confidential
Information.
7.

Court Filings and Procedures: For applications and motions to the Court in

which a party submits Confidential Information:
a.

All

documents

containing

"Confidential,"

"Confidential-Outside

Counsel Only," or "Highly Confidential" information which are submitted to the Court shall be

10

34

filed with the Court in sealed envelopes or other appropriate sealed containers on which shall be
endorsed the title of the action to which it pertains, an indication of the nature of the contents of
the sealed envelope or other container, the word "CONFIDENTIAL" and a statement
substantially in the following form:
This envelope is filed under seal pursuant to a protective order of
the Court dated
, 2012 governing confidentiality
of documents and information obtained during the course of this
litigation. This envelope contains Confidential Information, and is
not to be opened or the contents revealed except by authorized
Court personneL
No separate motion shall be required to file Confidential
Information under seaL
b.

Any Court hearing that refers to or describes "Confidential," "Confidential

Outside Counsel Only," or "Highly Confidential" information shall, at the Court's discretion, be
held in camera or otherwise held in compliance with the applicable level of confidentiality,
including clearing the courtroom of business personnel, employees of parties, or the public.
c.

Notwithstanding the above, any party may apply to the Court for an order

allowing the filing of papers containing Confidential Information, if that party believes the filing
of the papers is necessary for a complete record. Any such papers shall be placed by the
submitting party in a sealed envelope labeled as set forth above. Any papers filed under seal
with the Court remain sealed upon dismissal or final judgment in this action and shall not be
unsealed unless the Court orders otherwise. If a Party seeks to file Confidential Information
originally designated by a non-party, that Party will provide advance written notice to the
original producing non-party identifying specifically what is expected to be filed, and the
anticipated date of filing. If the Party is unable to provide advance notice, then it must provide
the original producing non-party with notice within five business days after the filing has been
completed.
11

35

d.

Any document or transcript designated as "Confidential Pursuant to Court

Order" or "Confidential," "Confidential-Outside Counsel Only," or "Highly Confidential" that
is lodged or filed with the Court shall be maintained under seal by the Clerk and shall be made
available only to the Court and to counsel for the Parties, until further order of this Court.
8.

Resolution of Disputes: Whenever a party objects to the treatment of a document

or transcript as "Confidential," "Confidential--Outside Counsel Only," or "Highly Confidential"
as defined herein, it shall, in writing, so inform the party seeking the confidential treatment, The
party objecting to such treatment may thereafter, upon at least five (5) days' written notice (or
one days' notice if for an evidentiary hearing to be held within two weeks from the date of the
production), apply to the Court by motion for a ruling that the document or transcript at issue
should not be treated as "Confidential," "Confidential Outside Counsel Only," or "Highly
Confidential." Such a motion shall be made within a reasonable period of time, after notice of the
objection to a "Confidential," "Confidential Outside Counsel Only," or "Highly Confidential"
designation is given. The designating party shall have the burden of proving the information is
confidential. The prevailing party upon such motion shall be entitled to recover reasonable
attorneys' fees and costs unless the Court shall determine that the opposition was substantially
justified. Until the Court enters an Order, if any, changing the designation of the document or
transcript that is to be the subject of the application, it shall be afforded the treatment described
herein for its designation.
9.

Conclusion of Litigation: At the conclusion of this litigation (or upon its final

adjudication after all appeals are exhausted), all copies of all documents or transcripts designated
"Confidential," "Confidential-outside Counsel Only," or "Highly Confidential" and any copies
thereof shall either be destroyed or returned to the party or person furnishing the same at the

12

36

designation of the producing party.

In addition, all copies of sununaries or other materials

containing or disclosing information contained in "Confidential," "Confidential-Outside
Counsel Only," or "Highly Confidential" documents or manuscripts shall be either destroyed or
returned to the party or person furnishing the same at the designation of the producing party. In
the event ·that a party chooses destruction of documents, summaries, transcripts, or other
materials in accordance with this Section 9, prompt, written notice shall be given to the party or
person originally furnishing the documents, sununaries, transcripts, or other materials certifying
to the furnishing party or person tbat the destruction has been completed. This Order shall
continue to be binding after the conclusion of this litigation. The Court shall conduct a Rule 76a
hearing on September 24, 2012, or at another date set by the Court, to determine issues
concerning the permanent sealing or destruction of documents used as exhibits and/or offered
into evidence.
Based on the foregoing stipulation, and good cause appeanng therefore, the Court
approves this Second Amended Confidentiality Stipulation and Protective Order governing the
protection and exchange of documents and confidential material.
SO ORDERED.
DATED: this

ooe-dayof~

'2012.

rbONALD { C0SBY
JUDGE PRESIDING

13

37

EXHIBIT A
ACKNOWLEDGMENT AND AGREEMENT
TO BE BOUND BY PROTECTIVE ORDER
I ------------------------'

declare under

penalty of peJjury that I have read in its entirety the Protective Order entered in the lawsuit
captioned American Airlines, Inc. v. Sabre Inc., Sabre Holdings Corporation, and Sabre Travel
International Limited, No. 067-249214-10, in the 67th Judicial District Court of Tarrant County,

Texas, and I agree to be bound by its terms.
DATED: _____________________

BY: _________________________

1234295.v2

38

Falls, Craig
From:
Sent:
To:
Cc:
Subject:

Fusco, Sandra [[e-mail]]
Wednesday, June 27, 2012 9:19 AM
Pentz, Justin; Garcia, Yolanda; Steven J. Kaiser ([e-mail]); 'Larry C. WorkDembowski' ([e-mail]); Feeney, Carolyn; EXT
[e-mail]; [e-mail]
Pace, Christopher; Weiner, Michael; Falls, Craig
RE: Proposed revision to federal protective order

Justin,
We believe the change we have requested below is necessary because the current language does not explicitly provide
what was intended, i.e., signatories to the order are not prevented from disclosing information that the Receiving Party
(1) acquired from a third-party with no obligation to the designating party or (2) that the Receiving Party already had in
its possession or developed independently without the use of Confidential information. The procedure of requiring the
Receiving Party to go before the Court or obtain consent from the Supplying Party when either case is involved imposes
a needless and undue burden, particularly on non-parties such as experts. Moreover, paragraph 30 addresses a
“party’s” right to use its Confidential Information in any manner it sees fit, but does not appear to provide the same
protections to other signatories to the protective order, which makes the changes we have proposed all the more
sensible and important to enact. Therefore, we believe that the protective order as written is overbroad (particularly as
to experts and other non-parties) and request the modification proposed below. We hope that you and the other
parties will agree to this minor change, but will be forced to seek relief from the Court if you do not.
Sincerely,

Sandra Fusco
Weil, Gotshal & Manges LLP
200 Crescent Court, Suite 300
Dallas, TX 75201-6950
[e-mail]
[phone] Direct
[phone] Fax
From: Pentz, Justin [mailto:[e-mail]]
Sent: Monday, June 25, 2012 9:59 PM
To: Garcia, Yolanda; Steven J. Kaiser ([e-mail]); 'Larry C. Work-Dembowski' ([e-mail]);
Feeney, Carolyn; [e-mail]; [e-mail]
Cc: Fusco, Sandra; Pace, Christopher; Weiner, Michael; Falls, Craig
Subject: RE: Proposed revision to federal protective order
Yolanda,
We do not understand why it is necessary to make the revision you propose below to the First Amended Stipulated
Protective Order entered by the Court on March 20, 2012. Paragraph 10 of that order appropriately provides that
disclosure of Travelport’s Confidential Information or Outside Attorneys’ Eyes Only Information requires either Travelport’s
consent or a court order. If American has a basis for challenging a particular designation, then paragraph 17 sets forth
the appropriate procedure to be followed. And paragraph 30 of the protective order expressly states that: “Nothing
contained in this Protective Order shall preclude any party from using its own Confidential Information or Outside
Attorneys’ Eyes Only Information in any manner it sees fit, without prior consent of any party or the Court.”

Travelport Appendix
Exhibit 3

1

39

We are happy to discuss these issues further if you wish, but absent further explanation as to why AA’s proposed
modification to the protective order is necessary or desirable, Travelport opposes the proposed modification.
Justin N. Pentz
Dechert LLP
[phone] Direct
[phone] Fax
[e-mail]
www.dechert.com

From: Garcia, Yolanda [mailto:[e-mail]]
Sent: Monday, June 18, 2012 12:49 PM
To: Steven J. Kaiser ([e-mail]); 'Larry C. Work-Dembowski' ([e-mail]); Feeney, Carolyn;
Pentz, Justin; EXT [e-mail]; [e-mail]
Cc: Fusco, Sandra; Pace, Christopher
Subject: FW: Proposed revision to federal protective order

All:
American would like to propose a small revision to the federal protective order to make it match the state protective
order, while not changing the substantive obligations of the parties. The change is to paragraph 10 and is pasted below.
Nothing shall prevent disclosure of Confidential Information beyond the terms of this Protective Order (a) if the
Supplying Party (or its counsel) consents in writing to such disclosure, (b) if a Supplying Party knowingly discloses its own
Confidential Information in a public or non-redacted pleading filed in the Court’s public record or in a publication
disseminated to the general public, or (c) if the Court, after reasonable written notice to counsel for all the parties, and
after an opportunity to be heard by counsel for the Supplying Party, orders such disclosure., (d) if the Confidential
Information was or is acquired from a third party possessing such information and having no obligation of confidentiality
to the designating party, or (e) if the Receiving Party can establish that the Confidential Information is in its rightful and
lawful possession at the time of disclosure or is developed independently by the Receiving Party without the use of
Confidential Information.
I’ve attached a redline for your review as well. Please let me know if this change is acceptable.
Yolanda

The information contained in this email message is intended only for use of the individual or entity named above. If the
reader of this message is not the intended recipient, or the employee or agent responsible to deliver it to the intended
recipient, you are hereby notified that any dissemination, distribution or copying of this communication is strictly
prohibited. If you have received this communication in error, please immediately notify us by email, [e-mail],
and destroy the original message. Thank you.

This e-mail is from Dechert LLP, a law firm, and may contain information that is confidential or privileged. If
you are not the intended recipient, do not read, copy or distribute the e-mail or any attachments. Instead, please
notify the sender and delete the e-mail and any attachments. Thank you.

2

40

Falls, Craig

Cc:
Subject:
Attachments:

Fusco, Sandra [[e-mail]]
Friday, June 29, 2012 5:15 PM
Pentz, Justin; Garcia, Yolanda; Steven J. Kaiser ([e-mail]); 'Larry C. WorkDembowski' ([e-mail]); Feeney, Carolyn; EXT
[e-mail]; [e-mail]
Pace, Christopher; Weiner, Michael; Falls, Craig
RE: Proposed revision to federal protective order
Redline - 44042398-v1 and 44042398-v2.docx; 44042398-v2.docx

Follow Up Flag:
Flag Status:

Follow up
Flagged

From:
Sent:
To:

Counsel,
We have not heard back from you on American’s proposed modification to the federal Protective Order. Mr. Myers,
American’s testifying expert, upon reading the Federal Protective Order before executing it, became concerned that the
Federal Protective Order does not contain the same language as the state protective order explicitly stating what is
plainly implied - that information independently obtained is not covered by the various prohibitions in the protective
order. We ask that you agree to this simple revision that we have proposed, which mirrors the language of the state
protective order. If we don’t hear from you by Monday at 11 am Central, we will be forced to seek the Court’s
assistance to make what we believe is a minor and straight-forward modification.
Sincerely,

Sandra Fusco
Weil, Gotshal & Manges LLP
200 Crescent Court, Suite 300
Dallas, TX 75201-6950
[e-mail]
[phone] Direct
[phone] Fax
From: Fusco, Sandra
Sent: Wednesday, June 27, 2012 8:19 AM
To: 'Pentz, Justin'; Garcia, Yolanda; Steven J. Kaiser ([e-mail]); 'Larry C. Work-Dembowski' ([e-mail]); Feeney, Carolyn; [e-mail]; [e-mail]
Cc: Pace, Christopher; Weiner, Michael; Falls, Craig
Subject: RE: Proposed revision to federal protective order

Justin,
We believe the change we have requested below is necessary because the current language does not explicitly provide
what was intended, i.e., signatories to the order are not prevented from disclosing information that the Receiving Party
(1) acquired from a third-party with no obligation to the designating party or (2) that the Receiving Party already had in
its possession or developed independently without the use of Confidential information. The procedure of requiring the
Receiving Party to go before the Court or obtain consent from the Supplying Party when either case is involved imposes
a needless and undue burden, particularly on non-parties such as experts. Moreover, paragraph 30 addresses a

Travelport Appendix
Exhibit 4

1

41

“party’s” right to use its Confidential Information in any manner it sees fit, but does not appear to provide the same
protections to other signatories to the protective order, which makes the changes we have proposed all the more
sensible and important to enact. Therefore, we believe that the protective order as written is overbroad (particularly as
to experts and other non-parties) and request the modification proposed below. We hope that you and the other
parties will agree to this minor change, but will be forced to seek relief from the Court if you do not.
Sincerely,

Sandra Fusco
Weil, Gotshal & Manges LLP
200 Crescent Court, Suite 300
Dallas, TX 75201-6950
[e-mail]
[phone] Direct
[phone] Fax
From: Pentz, Justin [mailto:[e-mail]]
Sent: Monday, June 25, 2012 9:59 PM
To: Garcia, Yolanda; Steven J. Kaiser ([e-mail]); 'Larry C. Work-Dembowski' ([e-mail]);
Feeney, Carolyn; [e-mail]; [e-mail]
Cc: Fusco, Sandra; Pace, Christopher; Weiner, Michael; Falls, Craig
Subject: RE: Proposed revision to federal protective order
Yolanda,
We do not understand why it is necessary to make the revision you propose below to the First Amended Stipulated
Protective Order entered by the Court on March 20, 2012. Paragraph 10 of that order appropriately provides that
disclosure of Travelport’s Confidential Information or Outside Attorneys’ Eyes Only Information requires either Travelport’s
consent or a court order. If American has a basis for challenging a particular designation, then paragraph 17 sets forth
the appropriate procedure to be followed. And paragraph 30 of the protective order expressly states that: “Nothing
contained in this Protective Order shall preclude any party from using its own Confidential Information or Outside
Attorneys’ Eyes Only Information in any manner it sees fit, without prior consent of any party or the Court.”
We are happy to discuss these issues further if you wish, but absent further explanation as to why AA’s proposed
modification to the protective order is necessary or desirable, Travelport opposes the proposed modification.
Justin N. Pentz
Dechert LLP
[phone] Direct
[phone] Fax
[e-mail]
www.dechert.com

From: Garcia, Yolanda [mailto:[e-mail]]
Sent: Monday, June 18, 2012 12:49 PM
To: Steven J. Kaiser ([e-mail]); 'Larry C. Work-Dembowski' ([e-mail]); Feeney, Carolyn;
Pentz, Justin; EXT [e-mail]; [e-mail]
Cc: Fusco, Sandra; Pace, Christopher
Subject: FW: Proposed revision to federal protective order

All:
2

42

American would like to propose a small revision to the federal protective order to make it match the state protective
order, while not changing the substantive obligations of the parties. The change is to paragraph 10 and is pasted below.
Nothing shall prevent disclosure of Confidential Information beyond the terms of this Protective Order (a) if the
Supplying Party (or its counsel) consents in writing to such disclosure, (b) if a Supplying Party knowingly discloses its own
Confidential Information in a public or non-redacted pleading filed in the Court’s public record or in a publication
disseminated to the general public, or (c) if the Court, after reasonable written notice to counsel for all the parties, and
after an opportunity to be heard by counsel for the Supplying Party, orders such disclosure., (d) if the Confidential
Information was or is acquired from a third party possessing such information and having no obligation of confidentiality
to the designating party, or (e) if the Receiving Party can establish that the Confidential Information is in its rightful and
lawful possession at the time of disclosure or is developed independently by the Receiving Party without the use of
Confidential Information.
I’ve attached a redline for your review as well. Please let me know if this change is acceptable.
Yolanda

The information contained in this email message is intended only for use of the individual or entity named above. If the
reader of this message is not the intended recipient, or the employee or agent responsible to deliver it to the intended
recipient, you are hereby notified that any dissemination, distribution or copying of this communication is strictly
prohibited. If you have received this communication in error, please immediately notify us by email, [e-mail],
and destroy the original message. Thank you.

This e-mail is from Dechert LLP, a law firm, and may contain information that is confidential or privileged. If
you are not the intended recipient, do not read, copy or distribute the e-mail or any attachments. Instead, please
notify the sender and delete the e-mail and any attachments. Thank you.

3

43

Falls, Craig
From:
Sent:
To:
Cc:
Subject:

Fusco, Sandra [[e-mail]]
Friday, June 29, 2012 7:15 PM
Pentz, Justin; Feeney, Carolyn; Weiner, Michael; Falls, Craig
Pace, Christopher; Garcia, Yolanda
Federal Protective Order- disclosure

Counsel,
In preparing for the Federal expert report deadline, American realized that its expert, Monty Myers, had not yet
executed the Federal Protective Order. Fortunately, nearly all documents Mr. Myers had reviewed were covered by the
state protective order. However, he did review a few Travelport documents that apparently have not yet been deemed
produced in the state case. Specifically, Mr. Myers reviewed Travelport’s responses to American’s Second Set of
Interrogatories, Scott Hyden’s deposition transcript, and Travis Christ’s deposition transcript. If you have any questions,
then please let us know.
Sincerely,
Sandy

Sandra Fusco
Weil, Gotshal & Manges LLP
200 Crescent Court, Suite 300
Dallas, TX 75201-6950
[e-mail]
[phone] Direct
[phone] Fax

The information contained in this email message is intended only for use of the individual or entity named above. If the
reader of this message is not the intended recipient, or the employee or agent responsible to deliver it to the intended
recipient, you are hereby notified that any dissemination, distribution or copying of this communication is strictly
prohibited. If you have received this communication in error, please immediately notify us by email, [e-mail],
and destroy the original message. Thank you.

Travelport Appendix
Exhibit 5

1

44

Falls, Craig
From:
Sent:
To:
Cc:
Subject:

Feeney, Carolyn
Monday, July 02, 2012 10:24 AM
Fusco, Sandra; Pentz, Justin; Weiner, Michael; Falls, Craig
Pace, Christopher; Garcia, Yolanda
RE: Federal Protective Order- disclosure

Sandy
American’s flagrant violation of the protective order is a very serious matter, and it raises several concerns:


First, how long has American known about this situation, and why was it not brought to our attention earlier?



Second, has Mr. Myers further disseminated Travelport’s confidential or outside attorneys’ only information to
anyone who is not entitled to access such information under the express terms of the federal protective order?



Third, it appears from your emails that Mr. Myers still has not signed an Exhibit A nor otherwise agreed to be
bound by the protective order. Why not? Under the circumstances, his retention and use of any Travelport
confidential or outside attorneys’ only information for purposes of this case is a continuing violation of the
protective order that must be remedied immediately.



Fourth, you suggest but do not expressly state that Mr. Myers signed an Exhibit A to the protective order in the
Tarrant County case. Please confirm that he has done so.



Fifth, your email suggests that American believes that Mr. Myers’ use of Travelport confidential material
covered by the Tarrant County protective order to prepare an expert report in the federal case is permitted. It is
not. The Tarrant County protective order governs the use of confidential material in the Tarrant County case
between American and Sabre. The federal protective order governs the use of Travelport’s confidential
information, including outside attorneys’ only information, in this matter. Therefore, the fact that Mr. Myers
may have signed an Exhibit A to the protective order in the Tarrant County case does not authorize him to use
Travelport’s confidential or outside attorneys’ only information for purposes of this case. See Paragraph 5 of the
Second Amended Confidentiality Stipulation and Protective Order in the Tarrant County case.

As for your request to amend paragraph 10 of the federal protective order – a request that it now appears was
motivated by your violation of that protective order – we cannot consent. First, your suggested modifications to
paragraph 10 are unnecessary. Your proposed clause (d) would allow the disclosure of “Confidential Information that
was or is acquired from a third party possessing such information and having no obligation of confidentiality to the
designating party,” and proposed clause (e) would allow the disclosure of Confidential Information “if the Receiving
Party can establish that the Confidential Information is in its rightful and lawful possession at the time of disclosure or is
developed independently by the Receiving Party without the use of Confidential Information.” If your suggestion is that
the possession of the information by a third party or the Receiving Party somehow makes the Designating Party’s
designation inappropriate, the Receiving Party already has the ability to challenge the designation under paragraph 17.
Second, your proposed modifications are potentially harmful. Your proposed clause (d) would allow disclosure of
confidential information even if the third party has no lawful right to possess the confidential information. For example,
proposed clause (d) would authorize the disclosure of Travelport’s confidential information even if obtained from a
thief. Your proposed clause (e) is equally problematic. Who decides whether the Receiving Party has established that a
particular piece of confidential information is in the Receiving Party’s rightful and lawful possession and/or was
developed independently without the use of Confidential Information? That assessment must be made by the
Designating Party or the Court, and thus clauses (a) and (c) of the existing protective order already address the issue.

Travelport Appendix
Exhibit 6

1

45

Third, we do not understand how any of these changes, even if applied retroactively, would cure American’s violations
of the protective order with respect to Mr. Myers. Surely, American is not suggesting that it developed independently,
without the use of Confidential Information, Travelport’s interrogatory responses, or the deposition testimony of
Travelport witnesses? Is American suggesting that it was in the lawful possession of Travelport’s confidential
information at the time of disclosure to Mr. Myers because that information had been deemed produced to American in
Tarrant County? If so, the entire federal case protective order would be rendered meaningless. And there is still the
separate matter of American’s violation of the use restriction in the Tarrant County protective order. The possibility of
this kind of abuse is exactly why American’s proposed changes to the protective order are so problematic.
Please respond to the questions and concerns identified above no later than the close of business on Monday, July 2.
Regards,
Carrie

From: Fusco, Sandra [mailto:[e-mail]]
Sent: Friday, June 29, 2012 7:46 PM
To: Pentz, Justin; Feeney, Carolyn; Weiner, Michael; Falls, Craig
Cc: Pace, Christopher; Garcia, Yolanda
Subject: RE: Federal Protective Order- disclosure

I neglected to add that Mr. Myers no longer has access to this information until this issue is resolved.
Sincerely,
Sandy

Sandra Fusco
Weil, Gotshal & Manges LLP
200 Crescent Court, Suite 300
Dallas, TX 75201-6950
[e-mail]
[phone] Direct
[phone] Fax
From: Fusco, Sandra
Sent: Friday, June 29, 2012 6:15 PM
To: 'Pentz, Justin'; 'Feeney, Carolyn'; 'Weiner, Michael'; 'Falls, Craig'
Cc: Pace, Christopher; Garcia, Yolanda
Subject: Federal Protective Order- disclosure

Counsel,
In preparing for the Federal expert report deadline, American realized that its expert, Monty Myers, had not yet
executed the Federal Protective Order. Fortunately, nearly all documents Mr. Myers had reviewed were covered by the
state protective order. However, he did review a few Travelport documents that apparently have not yet been deemed
produced in the state case. Specifically, Mr. Myers reviewed Travelport’s responses to American’s Second Set of
Interrogatories, Scott Hyden’s deposition transcript, and Travis Christ’s deposition transcript. If you have any questions,
then please let us know.
2

46

Sincerely,
Sandy

Sandra Fusco
Weil, Gotshal & Manges LLP
200 Crescent Court, Suite 300
Dallas, TX 75201-6950
[e-mail]
[phone] Direct
[phone] Fax

The information contained in this email message is intended only for use of the individual or entity named above. If the
reader of this message is not the intended recipient, or the employee or agent responsible to deliver it to the intended
recipient, you are hereby notified that any dissemination, distribution or copying of this communication is strictly
prohibited. If you have received this communication in error, please immediately notify us by email, [e-mail],
and destroy the original message. Thank you.

3

47

Falls, Craig
From:
Sent:
To:
Cc:
Subject:

Fusco, Sandra [[e-mail]]
Monday, July 02, 2012 11:19 PM
Feeney, Carolyn; Pentz, Justin; Weiner, Michael; Falls, Craig
Pace, Christopher; Garcia, Yolanda
Federal Protective Order- disclosure

CarrieThe amendment suggested by American is straightforward and quite common. Indeed, Sabre agreed to essentially the
same language in the state litigation and Travelport invoked that protective order for nearly its entire federal
production. Travelport's outright refusal to consent or even consider the proposal is part and parcel of its pattern of
hardball litigation tactics leading to needless motion practice. Moreover, Travelport's response is pure gamesmanship,
particularly given Travelport's prior request to amend the Federal Protective Order to ensure that it did not need to
disclose its experts before the disclosure deadline and counsel's statements to American that the amendment would
benefit only Travelport in view of the state protective order and Travelport's production in the state case.
As for Travelport's concerns, they are unfounded because neither Mr. Myers nor anyone assisting him has disseminated
any party’s confidential or outside attorneys’ only information to anyone who is not entitled to access such information
under the express terms of the federal protective order. Moreover, Mr. Myers will agree to be bound by the Federal
Protective Order going forward, subject to the proposed modifications. In any event, until recently, American had
mistakenly believed that Mr. Myers had executed the Federal Protective Order. From Mr. Myers’ perspective, he was
until recently focused on the Tarrant County case, in which he had properly executed the exhibit to the Protective Order
last year. Moreover, he had understood that the material in his possession was subject to the Protective Order in the
Tarrant County case (which was in fact the case as to almost all documents he had received). When we realized that
Exhibit A of the Federal Protective Order had not been signed, we took steps to ensure compliance with the Federal
Protective Order and American presently is in compliance with it.
In sum, Travelport's arguments against the proposed clarifying amendment are clearly unfounded. The amendment
simply excludes from the strictures of the protective order that which is already implicitly excluded, i.e., information
independently and lawfully obtained by the recipient. We hope that Travelport will reconsider its opposition to avoid
needless motion practice.
Sincerely,
Sandy

Sandra Fusco
Weil, Gotshal & Manges LLP
200 Crescent Court, Suite 300
Dallas, TX 75201-6950
[e-mail]
[phone] Direct
[phone] Fax

Travelport Appendix
Exhibit 7

1

48

The information contained in this email message is intended only for use of the individual or entity named above. If the
reader of this message is not the intended recipient, or the employee or agent responsible to deliver it to the intended
recipient, you are hereby notified that any dissemination, distribution or copying of this communication is strictly
prohibited. If you have received this communication in error, please immediately notify us by email, [e-mail],
and destroy the original message. Thank you.

2

49

Falls, Craig
From:
Sent:
To:
Cc:
Subject:

Falls, Craig
Monday, July 09, 2012 7:04 PM
'Fusco, Sandra'; '[e-mail]'; Garcia, Yolanda
Weiner, Michael; Feeney, Carolyn; Pentz, Justin
AA's Emergency Motion to Amend the Protective Order

Sandy,
Your motion to amend the Protective Order [Doc. 363] states that you seek clarification that the Protective Order “does
not restrict the disclosure or use of information already known to, or independently obtained by, a recipient of material
designated under the Protective Order.” We do not believe that this needs to be clarified, as it is already explicit in the
Protective Order that a Supplying Party can only designate as Confidential or Outside Attorneys’ Eyes Only materials the
Supplying Party produces (See paragraphs 3, 6, 11), and as you note in your brief, the use restrictions of paragraphs 9
and 14 apply to information that is known to the Receiving Party by virtue of disclosure by the Supplying Party, and the
disclosure provisions of paragraphs 8, 12, and 15 all relate to “Confidential Information,” “Outside Attorneys’ Eyes Only
Information” and “Designated Materials,” each of which refer to information that a Supplying Party produces or
provides, not information that the Receiving Party acquires from means other than a Supplying Party.
We continue to believe that AA’s proposed edits to Paragraph 10 are problematic because Paragraph 10 does not
address a Receiving Party’s ability to disclose its own information. Rather, it addresses a Receiving Party’s ability to
disclose ‘Confidential Information” (or by operation of Paragraph 12, “Outside Attorneys’ Eyes Only Information”) that a
Supplying Party produced, and notwithstanding the Supplying Party’s designations. If your intent is to clarify the
Receiving Party’s ability to use its own information, Paragraph 10 is not the appropriate vehicle for that.
In the interests of resolving this dispute, Travelport offers that, in lieu of your proposed revisions to Paragraph 10, that
Paragraph 30 be amended as follows.
30.
Nothing contained in this Protective Order shall preclude any party from using its own
Confidential Information or Outside Attorneys’ Eyes Only Information in any manner it sees fit, without
prior consent of any party or the Court. Information that a Receiving Party acquired or acquires
through means other than through disclosure of Confidential Information or Outside Attorneys’ Eyes
Only Information by a Supplying Party does not become Confidential Information or Outside Attorneys’
Eyes Only Information for the purposes of this Protective Order on the basis that a Supplying Party
produces Designated Materials containing the same information. A Receiving Party possessing or
acquiring information other than through disclosure by a Supplying Party may use or disclose that
information without prior consent of any party or the Court, but may not, under any circumstance, use
or disclose Confidential Information, Outside Attorneys’ Eyes Only Information, or Designated Materials
produced by a Supplying Party except as provided by the terms of this Protective Order. If a Supplying
Party knowingly discloses its own Confidential Information or Outside Attorneys’ Eyes Only Information
in a public or non-redacted pleading filed in the Court’s public record or in a publication disseminated
to the general public, the Supplying Party shall be deemed thereby to have consented to the removal of
that designation with respect to the information disclosed.
Travelport remains concerned about AA’s disclosure of Travelport’s Designated Materials to Mr. Myers and his
continued refusal to sign the First Amended Stipulated Protective Order. By offering the compromise above, Travelport
does not waive any of Travelport’s rights to enforce the provisions of protective order in the Northern District of Texas
case or in the Tarrant County case.
In light of the expedited briefing schedule, we must file our brief this evening in response to your motion, but we
welcome discussions with you about a resolution to which all parties can agree.

Travelport Appendix
Exhibit 8

1

50

Regards,
Craig

Craig G. Falls
Associate
Dechert LLP
1775 I Street NW
Washington, DC 20006
[phone] Direct
[phone] Fax
[e-mail]
www.dechert.com

2

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