Universal Delaware v. Ceridian

Filing 61

PROTECTIVE ORDER Consistent with the 52 referral from the District Judge on September 17, 2009, and after reviewing the submissions from counsel for the parties and from non-party Flying J, the court enters a protective order for Flying J Designated Material which is produced in Universal Delaware Inc. v. Comdata Corp., No. 07-1078-JKG-HSP (E.D. Pa.). Signed by Magistrate Judge David Nuffer on October 12, 2009. (DN)

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH CENTRAL DIVISION PROTECTIVE ORDER FOR CONFIDENTIAL INFORMATION OR HIGHLY CONFIDENTIAL INFORMATION THAT MAY BE PRODUCED IN RESPONSE TO THIRD-PARTY SUBPOENAS IN THE UNIVERSAL DELAWARE CLASS ACTION PENDING IN THE U.S. DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA
D. Utah Case No.: 2:09cv0169 DB-DN

UNIVERSAL DELAWARE, INC., et al., on behalf of themselves and others similarly situated, Plaintiffs, v. COMDATA CORPORATION, et al., Defendants.

Judge Dee Benson Magistrate Judge David Nuffer
Originating Court: Eastern District of Pennsylvania, Case No. 07-1078 (JKG)

Pursuant to Fed. R. Civ. P. 45(c), the Magistrate Judge's June 23, 2009 Ruling & Order, and the submissions of the parties to the lawsuit captioned Universal Delaware Inc. v. Comdata Corp., No. 07-1078-JKG-HSP (E.D. Pa.) (the "Universal Delaware Lawsuit"), and non-party Rule 45 subpoena recipient, Flying J Inc. and its affiliates (collectively referred to here as "Flying J"), the Court hereby enters the following protective order ("Protective Order"). The purpose of this Protective Order is to protect and maintain the confidentiality of Confidential Information and Highly Confidential Information that is produced by Flying J or its affiliates, or provided in deposition testimony, in response to Rule 45 document subpoenas or Rule 45 deposition subpoenas issued by the parties to the Universal Delaware Lawsuit (referred to in this Order as "Flying J Designated Material").

1.

The Court hereby incorporates by reference and adopts as part of the terms

of this Protective Order, certain provisions from the Amended Stipulated Protective Order (Dkt. 60, entered February 20, 2008­copy attached hereto as Exhibit B) (the "Pennsylvania Protective Order") entered by the U.S. District Court for the Eastern District of Pennsylvania in the Universal Delaware Lawsuit, with the modifications described below that supersede the terms of that order with respect to Flying J Designated Material: A. Pennsylvania Protective Order Paras. 1 &2 ("Scope of Order" &

"Applicability"): No change except that this Protective Order applies to Flying J Designated Material. B. Pennsylvania Protective Order Paras. 3 & 4 ("Designation of

Confidential Material" and "Designation of Highly Confidential Material"): Paragraphs 3 and 4 are supplemented to provide that: Flying J and its affiliates may initially designate any or all confidential documents as Highly Confidential Material (Flying J Designated Material), regardless of the definitions in Paragraphs 3 and 4 in order to avoid the expense of having lawyers analyze whether individual documents qualify for the lower level of Confidential Material. C. Pennsylvania Protective Order Para. 5 ("Exercise of Restraint and Care

in Designating Material for Protection"): Paragraph 5 of the Pennsylvania Protective Order is not applicable here in light of the parties' agreement in Section 1.B, above, of this Protective Order.

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D.

Pennsylvania Protective Order Paras. 6, 7 & 8 ("Persons Who May

Access Confidential Material," "Persons Who May Access Highly Confidential Material," and "Application of This Protective Order . . ."): No change except i. To recite that Flying J Designated Material whether designed

Highly Confidential Information or Confidential Information will not under any circumstances be produced or disclosed to the Universal Delaware named Plaintiffs, the class members who those named Plaintiffs represent, or any employees of Comdata. ii. Each person who receives or is allowed to see Flying J Designated

Material (other than employees of Flying J who provide deposition testimony) must receive a copy of this Protective Order and sign a copy of the version of Exhibit A attached to this Protective Order. iii. The references to "Court" in Paragraphs 6 & 7 of the Pennsylvania

Protective Order, for purposes of identifying the decision maker about possible additional disclosure of Flying J Designated Material shall refer to this Court, the U.S. District Court for the District of Utah. Any decision about possible additional disclosure of Flying J Designated Material beyond that permitted in this Protective Order shall be made by this Court, the U.S. District Court for the District of Utah. iv. The outside counsel authorized to receive and review such Flying J

Designated Material will be limited to the attorneys (along with their support staff) employed by the law firms designated as interim Co-Lead Counsel or as Executive Committee members by the United States District Court for the Eastern

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District of Pennsylvania by order dated January 31, 2008 [Dkt. No. 50] who are involved in the Universal Delaware Lawsuit -- Eric. L. Cramer, Peter Kohn, Andrew C. Curley, Candice Enders and Ellen Noteware from BERGER & MONTAGUE, P.C.; Joseph R. Saveri, Christopher Coleman and Dean Harvey from LIEFF CABRASER HEIMANN & BERNSTEIN, LLP; Stephen Neuwirth and Dale Oliver from QUINN EMANUEL URQHART OLIVER & HEDGES, LLP; David Balto and Brad Wasser from the LAW OFFICES OF DAVID BALTO; Joshua P. Davis from the LAW OFFICES OF JOSHUA P. DAVIS; and Stuart McCluer from MCCULLEY MCCLUER PLLC.. Each of these individuals will sign a copy of the Declaration attached as Exhibit A to this Protective Order before receiving Flying J Designated Material. v. Before disclosing Flying J Designated Material to outside experts

or consultants under Paragraph 7(b) of the Pennsylvania Protective Order for the first time, the Universal Delaware Plaintiffs or Comdata must provide written notice to Flying J's outside counsel and allow Flying J an opportunity to object to disclosure of Flying J Designated Material to such outside experts or consultants. a. That written notice shall include: (i) a signed copy of the

Declaration attached as Exhibit A to this Protective Order; and (ii) a curriculum vitae or equivalent resume setting forth that expert's or consultant's present residence and business address(es), current employer, job title, and present or past relationship(s) with any Party. The list shall disclose the name and address of each such entity for which consulting work is being, or has been performed, and the general subject matter of

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that consulting work. If disclosure of either the identity of the entity for which the work is being performed or the subject matter of that work, or both, is deemed proprietary, then the fact that certain information is being withheld on the basis that it is proprietary shall be disclosed, and any such information that is not deemed proprietary shall be disclosed. b. Flying J shall be entitled to object to such disclosure to the expert

or consultant within ten (10) calendar days after receipt of written notice by stating specifically in writing the reasons why such expert or consultant should not receive the Flying J Designated Material. Flying J's consent permitting disclosure of its confidential information to a retained expert of the other party shall not be unreasonably withheld. c. The Party wishing to disclose Flying J Designated Material to an

expert or consultant to whom a written objection has been made has the burden to apply to this Court for an order that such disclosure is proper. d. No disclosure of Flying J Designated Material shall be made to the

proposed expert or consultant until the time for serving objections to that expert or consultant has passed, or, in the event that a written objection is timely served, until the time and in such manner as the Parties have resolved the objection by agreement, or until the Court has made a ruling thereon, and then, only in accordance with such ruling. e. This Court (the U.S. District Court for the District of Utah) will

resolve any disputes concerning allowing particular experts to see Flying J Designated Material.

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E.

Pennsylvania Protective Order Para. 9 ("Filing Documents Containing

Confidential or Highly Confidential Material"): Paragraph 9 of the Pennsylvania Protective Order is modified to also provide that: i. the phrase in Paragraph 9 stating: "until such time as the Court orders

otherwise, or denies permission to file under seal" is amended to read "until such time as the Court, after ten (10) calendar days notice to Flying J, orders otherwise or denies permission to file under seal"; ii. any time one of the Universal Delaware parties files any Flying J

Designated Material, or highly confidential information derived from it, with the Pennsylvania court under seal, that party must also immediately notify Flying J's counsel of the filing and provide a complete copy of the filing to such counsel by both email and first-class mail. F. Pennsylvania Protective Order Para. 10 ("Production of Documents and

Other Material . . ."): No change. G. Pennsylvania Protective Order Para. 11 ("Use of Confidential or Highly

Confidential Material at Depositions"): Paragraph 11 is modified for this Protective Order to state as follows: 11. If counsel for any party wish to disclose Flying J Designated Material to

any fact witness who is not a current or former employee of Flying J, or who did not create or receive the particular Flying J Designated Material, such counsel shall deliver by email and first-class mail a copy of such Flying J Designated Material to Flying J's counsel at least five (5) business days before the start of the deposition(unless more than fifty pages of printed documentation or an equivalent

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amount of data is to be used in which case notice shall be given at least ten (10) business days before the start of the deposition), along with a letter explaining why counsel contends such disclosure of Flying J Designated Material is appropriate in connection with testimony by that deposition witness. If Flying J's counsel objects to the proposed use at the deposition of the Flying J Designated Material, the document may not be shown to the witness, and its contents will not be disclosed to the witness, without leave of this Court (the U.S. District Court for the District of Utah). H. Pennsylvania Protective Order Paras. 12 &13 ("Use of Confidential or

Highly Confidential Material at Trial or Hearing" & "No Waiver of Privilege"): No change except to add to Paragraph 12 a requirement that: At least ten (10) business days before the start of the trial or hearing counsel for any party wishing to disclose Flying J Designated Material to any fact witness who is not a current or former employee of Flying J, or who did not create or receive the particular Flying J Designated Material, such counsel shall deliver by email and first-class mail a copy of such Flying J Designated Material to Flying J's counsel with a letter explaining why counsel contends such disclosure of Flying J Designated Material is appropriate and in what context the Flying J Designated Material will be used at the trial or hearing. If Flying J's counsel objects to the proposed use of the Flying J Designated Material, the document may not be used at the trial or hearing without leave of this Court (the U.S. District Court for the District of Utah).

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I.

Pennsylvania Protective Order Para. 14 ("Challenging Confidentiality No change, except that all references in Paragraph 14 of the

Designations"):

Pennsylvania Protective Order to the "Designating Party" shall be construed as referring to Flying J and all references to the "Court" shall be construed as meaning the U.S. District Court for the District of Utah. J. Pennsylvania Protective Order Para. 15 ("Modification of the

Protective Order"): No change, except that for purposes of this Protective Order (not the Pennsylvania Protective Order) any application for relief from this Protective Order or for modifications to this Protective Order shall be directed the U.S. District Court for the District of Utah. K. Pennsylvania Protective Order Para. 16 & 17 ("Copy of Protective

Order . . ." and "Third Party Requests for Confidential of Highly Confidential Material"): Paragraph 16 of the Pennsylvania Protective Order is not applicable here. Paragraph 17 of the Pennsylvania Protective Order is modified for this Protective Order to state as follows: 17. If the Universal Delaware Plaintiffs or Comdata are served with a

subpoena or document request under Rule 34 seeking Flying J Designated Material in another action or proceeding, the party receiving the subpoena or document request shall give written notice as soon as practicable (but in no event more than three business days after receipt) to counsel for Flying J and shall, to the extent permitted by law, withhold production of the Flying J Designated Material until any dispute relating to the production of such Flying J Designated

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Material is resolved. The written notice called for in this paragraph shall be sent by both email and certified mail to Flying J's counsel of record in this case. L. Pennsylvania Protective Order Para. 18 ("Court Retains Jurisdiction"):

No change, except that with respect to this Protective Order, the Court that retains jurisdiction is the U.S. District Court for the District of Utah. M. Pennsylvania Protective Order Para. 19 ("Return or Destruction . . ."):

Not applicable. Instead of Paragraph 19 of the Pennsylvania Protective Order, Flying J Designated Material will be returned to Flying J upon termination, settlement or final judgment of the Universal Delaware Lawsuit, or certified to be destroyed by the Receiving Party. If any of the Universal Delaware Parties seeks to retain an archival copy of Flying J Designated Material (e.g., deposition transcripts, deposition exhibits), it will provide a list of such material to Flying J's counsel within 30 days of termination, settlement or final judgment. Flying J's counsel then may, at Flying J's sole discretion, direct that such materials should be returned to Flying J or destroyed. N. Pennsylvania Protective Order Paras. 20 & 21 ("Parties May Use Their

Own Confidential and Highly Confidential Documents" & "Parties May Use Independently Obtained Documents Regardless of Designation"): No change. O. Pennsylvania Protective Order Para. 22 & 23 ("Procedures Concerning

Third-Party Materials" and " Inadvertent Production of Third-Party Materials""): Paragraphs 22 and 23 of the Pennsylvania Protective Order are not applicable here. P. Pennsylvania Protective Order Para. 24 ("Violation of the Protective

Order"): No change, except that with respect to this Protective Order, the U.S. District Court for the District of Utah shall have discretion to enforce violations of its provisions.

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Q. i.

General changes and additional terms: Any transaction data concerning Flying J or its affiliates including TCH,

that identifies the name or other individually identifiable information about a customer, including any summaries of such data prepared by anyone may only be made available to the outside experts for Comdata and for the Universal Delaware Plaintiffs who have been authorized in accordance with the procedure in Section 1.D above, and those experts will keep such information under effectively restricted access which shall be described in writing, subscribed by counsel and the expert, to Flying J before such data is delivered to the expert. Under no circumstances will counsel or experts for Comdata or the Universal Delaware Plaintiffs contact any customers of Flying J or its affiliates to discuss any such customer-identifiable information. ii. Outside counsel for the Universal Delaware Plaintiffs and Comdata will

maintain Flying J Designated Material at a location and under circumstances reasonably designed to ensure compliance with this Order. The Universal Delaware Plaintiffs and Comdata shall protect the confidentiality of Flying J Designated Material using procedures that are no less stringent than the measures used to protect their own Designated Material or similar confidential material. iii. Outside counsel for the Universal Delaware Plaintiffs and Comdata and

their outside experts who have qualified to receive Flying J Designated Material will protect Electronically Stored Information from Flying J' Designated Material under the following procedures which are intended to be and shall be construed to be consistent with Paragraph IV.D of the Utah Amended Protective Order (Dkt. 331 at 13-16, in Case No. 1:06-cv-30 TC).

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D.1 . . . In the case of electronic documents that are produced in native file format ("Native File Documents"), designation shall be made by placing the legend "CONFIDENTIAL INFORMATION - Subject to Protective Order" or "HIGHLY CONFIDENTIAL INFORMATION -Subject to Protective Order" on the face of the CD or DVD or other medium on which the document is produced. In addition, for Excel files or other native file formats for which the insertion of a header or footer is practicable, the legend "CONFIDENTIAL INFORMATION Subject to Protective Order" or "HIGHLY CONFIDENTIAL INFORMATION Subject to Protective Order" may be added to the header or footer appearing on each page of the document. At the time Native File Documents are produced, the Producing Party will describe any changes that have been made to a file name or header or footer pursuant to this Paragraph 1V.D. 1. To the extent a Producing Party changes any Native File Document, an original, unaltered version of the document shall be maintained by the Producing Party. Regardless of whether the Producing Party makes any changes to a Native File Document, the Receiving Party shall maintain Designated Material in a manner consistent with preserving confidentiality as set forth in Paragraph IV.D. D.2. In addition to the restrictions on disclosure and use of Designated Material set forth in this Order, in the case of Designated Material contained in Native File Documents and marked in accordance with Paragraph 1V.D. 1, the Receiving Party shall also adhere to the following procedures: a. If the Receiving Party makes a copy of a Native File Document containing Designated Material on any form of portable media (e.g., CD, DVD, thumb drive, or flash drive), the media on which such copies are made shall be labeled in accordance with Paragraph 1V.D. 1 of this Order. b. If the Receiving Party makes a copy of a Native File Document containing Designated Material on a computer hard drive or network drive, the document shall be stored in a folder or subfolder labeled "CONFIDENTIAL INFORMATION - Subject to Protective Order" or "HIGHLY CONFIDENTIAL INFORMATION - Subject to Protective Order," as applicable. c. Access to copies of Native File Documents containing Designated Material shall be limited to individuals allowed to view such documents under Paragraphs VI and VII of this Order (through the use of network limitations, passwords, encryption, or similar devices). The Receiving Party shall only make such copies of Native File Documents containing Designated Material as are necessary for the prosecution or defense of this case. d. If a Receiving Party uploads or uses any Designated Material taken from a Native File Document in a litigation review

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software program (e.g., Summation, Concordance, Introspect), statistical analysis software program (e.g., SAS), or other software program designed to aid in the review, manipulation, compilation, or calculation of data or information, such files shall be maintained in a separate folder or sub-folder labeled "CONFIDENTIAL INFORMATION - Subject to Protective Order" or "HIGHLY CONFIDENTIAL INFORMATION Subject to Protective Order." Access to such folders shall be limited to individuals allowed to view such documents under Paragraphs VI and VII of this Order (through the use of network limitations, passwords, or similar devices). e. Any database, compilation, or calculation containing or making use of Designated Material taken from a Native File Document shall be treated as Designated Material under this Order, and any requirement of this Order applicable to Designated Material shall apply to such database, compilation, or calculation. f. Native File Documents containing Designated Material, or any database, compilation, or calculation containing or making use of Designated Material, shall not be transmitted by file transfer procedure (FTP), unless such files are secured by encryption or password protection. g. Native File Documents containing Designated Material, or any database, compilation, or calculation containing or making use of Designated Material, shall not be transmitted by email unless the subject line or body of such email contains the legend "This Email and/or Attachments to This Email Contain CONFIDENTIAL INFORMATION Subject to Protective Order" or "This Email and/or Attachments to This Email Contain HIGHLY CONFIDENTIAL INFORMATION Subject to Protective Order." iii. If Flying J Designated Material, or any portion thereof, is disclosed by the

Universal Delaware Plaintiffs or Comdata, through inadvertence or otherwise, to any person or party not authorized to receive Flying J Designated Material under this Protective Order, then the party that disclosed such material shall use its best efforts to retrieve immediately all copies of such Flying J Designated Material, to bind such person to the terms of this Order, and shall within five (5) days of the date such disclosure is discovered, sent written notice by email and mail to Flying J's counsel, which shall describe to Flying J the circumstances that led to the disclosure and identify any person

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who had access to Flying J Designated Material which was not authorized by this Protective Order. In such event, the party that disclosed the material shall also promptly, in writing, (a) inform such person of all the provisions of this Order and (b) request such person to execute the Acknowledgment of Protective Order in the form shown in Exhibit A. A copy of communications between the disclosing party and such person shall be provided promptly to Flying J. iv. Any future amendments by the Pennsylvania Court overseeing the

Universal Delaware Lawsuit to the Pennsylvania Protective Order do not apply to this Protective Order unless this Protective Order is specifically modified to encompass them. v. The current parties to the Universal Delaware Lawsuit: the Universal

Delaware Plaintiffs and Comdata, and each of them and their counsel, hereby consent to the personal jurisdiction of the U.S. District Court for the District of Utah for purposes of enforcement of this Protective Order. If other parties are joined as plaintiffs or defendants in the Universal Delaware Litigation, they and their counsel will be deemed to have consented to the personal jurisdiction of the U.S. District Court for the District of Utah as well, at the time that they agree to receive copies of Flying J Designated Material covered by this Protective Order.

The Court hereby enters this Protective Order as an Order of the Court. Dated: October 12th, 2009. ____________________________________ David Nuffer United States Magistrate Judge

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EXHIBIT A DECLARATION CONCERNING RECEIPT OF FLYING J PROTECTED MATERIAL SUBJECT TO PROTECTIVE ORDER State of ___________________ County of _________________ 1. I, _______________________________________________________, certify that I have received and read the Protective Order dated October __, 2009, entered by the United States District Court for the District of Utah in the matter of Universal Delaware, Inc. v. Comdata Corporation. 2. I further certify that I fully understand the procedural and substantive requirements of the Protective Order. 3. Before reviewing or receiving access to any Flying J Designated Material, and as a condition for such review and/or access, I understand and agree that I am personally bound by and subject to all of the terms and provisions of the Protective Order. 4. I subject myself to the jurisdiction and venue of the United States District Court for the District of Utah for purposes of enforcement of the Protective Order. I declare under penalty of perjury that the foregoing is true and correct. Dated: this _________ day of ____________, 2009. _________________________________ Name

Exhibit B to Protective Order Universal Delaware v. Comdata 2:09-cv-00169-DB-DN