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Case 4:13-cv-00418-JLH Document 27 Filed 01/17/14 Page 1 of 11






CASE NO. 4:13-cv-418 JLH





The Court holds that the following procedures and provisions shall apply to discovery in

the above-captioned civil action (the "Action") in order to protect information of a sensitive,

confidential, proprietary and/or legally protected nature, including but not limited to customer

proprietary network information ("CPNI") 1

, and the privacy rights of the parties or certain non-

parties. The entry of this Protective Order is not, and should not be construed as, a waiver by

any party or non-party of any privilege or objection to any particular discovery request.




"Party" means any current plaintiff or defendant in this Action (including those

listed in the caption above), and any plaintiff, defendant, or other party that may be joined in this



''Non-Party" means any person or entity not a Party who produces documents or

other information or provides testimony in response to a subpoena or other process in this


1 The term "Customer Proprietary Network Information" is defined in 47 U.S.C. §



Case 4:13-cv-00418-JLH Document 27 Filed 01/17/14 Page 2 of 11


"Material" is defined as documents, electronically stored information, records,

tangible materials, testimony, responses to discovery, and other information produced by a Party

or Non-Party in discovery in this Action.


"Confidential Material" is defined as M~terial that any Party or Non-Party

considers in good faith to be confidential information relating to: trade secrets, research,

development, strategic planning, financial, commercial, confidential, sensitive or proprietary

business, or personal information which, if disclosed, might adversely affect the competitive

position or business operations of the Party or Non-Party producing such materials, or invade the

privacy rights of any person. Confidential Material includes any Customer Proprietary Network

Information. Each Party or Non-Party that designates information or items for protection under

this Protective Order must take care to limit any such designation to specific material that

qualifies under the appropriate standards.


The "Designator" is any Party or Non-Party who produces Material in this Action

and designates any such Material as "CONFIDENTIAL" in conformity with Paragraph III.


"Receiving Party" is the Party that receives Material in this Action that is

designated "CONFIDENTIAL" in accordance with this Protective Order.


"Customer Proprietary Network Information" shall have the meaning set forth in

47 U.S.C. § 222(c).




Any Party or Non-Party who produces Material in the course of discovery in this

Action may designate such Material as Confidential Material if that Party or Non-Party believes

in good faith that the Material satisfies the definition of Confidential Material, as set forth in

Paragraph I.D.


Case 4:13-cv-00418-JLH Document 27 Filed 01/17/14 Page 3 of 11


The Designator shall mark the word "CONFIDENTIAL" on the face of each

document and each page so designated at the time it is produced or served, or, in the case of

Confidential Material contained in or on media other than paper, by affixing such a label to the

information or by using its best efforts to identify the information as Confidential Material.


In the event that a Party or Non-Party desires to designate specific answers or

responses to interrogatories or requests for admission as Confidential Material, the Party or Non(cid:173)

Party shall insert the word "CONFIDENTIAL" in brackets at the beginning of the specific

answer or response.


In the case of depositions, designation of the portion of the transcript (including

exhibits) which contains Confidential Material shall be made within 15 business days after

receipt of the transcript by stamping "CONFIDENTIAL" on the pages that contain Confidential

Material and notifying all Parties and the deponent in writing of the page and line numbers which

have been designated as Confidential Material. In the absence of an agreement on the record or

in writing, or an order of the Court to the contrary, all deposition testimony shall be deemed

Confidential Material until the expiration of the aforementioned 15 business days.


For purposes of this Action, no Party concedes that any Material designated by

any other Designator as Confidential Material has been properly designated as Confidential

Material. A Party shall not be obligated to challenge the propriety of the designation of Material

as "CONFIDENTIAL" at the time made, and the failure to do so shall not preclude a subsequent

challenge in this or any other action. If a Party challenges a designation, it shall give written

notice to the Designator, and the Party and the Designator shall attempt to resolve any challenge

in good faith on an informal basis ("meet and confer''). Designating Party shall have 5 days in

which to review the challenged material and either re-designate the material or explain the basis


Case 4:13-cv-00418-JLH Document 27 Filed 01/17/14 Page 4 of 11

for the designation and refusal to re-designate. If the challenge cannot be informally resolved by

such review, explanation, and meet and confer, the Party challenging the designation may seek

appropriate relief from the Court; however, the burden of proof shall be on the Designator. The

Material shall continue to be treated as Confidential Material until the issue relating to the

propriety of the designation has been resolved.


Any Designator may, at any time, withdraw the "CONFIDENTIAL" designation

of any Material produced by that Designator.


The inadvertent failure to designate or withhold any Material as confidential will

not be deemed to waive a later claim as to its confidential nature, or to preclude the producing

Party or Non-Party from designating such Material as confidential at a later date in writing and

with particularity. The Material shall be treated by the receiving Party as Confidential Material

from the time the receiving Party is notified in writing of the change in the designation.



Confidential Material shall be used only for purposes of preparing for and

litigating this Action (including appeals) and not for any other action or other purpose.


Access to Confidential Material shall be closely controlled and limited to

individuals who have a demonstrable and bona fide need to review it. Confidential Material

shall not be revealed or disclosed, directly or indirectly, in any manner or in any form, to any

person, entity, or judicial tribunal other than:



Counsel of record, members of their firms and associates,
paralegals, clerical, and other employees or agents of such counsel
who are assisting in the conduct and/or management of this action;

The Receiving Party,
its officers, directors and
employees of the Receiving Party to whom disclosure is
reasonably necessary for the prosecution or defense of the



Case 4:13-cv-00418-JLH Document 27 Filed 01/17/14 Page 5 of 11








ln·house counsel of any Party, and paralegal, clerical, and other
employees assisting in·house counsel;

Party deponents, current and
former employees, officers,
members, or directors of any Party or its affiliate who are assisting
in the conduct of this Action;

The United States District Court, the Court of Appeals, the
Supreme Court of the United States, court personnel, court
reporters, and any jury empanelled in this Action;

Third party deponents and trial witnesses in this Action and their
counsel during a deposition, hearing, or trial in this Action;

Non·attomey consultants, experts, and outside litigation support
personnel retained by counsel for any Party to this Action to assist
the Party in the preparation and/or litigation of this Action;

Any mediator retained by the Parties or appointed by the Court,
and employees of such mediator who are assisting in the conduct
of the mediation;

The person or entity that wrote or received the document or gave
the testimony designated as "CONFIDENTIAL"; and


Others, if the Designator so agrees in writing or, for good cause
shown, the Court so permits.


Before any person described in Paragraphs III.B.6, III. B. 7, and III.B.l 0 is given

access to Confidential Material, the person shall review the Protective Order and agree in writing

(by signing the Acknowledgement attached hereto as Exhibit A) to be bound by this Protective

Order. A copy of the Acknowledgement shall be retained by counsel disclosing Confidential

Material until the conclusion of this litigation, including all appeals.


If Confidential Material is to be disclosed during a deposition or trial, the

agreement to be bound and consent to jurisdiction may be made on the record and under oath,

rather than in writing. No person to whom Confidential Material is disclosed may disclose such

Confidential Material to any person other than those persons described in Paragraph III.B.,



Case 4:13-cv-00418-JLH Document 27 Filed 01/17/14 Page 6 of 11


All persons who have access to Confidential Material at any time shall take all

precautions necessary to prohibit access to such Confidential Material other than as provided for



Any summaries or copies of Confidential Material shall bear the appropriate

legend set forth in Paragraph II.B., above, and shall be subject to the terms of this Protective

Order to the same extent as the information or document from which such summary or copy is



Confidential Material that is included in any legal document (i.e., any document

intended to be filed with the District Court) served in this action, whether appended as an exhibit

or incorporated into a pleading, affidavit, declaration, memorandum of law or other filing, shall

be filed under seal subject to terms and procedures agreed to by the parties or ordered by the

District Court, and such information may be disclosed by the Receiving Party only to those

persons as permitted by III.B.l-10, above. Notwithstanding the foregoing, where a party wishes

to include in a legal document Confidential Material, but the confidential information contained

in such writing is not relevant to the purpose for which the writing is being offered to the District

Court, the party including such writing in a legal document may, in lieu of filing the document

under seal, submit a redacted copy of the writing. In such event, the redaction must be indicated

by placing the designation "REDACTED - CONFIDENTIAL INFORMATION" on the writing.

Except for material delivered to the District Court or filed with its Clerks as provided above, all

materials containing information that has been designated as "CONFIDENTIAL" shall be stored

under the direct control of Counsel for the Receiving Party, who shall be responsible for

preventing any disclosure thereof except in accordance with the terms of this Protective Order.


Nothing contained in this Protective Order shall preclude any party from using its


Case 4:13-cv-00418-JLH Document 27 Filed 01/17/14 Page 7 of 11

own Protected Material in any manner it sees fit, without prior consent of any other Party.


Except as otherwise permitted in this Protective Order, within 60 days after final

termination of this Action (including any appeal or related proceedings in the United States

District Court, Court of Appeals, and the Supreme Court of the United States), either by final

judgment or settlement, all persons and entities in possession of Confidential Material shall

either destroy the information and all copies thereof or return the information and all copies

thereof to the Designator, at the election of the Designator.



Nothing contained in this Protective Order shall restrict or limit any Party's right

to present Confidential Material to a jury or a court during a trial or other hearing in this Action,

and the Parties and Non-Parties shall take reasonable steps to maintain the confidentiality of such

information at a hearing or at trial in such manner as the Court may direct. The use of

Confidential Material at trial shall be governed by the pretrial order.


If any Party receives a subpoena or order demanding the production of any

Material designated in this Action as "CONFIDENTIAL," the Party receiving such subpoena or

order shall, within five (5) business days of the receipt of such request and not less than 10 days

prior to the production of any Confidential Material, notify and provide a copy to the Designator

of such subpoena or order so as to permit the Designator the opportunity to object and seek

protection from the disclosure. The subpoenaed Party also must immediately inform in writing

the non-party who caused the subpoena or order to issue ("Supoenaeing Entity") that some or all

of the material covered by the subpoena is the subject of this Protective Order, and must deliver a

copy of this Protective Order promptly to the Subpoenaeing Entity.


Case 4:13-cv-00418-JLH Document 27 Filed 01/17/14 Page 8 of 11


This Protective Order shall not apply to information or tangible items obtained by

means independent of production by a Party or Non-Party through discovery or other

proceedings in this Action. The restrictions set forth in this Protective Order shall not apply to

any Material which, at the time of production, is within the public domain, or which the

Designator subsequently released into the public arena.


Neither this Protective Order, production or disclosure of Material under this

Protective Order, nor designation or failure to designate Material under this Protective Order,

shall constitute a waiver of the right of the Designator to maintain the trade secret status or

confidentiality of that Material in other contexts.


This Protective Order may be modified or amended by agreement of the Parties

with the approval of the Court. To the extent that the Parties fail to agree on a modification

proposed by any Party, nothing contained herein shall be deemed to preclude any Party from

moving the Court, for good cause shown, for a ruling that modifies this Protective Order in any

respect, or seeking additional protection for any particular information for which it deems the

safeguards contained herein to be insufficient.


Notwithstanding anything contained herein to the contrary, counsel shall be

permitted to retain copies of all court filings, trial and hearing transcripts, trial and hearing

exhibits, correspondence, and attorney work product containing or reflecting Confidential

Materials after final termination of this Action; provided, however, that they shall treat such

materials as confidential.


This Protective Order shall not be construed as waiving any right to assert a claim

of privilege or objection as to relevance, admissibility or other grounds for not producing



Case 4:13-cv-00418-JLH Document 27 Filed 01/17/14 Page 9 of 11


This Protective Order shall surv1ve and continue to be binding after the

conclusion of this Action, and this Court shall retain jurisdiction to enforce the provisions of this

Protective Order.


This Protective Order shall operate retroactively to the inception of this Action.

Any Material produced prior to the signing of this Protective Order shall be treated as

Confidential upon designation as set forth above.




The inadvertent disclosure of Material covered by the attorney-client privilege or

work-product protection shall be governed by Federal Rule of Evidence 502 and this Protective



If, in connection with the pending litigation, a Party or Non-Party (the "Disclosing

Party') inadvertently discloses information subject to a claim of attorney-client privilege or

work-product protection ("Inadvertently Disclosed Information"), the disclosure of the

Inadvertently Disclosed Information shall not constitute or be deemed a waiver or forfeiture of

any claim of privilege or work-product protection that the Disclosing Party would otherwise be

entitled to assert with respect to the Inadvertently Disclosed Information and its subject matter.


If a claim of inadvertent disclosure is made by a Disclosing Party with respect to

Inadvertently Disclosed Information, the Parties shall, within five (5) business days of

discovering such inadvertent production, return or destroy all copies of the Inadvertently

Disclosed Information and provide a certification of counsel that all such Inadvertently Disclosed

Information has been returned or destroyed.

D. Within 21 days of the notification that such Inadvertently Disclosed Information

has been returned or destroyed, or within a different time upon written agreement of the Parties


Case 4:13-cv-00418-JLH Document 27 Filed 01/17/14 Page 10 of 11

or order of the Court, the Disclosing Party shall produce a privilege log with respect to the

Inadvertently Disclosed Information.


Nothing in this Protective Order shall limit the right of any Party to petition the

Court for an order compelling production of such Inadvertently Disclosed Information, or for an

in-camera review of the Inadvertently Disclosed Information.



Nothing contained in this Protective Order, and no action taken pursuant to it, shall

prejudice the right of any Party or Non-Party to contest the alleged relevancy, admissibility, or

discoverability of the Material sought. Nor shall this Protective Order prevent any Party or Non(cid:173)

Party from objecting to discovery that it believes to be otherwise improper.


Case 4:13-cv-00418-JLH Document 27 Filed 01/17/14 Page 11 of 11

Exhibit A



I hereby acknowledge that I,


, am about to receive

information that is being supplied by one or more of the parties in the case of We/spun Pipes,

Inc. and We/spun Tubular, LLC v. Liberty Mutual Fire Insurance Company, Case No. 4:13-cv-

418 JLH, pending in the United States District Court for the Eastern District of Arkansas,

Western Division.

I understand that the information is or may be subject to the terms of a

Protective Order entered by the Court in said case. I hereby certify my understanding that such

information is being provided to me pursuant to the terms and restrictions of the Protective

Order. I have been given a copy of said Protective Order, have read it, and agree to be bound by

its terms. I understand that information and any documentary material covered by the Protective

Order (which includes any notes or other record that I make of such material) shall not be

disclosed to others, except those listed in paragraph III.B. of the Protective Order and under the

terms set forth therein.


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