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Bad Boy, Inc. v. Spartan Mowers, LLC

United States District Court, E.D. Arkansas, Northern Division

May 19, 2017

BAD BOY, INC. Plaintiff,
v.
SPARTAN MOWERS, LLC, INTIMIDATOR, INC., RF PRODUCTS, INC. Defendants.

          Trent C. Keisling, KEISLING & PIEPER, PLC, Phil Campbell, Blake Hendrix, Eric Gribble, Haley Burks, FUQUA CAMPBELL, P.A. Attorneys for Plaintiff

          Bradley E. Trammell, Adam S. Baldridge, BAKER, DONELSON, BEARMAN, CALDWELL & BERKOWITZ, PC Robert L. Henry, III, Perry Wilson, BARBER LAW FIRM PLLC, Alfred F. Tom Thompson, III, Kenneth P. Casey Castleberry, MURPHY, THOMPSON, ARNOLD, SKINNER & CASTLEBERRY Attorneys for Defendants

          AGREED PROTECTIVE ORDER

          Honorable D. P. Marshall Jr. United States District Court Judge

         Pursuant to Rule 26 of the Federal Rules of Civil Procedure, Plaintiff and Defendants hereby agree to the terms of this Protective Order as follows:

IT IS HEREBY ORDERED, that if, in the course of the above-captioned litigation, any party has the occasion to disclose information it deems to be confidential or proprietary, the following procedures shall be employed and the following restrictions shall govern:

         1. Each party shall have the right to designate as "Confidential" and subject to this Order any documents, electronically stored information ("ESI"), information or other materials which a designating party reasonably believes to be of a confidential, proprietary business, financial, scientific, medical or technical nature which is not available to competitors, potential competitors or other non-parties but which might become available to another party to the litigation as a result of this lawsuit ("Confidential Information"). Any documents, answers to interrogatories or document requests, deposition transcripts, responses to requests for admissions, or any other material in paper or electronic form provided by a party ("Producing Party") to the other party ("Receiving Party") during the pendency of this proceeding which contain Confidential Information ("Confidential Material") may be designated and marked, in whole or in part, as "Confidential" by counsel for Producing Party. Any documents created by the Receiving Party which include Confidential Material designated as "Confidential, " including copies, abstracts, summaries or information derived therefrom, or notes or other records, shall also be deemed "Confidential" and the same terms regarding confidentiality of these materials shall apply to the originals. To the extent possible, documents should be redacted by the Producing Party to avoid being designated as "Confidential" if the information causing the document to be designated as "Confidential" is not relevant to the issues in the lawsuit.

         2. To the extent that Confidential Material is designated as "Confidential, " the Confidential Material shall only be revealed to or used by (a) the Court and its officers, (b) outside counsel of record for the parties to this case, including counsels' associate and staff attorneys, legal assistants and/or paralegals, technical and clerical employees, and outside photocopying, data processing, stenographic (including shorthand reporters), or graphic production services employed by the attorneys to assist in the litigation, (c) any outside independent persons who are retained by a party or its attorneys in connection with this proceeding to furnish technical or expert services, including any employees of and other persons providing assistance to these outside persons, (d) officers or employees of the parties who have executed the Agreement of Non-Disclosure, (e) potential or actual witnesses whom counsel for a Party in good faith believes may be called to testify at trial or deposition in this action, provided such person has first executed the Agreement of Non-Disclosure in the form attached as Exhibit "A", (f) witnesses during their testimony at a deposition, hearing or trial, so long as the Confidential Material was produced by the party employing the witness, shows on its face that the witness authored or received it, or memorializes that the witness was privy to the Confidential Material's contents (e.g., a document refers to a meeting attended by the witness), (g) any other person agreed to by the Producing Party in writing, and (h) persons otherwise authorized by the Court.

         3. The Confidential Material that a party wishes to designate as "Confidential" shall be designated by imprinting, in a manner that does not impair legibility, the word "Confidential" on the first page or cover page of the document being produced prior to its production or, if inadvertently produced without designation, by furnishing written notice to the Receiving Party that the information is designated "Confidential, " or by advising the court reporter that certain deposition testimony is Confidential and is to be separately transcribed and marked accordingly.

         4. If the Requesting Party believes that material designated as "Confidential" by the Producing Party is not entitled to be designated as "Confidential, " the Requesting Party shall inform the Producing Party of its objection to the designation. The parties shall confer in good faith in person before bringing the dispute to the Court. If the parties reach an impasse, they will file a joint report explaining the disagreement and proceed in accordance with the "Discovery Disputes" section of the Court's Final Scheduling Order. The burden to show that Confidential Material should be treated as "Confidential" rests with the Producing Party.

         5. The Court recognizes that there may be a limited number of documents or information which may be considered to be a trade secret or other confidential research, development, or commercial information, the disclosure of which would be harmful to the Producing Party's interests in the property ("Highly Confidential/Attorney Eyes Only Material"). These documents and information may be designated by the Producing Party as "Highly Confidential/Attorney Eyes Only." To the extent possible, documents should be redacted by the Producing Party to avoid being designated as "Highly Confidential/Attorney Eyes Only" if the information causing the document to be designated "Highly Confidential/Attorney Eyes Only" is not relevant to the issues in the lawsuit. Counsel for the Receiving Party may request an unredacted copy of the redacted document so long as it is designated as "Highly Confidential/Attorney Eyes Only, " is treated accordingly, and was not redacted due to assertion of the attorney-client privilege, work product doctrine, or some other applicable privilege or immunity.

         6. The Highly Confidential/Attorney Eyes Only Material shall be designated by imprinting, in a manner that does not impair legibility, the word "Highly Confidential/Attorney Eyes Only" on each page of the document being produced prior to its production or, if inadvertently produced without the designation, by furnishing written notice to the Receiving Party that the information is designated "Highly Confidential/Attorney Eyes Only, " or by advising the court reporter that certain deposition testimony is designated "Highly Confidential/Attorney Eyes Only, " and is to be separately transcribed and marked accordingly.

         7. If counsel for the Requesting Party does not agree with the designation of the document as "Highly Confidential/Attorney Eyes Only, " the parties shall confer in good faith in person before bringing the dispute to the Court. If the parties reach an impasse, they will file a joint report explaining the disagreement and proceed in accordance with the "Discovery Disputes" section of the Court's Final Scheduling Order. The burden first rests with the Producing Party to show that the information is a trade secret or other confidential research, development, or commercial information and that its disclosure would be harmful to the party's interest in the property. The burden then shifts to the Requesting party to show that the information is relevant to the subject matter of the lawsuit and is necessary to prepare the case for trial. If both relevance and need are shown, the Court will weigh the injury that disclosure might cause the Producing Party against the Requesting Party's need for the information without the "Highly Confidential/Attorney Eyes Only" designation. Any information or documents subject to this review will be treated by the Requesting Party's counsel as "Highly Confidential/Attorney Eyes Only" until the Court issues its ruling.

         8. To the extent that information or documents are designated "Highly Confidential/Attorney Eyes Only, " the Highly Confidential/Attorney Eyes Only Material shall only be revealed to (a) the Court and its officers, (b) outside counsel of record for the parties, including said counsel's associate and contract attorneys, legal assistants and/or paralegals, technical and clerical employees, and outside photocopying, data processing, stenographic (including shorthand reporters), or graphic production services employed by the attorneys to assist in the litigation, (c) any outside independent persons who are retained by a party or its attorneys in connection with this proceeding to furnish technical or expert services, including any employees of and other persons providing assistance to these outside persons, (d) witnesses during their testimony at a deposition, hearing or trial, so long as the "Highly Confidential/Attorney Eyes Only" Confidential Material was produced by the party for whom the witness is employed, shows on its face that the witness authored or received it, or memorializes that the witness was privy to the Material's contents (e.g., a document refers to a meeting attended by the witness), (e) any other person agreed to by the Producing Party in writing, and (f) persons otherwise authorized by the Court. Under no circumstances shall an expert or consultant who is a competitor or an employee or independent contractor of a competitor of a Producing Party, be provided access to Highly Confidential/Attorney Eyes Only Material absent further order of the Court or consent of the Producing Party. "Competitors" are persons or entities actively engaging in or actively making plans to engage in the business of developing, manufacturing or selling lawn mowers or ATVs, UTVs, ROVs, or MOHUVs.

         9. The Requesting Party shall not be obligated to challenge the propriety of any Confidential Material or Highly Confidential/Attorney Eyes Only Material designated as "Confidential" or "Highly Confidential/Attorney Eyes Only Material" at the time made and ...


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