Summary
In Bradley v. Cooper Tire & Rubber Company, 2008 WL 5156616 (S.D. Miss. Dec. 5, 2008), our sister court was confronted with the inadvertent disclosure of confidential trial exhibits through its clerk's office.
Summary of this case from Johnson v. Hankook Tire Mfg., Co.Opinion
CIVIL ACTION NO. 4:03cv00094-DPJ-JCS.
December 5, 2008
John L. Davidson, Esq., Davidson Bowie Sims, PLLC, Jackson, MS, W. Walker W. Jones III, Esq., Bradley W. Smith, Esq., Baker, Donelson, Bearman. Caldwell , Berkowitz, Meadowbrook Office Park, Jackson, MS, Attorneys for Ford Motor Company.
Bruce R. Kaster, Esq., Oscala, FL, Paul Byrd, Esq., Byrd Law Firm, Little Rock, AR, Roy D. Campbell, II, Esq., Amanda K. Jones, Esq., Danielle Ireland, Esq., Bradley Arant Rose White LLP, Jackson, MS, Attorneys for Cooper Tire Rubber, Company.
Jerry Kelly, Esq., Kelly Law Firm, Lonoke, AR, Attorneys for Plaintiffs.
ORDER
This products liability case is before the Court on the following motions/appeals: Plaintiffs' Objections to Magistrate Judge Order Dated June 5, 2008 [559]; Cooper Tire Rubber Company's Rule 72 Objections to August 8, 2008, Order [567]; and Cooper Tire Rubber Company's Motion for Additional Relief Based on Bruce Kaster's Interrogatory Responses [569]. The Court, having fully considered the parties' submissions and the applicable law, finds that Plaintiffs' appeal [559] should be denied; Defendant's appeal [567] should be granted in part and denied in part; and Defendant's motion for additional discovery [569] should be granted in part and denied in part.
The motion for additional discovery could be handled by the magistrate judge, but because it overlaps with relief sought in Defendant's appeal, it will be addressed by the undersigned.
I. Facts/Procedural History
The original dispute between Plaintiffs and Cooper Tire Rubber Company ("Cooper") is now a distant memory having been settled in September 2007 after more than a week of trial. Since then, the parties have filed a variety of motions related to documents produced pursuant to a March 4, 2005 protective order ("Protective Order" attached hereto as Exh. "A") [83].
The Protective Order was entered after some dispute and was never appealed. It contains the following relevant provisions:
"Confidential Material." As used in this Protective Order, confidential material shall refer to information and records of Defendant Cooper Tire Rubber Company . . . protected as trade secrets or confidential information pursuant to state and federal law. All confidential material is the exclusive, inalienable property of Defendant.
Protective Order ¶ 1. The order further states: "All materials designated as confidential material shall be treated as such pursuant to the terms of this Protective Order until further order by the Court." Protective Order ¶ 4 (emphasis added). Paragraph 7 of the order states: "Access to confidential material shall be limited to authorized persons, solely in the performance of their duties in connection with trial preparation of this case." Finally, Paragraph 14 of the Protective Order expressly addressed inadvertent disclosures:
Should any confidential material be disclosed to any unauthorized persons, through inadvertence of a party or through the act or omission of any person, the unauthorized person (a) shall be informed promptly of the provisions of this Protective Order by the party who first learns of the disclosure, and upon such notice shall be subject to the terms of this Protective Order; (b) shall be identified immediately to counsel of record for Defendant; and (c) shall be directed if within control of a party, or otherwise asked, to sign the Promise of Confidentiality (Exhibit A). At Defendant's sole discretion, such unauthorized person may be required to surrender to Defendant all copies of confidential material in such unauthorized person's possession. The person or entity whose inadvertence caused the unauthorized disclosure shall be responsible for securing the unauthorized person's assent to the Promise of Confidentiality and for all reasonable attorneys' fees, costs, and expenses associated with enforcement of this Protective Order.
Each individual gaining access to the confidential material signed a "Promise of Confidentiality," which was attached as Exhibit "A" to the order. The exhibit included the following relevant provisions: "I promise that I will use the confidential materials as defined under that Protective Order of Confidentiality only in connection with assisting counsel of record for the Plaintiffs or Defendants in preparing for litigation of this matter"; id. ¶ 3, "I promise that I will not disclose or discuss such confidential material with any person other than counsel of record for the parties or members of their staff who are actively engaged in the preparation of this case"; id. ¶ 4, and "I understand that any use of the confidential material I obtain, in any manner contrary to the provisions of the Protective Order of Confidentiality or this Promise of Confidentiality may subject me to sanctions by this Court. . . ." Id. ¶ 6.
Judge Sumner's August 8, 2008 Order [564] made factual findings that are relevant to the pending appeals/motion. According to the magistrate judge, certain documents that had been marked confidential and produced pursuant to the Protective Order (hereinafter the "Subject Documents") were attached to one of Plaintiffs' pleadings and maintained in the office of the clerk in a file folder marked "Sealed" but were not in sealed envelopes as required by the Protective Order. Those documents were obtained from, and with the assistance of, the court clerk's office by individuals who were not before the Court. Plaintiffs' counsel, Bruce Kaster, then obtained a copy of the Subject Documents from Texas attorney Kyle Farrar after Mr. Kaster returned his copies of the original documents as required by the Protective Order. Mr. Kaster notified Cooper that he had the documents in a letter dated May 30, 2008. On June 4, 2008, Cooper filed a motion seeking immediate return of the documents in Mr. Kaster's possession, and the magistrate judge so ordered on June 5, 2008 [555]. Plaintiffs appeal this ruling [559].
After successfully moving for return of the Subject Documents, Cooper filed another motion on June 24, 2008 [560] claiming "that further enforcement action is necessary to safeguard its trade secret and confidential documents which have been placed under seal by this Court." In essence, Cooper asserted that others had obtained copies of the Subject Documents, and it sought an order (1) instructing all third-parties in possession of the Subject Documents to return the documents to Cooper; (2) allowing limited discovery to determine who has copies of the Subject Documents; and (3) ordering Plaintiffs' counsel "and others" to cease and desist continued use of the Subject Documents in other cases.
The magistrate judge granted Cooper's motion in part and denied it in part. The August 8, 2008 Order [564] ruled as follows: (1) the motion was moot with respect to the request that Plaintiffs' counsel return all copies of the Subject Documents; (2) wide-ranging discovery was not warranted because the regrettable disclosure "cannot now be undone"; (3) the Protective Order did not preclude counsel from requesting those documents through discovery in other cases; and (4) Cooper was entitled to limited discovery in the form of interrogatories to Mr. Kaster to determine the scope of his involvement in Mr. Farrar's acquisition of the documents. Cooper appealed portions of this ruling [567], and has also filed a motion seeking additional discovery based on Mr. Kaster's responses to the interrogatories [569].
II. Analysis
Rule 72.1 of the Uniform Local Rules allows an appeal of a magistrate judge's order. Rule 72.1(2) provides that
[n]o ruling of a magistrate judge in any matter in which he or she is empowered to hear and determine shall be reversed, vacated, or modified on appeal unless the district judge shall determine that the magistrate judge's findings of fact are clearly erroneous, or that the magistrate judge's ruling is clearly erroneous or contrary to law.
The "clearly erroneous" standard requires that the court affirm the decision of the magistrate judge unless "on the entire evidence [the court] is left with a definite and firm conviction that a mistake has been committed." United States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948); see also FED. R. CIV. P. 72(a).
A. Plaintiffs' Appeal of June 5, 2008 Order
Plaintiffs maintain that Mr. Kaster was entitled to keep and freely use documents originally produced pursuant to the Protective Order because they were provided to him by a third-party, were not trade secrets, and in any event, Cooper waived privilege. Judge Sumner disagreed and his ruling is hereby affirmed.
Having reviewed the documents in camera, the Court notes that each page of each document was clearly stamped: "CONFIDENTIAL SUBJECT TO PROTECTIVE ORDER — Johnny Bradley et al. v. Cooper Tire Rubber Co. et al." They were also bates stamped with numbers specific to the Bradley case. Therefore, there is no dispute that the documents were produced pursuant to the Protective Order. Paragraph 4 of the Protective Order states that "[a]ll materials designated as confidential material shall be treated as such pursuant to the terms of this Protective Order until further order by the Court." (Emphasis added). Paragraph 14 of the Protective Order demonstrates that confidential material does not lose its protection when inadvertently disclosed to third-parties. The Protective Order was never lifted, and the magistrate judge was correct in finding that it applied to the documents Mr. Kaster re-acquired following an inadvertent disclosure. Moreover, when viewed in light of the magistrate judge's August 8, 2008 Order, it is clear that the judge crafted a practical result by requiring return but denying Cooper's attempt to prevent Plaintiffs' counsel from ever requesting the Subject Documents during discovery in other cases. Finally, the Court rejects Plaintiffs' trade secret and waiver arguments for the reasons explained infra. The Court affirms Judge Sumner's June 5, 2008 Order [555] finding it neither clearly erroneous nor contrary to law.
B. Cooper's Appeal of August 8, 2008 Order
Although the magistrate judge addressed several issues in his August 8, 2008 Order, Cooper has narrowed its focus to the following ruling:
Furthermore, the court declines the invitation to allow wide-ranging discovery by Cooper Tire in an attempt to discover the identity of every person who may have obtained copies of these documents from the sealed portion of the file and to attempt to order persons wherever located to return them. That this disclosure of documents from a sealed portion of the file may have occurred is regrettable, but it cannot now be undone.
Cooper's Rule 72 Objection at 2 (citing Order [Doc. 564] at 3). Cooper argues that this ruling is contrary to law and requests an order that "(1) requires those known individuals and entities that have the Subject Documents to return them; and (2) that allows for limited discovery to determine the scope of dissemination beyond those known individuals and entities." Id. at 15. Cooper's appeal does not identify the proper scope of this "limited discovery."
Plaintiffs have responded to Cooper's appeal in a somewhat tepid fashion, noting that much of the relief Cooper seeks is not directed at them because they have returned the documents. Nevertheless, Plaintiffs primarily argue that (1) the documents are not trade secrets; (2) Cooper waived protection; and (3) the information has already been distributed. 1. Trade Secrets
Plaintiffs raise other arguments that appear misplaced, such as a general reference to the First Amendment. See Seattle Times Co. v. Rhinehart, 467 U.S. 20, 33 (1984) (holding protective order enforceable over First Amendment objections).
Whether Cooper's documents constitute trade secrets is an issue that has been argued and re-argued throughout the tortured history of this case. Plaintiffs continue to argue that the Subject Documents are not trade secrets, and Cooper again responds that this Court has already determined that they are. The Protective Order allowed Cooper to stamp documents as "Confidential," and Cooper liberally exercised that right as to a wide variety of material, including the Subject Documents. The documents Cooper elected to mark "Confidential" were to be filed under seal and protected from disclosure. However, this unilateral designation by Cooper did not create trade secret status. See Orders entered June 15, 2007 [450] and January 7, 2008 [547]. Instead, the Protective Order provided a practical and common approach under Rule 26(c) of the Federal Rules of Civil Procedure that allowed discovery to move forward without first obtaining a ruling as to the trade secret status of every document. See 8 CHARLES ALAN WRIGHT, ARTHUR R. MILLER, EDWARD H. COOPER, FEDERAL PRACTICE AND PROCEDURE § 2043 (2008) ("On its face, the rule goes beyond trade secrets"). Ultimately though, the trade secret status of the Subject Documents is not the true issue before the Court. As stated, the Subject Documents were produced subject to the Protective Order, which remains in place, and the issue is whether the order was violated.
As a corollary to this argument, Plaintiffs argue that there is nothing left to consider because the documents were initially attached to a non-discovery related motion and should not have been sealed. Even if the documents were attached to a non-discovery related motion as Plaintiffs claim, the argument ignores the fact that the Court has never lifted the order sealing the documents or the Protective Order. Whether Plaintiffs agree with these orders or not, they remain in effect until lifted, and the Protective Order expressly addresses inadvertent disclosure and post-trial duties in a way that is consistent with the magistrate judge's ruling. See Maness v. Meyers, 419 U.S. 449, 458 (1975) (holding that "[p]ersons who make private determinations of the law and refuse to obey an order generally risk criminal contempt even if the order is ultimately ruled incorrect.").
The magistrate judge's August 8, 2008 Order merely stated that the Subject Documents were attached to one of Plaintiffs' "documents." It did not say which, and the record before the Court does not indicate whether those documents were non-discovery related as Plaintiffs now assert.
2. Waiver
It is worth repeating Judge Sumner's factual finding that the Subject Documents were filed by Plaintiffs, not Cooper. Thus, there is no logical argument that Cooper caused the inadvertent disclosure. Plaintiffs claim, however, that Cooper failed to timely act upon learning of the disclosure.
The record evidence submitted by both parties demonstrates that attorney David Rumley informed Cooper's counsel during an unrelated deposition in October 2007 that he had obtained documents from the Bradley case. This would have been approximately eight months before Cooper moved to enforce the Protective Order. Plaintiffs further submitted an email from Mr. Rumley stating, "As I told you, I have Bradley documents that I obtained from the court house. I showed your partner these documents during [a] deposition . . . He didn't seem to [sic] concerned." Cooper's Rule 72 Objection [567] at Ex. "L."
Cooper responded to this argument with an affidavit from its lead counsel in the Bradley case, Justin McDonald, who was the Cooper attorney present at the deposition Mr. Rumley referenced. Mr. McDonald stated, under oath and as an officer of the court, that Mr. Rumley informed him that he had redacted copies of three trial exhibits from the Bradley case. Id. at Ex. "A." These exhibits were the subject of another round of motions ultimately resulting in this Court's ruling that Cooper waived confidentiality as to these specific documents. See January 7, 2008 Order [547]. Mr. McDonald further stated in his affidavit that he "was not shown the Subject Documents" and that "Mr. Rumley did not tell me he possessed any documents from Bradley other than the 3 Trial Exhibits." Cooper's Rule 72 Objection [567] at Ex. "A." Finally, Mr. McDonald confirmed that had he "been shown the Subject Documents . . . [he] immediately would have taken appropriate action." Id. Plaintiffs have not submitted any counter affidavits from Mr. Rumley or anyone else associated with the deposition, and Mr. Rumley's email does not contradict Mr. McDonald's account because it never identifies the specific documents he referenced during the deposition.
Mr. McDonald's affidavit statements are further supported by Cooper's actions in May 2008. After Mr. Kaster revealed the inadvertent disclosure of the Subject Documents, Cooper immediately began taking steps to retrieve the documents, including filing a motion four days later. Cooper also contacted Mr. Rumley to ask whether he had possession of documents other than the three trial exhibits. Id. at Ex. "L." It does not appear that Mr. Rumley responded, but Cooper's correspondence with Mr. Rumley in June 2008 is consistent with Mr. McDonald's claim that Mr. Rumley's disclosure in October 2007 was limited to the three trial exhibits.
Viewing the record as a whole, the Court finds that Cooper did not voluntarily disclose the Subject Documents or fail to take reasonable precautions to ensure their secrecy. See Phillips v. Frey, 20 F.3d 623, 630 (5th Cir. 1994) (discussing standard for waiver).
3. Whether Documents Should be Returned
Plaintiffs claim that the information has already been disseminated and that the damage is done. Judge Sumner agreed, and the question is whether his holding was clearly erroneous or contrary to law. The Court finds that the order should be modified.
The Subject Documents were produced pursuant to the Protective Order. The magistrate judge correctly found that they were inadvertently disclosed. Pursuant to Paragraph 14 of the Protective Order, the documents retained their protected status, and the Court has the authority to enforce its orders. C.f., Waffenschmidt v. Mackay, 763 F.2d 711, 714, 716 (5th Cir. 1985) (quoting Berry v. Midtown Service Corp., 104 F.2d 107, 110 (2nd Cir. 1939)).
In the present case, certain individuals came to the courthouse and obtained copies of the Subject Documents. Although the clerk's office unwittingly assisted, that conduct does not equate to an order lifting the Protective Order. Moreover, the documents were maintained in a folder marked "Sealed" and each page of each document was stamped "CONFIDENTIAL SUBJECT TO PROTECTIVE ORDER — Johnny Bradley et al. v. Cooper Tire Rubber Co. et al." It does not appear from this record that any of the attorneys and other individuals who copied the documents made any inquiry as to whether the order had been lifted as to these clearly marked documents, and the docket would reflect that no such orders were entered. Individuals that copied the documents, or had their agents do so, are subject to the Court's jurisdiction and are hereby ordered to return all copies of the Subject Documents now in their possession. Moreover, those individuals are ordered to comply with subsections (A), (B) and (C) of Paragraph 14 of the Protective Order.
Finally, Cooper challenges the limitations placed on discovery by the magistrate judge. This issue overlaps Cooper's subsequently filed motion for additional discovery, and the Court will address the issues together.
C. Cooper's Motion for Additional Discovery
Cooper originally sought discovery to determine who has obtained copies of the Subject Documents, but did not express any limitations to this discovery. The magistrate judge declined that invitation but held:
The court is, however, concerned with the question of the extent of Mr. Kaster's involvement in Mr. Farrar's acquisition of the confidential Subject Documents from the sealed portion of the court file. Thus, the court will grant Cooper Tire leave to propound up to five interrogatories to Mr. Kaster on this limited issue and no other. Said interrogatories shall be served within five days of this order, and Mr. Kaster shall serve his responses within ten days of service and shall file a copy of his responses with the court. Thereafter, the court will consider whether any further action is necessary in light of Mr. Kaster's responses.
August 8, 2008 Order at 4 (emphasis added). Cooper claims in its appeal that the limitations were contrary to law and claims in its motion that the initial responses demonstrate a need for "further action."
Mr. Kaster's response to Cooper's motion is largely rhetorical (citing no legal authority) and causes the Court to seriously question whether the author ever read the Protective Order. For example, the response repeatedly makes statements such as "Cooper Tire carps about Kaster's failure to disclose . . . the fact that third parties had apparently legally procured copies of Bradley documents, perhaps even confidential Bradley documents . . . Kaster was not/is not obliged to tell Cooper Tire this." Kaster's Response to Motion for Additional Discovery [572] at 6. The argument fails to account for Paragraph 14 of the Protective Order, supra, which creates affirmative duties upon learning of an inadvertent disclosure.
Although Mr. Kaster appears to have made a good faith effort to respond to the interrogatories Cooper propounded, his response to this motion highlights that the magistrate judge's order was unduly restrictive with respect to the scope of permissible discovery. For instance, the record reflects that Mr. Farrar is not the only individual known to Mr. Kaster to have obtained the Subject Documents. Cooper is entitled to determine Mr. Kaster's knowledge of individuals who obtained the Subject Documents, and it is entitled to explore Mr. Kaster's communications and involvement (if any) with such individuals. This is best accomplished by deposition where ambiguities can be explored.
The Court is concerned, however, as was the magistrate judge, with the prospect of never-ending discovery and motion practice regarding what might be an impossible task of undoing what has been done. The Kaster deposition, coupled with the Paragraph 14 compliance by those who obtained the documents from the court file, should give the parties a better understanding of the breadth of the dissemination and whether further measures are necessary or advisable.
Cooper would be well advised to soberly consider the extent to which it wishes to pursue these issues because its efforts may become counterproductive and draw attention to the information it is attempting to protect.
III. CONCLUSION
Through no fault of its own, documents that Cooper produced pursuant to a protective order were obtained by third-parties. While the Court may eventually find that this mistake cannot be remedied, Cooper is entitled to explore the extent of the dissemination and possible breaches of the Protective Order more fully than provided for in the magistrate judge's order.
Plaintiffs' Objections to Magistrate Judge Order Dated June 5, 20008 [559] is DENIED; Cooper Tire Rubber Company's Rule 72 Objections to August 8, 2008, Order [567] is GRANTED in part and DENIED in part; and Cooper Tire Rubber Company's Motion for Additional Relief Based on Bruce Kaster's Interrogatory Responses [569] is GRANTED in part and DENIED in part.
SO ORDERED.
PROTECTIVE ORDER OF CONFIDENTIALITY
1. "Confidential Material." As used in this Protective Order, confidential material shall refer to information and records of Defendant Cooper Tire Rubber Company, hereinafter referred to as "Defendant," protected as trade secrets or confidential information pursuant to state and federal law. All confidential material is the exclusive, inalienable property of Defendant.
2. "Records." As used in this Protective Order, records shall mean information, both discrete and cumulative, that is inscribed or otherwise recorded on a tangible medium or that is stored in an electronic or other medium and is retrievable in perceivable form. Records includes both electronic records and printed, typewritten, and other tangible records.
Exhibit "A"
3. Scope. This Protective Order shall govern confidential material produced or disclosed by this Defendant in response to formal or informal discovery conducted in this matter. Nothing in this Protective Order shall be deemed to preclude this Defendant's right to: (a) oppose discovery on grounds not addressed under the terms of this Protective Order, or (b) object on any ground to the admission of any confidential material into evidence at trial. Further, nothing contained in this Protective Order shall prejudice the right of any party to contest the alleged relevancy, admissibility, or discoverability of the confidential material sought.
4. Designation of Confidential Material. Defendant may designate all or any portion of documents, things, and information it produces formally or informally to other parties to this litigation as confidential material. The designation of confidential material shall be made in good faith by any practicable means, including placing on the thing so designated, such that it will not interfere with its legibility, an appropriate notice such as the following: confidential material. Confidential material will be Bates stamped, if appropriate. All materials designated as confidential material shall be treated as such pursuant to the terms of this Protective Order until further order by the Court.
5. The inadvertent, unintentional, or in camera production of any confidential material shall not, under any circumstances, be deemed a waiver, in whole or in part, of the confidentiality of the confidential material in question. If Defendant should inadvertently produce any confidential material not responsive to a formal request for production and/or an order of the Court, the recipient shall immediately return the confidential material, including all copies thereof, to Defendant, and shall make no use of the confidential material for any purpose. 6. Objection to Designation. If any party objects to the designation of any record as confidential material, that party shall promptly notify all other parties in writing within 120 days before trial, specifying the factual and legal basis for the objection. If a dispute arises that cannot be resolved by agreement, then the dispute will be submitted to the Court. Pending such determination (or the expiration of the period in which Defendant may make a challenge to an adverse ruling), the records shall be maintained as confidential material. 7. Access to Confidential Material. Access to confidential material shall be limited to authorized persons, solely in the performance of their duties in connection with trial preparation of this case. Authorized persons are:
(a) Counsel of record for the parties to this civil action who have consented to this Protective Order and have signed the Promise of Confidentiality;
(b) Paralegal, secretarial, administrative, and legal personnel working under the direction and control of those counsel of record and who have consented to this Protective Order and have signed the Promise of Confidentiality; and
(c) Outside forensic experts and consultants retained by counsel of record who have first consented to this Protective Order and signed the Promise of Confidentiality and agreed in writing to be bound by its terms (specifically excluding attorneys who are not counsel of record for the parties to this civil action).
Access to confidential material shall not be given to any person or entity not specifically described above, including to members of the general public. However, nothing in this Protective Order shall prohibit Defendant from utilizing the confidential material as it deems appropriate, and any such use by Defendant shall not destroy the confidentiality of the confidential material in question. Authorized persons shall not include any organization or entity, or any representative thereof, that regularly maintains and/or disseminates documents or information regarding documents, including abstracts or summaries, or any other records as a service to its members, subscribers, or others.
Under no circumstances shall access to confidential material be granted to any employee of any competitor of Defendant, or any person who, within the past two years, has been affiliated with, employed by, or consulted with a competitor (or an entity in privity with a competitor) of Defendant regarding research, development, production, or testing of tires or, over the following two years, expects to be involved in any such employment, affiliation, or consultation.
8. Promises of Confidentiality. Each authorized person who receives access to any confidential material shall first be given a copy of this Protective Order and advised by the trial counsel making the disclosure that such person must not divulge any confidential material to any other person except in the preparation or trial of this lawsuit, and that such disclosure is limited to authorized persons. In accord with Hartman v. Remington Arms Co., 143 F.R.D. 673. 693 (W.D. Mo. 1992), a Promise of Confidentiality is attached as Exhibit A. This Promise of Confidentiality must be signed by each authorized person receiving any confidential material in advance of receipt. The signed original of each such Promise of Confidentiality shall be provided to counsel of record for Defendant within ten (10) days of execution. In the case of consulting forensic experts, the signed original shall be maintained by the disclosing counsel and provided to counsel of record for Defendant by the earlier of: (a) ten (10) days after the consulting forensic expert is designated as a testifying expert in this lawsuit; or (b) thirty (30) days after the final termination of this action (the earlier of execution of a settlement agreement or entry of a judgment) if the consulting forensic expert is not designated as a testifying expert.
9. Storage of Confidential Material. Authorized persons shall maintain all confidential material in a secure location. Confidential material may not be entered onto any electronic storage system, other than a floppy 3.5" disk or CD, and may not be transmitted via e-mail or other similar media. Authorized persons shall maintain a record, by Bates number designation, of the quantity of all copies or other reproductions made of each item of confidential material. 10. Use of Confidential Material. All confidential material shall be used for the purpose of this lawsuit only.
(a) No confidential material will be produced, disclosed, or otherwise utilized in any other litigation, whether or not that litigation involves parties to this case. Further, no confidential material shall be disseminated to or shared with any organization or entity, or any representative thereof, that regularly disseminates documents or information regarding documents, including abstracts or summaries, or any other records as a service to its members, subscribers, or others, or the representative of such an organization or entity.
(b) If any subpoenas, requests for production, or other forms of discovery in connection with other litigation are served on any party to this Protective Order, or any authorized person defined hereunder, that party will immediately notify Defendant's counsel of record, provide Defendant's counsel with a copy of the subpoena or other discovery request, and will consent to and assist in obtaining an order from the appropriate court protecting the confidential material from being disseminated outside the scope of this Protective Order.
11. Court Records. In the event that any confidential material is in any way disclosed in any pleading, motion, deposition transcript, videotape, exhibit, photograph, or other material filed with any court, the confidential material shall be filed in an attached sealed separate envelope containing the style of the case marked "CONFIDENTIAL MATERIAL Protected by Court Order," dated and kept under seal by the clerk of that court until further court order. Such confidential material shall, however, remain available to personnel authorized by that court and to authorized persons. When practicable, however, only the confidential portion of the pleadings filed with the court will be filed in a separate sealed envelope. If any confidential material is furnished to any court by any party, a duplicate copy with the discrete confidential material deleted may be substituted in the public record, if appropriate. 12. Depositions. If any confidential material is used or referred to during any deposition, counsel for Defendant may require that only its representatives, authorized persons, the deponent, the court reporter, and the camera operator (if the deposition is videotaped) shall be present for the portion of the deposition dealing with confidential material. Counsel for Defendant may also serve a copy of this Protective Order upon the deponent, the court reporter, and camera operator, and require that each sign the Promise of Confidentiality (Exhibit A) prior to further questioning. Counsel for Defendant may state on the record at the deposition that the deposition includes information claimed to be confidential material. Within forty-five (45) days of receipt of the completed deposition transcript, counsel for Defendant shall designate by page and line the portions for which such claim is made, and give written notice of this designation to the court reporter and all other parties. This designation shall be placed on the first page in the original and all copies of the deposition by the court reporter and by counsel for the parties. The designation shall include the style of the case and may follow the form attached as Exhibit B. Pending such designation, the deposition and all exhibits shall be treated in its entirety as confidential material. Those portions of the deposition which are designated as confidential material shall be bound separately under seal and prominently marked "confidential material subject to Protective Order." The portions of each deposition so designated shall be returned to trial counsel for Defendant within thirty (30) day of final termination of this action (the earlier of execution of a settlement agreement or entry of a judgment).
Under no circumstances shall any confidential material be viewed by any deponent who is an employee of any competitor of Defendant, or any person who, within the past two years, has been affiliated with, employed by, or consulted with a competitor (or an entity in privity with a competitor) of Defendant's regarding research, development, production, or testing of tires or, over the following two years, expects to be involved in any such employment, affiliation, or consultation.
13. Evidence at Trial. Confidential material may be introduced into evidence at trial, if otherwise admissible, provided that the party seeking to do so shall give sufficient advance notice to the Court and to the parties to allow arrangements to be made for in camera treatment of the confidential material. In the event that a transcript of the trial is prepared, any party may request that certain portions thereof, which contain trade secrets or other confidential material, be filed under seal.
14. Inadvertent Disclosure. Should any confidential material be disclosed to any unauthorized persons, through inadvertence of a party or through the act or omission of any person, the unauthorized person (a) shall be informed promptly of the provisions of this Protective Order by the party who first learns of the disclosure, and upon such notice shall be subject to the terms of this Protective Order; (b) shall be identified immediately to counsel of record for Defendant; and (c) shall be directed if within control of a party, or otherwise asked, to sign the Promise of Confidentiality (Exhibit A). At Defendant's sole discretion, such unauthorized person may be required to surrender to Defendant all copies of confidential material in such unauthorized person's possession. The person or entity whose inadvertence caused the unauthorized disclosure shall be responsible for securing the unauthorized person's assent to the Promise of Confidentiality and for all reasonable attorneys' fees, costs, and expenses associated with enforcement of this Protective Order.
15. Return of Confidential Material. Within thirty (30) days of final termination of this action (the earlier of execution of a settlement agreement, entry of a judgment, or final disposition by any appellate courts in the event of a timely appeal), counsel for record for each party shall assemble and return to counsel of record for Defendant all confidential material produced, including all copies, notes, summaries, renderings, photographs, recordings, floppy discs, and reproductions of every kind of such confidential material. Any confidential material entered on a computer database or other electronic media forbidden by Paragraph 8 of the Protective Order shall also be deleted and written over or reformatted. Any direct quote from or description of confidential material will also be returned to counsel of record for Defendant within thirty (30) days of final termination of this action. Accompanying the return of all confidential material, counsel of record for each party shall provide to counsel of record for Defendant a cover letter which includes: (a) a list of the Bates numbers of all original confidential material being returned; (b) a detailed explanation for the failure to return any original confidential material that had been produced to said counsel of record. Said cover letter shall not disclose the title or substance of the confidential material. A copy of each such letter shall be filed with the Court. All signed Promises of Confidentiality shall also be forwarded to counsel of record for Defendant as provided in Paragraph 8.
ORDERED
EXHIBIT A PROMISE OF CONFIDENTIALITY
State of __________ § § County of ________ § 1. My name is _____________. I live at _________________. I am employed as _____________ by ___________________.2. I am aware that a Protective Order of Confidentiality has been entered in the above-referenced lawsuit and a copy of that Protective Order of Confidentiality has been given to me.
3. I promise that I will use the confidential materials as defined under that Protective Order of Confidentiality only in connection with assisting counsel of record for the Plaintiffs or Defendants in preparing for litigation of this matter.
4. I promise that I will not disclose or discuss such confidential material with any person other than counsel of record for the parties or members of their staff who are actively engaged in the preparation of this case.
5. I promise that I will not attempt or assist in any attempt to seek permission from any other court to access the confidential material produced in this matter for use in other litigation or for any other purpose.
6. I understand that any use of the confidential material I obtain, in any manner contrary to the provisions of the Protective Order of Confidentiality or this Promise of Confidentiality may subject me to sanctions by this Court, and I agree to the jurisdiction of this Court to enforce any such Order.
7. I expressly consent to the jurisdiction of this Court with respect to matters within the scope of the Protective Order of Confidentiality.
8. I understand that violating the terms of the Protective Order of Confidentiality or this Promise of Confidentiality could result in civil sanctions levied by the Court, as well as criminal penalties under state law and the federal Economic Espionage Act of 1996, 18 U.S.C. §§ 1831 et seq., including imprisonment for a period of up to ten (10) years.
9. Within twenty (20) days of final termination of this action (the earlier of execution of a settlement agreement or entry of a judgment). I will return to Cooper Tire Rubber Company, through delivery to counsel of record representing Plaintiffs or Defendant in this case, all confidential material or any portion or summary thereof, along with my notarized affidavit confirming the return of said confidential materials and listing the bates number of each document returned. I promise that under no circumstance will I retain any originals or duplicate of any such confidential material. I assume all responsibility for returning the confidential material to Cooper Tire Rubber Company, as set forth herein, and I bear all risks associated with the purported loss, destruction, or inadvertent disclosure of such confidential material that has been entrusted to my care. My failure to return all such confidential material and/or to provide the notarized affidavit described above will be deemed a disclosure of the confidential information in violation of the Protective Order of Confidentiality and this Promise of Confidentiality, which may subject me to sanctions. I expressly agree to pay all reasonable attorneys' fees, costs, and expenses associated with enforcement of this paragraph in order to obtain my compliance with it, in addition to any sanctions the Court may impose.
EXHIBIT B DEPOSITION OF _______________________ THIS ____ DAY OF ________________, 2004 DESIGNATION OF CONFIDENTIAL MATERIAL
Pursuant to the Court Order dated _______________________, the following parts of this deposition are designated as confidential:
Signed this _____ day of ______________, 2004.
Respectfully Submitted,
BRADLEY, ARANT, ROSE WHITE. LLP
By: _____________________ Roy D. Campbell, II, Esq. Amanda K. Jones, Esq. Danielle Ireland, Esq. Bradley Arant Rose White LLP 188 E. Capitol St., Suite 450 Jackson, MS 39201 (601) 948-8000 — Telephone (601) 948-3000 — Fax
ATTORNEYS FOR DEFENDANT, COOPER TIRE RUBBER COMPANY
OF COUNSEL:
Justin T. McDonald, Esq. Richard H. Monk, III, Esq. Bradley Arant Rose White LLP One Federal Place 1819 Fifth Avenue North Birmingham, AL 35203-2104 (205) 521-8000 — Telephone (205) 521-8800 — Fax