Hughes et al v. Reitnouer Enterprises, Inc. et al

OCR transcription for search; preserved printed pages are authoritative

Case 1:22-cv-01020-SOH Document69 ~~ Filed 02/21/24 Page 1 of 12 PagelD #:
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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS

EL DORADO DIVISION

DOYLE WESLEY HUGHES and
HOLLY HUGHES

PLAINTIFFS

CASE NO.: 1:22-cy-01020-SOH

v.
FORD MOTOR COMPANY;
WRAY FORD, INC.;
DONLEN CORPORATION;

DONLEN TRUST; DONLEN TRUST I;
DONLEN MOBILITY SOLUTIONS,
INC,; :

REITNOUER ENTERPRISES, INC.;
REITNOUER, INC.; and

STEADY SOURCE CO d/b/a STEADY
LANES

DEFENDANTS

STIPULATED PROTECTIVE ORDER

In order to preserve and maintain the confidentiality of certain confidential, commercial
and/or proprietary documents and information produced or to be produced by FORD MOTOR
COMPANY (“Ford”) or by any party in this action, it is ordered that:

1. Documents or information to be produced or provided by Ford or any party in this
litigation that contain confidential, commercially sensitive, private personal information and/or
proprietary information may be designated as confidential by marking or placing the applicable
notice “Subject to Protective Order,” or “Confidential,” or substantially similar language on media
containing the documents, on the document itself, or on a copy of the document, in such a way

that it does not obscure the text or other content of the document.

8060743-v1

AUTHENTICATED
U.S. GOVERNMENT
INFORMATION

GPO

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2. As used in this Order, the terms “documents” or “information” mean all written
material, electronic data, videotapes and all other tangible items, produced in whatever format
(e.g., hard copy, electronic, digital, etc.) and on whatever media (e.g., hard copy, videotape,
computer diskette, CD-ROM, DVD, by secure electronic transmission, hard drive or otherwise).

3. Documents or information designated as “Subject to Protective Order,” or
“Confidential” or substantially similar language in accordance with the provisions of this Order
(“Protected Documents” or “Protected Information”) shall only be used, shown or disclosed as
provided in this Order. However, nothing in this Order shall limit a party’s use or disclosure of
his or her own information designated as a Protected Document or Protected Information.

4. Ifa receiving party disagrees with the “Protected” designation of any document or
information, the party will notify the producing party in a written letter and identify the challenged
document(s) with specificity, including Bates-number(s) where available, and the specific grounds
for the objection to the designation. If the parties are unable to resolve the issue of confidentiality
regarding the challenged document(s), Ford will thereafter timely apply to the Court to set a
hearing for the purpose of establishing that the challenged document(s) or information is/are
confidential. Protected Documents will continue to be treated as such pending determination by
the Court as to the confidential status.

5. Protected Documents and any copies thereof shall be maintained confidential by
the persons authorized to receive the documents pursuant to paragraph 6 and shall be used only for
prosecuting, defending, or attempting to settle this litigation, subject to the limitations set forth
herein.

6. Protected Documents shall be disclosed only to “Qualified Persons.” Qualified

Persons are limited to:

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a. Counsel of Record for the parties, and the parties;

b. Paralegals and staff employed by Counsel of Record and involved in the
preparation and trial of this action;

c. A vendor hired by a party to host data and maintain a database of electronic
data or perform other work related to the collection, review or production
of documents in the case;

d. Experts and non-attorney consultants retained by the parties for the
preparation and/or trial of this case, provided that no disclosure shall be
made to any expert or consultant who is employed by a competitor of Ford;
and

e. The Court, the Court’s staff, witnesses, and the jury in this case.

f. With respect to documents designated as “Sharing” or “Subject to
Protective Order,” attorneys representing Plaintiff(s) and the experts and
non-attorney consultants retained by such attorneys, in other cases pending
against Ford involving a Ford Transit van with claims that forward collision
warning or automatic emergency braking should have been implemented on
the vehicle, provided no disclosure shall be made to any expert or consultant
who is employed by a competitor of Ford.

7. The receiving party must make reasonable efforts to ensure the individuals
described in paragraphs 6(b), 6(c), 6(d), and 6(£) above are Qualified Persons.

8. Before receiving access to any Protected Document or the information contained
therein, each person described in paragraphs 6(b), 6(c), 6(d), and 6(f) above shall execute a

“Written Assurance” in the form contained in Exhibit A, attached hereto. The receiving party shall

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retain each such executed Written Assurance and shall keep a list identifying (a) all persons
described in paragraphs 6(b), 6(c), 6(d), and 6(f) above to whom Protected Documents have been
disclosed, and (b) all Protected Documents disclosed to such persons. Each such executed Written
Assurance and list shall be submitted to counsel for Ford at the termination of this litigation or
upon Order of the Court requiring production, whichever comes first. However, for consulting
experts who were not designated as testifying experts, the receiving party may redact the name,
address, and signature of the consultant before disclosing the executed Exhibit A and document
list for that person. To the extent the “Qualified Persons” described in paragraph 6(d) above
include privileged non-testifying expert consultants, the receiving party shall retain each such
executed Exhibit A and shall keep a list identifying (a) all such non-testifying expert consultants
described in paragraphs 6(d) above to whom Protected Documents have been disclosed, and (b)
all Protected Documents disclosed to such persons. In the event that Ford (or the producing party)
seeks to compel the production of each unredacted and executed Exhibit A for good cause, the
receiving party shall submit each unredacted and executed Exhibit A and list to the Court for in
camera inspection. Persons described in paragraph 6(b) shall be covered under the signature of
Counsel of Record.

9, As the Protected Documents may only be distributed to Qualified Persons,
Qualified Persons may not post Protected Documents on any website or internet accessible
document repository, excepting a vendor hosted review platform for the sole purpose of reviewing
the information for the subject case and not for any other purpose, and shall not under any
circumstance sell, offer for sale, advertise, or publicize either the Protected Documents and the
Confidential information contained therein or the fact that such persons have obtained Ford’s (or

the producing party’s) Protected Documents and confidential information.

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10. To the extent that Protected Documents or information obtained therefrom are used
in written discovery or in the taking of depositions (including exhibits) or other pretrial discovery
or testimony and/or used as exhibits at trial, such documents or information shall remain subject
to the provisions of this Order, including any transcript pages of the deposition testimony and/or
trial testimony dealing with, referring to or referencing the Protected Documents or information.
Designation of the portion of the transcript (including exhibits) which contains references to
Protected Documents or information shall be made (i) by a statement to such effect on the record
during the proceeding in which the testimony is received, or (ii) by written notice served on counsel
of record in this Litigation within thirty (30) business days after the receipt of the draft or final
transcript (whichever is received earlier) of such proceeding (as used herein, the term “draft
transcript” does not include an ASCII or rough transcript). However, before such thirty (30) day
period expires, all testimony, exhibits and transcripts of depositions or other testimony shall be
treated as Protected Documents. All portions of transcripts not designed as Confidential within
the time frame provided herein shall be deemed not confidential.

11. ‘If any party disagrees with the designation of all or part of a deposition transcript
designated as “Protected” pursuant to Paragraph 10 above, such party must notify the designating
party in a written letter and identify the testimony (by line and page designation) and the specific
grounds for the objection to the designation. If the parties are unable to resolve the issue of
confidentiality regarding the challenged deposition testimony, the designating party will thereafter
timely apply to the Court to set a hearing for the purpose of establishing that the challenged
deposition testimony is confidential. The designated deposition testimony at issue, and any related
exhibits, will continue to be treated as a Protected Document pending determination by the Court

as to the confidential status.

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12. All documents that are filed with the Court that contain any portion of any Protected
Document or information taken from any Protected Document shall be filed under seal by
following the protocols for sealed filings in this Court. The parties agree that there is good cause
and there exist compelling reasons to seal the requested information. However, if a party believes
that documents designated as Protected Documents cannot or should not be sealed, pursuant to the
protocols and rules in this Court, then the party wishing to file the materials shall particularly
identify the documents or information that it wishes to file to the producing party, in writing. The
parties will then meet and confer, in a good faith effort to resolve the dispute. Failing agreement,
the party wishing to file the materials must request a ruling from the Court on whether the Protected
Documents in question must be submitted under seal. The producing party shall have the burden
of justifying that the materials must be submitted under seal. Absent written permission from the
producing party or a court Order denying a motion to seal, a receiving party may not file in the
public record any Protected Documents.

13, Within one hundred and twenty (120) days after the conclusion of this case, counsel
for the parties who received Protected Documents, including any documents that any such party
disclosed to any person described in paragraph 6(b), (c) or (d) above, shall either (a) return to Ford
(or the producing party) the Protected Documents; or (b) securely destroy the Protected Documents
and certify such destruction to Ford (or the producing party) within one hundred and fifty (150)
days after the conclusion of this case.

14. Submission to regulatory agency or governmental entity:

a. This protective order shall not be construed to prohibit Ford’s disclosure or
production of safety-related information to a regulatory agency or

governmental entity with an interest in the safety-related information.

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Material subject to this protective order may only be disclosed to a
regulatory agency or governmental entity with an interest in the safety-
related information by Ford, and such disclosure shall be made pursuant to
49 CFR 512 or similar applicable rules.

If other parties to this protective order have a reasonable belief that certain
documents are safety-related and need to be disclosed to a regulatory agency
or governmental entity, they are not prohibited from advising the regulatory
agency or governmental entity that they believe such documents were
produced in this case, however, any disclosure of such documents shall

adhere to the procedure described in Paragraph 14(a).

15. Inadvertent or unintentional production of documents or information containing

confidential information that should have been designated as Protected Document(s) shall not be

deemed a waiver in whole or in part of the party's claims of confidentiality.

16. The parties may disclose and produce responsive documents to each other in this

litigation, and seek to do so without risking waiver of any attorney-client privilege, work product

or other applicable privilege or protection. As such, the parties will adhere to the following

procedures with regard to the production of privileged or protected material, should that occur:

a.

The production of documents (including both paper documents and
electronically stored information or “ESI”) subject to protection by the
attomey-client and/or work product doctrine or by another legal privilege
protecting information from discovery, shall not constitute a waiver of any
privilege or other protection, provided that the producing party notifies the

receiving party, in writing, of the production after its discovery of the same.

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b. if the producing party notifies the receiving party after discovery that
privileged materials (hereinafter referred to as the “Identified Materials”)
have been produced, the Identified Materials and all copies of those
materials shall be returned to the producing party or destroyed or deleted,
on request of the producing party. The producing party will provide a
privilege log providing information upon request or if required by Rule
26(b)(5)(A) of the Federal Rules of Civil Procedure and applicable case law
to the receiving party at the time the producing party provides the receiving
party notice of the Identified Materials. If the receiving party has any notes
or other work product reflecting the contents of the Identified Materials,
the receiving party will not review or use those materials unless a court later
designates the Identified Materials as not privileged or protected.

c. The Identified Materials shall be deleted from any systems used to house
the documents, including document review databases, e-rooms and any
other location that stores the documents. The receiving party may make no
use of the Identified Materials during any aspect of this matter or any other
matter, including in depositions or at trial, unless the documents have been
designated by a court as not privileged or protected.

d. The contents of the Identified Materials shall not be disclosed to anyone
who was not already aware of the contents of them before the notice was
made. The receiving party must take reasonable steps to retrieve the
Identified Materials if the receiving party disclosed the Identified Materials

before being notified.

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e. If any receiving party is in receipt of a document from a producing party
which the receiving party has reason to believe is privileged, the receiving
party shall in good faith take reasonable steps to promptly notify the
producing party of the production of that document so that the producing
party may make a determination of whether it wishes to have the documents
returned or destroyed pursuant to this Stipulation and Order.

f The party returning the Identified Materials may move the Court for an
order compelling production of some or all of the Identified Material
returned or destroyed, but the basis for such motion may not be based on
the fact or circumstances of the production.

g. The disclosure of Identified Materials in this action is not a waiver of the
attorney-client privilege, work product doctrine or any other asserted
privilege in any other federal or state proceeding, pursuant to Rule 502(d),
Federal Rules of Evidence.

17. No provision of this stipulated order shall constitute a concession by any party that
any documents are subject to protection by the attorney-client privilege, the work product doctrine
or any other potentially applicable privilege or doctrine. No provision of this stipulated order is
intended to waive or limit in any way either party’s right to contest any privilege claims that may
be asserted with respect to any of the documents produced except to the extent set forth herein.

18. —_ In the event that a party produces a document without a confidentiality designation
as permitted by this Order, the following procedures shall apply:

a. The producing party shall, within fourteen (14) days of the discovery of the

disclosure, notify the other party in writing. The party receiving such notice

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shall promptly destroy the document, including any copies it has, or return
‘the document on request of the producing party, Within ten (10) days after
such document is returned or its destruction certified, the producing party
will produce a new version of any such document that was returned or
destroyed, which will contain the appropriate confidentiality designation.

b. If ‘the receiving party disputes the producing party’s claim of
confidentiality, that party may move the Court to challenge the confidential
designation in accordance with Paragraph 4 of this Order. If the receiving
party elects to file such a motion, the receiving party may retain possession
of the document, but shall treat it in accordance with the terms of the
Protective Order pending resolution of the motion. If the receiving party's
motion is denied, the parties shall promptly comply with Paragraph 18(a) of
this Order.

c. The production of such document does not constitute a waiver of any claim
of confidentiality as set forth in this order or any other matter in any other
jurisdiction, unless otherwise ordered by the Court.

19. This Protective Order may not be waived, modified, abandoned or terminated, in
whole or part, except by an instrument in writing signed by the parties. If any provision of this
Protective Order shall be held invalid for any reason whatsoever, the remaining provisions shall
not be affected thereby.

20. _— After termination of this litigation, the provisions of this Order shall continue to be

binding. This Court retains and shall have jurisdiction over the parties and recipients of the

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Protected Documents for enforcement of the provisions of this Order following termination of this

litigation.

21. This Protective Order shall be binding upon the parties hereto, upon their attorneys,

and upon the parties’ and their attorneys’ successors, executors, personal representatives,

administrators, heirs, legal representatives, assigns, subsidiaries, divisions, employees, agents,

independent contractors, or other persons or organizations over which they have control.

¥ F,
SO ORDERED, thisQ{” day of chy wary, 2024.

HONORABLE BARRY AZ BRYANT
UNITED STATES MA: TE JUDGE
APPROVED BY:
/s/Paul Byrd
Paul Byrd

Paul Byrd Law Firm, PLLC

415 N. McKinley St., Ste. 210

Little Rock, AR 72205

Paul Byrd paul@paulbyrdlawfirm.com

Attorneys for plaintiffs

By/s/ Edwin L. Lowther, Jr.

Edwin L. Lowther, Jr. (81107)

WRIGHT, LINDSEY & JENNINGS LLP
200 West Capitol Avenue, Suite 2300
Little Rock, Arkansas 72201-3699

(501) 371-0808

FAX: (501) 376-9442

E-MAIL: elowther@wlj.com

Attorneys for Ford Motor Company

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EXHIBIT A

AFFIDAVIT OF , being duly sworn and

personally appearing before the undersigned attesting officer, duly authorized by law to administer
oaths, deposes and says that the within statements are true and correct:
1.
I have read the Stipulated Protective Order attached hereto, and J understand its terms and
meanings.
2.
I agree that my signature below submits me to the jurisdiction of the United States District
Court Western District of Arkansas, El Dorado Division, in the above captioned case and binds
me to the provisions of the Stipulated Protective Order, including to all promises undertaken in the
Order, as if originally agreed by me.

Further Affiant sayeth not.

This day of , 20

AFFIANT

SUBSCRIBED AND SWORN to before me
this day of ;

NOTARY PUBLIC
Name:

No.:

My Commission Expires:

12