Parrott et al v. West Fraser, Inc. et al

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
EL DORADO DIVISION
CALEB PARROTT and
SHELBYE PARROTT 	PLAINTIFFS
v. 	Case No. 1:23-cv-01030
EDWARD HENSON and
WEST FRASER, INC. 	DEFENDANTS
ORDER
Before the Court is the parties’ Joint Motion for Entry of Agreed Protective Order. ECF
No. 28. 	The parties seek the entry of a protective order to assist in the protection of “[c]ertain
documents and information the Parties seek or will likely seek through discovery in this action
[that] will contain confidential, proprietary, protected, and/or trade secret information in which the
Parties have legitimate confidentiality and privacy interests.” Id. The parties have attached their
proposed protective order that they wish the Court to enter. 	ECF No. 28-1. 	Upon review, the
Court finds that good cause for the instant motion has been shown. However, the Court found it
prudent to add language requiring the parties to seek leave of court before filing any documents
under seal. The parties’ Joint Motion for Entry of Agreed Protective Order (ECF No. 28) is hereby
GRANTED. The protective order is as follows:
The parties have agreed to this Agreed Protective Order; accordingly, it is ORDERED:
1. 	Scope. All materials produced or adduced in the course of discovery, responses to
discovery requests, deposition testimony and exhibits, and information derived directly therefrom
(hereinafter collectively “documents”), shall be subject to this Order concerning designations of
“Confidential Information” and “Attorneys’ Eyes Only Information”, as defined below. 	This
Case 1:23-cv-01030-SOH Document 29 Filed 08/29/23 Page 1 of 10 PageID #:
<pageID>

2
Order is subject to the Federal Rules of Civil Procedure on matters of procedure and calculation
of time periods.
2. 	Confidential Information. 	As used in this Order, “Confidential Information”
means: (a) information protected from disclosure by statute; (b) information that reveals trade
secrets; (c) confidential research, development, or commercial information; (d) personal identity
information; (e) personnel or employment records of a person who is not a party to the case; and/or
(f) business, proprietary, financial/economically sensitive information. Information or documents
that are available to the public may not be designated as Confidential Information.
3. 	Attorneys’ Eyes Only Information. As used in this Order, “Attorneys’ Eyes Only
Information” means only such Confidential Information as the Designating Party in good faith
contends is especially sensitive and may compromise and/or jeopardize a party’s or non-party’s
private and identifiable financial information or legitimate business interests.
4. 	Designation.
(a) 	A party may designate a document as Confidential Information for protection
under this Order by placing or affixing the words “CONFIDENTIAL - SUBJECT TO
PROTECTIVE ORDER” on the document and on all copies in a manner that will not interfere
with the legibility of the document. As used in this Order, “copies” includes electronic images,
duplicates, extracts, summaries, descriptions, or correspondence from counsel of record that
contain the Confidential Information. 	The marking “CONFIDENTIAL - SUBJECT TO
PROTECTIVE ORDER”, shall be applied prior to or at the time the documents or information
are produced 	or 	disclosed. 	Applying 	the marking 	“CONFIDENTIAL 	- 	SUBJECT 	TO
PROTECTIVE ORDER” to a document does not mean that the document has any status or
protection by statute or otherwise except for the purposes of this Order. Any copies that are made
of any documents marked “CONFIDENTIAL - SUBJECT TO PROTECTIVE ORDER” shall
Case 1:23-cv-01030-SOH Document 29 Filed 08/29/23 Page 2 of 10 PageID #:
<pageID>

3
also be so marked. 	A party may also designate an interrogatory answer as Confidential by
inserting the word “CONFIDENTIAL” in brackets at the beginning of each answer claimed to
contain confidential information.
(b) 	A party may also designate a document as Attorneys’ Eyes Only Information by
placing or affixing the words “CONFIDENTIAL – FOR ATTORNEYS’ EYES ONLY” on the
document and on all copies in a manner that will not interfere with the legibility of the document.
As used in this Order, “copies” includes electronic images, duplicates, extracts, summaries,
descriptions, or correspondence from counsel of record that contain the documents or information
designated as Attorneys’ Eyes Only Information. 	Applying the marking “CONFIDENTIAL –
FOR ATTORNEYS’ EYES ONLY” to a document does not mean that the document has any
status or protection by statute or otherwise except for the purposes of this Order. Any copies that
are made of any documents marked “CONFIDENTIAL – FOR ATTORNEYS’ EYES ONLY”
shall also be so marked. A party may also designate an interrogatory answer as Attorneys’ Eyes
Only Information by inserting the word “CONFIDENTIAL – FOR ATTORNEYS’ EYES ONLY”
in brackets at the beginning of each answer claimed to contain confidential information.
(c) 	A party may designate a document as Confidential Information or Attorneys’ Eyes
Only Information only after review of the document by an attorney who has in good faith
determined that the document contains Confidential Information or Attorneys’ Eyes Only
Information as defined in this order.
5. 	Depositions. 	No later than the fourteenth day after receipt of the deposition
transcript, a party may serve a Notice of Designation to all parties of record as to specific portions
of 	the testimony 	that 	are 	designated 	Confidential 	Information 	or 	Attorneys’ 	Eyes 	Only
Information, and thereafter those portions identified in the Notice of Designation shall be protected
Case 1:23-cv-01030-SOH Document 29 Filed 08/29/23 Page 3 of 10 PageID #:
<pageID>

4
under the terms of this Order unless counsel or another party objects, which will result in the parties
taking the matter before the Court. The failure to serve a timely Notice of Designation shall waive
any designation of testimony taken in that deposition as Confidential Information or Attorneys’
Eyes Only Information unless an attorney or party designates such information during the
deposition as Confidential Information or Attorneys’ Eyes Only Information.
6. 	Protection of Confidential Material.
(a) 	General Protections. Confidential Information shall not be used or disclosed by
the parties, counsel for the parties, or any other persons identified in subparagraph 6(b) other than
to conduct discovery and litigate this action, including any appeal thereof.
(b) 	Limited Third-Party Disclosures. The parties and counsel for the parties shall
not disclose or permit the disclosure of any Confidential Information to any third person or entity
except as set forth in subparagraphs (1)-(8). 	Subject to these requirements, the following
categories of persons may be allowed to review Confidential Information as marked under Section
4(a) of this Order:
(1) 	Counsel. 	Counsel for the parties and employees of counsel who have
responsibility for the preparation and trial of the action;
(2) 	Parties. Individual parties and employees of a party but only to the extent
counsel 	determines 	in 	good 	faith 	that 	the 	employee's 	assistance 	is
reasonably necessary to the pursuit or defense of the litigation;
(3) 	The Court and its personnel;
(4) 	Court Reporters and Recorders. Court reporters and recorders engaged
for depositions;
Case 1:23-cv-01030-SOH Document 29 Filed 08/29/23 Page 4 of 10 PageID #:
<pageID>

5
(5) 	Contractors. Those persons specifically engaged for the limited purpose
of making copies of documents, storing documents, conducting electronic
searches of documents, or organizing or processing documents (including
e-Discovery vendors);
(6) 	Consultants and Experts. 	Consultants, investigators, or experts
employed by the parties or counsel for the parties to assist in the
preparation and trial of this action but only after such persons have
completed the certification contained in Attachment A, Acknowledgment
of Understanding and Agreement to Be Bound;
(7) 	Witnesses at depositions. 	During their depositions, witnesses in this
action to whom disclosure is reasonably necessary. 	Witnesses shall not
retain a copy of documents containing Confidential Information, except
witnesses may receive a copy of all exhibits marked at their depositions in
connection with review of the transcripts. Pages of transcribed deposition
testimony or exhibits to depositions that are designated as Confidential
Information pursuant to the process set out in this Order must be separately
bound by the court reporter and may not be disclosed to anyone except as
permitted under this Order; and
(8) 	Others by Consent. 	Other persons only by written consent of the
producing party or upon order of the Court and on such conditions as may
be agreed or ordered.
(c) 	Protections for Documents or Information Marked as Confidential – For
Attorneys’ Eyes Only. 	If a party marks any document or information as “Confidential – For
Case 1:23-cv-01030-SOH Document 29 Filed 08/29/23 Page 5 of 10 PageID #:
<pageID>

6
Attorneys’ Eyes Only” pursuant to section 4(b) of this Order, then the counsel for the party
receiving the document or information must limit its disclosure only to 1) in-house counsel and
counsel of record for the parties, and their associates, law clerks, paralegals, employees, staff, and
Contractors, as defined in 6(b)(5), 2) experts and their staff consulted or retained by counsel of
record, and 3) witnesses who received a copy or were copied on the Attorneys’ Eyes Only
document. 	The only exception to this is if a party provides the document or information to the
Court and its personnel in a challenge to the designation as set forth in section 9(b) below.
(d) 	Control of Documents. Counsel for the parties shall make reasonable efforts to
prevent unauthorized or inadvertent disclosure of Confidential Information and Attorneys’ Eyes
Only Information.
7. 	Filing of Confidential Information. Any confidential material disclosed in any
pleading, motion, deposition transcript, brief, exhibit, or other filing with the Court shall be
maintained under seal. To the extent such confidential filing is capable of redaction, the redacted
version of the document is to be filed on the public docket, with the unredacted version filed in
CM/ECF using the Civil RESTRICTED event  Sealed Document. 	The redacted version of a
confidential filing may include, when necessary, slip sheets appropriately labeled “UNDER
SEAL” to indicate the exhibits or other materials that have been omitted in their entirety from the
public filing. The parties must seek leave of court prior to filing any documents under seal.
8. 	No Greater Protection of Specific Documents. 	No party may withhold
information from discovery on the ground that it requires protection greater than that afforded by
this Order unless the party moves for an order providing such special protection.
9. 	Challenges by a Party to Designation as Confidential Information. 	The
designation of any material or document as Confidential Information or Attorneys’ Eyes Only
Case 1:23-cv-01030-SOH Document 29 Filed 08/29/23 Page 6 of 10 PageID #:
<pageID>

7
Information is subject to challenge by any party. The following procedure shall apply to any such
challenge:
(a) 	Meet and Confer. A party challenging the designation of Confidential Information
or Attorneys’ Eyes Only Information must do so in good faith and must begin the process by
conferring directly with counsel for the designating party. 	In conferring, the challenging party
must explain the basis for its belief that the confidentiality designation was not proper and must
give the designating party an opportunity to review the designated material, to reconsider the
designation, and, if no change in designation is offered, to explain the basis for the designation.
The designating party must respond to the challenge within five (5) business days.
(b) 	Judicial 	Intervention. 	A 	party 	that 	elects 	to 	challenge 	a 	confidentiality
designation may file and serve a motion that identifies the challenged material and sets forth in
detail the basis for the challenge. 	Each such motion must be accompanied by a competent
declaration that affirms that the movant has complied with the meet and confer requirements of
this procedure. 	The burden of persuasion in any such challenge proceeding shall be on the
designating party. 	Until the Court rules on the challenge, all parties shall continue to treat the
materials as Confidential Information or Attorneys’ Eyes Only Information under the terms of this
Order.
10. 	Action by the Court. Applications to the Court for an order relating to materials
or documents designated Confidential Information or Attorneys’ Eyes Only Information shall be
by motion. Nothing in this Order or any action or agreement of a party under this Order limits the
Court's power to make orders concerning the disclosure of documents produced in discovery or at
trial.
Case 1:23-cv-01030-SOH Document 29 Filed 08/29/23 Page 7 of 10 PageID #:
<pageID>

8
11. 	Use of Confidential Documents or Information at Hearing or Trial. Nothing
in this Order shall be construed to affect the admissibility of any document, material, or
information at any trial or hearing. A party that intends to present or that anticipates that another
party may present Confidential Information or Attorneys’ Eyes Only Information at a hearing or
trial shall bring that issue to the Court’s and parties’ attention by motion or in a pretrial
memorandum 	without 	disclosing 	the 	Confidential 	Information 	or 	Attorneys’ 	Eyes 	Only
Information. 	The Court may thereafter make such orders as are necessary to govern the use of
such documents or information at the hearing or trial.
12. 	Confidential Information Subpoenaed or Ordered to be Produced in Other
Litigation.
(a) 	If a party is served with a subpoena or an order issued in other litigation that would
compel disclosure of any material or document designated in this action as Confidential
Information or Attorneys’ Eyes Only Information, the receiving party must notify the designating
party in writing, within five business days after receiving the subpoena or order. Such notification
must include a copy of the subpoena or court order.
(b) 	The receiving party also must immediately inform in writing the party who caused
the subpoena or order to issue in the other litigation that some or all of the material covered by the
subpoena or order is the subject of this Order. In addition, the receiving party must deliver a copy
of this Order promptly to the party in the other action that caused the subpoena to issue.
(c) 	The purpose of imposing these duties is to alert the interested persons to the
existence of this Order and to afford the designating party in this case an opportunity to try to
protect its Confidential Information or Attorneys’ Eyes Only Information in the court from which
the subpoena or order issued. 	The designating party shall bear the burden and the expense of
Case 1:23-cv-01030-SOH Document 29 Filed 08/29/23 Page 8 of 10 PageID #:
<pageID>

9
seeking protection in that court of its Confidential Information or Attorneys’ Eyes Only
Information and nothing in these provisions should be construed as authorizing or encouraging a
receiving party in this action to disobey a lawful directive from another court. The obligations set
forth in this paragraph remain in effect while the party has in its possession, custody, or control,
Confidential Information or Attorneys’ Eyes Only Information by the other party to this case.
13. 	Obligations on Conclusion of Litigation.
(a) 	Unless otherwise agreed or ordered, this Order shall remain in force after dismissal
or entry of final judgment not subject to further appeal.
(b) 	Within thirty days after dismissal or entry of final judgment not subject to further
appeal, all Confidential Information and Attorneys’ Eyes Only Information under this Order,
including copies, shall be returned to the producing party unless: (1) the document has been offered
into evidence or accepted by the Court, without restriction as to disclosure; (2) the parties agree to
destruction in lieu of return; or (3) as to documents bearing the notations, summations, or other
mental impressions of the receiving party, that party elects to destroy the documents, and certifies
to the producing party that it has done so. Notwithstanding the above requirements to return or
destroy documents, counsel may retain one complete set of all documents filed with the Court,
including those filed under seal; and any attorney-work product, including an index which refers
or relates to designated Confidential Information or Attorneys’ Eyes Only Information, so long
as, that work product does not duplicate verbatim substantial portions of Confidential Information
or Attorneys’ Eyes Only Information. Any retained Confidential Information or Attorneys’ Eyes
Only Information shall continue to be protected under this Order. An attorney may use his or her
work product in subsequent litigation, provided that its use does not disclose or use Confidential
Information or Attorneys’ Eyes Only Information.
Case 1:23-cv-01030-SOH Document 29 Filed 08/29/23 Page 9 of 10 PageID #:
<pageID>

10
14. 	Order Subject to Modification. 	This Order shall be subject to modification by
the Court on its own initiative or on motion of a party or any other person with standing concerning
the subject matter.
15. 	No 	Prior 	Judicial 	Determination. 	This 	Order 	is 	entered 	based 	on 	the
representations and agreements of the parties and for the purpose of facilitating discovery.
Nothing herein shall be construed or presented as a judicial determination that any document or
material designated Confidential Information or Attorneys’ Eyes Only Information by counsel or
the parties is entitled to protection under Arkansas Rule of Civil Procedure 26(c) or otherwise until
such time as the Court may rule on a specific document or issue.
16. 	Persons Bound. 	This Order shall take effect when entered and shall be binding
upon all counsel of record and their law firms, the parties, and persons made subject to this Order
by its terms.
IT IS SO ORDERED, this 29th day of August, 2023.
/s/ Susan O. Hickey
Susan O. Hickey
Chief United States District Judge
Case 1:23-cv-01030-SOH Document 29 Filed 08/29/23 Page 10 of 10 PageID #:
<pageID>