Reed v. FedEx Freight, Inc.

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
TEXARKANA DIVISION
JAMIE REED 	PLAINTIFF
v. 	Case No. 4:24-cv-4104
FEDEX FREIGHT, INC. 	DEFENDANT
ORDER
Before the Court is the parties’ Joint Motion for Protective Order. ECF No. 14. The parties
seek a protective order to safeguard the confidentiality of discovery material shared between the
parties during this action. The parties have provided their Proposed Protective Order (ECF No.
14-1) with the instant motion.
Upon review, the Court finds that the parties’ Joint Motion for Protective Order (ECF No.
14) should be and is hereby GRANTED. However, the Court finds it necessary to add language
to the protective order requiring that the parties seek and obtain leave of the Court prior to filing
any material under seal.0F
1
The Protective Order is as follows:
1.
The Parties anticipate the production of confidential, proprietary, commercially sensitive
and/or trade secret materials during discovery or at hearings in this case. In addition, the Parties
anticipate that this case will involve the production of certain private information regarding non-
parties. 	The Parties reasonably believe that the entry of this Protective Order is necessary and
proper to: 1) protect FedEx from competitive harm in the marketplace; and 2) prevent the harm
that would result from the unnecessary public dissemination of private information relating to non-
1 The Court is also altering the parties’ erroneous reference to the United States District Court for the Northern District
of Texas in § 9 of the Proposed Protective Order. ECF No. 14, p. 7.
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parties or to the medical treatment of Plaintiff. 	The specific categories of information to be
protected as well as each basis for protection are detailed below.
2.
The Parties agree that this Protective Order shall govern the pre-trial disclosure and use of
information, 	documents, 	tangible 	materials, 	testimony, 	responses 	to 	discovery 	and 	other
information (or the contents and substance thereof) produced, served, disclosed, or filed by any
party or third-party deponent or witness during the course of this litigation, whether produced
voluntarily pursuant to a request under the Federal Rules of Civil Procedure, through discovery or
other proceedings, or contained in any motion, pleadings, affidavit or brief, including, without
limitation, all copies, excerpts, and summaries (collectively “Material”) submitted to the Court
during the course of this litigation or in connection with this action.
3.
As used herein, the meanings of the following terms are defined:
A. 	“Confidential Material” means: (1) “Trade Secrets” (as defined below in
Paragraph 3F or (2) those specific categories of documents or materials described below in
Paragraph 4.
B. 	“Designator” means one who provides, serves, discloses, or files any Non-Public
Material that has been designated as “Confidential” in connection with this action.
C. 	“Non-Public” means material that is not readily ascertainable and that which the
Designator has taken reasonable steps to maintain in secrecy. To the extent that a Designator
seeks protection for material that may not constitute a Trade Secret as defined below (see ¶ 3F),
the parties have described categories of information with reasonable specificity and have
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explained why a substantial privacy interest exists in keeping those categories of information
from public disclosure. These categories are described below in Paragraph 4.
D. 	“Parties” means, and is limited to, Jamie Reed and FedEx Freight, Inc. (“FedEx”),
the named parties to this lawsuit.
E. 	“Person” means any individual who has agreed to be bound by this Order by
signing the “Agreement to Be Bound by Court’s Confidentiality Order.” A copy of this
Agreement is attached as “Exhibit A.”
F. 	“Trade Secret” means a secret meeting the definition of a “trade secret” under
A.C.A. § 4-75-601(4): “Trade Secret” means information, including a formula, drawing, pattern,
compilation including a customer list, program, device, method, technique or process that: (1)
derives independent economic value, actual or potential, from not being generally known to, and
not being readily ascertainable by proper means by, other persons who can obtain economic value
from its disclosure or use; and (2) is the subject of efforts that are reasonable under the
circumstances to maintain its secrecy.
4.
The Parties have an interest in keeping documents or materials confidential if such
materials contain: 1) Trade Secrets, or 2) fall within the specific categories of materials
identified below that would either cause competitive injury if revealed or would needlessly
subject non-parties to the annoyance, embarrassment, and undue burden of having certain private
information made public. To the extent the Parties designate materials that may not constitute a
Trade Secret, a specific category or categories of “Confidential” materials are described in the
subparagraphs below along with an explanation of why the Parties have a privacy interest in
these categories of material:
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A. 	“Marketing Strategy Documents” means Non-Public documents containing
information regarding FedEx’s strategy to improve or increase market share or that disclose
FedEx’s strategies and methods of selling or marketing its products or services. “Marketing
Strategy Documents” could be used by competitors to disrupt or preempt FedEx’s efforts to
improve or increase its position in the marketplace. See Sullivan Mktg. v. Valassis Comm’ns,
1994 U.S. Dist. LEXIS 5824, *3 (S.D.N.Y. May 5, 1994)(“pricing and marketing strategies are
widely held to be confidential business information that may be subject to a protective order”).
B. 	“Reorganization Documents” means Non-Public documents containing
information regarding FedEx’s plan for, and implementation of, any relevant recent corporate
reorganization. Such documents include materials containing discussion or analysis of the effect
and costs of such corporate reorganization. Reorganization Documents could be used by a
competitor to disrupt or preempt FedEx’s efforts to better position itself in the marketplace and
align itself with its customers’ needs. Reorganization Documents could also be used by a
competitor to reorganize and implement those strategies that have proven successful for FedEx
without having to incur the costs/risks associated with creating and implementing new strategies.
See C.A. Muer Corp. v. Big River Fish Co., 1998 U.S. Dist. LEXIS 12639, *5 (E.D.Pa. Aug. 10,
1998)(“Commercial information such as…documents related to corporate structure have been
protected by courts….”); Brittain v. Stroh Brewery Co., 136 F.R.D. 408, 415 (M.D.N.C.
1991)(Noting that “commercial information, which encompasses strategies, techniques, goals
and plans, can be the lifeblood of a business” and that such “information may [] be particularly
deserving of protection if the disclosing corporation is vulnerable to competitors.”).
C. 	“Non-Party Personnel Documents” means documents included in the personnel
and employment files, maintained in the regular course of FedEx’s business, of any employee or
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former employee who is not a party to this action. 	These documents include information
relating to one or more of the following types of private information:
(a) 	Social security numbers or other government-issued number by which a social
security number is ascertainable;
(b) 	Compensation, benefits, salaries and rates of pay;
(c) 	Results of drug testing;
(d) 	Criminal history;
(e) 	Accommodations for disabilities;
(f) 	Medical history or treatment information;
(g) 	Wage information and financial or credit history, including garnishments;
(h) 	Documents relating to specific individual complaints of discrimination, filed
internally or externally, where an employee is identifiable;
(i) 	Any document that describes disciplinary action or the reason for termination,
where an employee is identifiable; and
(j) 	Any document that describes a manager’s assessment of the employee’s work
performance, where an employee is identifiable.
Defendant may redact any social security numbers set forth in any documents produced, as well
as the address and telephone number of any current or former supervisory-level employees. The
confidential information provided shall also exclude wages, salary and benefits by redaction.
See Gehring v. Case Corp., 43 F.3d 340, 342 (7 th Cir. 1994)(privacy interest justifies limiting
counsel’s ability to root through personnel files of non-party employees); Knoll v. AT&T Corp.,
176 F.3d 369 (6th Cir. 1999)(employer has valid interest in the privacy of non-party personnel
files that justifies district court’s grant of protective order); R&R Packaging, Inc. v. Evenflo Co.,
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2021 U.S. Dist. LEXIS 136338, *4 (W.D.Ark., July 22, 2021)(finding good cause for entry of a
protective order for personnel files); Nuckles v. Wal-Mart Stores, Inc., 2007 U.S. Dist. LEXIS
34339, *2 (E.D.Ark., May 10, 2007)(“[t]here is a strong public policy against the public
disclosure of personnel files”).
D. 	“Medical Records of Plaintiff” means the records and notes received from
Plaintiff’s health care providers regarding the medical treatment and counseling of Plaintiff.
E. 	“Financial Records of Plaintiff” means the wage and benefit information and
financial and credit history pertaining to Plaintiff.
5.
In the event that any documents, materials, testimony, or other matters produced during the
course of discovery are designated as “Confidential” in accordance with this Order, such
documents, materials, testimony, or other matters, and the information therein, shall be maintained
in confidence and shall be subject to the remaining provisions of this Order.
6.
A Designator may designate material as “Confidential” only if that material is (1) a Trade Secret
or (2) falls within the specific categories of materials described above in Paragraph 4. The material
so designated shall be deemed “Confidential Material” subject to this Protective Order. 	In
designating materials, the Parties will designate only those portions of materials that contain Trade
Secrets or fall within the specific categories of materials. If materials or documents also contain
information that is not a Trade Secret or does not fall within the specific categories of materials
described above in Paragraph 4, the Parties will endeavor in good faith to redact only those portions
of the materials that contain Trade Secret material or fall within the specific categories of materials
described in Paragraph 4.
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7.
The restrictions set forth in this Protective Order shall not apply to information or tangible
items which, at or prior to disclosure in this action, have been placed in the public domain by the
producing party or which, after disclosure, come within public knowledge, in substantially the
same form in which it is being produced, other than by act or omission of the one receiving the
Material or its agents, consultants, or attorneys.
8.
Subject to Paragraph 11 below, any and all documents, materials, testimony or other
matters developed during the course of discovery and designated as “Confidential” shall be used
solely for the purpose of this lawsuit.
9.
When any “Confidential Material” is embodied in any document, or attachment thereto,
which is ultimately filed with this Court, it shall be designated as “confidential” and shall be
maintained under seal of the Clerk of the United States District Court for the Western District of
Arkansas. 	Documents filed under seal shall not be made public or unsealed unless done so by
order of the Court. If the Parties, in good faith, believe that Confidential Material will be presented
in a pretrial proceeding or at trial, and that such presentation is likely to result in irreparable harm,
the Court will entertain a motion filed by either party to place such pretrial proceeding under seal.
Parties must seek and obtain leave of the Court prior to filing any material under seal. Confidential
performance reviews or disciplinary records that are proffered in support of or in response to a
Motion for Summary Judgment in this action may be filed unsealed and excluded from the
restrictions of this Order.
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10.
Deposition testimony and exhibits containing Confidential Material may be designated as
“confidential” either at the time of the deposition or by written notice to opposing counsel and the
court reporter not later than ten (10) business days after receipt of the deposition transcript. During
such ten (10) business day period, the entire deposition transcript and all exhibits shall be deemed
Confidential Material for the purposes of this Protective Order. Thereafter, only those portions of
the transcript and exhibits that have been designated as Confidential Material shall be so treated.
11.
The designation of such documents or information as Confidential Material shall mean that
such Confidential Material shall be used only for the purpose of this action and shall not be
disclosed or transmitted, verbatim or in substance, to anyone except the following:
(a) 	To the named Plaintiff or Defendant and their respective counsel of record (hereby
defined to include other attorneys and staff in their law firm/law departments who
are working on this case) who have a need to review the information;
(b) 	To deponents and witnesses provided such deponents or witnesses expressly agree
by signing the attached Agreement to be bound by the terms of this Confidentiality
Order and not to disclose Confidential Material to any party or person outside this
litigation;
(c) 	To expert witnesses for use only in connection with their roles as experts in this
action, provided such expert witnesses or prospective expert witnesses expressly
agree by signing the attached Agreement to be bound by the terms of this
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Confidentiality Order and not to disclose Confidential Material to any party or
person outside this litigation;
(d) 	To witnesses involved in any hearing or proceeding conducted by the Court, and
witnesses who are otherwise involved in assisting in the preparation of this action,
provided that Confidential Material is only shown to such person and such person
states that he or she agrees to be bound by the terms of this Confidentiality Order
by signing the attached Agreement.
(e) 	To the Equal Employment Opportunity Commission, the Office of Federal Contract
Compliance Programs, or any other government agency with jurisdiction over
issues covered in this action;
(f) 	To the Court and the jury during the trial in this case;
(g) 	To court reporters and their stenographic employees transcribing testimony in and
from notes taken during depositions and hearings held in connection with this
action;
(h) 	To a mediator appointed by the court or agreed to by the parties to assist with
settlement negotiations in this case; and
(i) 	Any other person agreed to by the parties or as the Court may direct.
Each individual to whom disclosure is made shall first agree to be bound by the provisions of this
Confidentiality Order. In the event that a non-party witness refuses to agree to be bound by this
Confidentiality Order, the Parties will endeavor to resolve the issue amongst themselves before
seeking court intervention.
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12.
Neither Plaintiff nor Defendant nor their counsel of record shall copy, transcribe, or
otherwise reproduce in written or any other form any part or portion of any Confidential Material
except as necessary for purposes of this litigation.
13.
Neither Plaintiff nor Defendant nor their counsel of record shall discuss or disclose the contents of
any Confidential Material with any other person, except between themselves for purposes of this
action or as otherwise permitted in this Protective Order. 	Nothing in this Order shall bar or
otherwise restrict any attorney for either of the Parties from rendering advice to his or her client
with respect to this litigation and, in the course thereof, referring to or relying in a general way
upon his examination of “Confidential Material(s)” produced herein; provided, however, that in
rendering such advice and in otherwise communicating with his or her client, the attorney shall
not disclose the contents of or the source of any “Confidential Material” produced, the disclosure
of which would be contrary to the terms of this Order.
14.
Nothing in this Protective Order shall prohibit the Parties or a non-party from objecting to
the production or disclosure of Confidential Material solely on the grounds that such information
is confidential or sensitive, and likewise nothing contained herein shall preclude any Party or non-
party from challenging the confidential designation of any document or information. Furthermore,
nothing in this Protective Order shall preclude the parties from objecting to the admissibility or
use of the Confidential Material in this litigation or in any other proceeding.
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15.
Where disputes arise as to the applicability of this Protective Order to any document or
information produced or provided by Plaintiff or Defendant, such disputes shall be resolved, if
possible, by agreement of the parties and/or non-parties. If after a reasonable time and effort the
parties or non-parties cannot reach an agreement to resolve such a dispute, the party or non-party
seeking to remove the “confidential” designation may move the Court to rule on the issue.
Documents or information designated as Confidential Material pursuant to this Protective Order
shall be treated as such unless and until the Court rules otherwise. 	This Protective Order shall
remain in full force and effect until modified, superseded or terminated by consent of the specified
parties or non-parties or by order of the Court made upon reasonable, written request.
16.
The unintentional disclosure of any Confidential Material by the designating party shall
not be construed to be a waiver, in whole or in part, of that party’s claims of privilege, work product
immunity, or the confidentiality of the specific Confidential Material disclosed or as to any other
related information. 	In the event of any unintentional disclosure to non-parties of Confidential
Material, the producing party shall promptly notify the receiving party and make every effort to
prevent further unauthorized disclosure. 	The receiving party shall retrieve and return any such
material and counsel shall not use such information for any purpose until further order of the Court.
Any analyses, memoranda or notes that were generated based upon such unintentionally-produced
information shall be immediately treated in conformance with the protected nature of the
information.
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17.
Prior to the trial of this matter, the Parties shall confer in good faith in an effort to reach
agreement concerning a joint proposal to the Court with respect to the handling of “Confidential
Materials” at trial, and shall make such a proposal no later than the final pretrial conference in this
case. If the Parties are unable to reach an agreement on this subject, each party may make its own
submission to the Court no later than the final pretrial conference.
18.
The provisions of this Protective Order shall apply from the date this Order is entered to
any and all documents produced in this case and to any and all information produced, obtained, or
disclosed, whether produced, obtained, or disclosed before or after the entry of this Order.
19.
Within sixty (60) business days after the conclusion of this litigation, by settlement or
adjudication, including any appellate proceeding, counsel shall collect from the parties, witnesses,
experts, employees, and any others to whom Confidential Material has been revealed under this
Protective Order, all Confidential Material (and all copies, transcriptions, or reproductions in any
form whatsoever) in their possession, custody or control, including deposition transcripts marked
as containing Confidential Material, and destroy such Confidential Material. In addition, any non-
privileged abstracts or summaries of such Confidential Material prepared by the parties or their
counsel or experts shall be returned to the counsel for Defendant or destroyed. 	Therefore, the
parties shall provide opposing counsel a communication attesting that the party and its counsel is
in compliance with this provision in the Order. Notwithstanding the foregoing, at the close of the
case, counsel for both parties may retain copies of those Confidential documents that are filed with
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the Court, used at trial, or made an exhibit to a deposition so long as those documents are held in
the strictest confidence and remain subject to the provisions of this Order.
20.
This Protective Order is entered without prejudice to the right of any party or non-party to
seek modification of this Order for good cause.
21.
The Court shall retain jurisdiction, both before and after the entry of final judgment in this
case, whether by settlement or adjudication, to construe, enforce, and amend the provisions of this
Protective Order.
IT IS SO ORDERED, this 2nd day of April, 2025.
/s/ Susan O. Hickey
Susan O. Hickey
Chief United States District Judge
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