Jones v. The Whirlpool Corporation, et al

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
JARVIS JONES, 	)
Plaintiff, 	)
)
v. 	) CIVIL ACTION NO. 1:22-00475-KD-N
)
THE WHIRLPOOL 	)
CORPORATION, 	)
Defendant. 	)
PROTECTIVE ORDER
This action is before the Court1 on an unopposed motion for a protective order
under 	Fed. 	R. 	Civ. 	P. 	26(c) 	filed 	by 	Defendant 	The 	Whirlpool 	Corporation
(“Whirlpool”) 	on 	May 	16, 	2023. 	(Doc. 	28). 	Upon 	consideration, 	the 	motion 	is
GRANTED in part and DENIED in part, in that the undersigned will enter the
proposed protective order (Doc. 28), but with modifications as set out below.
Accordingly, and to expedite the flow of discovery material, facilitate the
prompt resolution of disputes over confidentiality, adequately protect material
entitled to be kept confidential, and ensure that protection is afforded only to material
so entitled, it is, pursuant to the Court’s authority under Fed. R. Civ. P. 26(c),
ORDERED as follows:
1. 	PROTECTED DISCOVERY MATERIAL: This Order shall govern all
protected discovery materials produced or disclosed during this litigation, including
the following: documents, things, data and information, answers to interrogatories,
1 The assigned District Judge has referred this motion to the undersigned Magistrate Judge for
appropriate action under 28 U.S.C. § 636(a)-(b), Federal Rule of Civil Procedure 72 and S.D. Ala.
GenLR 72(a). See S.D. Ala. GenLR 72(b); (5/16/2023 elec. ref.).
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answers to deposition questions, responses to requests for admission, affidavits and
all other discovery taken pursuant to the Federal Rules of Civil Procedure from the
Parties and third persons (collectively, “Discovery Material”). As used in this Order,
“document” or “documents” shall have the same definition as in the Federal Rules
of Civil Procedure.
2. 	Discovery 	Material 	designated 	for 	protection 	under 	this 	Order
(“Protected Discovery Material”) shall be designated by the Party producing
(“Producing Party”) as CONFIDENTIAL. The “CONFIDENTIAL” designation may
be applied to Discovery Material that the Producing Party reasonably and in good
faith determines to constitute trade secret or other confidential research, testing,
development or commercial information, including but not limited to confidential
financial, technical, commercial information, including highly sensitive 	trade
secrets, technical practices, methods or know-how; present or future marketing
plans; profit 	data or projections; 	shareholder information; business 	strategy;
financial data and projections; confidential agreements or relationships with third
parties; other such categories of documents; and/or materials that a party is under
a pre-existing obligation to a third party to treat as such.
3. 	CONFIDENTIAL 	DISCOVERY 	MATERIAL: 	To 	designate 	and
categorize written Discovery Material as “CONFIDENTIAL – Subject to Protective
Order” 	Discovery 	Material, 	the 	Producing 	Party 	or 	third 	party 	shall 	stamp
“CONFIDENTIAL” or similar language on each page of such Discovery Material,
and the case name and number or similar designation on each page to identify that
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the Discovery Material has been so marked for purposes of this action only. The
designation and classification of information as “CONFIDENTIAL” will be deemed
effective to bring that information under the protections of this Order unless and
until 	the 	Court 	orders 	otherwise. 	The 	documents 	shall 	be 	marked
“CONFIDENTIAL” in a manner that will not interfere with the legibility of the
document.
4. 	Confidential Discovery Material designated pursuant to Paragraph 3
above may be disclosed only to the following persons, and shall not be distributed
or otherwise disseminated outside of the United States, except upon the prior
written consent of the Producing Party:
(a) 	Attorneys from any law firm that is of record for any named party to
this action and in-house counsel for any named party to this action;
(b) 	The Parties themselves or, if not a person, up to three designated
officers of each party who have executed a written statement under
oath in the form attached hereto as Appendix 1, with designation to
be affected by service of the disclosure on the Parties’ counsel of
record;
(c) 	Secretarial, 	clerical 	and 	legal 	assistants 	working 	under 	the
supervision of the attorneys and officers designated, assigned to and
necessary to assist in the conduct of this action;
(d) 	Outside contractors hired by any of persons designated above to copy,
index, sort, or otherwise manage the storage and retrieval of discovery
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materials, provided that such outside contractors have agreed to keep
any documents or other information they have access to as confidential;
(e) 	Independent consultants and experts, to the extent disclosure is in
good faith and necessary for the conduct of this action, provided that
such 	consultants 	and 	experts 	are 	not 	current 	employees 	of 	a
competitor dishwasher manufacturer of Whirlpool, and have agreed
to keep any documents or other information they have access to as
confidential and have signed the form attached hereto as Appendix 1;
(f) 	Any other person during the course of depositions in this action or oral
or written examinations, provided that any such person was, at the
time the document was prepared, a director, officer or employee of
the Producing Party and a foundation can be laid that the witness
likely had 	knowledge 	of 	the 	Confidential 	Information 	contained
therein, except that any such document or information shall not be left
in the possession of the deponent;.
(g) 	Court reporters and videographers who record and/or transcribe
deposition or other testimony in this action; and
(h) 	The Court and its staff
5. 	For purposes of the above paragraphs, information produced or
provided on a computer disk, data tape or other medium that has not been reduced
to paper form may be designated as Confidential Discovery Material by labeling the
media containing such information with the appropriate designation(s). 	To the
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extent that the media is so labeled, all information contained on that media shall
be considered to bear such designation.
6. 	CONFIDENTIALITY UNDERTAKINGS: No Disclosure of Protected
Discovery Material shall be made to anyone pursuant to the above paragraphs
except after compliance with the following procedure: The party seeking to provide
Protected Discovery Material to another (“Receiving Party”) shall have such party
provide a proposed “CONFIDENTIALITY UNDERTAKING” of the form annexed
as Appendix 1 to this Order signed and completed with the name, title, and business
address.
7. 	FILING UNDER SEAL: All Protected Discovery Material that is filed
with the Court, and any pleading, motion or other paper filed with the Court
containing or disclosing such material, shall be filed under seal in compliance with
any Local Rules, and with the designations required by this Protective Order. The
designation of Confidential shall be stamped prominently on the filing envelope,
together with the words “Filed Under Seal,” the filing date of this Order and the
name, address and telephone number of the person filing the document. A copy of
this Order shall be included in the filing envelope. Only those portions of the filing
with the Court constituting Protected Discovery Material shall be filed under seal.
This paragraph shall not be construed to limit or prohibit the right of a Party to
challenge a designation of Protected Discovery Material, as provided in this Order.
8. 	CHALLENGING CONFIDENTIALITY DESIGNATION: If counsel
for 	a 	party 	receiving 	documents 	or 	information 	designated as Confidential
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hereunder objects to such designation of any or all of such items, the following
procedure shall apply: 	(a) Counsel for the objecting party shall serve on the
designating party or third party a written objection to such designation, which shall
describe with particularity the documents or information in question and shall
state the grounds for objection. Counsel for the designating party or third party
shall respond in writing to such objection within 10 days, and shall state with
particularity 	the 	grounds for asserting that the documents or information is
Confidential. If no timely written response is made to the objection, the challenged
designation will be deemed to be void. If the designating party or nonparty makes
a timely response to such objection asserting the propriety of the designation,
counsel shall then confer in good faith in an effort to resolve the dispute. (b) If a
dispute as to a Confidential designation of a document or item of information cannot
be resolved by agreement, the proponent of the designation being challenged shall
present the dispute to the Court in keeping with the Federal Rules of Civil Procedure
and Local Rules of Court. The document or information that is the subject of the
filing shall be treated as originally designated pending resolution of the dispute.
9. 	JURISDICTION: Each individual who receives Protected Discovery
Material and signs the form attached hereto (“Appendix 1”) agrees to subject
himself/herself to the jurisdiction of the Court for the purpose of any proceedings
relating to the performance under, compliance with, or violation of, this Order.
10. 	DEPOSITIONS: 	Unless all Parties agree on the record at the time
the deposition testimony is taken, all deposition testimony taken in this case shall
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be treated as Confidential Information for a period of 14 days after the receipt of
the deposition transcript. No later than the 14th day after the 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, and thereafter those portions identified in the Notice of Designation
shall be protected under the terms of this Order. 	The failure to serve a timely
Notice of Designation shall waive any designation of testimony taken in that
deposition as Confidential Information.
11. 	INADVERTENT FAILURE TO DESIGNATE OR INADVERTENT
PRODUCTION: In the event that a party who has produced information discovers
that “CONFIDENTIAL” Discovery Material has not been designated or has been
inadvertently produced without being marked with the appropriate designation,
the Producing Party may thereafter notify the party receiving such information
under the Protective Order and require the latter to retrieve and return any
unmarked material and to substitute therefor appropriately marked material,
provided (i) the Producing Party has initially taken reasonable measures to identify
and designate the subject material, (ii) the Producing Party notifies the Receiving
Party promptly after learning of such inadvertent failure to designate. Upon receipt
of such notification from the Producing Party, the Receiving Party shall not
thereafter disclose any such material or any information contained therein to any
persons who are not “qualified persons” as that term is hereinafter defined.
12. 	In the event of an inadvertent disclosure by the Receiving Party of the
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“CONFIDENTIAL” Discovery Material of another party or a third party, the party
recipient making the inadvertent disclosure shall upon learning of the disclosure:
(i) 	immediately 	notify 	the 	party 	to 	whom 	the 	disclosure 	was
inadvertently made that it contains “CONFIDENTIAL” Discovery
Material subject to this Protective Order;
(ii) 	immediately make all reasonable efforts to recover the information as
well as preclude further dissemination or use by the person to whom
disclosure was inadvertently made; and
(iii) 	within five (5) days, notify the Producing Party of the identity of the
person to whom disclosure was inadvertently made, the circumstances
surrounding disclosure, and the steps taken to recover the information
and the steps taken to insure against the further dissemination or use
of the information.
13. 	SECURITY: The recipient of Protected Discovery Material that is
provided under this Order shall maintain such information in a secure and safe
area and shall exercise the same standard of due and proper care with respect to
the storage, custody, use and/or dissemination of such information as is exercised by
the recipient with respect to its own proprietary information.
14. 	All Protected Discovery Material produced in this action shall only be
used in connection with the preparation, trial and appeal, if any, of this action and
shall not be used for any other purpose or use or disclosed to any other person or
entity unless otherwise agreed to beforehand in writing by the Producing Party or
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if the Court so orders; however, this requirement shall not prejudice any Party’s
right to seek or oppose an order from the Court permitting the use in other
litigation of Protected Discovery Material.
15. 	USE BY PRODUCING PARTY: Nothing contained in this Order shall
preclude a Party producing Protected Discovery Material from using its own
Protected Discovery Material in any manner it sees fit, or from revealing such
Protected Discovery Material to whomever it chooses, without the prior consent of
any other Party or of this Court.
16. 	COVERAGE: 	This 	Order 	pertains 	only 	to 	Protected 	Discovery
Material provided by the party producing it and does not limit the use or disclosure
of materials which have been obtained by any Party from any other source lawfully
possessing such information and not in violation of any obligation of confidentiality
with respect thereto.
17. 	TERMINATION OF ACTION: Within sixty (60) calendar days after
the final termination of this action, including any appeals, all Parties, third parties,
and counsel, shall return all Protected Discovery Materials and all copies thereof
to the Party or third person that produced it or, at the election of the person or entity
in 	possession of the Protected Discovery material, shall destroy all Protected
Discovery Material and copies thereof. All Parties who possessed such Protected
Discovery Material shall certify, to the best of their knowledge after reasonable
inquiry, the return or destruction by affidavit or signed letter furnished to the
Producing Party.
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18. 	MODIFICATION: Any Party hereto may at any time make a motion
requesting the Court modify this Order.
19. 	SURVIVAL: 	The treatment accorded Protected Discovery Material
under this Order shall survive the termination of this action and this Court may
exercise jurisdiction over this Order.
20. 	NO ADMISSIONS: The disclosure of a document or its production for
inspection in this action shall not constitute an admission of its authenticity,
relevance or admissibility in this action.
21. 	The Court may modify this Protective Order if necessary in the
interests of justice.
DONE and ORDERED this the 1st day of June 2023.
/s/ Katherine P. Nelson
KATHERINE P. NELSON
UNITED STATES MAGISTRATE JUDGE
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IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
JARVIS JONES, 	)
Plaintiff, 	)
)
v. 	) CIVIL ACTION NO. 1:22-00475-KD-N
)
THE WHIRLPOOL 	)
CORPORATION, 	)
Defendant. 	)
APPENDIX 1
I, ___________________________, hereby acknowledge that I have read the
STIPULATED PROTECTIVE ORDER entered by the Court in the above-captioned
action, that I am one of the persons contemplated as authorized to receive Protected
Discovery 	Material 	and 	that 	I 	fully 	understand 	and 	agree 	to 	abide by the
obligations and conditions of the Protective Order. 	I agree to maintain any
Protected Discovery Material I receive in a separate and identifiable file, access to
which is appropriately restricted.
(Signature)
(Title or Position)
(Street Address)
(City, State, Zip Code)
Dated:
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