Chavez v. Summit Utilities Arkansas, Inc.

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
HOT SPRINGS DIVISION
DANIEL CHAVEZ 	PLAINTIFF
v. 	Case No. 6:24-cv-06090
SUMMIT UTILITIES
ARKANSAS, INC. 	DEFENDANT
ORDER
Before the Court is a Joint Motion for Protective Order filed by Defendant Summit Utilities
Arkansas, Inc and Plaintiff Daniel Chavez. 	(ECF No. 14). 	The parties have agreed to protect
against the disclosure of certain information to certain persons who are not parties to this case
through the proposed order. (ECF No. 14). Upon consideration, the Court finds that the instant
motion (ECF No. 14) should be and hereby is GRANTED. However, the Court has changed a
portion of section 4.4 in the Protective Order to reflect that the parties must seek leave from the
Court to file under seal. The Protective Order is as follows:
1. 	PURPOSE & LIMITATIONS.
Discovery in this action is likely to involve production of confidential, proprietary, or
private information for which special protection may be warranted. Accordingly, the parties hereby
stipulate to and petition the court to enter the following Stipulated Protective Order.
The Order does not confer blanket protection on all disclosures or responses to discovery.
The protection it affords from public disclosure and use extends only to the limited information or
items that are entitled to confidential treatment under the applicable legal principles, and it does
not presumptively entitle parties to file confidential information under seal.
2. 	“CONFIDENTIAL” AND “ATTORNEYS’ EYES ONLY” INFORMATION.
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2.1 	“Confidential” Information. As used in this Order, “Confidential” information is
defined as information that the producing party designates in good faith as having been previously
maintained in a confidential manner and should be protected from disclosure and use outside the
litigation because its disclosure and use are restricted by statute or could potentially cause harm to
the interests of the disclosing party or nonparties.
“Confidential” means information (regardless of how generated, stored, or maintained) that
has not been made public or is not otherwise available or accessible in the public domain and that
concerns or relates to the confidential or proprietary information of either party or any third parties.
Further, “Confidential” material is information for which disclosure is likely to have the effect of
causing harm to either party, a person from whom the information was obtained, or the parties’ or
third-parties’ privacy. “Confidential” information also includes private information pertaining to
employees other than Plaintiff.
Parties may designate information that has previously been produced, and not otherwise
designated prior to entry of this Order, provided the designation information fits the scope of this
Order.
2.2 	“Attorneys’ Eyes Only” Information. As used in this Order, “Attorney’s Eyes
Only” information shall include extraordinarily sensitive confidential, proprietary, trade secret,
and/or private information the disclosure of which would create a potential risk of substantial
injury to the producing party that cannot be prevented by less restrictive means.
3. 	SCOPE
The protections conferred by this agreement cover not only Confidential or Attorneys’
Eyes Only material (as defined in Section 2), but also (1) any information copied or extracted from
Confidential or Attorneys’ Eyes Only material; (2) all copies, excerpts, summaries, or compilations
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of Confidential or Attorneys’ Eyes Only material; and (3) any testimony, conversations, or
presentations by parties or their counsel that might reveal Confidential or Attorneys’ Eyes Only
material. However, the protections conferred by this agreement do not cover information that is in
the public domain or becomes part of the public domain through trial or otherwise.
4. 	ACCESS TO AND USE OF CONFIDENTIAL AND ATTORNEYS’ EYES
ONLY MATERIAL.
4.1 	Basic Principles. A receiving party may use Confidential or Attorneys’ Eyes Only
material that is disclosed or produced by another party or by a non-party in connection with this
case only for prosecuting, defending, or attempting to settle this litigation. Confidential or
Attorneys’ Eyes Only material may be disclosed only to the categories of persons and under the
conditions described in this agreement.
4.2 	Disclosure of “Confidential” Information or Items. Unless otherwise ordered by the
court or permitted in writing by the designating party, a receiving party may disclose any
confidential material only to:
(a) 	the receiving party’s counsel of record in this action, as well as employees of
counsel to whom it is reasonably necessary to disclose the information for this litigation;
(b) 	the officers, directors, and employees (including in house counsel) of the receiving
party to whom disclosure is reasonably necessary for this litigation, unless the parties agree
that a particular document or material produced is for Attorneys’ Eyes Only and is so
designated;
(c) 	experts and consultants to whom disclosure is reasonably necessary for this
litigation and who have signed the “Acknowledgment and Agreement to Be Bound”
(Exhibit A);
(d) 	the court, court personnel, and court reporters and their staff;
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(e) 	copy or imaging services retained by counsel to assist in the duplication of
confidential material, provided that counsel for the party retaining the copy or imaging
service instructs the service not to disclose any confidential material to third parties and to
immediately return all originals and copies of any Confidential material;
(f) 	during their depositions, witnesses in the action to whom disclosure is reasonably
necessary and who have signed the “Acknowledgment and Agreement to Be Bound”
(Exhibit A), unless otherwise agreed by the designating party or ordered by the court. Pages
of transcribed deposition testimony or exhibits to depositions that reveal Confidential
material must be separately bound by the court reporter and may not be disclosed to anyone
except as permitted under this agreement. However, documents or materials designated for
Attorneys’ Eyes Only shall not be disclosed without agreement of the parties or order of
the Court;
(g) 	the author or recipient of a document containing the information or a custodian or
other person who otherwise possessed or knew the information; and
(h) 	mediators engaged by the parties.
4.3 	Disclosure of “Attorneys’ Eyes Only” Information or Items. Unless otherwise
ordered by the court or permitted in writing by the designating party, a receiving party may disclose
Attorneys’ Eyes Only material only to the persons identified in paragraphs (a), (c), (d), (e), (g),
and (h) above.
4.4 	Filing Confidential or Attorney’s Eyes Only Material. If a party seeks to file any
document or material containing Confidential or Attorneys’ Eyes Only information, the party shall
file the document under seal. To the extent such document containing Confidential or Attorneys’
Eyes Only information is capable of redaction, the filing party shall file a redacted version of the
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document on the public docket, with the unredacted version filed under seal. The redacted version
of any filing containing Confidential or Attorneys’ Eyes Only information may include, when
necessary, slip pages 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
REQUEST LEAVE FROM THE COURT TO FILE UNDER SEAL. However, in no event
shall an entire motion or brief be filed under seal without a corresponding redacted version of the
motion or brief also filed on the public docket, unless prior leave of Court is requested and granted.
5. 	DESIGNATING PROTECTED MATERIAL
5.1 	Exercise of Restraint and Care in Designating Material for Protection. Each party
or non-party that designates information or items for protection under this agreement must take
care to limit any such designation to specific material that qualifies under the appropriate
standards. The designating party must designate for protection only those parts of material,
documents, items, or oral or written communications that qualify, so that other portions of the
material, documents, items, or communications for which protection is not warranted are not swept
unjustifiably within the ambit of this agreement.
5.2 	Manner 	and 	Timing 	of 	Designations. 	The 	producing 	party 	may 	designate
documents as containing Confidential or Attorneys’ Eyes Only information and therefore subject
to protection under this Order by marking or placing the words “CONFIDENTIAL” or
“CONFIDENTIAL - ATTORNEYS’ EYES ONLY” on the document and on all copies in a
manner that will not interfere with the legibility of the document. The designation will be applied
prior to or at the time the documents are produced or disclosed. By marking a designated document
as Confidential or Attorneys’ Eyes Only, the designating attorney or party appearing pro se thereby
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certifies that the document contains Confidential or Attorneys’ Eyes Only information as defined
in this Order.
Deposition testimony will be deemed Confidential or Attorneys’ Eyes Only if designated
as such when the deposition is taken or within fourteen days after receipt of the deposition
transcript. Such designation must be specific as to the portions of the transcript and/or any exhibits
to be protected. There shall be no need to re-designate deposition exhibits which have previously
been designated as Confidential or Attorneys’ Eyes Only.
5.3 	Inadvertent Failures to Designate. If timely corrected, an inadvertent failure to
designate qualified information or items does not, standing alone, waive the designating party’s
right to secure protection under this agreement for such material. Upon timely correction of a
designation, the receiving party must make reasonable efforts to ensure that the material is treated
in accordance with the provisions of this agreement.
6. 	CHALLENGING CONFIDENTIALITY DESIGNATIONS.
6.1 	Timing of Challenges. Any party or non-party may challenge a designation of
Confidentiality or Attorneys’ Eyes Only at any time. Unless a prompt challenge to a designating
party’s Confidentiality or Attorneys’ Eyes Only designation is necessary to avoid foreseeable,
substantial unfairness, unnecessary economic burdens, or a significant disruption or delay of the
litigation, a party does not waive its right to challenge a Confidentiality or Attorneys’ Eyes Only
designation by electing not to mount a challenge promptly after the original designation is
disclosed.
6.2 	Meet and Confer. The parties must make every attempt to resolve any dispute
regarding Confidential or Attorneys’ Eyes Only designations without court involvement. Any
motion regarding Confidential or Attorneys’ Eyes Only designations or for a protective order must
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include a certification that the movant has engaged in a good faith meet and confer conference
with other affected parties in an effort to resolve the dispute without court action. A good faith
effort to confer requires a face-to-face meeting or a telephone conference, unless reasonable efforts
to schedule a face-to-face meeting or a telephone conference are unsuccessful after a period of
fourteen days.
6.3 	Judicial Intervention. If the parties cannot resolve a challenge without court
intervention, the designating party may file and serve a motion to retain confidentiality. The burden
of persuasion in any such motion shall be on the designating party. Frivolous challenges, and those
made for an improper purpose (e.g., to harass or impose unnecessary expenses and burdens on
other parties) may expose the challenging party to sanctions. All parties shall continue to maintain
the material in question as Confidential or for Attorneys’ Eyes Only until the court rules on the
challenge.
7. 	PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED IN
OTHER LITIGATION.
If a party is served with a subpoena or a court order issued in other litigation that compels
disclosure of any information or items designated in this action as Confidential or Attorneys’ Eyes
Only, that party must: (a) promptly notify the designating party in writing and include a copy of
the subpoena or court order; (b) promptly notify 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 subject to this agreement, and such notification shall include a copy of this agreement; and
(c) cooperate with respect to all reasonable procedures sought to be pursued by the designating
party whose Confidential or Attorney’s Eyes Only material may be affected.
8. 	UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL.
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If a receiving party learns that, by inadvertence or otherwise, it has disclosed Confidential
or Attorneys’ Eyes Only material to any person or in any circumstance not authorized under this
agreement, the receiving party must immediately (a) notify in writing the designating party of the
unauthorized disclosures, (b) use its best efforts to retrieve all unauthorized copies of the protected
material, (c) inform the person or persons to whom unauthorized disclosures were made of all the
terms of this agreement, and (d) request that such person or persons execute the “Acknowledgment
and Agreement to Be Bound” that is attached hereto as Exhibit A.
If the receiving party discovers a breach 	of security, including 	any actual or suspected
unauthorized 	access, relating 	to another 	party’s 	Confidential or Attorneys’ Eyes Only
information, the receiving party shall: (a) promptly provide written notice to the designating party
of such breach; (b) investigate and take reasonable efforts to remediate the effects of the breach,
and provide the designating party with assurances reasonably satisfactory to the designating party
that such breach shall not recur; and (c) provide sufficient 	information 	about the breach that
the designating party can reasonably ascertain the size and scope of the breach.
9. 	INADVERTENT 	PRODUCTION 	OF 	PRIVILEGED 	OR 	OTHERWISE
PROTECTED MATERIAL.
When a producing party gives notice to receiving parties that certain inadvertently
produced material is subject to a claim of privilege or other protection, the obligations of the
receiving parties are those set forth in Federal Rule of Civil Procedure 26(b)(5)(B). Pursuant to
Federal Rule of Evidence 502(d) and (e), the parties agree to the entry of a non-waiver order as set
forth herein:
(a) 	The disclosure or production of documents by a producing party subject to a legally
recognized claim of privilege, including without limitation the attorney-client privilege and the
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work-product doctrine, to a receiving party, shall in no way constitute the voluntary disclosure of
such document.
(b) 	The inadvertent disclosure or production of any document in this action shall not
result in the waiver of any privilege, evidentiary protection, or other protection associated with
such document as to the receiving party or any third parties, and shall not result in any waiver,
including subject matter waiver, of any kind.
(c) 	If, during the course of this litigation, a party determines that any document
produced by another party is or may reasonably be subject to a legally recognizable privilege or
evidentiary protection (“Protected Document”):
(i) 	the receiving party shall: (A) refrain from reading the Protected Document
any more closely than is necessary to ascertain that it is privileged or otherwise protected
from disclosure; (B) immediately notify the producing party in writing that it has
discovered documents believed to be privileged or protected; (C) specifically identify the
Protected Documents by Bates number range or hash value; and, (D) within ten days of
discovery by the receiving party, return, sequester, or destroy all copies of such Protected
Documents, along with any notes, abstracts, or compilations of the content thereof. To the
extent that a Protected Document has been loaded into a litigation review database under
the control of the receiving party, the receiving party shall have all electronic copies of the
Protected Document extracted from the database. 	Where such Protected Documents
cannot be destroyed or separated, they shall not be reviewed, disclosed, or otherwise used
by the receiving party. 	Notwithstanding, the receiving party is under no obligation to
search or review the producing party’s documents to identify potentially privileged or work
product Protected Documents.
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(ii) 	If the producing party intends to assert a claim of privilege or other
protection over documents identified by the receiving party as Protected Documents, the
producing party will, within ten days of receiving the receiving party’s written notification
described above, inform the receiving party of such intention in writing and shall provide
the receiving party with a log for such Protected Documents that is consistent with the
requirements of Federal Rules of Civil Procedure, specifically identifying the material or
information and setting forth the basis for the claim of privilege or other protection for it.
In the event that any portion of a Protected Document does not contain privileged or
protected information, the producing party shall also provide to the receiving party a
redacted copy of the document that omits the information that the producing party believes
is subject to a claim of privilege or other protection.
(d) 	If, during the course of this litigation, a party determines it has produced a Protected
Document:
(i) 	the producing party may notify the receiving party of such inadvertent
production in writing, and demand the return of such documents. Such notice shall be in
writing; however, it may be delivered orally on the record at a deposition, promptly
followed up in writing. 	The producing party’s written notice will identify the Protected
Document inadvertently produced by Bates number range or hash value, the privilege or
protection claimed, and the basis for the assertion of the privilege and shall provide the
receiving party with a log for such Protected Documents that is consistent with the
requirements of Federal Rules of Civil Procedure, specifically identifying the material or
information and setting forth the basis for the claim of privilege or other protection for it.
In the event that any portion of the Protected Document does not contain privileged or
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protected information, the producing party shall also provide to the receiving party a
redacted copy of the document that omits the information that the producing party believes
is subject to a claim of privilege or other protection.
(ii) 	The receiving party must, within ten days of receiving the producing party’s
written notification described above, return, sequester, or destroy the Protected Document
and any copies, along with any notes, abstracts, or compilations of the content thereof. To
the extent that a Protected Document has been loaded into a litigation review database
under the control of the receiving party, the receiving party shall have all electronic copies
of the Protected Document extracted from the database.
(e) 	To the extent that the information contained in a Protected Document has already
been used in or described in other documents generated or maintained by the receiving party prior
to the date of receipt of written notice by the producing party as set forth in paragraphs (c)(ii) and
d(i), then the receiving party shall sequester such documents until the claim has been resolved. If
the receiving party disclosed the Protected Document before being notified of its inadvertent
production, it must take reasonable steps to retrieve it.
(f) 	The receiving party’s return, sequestering, or destruction of Protected Documents
as provided herein will not act as a waiver of the requesting party’s right to move for the production
of the returned, sequestered, or destroyed documents on the grounds that the documents are not,
in fact, subject to a viable claim of privilege or protection. 	However, the receiving party is
prohibited and estopped from arguing that:
(i) 	the disclosure or production of the Protected Documents acts as a waiver of
an applicable privilege or evidentiary protection;
(ii) 	the disclosure of the Protected Documents was not inadvertent;
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(iii) 	the producing party did not take reasonable steps to prevent the disclosure
of the Protected Documents; or
(iv) 	the producing party failed to take reasonable or timely steps to rectify the
error.
(g) 	Either party may submit Protected Documents to the Court under seal for a
determination of the claim of privilege or other protection. The producing party shall preserve the
Protected Documents until such claim is resolved. The receiving party may not use the Protected
Documents for any purpose absent this Court’s order.
(h) 	Upon a determination by the Court that the Protected Documents are protected by
the applicable privilege or evidentiary protection, and if the Protected Documents have been
sequestered rather than returned or destroyed by the receiving party, and subject to the exceptions
outlined in Paragraph 10 below, the Protected Documents shall be returned or destroyed within 10
days of the Court’s order. The Court may also order the identification by the receiving party of
Protected Documents by search terms or other means.
(i) 	Nothing contained herein is intended to, or shall serve to limit a party’s right to
conduct a review of documents, data (including electronically stored information), and other
information, including without limitation, metadata, for relevance, responsiveness, and/or the
segregation of privileged and/or protected information before such information is produced to
another party.
(j) 	By operation of the parties’ agreement and Court Order, the parties are specifically
afforded the protections of Fed. R. Evid. 502(d) and (e).
10. 	RETURN OF DOCUMENTS.
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Within thirty days after this litigation concludes by settlement, final judgment, or final
order, including all appeals, all documents designated as containing Confidential or Attorneys’
Eyes Only information, including copies as defined above, must, if requested, be returned to the
party who previously produced the document. However, counsel may retain a copy of all papers,
filings with the Court, deposition or hearing transcripts, exhibits, and other documents bearing the
notations, summations, mental impressions, or other attorney work product of receiving party’s
counsel, provided that the Confidential or Attorneys’ Eyes Only information is maintained and
protected in accordance with the terms of this Order.
11. 	COMPUTATION OF TIME.
The computation of any period of time prescribed or allowed by this Order shall be
governed by the provisions for computing time set forth in Rule 6 of the Federal Rules of Civil
Procedure.
12. 	INFORMATION SECURITY PROTECTIONS.
Any 	person 	in possession of another 	party’s 	Confidential or Attorneys’ Eyes Only
information shall maintain a written information 	security 	program 	that includes reasonable
administrative, 	technical, 	and physical 	safeguards designed 	to 	protect 	the 	security 	and
confidentiality of such Confidential or Attorneys’ Eyes Only information, protect against 	any
reasonably anticipated threats or hazards to the security of such Confidential or Attorneys’ Eyes
Only information, and protect 	against 	unauthorized 	access 	to or use of such Confidential or
Attorneys’ Eyes Only information. To the extent a person or party does not have an information
security program they may comply with this provision by having the Confidential or Attorneys’
Eyes 	Only 	information 	managed 	by 	and/or 	stored 	with 	eDiscovery 	vendors 	or 	claims
administrators that maintain such an information security program.
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If the receiving party discovers a breach of security, including any actual or suspected
unauthorized access, relating to another party’s Confidential or Attorneys’ Eyes Only material, the
receiving party shall: (a) promptly provide written notice to designating party of such breach; (b)
investigate and take reasonable efforts to remediate the effects of the breach, and provide
designating party with assurances reasonably satisfactory to designating party that such breach
shall not recur; and (c) provide sufficient information about the breach that the designating party
can reasonably ascertain the size and scope of the breach. If required by any judicial or
governmental request, requirement or order to disclose such information, the receiving party shall
take all reasonable steps to given the designating party sufficient prior notice in order to contest
such request, requirement or order through legal means. The receiving party agrees to cooperate
with the designating party or law enforcement in investigating any such security incident. In any
event, the receiving party shall promptly take all necessary and appropriate corrective action to
terminate the unauthorized access.
IT IS FURTHER ORDERED that pursuant to Federal Rule of Evidence 502(d), the
production of any documents in this proceeding shall not, for the purposes of this proceeding or
any other proceeding in any other court, constitute a waiver by the producing party of any privilege
applicable to those documents, including the attorney-client privilege, attorney work-product
protection, or any other privilege or protection recognized by law.
IT IS SO ORDERED, this 15th day of January, 2025.
/s/ Susan O. Hickey
Susan O. Hickey
Chief United States District Judge
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EXHIBIT A
ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND
I declare under penalty of perjury that I have read in its entirety and understand the
Stipulated Protective Order that was issued by the United States District Court for the Western
District of Arkansas, in the case of Daniel Chavez v. Summit Utilities Arkansas, Inc. I agree to
comply with and to be bound by all the terms of this Stipulated Protective Order and I understand
and acknowledge that failure to so comply could expose me to sanctions and punishment in the
nature of contempt. I solemnly promise that I will not disclose in any manner any information or
item that is subject to this Stipulated Protective Order to any person or entity except in strict
compliance with the provisions of this Order.
I further agree to submit to the jurisdiction of the United States District Court in the
Western District of Arkansas for the purpose of enforcing the terms of this Stipulated Protective
Order, even if such enforcement proceedings occur after termination of this action.
_____________________________ 	__________________________________
Date 	Signature
_____________________________
_____________________________ 	__________________________________
Address 	Printed Name
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