Hajek v. Kumho Tire Co. et al, No. 4:2008cv03157 - Document 93 (D. Neb. 2009)
Court Description: ORDER granting 92 Joint Motion to Amend. PROTECTIVE ORDER OF CONFIDENTIALITY entered. Ordered by Judge Richard G. Kopf. (JAB)
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Hajek v. Kumho Tire Co. et al Doc. 93 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEBRASKA MARCIA K. HAJEK, Individually and as Personal Representative of the Estate of Alan E. Hajek, Deceased, ) CASE NO. 4:08-CV-03157 ) ) ) Plaintiff, ) ) vs. ) ) KUMHO TIRE CO., INC., ) a foreign corporation, ) KUMHO TIRE, U.S.A., INC., ) a California corporation, and ) FORD MOTOR COMPANY, ) a Delaware corporation, ) ) Defendants. ) ____________________________________________________________________________ PROTECTIVE ORDER OF CONFIDENTIALITY _____________________________________________________________________________ PREPARED & SUBMITTED BY: Daniel P. Chesire, #15029 LAMSON, DUGAN and MURRAY, LLP 10306 Regency Parkway Drive Omaha, NE 68114 Telephone: (402)397-7300 Telefax: (402)397-7824 Michael H. Bai, Admitted Pro Hac Vice Littleton Joyce Ughetta Park & Kelly LLP 39 Broadway, 34th Floor New York, NY 10006 Telephone: (212) 404-5777 Telefax: (212) 232-0088 ATTORNEYS FOR DEFENDANTS KUMHO TIRE CO., INC. and KUMHO TIRE, U.S.A., INC. Dockets.Justia.com PROTECTIVE ORDER OF CONFIDENTIALITY 1. “Confidential Material.” As used in this Protective Order of Confidentiality, confidential material shall refer to records and/or things falling within the categories of material described by Fed.R.Civ.P. 26(c)(1)(G) including those records and things of Defendant Kumho Tire Co., Inc., hereinafter referred to as “KTCI,” protected as trade secrets or confidential information pursuant to state and federal law, as well as any and all translations of those records and/or things. 2. “Records.” As used in this Protective Order of Confidentiality, records shall mean information that is in document form, inscribed or otherwise recorded on a tangible medium, or that is stored in an electronic or other medium and is retrievable in perceivable form. Records include both electronic records and printed, typewritten, and other tangible records. 3. Scope. This Protective Order of Confidentiality shall govern confidential material produced or disclosed by KTCI in response to formal or informal discovery conducted in this matter. Nothing in this Protective Order of Confidentiality shall be deemed to preclude KTCI’s right to: (a) oppose discovery on grounds not addressed under the terms of this Protective Order of Confidentiality, or (b) object on any ground to the admission of any confidential material into evidence at trial. Further, nothing contained in this Protective Order of Confidentiality shall prejudice the right of any party to contest the alleged relevancy, admissibility, or discoverability of the confidential material sought. 4. Designation of Confidential Material. KTCI may designate all or any portion of records and/or things it produces formally or informally to other parties to this litigation as confidential material. Prior to designating a document as confidential material, KTCI shall make a good faith bona fide determination that the material is, in fact, a trade secret or other confidential -2- research, development or commercial information as contemplated Fed.R.Civ.P. 26(c)(1), the dissemination of which would significantly damage the producing party’s business. The designation of confidential material shall be made by any practicable means, including placing on the thing so designated, such that it will not interfere with its legibility, an appropriate notice such as the following: “confidential” or “confidential material.” Confidential material will be Bates stamped, if appropriate. All records and things designated as confidential material shall be treated as such pursuant to the terms of this Protective Order of Confidentiality until further order by the Court. 5. The inadvertent, unintentional, or in camera production of any confidential material shall not, under any circumstances, be deemed a waiver, in whole or in part, of the confidentiality of the confidential material in question. If KTCI should inadvertently produce any confidential material not responsive to a formal request for production and/or an order of the Court, and/or inadvertently fail to redact confidential material not discoverable in this matter, the recipient shall immediately return the confidential material, including all copies or reproductions, and any translations thereof, to KTCI, and shall make no use of the confidential material for any purpose until further order by the Court. 6. Objection to Designation. If any party objects to the designation of any record or thing as confidential material, that party shall promptly notify all other parties in writing within thirty (30) days of receipt of the confidential material, specifying the factual and legal basis for the objection. The parties shall have a period of no longer than thirty (30) days to resolve the dispute by agreement. If the dispute is not resolved by agreement, it shall be submitted to the Court within thirty (30) days thereafter whereupon the party seeking the protections of this Protective Order and -3- seeking a document or documents’ status as “confidential” will bear the burden of establishing that such protection is warranted. Pending such determination by the Court, the records and/or things shall be maintained as confidential material. If no such Motion is filed within thirty (30) days, then the challenged documents and information will no longer be subject to the provisions of this Protective Order. 7. Access to Confidential Material. Access to confidential material shall be limited to authorized persons. Authorized persons are: (a) Counsel of record for Plaintiffs and Co-Defendants, including but not limited to, KTCI, to this civil action; (b) Paralegal, secretarial, administrative, and legal personnel working under the direction and control of those counsel of record for Plaintiffs and Co-Defendants who have consented to this Protective Order of Confidentiality; (c) Independent professional engineers, accident reconstructionists, or other independent, forensic experts retained by counsel for Plaintiffs and Co-Defendants, and who have consented to this Protective Order of Confidentiality and signed the Promise of Confidentiality. (d) The Court, the Court’s staff, witnesses and the jury in this case. Counsel of record for the party who grants access to confidential material to an authorized person identified in subparagraph (c) of this paragraph shall take reasonable steps to ensure full compliance by said authorized person with this Protective Order. Access to confidential material shall not be given to any person or entity not specifically described above, including to members of the general public. -4- Without written consent of counsel of record for KTCI or further order of this Court, authorized persons shall not provide access to confidential material to any competitor of KTCI (i.e. entity involved in commercial research, development, production, or testing of tires) or current employee of such competitor of KTCI.. 8. Promises of Confidentiality. Each authorized person identified in subparagraph 7(c) above who receives access to any confidential material shall first be given a copy of this Protective Order of Confidentiality and advised by the counsel of record making the disclosure that such authorized person must not divulge any confidential material to anyone other than authorized persons in the preparation or trial of this lawsuit. The Promise of Confidentiality attached hereto as Exhibit A must be signed by each such authorized person identified in subparagraph 7(c) above receiving any confidential material in advance of receipt. The signed original of each such Promise of Confidentiality shall be provided to counsel of record for KTCI within thirty (30) days following the final termination of this action (the earlier of execution of a settlement agreement or entry of a final judgment – i.e. after all appeals have been finally adjudicated). 9. Storage of Confidential Material. Authorized persons shall maintain all confidential material in a secure location. Confidential material may not be transmitted via e-mail or other similar media other than within the offices of plaintiffs’ counsel. 10. Use of Confidential Material. Authorized persons identified in subparagraphs 7(a), 7(b), and 7(c) shall use the confidential material for the purpose of this lawsuit only. -5- (a) Without limiting the generality of the foregoing sentence, authorized persons shall not produce, disclose, or otherwise utilize confidential material in any other litigation, whether or not that litigation involves parties to this case. (b) If any subpoenas, requests for production, or other forms of discovery in connection with other litigation are served on any authorized person, that authorized person will immediately notify KTCI’s counsel of record and provide KTCI’s counsel of record with a copy of the subpoena or other discovery request. 11. Court Records. In the event that any confidential material is attached to a pleading or motion or other material filed with this Court, the confidential material shall be filed in an attached sealed separate envelope containing the style of the case marked “CONFIDENTIAL MATERIAL Protected by Court Order,” dated and kept under seal by the clerk of that court until further court order. Such confidential material shall, however, remain available to personnel authorized by that court and to authorized persons. When practicable, however, only the confidential portion of the pleadings filed with the court will be filed in a separate sealed envelope. If any record containing confidential material is furnished to any court, a duplicate copy with the discrete confidential material deleted may be substituted in the public record, if appropriate. 12. Depositions. If any confidential material is used or referred to during any deposition, counsel for either party may require that only their clients or representatives, authorized persons, the deponent, the court reporter, the interpreter and the camera operator (if the deposition is videotaped) shall be present for the portion of the deposition dealing with confidential material. Within fifteen (15) days of receipt of the completed deposition transcript, counsel for KTCI shall designate by page and line the portions for which such claim is made, and give written notice of this -6- designation to all other parties. This designation shall be placed on the first page in the original and all copies of the deposition by the court reporter and by counsel for the parties. Pending such designation, the deposition transcript shall be treated in its entirety as confidential material and shall be subject to the provisions of paragraph numbered 6 above concerning objections to such designation. All exhibits to the deposition transcript previously designated by KTCI as confidential material shall remain confidential material without need for designation. Those portions of the deposition which are designated as confidential material shall be bound separately under seal and prominently marked “confidential material subject to Protective Order.” 13. Evidence at Trial. This Protective Order shall not apply to the disclosure of confidential material at the time of trial or court hearing, through the receipt of protected documents or confidential material into evidence, or through the testimony of witnesses. The closure of trial proceedings and sealing of the record of a trial involve considerations which may be taken up as a separate matter upon the motion of any of the parties at trial. 14. Improper Disclosure. Should any confidential material be disclosed to any unauthorized person, the unauthorized person (a) shall be informed promptly of the provisions of this Protective Order of Confidentiality by the party who first learns of the disclosure, and upon such notice shall be subject to the terms of this Protective Order of Confidentiality; (b) shall be identified immediately to counsel of record for KTCI; and (c) shall be directed, if within control of a party or his/her/its counsel, or otherwise asked, to sign the Promise of Confidentiality (Exhibit A). 15. Return of Confidential Material. Within thirty (30) days of final termination of this action (the earlier of execution of a settlement agreement or entry of a final judgment – i.e. after all appeals have been finally adjudicated), counsel of record for each party shall assemble and return -7- to counsel of record for KTCI the originals of all confidential material produced, whether in the possession of said counsel or in the possession of any authorized person who gained access to the confidential material. All authorized persons – other than counsel of record for Plaintiff – shall return all confidential information (originals and copies) in accordance with their obligations as set forth in Exhibit A to this protective order. However, consistent with the ethical obligations imposed upon counsel for Plaintiff to maintain their client file for at least 10 years, counsel of record for Plaintiff shall be allowed to retain a copy of all confidential material with the understanding it will not be shared with others for the purposes of product liability litigation. Accompanying the return of the confidential material, counsel for all parties shall provide to counsel for KTCI executed Certifications in the form attached hereto as Exhibit B (executed by each Counsel for the Plaintiffs and Co-Defendants) and Exhibit C (executed by each expert and anyone else who had access to such confidential material). If upon the review of the returned confidential material, counsel of record for KTCI concludes that not all confidential material has been returned, counsel of record for KTCI will provide to counsel of record for the returning party a list of those records by bates stamp number which were not returned. If counsel of record for returning party is unable to provide or locate those missing records, then counsel of record for the returning party shall execute an affidavit which states: (a) the bates numbers of those records that counsel of record for the returning party was unable to return; (b) that a diligent and thorough search was conducted of all authorized person who gained access to the confidential material through counsel of record for the returning party and counsel of record for the returning party was unable to find said confidential material; and (c) counsel of record for the returning party does not have the originals of said confidential material in his or her possession. Nothing in this Protective Order shall be deemed to prevent counsel for the -8- Plaintiffs from maintaining copies of any Protected Documents and confidential material deemed necessary by the counsel for Plaintiffs for the preservation of that counsel’s files in accordance with controlling ethical and common law rules. With respect to such documents so maintained, counsel for Plaintiffs shall remain bound by the terms of this Protective Order even after the conclusion of the case. ORDERED by the Court this 24th day of July, 2009. BY THE COURT: Richard G. Kopf United States District Judge -9-
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