Case: 1:23-cv-00032-SNLJ Doc. #: 38 Filed: 04/25/24 Page: 1 of 10 PageID #: 206
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`UNITED STATES DISTRICT COURT
`EASTERN DISTRICT OF MISSOURI
`SOUTHEASTERN DIVISION
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`CAFE AGAVE, INC.,
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`Plaintiff,
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`v.
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`CROWN VALLEY WINERY, INC.; and DOES
`1-10,
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`Defendants.
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`Case No. 1:23-cv-00032
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`PROTECTIVE ORDER
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`WHEREAS, Fed. R. Civ. P. 26(c) provides for the issuance of a protective order limiting
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`the disclosure of confidential information in appropriate circumstances. The parties have filed a
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`Joint Motion for Protective Order (“Motion”). Upon review of the same, the Court hereby
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`ORDERS the entry of this Confidentiality and Protective Order in the above-captioned action.
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` This Protective Order shall govern the production and use of all documents, information,
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`data, material, studies, recordings, testimony, and/or other items produced by any party (through
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`its counsel) in response to discovery requests, in mandatory disclosures, and/or utilized and/or
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`referenced during depositions or other proceedings in this action, which any party or its counsel
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`designate as “CONFIDENTIAL,” or “ATTORNEYS’ EYES ONLY.” These may include, but
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`may not necessarily be limited to, items containing “Confidential Information” as defined below.
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`All such designated documents, information, data, material, studies, recordings, testimony, and/or
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`other items, shall be treated as confidential in the following manner:
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`1.
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`Any person or entity involved in the representation of any party to the lawsuit
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`captioned Cafe Agave, Inc. v. Crown Valley Winery, Inc. et al., which is pending in the United
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`States District Court, Eastern District of Missouri, Southern Division, under Case No. 1:23-cv-
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`00032, their respective insurers, investigators, experts, employees, agents, and the named litigants
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`themselves, shall not disseminate documents, information, data, material, studies, recordings,
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`testimony, and/or other items designated as CONFIDENTIAL, except in furtherance of limited
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`purposes directly related to the prosecution of claims or defenses in this lawsuit. As used in this
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`Order, the term “disseminate” shall include, but not be limited to, speaking about or paraphrasing
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`the contents of; posting through electronic means, the internet, or social media, the contents of;
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`and copying, photographing, scanning, streaming, videotaping,
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`transcribing,
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`retyping,
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`reproducing, or reprinting by any means whatsoever, any documents, information, data, material,
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`studies, recordings, testimony, and/or other items designated as CONFIDENTIAL. The parties
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`and their counsel shall be subject to all restrictions on dissemination set forth in this Order.
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`2.
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`Before production of any documents, information, data, material, studies,
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`recordings, testimony, and/or other items, the producing party shall make a determination as to
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`whether or not said documents, information, data, material, studies, recordings, testimony, and/or
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`other items contain personal financial information of any individual or entity, proprietary business
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`information, trade secrets, confidential research and/or development, competitively/commercially
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`sensitive information, internal policies and/or procedures, information subject to an evidentiary
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`privilege, or other information the disclosure of which would, in the judgment of that party, if
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`disseminated in violation of the order, be potentially or actually injurious, damaging, or
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`detrimental to the producing party’s business or the business of any of its customers or clients, its
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`reputation, its position in any other litigation, or the interests of that party with its customers or
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`clients.
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`3.
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`The production of documents, information, data, material, studies, recordings,
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`testimony, and/or other items that a producing party determines fall within paragraph two (2)
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`above, shall be accomplished by that party making a CONFIDENTIAL notation on the document,
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`information, data, material, study, recordings, transcript of testimony, and/or other item, or making
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`a statement on the record at any deposition or court appearance, or by writing to the counsel for
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`the other parties to this lawsuit, or by other agreed upon means of notice, that such information is
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`confidential.
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`4.
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`“Confidential Information” as used in this Order shall mean information contained
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`in any document, information, data, material, study, recording, testimony, and/or other item that
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`has been determined by that party to fall within paragraph two (2) above.
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`5.
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`Attorneys’ Eyes Only Information” is extremely sensitive or proprietary
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`information, including trade secrets, research, analysis, development, financial or other
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`commercial information of a non-public nature, non-public communications with regulators or
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`other governmental bodies that are protected from disclosure by statute or regulation; non-public
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`business or financial strategies, business plans, strategic plans, sales and marketing plans,
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`marketing surveys, earnings or other financial projections, contracts or agreements, including any
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`documentation that is considered confidential or proprietary under other confidentiality or non-
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`disclosure agreements and/or information protected by the right of privacy and/or any applicable
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`privilege, disclosure of which to another party or nonparty would create a substantial risk of serious
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`harm or injury to the business or competitive position of the designating party that could not be
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`avoided by less restrictive means.
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`6.
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`The production of any item containing Confidential Information or Attorneys’ Eyes
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`Only Information under this Order shall not operate as a waiver of any parties’ right to object to
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`the production of proprietary information, intellectual property, trade secrets, research and/or
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`development, information subject to an evidentiary privilege, and/or internal process, policies, and
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`procedures which, in the judgment of that party, would cause irreparable or competitive harm to
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`that party if it were disclosed, inadvertently or otherwise, to the public or any competitors.
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`7.
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`All Confidential
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`Information, whether designated CONFIDENTIAL or
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`ATTORNEYS’ EYES ONLY, and produced or disclosed by any party shall be and remain the
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`property of that producing party, and that producing party shall not be deemed to have granted any
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`license, copyright, or similar right with respect to any Confidential Information or any other
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`information disclosed by that party in this lawsuit.
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`8.
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`All Confidential Information designated CONFIDENTIAL shall be treated as
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`secret and strictly confidential, except with the prior written consent of that producing party and/or
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`counsel for that producing party, or upon order of the Court Confidential Information may be
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`shown, disseminated, or disclosed only to the following persons for use restricted exclusively to
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`this case:
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`a.
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`b.
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`c.
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`d.
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`Members of the respective law firms of record in this
`lawsuit representing Plaintiff and Defendants for the
`purpose of prosecuting or defending claims in this
`specific lawsuit;
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`Experts and consultants retained by the parties or
`their counsel for the preparation of any claim or
`defense relevant specifically to this lawsuit described
`above, provided that no disclosure shall be made to
`any expert or consultant who is employed by, an
`independent contractor for, or an agent of any
`competitor of any party;
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`The Court in which this lawsuit is pending, under
`seal of said Court;
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`Actual witnesses and actual deponents who are
`parties to this lawsuit and/or employees of parties or
`their counsel.
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`9.
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`All Confidential Information designated ATTORNEYS’ EYES ONLY shall be
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`treated as secret and strictly confidential, except with the prior written consent of that producing
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`party and/or counsel for that producing party, or upon order of the Court. Such confidential
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`Information may be shown, disseminated, or disclosed only to the following persons for use
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`restricted exclusively to this case:
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`a. Members of the respective law firms of record in this lawsuit representing Plaintiff
`and Defendants for the purpose of prosecuting or defending claims in this specific
`lawsuit;
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`10.
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`Before being provided with access to any Confidential Information, each person
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`described in paragraph seven (7) above shall be fully informed of the terms of this Order and given
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`a copy thereof.
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`11.
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`Confidential Information shall be utilized by the receiving party, its counsel, and
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`experts only for purposes of this litigation and for no other purposes whatsoever.
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`12.
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`To the extent documents, information, data, material, studies, recordings,
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`testimony, and/or other items designated as CONFIDENTIAL or ATTORNEYS’ EYES ONLY
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`are used in the taking of depositions, same shall remain subject to the provisions of this Order,
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`unless the Court expressly rules otherwise. The portions of the transcripts of all such testimony
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`shall be designated as CONFIDENTIAL or ATTORNEYS’ EYES ONLY and shall be labeled
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`with the appropriate notation by the court reporter/stenographer. If any document, information,
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`data, material, study, recording, testimony, and/or other item designated as CONFIDENTIAL or
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`ATTORNEYS’ EYES ONLY pursuant to this Order is used during the course of a deposition in
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`this lawsuit, that portion of the deposition record referencing such document, information, data,
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`material, study, recording, testimony, and/or other item shall be labeled with the appropriate
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`CONFIDENTIAL designation.
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` The court reporter/stenographer also shall clearly and
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`conspicuously mark the front page of any transcript which contains references to Confidential
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`Information with the CONFIDENTIAL or ATTORNEYS’ EYES ONLY designation.
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`13.
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`To the extent that documents, information, data, materials, studies, recordings,
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`testimony, and/or other items designated as CONFIDENTIAL or ATTORNEYS’ EYES ONLY
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`are utilized in any motion practice or utilized with any Court filing, and if the parties intend to
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`restrict such CONFIDENTIAL or ATTORNEYS’ EYES ONLY information from public access,
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`the party filing same shall seek leave of the Court to file the Confidential Information according
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`to Local Rule 13.05 and the Court’s CM/ECF Procedures Manual. If a party does not seek leave
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`of the Court to file under seal CONFIDENTIAL or ATTORNEYS’ EYES ONLY documents,
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`information, data, materials, studies, recordings, testimony, and/or other items that are used in
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`depositions or motion practice, the Confidential Information contained therein shall be
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`appropriately redacted. If Confidential Information is to be disclosed at a deposition, hearing, or
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`trial, the disclosing party shall have the right to exclude from attendance, during the time in which
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`the Confidential Information is to be discussed, any persons not bound by this Order.
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`14.
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`If any party produces two or more identical or substantially identical copies of a
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`document or item containing Confidential Information, and one or more is designated as
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`CONFIDENTIAL or ATTORNEYS’ EYES ONLY while the other or others lack such
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`designation, the undesignated copies shall be afforded the same CONFIDENTIAL or
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`ATTORNEYS’ EYES ONLY designation as the already designated documents and/or items.
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`15.
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`Admission into evidence of Confidential Information or other items at trial or
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`pretrial proceedings in this lawsuit shall be subject to the terms and conditions of this Order and
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`shall not serve as a waiver or abrogation of the terms of this Order, unless the Court expressly rules
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`otherwise.
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`16.
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`Any court reporter/stenographer who may be given access to Confidential
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`Information shall, before the deposition, hearing, or trial, be provided with a copy of this Order
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`and shall agree to its terms in writing by using the “Acknowledgement of Receipt of Confidential
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`Information” form attached hereto as Exhibit A, thereby agreeing to be bound by all terms of this
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`Protective Order.
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`17.
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`At any time, if any of the parties believe that a document, information, data,
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`material, study, recording, testimony, and/or other item which has been designated as
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`CONFIDENTIAL or ATTORNEYS’ EYES ONLY is not entitled to such designation, that party
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`shall notify the party or its counsel who produced same of the objection, identify the document,
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`information, data, material, study, recording, testimony, and/or other item which is the subject of
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`the objection, and state the basis for the objection in writing. The parties shall attempt to reach an
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`agreement regarding the status of the challenged item within ten (10) business days after receipt
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`of the written objection. If no agreement can be reached within ten (10) business days after receipt
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`of the written objection, the objecting party may seek relief from the Court by motion within thirty
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`(30) days thereafter to obtain a ruling from the Court as to whether the challenged item was
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`properly designated as CONFIDENTIAL or ATTORNEYS’ EYES ONLY. Pending resolution of
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`the dispute, the document, information, data, material, study, recording, testimony, and/or other
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`item shall be treated as CONFIDENTIAL or ATTORNEYS’ EYES ONLY and shall remain
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`subject to the terms of this Order. If the objecting party does not seek such relief from the Court
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`within the timeframe set forth in this Paragraph, that party’s objection(s) to the CONFIDENTIAL
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`or ATTORNEYS’ EYES ONLY designation shall be deemed waived and withdrawn.
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`18.
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`If any party fails to designate a document, information, data, material, study,
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`recording, testimony, and/or other item as CONFIDENTIAL or ATTORNEYS’ EYES ONLY
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`upon production, that party may subsequently designate the produced document, information, data,
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`material, study, recording, testimony, and/or other item as CONFIDENTIAL or ATTORNEYS’
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`EYES ONLY by giving written notice to the receiving party or parties, or his/her/its/their counsel,
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`and providing copies marked and/or designated as CONFIDENTIAL within thirty (30) days of the
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`date that party actually discovers that it failed to properly so designate.
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`19. Within thirty (30) days after the final resolution of this lawsuit, including any
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`appeals, any party’s counsel who has received, or any person or entity that is in any way in
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`possession of, any document, information, data, material, study, recording, testimony, and/or other
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`items designated as CONFIDENTIAL or ATTORNEYS’ EYES ONLY, including any document,
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`information, data, material, study, recording, testimony, and/or other items filed under seal with
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`the Court, shall be responsible for returning to that party, through its counsel, the originals and all
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`copies of any and all such items containing Confidential Information which were duplicated via
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`any form of reproduction, including, but not limited to, paper or electronic copies. Alternatively,
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`any such counsel, person, or entity, may provide an affidavit certifying that all such items
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`containing Confidential Information, and any copies thereof, have been destroyed. Any document,
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`information, data, material, study, recording, testimony, and/or other items filed under seal with
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`the Court shall exit the Court’s docket after the close of the case.
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`20.
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`This Order shall not enlarge or affect the proper scope of discovery in this lawsuit,
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`nor shall this Order imply that items designated as CONFIDENTIAL or ATTORNEYS’ EYES
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`ONLY under the terms of this Order are properly discoverable, relevant, or admissible in this
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`lawsuit.
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`21.
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`This Order is entered into without prejudice to the right of any party to seek relief
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`from, or modification of, any of its terms and/or provisions, by properly noticed motion to the
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`Court; before the Court’s decision directing such relief, if any, the documents, information, data,
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`materials, studies, recordings, testimony, and/or other items designated as CONFIDENTIAL shall
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`remain so designated and subject to all of the terms and provisions of this Order.
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`22.
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`The terms and provisions of this Order protecting each parties’ Confidential
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`Information shall survive and remain in effect after the conclusion of this lawsuit.
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`23.
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`The Court’s jurisdiction over the matters under this Order shall end at the close of
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`the case.
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`So Ordered this
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`25th
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` day of
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`April
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` 2024.
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`STEPHEN N. LIMBAUGH
`UNITED STATES DISTRICT JUDGE
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`Case: 1:23-cv-00032-SNLJ Doc. #: 38 Filed: 04/25/24 Page: 10 of 10 PageID #: 215
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`EXHIBIT A
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`ACKNOWLEDGMENT OF RECEIPT OF CONFIDENTIAL INFORMATION
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`The undersigned hereby acknowledges receipt of information and/or documents and/or
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`other items designated as CONFIDENTIAL pursuant to the Protective Order of the United States
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`District Court, Eastern District of Missouri, dated____________, in the litigation captioned Clyde
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`Freeman v. Deborah O’Haire, XPO Logistics Freight Line, Inc. & U.S. Security Associates, which
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`is pending in the United States District Court, Eastern District of Missouri, Eastern Division, under
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`Case No. 20-CV-1408-SRC. The undersigned has been provided with a copy of the Protective
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`Order and agrees to be bound by its terms.
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`(Print name)
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`(Signed and dated)
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