`
`UNITED STATES DISTRICT COURT
`EASTERN DISTRICT OF MISSOURI
`SOUTHEASTERN DIVISION
`
`CAFE AGAVE, INC.,
`
`Plaintiff,
`
`v.
`
`CROWN VALLEY WINERY, INC.; and DOES
`1-10,
`
`Defendants.
`
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`
`Case No. 1:23-cv-00032
`
`PROTECTIVE ORDER
`
`WHEREAS, Fed. R. Civ. P. 26(c) provides for the issuance of a protective order limiting
`
`the disclosure of confidential information in appropriate circumstances. The parties have filed a
`
`Joint Motion for Protective Order (“Motion”). Upon review of the same, the Court hereby
`
`ORDERS the entry of this Confidentiality and Protective Order in the above-captioned action.
`
` This Protective Order shall govern the production and use of all documents, information,
`
`data, material, studies, recordings, testimony, and/or other items produced by any party (through
`
`its counsel) in response to discovery requests, in mandatory disclosures, and/or utilized and/or
`
`referenced during depositions or other proceedings in this action, which any party or its counsel
`
`designate as “CONFIDENTIAL,” or “ATTORNEYS’ EYES ONLY.” These may include, but
`
`may not necessarily be limited to, items containing “Confidential Information” as defined below.
`
`All such designated documents, information, data, material, studies, recordings, testimony, and/or
`
`other items, shall be treated as confidential in the following manner:
`
`1.
`
`Any person or entity involved in the representation of any party to the lawsuit
`
`captioned Cafe Agave, Inc. v. Crown Valley Winery, Inc. et al., which is pending in the United
`1 of 10
`
`
`
`Case: 1:23-cv-00032-SNLJ Doc. #: 38 Filed: 04/25/24 Page: 2 of 10 PageID #: 207
`
`States District Court, Eastern District of Missouri, Southern Division, under Case No. 1:23-cv-
`
`00032, their respective insurers, investigators, experts, employees, agents, and the named litigants
`
`themselves, shall not disseminate documents, information, data, material, studies, recordings,
`
`testimony, and/or other items designated as CONFIDENTIAL, except in furtherance of limited
`
`purposes directly related to the prosecution of claims or defenses in this lawsuit. As used in this
`
`Order, the term “disseminate” shall include, but not be limited to, speaking about or paraphrasing
`
`the contents of; posting through electronic means, the internet, or social media, the contents of;
`
`and copying, photographing, scanning, streaming, videotaping,
`
`transcribing,
`
`retyping,
`
`reproducing, or reprinting by any means whatsoever, any documents, information, data, material,
`
`studies, recordings, testimony, and/or other items designated as CONFIDENTIAL. The parties
`
`and their counsel shall be subject to all restrictions on dissemination set forth in this Order.
`
`2.
`
`Before production of any documents, information, data, material, studies,
`
`recordings, testimony, and/or other items, the producing party shall make a determination as to
`
`whether or not said documents, information, data, material, studies, recordings, testimony, and/or
`
`other items contain personal financial information of any individual or entity, proprietary business
`
`information, trade secrets, confidential research and/or development, competitively/commercially
`
`sensitive information, internal policies and/or procedures, information subject to an evidentiary
`
`privilege, or other information the disclosure of which would, in the judgment of that party, if
`
`disseminated in violation of the order, be potentially or actually injurious, damaging, or
`
`detrimental to the producing party’s business or the business of any of its customers or clients, its
`
`reputation, its position in any other litigation, or the interests of that party with its customers or
`
`clients.
`
`2 of 10
`
`
`
`Case: 1:23-cv-00032-SNLJ Doc. #: 38 Filed: 04/25/24 Page: 3 of 10 PageID #: 208
`
`3.
`
`The production of documents, information, data, material, studies, recordings,
`
`testimony, and/or other items that a producing party determines fall within paragraph two (2)
`
`above, shall be accomplished by that party making a CONFIDENTIAL notation on the document,
`
`information, data, material, study, recordings, transcript of testimony, and/or other item, or making
`
`a statement on the record at any deposition or court appearance, or by writing to the counsel for
`
`the other parties to this lawsuit, or by other agreed upon means of notice, that such information is
`
`confidential.
`
`4.
`
`“Confidential Information” as used in this Order shall mean information contained
`
`in any document, information, data, material, study, recording, testimony, and/or other item that
`
`has been determined by that party to fall within paragraph two (2) above.
`
`5.
`
`Attorneys’ Eyes Only Information” is extremely sensitive or proprietary
`
`information, including trade secrets, research, analysis, development, financial or other
`
`commercial information of a non-public nature, non-public communications with regulators or
`
`other governmental bodies that are protected from disclosure by statute or regulation; non-public
`
`business or financial strategies, business plans, strategic plans, sales and marketing plans,
`
`marketing surveys, earnings or other financial projections, contracts or agreements, including any
`
`documentation that is considered confidential or proprietary under other confidentiality or non-
`
`disclosure agreements and/or information protected by the right of privacy and/or any applicable
`
`privilege, disclosure of which to another party or nonparty would create a substantial risk of serious
`
`harm or injury to the business or competitive position of the designating party that could not be
`
`avoided by less restrictive means.
`
`6.
`
`The production of any item containing Confidential Information or Attorneys’ Eyes
`
`Only Information under this Order shall not operate as a waiver of any parties’ right to object to
`
`3 of 10
`
`
`
`Case: 1:23-cv-00032-SNLJ Doc. #: 38 Filed: 04/25/24 Page: 4 of 10 PageID #: 209
`
`the production of proprietary information, intellectual property, trade secrets, research and/or
`
`development, information subject to an evidentiary privilege, and/or internal process, policies, and
`
`procedures which, in the judgment of that party, would cause irreparable or competitive harm to
`
`that party if it were disclosed, inadvertently or otherwise, to the public or any competitors.
`
`7.
`
`All Confidential
`
`Information, whether designated CONFIDENTIAL or
`
`ATTORNEYS’ EYES ONLY, and produced or disclosed by any party shall be and remain the
`
`property of that producing party, and that producing party shall not be deemed to have granted any
`
`license, copyright, or similar right with respect to any Confidential Information or any other
`
`information disclosed by that party in this lawsuit.
`
`8.
`
`All Confidential Information designated CONFIDENTIAL shall be treated as
`
`secret and strictly confidential, except with the prior written consent of that producing party and/or
`
`counsel for that producing party, or upon order of the Court Confidential Information may be
`
`shown, disseminated, or disclosed only to the following persons for use restricted exclusively to
`
`this case:
`
`a.
`
`b.
`
`c.
`
`d.
`
`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;
`
`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;
`
`The Court in which this lawsuit is pending, under
`seal of said Court;
`
`Actual witnesses and actual deponents who are
`parties to this lawsuit and/or employees of parties or
`their counsel.
`
`4 of 10
`
`
`
`Case: 1:23-cv-00032-SNLJ Doc. #: 38 Filed: 04/25/24 Page: 5 of 10 PageID #: 210
`
`9.
`
`All Confidential Information designated ATTORNEYS’ EYES ONLY shall be
`
`treated as secret and strictly confidential, except with the prior written consent of that producing
`
`party and/or counsel for that producing party, or upon order of the Court. Such confidential
`
`Information may be shown, disseminated, or disclosed only to the following persons for use
`
`restricted exclusively to this case:
`
`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;
`
`10.
`
`Before being provided with access to any Confidential Information, each person
`
`described in paragraph seven (7) above shall be fully informed of the terms of this Order and given
`
`a copy thereof.
`
`11.
`
`Confidential Information shall be utilized by the receiving party, its counsel, and
`
`experts only for purposes of this litigation and for no other purposes whatsoever.
`
`12.
`
`To the extent documents, information, data, material, studies, recordings,
`
`testimony, and/or other items designated as CONFIDENTIAL or ATTORNEYS’ EYES ONLY
`
`are used in the taking of depositions, same shall remain subject to the provisions of this Order,
`
`unless the Court expressly rules otherwise. The portions of the transcripts of all such testimony
`
`shall be designated as CONFIDENTIAL or ATTORNEYS’ EYES ONLY and shall be labeled
`
`with the appropriate notation by the court reporter/stenographer. If any document, information,
`
`data, material, study, recording, testimony, and/or other item designated as CONFIDENTIAL or
`
`ATTORNEYS’ EYES ONLY pursuant to this Order is used during the course of a deposition in
`
`this lawsuit, that portion of the deposition record referencing such document, information, data,
`
`material, study, recording, testimony, and/or other item shall be labeled with the appropriate
`
`CONFIDENTIAL designation.
`
` The court reporter/stenographer also shall clearly and
`
`5 of 10
`
`
`
`Case: 1:23-cv-00032-SNLJ Doc. #: 38 Filed: 04/25/24 Page: 6 of 10 PageID #: 211
`
`conspicuously mark the front page of any transcript which contains references to Confidential
`
`Information with the CONFIDENTIAL or ATTORNEYS’ EYES ONLY designation.
`
`13.
`
`To the extent that documents, information, data, materials, studies, recordings,
`
`testimony, and/or other items designated as CONFIDENTIAL or ATTORNEYS’ EYES ONLY
`
`are utilized in any motion practice or utilized with any Court filing, and if the parties intend to
`
`restrict such CONFIDENTIAL or ATTORNEYS’ EYES ONLY information from public access,
`
`the party filing same shall seek leave of the Court to file the Confidential Information according
`
`to Local Rule 13.05 and the Court’s CM/ECF Procedures Manual. If a party does not seek leave
`
`of the Court to file under seal CONFIDENTIAL or ATTORNEYS’ EYES ONLY documents,
`
`information, data, materials, studies, recordings, testimony, and/or other items that are used in
`
`depositions or motion practice, the Confidential Information contained therein shall be
`
`appropriately redacted. If Confidential Information is to be disclosed at a deposition, hearing, or
`
`trial, the disclosing party shall have the right to exclude from attendance, during the time in which
`
`the Confidential Information is to be discussed, any persons not bound by this Order.
`
`14.
`
`If any party produces two or more identical or substantially identical copies of a
`
`document or item containing Confidential Information, and one or more is designated as
`
`CONFIDENTIAL or ATTORNEYS’ EYES ONLY while the other or others lack such
`
`designation, the undesignated copies shall be afforded the same CONFIDENTIAL or
`
`ATTORNEYS’ EYES ONLY designation as the already designated documents and/or items.
`
`15.
`
`Admission into evidence of Confidential Information or other items at trial or
`
`pretrial proceedings in this lawsuit shall be subject to the terms and conditions of this Order and
`
`shall not serve as a waiver or abrogation of the terms of this Order, unless the Court expressly rules
`
`otherwise.
`
`6 of 10
`
`
`
`Case: 1:23-cv-00032-SNLJ Doc. #: 38 Filed: 04/25/24 Page: 7 of 10 PageID #: 212
`
`16.
`
`Any court reporter/stenographer who may be given access to Confidential
`
`Information shall, before the deposition, hearing, or trial, be provided with a copy of this Order
`
`and shall agree to its terms in writing by using the “Acknowledgement of Receipt of Confidential
`
`Information” form attached hereto as Exhibit A, thereby agreeing to be bound by all terms of this
`
`Protective Order.
`
`17.
`
`At any time, if any of the parties believe that a document, information, data,
`
`material, study, recording, testimony, and/or other item which has been designated as
`
`CONFIDENTIAL or ATTORNEYS’ EYES ONLY is not entitled to such designation, that party
`
`shall notify the party or its counsel who produced same of the objection, identify the document,
`
`information, data, material, study, recording, testimony, and/or other item which is the subject of
`
`the objection, and state the basis for the objection in writing. The parties shall attempt to reach an
`
`agreement regarding the status of the challenged item within ten (10) business days after receipt
`
`of the written objection. If no agreement can be reached within ten (10) business days after receipt
`
`of the written objection, the objecting party may seek relief from the Court by motion within thirty
`
`(30) days thereafter to obtain a ruling from the Court as to whether the challenged item was
`
`properly designated as CONFIDENTIAL or ATTORNEYS’ EYES ONLY. Pending resolution of
`
`the dispute, the document, information, data, material, study, recording, testimony, and/or other
`
`item shall be treated as CONFIDENTIAL or ATTORNEYS’ EYES ONLY and shall remain
`
`subject to the terms of this Order. If the objecting party does not seek such relief from the Court
`
`within the timeframe set forth in this Paragraph, that party’s objection(s) to the CONFIDENTIAL
`
`or ATTORNEYS’ EYES ONLY designation shall be deemed waived and withdrawn.
`
`18.
`
`If any party fails to designate a document, information, data, material, study,
`
`recording, testimony, and/or other item as CONFIDENTIAL or ATTORNEYS’ EYES ONLY
`
`7 of 10
`
`
`
`Case: 1:23-cv-00032-SNLJ Doc. #: 38 Filed: 04/25/24 Page: 8 of 10 PageID #: 213
`
`upon production, that party may subsequently designate the produced document, information, data,
`
`material, study, recording, testimony, and/or other item as CONFIDENTIAL or ATTORNEYS’
`
`EYES ONLY by giving written notice to the receiving party or parties, or his/her/its/their counsel,
`
`and providing copies marked and/or designated as CONFIDENTIAL within thirty (30) days of the
`
`date that party actually discovers that it failed to properly so designate.
`
`19. Within thirty (30) days after the final resolution of this lawsuit, including any
`
`appeals, any party’s counsel who has received, or any person or entity that is in any way in
`
`possession of, any document, information, data, material, study, recording, testimony, and/or other
`
`items designated as CONFIDENTIAL or ATTORNEYS’ EYES ONLY, including any document,
`
`information, data, material, study, recording, testimony, and/or other items filed under seal with
`
`the Court, shall be responsible for returning to that party, through its counsel, the originals and all
`
`copies of any and all such items containing Confidential Information which were duplicated via
`
`any form of reproduction, including, but not limited to, paper or electronic copies. Alternatively,
`
`any such counsel, person, or entity, may provide an affidavit certifying that all such items
`
`containing Confidential Information, and any copies thereof, have been destroyed. Any document,
`
`information, data, material, study, recording, testimony, and/or other items filed under seal with
`
`the Court shall exit the Court’s docket after the close of the case.
`
`20.
`
`This Order shall not enlarge or affect the proper scope of discovery in this lawsuit,
`
`nor shall this Order imply that items designated as CONFIDENTIAL or ATTORNEYS’ EYES
`
`ONLY under the terms of this Order are properly discoverable, relevant, or admissible in this
`
`lawsuit.
`
`21.
`
`This Order is entered into without prejudice to the right of any party to seek relief
`
`from, or modification of, any of its terms and/or provisions, by properly noticed motion to the
`
`8 of 10
`
`
`
`Case: 1:23-cv-00032-SNLJ Doc. #: 38 Filed: 04/25/24 Page: 9 of 10 PageID #: 214
`
`Court; before the Court’s decision directing such relief, if any, the documents, information, data,
`
`materials, studies, recordings, testimony, and/or other items designated as CONFIDENTIAL shall
`
`remain so designated and subject to all of the terms and provisions of this Order.
`
`22.
`
`The terms and provisions of this Order protecting each parties’ Confidential
`
`Information shall survive and remain in effect after the conclusion of this lawsuit.
`
`23.
`
`The Court’s jurisdiction over the matters under this Order shall end at the close of
`
`the case.
`
`So Ordered this
`
`25th
`
` day of
`
`April
`
` 2024.
`
`STEPHEN N. LIMBAUGH
`UNITED STATES DISTRICT JUDGE
`
`9 of 10
`
`
`
`Case: 1:23-cv-00032-SNLJ Doc. #: 38 Filed: 04/25/24 Page: 10 of 10 PageID #: 215
`
`EXHIBIT A
`
`ACKNOWLEDGMENT OF RECEIPT OF CONFIDENTIAL INFORMATION
`
`The undersigned hereby acknowledges receipt of information and/or documents and/or
`
`other items designated as CONFIDENTIAL pursuant to the Protective Order of the United States
`
`District Court, Eastern District of Missouri, dated____________, in the litigation captioned Clyde
`
`Freeman v. Deborah O’Haire, XPO Logistics Freight Line, Inc. & U.S. Security Associates, which
`
`is pending in the United States District Court, Eastern District of Missouri, Eastern Division, under
`
`Case No. 20-CV-1408-SRC. The undersigned has been provided with a copy of the Protective
`
`Order and agrees to be bound by its terms.
`
`(Print name)
`
`(Signed and dated)
`
`10 of 10
`
`