Opinion
Civil Action No. 02-CV-5409 (GEB).
September 2, 2003
Theresa A. Kelly, PITNEY HARDIN KIPP SZUCH LLP, Morristown, NJ, Mark B. Blocker, Erin E. Kelly, SIDLEY AUSTIN BROWN WOOD LLP, Chicago, Illinois, Attorneys for defendants ATT Corp., C. Michael Armstrong, Kenneth T. Derr, M. Kathryn Eickhoff, Walter Y. Elisha, George M.C. Fisher, Donald V. Fites, Ralph S. Larsen, Donald F. McHenry, Michael I. Sovern, and John D. Zeglis.
Lisa J. Rodriguez, TRUJILLO RODRIGUEZ RICHARDS, LLC, Haddonfield, NJ, Robert A. Izard, Andrew M. Schatz, Wayne T. Boulton, SCHATZ NOBEL, PC, Hartford, Connecticut, Attorneys for plaintiffs Richard R. Furstenau and Davis G. Ingber.
CLASS ACTION STIPULATION AND PROTECTIVE ORDER
Good cause appearing therefore, the following stipulation of the parties in this matter, as evidenced by the signatures of counsel of record appearing below, is hereby ordered.
STIPULATED TERMS OF PROTECTIVE ORDER
Pursuant to Fed.R.Civ.P. 26(c), IT IS HEREBY STIPULATED AND AGREED by the respective undersigned counsel for the plaintiffs and defendants listed on the signature pages hereto that the following provisions shall govern disclosure and use by the undersigned parties of all documents, testimony, and other information designated "Confidential" or "Highly Confidential" which is produced or given by any person in the course of discovery in this action. In addition, a single protective order governing this action and the matters pending in MDL No. 1339 (the "Wireless IPO Action," No. 01cv1883 (GEB); the "ATT Corp. Action," No. 00cv5364 (GEB); and the "Anderson Action," No. 01cv2824 (GEB)) will facilitate coordination of discovery as contemplated in this Court's Pretrial Scheduling Order entered on May 16, 2003.
ACCORDINGLY, IT IS HEREBY STIPULATED AND AGREED that:
1. The term "Information" as used herein shall include any document, deposition testimony, electronic data, interrogatory response, response to requests for admissions, or other information disclosed or produced by or on behalf of a party (or any of its attorneys or other agents), or by or on behalf of a non-party (or any of its attorneys or other agents), and all information derived therefrom.
2. Information may be designated by the producing party as "Confidential" or "Highly Confidential" within the meaning of this Stipulation and Protective Order. The producing party shall designate Information "Confidential" or "Highly Confidential" only when the producing party has a reasonable, good faith belief that the Information so designated is confidential within the meaning of Rule 26(c)(7) of the Federal Rules of Civil Procedure and as further defined below.
(a) "Confidential" Information includes trade secrets or other confidential research, development, commercial, or non-public financial subjects, including the following:
• Internal plans and analyses (such as, in the case of ATT Corp. ("ATT"), ATT internal plans and analyses for various business units and/or the company as a whole);
• Strategic decisions (such as, in the case of ATT, strategic decisions concerning the reorganization, sale, or spin off of various ATT business units);
• Non-public financial information (such as, in the case of ATT, non-public financial information including projections, budgets, cost data, profit data, and other financial performance data of ATT, its various business units and its "Concert" joint venture with British Telecommunications plc ("BT"), including the impact of these business units on ATT's performance);
• Material that is subject to an existing contractual agreement with another person or entity, which precludes public dissemination and which is not otherwise in the public domain;
• Non-public information relating to customers or a current/former participant in any employee benefit plan;
• Non-public information relating to employee benefits, a participant's investment decisions, and/or the administration of any employee benefit plan.
(b) "Highly Confidential" Information is limited to the following:
• Internal personnel records (which include documents relating to employee hiring, performance, disciplinary action, termination, compensation, and/or benefits issues).
Any Information not designated as "Confidential" or "Highly Confidential" in accordance with the procedures set forth herein shall not be covered by this Stipulation and Protective Order.
3. "Confidential" Information, except with the prior consent of the producing party or upon prior order of this Court, shall not be disclosed by any party to any person other than the following:
(a) outside counsel for the parties in this litigation and their secretaries, legal assistants, or other support personnel as reasonably necessary to assist outside counsel in this litigation (collectively "Outside Litigation Counsel");
(b) the following additional persons on behalf of the parties:
• for the plaintiffs: Richard R. Furstenau and Davis G. Ingber;
• for defendants: each individual defendant; and current employees of ATT, its subsidiaries, and its affiliates as reasonably necessary to assist in this litigation;
(c) outside experts, consultants, and/or litigation support vendors who are not employees of any party and who are expressly retained to assist counsel of record for the parties, including, but not limited to, independent auditors, accountants, statisticians, economists and other experts, and the employees of such persons (collectively "Outside Litigation Assistants"); provided, however, that no representatives of the International Brotherhood of Electrical Workers or its parents, subsidiaries, or affiliates ("IBEW") may be retained as Outside Litigation Assistants (per the protective order entered in MDL No. 1399);
(d) the Court, Court personnel, jurors, mediators, and arbitrators;
(e) court reporters and videographers who are retained to transcribe or videotape testimony in this action;
(f) any person who wrote or received the document designated "Confidential";
(g) any person being interviewed by a party who already possessed knowledge of the Confidential Information before being contacted by the party;
(h) defendants' insurers or their counsel; and
(i) during depositions only, a deposition witness who appears, based upon the document itself or testimony in a deposition, to have knowledge of the contents of the document designated "Confidential" or the specific events, transactions, discussions, or data reflected in the document.
4. "Highly Confidential" Information, except with the prior consent of the producing party or upon prior order of this Court, shall not be disclosed by any party to any person other than the following:
(a) Outside Litigation Counsel;
(b) ATT in-house counsel assisting with this litigation, and support personnel as reasonably necessary to assist ATT in-house counsel in this litigation;
(c) Outside Litigation Assistants, subject to the same exclusion set forth in Paragraph 3(c) above;
(d) the Court, Court personnel, jurors, mediators, and arbitrators;
(e) court reporters and videographers who are retained to transcribe or videotape testimony in this action;
(f) any person who wrote or received the document designated "Highly Confidential";
(g) defendants' insurers or their counsel; and
(h) during depositions only, a deposition witness who appears, based upon the document itself or testimony in a deposition, to have knowledge of the contents of the document designated "Highly Confidential" or the specific events, transactions, discussions, or data reflected in the document.
5. Any person entitled to receive "Confidential" Information pursuant to Paragraph 3, subparts (a), (b), (c), (e), or (g), or "Highly Confidential" Information pursuant to Paragraph 4, subparts (a), (b), (c), or (e) shall, prior to being given any "Confidential" or "Highly Confidential" Information, read this Stipulation and Protective Order, and shall execute a sworn statement in the form annexed hereto as Exhibit A, indicating that he or she has read this Stipulation and Protective Order and will abide by its terms. For a firm of court reporters, videographers, or litigation support vendors, the requirements of the preceding sentence shall be deemed satisfied for the firm and its personnel if one person with authority to do so executes the sworn statement on behalf of the firm, provided that all firm personnel who work on this litigation are made aware of this Stipulation and Protective Order and the firm's responsibilities hereunder. The designating party shall use its best efforts to secure such sworn statements from any mutually agreed-upon firm of court reporters, videographers, or litigation support vendors; however, in all other instances, it shall be the responsibility of the party retaining the firm of court reporters, videographers, or litigation support vendors to obtain the sworn statements. Such sworn statements shall be retained by counsel disclosing the "Confidential" or "Highly Confidential" Information and shall be made available for in camera inspection upon a showing of good cause, except that statements of Outside Litigation Assistants shall not be made available until such time as the party is obligated to identify such individuals. Persons to whom "Confidential" or "Highly Confidential" Information is shown or disclosed pursuant to Paragraph 3(f) or Paragraph 4(f) shall, prior to being given any "Confidential" or "Highly Confidential" Information, be given a copy of and asked to read this Stipulation and Protective Order and shall be bound by its terms, and shall not disclose such Information to any other persons, except as provided for by the terms of this Stipulation and Protective Order.
6. Any person receiving "Confidential" or "Highly Confidential" Information shall not disclose such Information to any person who is not entitled to receive such Information or use such Information for any purpose other than the instant litigation.
7. A party shall designate documents as either "Confidential" or "Highly Confidential" by affixing a stamp with such words on the document before copies of the documents are delivered to another party.
8. Any deposition transcript or videotaped deposition containing "Confidential" or "Highly Confidential" Information shall be marked on the cover "Confidential" or "Highly Confidential" and shall indicate as appropriate within the transcript and on the videotape that the Information has been so designated. A party may designate any portions of the transcript (including exhibits) or videotape as containing "Confidential" or "Highly Confidential" Information by so advising the deposition reporter in the course of the deposition, who shall indicate in the deposition transcript and on the videotape what portion(s) of the testimony (or exhibits thereto) were so designated, or by so advising all other parties which pages are confidential within thirty (30) days after receipt by the designating party of the transcript. Until thirty (30) days have passed after the receipt of any transcript, the entire transcript and videotape shall be deemed to contain "Highly Confidential" Information. Nothing in this Stipulation and Protective Order shall prevent an employee of a party or Outside Litigation Counsel from attending any deposition, except that only persons entitled to receive "Confidential" or "Highly Confidential" Information shall be present when such Information is disclosed at a deposition. Counsel for the party disclosing such "Confidential" or "Highly Confidential" Information at a deposition shall, before such Information is disclosed, advise counsel for all other parties so that appropriate safeguards can be taken to ensure that only persons entitled to receive such Information pursuant to the terms of this Stipulation and Protective Order are present when such Information is disclosed.
9. In the event that counsel for any party decides to file with or submit to the Court any "Confidential" or "Highly Confidential" Information, the following procedures shall be used:
(a) All Information subject to confidential treatment in accordance with the terms of this Stipulation and Order that is filed with the court and any pretrial pleading, motions, or other papers filed with the Court disclosing any "Confidential" or "Highly Confidential" Information shall be filed under seal and kept under seal until further order of this Court.
(b) The parties agree to refrain, whenever possible, from including "Confidential" or "Highly Confidential" Information in the titles of the documents filed with the court so that, in all instances, the titles of the documents — and the court's docket sheet reflecting those titles — may remain public.
(c) All filings to be filed under seal, in whole or in part, must be so designated by the party making the filing. Filings containing "Confidential" or "Highly Confidential" Information may be filed under seal in their entirety. If a filing containing such Information is not placed under seal in its entirety, those portions containing "Confidential" or "Highly Confidential" Information must be separated from the pleading and placed in an envelope bearing the caption of this case, the name of the filing, and the legend "Filed Under Seal."
10. The use of any "Confidential" or "Highly Confidential" Information for the purpose of any trial or any hearing which is open to the public is not addressed at this time.
11. Any producing party may give notice to any receiving party that it is eliminating a previous designation of a document or other Information as "Confidential" or "Highly Confidential." Any receiving party may request that a producing party eliminate such designation, in accordance with Paragraph 14 below. In the event that a "Confidential" or "Highly Confidential" designation is removed, if the Information is used as an exhibit at trial or otherwise displayed to the jury, all deposition statements and all markings indicating that the Information had previously been designated by the party as "Confidential" or "Highly Confidential" shall be removed (or edited, in the case of a videotaped deposition) prior to offering the Information into evidence or displaying same to the jury, and no mention shall be made of the previous designation. The party requesting the elimination of the previous designation shall be responsible for eliminating that designation and shall fulfill this responsibility by providing a new, redesignated copy of the document or other Information. If any Information designated by a party as "Confidential" or "Highly Confidential" is used as an exhibit at trial or otherwise displayed to the jury, the producing party shall be entitled to add to the "Confidential" or "Highly Confidential" marking the following language: "Pursuant to the Protective Order Entered in This Case." A similar statement may be added to any deposition transcript or videotaped deposition. This paragraph is without prejudice to the right of any party to request, or of any other party to oppose, by motion in limine or otherwise, that the Court prohibit any party from displaying any markings indicating that a document or other Information had been designated by any party as "Confidential" or "Highly Confidential," or that the Court permit a party to add an explanation or that the Court give an appropriate instruction.
12. Nothing herein shall impose any restriction on the use or disclosure by a party of its own Information. Nor shall this Stipulation and Protective Order be construed to prevent any party, its counsel, or its Outside Litigation Assistants from making use as they see fit of Information that was lawfully available to the public or lawfully in the possession of the party, its counsel, or its Outside Litigation Assistants, or that properly came into the possession of the party, its counsel, or its Outside Litigation Assistants independent of any disclosure of "Confidential" or "Highly Confidential" Information in this litigation, or that was obtained from a non-party in the course of this litigation and was not designated as "Confidential" or "Highly Confidential" by that non-party. In the event, however, that a non-party provides Information that was generated by a party to this Stipulation and Protective Order and that party believes that the Information is proprietary and confidential, the party may request that all copies of such Information be stamped with whatever designation the party believes is appropriate within the provisions of this Stipulation and Protective Order provided that the non-party was acting within the scope of his or her employment or agency for the party when he or she obtained such Information from the party (or an affiliate or subsidiary thereof). If the parties to this Stipulation and Protective Order disagree concerning the proper designation of the Information, such dispute shall be resolved pursuant to the procedures described in Paragraph 14 of this Stipulation and Protective Order. Pending the Court's ruling, the party contesting the requested designation shall treat the Information as if the requested designation were proper and effective.
13. Nothing contained in the Stipulation and Protective Order or any designation of confidentiality hereunder or any failure to make such designation shall be used or characterized by any party as an "admission" by a party or a party opponent. Nothing in this Stipulation and Protective Order shall be deemed an admission by plaintiffs that any particular Information described in paragraph 2 and/or designated by defendants or any third party as "Confidential" or "Highly Confidential" is entitled to protection under this Order, Rule 26(c)(7), or any other applicable law. Plaintiffs' rights to challenge the designation of any particular Information as "Confidential" or "Highly Confidential," whether or not within the scope of paragraph 2, are specifically reserved.
14. Entry of this Stipulation and Protective Order shall be without prejudice to any motion for relief from or modification of the provisions hereof or to any other motion relating to the production, exchange, or use of any document or other Information in the course of this action, provided, however, that no such motion shall be made after entry of a final judgment or settlement. If a party disagrees with a producing party's designation of Information as "Confidential" or "Highly Confidential," or disputes the limitations on access to be accorded such Information under this Stipulation and Protective Order, such party shall provide to the producing party written notice of its disagreement and specifically identify the Information or restriction on access in dispute. If, despite good faith effort, the dispute cannot be resolved informally by the parties, the party contesting the designation or restriction on access may seek relief from the Court in accordance with Local Civil Rule 37.1. The party who designated the Information as "Confidential" or "Highly Confidential" shall bear the burden of demonstrating that the Information is entitled to protection from disclosure under applicable law. Pending the Court's ruling, the party contesting the designation shall continue to treat the Information in the manner required by the Stipulation and Protective Order.
15. If a party inadvertently produces Information that it considers to be protected by the attorney-client privilege, the work product doctrine, the joint defense privilege, or other applicable privilege, in whole or in part, or learns of the production of such Information by a non-party, the party may retrieve such Information as follows:
(a) Within twenty-one (21) days of the date of discovery by a party of the inadvertent production by it or a non-party, the party asserting that an inadvertent production has occurred must give written notice to all other parties that the party claims the Information, in whole or in part, is privileged or protected material; in addition, the notice must state the nature of the privilege or protection, the basis for asserting it, and the reason the production is claimed to be inadvertent.
(b) Upon receipt of such notice, any party who has received the produced document or material shall promptly return all copies to the party asserting inadvertent production. In the event that only part of a document is claimed to be privileged or protected, the party asserting inadvertent production shall furnish to the other parties who have received the document a redacted copy of such document, removing only the part(s) thereof claimed to be privileged or protected, together with such written notice. Any party who has received the produced documents or material may contest the claim of inadvertence in accordance with Local Civil Rule 37.1; provided, however, that should the parties' good faith efforts fail to resolve any dispute over inadvertent production, the party contesting the claim of inadvertence shall bring the matter to the Court's attention under Local Civil Rule 37.1(a)(1) within twenty-one (21) days after good faith efforts to resolve the dispute have failed. Prior to resolution of any such dispute (either by the parties or through intervention of the Court), the receiving party need not return all copies of the produced documents or material to the party asserting inadvertent production; however, the receiving party may not use or disclose the Information claimed privileged for any purpose other to challenge the privilege or protection claim.
(c) The provisions of subparts (a) and (b) of this Paragraph are without prejudice to any other rights that any party may have with respect to challenging or defending any claim of privilege; provided, however, that no claim of waiver, estoppel, laches, or the like based on alleged delay or alleged lack of timeliness can be asserted against the party claiming inadvertent production if that party has complied with subpart (a) of this Paragraph.
16. A party that has inadvertently produced Information without designating it as "Confidential" or "Highly Confidential" Information may at any time prior to the fact discovery cutoff in this action redesignate such Information as "Confidential" or "Highly Confidential." The party receiving such redesignated "Confidential" or "Highly Confidential" Information shall make a reasonable good faith effort to ensure that any analysis, memoranda, notes, or other material that were generated based upon such Information shall immediately be treated in conformance with any such redesignation.
17. In the event that a party produces two or more identical or substantially identical copies of a document or other Information, and any copy is designated "Confidential" or "Highly Confidential" while other copies are not so designated, all such identical or substantially identical documents or other Information shall be treated with the highest confidentiality designation once the inconsistent designation is known. The producing party shall be responsible for informing the party receiving the inconsistently designated document or other Information of the inconsistent designation.
18. All provisions of this Stipulation and Protective Order restricting the use of Information obtained during discovery shall continue to be binding after the conclusion of this action, including all appeals, until further order of the Court, unless the parties agree otherwise in writing. Any and all originals and copies of documents or other Information deemed to be "Confidential" or "Highly Confidential" shall, at the request of the producing party, be returned to the producing party at the producing party's expense, or destroyed, within one month after a final judgment and appeals herein or settlement of this action except that outside counsel for each party (whether or not counsel of record) may maintain in its files one copy of each pleading filed with the Court, and each written discovery request and written response thereto (but not confidential documents produced in response to a request for production of documents, which documents must be returned to the producing party or destroyed in accordance with the procedure identified elsewhere in this Paragraph). Upon request from any party, a party who elects to destroy confidential documents in its possession will attest to the fact that such documents have been destroyed.
19. Neither this Stipulation and Protective Order nor any party's designation of Information as "Confidential" or "Highly Confidential" shall affect the admissibility into evidence of the Information so designated.
20. Non-parties from whom discovery is sought by the parties to this Stipulation and Protective Order may designate Information as "Confidential" or "Highly Confidential" consistent with the terms of this Stipulation and Protective Order, provided that such non-parties agree in writing to be bound by the Stipulation and Protective Order. Under such circumstances, all duties applicable to a producing party shall apply to such non-party. All obligations applicable to parties receiving such Information shall apply to any party receiving Information from such non-party. In addition, non-party ATT Wireless shall have the same rights to receive "Confidential" and "Highly Confidential" Information as ATT.
21. Nothing in this Stipulation and Protective Order is intended to constitute an agreement regarding the scope of discovery.
22. The Court retains jurisdiction subsequent to settlement or entry of judgment to enforce the terms of this Stipulation and Protective Order. UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY CLASS ACTION
RICHARD R. FURSTENAU and DAVIS G. INGBER, on ) behalf of all other persons similarly situated and on behalf) of the ATT Long Term Savings Plan for Management ) Employees, ) HON. GARRETT E. BROWN, JR. Plaintiffs, ) MAGISTRATE JUDGE JOHN J. HUGHES ) v. ) Civil Action No.: 02-CV-5409 (GEB) ) ATT CORPORATION et al., ) Defendants. )EXHIBIT A TO STIPULATION AND PROTECTIVE ORDER ACKNOWLEDGMENT
I hereby attest to my understanding that confidential information or documents, materials, or information are being provided to me pursuant to the terms and conditions of the Stipulation and Protective Order executed by the parties and entered by the Court in the above-captioned litigation. I hereby attest that I have been given a copy of and have read the Stipulation and Protective Order and that I hereby agree to be bound by it and its terms. I agree that I shall not disclose to others, except in accordance with the terms of the Stipulation and Protective Order, such confidential documents, materials, or information. I further agree that the United States District Court for the District of New Jersey has jurisdiction to enforce the terms of the Stipulation and Protective Order, and I consent to jurisdiction of that Court over my person for that purpose.If I am signing on behalf of a firm of court reporters, videographers, or litigation support vendors, I further state that I have authority to sign on behalf of my firm, and that I will make sure that all firm personnel who work on this litigation are made aware of this Stipulation and Protective Order and the firm's responsibilities hereunder.
Signature: __________________
Name (type or print): Position: Firm: Address: Telephone Number: Date: