Opinion
Case No. 02-13533 (AJG), (Jointly Administered).
May 12, 2005
Joseph A. Patella (JP 3196), Richard Baumfield (RB 1489), ANDREWS KURTH LLP, New York, New York, Counsel to Jared Abbruzzese.
Larry W. Joye, Mark A. Shaiken, STINSON MORRISON HECKER LLP, Kansas City, Mo, Counsel for Debtors Debtors in Possession.
Deborah L. Kelly, HODGSON RUSS LLP, Albany, NY, Counsel for David Webb and Thomas Dixon.
AGREED PROTECTIVE ORDER
Upon consideration of Jared Abbruzzese's ("Abbruzzese") Motion for an Agreed Protective Order pursuant to Federal Rule of Civil Procedure 26(c) and Federal Rule of Bankruptcy Procedure 7026(c) with respect to Debtors and Debtors in Possession (collectively, "Debtors") request for production of a certain settlement agreement ("Settlement Agreement"); and the parties to said Settlement Agreement having agreed to its production as set forth herein; and the Settlement Agreement being confidential in nature; it is
ORDERED, ADJUDGED AND DECREED THAT:
1. The Motion for an Agreed Protective Order is granted for good cause shown.
2. Good cause exists warranting the grant of this Protective Order ("Order") with regard to the disclosure of the Settlement Agreement, which arises from the action entitled Webb, et al. v. CAI Wireless Systems, Inc., et al., filed in the United States District Court for the Eastern District of Texas, Sherman Division, Cause No. 4:02-CV-00005.
3. The use of the Settlement Agreement is subject to the following limitations:
(a) The parties to this Order, and each of the individuals to whom the Settlement Agreement may be disclosed under 3(b) below are prohibited from utilizing the Settlement Agreement, as well as any information contained therein, for any purpose other than in connection with Abbruzzese's Proofs of Claim Nos. 21985, 21895, 36019 and 36020, the Proofs of Claim filed by David Webb and Thomas Dixon ("Webb Dixon"), Nos. 15272 and 16845, and the Objections thereto by Debtors (hereinafter collectively referred to as the "Claims and Objections").
(b) The Settlement Agreement and the information contained therein shall not be disclosed to anyone other than the undersigned counsel and in-house counsel for the parties hereto (and their respective staffs), any experts retained by counsel in connection with the Claims and Objections, the Court and its personnel, court reporters retained to transcribe testimony in this matter, and client representatives of the parties hereto; provided that, the Settlement Agreement shall not be disclosed to client representatives (except for in-house counsel) or experts unless they first agree in writing to be bound by the terms of this Order by signing an Acknowledgement, in the form attached hereto as Exhibit 1. The attorney seeking to share the Settlement Agreement with a client representative (except for in-house counsel) or expert must first provide the client representative or expert with a copy of this document and secure the Acknowledgement that the client representative or expert agrees to be bound by this Agreement, which may be by then an Order, before releasing the Settlement Agreement. Client representatives receiving the Settlement Agreement under the terms of this Order may not make additional copies thereof.
(c) Any party hereto wishing to file any pleading or other papers on which it seeks to attach, or reproduce any documents covered by this Order shall file such materials under seal.
(d) The Clerk of the Court is directed to maintain under seal all documents filed with this Court by any party that reproduces or paraphrases any documents, in whole or in part, that are covered by this Order, including all pleadings, deposition transcripts, exhibits, discovery responses or memoranda. The person filing such material shall designate to the Clerk that all or a designated portion thereof is subject to this Order and is to be kept under seal, except that upon the default of the filing party to so designate, any party may do so. All documents which are filed with the Court for any purpose and which are covered by this Order shall be filed in a sealed envelope marked on the outside with the title of the action, the identification of each document within, and a statement substantially in the following form:
CONFIDENTIAL MATERIAL FILED UNDER SEAL: THE ENCLOSED MATERIAL IS SUBJECT TO A PROTECTIVE ORDER OF THE COURT. WITHOUT A COURT ORDER, THIS ENVELOPE MAY NOT BE OPENED EXCEPT BY THE COURT OR ITSEMPLOYEES.
4. Nothing in this Order shall preclude any party hereto or its counsel from (a) showing a document covered by this Order to an individual who either prepared the document, or is identified on the face of the document as having received the document; or (b) disclosing or using, in any manner or for any purpose, any information or documents which that party has produced, including information covered by this Order.
5. Within thirty (30) days of the resolution of the Claims and Objections, any party who received the Settlement Agreement shall either (a) destroy all copies of the Settlement Agreement in its possession and provide the undersigned counsel for Abbruzzese and Webb Dixon with a written certification that all such copies of the Settlement Agreement have been destroyed, or (b) return all copies of the Settlement Agreement to either counsel for Abbruzzese or counsel for Webb Dixon, depending upon which party originally produced the Settlement Agreement.
6. This Order is without prejudice to the right of any party hereto to seek relief from this Order from the Court, upon good cause shown.
7. Any person or party subject to this Order that may be subject to a motion to disclose information or documents covered by this Order, shall promptly notify the undersigned counsel for Abbruzzese and Webb Dixon of the motion so that they may have an opportunity to appear and be heard on whether that information should be disclosed.
8. In the event any party subject to this Order or any person signing an Acknowledgement as required herein, violates this Order the aggrieved party may seek any and all available remedies through this Court, which retains jurisdiction of this Order for that purpose.
IT IS SO ORDERED.EXHIBIT 1
AGREEMENT TO BE BOUND BY PROTECTIVE ORDER
The undersigned, __________________________ (print or type name), hereby acknowledges that she/he received a copy of the Agreed Protective Order entered in the action titled In re Worldcom, Inc., et al., Case No. 02-13533 (AJG), pending in the United States Bankruptcy Court for the Southern District of New York, has read same and agrees to be bound by all of the provisions thereof and further agrees not to use or copy the Settlement Agreement referenced therein for any purpose other than the purpose specified in the Agreed Protective Order and to promptly return all copies of the Settlement Agreement provided to him/her to the attorney providing the copy to him/her at such time as requested by the attorney providing the protected document but in no event later than the date the Claims and Objections as defined in the Order have been resolved.