1

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TEXAS

SAN ANTONIO DIVISION

JONATHAN VILLAREAL, 

INDIVIDUALLY AND DERIVATIVELY 

ON BEHALF OF ZROBLACK, LLC;

 Plaintiff,

vs.

JOHN SAENZ, MIGUEL VILLARREAL, 

JR., GUNN, LEE & CAVE, P.C.,

 Defendants.

§

§

§

§

§

§

§

§

§

§

§

§

5-20-CV-00571-OLG-RBF

CONFIDENTIALITY AND PROTECTIVE ORDER

Before the Court is the status of the above-referenced case. Upon consideration, the Court 

sua sponte enters the following Confidentiality and Protective Order to govern this action:

1. Classified Information

“Classified Information” means any information of any type, kind, or character that is 

designated as “Confidential”, “For Counsel Only”, or “Attorneys Eyes Only” by any of the 

supplying or receiving persons, whether it be a document, information contained in a document, 

information revealed during a deposition, information revealed in an interrogatory answer, or 

otherwise.

2. Qualified Persons

“Qualified Persons” means:

a. For Counsel or Attorneys Only information:

i. retained counsel for the parties in this litigation and their respective staff;

ii. actual or potential independent experts or consultants (and their administrative or 

clerical staff) engaged in connection with this litigation (which shall not include 

the current employees, officers, members, or agents of parties or affiliates of 

Case 5:20-cv-00571-OLG Document 26 Filed 10/20/20 Page 1 of 10
2

parties) who, prior to any disclosure of Classified Information to such person, 

have signed a document agreeing to be bound by the terms of this Protective 

Order (such signed document to be maintained by the attorney retaining such 

person) and have been designated in writing by notice to all counsel;

iii. this court and its staff and any other tribunal or dispute resolution officer duly 

appointed or assigned in connection with this litigation.

b. For Confidential information:

i. the persons identified in subparagraph 2(a);

ii. the party, if a natural person;

iii. if the party is an entity, such officers or employees of the party who are actively 

involved in the prosecution or defense of this case who, prior to any disclosure of 

Confidential information to such person, have been designated in writing by 

notice to all counsel and have signed a document agreeing to be bound by the 

terms of this Protective Order (such signed document to be maintained by the 

attorney designating such person);

iv. litigation vendors, court reporters, and other litigation support personnel;

v. any person who was an author, addressee, or intended or authorized recipient of 

the Confidential information and who agrees to keep the information confidential, 

provided that such persons may see and use the Confidential information but not 

retain a copy.

c. Such other person as this court may designate after notice and an opportunity to be 

heard.

3. Designation Criteria

a. Nonclassified Information. Classified Information shall not include information that 

either:

i. is in the public domain at the time of disclosure, as evidenced by a written 

document;

ii. becomes part of the public domain through no fault of the recipient, as evidenced 

by a written document;

iii. the receiving party can show by written document was in its rightful and lawful 

possession at the time of disclosure; or

Case 5:20-cv-00571-OLG Document 26 Filed 10/20/20 Page 2 of 10
3

iv. lawfully comes into the recipient’s possession subsequent to the time of 

disclosure from another source without restriction as to disclosure, provided such 

third party has the right to make the disclosure to the receiving party.

b. Classified Information. A party shall designate as Classified Information only such 

information that the party in good faith believes in fact is confidential. Information that is 

generally available to the public, such as public filings, catalogues, advertising materials, and the 

like, shall not be designated as Classified. 

Information and documents that may be designated as Classified Information include, but 

are not limited to, trade secrets, confidential or proprietary financial information, operational 

data, business plans, and competitive analyses, personnel files, personal information that is 

protected by law, and other sensitive information that, if not restricted as set forth in this order, 

may subject the producing or disclosing person to competitive or financial injury or potential 

legal liability to third parties. 

Correspondence and other communications between the parties or with nonparties may 

be designated as Classified Information if the communication was made with the understanding 

or reasonable expectation that the information would not become generally available to the 

public. 

c. For Counsel or Attorneys Only. The designation “For Counsel Only” or “Attorneys Eyes 

Only” shall be reserved for information that is believed to be unknown to the opposing party or 

parties, or any of the employees of a corporate party. For purposes of this order, so-designated 

information includes, but is not limited to, product formula information, design information, nonpublic financial information, pricing information, customer identification data, and certain study 

methodologies. 

Case 5:20-cv-00571-OLG Document 26 Filed 10/20/20 Page 3 of 10
4

d. Ultrasensitive Information. At this point, the parties do not anticipate the need for higher 

levels of confidentiality as to ultrasensitive documents or information. However, in the event that 

a court orders that ultrasensitive documents or information be produced, the parties will negotiate 

and ask the court to enter an ultrasensitive information protocol in advance of production to 

further protect such information. 

4. Use of Classified Information

All Classified Information provided by any party or nonparty in the course of this 

litigation shall be used solely for the purpose of preparation, trial, and appeal of this litigation 

and for no other purpose, and shall not be disclosed except in accordance with the terms hereof. 

5. Marking of Documents

Documents provided in this litigation may be designated by the producing person or by 

any party as Classified Information by marking each page of the documents so designated with a 

stamp indicating that the information is “Confidential”, “For Counsel Only”, or “Attorneys Eyes 

Only”. In lieu of marking the original of a document, if the original is not provided, the 

designating party may mark the copies that are provided. Originals shall be preserved for 

inspection. 

6. Disclosure at Depositions

Information disclosed at (a) the deposition of a party or one of its present or former 

officers, directors, employees, agents, consultants, representatives, or independent experts 

retained by counsel for the purpose of this litigation, or (b) the deposition of a nonparty may be 

designated by any party as Classified Information by indicating on the record at the deposition 

that the testimony is “Confidential” or “For Counsel Only” and is subject to the provisions of this 

Order. 

Case 5:20-cv-00571-OLG Document 26 Filed 10/20/20 Page 4 of 10
5

Any party also may designate information disclosed at a deposition as Classified 

Information by notifying all parties in writing not later than 30 days of receipt of the transcript of 

the specific pages and lines of the transcript that should be treated as Classified Information 

thereafter. Each party shall attach a copy of each such written notice to the face of the transcript 

and each copy thereof in that party’s possession, custody, or control. All deposition transcripts 

shall be treated as For Counsel Only for a period of 30 days after initial receipt of the transcript. 

To the extent possible, the court reporter shall segregate into separate transcripts 

information designated as Classified Information with blank, consecutively numbered pages 

being provided in a nondesignated main transcript. The separate transcript containing Classified 

Information shall have page numbers that correspond to the blank pages in the main transcript.

Counsel for a party or a nonparty witness shall have the right to exclude from depositions 

any person who is not authorized to receive Classified Information pursuant to this Protective 

Order, but such right of exclusion shall be applicable only during periods of examination or 

testimony during which Classified Information is being used or discussed. 

7. Disclosure to Qualified Persons

a. To Whom. Classified Information shall not be disclosed or made available by the 

receiving party to persons other than Qualified Persons except as necessary to comply with 

applicable law or the valid order of a court of competent jurisdiction; provided, however, that in 

the event of a disclosure compelled by law or court order, the receiving party will so notify the 

producing party as promptly as practicable (if at all possible, prior to making such disclosure) 

and shall seek a protective order or confidential treatment of such information. Information 

designated as For Counsel Only shall be restricted in circulation to Qualified Persons described 

in subparagraph 2(a). 

Case 5:20-cv-00571-OLG Document 26 Filed 10/20/20 Page 5 of 10
6

b. Retention of Copies During this Litigation. Copies of For Counsel Only information shall 

be maintained only in the offices of outside counsel for the receiving party and, to the extent 

supplied to experts described in subparagraph 2(a)(ii), in the offices of those experts. Any 

documents produced in this litigation, regardless of classification, that are provided to Qualified 

Persons shall be maintained only at the office of such Qualified Person and only necessary 

working copies of any such documents shall be made. Copies of documents and exhibits 

containing Classified Information may be prepared by independent copy services, printers, or 

illustrators for the purpose of this litigation. 

c. Each party’s outside counsel shall maintain a log of all copies of For Counsel Only 

documents that are delivered to Qualified Persons.

8. Unintentional Disclosures

Documents unintentionally produced without designation as Classified Information later 

may be designated and shall be treated as Classified Information from the date written notice of 

the designation is provided to the receiving party.

If a receiving party learns of any unauthorized disclosure of Confidential information or 

For Counsel Only information, the party shall immediately upon learning of such disclosure 

inform the producing party of all pertinent facts relating to such disclosure and shall make all 

reasonable efforts to prevent disclosure by each unauthorized person who received such 

information. 

9. Documents Produced for Inspection Prior to Designation

In the event documents are produced for inspection prior to designation, the documents 

shall be treated as For Counsel Only during inspection. At the time of copying for the receiving 

Case 5:20-cv-00571-OLG Document 26 Filed 10/20/20 Page 6 of 10
7

parties, Classified Information shall be marked prominently “Confidential”, “For Counsel Only”, 

or “Attorneys Eyes Only” by the producing party. 

10. Consent to Disclosure and Use in Examination

Nothing in this order shall prevent disclosure beyond the terms of this order if each party 

designating the information as Classified Information consents to such disclosure or if the court, 

after notice to all affected parties and nonparties, orders such disclosure. Nor shall anything in 

this order prevent any counsel of record from utilizing Classified Information in the examination 

or cross-examination of any person who is indicated on the document as being an author, source, 

or recipient of the Classified Information, irrespective of which party produced such information.

11. Challenging the Designation

a. Classified Information. A party shall not be obligated to challenge the propriety of a 

designation of Classified Information at the time such designation is made, and a failure to do so 

shall not preclude a subsequent challenge to the designation. In the event that any party to this 

litigation disagrees at any stage of these proceedings with the designation of any information as 

Classified Information, the parties shall first try to resolve the dispute in good faith on an 

informal basis, such as by production of redacted copies. If the dispute cannot be resolved, the 

objecting party may invoke this Protective Order by objecting in writing to the party who 

designated the document or information as Classified Information. The designating party shall 

then have 14 days to move the court for an order preserving the designated status of the disputed 

information. The disputed information shall remain Classified Information unless and until the 

court orders otherwise. Failure to move for an order shall constitute a termination of the status of 

such item as Classified Information. 

Case 5:20-cv-00571-OLG Document 26 Filed 10/20/20 Page 7 of 10
8

b. Qualified Persons. In the event that any party in good faith disagrees with the designation 

of a person as a Qualified Person or the disclosure of particular Classified Information to such 

person, the parties shall first try to resolve the dispute in good faith on an informal basis. If the 

dispute cannot be resolved, the objecting party shall have 14 days from the date of the 

designation or, in the event particular Classified Information is requested subsequent to the 

designation of the Qualified Person, 14 days from service of the request to move the court for an 

order denying the disposed person (a) status as a Qualified Person, or (b) access to particular 

Classified Information. The objecting person shall have the burden of demonstrating that 

disclosure to the disputed person would expose the objecting party to the risk of serious harm. 

Upon the timely filing of such a motion, no disclosure of Classified Information shall be made to 

the disputed person unless and until the court enters an order preserving the designation. 

12. Manner of Use in Proceedings 

In the event a party wishes to use any Classified Information in affidavits, declarations, 

briefs, memoranda of law, or other papers filed in this litigation, the party shall do one of the 

following: (1) with the consent of the producing party, file only a redacted copy of the 

information; (2) where appropriate (e.g., in connection with discovery and evidentiary motions) 

provide the information solely for in camera review; or (3) file such information under seal with 

the court consistent with the sealing requirements of the court. 

13. Filing Under Seal

The clerk of this court is directed to maintain under seal all documents, transcripts of 

deposition testimony, answers to interrogatories, admissions, and other papers filed under seal in 

this litigation that have been designated, in whole or in part, as Classified Information by any 

party to this litigation consistent with the sealing requirements of the court. 

Case 5:20-cv-00571-OLG Document 26 Filed 10/20/20 Page 8 of 10
9

14. Return of Documents

Not later than 120 days after conclusion of this litigation and any appeal related to it, any 

Classified Information, all reproductions of such information, and any notes, summaries, or 

descriptions of such information in the possession of any of the persons specified in paragraph 2 

(except subparagraph 2(a)(iii)) shall be returned to the producing party or destroyed, except as 

this court may otherwise order or to the extent such information has been used as evidence at any 

trial or hearing. Notwithstanding this obligation to return or destroy information, counsel may 

retain attorney work product, including document indices, so long as that work product does not 

duplicate verbatim substantial portions of the text of any Classified Information. 

15. Ongoing Obligations 

Insofar as the provisions of this Protective Order, or any other protective orders entered 

in this litigation, restrict the communication and use of the information protected by it, such 

provisions shall continue to be binding after the conclusion of this litigation, except that (a) there 

shall be no restriction on documents that are used as exhibits in open court unless such exhibits 

were filed under seal, and (b) a party may seek the written permission of the producing party or 

order of the court with respect to dissolution or modification of this, or any other, protective 

order. 

16. Advice to Clients

This order shall not bar any attorney in the course of rendering advice to such attorney’s 

client with respect to this litigation from conveying to any party client the attorney’s evaluation 

in a general way of Classified Information produced or exchanged under the terms of this order; 

provided, however, that in rendering such advice and otherwise communicating with the client, 

Case 5:20-cv-00571-OLG Document 26 Filed 10/20/20 Page 9 of 10
10

the attorney shall not disclose the specific contents of any Classified Information produced by 

another party if such disclosure would be contrary to the terms of this Protective Order.

17. Duty to Ensure Compliance

Any party designating any person as a Qualified Person shall have the duty to reasonably 

ensure that such person observes the terms of this Protective Order and shall be responsible upon 

breach of such duty for the failure of such person to observe the terms of this Protective Order.

18. Waiver

Pursuant to Federal Rule of Evidence 502, neither the attorney-client privilege nor work 

product protection is waived by disclosure connected with this litigation.

19. Modification and Exceptions

The parties may, by stipulation, provide for exceptions to this order and any party may 

seek an order of this court modifying this Protective Order.

IT IS SO ORDERED. 

SIGNED this 20th day of October, 2020.

RICHARD B. FARRER

UNITED STATES MAGISTRATE JUDGE

Case 5:20-cv-00571-OLG Document 26 Filed 10/20/20 Page 10 of 10