1 

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF ARIZONA 

Leslie A Merritt, Jr., a single man, 

 Plaintiff, 

 vs. 

State of Arizona, a body politic; et al., 

 Defendants. 

) 

) 

) 

) 

) 

) 

) 

) 

) 

) 

Case No.: CV17-4540-PHX-DGC 

 

PROTECTIVE ORDER 

 

The Court, having reviewed the Notice of Lodging of Stipulated Protective Order. 

Doc. 53. 

IT IS ORDERED that the stipulated protective order (Doc. 53) is granted as follows: 

1. Definitions. The following Definitions shall apply to this Order: 

a. “Counsel of record” means counsel of record and any other attorneys, 

law clerks, interns, paralegals, secretaries, and other support staff 

employed in the counsel’s law firms.

b. “Designated Material” means any Discovery Material designated 

“Confidential Information” or “Confidential Attorneys’ Eyes Only 

Information,” as defined in Paragraph 4 below, unless such designation 

has subsequently been lifted by agreement of the Parties or by the Court. 

c. “Designating Party” means a Party that designates information or 

Case 2:17-cv-04540-DGC Document 54 Filed 02/28/18 Page 1 of 16
2 

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

materials as Confidential Information or Confidential Attorneys’ Eyes 

Only Information under this Order. 

d. “Discovery Material” means any Document, material, testimony, or 

item filed with or presented to the Court or produced, served, provided 

or generated during discovery in this litigation, including, but not 

limited to, disclosures, motion papers, exhibits, answers to 

interrogatories, responses to requests for admissions, responses to 

requests for production, subpoenas, declarations, affidavits, and 

deposition testimony or transcripts, and all copies, extracts, summaries, 

compilations, designations, and portions thereof. 

e. “Document” means any document, electronically stored information, or 

thing subject to production or inspection under Rule 34, Federal Rules 

of Civil Procedure. 

f. “Expert” means any consultant or expert, including the research 

assistants and support staff of any consultant or expert, retained by any 

Party or the counsel of any Party for any purpose in this litigation, 

whether the expert is designated as such or serves as a consulting expert. 

g. “Non-Party” means any natural or legal person not a Party to this 

litigation. 

h. “Person” means any natural person or non-natural entity (e.g., 

corporation, organization, partnership). 

i. “Producing Party” means any Party or Non-Party, including its Counsel, 

Experts, directors, officers, employees, or agents, that produces any 

Discovery Material and/or disclosures. 

j. “Receiving Party” means any Party or Non-Party, including its Counsel, 

Experts, directors, officers, employees, or agents, that receives any 

Discovery Material and/or disclosures. 

 

Case 2:17-cv-04540-DGC Document 54 Filed 02/28/18 Page 2 of 16
3 

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

2. Calculation of time. Time periods will be calculated in accordance with Rule 

6 of the Federal Rules of Civil Procedure, as in effect at the time this Order is entered. 

3. Dispute resolution. Disputes arising in connection with the terms or 

application of this Order that require resolution by the Court will be addressed through the 

Court’s discovery dispute procedure. 

4. Designated Material. “Designated Material” includes “Confidential 

Information” and “Confidential Attorneys’ Eyes Only Information” or “Confidential AEO 

Information” as defined below.

a. “Confidential Information” shall mean any information disclosed in this 

action that any Party or any Producing Party believes in good faith 

contains confidential information, as well as copies or summaries of 

such information or materials that otherwise reveal the contents of such 

information, that the Party or Producing Party would not ordinarily 

disclose, that is not subject to disclosure under applicable public records 

laws, or that should be protected from disclosure pursuant to this Order 

and any controlling federal or state statutory or case law; controlling 

state law; controlling judicial or administrative order; or Arizona Rule 

of Civil Procedure. “Confidential Information” shall be designated as 

such in the manner described in Paragraphs 6 and 7 below. 

b. “Confidential Attorneys’ Eyes Only Information” or “Confidential AEO 

Information” shall mean any information disclosed in this action that 

any Party or any Producing Party in good faith believes falls into 

Paragraph 4(a), and is so highly confidential or proprietary that even 

disclosure to a Party would create a substantial risk of harm or injury, 

including but not limited to personal identifying information, law 

enforcement sensitive information, and prosecutorial policies and 

procedures satisfying these criteria. “Confidential Attorneys’ Eyes Only 

Information” or 

Case 2:17-cv-04540-DGC Document 54 Filed 02/28/18 Page 3 of 16
4 

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

“Confidential AEO Information” shall be designated as such in the 

manner described in Paragraphs 6 and 7 below. 

5. Limits on use of Designated Material. Designated Material may be used 

only for purposes of the preparation and trial of this litigation, for any related appellate 

proceeding, and for no other purpose, including, but not limited to, any law enforcement or 

commercial purpose. 

6. Designation Procedure.

a. Any Party or Producing Party may designate Discovery Material as 

Confidential Information or Confidential Attorneys’ Eyes Only 

Information, in whole or in part, to the extent the Designating Party

believes the information qualifies under the definition in Paragraph 4 

above. A Designating Party should designate Designated Material at 

the time of delivery to a Receiving Party by marking or designating 

the information as “Confidential—Subject to Protective Order” or 

“Confidential Attorneys’ Eyes Only—Subject to Protective Order” on 

each applicable page produced in paper or MS WORD or PDF. For 

disclosure produced in other formats, including video or audio 

recordings, the Designating Party shall clearly label the relevant 

medium (e.g., CD or DVD disc) with the words “Confidential—Subject 

to Protective Order” or “Confidential Attorneys’ Eyes Only—Subject to 

Protective Order” or include such verbiage in the digital filename. In 

the case of deposition testimony, a Party or Producing Party may 

designate the transcript in whole or in part by so stating on the record or 

in writing within ten business days from the date the Party or Producing 

Party received the transcript to make additional designations (or to 

remove designations). Whenever a Party expects to designate 

deposition testimony as Confidential Information or Confidential 

Attorneys’ Eyes Only Information, that Party will have the right to 

Case 2:17-cv-04540-DGC Document 54 Filed 02/28/18 Page 4 of 16
5 

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

exclude from attendance at the deposition every person except the 

deponent, the stenographer, the videographer, and those individuals 

authorized under Paragraph 8 below to receive the Designated Material. 

If a deposition is videotaped, the original and all copies of the videotape 

must be marked to indicate that the contents of the videotape are 

subject to the Order. 

b. Within a reasonable time after providing the designation, and no later 

than seven days after disclosure to the Receiving Party, a Designating 

Party must provide a Receiving Party with a succinct written 

notification of the basis for its designation of specific information. Such 

notification may be provided for a group of similar documents and need 

not be provided for each individual document designated as 

Confidential or AEO Information. Where good cause permits, or where 

there is agreement between the Parties, notification may be provided 

later than seven days after disclosure. 

c. Each Party that designates Discovery Material and/or Disclosures for 

protection under this Order must take care to limit any such designation 

to specific material that qualifies under the standards set forth in 

Paragraph 4. The Designating Party must designate for protection only 

those parts of Discovery Material and/or disclosure that qualify under 

those standards. Indiscriminate or blanket designations are prohibited.

d. Notwithstanding subpart (c), to facilitate expeditious exchange of 

Discovery Material, a Producing Party may provisionally designate a 

whole document or group of documents as subject to this Protective 

Order even where only a portion of the document or documents contains 

Confidential Information or Confidential Attorneys’ Eyes Only 

Information. No later than forty-five days before the deadline for filing 

dispositive motions set in the Case Management Order dated February 

Case 2:17-cv-04540-DGC Document 54 Filed 02/28/18 Page 5 of 16
6 

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

9, 2018 (and any amendments thereto), and/or trial, or such other period 

agreed by the Parties, unless there is good cause to notify the Producing 

Party later, a Receiving Party may notify the Producing Party that it may 

use or disclose the document or documents. Upon receiving such 

notification, the Producing Party will work in good faith to provide 

redacted versions or identify the specific portions of each page or file 

that need to be redacted within twenty-one days of receiving such notice 

or another period as agreed by the Parties. 

7. Inadvertent failure to designate. Inadvertent failure to designate Discovery 

Material and/or disclosure as Confidential Information or Confidential Attorneys Eyes’ Only 

Information does not operate as a waiver of any claim that the Discovery Material and/or 

disclosure is entitled to protection under this Order, provided that the Party or Producing Party 

notifies all Receiving Parties that such Discovery Material and/or disclosure is Confidential 

Information or Confidential Attorneys’ Eyes Only Information and produces copies of the 

Designated Material and/or disclosure using one of the means described in Paragraph 6 within 

ten days of the Party or Producing Party’s discovery of the failure to designate. In the event 

that a Party or Producing Party designates previously undesignated material as Confidential 

Information or Confidential Attorneys’ Eyes Only Information under this Paragraph, each 

Receiving Party promptly must: (i) take reasonable steps to retrieve that Designated Material, 

including any summaries and/or notes related to that Designated Material, to the extent it has 

been disclosed to persons who would not be authorized to view it under Paragraph 8 below; 

and (ii) destroy any unmarked copies of that Designated Material. 

8. Disclosure of Designated Material.

a. Except as set forth in this Order or any subsequent Order of this Court, no 

person subject to this Order shall disclose material designated as 

“Confidential Information” to persons or entities other than:

i. The Court and Court personnel; 

ii. Court reporters, translators, persons operating video recording 

Case 2:17-cv-04540-DGC Document 54 Filed 02/28/18 Page 6 of 16
7 

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

equipment or others reasonably necessary for the conduct of 

depositions, hearings, a trial or other proceedings in this matter;

iii. Counsel of record for a Party as reasonably necessary for the 

conduct of this litigation;

iv. The Parties to this action, including employees, officers, directors 

and agents of the Parties who reasonably need access to the 

Confidential Information in connection and as reasonably 

necessary in connection with and to assist with the prosecution or 

defense of this action; 

v. Experts or consultants who have been retained by a Party for the 

purpose of assisting in the conduct of this action, as reasonably 

necessary for their work;

vi. Fact witnesses during their deposition, or in preparation for their 

deposition, provided that counsel of record for a Party deems the 

disclosure reasonably necessary for the conduct of this litigation 

and that no disclosure is made to persons outside the 

authorization of this Order; 

vii. Independent stenographic personnel, court reporters, 

videographers, imaging providers, database service providers, or 

photocopying service provider retained or employed by a 

Receiving Party in this litigation;

viii. Independent graphics or demonstrative services providing services 

to a Receiving Party in this litigation;

ix. Authors, drafters, addressees, recipients, subjects, or custodians of 

particular Designated Material whose identity is disclosed in, or 

otherwise discernible from, that Designated Material or 

information regarding that Designated Material, but only during 

deposition, trial or other hearing in this litigation;

Case 2:17-cv-04540-DGC Document 54 Filed 02/28/18 Page 7 of 16
8 

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

x. Anyone who received particular Designated Material before 

this litigation commenced; 

xi. Anyone who received particular Designated Material during 

this litigation provided that they obtained the Designated 

Material in accordance with this Order;

xii. Persons who have been retained by the Receiving Party to provide 

translation or interpretation from one language to another;

xiii. Any other person to whom the Producing Party agrees 

beforehand, in writing, that disclosure may be made; or

xiv. Other persons upon order of this Court, or upon stipulation of the 

Party or Producing Party who designated the material in question 

as Confidential Information.

b. Except as set forth in this Order or any subsequent Order of this Court, no 

person subject to this Order shall disclose material designated as

“Confidential Attorneys’ Eyes Only Information” or “Confidential AEO 

Information” to persons or entities other than:

i. The Court and Court personnel;

ii. Court reporters, translators, persons operating video recording 

equipment, or others reasonably necessary for the conduct of 

depositions, hearings, a trial or other proceeding in this matter;

iii. Counsel of record for a Party as reasonably necessary for the 

conduct of this litigation; 

iv. Experts or consultants who have been retained by a Party for the 

purpose of assisting in the conduct of this action, as reasonably 

necessary for their work;

v. Fact witnesses during their deposition, or in preparation for their 

deposition, if the Designating Party consents, and that no 

disclosure is made to persons outside the authorization of this 

Case 2:17-cv-04540-DGC Document 54 Filed 02/28/18 Page 8 of 16
9 

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

Order;

vi. The subject of the record if the reason for the designation is the 

protection of the subject’s privacy; or

vii. Other persons upon order of this Court, or upon stipulation of the 

Party or Producing Party who designated the material in question 

as Confidential Information.

9. Prior to disclosing materials subject to the Protective Order to any individuals 

designated in subsections 8(a)(iv) – (viii), 8(a)(xii) – (xiii), or 8(b)(iv) – (vi), counsel for a 

Party must have these individuals sign the Acknowledgment attached to this Protective Order 

as Exhibit A. The original signed Acknowledgment completed by any individual so 

designated shall be retained by counsel seeking to disclose materials to such individual until 

the conclusion of this litigation.

10. Reasonable Protection of Designated Material. Counsel for the Parties must 

employ reasonable protective measures to ensure that the information and documents 

governed by this Order are used only for purposes permitted under this Order, and disclosed 

only to persons authorized by this Order. All Designated Material must be kept in a secure 

manner by each Receiving Party and by those who are authorized to receive Designated 

Material. Each person given access to Designated Material is hereby advised that such 

material and/or information is being disclosed pursuant and subject to the terms of this Order, 

may not be disclosed other than pursuant to the terms hereof, and may be used only for 

purposes directly related to the litigation of this action and for no other purposes. 

11. Designated Material presented to the Court. If counsel for any Party 

determines to file with or submit to this Court any material designated as “Confidential 

Information” or “Confidential Attorneys’ Eyes Only Information,” the provisions of LRCiv 

5.6 shall govern and apply in its entirety. 

12. Potential legally compelled disclosure of Designated Material. If a 

Receiving Party that has obtained Designated Material pursuant to this Order: (a) is 

subpoenaed in another proceeding; (b) is served with a discovery request in another action to 

Case 2:17-cv-04540-DGC Document 54 Filed 02/28/18 Page 9 of 16
10 

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

which it is a party; or (c) is served with any other legal process by any person or entity not a 

Party to this litigation, for the purpose of obtaining the disclosure of such Designated Material, 

that Receiving Party must give timely written notice of its receipt of such subpoena, demand 

or legal process to the Producing Party’s Counsel to allow that Party at least ten days, or such 

lesser time as such subpoena, demand or legal process specifies for production, to intervene to 

prevent disclosure of the Designated Material. 

13. No restrictions of disclosure or use of own Designated Material. Nothing 

herein restricts in any manner any Party’s disclosure or use of its own Designated Material. 

14. Notice of unauthorized disclosure of Designated Material. In the event that 

any Designated Material is disclosed to someone not authorized to receive such material under 

this Order, or if a person so authorized breaches any of his or her obligations under this 

Protective Order, the Receiving Party that disclosed Designated Material must immediately 

provide notice to the Producing Party’s counsel in writing and use best efforts to obtain the 

return or destruction of all copies of the Designated Material and to prevent any further 

disclosure of the same. 

15. Challenging a designation. If any Party objects to the designation of any 

information, material or documents as “Confidential Information” or “Confidential 

Attorneys’ Eyes Only Information,” the objecting Party may notify the designating Party in 

writing at any time, but no later than twenty-one days before the date of trial, unless there is 

good cause to challenge the designation later, and the objecting Party must also notify all 

other Parties of the objection in writing. After consultation and good-faith effort to resolve 

the disagreement with the other Parties, either the designating or the objecting Party may 

apply to the Court for a ruling that the Confidential Material objected to shall be treated or 

not treated as “Confidential Information” or “Confidential Attorneys’ Eyes Only 

Information.” Notice of such application shall be provided to all other Parties. The burden 

of proof will be, at all times on the Designated Party to demonstrate the validity of the 

Designation. Until this Court enters an order determining the status of the information 

whose designation is being objected to, such material shall be treated as designated under 

Case 2:17-cv-04540-DGC Document 54 Filed 02/28/18 Page 10 of 16
11 

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

this Order, unless the Parties otherwise agree by written stipulation.

16. Sanctions for Bad Faith Designation. In the event that the Court finds that a 

party has not acted in good faith in designating any information, material or documents as 

“Confidential Information” or “Confidential Attorneys’ Eyes Only Information,” or in its 

failure to undesignated or provide appropriately redacted documents, the Court shall award 

an appropriate sanction against the Producing Party and in favor of the Receiving party, 

including, but not limited to an award of attorneys’ fees. Bad faith designation can include 

the over-designation or misuse of the provisional designation procedure set forth in 

paragraph 6(d) above. 

17. No applicability to clean-source information. None of the provisions of this

Order apply to the following categories of information, documents and/or things, and any 

Receiving Party may apply to remove any designation from Designated Material based upon 

an evidentiary showing that such documents or information have been: 

(a) made available to the public through no unauthorized act, or failure to 

act, by the Receiving Party;

(b) independently discovered by the Receiving Party prior to their production 

herein;

(c) obtained outside of this litigation by the Receiving Party from the 

Producing Party without having been designated as Confidential; or 

(d) obtained by the Receiving Party from a Non-Party having the right to 

disclose the same. 

18. Final disposition. Upon final termination of this litigation, and exhaustion 

of all avenues of appeal, each Receiving Party must either (1) assemble and return to the

appropriate Producing Party or (2) destroy, and subsequently certify to the Producing Party

destruction of, all Designated Material and all copies thereof, within fourteen days of the 

destruction of the copies. Notwithstanding this provision, counsel are entitled to retain an 

archival copy of all pleadings, motion papers (including exhibits), transcripts, deposition 

exhibits, hearing exhibits, trial exhibits, legal memoranda, correspondence, or attorney work 

Case 2:17-cv-04540-DGC Document 54 Filed 02/28/18 Page 11 of 16
12 

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

product, even if such materials contain Designated Material. Counsel are also entitled to 

retain electronic copies of Designated Material created through the routine, good-faith 

operation of counsel’s standard archival and backup procedures. Any such archival copies 

that contain or constitute Designated Material remain subject to this Order as set forth in

Paragraph 23 below. 

19. No prejudice to any Party’s rights to withhold disclosure. By stipulating to 

the entry of this Protective Order no Party waives any right it otherwise would have to object 

to disclosure of any information or material to any other Party.

20. Amendment of this Order. Nothing herein prevents a Party from seeking to 

amend the terms of this Order. 

21. No effect on admissibility. Nothing in this Order affects the evidentiary

admissibility of any Discovery Material in this litigation. The designation of Discovery

Material under this Order will not, for that reason alone, bar its introduction or use at any 

court proceeding related to this litigation under such terms and conditions as the Court may 

deem appropriate, consistent with the need for a complete and accurate record of the 

proceedings; provided, however, that every effort will be made, through the use of

procedures agreed upon by the Parties or otherwise, to preserve the confidentiality of

Designated Material. 

22. No effect on duty to counsel clients. Nothing in this Order restricts any

counsel from advising any Party regarding this litigation and, in the course of giving such

advice, relying on Designated Material, provided that, in rendering such advice and otherwise 

communicating with any Party that is a client, counsel must not disclose any Confidential 

Attorney’s Eyes Only Information. 

 

Case 2:17-cv-04540-DGC Document 54 Filed 02/28/18 Page 12 of 16
13 

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

23. Survival of obligations. Duties under this Order will survive final resolution 

of this litigation. Persons and entities subject to this Order will remain subject to the 

confidentiality obligations of this Order until the Producing Party agrees otherwise in writing 

or this Court (or any other Court of competent jurisdiction) orders otherwise. This Court will 

retain jurisdiction for the purpose of enforcing the terms of this Order. 

Dated this 28th day of February, 2018. 

Case 2:17-cv-04540-DGC Document 54 Filed 02/28/18 Page 13 of 16
EXHIBIT A 

Case 2:17-cv-04540-DGC Document 54 Filed 02/28/18 Page 14 of 16
1 

IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF ARIZONA 

Leslie A Merritt, Jr., a single man, 

 Plaintiff, 

 vs. 

State of Arizona, a body politic; et al., 

 Defendants. 

) 

) 

) 

) 

) 

) 

) 

) 

) 

Case No.: CV17-4540-PHX-DGC 

ACKNOWLEDGEMENT OF 

STIPULATED PROTECTIVE 

ORDER 

 

I, ______________________, acknowledge under penalty of perjury that I 

have read the foregoing Protective Order concerning confidentiality of documents 

and information in the above captioned matter and that I understand its provisions. I 

further acknowledge that I am receiving access to Designated Material designated 

as “Confidential Information” or “Confidential Attorneys’ Eyes Only Information” 

based upon my agreement to comply with the terms and conditions of the Stipulated 

Protective Order (the “Order”) entered in the above-referenced litigation, and I agree 

to treat all such information and materials in the manner required by the Order. 

Specifically, I agree to the following: 

1. I have read and understand the Order. 

Case 2:17-cv-04540-DGC Document 54 Filed 02/28/18 Page 15 of 16
2 

2. I will make no disclosures of Designated Material or information derived 

therefrom to any person who is not permitted to have access to such documents 

and information by the Order. 

3. Upon final determination of this action, I will destroy all Designated 

Material received by me within sixty days or I will return such Designated Material 

within sixty days to the Producing Party or to the party who provided the materials to 

me, as appropriate. If I destroy such Designated Material, I agree to send a letter to 

the Producing Party or the party who provided the materials to me, certifying my 

destruction of the information within fourteen days of such destruction. 

4. I understand that a violation of this undertaking is punishable as a 

contempt of court and hereby submit to the jurisdiction of the United States District 

Court for the District of Arizona for the purposes of enforcement of the Order. 

Date: Name: (printed) 

 Signature: 

Case 2:17-cv-04540-DGC Document 54 Filed 02/28/18 Page 16 of 16