UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

KAREN M. KEYS, WILLIAM D. MALNAR, 

DOUGLAS E. WOZNICK, DENNIS J. KUCYK,

THOMAS RAY, and MICHAEL J. HARRIS, Case No. 09-cv-11105

Plaintiffs, Hon. Robert H. Cleland

-vs- Magistrate Judge Paul J. Komives

ARKEMA INC., a Foreign Corporation, 

Defendant.

______________________________________________________________________________

Lance W. Mason (P43926) Timothy H. Howlett (P24030)

Lance W. Mason, P.C. Erin J. Stovel (P66291)

Attorneys for Plaintiffs Dickinson Wright PLLC

615 Griswold, Suite 901 Attorneys for Defendant

Detroit, MI 48226-3894 500 Woodward Avenue, Suite 4000

(313) 967-9016 Detroit, MI 48226

Fax (313) 964-4789 (313) 223-3500

lancewmason@yahoo.com Fax (313) 223-3598

thowlett@dicksinsonwright.com

estovel@dickinsonwright.com

______________________________________________________________________________

STIPULATED PROTECTIVE ORDER

The parties understand that certain discovery in the above-captioned matter may

be deemed by the producing party to be confidential. Accordingly, and pursuant to Fed. R. Civ.

P. 26(c) and E.D. Mich. LR 5.3 and 5.4, the parties have stipulated to the following protective

order. 

It is accordingly ORDERED as follows:

1. In connection with discovery proceedings in this action, any party may

designate any document, thing, material, testimony or other information derived therefrom,

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which the designating party reasonably and in good faith believes to constitute sensitive personal

information, proprietary business information and/or trade secrets, as “CONFIDENTIAL” under

the terms of this Stipulated Protective Order (hereinafter, the “Protective Order”).

2. Confidential documents shall be so designated by stamping copies of

documents or materials produced to a party with the legend “CONFIDENTIAL.” Stamping the

legend “CONFIDENTIAL” on the cover of any multi-page document shall designate all pages of

the document as confidential, unless expressly stated otherwise by the producing party.

3. Testimony taken at a deposition, hearing or trial may be designated as

confidential by making a statement to that effect on the record at the deposition or other

proceeding, or by designating such testimony as confidential following receipt of the transcript.

In order to permit time for such designation, in the absence of other agreement, all deposition

testimony shall be treated as confidential for 10 days from the date of receipt of the transcript

from the court reporter. Within said 10 day period, any party may designate information

contained in the transcript as confidential, whether or not previously designated as such, by

notifying the other parties in writing of the specific pages and lines of the transcript or exhibit

which contains such information. Failure to designate a transcript or portions thereof as

confidential on the record at the deposition or other proceeding, or within said 10 day period,

shall be a waiver of any claim that such transcript or portion thereof is confidential.

4. Material designated as confidential under this Protective Order, the

information contained therein, and any summaries, copies, abstracts, or other documents derived

in whole or in part from material designated as confidential (hereinafter, the "Confidential

Material") shall be used only for the purposes of the prosecution, defense, or settlement of this

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action, and for no other purposes, and shall only be disclosed to those persons designated in

Paragraph 5 of this Protective Order.

5. Confidential Material produced pursuant to this Protective Order may be

disclosed or made available only to the Court, to Court personnel, to members of any jury

empaneled in this case, to counsel for a party (including paralegal, clerical, and secretarial staff

employed by such counsel), and to the "qualified persons" designated below:

a. a named party; 

b. experts or consultants (together with their clerical staff) retained

by such counsel to assist in the prosecution, defense, or settlement

of this action;

c. court reporter(s) employed in this action;

d. a witness at any deposition or other proceeding in this action; and

e. any other person as to whom the parties in writing agree or as

ordered by the Court.

6. Prior to receiving any Confidential Material, each “qualified person” shall

be provided with a copy of this Protective Order and shall execute a nondisclosure agreement in

the form attached here as Exhibit A. The parties will retain executed copies of Exhibit A, and

such copies shall only be discoverable upon order of the Court for good cause shown in the

context of a bona fide dispute about compliance with this Protective Order.

7. Whenever any document or material designated confidential is disclosed

or used at a deposition in which testimony in this action is given, each portion of any such

testimony in which such information is disclosed or used shall be conducted with only those

persons in attendance who are authorized under this Protective Order to have access to such

information, and the transcript of such portion and all exhibits identified in that portion of the

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transcript shall be marked confidential as applicable, and thereafter deemed to be fully subject to

the provisions of this Protective Order.

8. Nothing herein shall impose any restrictions on the use or disclosure by a

party of material obtained by such party independent of discovery in this action, whether or not

such material is also obtained through discovery in this action, or from disclosing its own

Confidential Material as it deems appropriate.

9. If Confidential Material, including any portion of a deposition transcript

designated as Confidential, is attached to any papers filed with the Court, the parties will comply

with the Federal Rules of Civil Procedure and E.D.Mich. LR 5.3(a) with regard to filing such

documents under seal. To that end, any Confidential Materials to be filed with the Court are to

be e-filed under seal in accordance with the Court's manual entitled Electronically Filing Sealed

Documents, http://www.mied.uscourts.gov/CMECF/Policies/Sealed_docs.pdf. 

10. In the event that any Confidential Material is used in any Court

proceeding in this action, it shall not lose its confidential status through such use, and the party

using the Confidential Material shall take all reasonable steps to maintain its confidentiality

during such use.

11. With the exception of those documents already produced as of the date

hereof, documents shall be designated confidential at the time of production. Confidentiality

designations for documents produced prior to the date of this Protective Order shall be made in

writing within 21 days after entry of this Protective Order. All good-faith objections to any

confidentiality designations must be submitted to opposing counsel in writing. Within 10 days

of the designating party's receipt of such written notice from the objecting party, the designating

party and the objecting party shall attempt to resolve the dispute. If an agreement on the

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designation cannot be reached, it shall be the designating party's obligation to seek a Court order

affirming that the information at issue is entitled to protection under the terms of this Protective

Order. That designating party shall move the Court for such an affirming order within 15 days

of the failed attempt to resolve the dispute, unless the parties stipulate in writing to a different

time-frame for the filing of such a motion. The information in question shall be treated,

consistent with its designation, as confidential pending an order from the Court. A failure of the

designating party to file its motion with the Court within the time designated in this paragraph,

or such other time as to which the parties may otherwise agree (in writing), shall be deemed a

waiver of the designation of the subject information as confidential; and the documents,

information or other things originally so designated shall be deemed to be no longer subject to

this Protective Order and any such documents previously filed with the Court under seal shall be

unsealed.

12. This Protective Order shall be without prejudice to the right of the parties:

(i) to bring before the Court at any time the question of whether any particular document or

information is confidential, or whether its use should be restricted; or (ii) to present a motion to

the Court for a separate protective order as to any particular document or information, including

restrictions differing from those as specified herein. The party desiring to maintain

confidentiality shall have the burden of establishing grounds for confidential treatment. The

parties may in the future make application for modification of this Protective Order.

13. Nothing contained herein shall prevent a party from utilizing another

party's confidential documents and information at the trial of this case. If either party wishes

special treatment of confidential information at trial or with regard to any post-trial proceedings,

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the same shall be sought through separate application to the Court, and nothing in this Protective

Order is intended either to support or to undermine such an application.

14. This Protective Order shall not require a party to produce confidential

information that the party believes is not discoverable in this action. Likewise, nothing in this

Protective Order shall limit the right of the party seeking discovery from filing a motion seeking

to compel the production of such documents.

15. If at any time any information designated as confidential and governed by

this Protective Order is subpoenaed or requested by a court, an administrative or legislative

body, or by any other person or entity purporting to have authority to require the production of

such information, the person to whom the subpoena is directed (the “Subpoenaed Party”) shall

give prompt written notice by facsimile to counsel for the party that designated the information

as confidential (the “Designating Party”) and include a copy of the subpoena or request (unless

providing disclosure of the subpoena or request is prohibited by law or court order) to the

Designating Party. After the receipt of the notice specified under this paragraph, the Designating

Party shall have the sole responsibility for obtaining any order it believes necessary to prevent

disclosure of documents or information designed confidential. If the Designating Party does not

move to quash the subpoena, move for a protective order, or seek another appropriate order

within the time allowed for the discovery sought by the subpoena or request (or within such time

as a court may direct or as may be agreed upon between the Designating Party and the

subpoenaing or requesting party) or give written notice of such motion to the subpoenaing or

requesting party and the Subpoenaed Party, the Subpoenaed Party may commence production in

response thereto on the date designated on the subpoena or request. In all other aspects, the

Subpoenaed Party shall cooperate with the Designating Party to the extent permitted by law.

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Upon the filing by the Designating Party of a motion to quash or for protective order, the

Subpoenaed Party shall withhold production of documents during the pendency of the motion,

unless required by law (or court order) not to withhold production.

16. To the extent that Confidential Material does not become known to the

public, this Protective Order shall survive the final termination of this action. At the option of

the producing person or party, within sixty (60) days of the final termination of this action,

including appeals, all confidential information produced by any person or party during the

course of the proceeding of this action and all copies thereof in any form stored or reproduced

may either be: (a) promptly returned to the producing person or party, at the sole cost of the

producing person or party; or (b) be destroyed; provided that counsel of record may retain one

copy of the pleadings, correspondence, and attorneys’ notes relating to this action, subject to the

other terms of this Protective Order. The party or parties receiving the request to return or

destroy such material may instead make the materials available to the requesting party or person

for retrieval. The party or parties receiving any request to return or destroy such material shall

certify compliance with this paragraph and deliver same to counsel for the producing person or

party within sixty (60) days of the final termination of this action, including appeals. The Court

shall retain jurisdiction to resolve any dispute concerning the use of information disclosed

hereunder.

17. After the termination of this action by order or judgment, or by an

appellate mandate if appealed, any Confidential Materials filed with the Court under seal

pursuant to this Protective Order will, upon presentation of this Protective Order by a party to the

Clerk’s Office, be returned to the parties responsible for their submission. However, in the event

that no request for the return of sealed documents is presented by a party to the Clerk’s Office

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within sixty (60) days of the termination of this action, said materials will be unsealed and

placed in the public case file. Should the protected documents be returned to the parties or

attorneys who submitted them, counsel shall maintain one archival copy of depositions, exhibits,

transcripts, Court exhibits and transcripts, and documents and information included in

submissions to the Court.

APPROVED and SO ORDERED:

S/Robert H. Cleland

Honorable Robert H. Cleland 

United States District Court Judge

I stipulate to the form and entry of this Order:

s/ Lance W. Mason, with consent s/ Erin J. Stovel

Lance W. Mason (P43926) Erin J. Stovel (P66291)

Attorney for Plaintiffs Attorney for Defendant

Dated: July 8, 2009 Dated: July 10, 2009

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EXHIBIT “A”

ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND

I, _______________________________, declare as follows:

I hereby acknowledge that I may receive information designated as

CONFIDENTIAL related to the case Karen M. Keys, et al. vs. Arkema Inc., before the United

States District Court for the Eastern District of Michigan (Southern Division), Case Number 09-

cv-11105, before the Honorable Robert H. Cleland; and I certify to comply with the Protective

Order.

I declare my understanding that such information is provided to me pursuant to

the terms and restrictions of the Stipulated Protective Order entered in that proceeding (the

“Protective Order”).

I further state that I have been given a copy of, and have read the Protective

Order; that I am familiar with its terms; that I agree to comply with and to be bound by each of

the terms thereof; and that I agree to hold in confidence any information disclosed to me

pursuant to the terms of the Protective Order.

To assure my compliance with the Protective Order, I hereby submit myself to the

jurisdiction of the United States District Court for the Eastern District of Michigan (Southern

Division) for the limited purpose of any proceeding relating to this agreement, under the laws of

the United States of America, that the foregoing is true and correct.

_____________________________________

(Signature)

Executed on this ___ day of ________, 2009

DETROIT 15737-99 1118536v1

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