FILED HEELSMS dim-gm. 3y uTwower IN THE SUPERIOR COURT OF THE STATE OF ARIZONA IN AND FOR THE COUNTY OF MARICOPA ESTATE OF LEROY DONNA Case No, cv2013-05275 3 HAEGER, individually and as personal representative of the Estate of LeRoy Haeger; BARRY HAEGER and ORDER SUZANNE HAEGER (The Honorable John R. Hannah) Plaintiffs, vs. THE GOODYEAR TIRE RUBBER COMPANY, an Ohio corporation; FENNEMORE CRAIG, P.C., an Arizona professional corporation; ROETZEL ANDRESS, a le al professional association; EME BASIL DEBORAH OKEY, Defendants. Before the Court is ?Plaintiffs? Motion to Require Goodyear to Seek Relief from Protective Orders . . . and Address Discovery Response De?ciencies . . . The Court has considered all of the relevant ?lings (including those that followed the oral argument), the parties? in-court arguments and the record in this case. For the reasons that follow, the plaintiffs are entitled to orders that facilitate their investigation of other G159 cases, but not a blanket order lifting protective orders in all of those cases. BACKGROUND The case pending before the Court involves claims for fraud and abuse of process arising out of the settlement ofa tread separation case involving a Goodyear G159 275 70R.22.5 truck tire installed on a motor home. The plaintiffs, the estate and surviving family members of Leroy Haeger (?Plaintiffs? or ?the Haegers?), claim that defendant Goodyear Tire Rubber Company (?Goodyear?) and its attorneys have systematically concealed test data relevant to alleged defects in the 0159 tire. Goodyear has been compelled in this case to disclose G159 lawsuits and claims for personal injury and property damage arising out of G159 failures. Goodyear has disclosed 41 such lawsuits and over 600 such claims. The plaintiffs allege that Goodyear has failed to comply with Early Warning Reporting requirements, set forth in 49 CFR by failing to advise the National Highway Traf?c Safety Administration of numerous injury or death claims arising from alleged defects in the G159 tire. The primary issues on the instant motion are the plaintiffs? right to conduct investigation and discovery concerning other litigation or claims arising from the failure of the G159 tire, and the effect of the protective orders and confidentiality agreements that apparently exist in substantially all of those cases. In their moving papers the plaintiffs sought to compel Goodyear to ask for relief from the protective orders in the courts where the orders were entered, but at oral argument they argued that relief can be fashioned in this case. The defendants addressed that argument in post-hearing briefs. RELEVANCE OF THE SOUGHT-AFTER INFORMATION In response to Plaintiffs? Non-Uniform lnterrogatory No. 2, concerning waiver of protective orders in other cases to permit discussion with those plaintiffs and their counsel, Goodyear objected ?to the extent [the interrogatory] implies that documents and information covered by a protective order or con?dentiality agreement are relevant . . . The Court ?nds the relevance objection is not well taken. Information about other claims involving the G159 tire is potentially relevant and admissible in this case in more than one way. First, the results of those cases may be direct evidence on the materiality element of the fraud claims and on the issue of damages, because the factfinder will be able to compare the outcome of this case with the outcome of cases in which the disclosures were different. In order to evaluate that evidence, obviously, the will need to know the details of what happened in the other cases, starting with information about what test results were or were not disclosed. Differences between those cases and this one ultimately may go to the admissibility of evidence about a particular case, but at the pretrial discovery stage the looser pretrial discovery standard ?any matter, not privileged, which is relevant to the subject matter involved? and ?reasonably calculated to the discovery of admissible evidence? applies. Catrone v. Miles, 215 Ariz. 446, 160 P.3d 1204 (App. 2007) (quoting Ariz. R. Civ. P. A request directed to claims or litigation? is narrow enough to meet that standard at this point in discovery. Second, what Goodyear told other claimants about (at least) G159 test results bears on whether Goodyear made the allegedly false representations in this case knowingly and with intent to induce reliance, and (as required for the abuse of process claim) whether Goodyear acted with a wrongful purpose.I Goodyear says it acted in good faith given the issues in the case, the plaintiffs? speci?c discovery requests and the applicable discovery rules. The plaintiffs have the right to test that assertion by examining what Goodyear said and did in similar situations, especially in light of the (apparently undisputed) fact that Goodyear coordinated its discovery disclosures in the G159 cases through ?National Coordinating Counsel? reporting to in-house attorneys at Goodyear. Again, whether evidence about a particular case' will be admissible at trial is a separate question to be addressed later. THE APPROPRIATE FORUM Goodyear suggests that the plaintiffs should have to seek relief from each protective order in the court that issued the order. The law does not support Goodyear?s position. When a party relies on ajudgment rendered in one state as the basis ofa claim or defense in a subsequent action in another state, the tribunal hearing the subsequent action (what the Restatement calls the I The evidence is also relevant to the issue of punitive damages. That ground alone might not be suf?cient to support a discovery request at this stage ofthe litigation, because a plaintiff is required ?rst to make a primafacie showing that he will be entitled to present the issue of punitive damages to the jury. Larriva v. Mamie], 143 Ariz. 23, 691 P.2d 735 (App. 1984). CDKDOOMJONLJI-P-UJMH ?recognition court?) has authority to set aside or modify the judgment under many of the same circumstances in which the court that issued the judgment could have done so. Restatement (Second) of Judgments 82. That rule applies to the protective orders from other jurisdictions on which Goodyear relies here as a defense to otherwise lawful requests for information. The Restatement sets out criteria for a court in one state to use when deciding whether to grant relief from a judgment or order entered in another state. The criteria are (1) whether the convenient administration of justice would be served and (2) whether granting relief is permissible under the ?rules governing the recognition of judgments of courts of other jurisdictions? and is compatible with the maintenance of comity among courts. Both these criteria are met here. The ?convenient administration ofjustice" w0uld clearly be served by adjudication in Arizona of the Haegers? request for relief from the protective orders. So far, Goodyear has identi?ed ten G159 cases other than this one in which a protective order or a confidentiality agreement exists. Those cases are scattered among multiple jurisdictions around the country. Filing for reliefin each ofthose courts would be an onerous task for the plaintiffs. The plaintiffs are entitled to seek relief from the protective orders in this court instead of appearing in each court that issued a protective order. That was the holding of the only case cited by either party that is squarely on point. ACandS, Inc. v. Askew, 597 So.2d 895 (Fla. App. 1992). The result is the same under Arizona law. A protective order is, in effect, a non-?nal ancillary judgment. Most protective orders are modifiable by their own terms upon notice and an opportunity for the affected party to be heard. The protective order from the Haegers? District Court case is typical. That order allows for disclosure of confidential information pursuant to ?order of the Court after due notice to the Producing Party.? Response Exhibit (Protective Order, section 11.1). The order also expressly anticipates, and provides for, disclosure in response to another court?s order directing release of con?dential information. Id. (Protective Order, section [1.10) (party receiving subpoena for confidential information relieved of confidentiality obligation unless the party that produced the information timely seeks a court order relieving the subpoenaed party of the obligations of the subpoena). Judgments that are subject to modi?cation in the court where rendered can be open to modi?cation in another jurisdiction in which their enforcement is sought. Restatement (Second) of Judgments 82, Comment b. Full faith and credit does not apply. Instead, the applicable principle is comity, which means ?mutual respect, based upon common interest in assuring the stability of judgments.? Id. When an out-of-state judgment is entitled to recognition as a matter of comity but not full faith and credit, the applicability and scope of the principle of comity is a decision within the court?s discretion. Fremont Indemnity Company v. Industrial Commission of Arizona, 144 Ariz. 339, 697 P.2d 1089, 1095 (1985). Multi-forum litigation over the protective orders risks the entry of inconsistent orders that create con?icting obligations. The parties therefore will be required to present this Court with any request for modi?cation or enforcement of another court?s protective order that would affect the plaintiffs? rights or the defendants? obligations with respect to disclosure of information in this case. A party may request permission to bring the issue before the court that entered the order if this Court does not have jurisdiction over the party against whom the order would be enforced or there is some other compelling reason to litigate the issue in that forum. WHETHER THE PLAINTIFFS ARE ENTITLED TO RELIEF Goodyear argues that the plaintiffs do not need relief from the protective orders because the orders do not prevent them from speaking to other plaintiffs to obtain the information they need. But the example cited by Goodyear shows exactly the opposite. The author of the ?report? says he cannot discuss ?the contents of Goodyear internal documents? that showed Goodyear ?was well aware that the could fail when operated at highway speeds on vehicles such as ?because of Goodyear?s Con?dentiality Order.? Response Exhibit (emphasis added). The Court therefore rejects Goodyear?s assertion that ?there is no factual basis? for the plaintiffs? motion. Goodyear also objects to modi?cation of the protective orders on the ground that its information was disclosed in reliance on the assurance of con?dentiality. It is true that that relief from a judgment must be denied if granting the relief would ?inequitably disturb an interest of reliance on the judgment.? Restatement (Second) of Judgments 74(2). But ?[w]hen such an interest can be adequately protected by giving the applicant limited or conditional relief, the relief will be shaped accordingly.? Id. The dominant purpose of a protective order, in a case like this one, is to protect a litigant?s trade secrets and commercially sensitive information from disclosure to business competitors. In that respect Goodyear continues to have a legitimate right to rely on the protective orders. But the Haegers obviously are not Goodyear?s business competitors. An order requiring the Haegers to keep commercially sensitive information in confidence therefore will adequately protect Goodyear?s reliance interest in the existing protective orders, in most instances. The Haegers do not oppose such an order.2 Goodyear suggests that a protective order that is the product of an agreement between parties is entitled to special deference. Response to Plaintiffs? Supplemental Submissions at 3 (?modification [of a consent judgment] may be permitted only in accordance with the more con?ning rules under which the contract may be modi?ed.? That argument fails because a con?dentiality agreement between parties to litigation generally cannot be enforced against a third party?s subpoena or discovery request for non-privileged information. Ingalls v. Superior Court in andfor Pima County, 1 17 Ariz. 448, 573 P.2d 522 (App. 1977). THE NATURE AND SCOPE OF RELIEF In their motion the plaintiffs ask for an order allowing the parties and experts in other G159 cases to disclose all information otherwise declared confidential in each ofthose cases, and authorizing those parties to communicate with the Haegers? representatives ?without restriction.? Motion at 10. Goodyear correctly objects that such a broad order could apply to commercially 2 The one exception that the Haegers request, for disclosure to NHTSA, is discussed in?a. sensitive information that is not relevant to the product design issue that underlies this case. The Haegers have no legitimate interest in obtaining such information. Goodyear also points out that parties other than Goodyear may have disclosed con?dential information with the expectation that a protective order would prevent further disclosure. Those parties may have a right to notice and opportunity to be heard on whether their information should be disclosed to the Haegers. The plaintiffs? proposal to obtain information informally, through interviews with lawyers and litigants, is similarly problematic. Whether and to what extent the plaintiffs are entitled to relief from a particular protective order may depend on the precise terms of the order and the law of the issuing jurisdiction. Moreover, Goodyear cannot effectively enforce any protective order that this Court may enter without knowing what information has been disclosed to whom. Though the Court assumes that the l-Iaegers and their lawyers will obey a protective order as best they can, they may or may not know what information Goodyear considers con?dential, and they may or may not be able to rely on what witnesses tell them in that regard. For those reasons, the plaintiffs will be required to use the formal fact-gathering procedures under the Rules of Civil Procedure, as opposed to informal information requests or witness interviews, to obtain information from other G159 cases that may be subject to a protective order or con?dentiality agreement. Before obtaining a subpoena that may require a person who is not a party to this case to produce protected information, the plaintiffs may request a formal order that modi?es the applicable protective order and can be served with the subpoena. Of course, Goodyear (or any other party) will have the right to respond in opposition to any such request. This process is subject to the meet-and-confer requirements of Rules 26(g) and 3 7(a) (2) (C). Assuming that the plaintiffs limit their discovery requests to information that originated with Goodyear and meets the discovery relevance standard, the following analysis will be used to determine whether the plaintiffs will be permitted to proceed notwithstanding a protective order: (1) Does the order apply by its terms to the person or party to which the discovery request is directed? This issue is dispositive with respect to the Schalmo protective order, as discussed in?a. (2) What interests of Goodyear did the issuing court intend to protect by entering the order, and is enforcement of the order against the plaintiffs necessary to protect those interests? The answer to this question will depend on the factual and legal recitations in the order itself, and on the record made when the order was entered or at the time of any attempts to enforce it. lnferences drawn from the contents and context of the order are unlikely to suf?ce, eSpecially when they touch on the facts that allegedly made the order necessary. See ACandS, Inc. v. Askew, 597 So.2d at 898 (upholding court?s refusal to enforce out?of-state protective order because, among other things, order did not explain why issuing court had entered it). (3) Is Goodyear entitled to enforce the order as a matter of Arizona law? The procedure to be followed, on a request for access to discovery materials covered by a confidentiality order, is set out in Civil Rule The ultimate question is whether the con?dentiality interest of the party opposing disclosure substantially outweighs the requesting party?s interest in production of the documents. See Carrone v. Miles, 215 Ariz. 446, 160 P.3d 1204, 111] 23-36 (App. 2007). The Court also must consider the public?s interest in disclosure of ?any possible risk to the public safety, health and welfare to which such information or materials may relate or reveal.? Ariz. R. Civ. P. (4) If the court that issued the order was not an Arizona court, is Arizona?s policy favoring disclosure in the interest of truth-finding outweighed by the interest of the issuing court in enforcing its order or some other countervailing consideration? See Restatement (Second) of Conflict of Laws 139(2); Johnson v. O?Connor, 235 Ariz. 85, 327 P.2d 218,11 33 (App. 2014). scoouoxmh-mm? If the answer to all of these questions is ?yes,? the protective order will be enforced. Otherwise the Court will modify the protective order and/or take whatever additional measures are necessary to enable the plaintiffs to obtain the sought-after information. When trade secrets or other con?dential research, development or commercial information comes into the plaintiffs? hands, the plaintiffs will be prohibited from disclosing the information except in designated ways. Such an order is authorized by Rule so long as the order uses the least restrictive means to maintain any needed con?dentiality as required by Rule The Court ?nds that Goodyear has a legitimate interest in keeping its trade secrets and other con?dential research, development and commercial information con?dential from business competitors. Goodyear?s interest in con?dentiality is not outweighed by any public safety risk to which the information may relate or reveal, on the record as it exists at this time, provided that the con?dentiality order permits disclosure to the National Highway Traf?c Safety Administration as recommended by NHTSA in the proposed Enforcement Guidance Bulletin: Recommended Best Practices for Protective Orders and Settlement Agreements in Civil Litigation. 80 Fed. Reg. 57046, found at The Haegers? request for permission to disclose information to notwithstanding the protective order therefore will be granted. Other than that, there has been no showing that a non?party or intervener needs access to the information. THE SCHALMO ORDER In respOnse to the plaintiffs? request for production of the trial transcript from Schalmo v. Goodyear, Goodyear does not make a relevance objection. The Court ?nds that the unredacted Schalmo transcript is reasonably likely to lead to the discovery of evidence that would be admissible at the trial ofthis case. Goodyear does object on the ground that the Schalmo transcript ?contains, constitutes, re?ects and/or represents con?dential information, proprietary information, commercial information and/or trade information which is entitled to and granted protection.? Goodyear asserts that it has the right to withhold that information ?pursuant to the December 10, 2010 Order of the Sixth Judicial Circuit in and for Pasco County, Florida concerning said transcript.? Accordingly, Goodyear produced only a heavily redacted version of the transcript. The Court ?nds that Goodyear does not have a valid objection to production of the complete Schalmo transcript. The plaintiffs request for an order compelling Goodyear to produce an unredacted copy of the transcript therefore will be granted, with limitations. The Florida court actually entered two orders on December 10, 2010. Response Exhibit F. The ?rst of those two orders applies a protective order entered on August 27, 2008 to speci?ed portions ofthe trial transcript.3 The 2008 protective order itself does not appear in the record ofthis case. The Court has no information about the terms of that order or the legal basis on which it was entered. As a result, there is no basis on which to sustain Goodyear?s objection to production of the portions of the transcript covered by the ?rst December 2010 order. The second December 10, 2010 order, unlike the ?rst, contains ?ndings that the trial transcript, trial exhibits and post-trial ?lings, ?contain or reveal con?dential trade secret or other con?dential commercially sensitive proprietary information, requiring confidentiality under [Florida Rule of Judicial Administration] It directs the Clerk to return to defense counsel those exhibits identi?ed as con?dential, and to seal the transcripts and docket items containing con?dential material; and it tells the court reporter to ?maintain as confidential? the identi?ed portion of the transcript ?and not distribute those portions of the trial transcript to any parties other than the parties to this case.? It also says, ?no person is permitted to view the con?dential materials . . . What the second order does not say is that Goodyear has an obligation, or a right, to withhold information from a third party in discovery in a different case. The order directs the actions of court personnel, not Goodyear. The Florida court rule cited as authority, Florida Rule 3 The Florida court?s ?nding that the Schalmo trial testimony did not reveal a ?public hazard? was a prerequisite under Florida law to the extension of the earlier protective order. That ruling has no bearing on whether Goodyear is entitled to enforce the order against the Haegers in litigation in Arizona, except insofar as Arizona Civil Rule 26(2)(c) requires a similar inquiry. 10 of Judicial Administration 2.420, governs public access to ?records of the judicial branch? including ?court records.? ?Court records,? in turn, are defined to include (among other things) ?transcripts ?led with the clerk.? Florida Rule of Judicial Administration 2.420(a) (emphasis added). Nothing in Rule 2.420?5 definition of?court records? covers copies oftranscripts or trial exhibits in the possession ofa litigant like Goodyear. Further, where Rule 2.420(c) says that certain judicial branch records ?shall be confidential,? it means that the records are ?exempt from the public right of access? under the Florida Constitution. Florida Rule of Judicial Administration Nothing in Rule 2.420 requires or permits a litigant to refuse compliance with a third party?s discovery request for the complete transcript especially not when the litigant is the party from which the information originated in the first place. 55(- In light of section 2.420, it is clear that the ?con?dential materials? no person is permitted to view? pursuant to the December 10, 2010 order are those in the court record, not those in Goodyear?s possession. The redaction of the protected information from the trial transcript is a prerequisite to disclosure of the transcript as a public record, not disclosure to the Haegers in discovery in this case. An order compelling Goodyear to produce an unredacted copy of the transcript therefore does not offend the principle of comity. OTHER ISSUES The plaintiffs object to discovery responses that begin by stating that the response is the product of a ?reasonable search.? The objection is valid. The plaintiffs are entitled to unqualified responses to properly-framed interrogatories and requests for production. Implicit in any discovery response is an implicit representation that the responding party has conducted the search required by the Rules of Civil Procedure. If there is a dispute over whether the responding party made a sufficient search, the issue will be whether the responding party met its inquiry obligation under the rules. The responding party does not have the right to characterize ll OOmMQm-?-mw? its obligation pre-emptively and then qualify its response by reference to its own characterization. The plaintiffs ask to compel Goodyear to identify settlement agreements that contain con?dentiality provisions (RFP No. 4) and current Goodyear employees tasked with communicating with NHTSA under the ?Early Reporting Requirement? regulation (RFP No. 7). In both instances, Goodyear?s ultimate response is that the precise wording of the request does not call for the sought?after information. That should have been worked out between the parties in the meet-and-confer process. From here on, the Court will sanction a party that stands on that kind of objection in response to a motion to compel and then agrees to produce the information at oral argument on the motion. ORDERS For the above reasons, IT IS ORDERED as follows. 0 Defendant Goodyear shall produce to the plaintiffs a complete list of protective orders or con?dentiality agreements for litigation or claims involving the 0159 tire, including orders entered as a result of a consent judgment or settlement agreement between the parties to litigation, agreements relating to claims that did not result in litigation, and settlement agreements in litigated cases where the agreement did not result in a court order. Goodyear shall seasonably supplement its response to Request No. 4 of Plaintiffs? Requests for Production Pursuant to the April 23, 2015 Protective Order (Response Exhibit B) so as to comply with this order. 0 Defendant Goodyear shall produce to the plaintiffs complete copies of the protective orders and con?dentiality agreements listed in GY-Haeger 003103 (Response Exhibit B, last page) not more than twenty days from the date on which the Clerk transmits this order to the parties. 12 The plaintiffs? request for an order compelling Goodyear to ask for relief from the protective orders in the courts where the orders were entered is denied. Goodyear?s request that the plaintiffs be required to seek relief in the courts that issued the orders is denied. The parties to this litigation shall bring before this Court any request for relief from or enforcement of a protective order or con?dentiality agreement in a 6159 case that would affect the right of the plaintiffs to obtain or the obligation of a defendant to disclose information in this case. A party may not present any such request to the court that issued the order or presided over the case in which the agreement was reached without first obtaining permission from this Court. This order does not affect the parties? right or obligation to appear in a proceeding initiated in another jurisdiction by party to a protective order not also a party to this case. The plaintiffs? request for an order allowing the parties and experts in other 0159 cases to disclose all information otherwise declared confidential in each of those cases and authorizing those parties to communicate with the Haegers? representatives ?without restriction,? without consideration of the terms of the specific protective order at issue and the law ofthejurisdiction from which the order issued, is denied. The plaintiffs may move for modi?cation of a protective order prior to issuance of a subpoena that would require a non-party to this litigation to disclose information that may be subject to the protective order. Along with the motion the plaintiffs shall submit a form of order (with proposed findings of fact on relevant factors as required by Rule appropriate for service on the third party with the subpoena. The motion shall be served on the defendants, who will have a right to be heard in response. Motions for modi?cation of protective orders to permit disclosure by third parties, and motions to compel or quash discovery that otherwise place another tribunal?s protective order at issue, will be decided under the rubric set out in this order in the section entitled ?The Nature and Sc0pe of Relief.? The parties shall meet and confer as required by Rules 26(g) and in an effort to resolve disputes, before bringing or contesting a motion. 13 CWOOHJONLII-P-UJN The substance of the Protective Order entered in Haeger v. Goodyear Tire and Rubber Company (Haeger 1), CV shall apply in this litigation unless the parties agree to different terms and the Court approves the agreement. A copy of the Haeger protective order is attached to this order and incorporated by this reference. Notwithstanding any provision of the protective order, the plaintiffs through their attorneys may disclose to the National Highway Traf?c Safety Administration any discovery materials relevant to the safety of the G159 tire. Any party may apply for permission to make additional disclosures under Rule Upon obtaining documents (as defined in the Protective Order) from any person or entity that was or is a party, witness or attorney in a G159 case, the plaintiffs shall produce copies of the documents to defendant Goodyear and each of the other defendants in this case. All documents clearly marked as ?confidential? when received by the plaintiffs shall be subject to the protective order in this case. All other documents received by the plaintiffs from any person or entity that was or is a party, witness or attorney in a G159 case shall be treated by the plaintiffs as con?dential for a period of thirty days from the date on which copies are produced to the defendants. Within that thirty-day period the documents may be designated as con?dential, pursuant to the protective order, by a lawyer for the party that originally produced the documents, Defendant Goodyear shall produce to the plaintiff a complete, unredacted copy of the Schalmo v. Goodyear trial transcript, not more than twenty days from the date on which the Clerk transmits this order to the parties. The protective order entered as part of this order shall apply to those portions of the Schalmo trial transcript designated by the Florida court as con?dential in the two orders entered on December 10, 2010. The portion of defendant Goodyear?s responses to Requests Nos. 1, 3 and 4 of Plaintiffs? Requests for Production Pursuant to the April 23, 2015 Protective Order stating that Goodyear ?conducted a reasonable search concerning the requested information and . . is stricken and will have no effect. If Goodyear needs to modify those responses in light of this 14 order, Goodyear shall have twenty days from the date on which the Clerk transmits this order to the parties in which to serve the modi?ed responses on the plaintiffs. Defendant Goodyear shall produce to the plaintiffs, not more than twenty days from the date on which the Clerk transmits this order to the parties, a list of all current and former Goodyear employees tasked with communicating with NHTSA about the G159 tire for purposes of compliance with the Early Warning Reporting requirements for death and injury claims set forth in 49 C.F.R. section 579 et seq. DATED this 24th day of November, 2 orable John R. Hannah ricopa County Superior Court Judge 15 gangHowmucxmamMr-uc UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA LEROY and DONNA HAEGER, No. CV 05-2046-PHX-ROS husband and wife; BARRY and SUZANNE HAEGER, husband and wife; FARMERS INSURANCE PROTECTIVE ORDER COMPANY OF ARIZONA. an Arizwa corporation, Plainti?'s. v. GOODYEAR TIRE AND RUBBER COMPANY, an Ohio co ration; SPARTAN MOTORS . a Mlchigan corpom?on; and GULESTREAM COACH, INC, an 111le corporation, Defendants. This matter is before the Court on Goodyear's request for entry of a protective order. Being fully advised, the Court ?nds that a party may be asked to produce documents and information the party believes to be proprietary and con?dential. It will facilitate discovery without prejudice to any party to enter the following Protective Order: The following restrictions shall be observed as to the Con?dential Documents and Information produced by a party pursuant to this ORDER: tun?L 1. DEFINITIONS A. infermation designated as "Con?dential" or "Con?dential Information" or "Confidential Material" shall be protected by this ORDER. All portions of transcripts, depositions, exhibits, or other pleadings or ?lings in this action that contain or otherwise set forth documents, information, or other materials, or contents thereof, that have been previously designated as Con?dential shall likewise be subject to the terms of this ORDER. B. "Communicate" (or variants of this verb) means to disclose, show, give, imply, list, describe, provide, make available, fun-rush, or allow exposure of information in any fashion to any person, including without limitation any mailing, faxing, hand delivery, photograph, or any other duplication method. C. "Copy" or "Copies" means reproductions made through any process, including but not limited to photocopying or photographic, any form of reproduction, manual recopying, micro?lm, dictation, or mechanical, visual, or electronic duplication that in any way attempts to produce the substance, form, or intent of information. D. "Documen or "Documen includes all mitten, recorded, or graphic material, whether produced or created by a party or another person and whether produced pursuant to Federal Rules of Civil Procedure 26.1 or 34, pursuant to subpoena, by agreement, or otherwise and includes both those items of a tangible nature and any computer ?les. E. "Party" means any person or entity named in this litigation and any of their af?liated persons or entities. F. 'Terson" means any natural person, or any legal or business entity, pro?t or nonpro?t organizations, or any governmental agency. G. "Producing Party" means the party who produced Con?dential Documents or Information. H. For purposes of this ORDER, "conclusion of this litigation" means the execution of a settlement agreement or release disposing of all claims, entry of ?nal judgment -2- or the exhaustion of appeals, or the expiration of time for appeals. II. RESTRICTIONS 1. Con?dential Documents andhtire Con?dential Information contamnedthirein shall be new perms. terrains: ant? for tire repose of the prosecution or defense of this captioned action and shall not be communicated in any manngtodanyoneother than those persons identi?ed in Paragraph without order of the Court after due notice to the Producing Party. Each and every Con?dential Document produced (including copies, excerpts, digests, summaries, or indices thereof) by a party shall be clearly marked and identi?ed with the following legend: CONFIDENTIAL THIS DOCUMENT PRODUCED UNDER COURT ORDER FOR USE IN LEROY AND DONNA HAEGER, HUSBAND AND BARRY AND SUZANNE HAEGER, HUSBAND AND FARMERS INSURANCE COMPANY OF ARIZONA, AN ARIZONA CORPORATION v. GOODYEAR TIRE RUBBER COMPANY, IN C., AN OHIO SPARTAN MOTORS INC., A MICHIGAN AND GULFS TREAM COACH, INC., AN INDIANA CORPORATION CASE NO. AND SHALL NOT BE USED FOR ANY OTHER PURPOSE WHATSOEVER If any party creates a computer database, disk, compact disk, drive, or other electronic record containing Con?dential Documents or Information, the party creating such an electronic record shall mark the case or envelope containing the material with this same language. Documents printed from such electronic media shall be marked the same as decantents originally produced on paper. 2. Con?dential Documents and Information shall not be given, shown, made available, discussed, or otherwise communicated in any way except to a "Covered Person," de?ned as follows: a. the Court or Courts in which this litigation is being pursued; b. the party or a person employed by a corporate party who is participating in the -3- management of this litigation'and the preparation of this case for trial; 0. the attorneys of record for the parties and their associated attorneys, including the cinployees of any such attorneys to whom it is necessary that the material be shown for pmposes of the litigation; and d. independent professional engineers, accident reconstruction or other independent experts retained by a party or an attorney of record to assist in the preparation of this litigation. 3. Before disclosing Con?dential Documents or Information to any Covered Person who is a competitor or an employee of or consultant to a competitor of the Producing Party, the party wanting to make disclosure shall give at least 30 (thirty) days advance notice in writing to the cotmsel of the Producing Party, stating the name and address of the person to whom disclosure is intended and listing the particular documents and information to be disclosed. If within the 30-day period the Producing Party ?les a motion objecting to the disclosure, the proposed disclosure shall not be made until the Court rules upon the motion. 4. No Con?dential Documents shall betransmitted by e-mail to a Covered Person, but shall only be transmitted on discs or other physical media. 5. Deposition testimony relating to or discussing a. party's Con?dential Infonnation shall be protected under this Order and the transcript of such testimony shall be marked with the Con?dential legend of Paragraph 1. The transcripts of such deposition testimony shall be heated the same under this Order as other documents marked Con?dential. The court reporter and videographer, if any, for any such deposition shall be provided a e0py of this Order by the party at whose instance the deposition is taken, shall acknowledge this Order on the record, and shall not disclose to anyone other than those speci?ed in Paragraph 2 any deposition testinmny or exhibit in this case. Any video tapes of depositions containing con?dential information shall be con?dential in their entirety and shall be clearly marked on the outside of the tape cartridge with the foregoing "Con?dential" legend. .4. a?uthI?Icwwqu-thI?IO 6. Con?dential Documents and Information shall not be given, shown, made available, discussed, or otherwise communicated to anyone other than the attorneys of record for a party without ?rst informing them of the contents of this Order. In the case of persons speci?ed in subparagraph 2(d) hereinabove, counsel shall obtain from such person a signed acknowledgment, in the form attached hereto as Exhibit A, that the person: a. isfamiliar with the terms of this Orderandam'ees to comply with andbe bound by them; b. submits to the jurisdiction of this Court or any other court of competent jurisdiction for the purposes of enforcement of this Order; Within ten (10) days after making a disclosure authorized by Paragraph counsel making such disclosure shall ?le under seal, the original acknowledgment (Exhibit A), and a description of the Con?dential Documents and/or Information disclosed to each signer, and . shall serve upon counsel for the Producing Party a written notice identifying the Documents andfor Information disclosed, and the number of people to whom each disclosure was made. 7 . Any party to this litigation may challenge a "Con?dential" designation by ?ling a motion under seal within thirty (30) days of the receipt of the Con?dential Document or Information, to be heard in camera. Pending a ruling of the Court, the challenged Document or Information shall continue to be treated as Con?dential under this Order. 8. All writing submittedto or ?led with the Court in cormection with any pro-trial proceedings which contain, set forth, summarize, or otherwise disclose Con?dential Documents er Information shall be ?led with a motion that they be ?led under seal (or returned if the Court will not seal the documents) and an order that such documents strait not be publicly available, except by further order of this Court. 9. At the trial of this case, the protection of the con?dentiality of Con?dential documents shall continue to the maximum extent pennittcd by the Court, pursuant to such procedures as the Court may require. .. . - thri?me?am-bmwt-?O 10. If any party or person that has obtained Con?dential Documents or Information under the terms of this Order receives a subpoena or other legal process commanding the production of any such Con?dential Documents or Information ("the subpoena"), such party or person shall notify the party or person that designated the Docmnents or Information as Confidential of the service of the subpoena. The party or person receiving the subpoena shall not produce any Con?dential Document or Information in response to the subpoena without either the prior written consent of the Producing Party or an order of a court of competent jtn-isdiction. The Producing Party in such case, however, shall have the burden of seeking a court order relieving the subpoenaed party or person of the obligations of the subpoena prior to the return date of such subpoenas or the subpoenaed person orparty shall be relieved of its obligations under this Paragraph. 11. The inadvertent production in the course of discovery in this action of any document or information (whether designated as Con?dential or not) shall not be deemed to waive whatever attorney-client privilege, work product protection or other privilege or immunity that would otherwise attach to the document or information produced or to other documents or information, as long as the Producing Party or person, after discovery of the inadvertent production, noti?es the other party or parties of the claim of privilege or other protection or immunity. Upon such notice, the party or parties shall destroy all copies of the documents or information referred to and notify the Producing Party or person that it has done so. Such destruction and notice shall not constitute an acknowledgment that the claimed document or information is in fact privileged or entitled to protections or immunity. 12. Within twenty-one (21) days after the conclusion of this litigation, unless the Court orders otherwise, counsel for any party who received Con?dential Documents or Information shall request ?-om all persons to ?horn Con?dential Documents and Information have been provided an af?davit in the form of Exhibit hereto. The request shall include --6- ?Oooqcnm-h-uu?u noti?cation to the recipients that the litigation has concluded. Copies of such requests shall be ?led, under seal, with the Court. 13. Within fourteen (14) days of receipt of notice of the conclusion of this litigation, each Covered Person under paragraph and 2(d) of this Order shall: a. return to the courtsel that disclosed Con?dential Documents or Infomation to them all Con?dential Documents and all documentary materials re?ecting Con?dential Information that are in his/her possession, custody, or control, and b. serve upon the disclosing counsel an af?davit in the form of Exhibit B, attesting that he/she has returned all Con?dential Documents and Information. 14. Unless the Court orders otherwise, within sixty (60) days alter the conclusion of this litigation, every counsel who has received the Con?dential Documents of Information of any party shall: a. return the original and all copies of the Con?dential Documents provided by the Producing Party that are in the possession, custody, or control of such counsel; and b. either deliver to counsel for the Producing Party all documentary materials re?ecting information contained in or derived ?'om Con?dential Documents provided by the Producing Party that are in the possession, custody, or control of such counsel; or c. destroy such documentary materials and notify counsel for the Producing Party in writing that such action has been taken; and d. ?le under seal, all original executed af?davits received; and e. inform counsel for the Producing Party in writing of the identity of any Con?dential Documents or Information contained in or derived from such documents, known to such counsel, which have not been returned and/or destroyed in the manner required by this Order, and the identity of any person who has failed to return each such Con?dential Document andlor item of Con?dential Information. 15. Nothing in this Order shall limit or otherwise affect: -7- . secede-turntable? gahwuwoem?de-thh-?D a, the rights of any party to object to any further production or use at trial of Con?dential Documents or the Information contained therein; or b. the rights of any party to seek a more restrictive treatment of highly con?dential information 16. Attire conclusion of this litigation, the Court shall retain jurisdiction in the case for enforcement of this Order. At the conclusion of this litigation, counsel for a Producing Party shall not be entitled to inspect and copy those document previously filed under seal with the Court pursuant to this Order unless the Court determines the Producing Party has shown "Good Cause" to inspect and copy said materials. An example of "Good Cause" may include the Producing Party's docmnentation of a violation of this Order by submitting an af?davit to the Court showing that not all of the documents covered by this Order were returned or destroyed as provided by this Order. "Good Cause" may also include a Producing Party's documentation of a violation of this Order by submitting an af?davit to the Court showing that the documents governed by this Order were being used in a manner not permitted by this Order. At least ten (10) days before any hearing on the issue of whether a Producing Party has shown "Good Cause," the Producing Party shall notify in writing all comes! of record of the Producing Party's attempt to establish "Good Cause" with the Court so as to permit the Producing Party to inspect and copy those materials previously ?led under seal with the Court. 17. The attorneys of record are responsible for employing reasonable measures, consistent with this Order, to control duplication of, access to, and distribution of copies of Con?dential Information and to collect or destroy all documents at the conclusion of this litigation. 18. A document may only be designated as con?dential by a lawyer, and the lawyer shall designate the information as con?dential only alter reasonable inquiry and upon good faith belief that the information is con?dential or otherwise entitled to protection. DATED this 2.8?l day of August, 2006. United ?5 ates district Judge