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Jahner v. Kumho Tire U.S.A., Inc.

United States District Court, D. South Dakota, Western Division

January 7, 2020

BRIGITTE JAHNER, as personal representative of the Estate of Robert Bear Shield, JERRY BEAR SHIELD SR., JERRY BEAR SHIELD JR., JAYDEE SPOTTED ELK, AMERICAN ZURICH INSURANCE COMPANY and HEAVY CONSTRUCTORS INC., Plaintiffs,
v.
KUMHO TIRE U.S.A., INC., KUMHO TIRE MERGER SUBSIDIARY, INC., KUMHO TIRE CO. INC, and KUMHO TIRE VIETNAM CO., LTD., Defendants.

          PROTECTIVE ORDER

          VERONICA L. DUFFY JUDGE

         On January 6, 2020, Plaintiffs American Zurich Insurance Company and Heavy Constructors, Inc. together with Defendants Kumho Tire U.S.A., Inc. and Kumho Tire Merger Subsidiary, Inc., by and through their respective counsel, filed a Joint Motion for Protective Order ("Motion") in the above-captioned matter.

         This Court has considered the Motion and finds the requested Protective Order to be consistent with the purposes of Fed.R.Civ.P. 26(c). Therefore, IT IS HEREBY ORDERED as follows:

         1. Each party may designate as CONFIDENTIAL INFORMATION any trade secret or other information believed in good faith by the designating Party to be proprietary or confidential research, development, or commercial information, medical information or other confidential information.

         2. This Order shall apply to information, documents (including photographs, drawings, films, videotapes, records, or other writings), other materials, and certain discovery responses and testimony (including at trial, by deposition or by affidavit), as defined by the Federal Rules of Civil Procedure to be produced in the lawsuit entitled Brigitte Jahner, as personal representative of the Estate of Robert Bear Shield, Jerry Bear Shield Sr., Jerry Bear Shield Jr., Jaydee Spotted Elk, American Zurich Insurance Company and Heavy Constructors, Inc. v. Kumho Tire U.S.A., Inc., Kumho Tire Merger Subsidiary, Inc. and Kumho Tire Co., Inc., pending in the United States District Court for the District of South Dakota, Western Division, Case No. 18-5036-JLV (the "Lawsuit"), and any other material or information hereafter furnished by or on behalf of any party or any person associated with any party in connection with the Lawsuit that produced documents, information, material or testimony (including at trial, by deposition or by affidavit), containing or designated as CONFIDENTIAL INFORMATION in accordance with the procedures set forth herein.

         3. For purposes of this Order, CONFIDENTIAL INFORMATION may include or be included in any document, physical object, tangible thing or the factual knowledge of persons, such as by way of example and not by limitation, recorded statements of counsel, transcripts, pleadings, motions, briefs, exhibits, affidavits, or any other submission by any party that is filed with the Court, answers to interrogatories and other responses to discovery requests, drawings, compositions, devices, company records and reports, summaries, notes, abstracts and any other instrument which contains CONFIDENTIAL INFORMATION. CONFIDENTIAL INFORMATION includes information that constitutes trade secrets or other confidential research, development or proprietary business information that (a) is not generally available to others, (b) is not readily determinable from other sources, (c) has been treated as confidential by any party, and (d) is reasonably likely to lead to competitive injury if disclosed. CONFIDENTIAL INFORMATION shall also include any medical information pertaining to the named Plaintiffs, Plaintiffs' insureds or Decedent Robert Bear Shield including, but not limited to, medical information received from medical reports or medical records. The parties shall use good faith in marking as CONFIDENTIAL INFORMATION only those documents that contain confidential information.

         4. Any information or documents produced at any time, either voluntarily or pursuant to order, orally or in writing in this Litigation, which is asserted by any party to contain or constitute CONFIDENTIAL INFORMATION shall be so designated by that party in writing as follows:

A. Documents and things shall be clearly and prominently marked on their face and following pages of the document with the legend: "CONFIDENTIAL SUBJECT TO PROTECTIVE ORDER" in an area that does not impede the visibility of the content of the document produced;
B. In the event any Party creates a computer database, disk, compact disk, drive, digital or other electronic record containing CONFIDENTIAL INFORMATION, the Party creating such an electronic record shall mark the case or envelope containing the material as "CONFIDENTIAL SUBJECT TO PROTECTIVE ORDER." Documents printed from such electronic media shall be marked the same as documents originally produced on paper and shall be accorded the same status of confidentiality as the underlying CONFIDENTIAL INFORMATION from which they are made and shall be subject to all of the terms of this Order.
C. If such CONFIDENTIAL INFORMATION is contained or given in any deposition testimony, trial testimony or any other testimony, the transcript or portions thereof may be designated as containing CONFIDENTIAL INFORMATION in accordance with this Order by notifying the parties on the record at the time the testimony is given, or in writing within thirty (30) days of receipt of the transcript, and by specifying the specific pages and lines of the transcript which, based on a good faith determination, contain CONFIDENTIAL INFORMATION as defined herein. To the extent possible, any portions so designated shall be transcribed separately and marked by the court reporter as "CONFIDENTIAL AND SUBJECT TO PROTECTIVE ORDER" Any videotapes of depositions containing CONFIDENTIAL INFORMATION shall be clearly marked "CONFIDENTIAL AND SUBJECT TO PROTECTIVE ORDER" on the outside of the tape cartridge or DVD case. Until expiration of the above thirty (30) day period, all transcripts and information therein will be deemed CONFIDENTIAL INFORMATION; subject to the terms of this Order.

         By designating any information, document, or other material as CONFIDENTIAL INFORMATION under this Order, a Party represents that it has made a bona fide, good faith determination that the document does, in fact, contain CONFIDENTIAL INFORMATION as defined herein.

         5. CONFIDENTIAL INFORMATION includes the portion of any notes, lists, memoranda, indices, compilations, videos, models, testing, electronically stored information, reports, records, medical reports, medical records and documents (including pre-trial court papers), that are prepared from, contain any information obtained from, quote from, summarize, comment upon, or refer to CONFIDENTIAL INFORMATION with such specificity that the CONFIDENTIAL INFORMATION can be identified, or by reasonable logical extension can be identified, shall be treated as CONFIDENTIAL INFORMATION under this Order.

         6. The restrictions upon, and obligations accruing to, persons who become subject to this Order shall not apply to any information produced in accordance with this Order as to which this Court or another court having jurisdiction over the production of information for this matter rules, after proper notice and hearing, that such information is not CONFIDENTIAL INFORMATION as defined in Paragraph 1 hereof.

         7. All CONFIDENTIAL INFORMATION filed with the Court, including all depositions, or any portion or portions of depositions which contain(s) CONFIDENTIAL INFORMATION, and all papers (including affidavits and memoranda of law) purporting to reflect CONFIDENTIAL INFORMATION shall be filed conditionally under seal, following the procedures set forth under F.R.C.P. Rule 5.2. The party seeking to limit the disclosure ...


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