IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
UNITED STATES OF AMERICA,
SMITHFIELD FOODS, INC.,
Civil Action No. 1:03CV00434 (HHK)
STIPULATED PROTECTIVE ORDER
GOVERNING CONFIDENTIAL INFORMATION
For the limited purpose of determining whether this Court has jurisdiction over the
defendant Smithfield Foods, Inc. ("Smithfield") and without prejudice to Smithfield's Motion to
Dismiss this action on the grounds that this Court lacks jurisdiction over it, pursuant to Fed. R.
Civ. P. 26(c)(7), the parties hereby submit this proposed Protective Order for the purpose of
ensuring that matters raised by this proceeding are open to the public and, at the same time,
ensuring that confidential information submitted by Smithfield or any third parties in connection
with this proceeding, whether pursuant to compulsory process or voluntarily, is not improperly
disclosed. Accordingly, the parties, by their undersigned counsel, hereby stipulate, subject to
approval and entry by the Court, as follows:
Definitions and Terms
- As used in this Order, the following definitions and terms shall apply:
- "Confidential Information" means any Discovery Material that the producing
party or protected person reasonably believes not to be in the public domain and
reasonably believes contains any trade secret or other confidential, strategic,
research, development, or commercial information, as such terms are used in Fed.
R. Civ. P. 26(c)(7), that, if disclosed, would materially affect the party's or
protected person's business, commercial or financial interests.
- "Defendant" means Smithfield Foods, Inc.
- "Smithfield Foods, Inc." includes all domestic subsidiaries, affiliates, partnerships
and joint ventures, as well as all present and former directors, officers, employees,
agents, partners, representatives and attorneys of the foregoing.
- "Disclosed" is used in its broadest sense and includes, inter alia, directly or
indirectly shown, divulged, revealed, produced, described, transmitted or
otherwise communicated, in whole or in part.
- "Discovery" is defined as the term is used in the Federal Rules of Civil
- "Discovery Material" means any documents, answers to interrogatories, responses
to requests for admission, deposition testimony, deposition transcripts and
exhibits, other responses to requests for information and/or other written
information, whether produced voluntarily or involuntarily, either in the course of
any pre-complaint investigation by the DOJ of the matters at issue in this action
or in response to discovery requests in this litigation by any party or protected
- "Document" is defined as the term is used in Rule 34(a) of the Federal Rules of
- "DOJ" means the United States Department of Justice.
- "Counsel" means the counsel of record in this action and their law firms as well
as (i) other attorneys or consultants employed or retained by such law firms; or
(ii) any attorney subsequently retained or designated by the Defendant to appear
in this action; or (iii) two inside counsel employed by Smithfield, specifically,
Richard Poulson and Michael Cole.
- "Party" or "parties" means the Plaintiff and/or the Defendant in this action.
- "Plaintiff" means the United States, its branches, departments and agencies, and
any person acting on its behalf, including without limitation, officials, employees,
consultants, attorneys or agents.
- "Protected person" means any non-party that furnishes any Discovery Material to
- "This action" means the above-captioned civil action pending in this Court, it
being understood and agreed by the parties that this Protective Order applies to
and is limited to those proceedings necessary for the Court to determine whether
it has jurisdiction over Smithfield, including any appellate proceedings. It is
further understood and agreed by the parties that the entry of this proposed
Protective Order by the Court will not in any way establish the Court's
jurisdiction over Smithfield and is without prejudice to Smithfield's Motion to
Dismiss for lack of jurisdiction.
Types of Material That May Be Designated Confidential
- Any Discovery Material may be designated by a producing party or protected person as
"Confidential" under this Order. Such designation shall constitute a representation to the
Court that counsel for the producing party or protected person believes in good faith that
the material so designated constitutes Confidential Information as defined in this Order.
Designation of Discovery Material as Confidential
- Defendant and protected persons that produced Discovery Material to the DOJ in the
course of any pre-complaint investigation by the DOJ of the matters at issue in this action
shall have 20 days after receiving a copy of this Order to designate any such Discovery
Material as Confidential as defined in this Order. In the meantime, all parties shall treat
all such materials as Confidential pursuant to this Order. Such Discovery Material may
be designated as Confidential by (i) providing copies of the Discovery Material that are
stamped with the legend "CONFIDENTIAL SUBJECT TO PROTECTIVE ORDER" or
(ii) stamping Discovery Material currently in the possession of the DOJ with the legend
"CONFIDENTIAL SUBJECT TO PROTECTIVE ORDER." If the entire document is
not confidential, the party or protected person shall specifically identify the portions of
the documents that contain the Confidential Information. Any confidential legend shall
be affixed to each page of the document containing such material and shall not interfere
with the legibility of designated documents.
- Any documents, material or information produced in discovery in this action, but not
covered by paragraph 3 above, that are to be designated "Confidential" may be so
designated by the producing party or protected person by furnishing a separate written
notice to the undersigned counsel for the party receiving such documents, material or
information at the time of their production specifically identifying the portions of the
documents or materials containing the Confidential Information, unless the entire
document is designated as Confidential, and by providing copies of the documents,
material or information so designated that are stamped with the legend
"CONFIDENTIAL SUBJECT TO PROTECTIVE ORDER." This legend shall be
affixed to each page of the document containing such material and shall not interfere with
the legibility of designated documents. With respect to electronic documents, the party
or protected person at the time such documents are produced shall specify in writing that
the material is designated as Confidential.
- Inadvertent production of or failure to designate any information as Confidential shall not
be deemed a waiver of the producing party's or protected person's claim of
confidentiality as to such information, and the producing party or protected person may
thereafter designate such information as Confidential as appropriate.
- The parties shall serve a copy of this Order simultaneously with any discovery request.
- All transcripts and exhibits used herein for purposes of determining whether this Court
has jurisdiction over Smithfield shall be treated as if designated Confidential for a period
of ten business days after the transcript is available from the court reporter. Any
deponent or counsel for that deponent may designate during the deposition or during the
ten-business-day period after the transcript is available from the court reporter any
portion of the transcript as Confidential by denominating by page and line, and by
designating any exhibits, that are to be considered Confidential pursuant to the criteria set
forth in this Order. Such designation shall be communicated to all parties. Transcript
portions and exhibits designated in accordance with this paragraph shall be disclosed
only in accordance with this Order.
Permissible Uses of Discovery Material
- All persons obtaining access to Discovery Material produced in connection with this
action shall use such Discovery Material only for purposes of this proceeding, including
any appeal of the Court's ruling, and any subsequent proceedings relating to Smithfield's
alleged violations of Section 7A of the Clayton Act, 15 U.S.C. § 18a, and shall not use
such Discovery Material for any other purpose, including the furtherance of that person's
business interests or in any administrative or judicial proceeding, provided, however, that
the DOJ, subject to taking appropriate steps to preserve the confidentiality of such
material, may disclose Discovery Material obtained in connection with this proceeding,
including Discovery Material designated as Confidential, to employees of the Executive
Branch outside the DOJ, and may use such information for any valid law enforcement
purpose pursuant to 15 U.S.C. § 1 et seq.; 15 U.S.C. § 1311-1314 et seq.; 15 U.S.C. § 12
et seq.; or any other applicable law. Unless otherwise prohibited by federal law or
regulation, Plaintiff will endeavor to inform promptly the party or protected person who
designated the material as Confidential if disclosure pursuant to this paragraph is made.
- Nothing herein shall impose any restrictions on the use or disclosure by a party or
witness of documents, material or information obtained by such party or witness
independently of the discovery proceedings in this action, whether or not such
documents, material or information are also obtained through discovery proceedings in
- Nothing herein shall prevent disclosure of Confidential Information with the consent of
counsel for the designating party or protected person.
- Except as otherwise authorized by this Order, Confidential Information may be disclosed
only to the following persons:
- the Court;
- DOJ attorneys and employees, including contract employees;
- outside counsel for Smithfield and two designated inside counsel for Smithfield;
- associated personnel of any person within categories a. through c. for whom
access to Confidential Information is necessary to assist such persons in this
action, including any Court personnel assisting the Court, litigation assistants,
paralegals, secretarial or other clerical personnel, and stenographers or other
persons involved in taking or transcribing testimony in this action;
- consultants, experts or litigation support services, including outside copying
services, retained by a party for the purpose of assisting that party in this action,
and principals and employees of the firm with which consultants or experts are
- authors or recipients of the designated Confidential Information;
- employees of or counsel for the party or protected person producing such
Confidential Information; and
- any person who may testify as a witness, either at a deposition or at a court
proceeding for the purpose of assisting in the preparation or examination of the
witness or potential witness, subject to the terms of paragraph 14.
- Persons described in paragraphs 11.b. and c. (and their associated personnel) shall be
deemed bound by the terms of this Order upon its entry by the Court. Persons described
in paragraphs 11.b. and c. should advise their associated personnel of this Order and the
terms of the above stated agreement prior to providing their associated personnel access
to Confidential Information.
- A party disclosing Confidential Information to a person described in paragraphs 11.e. and
h. must first (i) advise the recipient that the information is Confidential and may only be
used in connection with this action; (ii) provide the recipient with a copy of this Order;
and (iii) have that person execute a confidentiality agreement stating the following:
I hereby acknowledge that [name, position of employment], am about to
receive Confidential Information. I certify my understanding that such
information is to be provided to me pursuant to the terms and restrictions
of the Protective Order of [date entered] in United States v. Smithfield
Foods, Inc. I have been given a copy of and have read this Order and
agree to be bound by its terms. I agree to submit to the jurisdiction of the
Court for the sole purpose of having the terms of this Order enforced.
The original of such executed confidentiality agreement shall be retained by counsel
disclosing Confidential Information to such persons for a period of one year following
the final resolution of this matter.
- Counsel for a party may disclose Confidential Information to any witness or potential
witness provided counsel has obtained consent of counsel for the party or protected
person who produced such information, except that such consent need not be obtained if
(i) the person is an author or recipient of the Confidential Information, or (ii) the person
is an employee or a former employee of the producing party or protected person and
counsel for any party believes in good faith said employee or former employee has prior
knowledge of the substance of the Confidential Information to be disclosed.
Challenges to Confidential Designations
- If either party disagrees with the designation by the producing party or protected person
of any Discovery Material as Confidential Information, then the parties to the dispute will
attempt first to resolve the dispute on an informal basis before presenting the dispute to
the Court. All items objected to shall continue to be treated as Confidential pending
resolution of the parties' dispute. If the dispute cannot be resolved informally, the
producing party or protected person bears the burden of persuading the Court that the
information is in fact Confidential Information within the definition of that term set forth
above. In the case of material provided by a protected person, the party contesting the
confidentiality designation shall provide reasonable notice to the protected person that
the matter has been referred to the Court.
- Entering into, agreeing to, and/or complying with the terms of this Order shall not: (a)
operate as an admission by any party or protected person that any particular documents,
material or information contain or reflect currently valuable trade secrets or proprietary
or commercial information; or (b) prejudice in any way the right of a party at any time:
(i) to seek a determination by the Court of whether any particular document, item of
material or piece of information should be subject to the terms of this Order; (ii) to seek
relief on appropriate notice from any provision(s) of this Order, either generally or as to
any particular document, item of material or piece of information; (iii) to object to any
discovery request, including the right to assert that no discovery should be had of certain
documents or information; or (iv) to seek documents or other information from any
- At any deposition session, when counsel for a party or the deponent deems that the
answer to a question will result in the disclosure of Confidential Information, counsel
shall have the option, in lieu of taking other steps available under the Federal Rules of
Civil Procedure, to request that all persons, other than the reporter, counsel and
individuals specified in paragraph 11 hereof, leave the deposition room during the
Confidential portion of the deposition. The failure of such other persons to comply with
such requests shall constitute substantial justification for counsel to advise the witness
that he or she need not answer the question pending.
- Any deposition testimony concerning a Confidential document produced by a protected
person shall be marked by the court reporter as Confidential on the deposition transcript.
Filing Under Seal
- All Confidential Information contained or discussed in any pleading, motion, exhibit or
other paper filed with the Court shall be filed under seal. Where possible, only
confidential portions of filings with the Court shall be filed under seal. Confidential
Information filed under seal shall be placed in a sealed envelope/box, which shall be
endorsed with the case number, title of the Court, a descriptive title of the document and
the case caption, unless such information is to be, or has been, included among the
information ordered sealed. The sealed envelope/box shall also be endorsed with the
words "DOCUMENTS SUBJECT TO PROTECTIVE ORDER" and a statement
substantially in the following form:
This envelope/box is sealed pursuant to an Order of the Court, dated _______,
and contains Confidential Information filed in this case by [name of Party] and is
not to be opened or the contents thereof to be displayed or revealed except by
order of the Court.
The Confidential Information to be filed under seal must be served by mail or by hand
delivery, unless counsel have otherwise agreed, and must be identified in an
electronically filed notice of filing. The Clerk shall keep such papers under seal until
further order of the Court; provided, however, that such papers shall be furnished to the
Court, the Plaintiff, and Defendant's outside counsel. As soon as possible after the filing
of any paper containing Confidential Information, the filing party shall file on the public
record a duplicate copy of the paper with the Confidential Information redacted.
Use of Confidential Information at any Hearing
- The parties shall confer and attempt to agree, before any hearing, on the procedures under
which Confidential Information may be introduced into evidence or otherwise used at
such hearing. Upon reaching agreement, the parties shall give notice of the terms of such
agreement to each protected person producing any Confidential Information which may
be used or introduced at any such hearing. Absent agreement, the Court shall be asked to
issue an order governing the use of such Confidential Information at any such hearing
upon reasonable notice to all parties and protected persons who have produced such
information. The parties shall provide protected persons with notice of potential use at
any hearing of any Confidential Information produced by them.
Procedures Upon Termination of Action
- Within 60 business days following the running of any applicable time to appeal any order
or ruling entered in this action, the Defendant shall either (i) return to the person who
produced such materials all copies of all Confidential Information obtained through
discovery in this action or (ii) certify to that person that all such materials have been
- After the running of any applicable time to appeal any order or ruling entered in this
action, the Defendant or protected person may request that Plaintiff return or destroy any
Discovery Material the Defendant or protected person has provided. Upon such request,
Plaintiff shall comply subject to its rights, if any, under any applicable law, regulation or
DOJ directive to retain such Discovery Material or copies thereof. It being understood
and agreed by the parties that Plaintiff may also retain such Discovery Material or copies
thereof that it may use in any subsequent proceeding relating to Smithfield's alleged
violations of Section 7A of the Clayton Act, 15 U.S.C. § 18a.
- This Order shall not affect the right of any party or protected person to oppose production
of Discovery Material on any ground permitted by the Federal Rules of Civil Procedure,
including any applicable privilege. Moreover, this Order shall not affect the scope of
discovery by any party that is not otherwise proper under the Federal Rules of Civil
- Nothing in this Order shall prejudice the right of any party or protected person to move
the Court to broaden or restrict the rights of access to and use of particular Discovery
Material, or to seek modifications of this Order upon due notice to all other parties and
affected protected persons.
UNITED STATES OF AMERICA:
Jessica K. Delbaum
United States Department of Justice
325 7th Street, NW, Suite 500
Washington, DC 20530
Telephone: (202) 616-1636
Facsimile: (202) 616-2441
Dated: _12th_ day of June, 2003
SMITHFIELD FOODS, INC.:
Thomas G. Slater, Jr.
D.C. Bar No. 305839
HUNTON & WILLIAMS
Riverfront Plaza, East Tower
951 East Byrd Street
Richmond, Virginia 23219-4074
Telephone: (804) 788-8475
Facsimile: (804) 788-8218
Dated: _11th __ day of June, 2003
SO ORDERED this ____ day of __________, 2003.
Henry H. Kennedy, Jr.
UNITED STATES DISTRICT JUDGE
Nina B. Hale
United States Department of Justice
325 Seventh Street, NW, Suite 500
Washington, D.C. 20530
Telephone: (202) 307-0892
Facsimile: (202) 307-2784
Counsel for Plaintiff
Thomas G. Slater, Jr.
Hunton & Williams
951 East Byrd Street
Richmond, Virginia 23219-4074
Telephone: (804) 788-8475
Facsimile: (804) 788-8218
Counsel for Defendant