VICKI STACKS , § as next friend of § IN THE DISTRICT COURT OF SHANNON MOORE, a minor, § JOHNSON COUNTY, TEXAS § l8TH JUDICIAL DISTRICT Plaintiff, § § vs. § Civil Action No. 262-94 § PHILIP MORRIS COMPANIES, INC., § PHILIP MORRIS INCORPORATED, § PHILIP MORRIS U.S.A., and § SHELLY MOORE, § § Defendants. § STIPULATED PROTECTIVE ORDER INTRODUCTORY PROVISIONS On this day, the Court considered the request of Defendant Philip Morris Incorporated for the entry of a protective order. The Court, having considered the request, having considered all appropriate matters of record, and having been advised that the parties to this action are in agreement to the entry of this order, is of the opinion that good cause exists for the entry of this order and that the interest of justice requires that this order be entered. Accordingly, it is hereby FOUND AND ORDERED as follows: 1. Plaintiff, her counsel, defendant Shelly Moore, her counsel and their employees shall be and are hereby prohibited and enjoined from disclosing to or otherwise discussing with any person any "Confidential Information" (as herein defined), except as provided hereafter. 2. All "Confidential Information" perused or exchanged in the course of this civil action or any appeal arising therefrom (the "litigation") shall be used solely for the purpose of this case or any other case against Philip Morris alleging injury or property damage resulting from a fire allegedly caused by a cigarette manufactured by Philip Morris. 3. AConfidential Information" as used herein shall be information designated by Philip Morris which Philip Morris believes is confidential, financial, proprietary, or commercially sensitive information and/or trade secrets whether it be a document, information contained in a document, information revealed during a deposition or in any interrogatory answer or otherwise disclosed in the discovery. 4. Documents containing "Confidential Information" shall be designated as confidential by placing the word "CONFIDENTIAL" or the following label (or a substantial equivalent) on the document: CONFIDENTIAL Pages/Paragraphs/Lines _______through______ of this Document are Subject to a Court Order and this Document and its Contents Shall not be Used, Shown or Distributed Except as Provided in the Court's Order. 5. Information shall be designated as "Confidential Information" only upon the good faith belief that the information falls within the category of information that requires adequate protection, limited distribution or restricted disclosure under the Texas Rules of Civil Procedure in that it is confidential or trade secret information. In the event that any party objects to the classification of any particular document or information as "Confidential Information" it may so notify counsel for the producing party in writing, setting forth the reasons supporting such objections. Such counsel shall respond in writing to any such notification within 30 days of its receipt, or such longer period as may be agreed to by counsel for such parties, by either (1) withdrawing such classification with respect to such information, or (2) stating that it refuses to do so. In the event that Philip Morris refuses to withdraw the classification, Philip Morris shall apply to the court for an order upholding the classification of the particular information in question and shall have the burden of proof to show that such classification was proper. PROVISIONS REGARDING "CONFIDENTIAL INFORMATION" 6. The plaintiff, her counsel, defendant Shelly Moore, her counsel and their employees, and any other person or entity who gains possession of any documents or information subject to this Protective Order agree that any such documents or information shall not be regarded as "court records@ for the purposes of Rule 76a of the Texas Rules of Civil Procedure. 7. No documents or information designated as "Confidential Information" may be disclosed to any person, except as follows: Documents and information so designated may be disclosed to the parties, and to partners, associates, secretaries, paralegal assistants and employees of Waltman & Associates, Maclean & Boulware, and St. Clair & Markey to the extent reasonably necessary to render professional services in the litigation; and to court officials involved in this litigation (including court reporters, persons operating video recording equipment at depositions, and any special master appointed by the Court). Such documents may also be disclosed: a. To the legal counsel of any other plaintiff who, at the time of such disclosure, has a suit filed and served against Philip Morris alleging injury or property damage resulting from a fire allegedly caused by a cigarette manufactured by Philip Morris; b. To any person designated by the Court in the interest of justice, upon such terms as the Court may deem proper; c. To consultants retained for the purpose of assisting counsel in the litigation; d. To employees of plaintiff's counsel involved solely in one or more aspects of organizing, filing, coding, converting, storing, or retrieving data or designing programs for handling data connected with these actions, including the performance of such duties in relation to a computerized litigation support system; and e. To employees of third-party contractors performing one or more of these functions. 8. Before any "Confidential Information" is provided to any of the classes of persons set out in this Order, the individual to whom disclosure is to be made must attest to the following in writing: I hereby attest to my understanding that information or documents designated "Confidential Information" will be provided to me pursuant to the terms, conditions and restrictions of the Protective Order of ____________, 1995, in the case of Shipman v. Philip Morris, et al., pending in the l8th Judicial District Court, Johnson County, Texas, Civil Action No. 262-94; that I have been given a copy of and have read the Protective Order and have had its meaning and effect explained to me by the attorneys providing me with such information or documents, and that I hereby agree to be bound by it and its terms. I further agree that I shall not dislose to others, except in accordance with the Protective Order, such information or documents, and that such information or documents shall be used solely for the purposes of a case against Philip Morris alleging injury or property damage resulting from a fire allegedly caused by a cigarette manufactured by Philip Morris. I further agree and attest to my understanding that my obligation to honor the confidentiality of such information or documents will continue even after the termination of that legal proceeding. I further agree and attest to my understanding that, in the-event that I fail to abide by the terms of the Protective Order, I may be subject to sanctions, including sanctions by way of contempt of court, imposed by the Court, for such failure. I further agree to the exercise of personal jurisdiction by this Court. Copies of each attestation shall be served upon all counsel within 30 days after the final adjudication or settlement of all claims in this case. 9. Plaintiff agrees that she will pay for the expense of copying any documents or information that are produced under this Protective Order at a rate to be agreed upon at the time of the copying of the documents or information. At the conclusion of this litigation, Philip Morris has the option of requiring plaintiff to return all documents in her and/or her counsel's possession that have been produced under this Protective Order. If Philip Morris exercises its option for the return of such documents, Philip Morris shall refund the money paid by plaintiff for the initial copying of such documents. If Philip Morris does not exercise its option for the return of such documents, Plaintiff's counsel may retain the copies paid for by plaintiff, in which event no reimbursement by Philip Morris shall be required. 10. Subject to paragraph 9 above, any persons receiving access to "Confidential Information" pursuant to this Protective Order shall agree: a. To use such "Confidential Information" solely for the purposes of this case or any other case against Philip Morris alleging injury or property damage resulting from a fire allegedly caused by a cigarette manufactured by Philip Morris; b. At the conclusion of this case, to return all documents containing or referring to "Confidential Information" to Philip Morris' counsel (except in the case of persons described in Paragraph 7(a) who shall not be required to return such documents until the conclusion of that person=s pending suit); and c. To take all precautions necessary to prohicit all access to AConfidential Information" other than as provided for herein. Without limiting the generality of the foregoing, no copies of any documents containing or referring to "Confidential Information" shall be made by anyone other than counsel for a party herein, or a support person for such counsel. All copies of documents containing or referring to "Confidential Information" shall retain the identifying number placed on the originally produced document by Philip Morris. Counsel providing such documents to anyone under this order must retain lists of the documents so provided. Lists of such documents shall be provided to counsel for Philip Morris within 30 days after the final adjudication or settlement of all claims in this case. 11. Except in the case of a deponent who has been designated as a testifying expert in this suit or a deponent who is a current or former employee of Philip Morris, in the event any party desires to show to a deponent documents or information designated as "Confidential Information", the party shall first present the document or information to opposing counsel. If an objection is made to the exhibition of the document or information to the deponent, the document or information shall not be shown to the deponent. Within 30 days from the date the objection is made, the objecting party shall file a motion with the court and shall promptly seek a ruling from the court concerning the propriety of the objection. The burden will be on the objecting" party to show that such disclosure should not be made. If the objection is sustained, the costs of seeking the ruling (including reasonable attorney's fees incurred in seeking the ruling) shall be paid by the party who opposed the objection; if the objection is not sustained by the court, the party making the objection shall pay the costs incurred by the prevailing party in opposing the objection, including reasonable attorney's fees. 12. Philip Morris may, within 30 days after receiving a deposition, designate pages of the transcript (and exhibits thereto) as containing "Confidential Information." "Confidential Information" within deposition transcripts may be designated by underlining the portions of the pages that are confidential, by marking such pages with the following legend: "Confidential - Subject to protection pursuant to court order," and by serving a copy of those designations on plaintiff's counsel. Until expiration of the 30 day period, the entire deposition will be treated as subject to protection against disclosure under this Order. If no party or deponent timely designates "Confidential Information" in a deposition, then none of the transcripts or its exhibits will be treated as confidential. If a timely designation is made, the confidential portions and exhibits shall be handled in accordance with the provisions of this Order. 13. No summary or copy of any designated "Confidential Information" or documents shall be made by any person, other than at the express direction of the attorney to whom disclosure was first made. Any such summary or copy shall be destroyed at the conclusion of this case and plaintiff's counsel shall certify by affidavit that all such summaries or copies have been destroyed. Any such summary or copy shall be subject to the terms of this Protective Order to the same extent as the information or document from which such summary or copy is made. 14. In the event that any such "Confidential Information" is to be presented to the court in any proceeding other than as evidence introduced at trial or in a hearing, the presenting party shall present the "Confidential Information" for in camera inspection and shall not file the AConfidential Information" among the court's records. In the event that any such "Confidential Information" is in any way disclosed by any pleading, motion or other paper filed with the court, such materials shall be kept confidential and subject to this order until further order of the court. 15. This Order is limited to the pretrial phase of this litigation except that the obligations imposed by paragraphs 6, 7, 8, 9, 10, 13, 21 and 22 of this Order are continuing and shall remain in force throughout the trial and following disposition of this lawsuit. This Order shall not, however, restrict dissemination of any information if gained from a source other than documents or information produced by Philip Morris in discovery. Nor shall this Order restrict dissemination of nonconfidential information produced by Philip Morris in discovery." 16. Notwithstanding any other provision of this Order, the admissibility into evidence of "Confidential Information" and the conditions, if any, under which "Confidential Information" is admitted into evidence in any hearing or trial shall be determined at the time such evidence is offered. The entry of this Order shall not cause or create a waiver by any party of any position or argument with regard to such issues. GENERAL PROVISIONS 17. The existence of this Order, the contents of this Order or the disclosure of "Confidential Information" pursuant to this Order shall under no circumstances be deemed to be an admission by Philip Morris of the relevancy or the admissibility of the "Confidential Information" disclosed hereunder. 18. Nothing contained in this Order shall be deemed to preclude any party from seeking or obtaining additional protection, for good cause shown, with respect to any "Confidential Information," or from seeking any modification of this Order. 19. The parties have agreed, and the Court finds, that the production of "Confidential Information" pursuant to the terms of this Order does not constitute a waiver of any privilege, exemption from discovery, rule of evidence concerning admissibility or other rule of law that might preclude the discovery or admissibility in evidence of such "Confidential Information." By way of example, and not by way of limitation, Philip Morris may produce material which would be considered "trade secrets" and privileged from disclosure under Rule 507 of the Texas Rules of Civil Evidence. The party to whom such materials are produced agrees to accept that material subject to the "trade secret" privilege and agrees that the privilege shall continue to apply to such materials notwithstanding the disclosure of the information to the receiving party. In the event any party seeks relief from this Court that such information should not be subject to the terms and conditions of this Order, then Philip Morris shall be entitled to assert any and all privileges, exemptions from discovery, rules of evidence concerning admissibility or other rules of law that might preclude the discovery or admissibility in evidence of such information and such assertions shall be fully considered as though the production of such information had not occurred. 20. Counsel for each of the parties to the stipulation shall retain an executed original. 21. Inadvertent disclosure of any document or other information during discovery in this action shall be without prejudice to any claims that such material is confidential, privileged or otherwise protected from discovery within the meaning of Rule 166b of the Texas Rules of Civil Procedure and no party shall be held to have waived any rights by such inadvertent disclosure. Any documents or information so produced and which is subject to a subsequent claim of privilege, work product or other protection, shall be returned immediately to the appropriate party and such document or information shall not be introduced into evidence in this or any other proceeding by any person without (1) the consent of said party or (2) by order of the Court; nor will such document or information be subject to production (other than in camera) in any proceeding by virtue of the fact that it was inadvertently produced in this proceeding. The burden shall be on Philip Morris to seek and obtain an order from the court concerning the discoverability or admissibility of the document or information. 22. Within 90 days after the final adjudication or settlement of all claims in this case, counsel for the plaintiff either shall, in accordance with paragraphs 8 and 9 above, return all documents produced, including all copies, if so requested by the producing party. All information and notes derived from them also shall be destroyed. Compliance with this provision shall be certified by counsel for the plaintiff. 23. Nothing herein shall be deemed to restrict in any manner the use by any party of its own documents or materials. 24. This Order shall be binding upon any future party to this litigation. SIGNED this 18 day of May, 1995. Kit Cooke ________________ JUDGE PRESIDING AGREED: SHANNA SHIPMAN By Lynn Grisham Lynn A. Grisham State Bar #08505500 WALTMAN & ASSOCIATES 3833 South Texas Avenue, Suite 150 Bryan, Texas 77802 Telephone: 409/846-2040 Telecopy: 409/846-7914 PHILIP MORRIS INCORPORATED By Micheal Braden Michael Braden State Bar #02815700 CARRINGTON, COLEMAN, SLOMAN & BLUMENTHAL, L.L.P. 200 Crescent Court, Suite 1500 Dallas, Texas 75201 Telephone: 214/855-3007 Telecopy: 214/855-1333 SHOOK, HARDY & BACON 1200 Main Street Kansas City, Missouri 64105-2118 SHELLY MOORE By Shelly Moore Edward G. Markey State Bar #12986900 ST. CLAIR & MARKEY 1200 Summit Avenue, Suite 620 Fort Worth, Texas 76102-4409 Telephone: 817/445-6985 (metro) Telecopy: 817/332-7011