JURY

CONFIDENTIALITY ORDER 

IT IS HEREBY ORDERED: 

1. This Confidentiality Order ("Confidentiality Order") shall govern the use and dissemination of all information or material designated as Confidential or Highly Confidential produced in this action after the date of this Order. For production after the date of this Order, this Order supersedes and replaces the Confidentiality Order entered in this action on November 14, 1996. 

2. The term "document" or "documents" shall have the same meaning as "writings and recordings" as defined in Fed. R. Evid. 1001(1). 

3. "Trade Secrets" are defined for purposes of this Order as documents or information not in the public domain, or otherwise publicly available, that constitute information so proprietary and competitively sensitive that its disclosure to a competitor would cause competitive injury to the disclosing party. 

4. Given the State of Texas? legitimate interest in the health and safety of its citizens and residents however, notwithstanding any other provision in this Order, Defendants shall not designate portions of any documents or other information identifying any ingredient of cigarettes or other tobacco products produced by Defendants which are either (a) reasonably known to be, reasonably believed to be, or reasonably suspected to be harmful to animals or humans or (b) suggested to be harmful to animals or humans in documents or other information generated by a Defendant. Likewise, no portion of any document or other information pertaining to the health effects of nicotine, nicotine analogs or smoke constituents shall be designated or considered Confidential or Highly Confidential. In the event a document contains both (1) information designated Confidential or Highly Confidential under this Order and (2) information not entitled to confidentiality, the dissemination of only that information entitled to confidentiality pursuant to this Order is restricted. 

Confidential Information 

5. Any party to this action or other person who produces or supplies information, documents or other tangible items for use in this action in the course of discovery (hereinafter the "Designating Party" or the "Producing Party") may designate as "Confidential" documents or information generated by it that it reasonably and in good faith believes constitutes or contains true Trade Secrets, personnel information afforded confidentiality by the laws of foreign countries, information about employees that violates their personal privacy rights, and information about lobbying activities that may have protection under the 1^st Amendment of the Constitution of the United States. However, documents that have been or are hereafter, produced in other litigation that either (a) are not designated as confidential in that litigation or (b) are not otherwise subject to restrictions on use or disclosure in that litigation shall not be designated or considered Confidential in this action. Likewise, documents that are publicly available or in the public domain shall not be designated or considered Confidential information. 

6. Documents, information and other tangible items, if Confidential, shall be so marked: "CONFIDENTIAL ? SUBJECT TO CONFIDENTIALITY ORDER IN CIVIL ACTION NO. 5:96CV91, U.S.D.C., EASTERN DISTRICT OF TEXAS - TEXARKANA DIVISION." 

7. Confidential information shall not be disclosed other than as expressly authorized in this Confidentiality Order and may be disclosed only to: 

a. This Court and its personnel. 

b. Other courts in which cases involving issues similar to those in this case. 

c. A deponent, but only during the course of a deposition, unless otherwise provided in this Order. 

d. Counsel of record in this litigation (public and private) and their staffs. 

e. Any consultant, investigator or expert (collectively, "Consultant") who is assisting in the preparation and trial of this litigation, but only to the extent counsel in good faith believes reasonably necessary to enable the Consultant to render assistance. 

f. Counsel of record (and staffs) in any other lawsuit involving issues similar to those in this case; provided that prior to disclosure, each attorney or staff member shall execute the Confidentiality Agreement attached hereto as Exhibit A ("Confidentiality Agreement A"). These attorneys and staff shall not further disclose Confidential information in another lawsuit except as provided herein or as allowed by further order of this Court. An order to that effect will issue if a confidentiality order providing adequate protection of Confidential information is entered in the other litigation. 

g. A court reporter, after he has executed Confidentiality Agreement A. 

h. Witnesses, potential witnesses, and persons who have had previous access to the Confidential material, provided that prior to disclosure, he executes Confidentiality Agreement A. 

i. Any governmental or law enforcement agency conducting official business, including but not limited to the Department of Justice, Federal Bureau of Investigation, Center for Disease Control, Food and Drug Administration, Federal Trade Commission, state attorneys general, and counsel for units of local government. 

8. If a party wishes to disclose information designated Confidential pursuant to this Order to any person not described in paragraph 7, permission to disclose must be requested in writing from the Designating Party. If the Designating Party objects to the proposed disclosure in writing and files an appropriated motion with the Court within 5 days of being notified of the anticipated disclosure, no further disclosure may be made until the Court rules on the motion. 

9. Any person to whom Confidential information may be disclosed pursuant to Paragraphs 7 and 8, except this Court, its personnel, counsel of record and their staff, shall first be shown and read a copy of this Confidentiality Order and agree in writing to be bound by its terms by signing a copy of Confidentiality Agreement A. Counsel for the party obtaining the person's signature on the Confidentiality Agreement will retain the original signed agreement. 

10. Where any Confidential information is included in any papers filed with the Court, this information shall be marked "CONFIDENTIAL ? PROTECTIVE ORDER" and placed in a sealed envelope marked with the caption of the case and held under seal in accordance with the local rules and practices of this Court for sealed pleadings and documents. 

Highly Confidential Information 

5. Any party to this action or other person who produces or supplies information, documents or other tangible items for use in this action in the course of discovery ("Designating Party" or "Producing Party") may designate as "Highly Confidential," only (a) information it has generated that has current applicability and (b) which concerns product formulas, specifications, recipes, manufacturing processes, new product or technological developments, and business and marketing plans and methods, which it reasonably and in good faith believes is so proprietary and competitively sensitive that its disclosure to competitors or the public at large would cause irreparable competitive injury. Notwithstanding any other provision, however, documents and information that have been or are hereafter produced in other litigation which are not entitled to confidentiality in that litigation, or that are not otherwise subject to restrictions on use or disclosure in that litigation, shall not be designated or considered Highly Confidential in this action. Likewise, documents that are publicly available or in the public domain shall not be designated or considered Highly Confidential information. 

6. The designation of information, if Highly Confidential, shall be made by marking the document or material: "HIGHLY CONFIDENTIAL ? SUBJECT TO CONFIDENTIALITY ORDER IN CIVIL ACTION NO. 5:96CV91, U.S.D.C., EASTERN DISTRICT OF TEXAS - TEXARKANA DIVISION." 

7. Only portions of depositions that contain Highly Confidential information may be designated Highly Confidential by counsel for the Designating Party by written page and line number designation served on Administrative Liaison Counsel for the opposing party within 10 days after receiving the transcript of the deposition. 

11. Highly Confidential Information shall not be disclosed other than as expressly authorized in this Confidentiality Order and may be disclosed only as follows: 

a. This Court and its personnel. 

b. Other courts in which cases involving issues similar to those in this case. 

c. Three attorneys associated with each private law firm of record representing the party seeking discovery and four attorneys from the Attorney General's Office ("Designated Attorneys"). 

d. The attorney general and one private attorney representing a party to any other lawsuit involving issues similar to those in this case. Prior to disclosure to persons under Paragraph 14(d), each attorney shall execute, file with this Court, and serve on Administrative Liaison Counsel the Confidentiality Agreement A. These attorneys shall not further disclose Highly Confidential information in another lawsuit except as provided herein or as allowed by further order of this Court. An order to that effect will issue if a confidentiality order providing adequate protection of Highly Confidential information is entered in the other litigation. 

e. Any governmental or law enforcement agency conducting official business, including but not limited to the Department of Justice, Federal Bureau of Investigation, Center for Disease Control, Food and Drug Administration, Federal Trade Commission, state attorneys general, and counsel for units of local government. 

f. Paragraph 10 of this Order shall apply to any disclosure to the Court of Highly Confidential information, but the cover page of the filed document shall be marked: "HIGHLY CONFIDENTIAL INFORMATION ? DISSEMINATION RESTRICTED BY COURT ORDER." Other than Designated Attorneys (defined herein), Designated Co-Counsel (defined in paragraph 14(h)), and counsel for the Designating Party, counsel shall not be served with copies of court filings of Highly Confidential Information, but instead shall have access solely in accordance with paragraph 14. 

g. Highly Confidential information shall be produced directly to the custody of one of the private Designated Attorneys. Highly Confidential information shall be maintained in a locked filing cabinet within a locked and otherwise reasonably secure room at the Designated Attorney's law offices. Highly Confidential information shall not be removed from the secure room for review except where reasonable security measures are taken to prevent unauthorized disclosure. Access to the secure room shall be restricted to Designated Attorneys and their staff (to the extent necessary to process the information) and Consultants authorized, in accordance with paragraph 14(i) to have access to Highly Confidential information. 

h. Outside counsel for co-defendants of a Designating Party shall have access to Highly Confidential information only after it has been designated for use as a deposition exhibit or submitted to the Court as an exhibit. Such access shall be limited to three attorneys from each firm of record representing the co-defendant ("Designated Co-Counsel"). Designated Co-Counsel must execute Confidentiality Agreement A and shall maintain Highly Confidential information as described in paragraph 14. Absent further order of the Court, Designated Co-Counsel shall not further disclose Highly Confidential information. 

i. Disclosure of Highly Confidential information may be made to Consultants who are actively assisting in the preparation and trial of this action. Prior to disclosing any Highly Confidential information to any Consultant: 

(1) Counsel for the party contemplating such disclosure shall determine that (i) disclosure to a Consultant of particular Highly Confidential information is, in that counsel's good faith judgment, reasonably necessary to that party's prosecution of the case, (ii) the Consultant is not, and is not believed to intend to become, affiliated with or employed by any entity that is or intends to be in the cigarette or tobacco business or in the business of supplying ingredients or machinery used in the manufacture of cigarettes or other tobacco products, and (iii) counsel has no knowledge that the Consultant has previously violated any confidentiality agreement or order. 

(2) Prior to disclosure, each Consultant must execute the Confidentiality Agreement annexed hereto as Exhibit B ("Confidentiality Agreement B"). 

15. Without further order of the Court, a party may use Highly Confidential information in deposing (a) individuals who are or were eligible to have access to the Highly Confidential information by virtue of their employment with the Designating Party, or (b) a Consultant (who has executed Confidentiality Agreement B and meets the conditions of Paragraph 14(i)). In these circumstances, at least 5 days before the deposition, counsel noticing the deposition shall notify counsel for the Designating Party of the fact that Highly Confidential information may be used at deposition. The identifying information shall not include the substance of the Highly Confidential information. The Designated Attorneys may personally remove the document or material from the secure room to a nearby copying station and make one copy of the Highly Confidential Information for transport to the location of the deposition. The original must be returned to and kept in the secure room and the copy must either be destroyed after the conclusion of the deposition or, if it is made a deposition exhibit, it shall be placed in a sealed envelope, marked in accordance with Paragraph 14(f). 

16. No one may attend the portions of a deposition or review the transcripts of the portions of any deposition during which Highly Confidential information is shown or discussed, other than those identified in Paragraph 14, counsel for the Designating Party, Designated Co-Counsel, the deponent and counsel for the deponent (provided deponent and deponent's counsel have previously executed the Confidentiality Agreement A). 

17. If a Designating Party wishes to designate portions of depositions as Highly Confidential, it must advise the court reporter at the conclusion of the deposition that Highly Confidential information was disclosed during the deposition and, within 10 days of receiving the deposition transcript, shall advise the court reporter in writing of the pages and lines in which Highly Confidential information allegedly appears. The portions of any deposition transcript so designated and any Highly Confidential documents that are marked as exhibits, shall be treated as Highly Confidential unless the Court orders otherwise. Transcript pages and exhibits containing Highly Confidential information shall be distributed only to those identified in Paragraph 14. Pending designation of the portions of depositions as provided in this paragraph, the entire deposition shall be treated as Highly Confidential and no portion of the deposition shall be disclosed to third parties. 

18. Any presentation of Highly Confidential information to the Court prior to trial shall be made in the presence of only the presiding officer, an authorized court reporter (who, unless the reporter is an employee of the U. S. government, shall have executed Confidentiality Agreement A), Designated Attorneys, counsel and/or other representatives of the Designating Party, and Designated Co-counsel, or as the Court may otherwise order. 

General Provisions 

19. Except to the extent authorized in this Confidentiality Order, neither Confidential nor Highly Confidential information shall be used or disclosed for any purpose other than the preparation and trial and appeal of this case. 

20. Any summary, compilation, copy, electronic image or database containing Confidential or Highly Confidential information shall be subject to the terms of this Confidentiality Order to the same extent as the material or information from which such summary, compilation, copy, electronic image or database is made or derived. 

21. This Confidentiality Order precludes a party from objecting to the disclosure of trade secrets, Confidential and Highly Confidential information as defined in this Order, on the bases that the documents or information contain (a) Trade Secrets (b) confidential research, development, or commercial information, (c) personnel information afforded confidentiality by the laws of foreign countries, (d) information about employees that allegedly violates their personal privacy rights, and (e) information about lobbying activities that allegedly has protection under the 1^st Amendment of the Constitution of the United States, since this Order reasonably and adequately protects the parties? confidentiality rights. 

22. Any party may, at any time after production of material designated under this Confidentiality Order, object to its designation by notifying the Designating Party in writing of that objection and specifying the designated material to which the objection is made. The parties shall, within ten (10) days of service of the written objections, confer concerning the objection. If the objection is not resolved, the party designating the material shall, within five (5) days of the conference, file and serve a noticed motion to resolve the dispute over the designation of the material and shall bear the burden of proof on the issue. If no motion is filed within the stated time period, the material will cease to be subject to the protection of this Confidentiality Order. If a motion is filed, information subject to dispute shall, until further order of the Court, be treated consistently with its designation. The Designating Party shall, at its expense, provide additional, unmarked copies of any material which ceases to be subject to the protection of this Confidentiality Order to each party which so requests. 

18. Inadvertent failure to designate any information pursuant to this Confidentiality Order or to assert a claim of privilege shall not constitute a waiver of any otherwise valid claim for protection, so long as the claim is asserted in writing within 5 days of the discovery of the failure. At that time, arrangements may be made for the Designating Party to substitute properly labeled copies. If the Court finds a party inadvertently produced privileged documents, the documents shall be returned forthwith to the party that produced the document or handled as the Court otherwise orders. 

19. Nothing in this Confidentiality Order shall be deemed to restrict a Designating Party from using its own documents and materials in the usual and ordinary course of its business. However, if a party discloses (or has disclosed in the past) information that may have constituted Confidential or Highly Confidential information, to another party or person without confidentiality guarantees providing greater or equal protection to those provided in this Order, that party shall not designate that information or those documents and shall they not be considered Confidential or Highly Confidential in this action. 

20. Unless otherwise ordered by this Court, material designated as Confidential or Highly Confidential information shall be treated as "non-public information" for purposes of the Texas Open Records Act and/or the Texas Public Information Act only. 

21. This Confidentiality Order is not intended to govern the use of Confidential or Highly Confidential information at any trial of this action. Questions of the protection of Confidential and Highly Confidential information during trial will be presented to the Court prior to, or during, trial as a party deems appropriate or as ordered by the Court. 

22. This Court shall have continuing jurisdiction to modify, amend, enforce, interpret or rescind this Confidentiality Order notwithstanding the termination of this action. 

23. After conclusion of this action, the disposition of all documents and materials designated as Confidential or Highly Confidential pursuant to this Order (other than exhibits to the official court record) shall be presented to the Court for determination. 

Signed this _______ day of ____________________, 1997. 

Hon. David Folsom 

United States District Judge 

EXHIBIT A 

JURY


CONFIDENTIALITY AGREEMENT A 

STATE OF ) 

) ss. 

COUNTY OF ______) 

I, ________________, being duly sworn on oath, state the following: 

1. I have read and understand the Confidentiality Order to which this Exhibit A is annexed and I attest to my understanding that access to information designated Confidential or Highly Confidential may be provided to me and that such access is pursuant to the terms and conditions and restrictions of the Confidentiality Order; I agree to be bound by the terms of the Confidentiality Order with respect to the Court's powers of supervision of the litigation. 

2. I shall not use or disclose to others, except in accordance with the Confidentiality Order, any Confidential or Highly Confidential information as defined in the Order. 

Dated: 

Signature 

Printed Name 

Address 

Individual or Entity Represented 

Subscribed and sworn to 

before me this _____ day of 

_______________ 199__. Witness 

my hand and official seal. 

Notary Public 

EXHIBIT B 



UNITED STATES DISTRICT COURT

JURY


CONFIDENTIALITY AGREEMENT B 

STATE OF ) 

) ss. 

COUNTY OF ) 

I, _________________, being first duly sworn on oath, state the following: 

1. I have been retained by _________________ [party] to serve as an Expert in this action. I have read and understand the Confidentiality Order to which this Exhibit B is annexed and I attest to my understanding that access to information designated Confidential or Highly Confidential may be provided to me and that such access is pursuant to the terms and conditions and restrictions of the Confidentiality Order. I agree to be bound by the terms of the Confidentiality Order. 

2. I am not currently, and agree that, as a means of further protecting Highly Confidential information, I shall not be an officer, director, employee, or agent (other than outside Counsel) of any Competitor of the Designating Party for a period of two years after I am last given access to any Highly Confidential information. I understand that if I do wish to take a position that would otherwise be barred by virtue of this provision, I shall consult with the Designating Party in an effort to reach agreement about whether my intended activity with or for a Competitor can be structured in such a way, or the Designating Party can otherwise be reasonably satisfied, that there is not a material risk of unauthorized use or disclosure of Highly Confidential information. 

3. I shall not use, nor shall I disclose to others, except in accordance with the Confidentiality Order, any Confidential or Highly Confidential information. 

Dated: 

Signature 

Printed Name 

Address 

Subscribed and sworn to 

before me this _____ day of 

_____________ 199__. Witness 

my hand and official seal. 

Notary Public 

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