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. : : : : : : : Chapter 11 Case No. 05-55927 (Jointly Administered) Honorable Steven W. Rhodes
AGREED PROTECTIVE ORDER REGARDING CONFIDENTIAL INFORMATION PROVIDED BY WL ROSS & CO. LLC PURSUANT TO THE ORDER REQUIRING RULE 2004 EXAMINATION AND PRODUCTION OF DOCUMENTS Pursuant to Rule 26 of the Federal Rules of Civil Procedure, which are incorporated in this proceeding by Rules 9014 and 7026 of the Federal Rules of Bankruptcy Procedure (the "Bankruptcy Rules"), it is hereby agreed, by and between the parties referenced below (each, a "Party"), the above-captioned debtors and debtors in possession (collectively, the "Debtors"), the Official Committee of Unsecured Creditors in the Debtors' chapter 11 bankruptcy cases (the "Committee"); JPMorgan Chase Bank, N.A., as administrative agent (the “Pre-Petition Agent”) for the pre-petition and post-petition senior secured lenders (the “Pre-Petition Secured Lenders”); and WL Ross & Co. LLC ("Ross") through their respective counsel, as follows: IT IS HEREBY STIPULATED AND ORDERED AS FOLLOWS: 1. Confidential Information. This Agreed Protective Order (the "Agreed Order")
shall apply to and go vern the disclosure, maintenance and retention of Confidential Information (as defined below) supplied by Ross to a Party or the Court in connection with the Court’s Order Requiring Rule 2004 Examination and Production of Documents (the "Rule 2004 Order"). If and when Ross produces Confidential Information, it shall mark or otherwise designate such Confidential Information as "CONFIDENTIAL" information.
For purposes of this Agreed Order, "Confidential Information" means any nonpublic, commercially- sensitive information, including, but not limited to, information related to the business affairs and strategies of Ross, that is disclosed in any manner (whether in written form, orally or through any electronic, facsimile or computer-related communication) to a Party pursuant to the Rule 2004 Order. For purposes of this Agreed Order, Confidential Information also shall include all estimates, analyses, notes, summaries, extracts and other materials and documents prepared by or for a Party or its Representatives based on or derived from, or containing, any Confidential Information. For purposes of this Agreed Order, a "Representative" shall mean, with respect to any person or entity, any of such person's or entity's officers, partners, employees, agents, representatives, consultants, accountants, experts, counsel of record or financial advisors who are acting on such person's or entity's behalf in connection with the Debtors’ chapter 11 bankruptcy case. 2. Inadvertent Failure To Designate or Inadvertent Designation. Any inadvertent
failure to designate Confidential Information as "CONFIDENTIAL" information shall not relieve a Party or its Representatives from their obligations under this Agreed Order or be deemed a waiver of any claim of confidentiality as to such matter. Furthermore, any inadvertent designation of information as "CONFIDENTIAL" shall not cause such information to be deemed Confidential Information if such information does not indeed constitute Confidential Information as provided by this Agreed Order. 3. Permitted Disclosure. a. Any information which is designated as "CONFIDENTIAL" by Ross shall
not be disclosed other than to (i) in- house counsel of record for the Party to whom the information is sent, (ii) other professionals, such as financial advisors or investment bankers,
retained by such Party in connection with the Debtors’ chapter 11 bankruptcy case, provided that such professionals agree to be bound by the terms of this Order, and (iii) the Court and its personnel, under seal, as set forth in Paragraph 5 herein. b. Disclosure of Confidential Information to any person or entity who is not
identified in paragraph 3.a. hereto, may be made by a Party only upon that Party: (i) providing Ross with prior notice and (ii) obtaining a prior Order of the Court or the prior written consent of Ross permitting such disclosure. 4. Counsel of Record. As used in this Agreed Order, the Debtors' counsel of record
refers exclusively to Kirkland & Ellis LLP and Carson Fischer, P.L.C.; the Committee’s counsel of record refers exclusively to Butzel Long and Akin Gump Strauss Hauer & Feld LLP; the PrePetition Agent’s counsel of record refers exclusively to Wachtell, Lipton, Rosen & Katz and Dykema Gossett PLLC; and Ross's counsel of record refers exclusively to Bodman LLP and Jones Day. 5. Filing With Court. In the event any Party files with the Court documents that
contain or reflect Confidential Information, that Party must (a) provide the Court with written notice that Confidential Information is being filed and (b) place any suc h Confidential Information in a sealed envelope or other sealed container, which the Clerk of the Court shall then maintain in an area not accessible to the public. Each such sealed container or envelope shall be endorsed with the title of this proceeding, the words "CONFIDENTIAL-Subject to Protective Order" and a statement containing substantially the following information: This envelope (container) is sealed pursuant to Order of the Court and contains CONFIDENTIAL information filed in the bankruptcy case styled Collins & Aikman Corporation, et al., Case No. 0555927, by [INSERT NAME OF THE PARTY OR PERSON FILING SUCH CONFIDENTIAL INFORMATION] and is not to
be opened or the contents thereof displayed or revealed except by the Order of the Court. Informatio n filed as provided in this paragraph shall not become accessible to the general public except upon written consent of Ross, unless otherwise ordered by this Court. 6. Depositions. If depositions are taken pursuant to the Rule 2004 Order, Ross may
designate any portion of a deposition as "CONFIDENTIAL" by so stating on the record at the time testimony is given. In the absence of such a statement at the time testimony is given, the testimony of the witness shall be considered Confidential Information until the expiration of five (5) days after receipt of the deposition transcript. If counsel of record for a Party believes that any deposition transcript or portions thereof, either designated at the deposition or not theretofore designated, should be designated as "CONFIDENTIAL," such counsel shall so state in writing to counsel of record for the other parties participating in the deposition within the five (5) day period the specific pages and lines constituting such Confidential Information. 7. Preserving Confidentiality. Persons receiving Confidential Information shall take
all necessary and proper steps to preserve the confidentiality of Confidential Information. The provisions of this paragraph shall survive the completion of discovery conducted pursuant to the Rule 2004 Order. 8. No Waiver Of Objections. Nothing contained in this Agreed Order: (a) shall be
construed as a waiver by any party hereto of its right to object to any discovery, or as an agreement by any party to produce documents or supply information; (b) shall constitute an admission that any evidence exists or that evidence which may exist is relevant in any way to the issues; or (c) shall be construed as a waiver of any privilege. No party hereto shall be obligated to challenge the propriety of a "CONFIDENTIAL" designation and the failure to do so shall not preclude a later challenge to the propriety of such designation. Nothing in this Agreed Order, or
any actions taken pursuant to this Agreed Order, shall be deemed to have the effect of an admission or waiver by any party hereto. 9. Maintain Confidentiality. Nothing in this Agreed Order shall act to prevent any
party hereto from using any Confidential Information at any trial or hearing, during depositions or in connection with papers filed with the Court, so long as such party complies with the terms of this Agreed Order. 10. Confirmation of Chapter 11 Plans. After the confirmation of the last chapter 11
plan of reorganization for the Debtors in this case, any Party or person that received Confidential Information and its Representatives shall within 30 days of such confirmation return to Ross's counsel of record or destroy all Confidential Information including all copies thereof, except that the Party that received the Confidential Information and its counsel of record may maintain archive copies of all pleadings, correspondence, depositions, deposition exhibits, trial transcripts, and trial exhibits, together with any attorney work product, provided that the archive copies are appropriately marked as "CONFIDENTIAL" and maintained confidential in accordance with this Agreed Order. 11. Public Knowledge. The restrictions set forth in this Agreed Order shall not apply
to information or material that: a. Order; b. Is acquired by a Party from a third party who is not known to be in Was, is or becomes public knowledge, not in violation of this Agreed
violation of confidentiality obligations owed to another Party; or c. Agreed Order. Was lawfully possessed by a Party prior to entry by the Court of this
Challenge to Confidentiality Designation. If any Party believes that any material
should not be deemed confidential or otherwise designated as "CONFIDENTIAL," its counsel of record shall request in writing to Ross’s counsel of record that such information be redesignated or deemed nonconfidential. If within five (5) days, Ross's counsel of record does not agree to change the designated status of such information, then the objecting Party may, at any time thereafter, move the Court for an order determining the proper status of such information. In the event of such a motion, the objecting Party shall have the burden of establishing that the designated items do not constitute Confidential Information covered by this Agreed Order. The provisions of this Agreed Order shall apply to each item of Confidential Information until otherwise agreed by the producing Party's counsel of record or until the Court orders to the contrary. 13. Other Confidentiality Obligations. Nothing contained in this Agreed Order shall
affect, alter, supersede or amend any separate confidentiality obligations owed by any Party to any other Parties. 14. Inadvertent Disclosure of Privileged Material. In the event that a Party
inadvertently produces to any other Party documents or information that are privileged in whole or in part pursuant to the attorney-client privilege, work product doctrine, or other applicable privilege, the privilege shall not be deemed waived and shall remain effective so long as the producing Party provides the receiving Party with timely written notice of the error. Upon receipt of such notice, all receiving Parties shall return any privileged documents or information to the producing Party, and destroy any copies of the privileged documents. The Parties agree that they may not take the position that the documents or information are not privileged on the
ground that they were inadvertently produced. Any other objections of a Party to the claim of privilege, however, shall be retained. 15. Compulsory Process. If any Party receives a lawful subpoena or other
compulsory process seeking disclosure of Confidential Information, it shall: a. Give prompt notice to counsel of record for Ross and furnish such counsel
with a copy of the subpoena or other compulsory process so as to afford counsel the opportunity to make a motion to quash the subpoena or other compulsory process or to seek a protective order, if necessary; and b. Not produce the Confidential Information if it receives notice that Ross
has timely filed an application to quash the subpoena or other compulsory process, or to otherwise seek a protective order from the Court, unless and until a court of competent jurisdiction or other appropriate authority has ruled on Ross's application. IT IS SO ORDERED.
Entered: January 19, 2006 _ __ _/s/ Steven Rhodes _ _ Steven Rhodes 16. Chief Bankruptcy Judge
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