30-2011-00478320

Motion by Plaintiff for Order Compelling Defendant Caterpillar, Inc.’s Compliance with the 2/10/12 Stipulated Protective Order:

The motion is granted in its entirety

Paragraph 14 of the stipulated protective order clearly states that the confidential stamp shall not obstruct any material language or content and that Caterpillar will re-stamp and reproduce any documents, at the request of any party who “feels” the confidential stamp is obstructing relevant information. (Anderson Decl., Ex. 1.)

Although Caterpillar argues it has produced most of the documents without the confidential designation, Plaintiff’s counsel emphatically declares that this has not yet occurred. (Anderson Decl. ISO Reply, ¶ 3.) Indeed, counsel for Caterpillar does not actually declare the documents have been produced. He declares, “[a]s of the time of the hearing on the Motion, Caterpillar has produced” the documents without designation. (See Groseclose Decl., ¶ 11 [emphasis added].) Because the hearing on the motion had not yet occurred when counsel’s declaration was filed, it is unclear whether counsel is stating the documents will be produced by the hearing date or whether they have already been produced.

As for Caterpillar’s contention that the confidential watermark does not obstruct the text of the documents, the example offered by Caterpillar in Ex. A to the Groseclose Declaration actually shows that some of the text is obstructed. It may be that the watermark on the electronic version of the documents does not obstruct the text, but as a practical matter, the printed versions of the documents are used, e.g. in depositions and court-filed motions such as this one, with the watermark obstructing the text.

Caterpillar is ordered to produce the following documents, with any “Confidential” legend placed thereon such that it is not obstructing any text, within 15 days of notice of this order.

CAT000861 – CAT000868

CAT000986 – CAT000997

CAT001000 – CAT001002

CAT001024 – CAT001031

CAT001044 – CAT001046

CAT001068 – CAT001167

CAT001168 – CAT001263

CAT001344 – CAT001405

The court issues sanctions of $3,622.50 against Caterpillar, Inc. and its counsel of record for failing to reasonably cooperate and make discovery, payable within 30 days of notice of this order.

Plaintiff is to serve notice of this order.