Main Document Page 1 of 26 UNITED STATES BANKRUPTCY COURT FOR THE NORTHERN DISTRICT OF ALABAMA SOUTHERN DIVISION In re: WALTER ENERGY, INC., et al., 1 Debtors. Chapter 11 Case No. 15-02741-TOM11 Jointly Administered NOTICE OF DEBTORS MOTION FOR ENTRY OF PROTECTIVE ORDER PLEASE TAKE NOTICE that on October 28, 2015, Walter Energy, Inc. and its affiliated debtors and debtors-in-possession (each a Debtor and, collectively, the Debtors ), by and through their undersigned counsel, filed the Debtors Motion for Entry of Protective Order (the Motion ). PLEASE TAKE FURTHER NOTICE that objections or responses to the Motion, if any, must be filed with the United States Bankruptcy Court for the Northern District of Alabama, Southern Division, and served so as to be received by the undersigned counsel on or before November 17, 2015 at 4 p.m. (prevailing Central Time) (the Objection Deadline ). 2 PLEASE TAKE FURTHER NOTICE that a hearing on the Motion will be held on November 24, 2015 at 10:00 a.m. (prevailing Central Time) before the Honorable Tamara O. 1 The Debtors in these cases, along with the last four digits of each Debtor s federal tax identification number, are: Walter Energy, Inc. (9953); Atlantic Development and Capital, LLC (8121); Atlantic Leaseco, LLC (5308); Blue Creek Coal Sales, Inc. (6986); Blue Creek Energy, Inc. (0986); J.W. Walter, Inc. (0648); Jefferson Warrior Railroad Company, Inc. (3200); Jim Walter Homes, LLC (4589); Jim Walter Resources, Inc. (1186); Maple Coal Co., LLC (6791); Sloss-Sheffield Steel & Iron Company (4884); SP Machine, Inc. (9945); Taft Coal Sales & Associates, Inc. (8731); Tuscaloosa Resources, Inc. (4869); V Manufacturing Company (9790); Walter Black Warrior Basin LLC (5973); Walter Coke, Inc. (9791); Walter Energy Holdings, LLC (1596); Walter Exploration & Production LLC (5786); Walter Home Improvement, Inc. (1633); Walter Land Company (7709); Walter Minerals, Inc. (9714); and Walter Natural Gas, LLC (1198). The location of the Debtors corporate headquarters is 3000 Riverchase Galleria, Suite 1700, Birmingham, Alabama 35244-2359. 2 All deadlines and hearing dates set forth in this notice are based upon the Court s Order Pursuant to 11 U.S.C. 102 and 105(a) and Bankruptcy Rules 2002(m) and 9007 Implementing Certain Notice and Case Management Procedures [Docket No. 56].
Main Document Page 2 of 26 Mitchell, at the United States Bankruptcy Court for the Northern District of Alabama, Southern Division, Courtroom #3, Robert S. Vance Federal Building, 1800 Fifth Avenue North, Birmingham, Alabama 35203-2111 (the Bankruptcy Court ). PLEASE TAKE FURTHER NOTICE THAT IF NO OBJECTIONS OR RESPONSES ARE RECEIVED IN ACCORDANCE WITH THE TERMS OF THIS NOTICE, THE BANKRUPTCY COURT MAY GRANT THE RELIEF REQUESTED IN THE MOTION WITHOUT FURTHER NOTICE OR HEARING. [Remainder of Page Intentionally Left Blank] 2
Main Document Page 3 of 26 Dated: October 28, 2015 Birmingham, Alabama BRADLEY ARANT BOULT CUMMINGS LLP By: /s/ Patrick Darby Patrick Darby Jay Bender Cathleen Moore James Bailey One Federal Place 1819 Fifth Avenue North Birmingham, Alabama 35203 Telephone: (205) 521-8000 Email: pdarby@babc.com, jbender@babc.com, ccmoore@babc.com, jbailey@babc.com - and - PAUL, WEISS, RIFKIND, WHARTON & GARRISON LLP Stephen J. Shimshak (pro hac vice) Kelley A. Cornish (pro hac vice) Claudia R. Tobler (pro hac vice) Ann K. Young (pro hac vice) Michael S. Rudnick (pro hac vice) 1285 Avenue of the Americas New York, New York 10019 Telephone: (212) 373-3000 Email: sshimshak@paulweiss.com, kcornish@paulweiss.com, ctobler@paulweiss.com, ayoung@paulweiss.com, mrudnick@paulweiss.com Counsel to the Debtors and Debtors-in-Possession 3
Main Document Page 4 of 26 UNITED STATES BANKRUPTCY COURT FOR THE NORTHERN DISTRICT OF ALABAMA SOUTHERN DIVISION In re: WALTER ENERGY, INC., et al., 1 Debtors. Chapter 11 Case No. 15-02741-TOM11 Jointly Administered DEBTORS MOTION FOR ENTRY OF PROTECTIVE ORDER Walter Energy, Inc. and its affiliated debtors and debtors-in-possession (each a Debtor and, collectively, the Debtors ), pursuant to 11 U.S.C. 107(b) and Fed. Rule Bankr. P. 9018, hereby move for entry of a protective order substantially in the form of Exhibit A hereto (the Proposed Protective Order ) to govern the use and handling of documents, testimony, deposition testimony and transcripts, deposition exhibits, interrogatory responses, admissions, and any other information or material produced in connection with the Chapter 11 Cases. In support of this motion (the Motion ), the Debtors respectfully state as follows: 1 The Debtors in these cases, along with the last four digits of each Debtor s federal tax identification number, are: Walter Energy, Inc. (9953); Atlantic Development and Capital, LLC (8121); Atlantic Leaseco, LLC (5308); Blue Creek Coal Sales, Inc. (6986); Blue Creek Energy, Inc. (0986); J.W. Walter, Inc. (0648); Jefferson Warrior Railroad Company, Inc. (3200); Jim Walter Homes, LLC (4589); Jim Walter Resources, Inc. (1186); Maple Coal Co., LLC (6791); Sloss-Sheffield Steel & Iron Company (4884); SP Machine, Inc. (9945); Taft Coal Sales & Associates, Inc. (8731); Tuscaloosa Resources, Inc. (4869); V Manufacturing Company (9790); Walter Black Warrior Basin LLC (5973); Walter Coke, Inc. (9791); Walter Energy Holdings, LLC (1596); Walter Exploration & Production LLC (5786); Walter Home Improvement, Inc. (1633); Walter Land Company (7709); Walter Minerals, Inc. (9714); and Walter Natural Gas, LLC (1198). The location of the Debtors corporate headquarters is 3000 Riverchase Galleria, Suite 1700, Birmingham, Alabama 35244-2359.
Main Document Page 5 of 26 JURISDICTION 1. This Court has jurisdiction to consider this matter pursuant to 28 U.S.C. 157 and 1334. Venue is proper in this district pursuant to 28 U.S.C. 1408 and 1409. This is a core proceeding under 28 U.S.C. 157(b). 2. The statutory and legal predicates for the relief requested herein are sections 105 and 107(b) of the Bankruptcy Code, and Rule 9018 of the Federal Rules of Bankruptcy Procedure. BACKGROUND 3. On July 15, 2015 (the Petition Date ), the Debtors filed voluntary petitions for relief under chapter 11 of the Bankruptcy Code, thereby commencing the instant cases (the Chapter 11 Cases ). The Debtors continue to manage and operate their businesses as debtors-inpossession under sections 1107 and 1108 of the Bankruptcy Code. 4. On the Petition Date, this Court entered an order consolidating these Chapter 11 Cases for procedural purposes only. 5. The Bankruptcy Administrator for the Northern District of Alabama has appointed two official committees in these Chapter 11 Cases: a statutory committee of unsecured creditors (the UCC ); and a committee of retired employees pursuant to sections 1114(c)(2) and 1114(d) of the Bankruptcy Code (the Section 1114 Committee ). 6. No parties have requested appointment of a trustee or examiner in these Chapter 11 Cases. 2
Main Document Page 6 of 26 RELIEF REQUESTED 7. During the course of the Chapter 11 Cases, the Debtors and other parties-in-interest (collectively with the Debtors, the Discovery Parties, or individually, a Discovery Party ) may engage in discovery in connection with contested matter(s), adversary proceeding(s), or otherwise, which may include, among other things, taking depositions, responding to interrogatories, and producing documents for inspection and copying (the Discovery ). As part of such Discovery, the Discovery Parties may obtain and use documents, testimony, deposition testimony and transcripts, deposition exhibits, interrogatory responses, admissions, and other information produced or provided by a Discovery Party to another party in connection with the Chapter 11 Cases (such information hereinafter referred to as Discovery Materials ). 8. The Discovery Materials may contain information that the Discovery Parties believe to be confidential or highly confidential personal, commercial, financial, business, or private information. 9. By this Motion, the Debtors request that the Court enter the Proposed Protective Order, which sets forth procedures by which a Discovery Party may protect the confidentiality of certain Discovery Materials designated by the Discovery Party to be Confidential or Highly Confidential, as those terms are defined in the Proposed Protective Order. BASIS FOR RELIEF REQUESTED 10. Section 107(b) of the Bankruptcy Code provides that [o]n request of a party in interest, the bankruptcy court shall... (1) protect an entity with respect to a trade secret or confidential research, development, or commercial information. 11. Section 107(b) of the Bankruptcy Code is designed to protect business entities from disclosure of information that could reasonably be expected to cause the entity commercial 3
Main Document Page 7 of 26 injury." In re Global Crossing, Ltd., 295 B.R. 720, 725 (Bankr. S.D.N.Y. 2003). Consequently, courts have recognized that section 107(b) does not require the confidential information to rise to the level of a trade secret, nor is the Trustee required to show good cause to obtain a protective order. See In re Orion Pictures Corp., 21 F.3d 24, 28 (2d Cir. 1994); In re Handy Andy Home Improvement Ctrs., Inc., 199 B.R. 376, 381 (Bankr. N.D. Ill. 1996). Instead, section 107(b) only requires a showing that the confidential information, if disclosed, would cause harm to a party in interest. See In re Sherman-Noyes & Prarie Apartments Real Estate Inv. P ship, 59 B.R. 905, 909 (Bankr. N.D. Ill. 1986); In re Northstar Energy, Inc. 315 B.R. 425, 429 (Bankr. E.D. Tex. 2004) (holding that section 107(b) prevents the disclosure of information that will unfairly benefit that entity s competitors. ) 12. Bankruptcy Rule 9018 provides that [o]n motion or on its own initiative, with or without notice, the court may make any order which justice requires (1) to protect the estate or any entity in respect of a trade secret or other confidential research, development, or commercial information. In addition, section 105(a) of the Bankruptcy Code empowers the Court to issue any order, process, or judgment that is necessary to carry out the provisions of the Bankruptcy Code. 13. Here, entry of the Proposed Protective Order will facilitate the efficient exchange of Discovery Materials by and between the Discovery Parties in connection with the Chapter 11 Cases by implementing procedures by which Discovery Parties can assure the protection of their privileged and confidential Discovery Materials. Without the Proposed Protective Order, the Discovery Parties would be required to seek relief from this Court each and every time they are asked to disclose confidential or highly confidential Discovery Materials. The Proposed Protective Order eliminates this inefficiency from these proceedings. 4
Main Document Page 8 of 26 NOTICE 14. Notice of this Motion will be provided to: (i) counsel to the agent for the Debtors prepetition secured credit facility; (ii) counsel for the indenture trustee for each of the Debtors outstanding bond issuances; (iii) counsel to the Steering Committee of First Lien Creditors; (iv) counsel to the UCC; (v) counsel for the Section 1114 Committee; and (vi) all persons and entities that have filed a request for service of filings in these Chapter 11 Cases pursuant to Bankruptcy Rule 2002. In light of the nature of the relief requested herein, no other or further notice is necessary. CONCLUSION WHEREFORE, the Debtors respectfully request that the Court enter an order, substantially in the form attached hereto as Exhibit A, (i) entering the Proposed Protective Order; and (ii) granting such other and further relief as the Court deems just and proper. [Remainder of Page Intentionally Left Blank] 5
Main Document Page 9 of 26 Dated: October 28, 2015 Birmingham, Alabama BRADLEY ARANT BOULT CUMMINGS LLP By: /s/ Patrick Darby Patrick Darby Jay Bender Cathleen Moore James Bailey One Federal Place 1819 Fifth Avenue North Birmingham, Alabama 35203 Telephone: (205) 521-8000 Email: pdarby@babc.com, jbender@babc.com, ccmoore@babc.com, jbailey@babc.com - and - PAUL, WEISS, RIFKIND, WHARTON & GARRISON LLP Stephen J. Shimshak (pro hac vice) Kelley A. Cornish (pro hac vice) Claudia R. Tobler (pro hac vice) Ann K. Young (pro hac vice) Michael S. Rudnick (pro hac vice) 1285 Avenue of the Americas New York, New York 10019 Telephone: (212) 373-3000 Email: sshimshak@paulweiss.com, kcornish@paulweiss.com, ctobler@paulweiss.com, ayoung@paulweiss.com, mrudnick@paulweiss.com Counsel to the Debtors and Debtors-in-Possession 6
Main Document Page 10 of 26 EXHIBIT A PROPOSED PROTECTIVE ORDER
Main Document Page 11 of 26 UNITED STATES BANKRUPTCY COURT FOR THE NORTHERN DISTRICT OF ALABAMA SOUTHERN DIVISION In re: WALTER ENERGY, INC., et al., 1 Debtors. Chapter 11 Case No. 15-02741-TOM11 Jointly Administered PROTECTIVE ORDER WHEREAS, the above-captioned debtors (the Debtors ) and other parties who may become bound to this Protective Order under Paragraphs 21 or 22 (collectively, with the Debtors, the Discovery Parties, or, individually, a Discovery Party ) may be engaged in discovery in connection with contested matter(s), adversary proceeding(s), or otherwise in connection with the above-captioned bankruptcy case (collectively, the Bankruptcy ), which may include, among other things, taking depositions, responding to interrogatories, and producing documents for inspection and copying; WHEREAS, the Discovery Parties are engaged in proprietary activities that could be jeopardized if non-public financial data, business strategies, product or operational information, or other highly sensitive confidential information or documents were disclosed publicly; 1 The Debtors in these cases, along with the last four digits of each Debtor s federal tax identification number, are: Walter Energy, Inc. (9953); Atlantic Development and Capital, LLC (8121); Atlantic Leaseco, LLC (5308); Blue Creek Coal Sales, Inc. (6986); Blue Creek Energy, Inc. (0986); J.W. Walter, Inc. (0648); Jefferson Warrior Railroad Company, Inc. (3200); Jim Walter Homes, LLC (4589); Jim Walter Resources, Inc. (1186); Maple Coal Co., LLC (6791); Sloss-Sheffield Steel & Iron Company (4884); SP Machine, Inc. (9945); Taft Coal Sales & Associates, Inc. (8731); Tuscaloosa Resources, Inc. (4869); V Manufacturing Company (9790); Walter Black Warrior Basin LLC (5973); Walter Coke, Inc. (9791); Walter Energy Holdings, LLC (1596); Walter Exploration & Production LLC (5786); Walter Home Improvement, Inc. (1633); Walter Land Company (7709); Walter Minerals, Inc. (9714); and Walter Natural Gas, LLC (1198). The location of the Debtors corporate headquarters is 3000 Riverchase Galleria, Suite 1700, Birmingham, Alabama 35244-2359.
Main Document Page 12 of 26 WHEREAS, the scope and breadth of sensitive personal, commercial, financial, business, and private information involved in the Bankruptcy justifies additional precautions to protect against disclosure, and discovery may involve the production of certain information that the Discovery Parties believe to be confidential, highly confidential, or highly sensitive personal, commercial, financial, business, or private information; WHEREAS, good cause exists for entry of this Protective Order (the Protective Order ); IT IS HEREBY ORDERED, that this Protective Order shall govern the use and handling of documents, testimony, deposition testimony and transcripts, deposition exhibits, interrogatory responses, admissions, and any other information or material produced by any Discovery Party to any other party in connection with the Bankruptcy (such information hereinafter collectively referred to as Discovery Material ): 1. Any Discovery Party may designate any Discovery Material already provided by the Discovery Party, or yet to be provided by the Discovery Party, in connection with the Bankruptcy as Confidential under the terms of this Protective Order if the Discovery Party in good faith believes that such Discovery Material contains non-public, confidential, proprietary, commercially sensitive information, or other information the disclosure of which would be detrimental to the Discovery Party or to another party that provided the information to the Discovery Party on a confidential basis (such designated material being Confidential Discovery Material ). The Discovery Party may designate any Discovery Material as Highly Confidential (such designated material being Highly Confidential Discovery Material and collectively with any Confidential Discovery Material, the Protected Material ) under the terms of this Protective Order if the Discovery Party in good faith reasonably believes that such Discovery Material 2
Main Document Page 13 of 26 contains non-public information that is highly personal or extremely commercially sensitive, or that contains highly proprietary information of the Discovery Party or of another party that provided the information to the Discovery Party on a confidential basis (including but not limited to personal financial information and the types of information set forth in Paragraph 7(a) - (i) below). 2. The designation of any Discovery Material as Confidential or Highly Confidential shall constitute a representation that such Discovery Material has been reviewed by an attorney for the Discovery Party and that there is a good faith belief that such designation is valid. 3. Discovery Material, or information derived therefrom, shall be used solely for purposes of the Bankruptcy and shall not be used for any other purpose, including, without limitation, any business or commercial purpose, or any communications with any third-party not involved in the Bankruptcy. 4. The designation of Discovery Material as Confidential or Highly Confidential for purposes of this Protective Order shall be made in the following manner: (a) In the case of documents or other materials (apart from depositions or other pretrial testimony): by affixing the legend Confidential or Highly Confidential to each page containing any Confidential or Highly Confidential Discovery Material; provided that, the failure to designate a document as Confidential or Highly Confidential shall not constitute a waiver of such claim, and the Discovery Party may so designate a document by providing written notice to all other Discovery Parties together with properly designated copies of said document, with the effect that such document is thereafter subject to the protection of this Protective Order as Confidential or Highly Confidential Discovery Material, as the case may be. In the case of Confidential or Highly Confidential multi-page documents bound together by staple or other 3
Main Document Page 14 of 26 permanent binding, the Confidential or Highly Confidential designation need only be stamped on the first page of the document in order for the entire document to be treated as Confidential or Highly Confidential Discovery Material. (b) In the case of depositions or other pretrial testimony: (i) by a statement on the record, by counsel, at the time of such disclosure; or (ii) by written notice, sent by counsel within seven (7) business days after the complete and final transcript of the testimony has been provided to the deponent or counsel for the deponent; and, in either case, by directing the court reporter that the appropriate confidential legend be affixed to the first page and all portions of the original and all copies of the transcript containing any Confidential or Highly Confidential Discovery Material. All depositions and other pretrial testimony shall be treated as Highly Confidential until the expiration of seven (7) business days after the final transcript of the testimony is received, after which time only such portions of the transcript as have been designated as set forth above shall be deemed Confidential or Highly Confidential Discovery Material, as the case may be. The parties may modify this procedure for any particular deposition through agreement on the record at such deposition without further order of the Court. A deponent or counsel for the deponent shall designate the provisions of the deponent s deposition transcript that qualify as Confidential or Highly Confidential Discovery Material by line, and page number; (c) Responses to document requests, interrogatories and requests for admission may be designated Confidential or Highly Confidential Discovery Material by (i) so indicating in the response or (ii) separate written notification of such designation within five (5) business days of service of the response. All responses to document requests, interrogatories, and requests for admission not otherwise designated shall be treated as Confidential until the expiration of five (5) business days after service, after which time only such portions that have been designated as 4
Main Document Page 15 of 26 set forth above shall be deemed Confidential or Highly Confidential Discovery Material, as the case may be; (d) In the case of electronic information, electronic mail, electronically stored documents, electronically stored information or other electronic media: by affixing the legend Confidential or Highly Confidential to the exterior label of the storage media on which such electronic information, data or documents are produced. Documents produced in PDF or TIFF image format on a CD-ROM or other non-paper medium shall be marked in the manner provided in paragraph 4(a) above. 5. Discovery Material designated Confidential may be disclosed, summarized, described, characterized or otherwise communicated or made available in whole or in part only to the following persons: (a) counsel who represent a party and members of their firms, and regular and temporary employees of such counsel (including outside copying services and outside litigation support services) necessary to assist in the conduct of the Bankruptcy, for use in accordance with this Protective Order and for purposes of the Bankruptcy only; (b) experts, consultants, or financial advisors necessary to assist counsel for a party to the extent necessary for such expert, consultant, or financial advisor to prepare a written opinion, to prepare to testify, or to assist counsel in connection with the Bankruptcy; provided that such expert, consultant, or financial advisor is not known to be a current business competitor of, or an owner, employee, independent contractor, consultant, or advisor to any current business competitor of the Debtors, and such expert, consultant or financial advisor signs an undertaking in the form attached as Exhibit A hereto, agreeing in writing to be bound by the terms and conditions of this Protective Order, consenting to the jurisdiction of the Court for purposes of the enforcement 5
Main Document Page 16 of 26 of this Protective Order, and agreeing not to disclose or use any Confidential Discovery Material for purposes other than those permitted hereunder. Such undertaking(s) shall be retained in the files of the counsel for the party who has engaged such expert, consultant, or financial advisor and a copy provided to the Debtors upon request; (c) any person (and their counsel) (other than persons covered by (a) and (e)) indicated on the face of a document to be the author, addressee, or a copy-recipient of the document, or as to whom there has been deposition or trial testimony that the person was the author or a recipient of the document; (d) the directors, officers, members, employees (including, but not limited to, inside counsel) and general or limited partners of a party, or any subsidiary or affiliate thereof, who are assisting a party in the Bankruptcy, or who appear as witnesses or deponents; (e) (f) the Court and its employees, pursuant to this Protective Order; court reporters employed in connection with the Bankruptcy, pursuant to this Protective Order; (g) any other person only upon order of the Court or upon stipulation of the Debtors. 6. Discovery Materials designated Highly Confidential may be disclosed, summarized, described, characterized, or otherwise communicated or made available in whole or in part only to the following persons: (a) counsel who represent a party and members of their firms, and regular and temporary employees of such counsel (including outside copying services and outside litigation support services) necessary to assist in the conduct of the Bankruptcy, for use in accordance with this Protective Order for purposes of the Bankruptcy only; 6
Main Document Page 17 of 26 (b) experts, consultants, or financial advisors necessary to assist counsel for a party to the extent necessary for such expert, consultant, or financial advisor to prepare a written opinion, to prepare to testify, or to assist counsel in connection with the Bankruptcy; provided that such expert, consultant, or financial advisor is not known to be a current business competitor of, or an owner, employee, independent contractor, consultant, or advisor to any current business competitor of the Debtors and signing an undertaking in the form attached as Exhibit A hereto, agreeing in writing to be bound by the terms and conditions of this Protective Order, consenting to the jurisdiction of the Court for purposes of the enforcement of this Protective Order, and agreeing not to disclose or use any Highly Confidential Discovery Material for purposes other than those permitted hereunder. Such undertaking(s) shall be retained in the files of the counsel for the party who has engaged such expert, consultant or financial advisor and a copy provided to the Debtors upon request; (c) any person indicated on the face of a document to be the author, addressee, or a copy-recipient of the document, or as to whom there has been deposition or trial testimony that the person was the author or a recipient of the document; (d) (e) the Court and its employees, pursuant to this Protective Order; court reporters employed in connection with the Bankruptcy, pursuant to this Protective Order; (f) any other person only upon order of the Court or upon stipulation of the Debtors. 7. To the extent that any Discovery Material contains any of the information set forth below in subparts (a) through (i) of this paragraph, and such Discovery Material is not otherwise designated as Highly Confidential under the terms of this Protective Order, the Discovery Party 7
Main Document Page 18 of 26 (or any other party producing pursuant to this Protective Order) may redact the information set forth in subparts (a) through (i) and the Discovery Material does not have to be treated as Highly Confidential: (a) (b) (c) Social Security numbers; Names of minor children; Names of family members of a party s directors, officers, employees, and contactors; (d) (e) Dates of birth; Financial account numbers (including bank account numbers) and passcodes of a party s directors, officers, employees, and contractors; (f) Federal and state income tax filings (other than for Debtor entities or affiliates thereof); (g) (h) (i) Home addresses; Home or private phone numbers or passcodes; and/or Information concerning an individual s medical condition. 8. Every person given access to Confidential or Highly Confidential Discovery Material or information contained therein shall be advised that the information is being disclosed pursuant to and subject to the terms of this Protective Order and may not be disclosed other than pursuant to the terms hereof. Accordingly, all persons who have received Confidential or Highly Confidential Discovery Material shall safeguard such Discovery Material and the information therein so as to avoid its disclosure to persons who are not eligible to receive that information pursuant to this Protective Order. 8
Main Document Page 19 of 26 9. All documents of any nature, including any brief, memorandum, motion, letter or other document, all or part of which have been designated as Confidential or Highly Confidential (or treated as such pursuant to the terms of this Protective Order) and which are filed with the Court, shall be (i) filed with the Court under seal pursuant to the Federal Rules of Civil Procedure and any other applicable statute or rule; or (ii) filed with the Court with the relevant Confidential or Highly Confidential information redacted, and any unredacted copy shall be filed under seal. 10. Any party that wishes to file a document under seal must file a motion requesting that the document be filed under seal in accordance with the Federal Rules of Civil Procedure and any other applicable statute or rule. Any party receiving Discovery Material from the Discovery Party agrees not to oppose any motions to seal court records containing Confidential or Highly Confidential Discovery Material, provided, however, that this agreement not to oppose such motions shall be without prejudice to any party s right to challenge a designation of information as Confidential or Highly Confidential pursuant to Paragraph 18 below. 11. Producing or receiving Confidential or Highly Confidential Discovery Material or otherwise complying with the terms of this Protective Order shall not: (a) prejudice in any way the right of the Discovery Party to object to the production of documents or other oral or written information they consider not subject to discovery, or operate as or constitute an admission by the Discovery Party that the restrictions and procedures set forth herein constitute adequate protection for any particular information deemed by a Discovery Party to be Confidential or Highly Confidential; 9
Main Document Page 20 of 26 (b) prejudice in any way the right of any party to object to the authenticity or admissibility into evidence of any document, testimony, or other evidence subject to this Protective Order; (c) prejudice in any way the right of any party to seek a determination from the Court whether any Confidential or Highly Confidential Discovery Material should be subject to the terms of this Protective Order; (d) prejudice in any way the right of any party to petition the Court for a modification of the terms of this Protective Order to allow Confidential or Highly Confidential Discovery Material produced in the Bankruptcy, or information derived therefrom, to be used by any defendant in connection with any government investigation or proceeding; (e) prejudice in any way the right of any party to petition the Court for a further protective order relating to any purportedly confidential information; (f) prevent any party from agreeing to alter or waive the provisions or protections provided for herein with respect to any particular Discovery Material; or (g) operate as or constitute a waiver of any attorney client, work product, trade secret, or other privilege. 12. This Protective Order has no effect upon, and shall not apply to, the Debtors use of their own Confidential or Highly Confidential Discovery Material for any purpose. Nothing herein shall impose any restrictions on the use or disclosure by any party of documents, materials, or information designated as Confidential or Highly Confidential Discovery Material lawfully obtained by such party independently of the discovery proceedings in the Bankruptcy. 13. If information or Discovery Material subject to a claim of attorney-client privilege, attorney work product, trade secret privilege, or any other ground on which production 10
Main Document Page 21 of 26 of such information should not be made to any party is nevertheless inadvertently produced to such party or parties, such production shall in no way prejudice or otherwise constitute a waiver of, or estoppel as to, any claim of privilege, work product or other ground for withholding production to which the Debtors (or any other party producing pursuant to this Protective Order) would otherwise be entitled. The producing party shall amend their discovery response within five (5) business days after discovering that such inadvertent production was made, identifying the material or information produced and stating the privilege asserted. The party receiving the inadvertent production must then promptly return to the producing party, sequester, or destroy the specified material or information and any copies thereof, and comply in all respects with Fed. R. Civ. P. 26(b)(5)(B). The party returning such material may then move the Court for an order compelling production of the material, but said motion shall not assert as a ground for entering such an order the fact or circumstance of the inadvertent production. 14. Creditors or other parties in interest in the Bankruptcy shall not have access to Confidential or Highly Confidential Discovery Material until they, by their counsel, have executed and filed with the Court an agreement to be fully bound by this Protective Order in a form substantially similar to Exhibit A attached hereto. 15. Any party shall be entitled to seek modification of this Protective Order, or relief therefrom, by application to the Court on notice to the Debtors for good cause. 16. In the event of disclosure of any Confidential or Highly Confidential Discovery Material or the information therein to any person or other entity not authorized under the terms of this Protective Order to have access to that information, the party responsible for having made that disclosure shall inform counsel for the Discovery Party who produced the Confidential or Highly Confidential Discovery Material (the Producing Discovery Party ), within a reasonable time not 11
Main Document Page 22 of 26 to exceed five (5) business days, of all information concerning the nature and circumstances of that disclosure. The responsible party also shall promptly take all reasonable measures to ensure that no further or greater unauthorized disclosure of such information or materials is made by anyone, and each party shall cooperate in good faith in that effort. Nothing in this paragraph shall limit the Debtors right to seek sanctions from the Court for violation of this Protective Order. 17. The provisions of this Protective Order shall, absent written permission of the Producing Discovery Party or further order of the Court, continue to be binding throughout and after the conclusion of the Bankruptcy, including without limitation any appeals therefrom. Within sixty (60) days after receiving notice of the entry of an order, judgment, or decree finally disposing of all proceedings in which Confidential or Highly Confidential Discovery Material is permitted to be used, including the exhaustion of all permissible appeals, all persons who have received Confidential or Highly Confidential Discovery Material shall either make a good faith, commercially reasonable effort to return such material and all copies thereof (including summaries, excerpts and derivative works) to counsel for the Producing Discovery Party or destroy all such Confidential or Highly Confidential Discovery Material and certify that fact to counsel for the Producing Discovery Party. Notwithstanding the prior sentence, counsel for a party shall be entitled to retain its own court papers, deposition and trial transcripts and attorney work product; provided that, such counsel, and employees of such counsel, shall not disclose such court papers or attorney work product to any person except pursuant to court order or agreement of the Producing Discovery Party or except as otherwise required by law. 18. If any receiving party objects to the designation of information as Confidential or Highly Confidential, the receiving party shall state the objection in writing to counsel for the Producing Discovery Party and the receiving party shall make good faith efforts to resolve the 12
Main Document Page 23 of 26 dispute with the Producing Discovery Party (or other party producing pursuant to this Protective Order) without intervention of the Court. In the event that the parties are unable to resolve the dispute, the party disputing the designation may request appropriate relief from this Court. The burden of establishing that the information has been properly designated as Confidential or Highly Confidential is on the Producing Discovery Party (or other party producing pursuant to this Protective Order). The challenged designation shall remain in effect until changed by order of the Court or agreement of the Producing Discovery Party. 19. In the event that any Confidential or Highly Confidential Discovery Material is used in any court proceeding in the Bankruptcy or any appeal therefrom, subject to the applicable Court rules, said Confidential or Highly Confidential Discovery Material shall not lose its status through such use. 20. If any person possessing or controlling documents covered by this Protective Order (the Receiver ) (a) is subpoenaed in another action, (b) is served with a demand in another action to which he or it is a party, or (c) is served with any other legal process by one who is not a party, seeking Discovery Material which was designated as Confidential or Highly Confidential in this Bankruptcy by the Discovery Party (such designated Discovery Material being the Subpoenaed Information ), the Receiver shall (i) give prompt actual written notice, by hand, facsimile transmission, or e-mail within five (5) business days of receipt of such subpoena, demand, or legal process to the Producing Discovery Party and (ii) object to the production, and shall not produce the Subpoenaed Information unless compelled by legal process, or otherwise ordered by a court, or by agreement with the Producing Discovery Party. Should such person be subject to any action to enforce such a subpoena, demand or other legal process, he or she shall respond by setting forth the existence of this Protective Order. Compliance by such person with any court order directing 13
Main Document Page 24 of 26 production pursuant to subpoena, demand, or legal process of any Confidential or Highly Confidential Discovery Material shall not constitute a violation of this Protective Order. 21. If, in the course of this Bankruptcy, discovery is sought from parties other than the Debtors that would require such parties to produce and/or disclose Confidential or Highly Confidential Discovery Material or the information therein, such parties may gain the protections of this Protective Order and become a Discovery Party by executing and filing with the Court its agreement to produce documents pursuant to this Protective Order and to be bound by it. 22. The terms of the Protective Order shall apply to any information designated as Confidential or Highly Confidential under this Protective Order by any Discovery Party that joins or intervenes in this Bankruptcy and, by its counsel, executes and files with the Court its agreement to be fully bound by this Protective Order. 23. This Protective Order shall be effective immediately upon entry by the Court and shall survive the conclusion of the Bankruptcy. 24. The Bankruptcy Court shall retain jurisdiction to enforce and interpret this Protective Order. DONE and ORDERED this day of, 2015. Tamara O. Mitchell United States Bankruptcy Judge 14
Main Document Page 25 of 26 EXHIBIT A UNITED STATES BANKRUPTCY COURT FOR THE NORTHERN DISTRICT OF ALABAMA SOUTHERN DIVISION In re: WALTER ENERGY, INC., et al., 1 Debtors. Chapter 11 Case No. 15-02741-TOM11 Jointly Administered CERTIFICATION REGARDING CONFIDENTIAL AND HIGHLY CONFIDENTIAL MATERIAL I hereby certify (i) my understanding that Discovery Material and/or Confidential or Highly Confidential Discovery Material is being provided to me pursuant to the terms and restrictions of the Agreed Protective Order ( Protective Order ) entered by the United States Bankruptcy Court for the Northern District of Alabama, in the above-captioned bankruptcy case, and (ii) that I have read the Protective Order. I understand the terms of the Protective Order, I agree to be fully bound by the terms and conditions of the Protective Order, and I hereby submit to the jurisdiction of the United States 1 The Debtors in these cases, along with the last four digits of each Debtor s federal tax identification number, are: Walter Energy, Inc. (9953); Atlantic Development and Capital, LLC (8121); Atlantic Leaseco, LLC (5308); Blue Creek Coal Sales, Inc. (6986); Blue Creek Energy, Inc. (0986); J. W. Walter, Inc. (0648); Jefferson Warrior Railroad Company, Inc. (3200); Jim Walter Homes, LLC (4589); Jim Walter Resources, Inc. (1186); Maple Coal Co., LLC (6791); Sloss-Sheffield Steel & Iron Company (4884); SP Machine, Inc. (9945); Taft Coal Sales & Associates, Inc. (8731); Tuscaloosa Resources, Inc. (4869); V Manufacturing Company (9790); Walter Black Warrior Basin LLC (5973); Walter Coke, Inc. (9791); Walter Energy Holdings, LLC (1596); Walter Exploration & Production LLC (5786); Walter Home Improvement, Inc. (1633); Walter Land Company (7709); Walter Minerals, Inc. (9714); and Walter Natural Gas, LLC (1198). The location of the Debtors corporate headquarters is 3000 Riverchase Galleria, Suite 1700, Birmingham, Alabama 35244-2359.
Main Document Page 26 of 26 Bankruptcy Court for the North District of Alabama, for purposes of enforcement of the Protective Order. I understand that any violation of the terms of this Protective Order shall be punishable by relief deemed appropriate by the Court. Please Print or Type the Following: Name Title and Affiliation Company Address Telephone Date Dated: Signature: 2