Brecek and Young Advisors, Inc. v. Syndicate 2003, Lloyd's of London et al
Filing
42
ORDER granting 41 Motion for Protective Order.Ordered by Magistrate Judge Cheryl R. Zwart. (CRZ)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
BRECEK AND YOUNG
ADVISORS, INC.,
No. 4:11-CV-3003
Plaintiff,
v.
PROTECTIVE ORDER
SYNDICATE 2003, LLOYD’S OF
LONDON and CATLIN SPECIALTY
INSURANCE COMPANY, INC.,
Defendants.
Pursuant to Rule 26(c) of the Federal Rules of Civil Procedure, it is
hereby stipulated and agreed by and between the parties, through their
respective counsel, as follows:
IT IS HEREBY STIPULATED AND ORDERED AS FOLLOWS:
1.
disclosures,
The terms and conditions of this Order shall govern initial
the
production
and
handling
of
documents,
answers
to
interrogatories, responses to requests for admissions, depositions, pleadings,
exhibits, other discovery taken pursuant to the Federal Rules of Civil
Procedure, and all other information exchanged by the parties or by any third
party in response to discovery requests or subpoenas.
2.
The designation “CONFIDENTIAL” shall be limited to documents or
information that any producing party, including any third party, in good faith,
believes to: (a) contain proprietary or commercially sensitive information; (b) be
subject to a confidentiality agreement or other agreement containing a
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confidentiality
provision;
(c) contain
personal
financial
information;
or
(d) contain information that should otherwise be subject to confidential
treatment under Rule 26(c)(1)(G) of the Federal Rules of Civil Procedure.
3.
In addition, documents or information which contain personal
financial information, as well as documents or information which contain
personal or identifying information regarding Syndicate 2003 members, may be
designated
by
a
producing
party
as
“ATTORNEY
EYES
ONLY.”
Notwithstanding the provisions of paragraph 4 below, such documents may be
disclosed only to outside counsel representing a named party in this action,
including legal associates, clerical, copy service providers, document imaging
service providers, database/coding service providers, and temporary or other
support staff who are employed by such outside counsel to assist in the case
and who have been advised of this Order in accordance with paragraph 9
below.
4.
Information designated “CONFIDENTIAL” may be disclosed only to
the following persons:
(a)
the Parties, meaning any named Plaintiff, Defendant, Third Party
Plaintiff or Defendant, or an Intervenor in this case. Any officer,
director, or employee of a corporate party provided with
CONFIDENTIAL information shall execute the Certification
attached hereto as Exhibit A;
(b)
outside counsel representing a named party in this action,
including all legal associates, clerical, copy service providers,
document imaging service providers, database/coding service
providers, temporary or other support staff who are employed by
such counsel to assist such counsel and who have been advised of
this Order;
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(c)
court reporters recording a properly noticed deposition in this
litigation;
(d)
an expert or consultant who (i) is retained by any attorney
described in paragraphs 3(a) and (b) to assist with this litigation,
(ii) is not a current employee of a party or subsidiary or affiliate of
a party, and (iii) executes a Certification attached hereto as
Exhibit A;
(e)
a person who prepared, received, or reviewed the “CONFIDENTIAL”
information prior to its production in this litigation;
(f)
any private mediators utilized in this litigation, provided such
person executes a Certification attached hereto as Exhibit A; and
(g)
the Court, and any Special Masters and/or Mediators appointed by
the Court, under seal.
5.
This Order does not apply to any information or documents:
(a)
already in the possession of a receiving party and not subject to
any obligation of confidentiality; and
(b)
acquired by a receiving party from a third party without being
designated confidential or similar material unless the third party
received the information or documents subject to any form of
confidentiality protection.
6.
All information designated “CONFIDENTIAL” or “ATTORNEY EYES
ONLY” in accordance with the terms of this Order and produced or exchanged
in the course of this litigation shall be used or disclosed solely for the purpose
of this litigation and in accordance with the provisions of this Order.
Such
“CONFIDENTIAL” or “ATTORNEY EYES ONLY” information shall not be used
for any business purpose, or in any other litigation or other proceeding or for
any other purpose, except by Court Order or otherwise required by law.
7.
Persons other than those listed above in paragraph 4
may be
allowed to review CONFIDENTIAL information if, at least five (5) days prior to
such review, the requesting counsel first identifies the person to whom counsel
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desires to disclose the confidential information and obtains the written consent
of the attorney for the party who produced such confidential information;
provided, however, that neither party shall be required to disclose the identity
of any expert not retained as a trial witness. Should the attorney to whom the
request is made decline to give consent, the requesting attorney may file a
motion seeking such permission.
8.
If a party in possession of “CONFIDENTIAL” or “ATTORNEY EYES
ONLY” information receives a request, subpoena, or other legally enforceable
order from a non-party to this Protective Order seeking production or
disclosure of “CONFIDENTIAL” or “ATTORNEY EYES ONLY” information, that
party shall promptly give notice by facsimile or electronic mail to the disclosing
party identifying the information sought and enclosing a copy of the subpoena
or request. Provided that a timely motion or other application for relief from
the subpoena or other request has been filed by the disclosing party in the
appropriate forum, the party upon whom the subpoena, order, or other request
was served shall not produce or disclose the requested information without
consent of the disclosing party or until ordered by a court of competent
jurisdiction.
9.
Counsel shall inform each person to whom they disclose or give
access to “CONFIDENTIAL” information the terms of this Order, as well as the
obligation to comply with those terms.
Persons receiving “CONFIDENTIAL”
information are prohibited from disclosing it to any person except in
conformance with this Order.
The recipient of any “CONFIDENTIAL”
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information agrees to subject himself/herself to the jurisdiction of the Court for
the purpose of any proceedings relating to the performance under, compliance
with, or violation of this Order. The parties agree, and agree to inform each
person to whom they disclose or give access to “CONFIDENTIAL” information,
that damages for violation of this Order are not an adequate remedy and that
the appropriate remedy is injunctive relief. Counsel agrees to maintain a file of
all Certifications (Exhibit A) required by this Order.
10.
The recipient of any “CONFIDENTIAL” or “ATTORNEY EYES ONLY”
information shall maintain such information in a secure and safe area and
shall exercise the same standard of due and proper care with respect to the
storage, custody, use and/or dissemination of such information as is exercised
by the recipient with respect to his or her own confidential or proprietary
information.
11.
In designating information “CONFIDENTIAL” or “ATTORNEY EYES
ONLY,” the producing or testifying party or person, including third parties, will
make such designation only as to that information that it in good faith believes
meets the criteria for such designation as set forth herein. All or any part of a
document, tangible item, discovery response or pleading disclosed, produced,
or filed by any party or person in this litigation may be designated
“CONFIDENTIAL” or “ATTORNEY EYES ONLY” by the producing or disclosing
party or person by marking the appropriate legend on the face of the document
and each page so designated. With respect to tangible items, the appropriate
legend shall be marked on the face of the tangible item, if practicable, or by
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delivering at the time of disclosure, production or filing to the party to which
disclosure is made, written notice that such tangible item is “CONFIDENTIAL”
or “ATTORNEY EYES ONLY”.
12.
Nothing contained herein shall preclude any party to this action
from utilizing CONFIDENTIAL or “ATTORNEY EYES ONLY” information in
examining deponents or trial witnesses called in this case. The manner with
which CONFIDENTIAL or “ATTORNEY EYES ONLY” information may be
presented at trial will be addressed by the Court at the Final Pretrial
Conference or otherwise in advance of trial.
13.
The parties may designate the deposition testimony and exhibits
(or portions thereof) of any witness in this litigation as “CONFIDENTIAL” or
“ATTORNEY EYES ONLY” at the time of the deposition by advising the reporter
and all parties of such fact during the deposition.
videotaped
deposition
is
designated
pursuant
to
If any portion of a
this
paragraph,
the
videocassette or other videotape or CD-ROM or DVD container shall be labeled
with the appropriate legend. Unless a shortened time period is requested as
set forth below, within thirty (30) days of receipt of a transcript, the deponent’s
counsel, or any other party may redesignate all or portions of the transcript
“CONFIDENTIAL.” The deponent’s counsel or any other party shall list on a
separate piece of paper the numbers of the pages of the deposition transcript
containing “CONFIDENTIAL” information and serve the same on opposing
counsel. Pending such designation, the entire deposition transcript, including
exhibits, shall be deemed “CONFIDENTIAL” information. If no designation is
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made within thirty (30) days after receipt of the transcript, the transcript shall
be considered not to contain any “CONFIDENTIAL” information.
14.
A party may reasonably request a shortening of the time period
within which a confidentiality designation for a deposition transcript must be
made for the purpose of conducting effective discovery, and consent to such a
request shall not be unreasonably withheld.
15.
In the event of a dispute as to a request for a shortened time
period, the parties shall first try to dispose of such dispute in good faith on an
informal basis. If the dispute cannot be resolved within five (5) business days,
the party requesting the shortened time period may request appropriate relief
from the Court. The parties agree, subject to Court approval, that such relief
sought can be in the form of a telephone conference to be scheduled at the
Court’s earliest convenience with the objective of obtaining an immediate
resolution of the dispute.
16.
A party seeking to file sealed “CONFIDENTIAL” or “ATTORNEY
EYES ONLY” information, documents or pleadings must follow the procedures
set forth in NECivR 7.5. In the alternative, the parties may file documents and
pleadings under restricted access pursuant to NECivR 5.03(c). If the pleading
or document is already subject to this existing protective order, no motion to
seal or to file under restricted access is required. Any documents or pleadings
to be filed with the Court must bear the caption of this litigation and pleading
or document title and such other description as will allow the Court to readily
identify the documents or information or portions thereof so designated.
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17.
Nothing in this Order shall be construed in any way as a finding
that information designated “CONFIDENTIAL” or “ATTORNEY EYES ONLY”
actually is entitled to such designation. Any party may object, in writing, to
the designation by another party by specifying the information in issue and its
grounds for questioning the designation.
A party shall not be obligated to
challenge the propriety of a designation at the time made, and a failure to do so
shall not preclude any subsequent challenge. In the event that any party to
this litigation disagrees at any point in these proceedings with the designation
by the producing party, the parties shall try first to dispose of such dispute in
good faith on an informal basis.
If the parties cannot resolve the dispute
within twenty-one (21) days of service of a written objection, the party
challenging the designation may file a motion to compel within twenty-one
(21) days after the parties’ informal attempts at resolution have concluded.
The information, documents or materials shall continue to receive the
protection of their designation until the Court rules on the motion. The party
that designated the information “CONFIDENTIAL” or “ATTORNEY EYES ONLY”
shall have the burden of demonstrating the propriety of its designation.
18.
Nothing herein shall be construed to be an admission of relevance
or to affect, in any way, the admissibility of any documents, testimony or other
evidence in this litigation. This Order is without prejudice to the right of any
party to bring before the Court at any time the question of whether any
particular information is or is not discoverable or admissible.
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19.
Nothing in this Order shall bar or otherwise restrict any attorney
herein from rendering advice to clients with respect to this litigation and in the
course thereof, referring to or relying upon the attorney’s examination of
“CONFIDENTIAL” or “ATTORNEY EYES ONLY” information so long as the
attorney does not disclose “CONFIDENTIAL” or “ATTORNEY EYES ONLY”
information.
20.
The inadvertent or mistaken disclosure by a producing party of
“CONFIDENTIAL” or “ATTORNEY EYES ONLY” information shall not constitute
a waiver of any claim of protection under this order except where: (a) the
producing party notifies a receiving party in writing of such inadvertent or
mistaken disclosure within ten (10) business days of becoming aware of such
disclosure and, (b) within thirty (30) days of such notice, the producing party
fails to provide properly redesignated documents to the receiving party. During
the thirty (30) day period after notice, the materials shall be treated as
designated in the producing party’s notice.
Upon receipt of properly
redesignated documents, the receiving party shall return all unmarked or
incorrectly designated documents and other materials to the producing party
within five (5) business days. The receiving party shall not retain copies thereof
and shall treat information contained in said documents and materials and any
summaries or notes thereof as appropriately marked pursuant to the producing
party’s notice.
21.
Should
any
“CONFIDENTIAL”
or
“ATTORNEY
EYES
ONLY”
information be disclosed, through inadvertence or otherwise, by a receiving
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party to any person or party not authorized under this Order, then the
receiving party shall: (a) use its best efforts to obtain the return of any such
information and to bind such person or party to the terms of this Order;
(b) within seven (7) business days of the discovery of such disclosure, inform
such person of all provisions of this Order and identify such person or party to
the producing party; and (c) request such person or party to sign the
Certification attached hereto as Exhibit A or B.
The executed Certification
shall be served upon counsel for the producing party within ten (10) business
days of its execution by the party to whom the information was inadvertently
disclosed. Nothing in this paragraph is intended to limit the remedies that the
producing party may pursue for breach of this Order.
22.
A producing person or entity who is not a party in this litigation
shall be entitled to the protections afforded herein by signing a copy of this
Order and serving same on all counsel of record.
person
or
entity
may
designate
as
Thereafter, a producing
“CONFIDENTIAL”
only
testimony,
information, documents or things that such producing person or entity has
produced or provided in the action.
23.
This Order shall survive the termination of this litigation and shall
continue in full force and effect thereafter.
24.
After final termination of this action, the outside counsel for a
named party may each retain one copy of deposition transcripts and exhibits,
Court transcripts and exhibits, and documents and other materials submitted
to the Court. Nothing herein shall require the return or destruction of attorney
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work product. Such material shall continue to be treated as designated under
this Order. Within sixty (60) days after final termination of this litigation, at
the request of the producing party, counsel for the receiving party either shall
(a) return all additional “CONFIDENTIAL” or “ATTORNEY EYES ONLY”
information in his/her possession, custody or control or in the custody of any
authorized agents, outside experts and consultants retained or utilized by
counsel for the receiving party to counsel for the party who has provided such
“CONFIDENTIAL” or “ATTORNEY EYES ONLY” information in discovery or
(b) certify destruction thereof to the producing party’s counsel.
As to
“CONFIDENTIAL” or “ATTORNEY EYES ONLY” information reflected in
computer databases or backup tapes or any other electronic form, the receiving
party shall erase all such “CONFIDENTIAL” or “ATTORNEY EYES ONLY”
information.
25.
Pursuant to NECivR 7.5(e), within thirty (30) days after final
termination of this litigation, outside counsel for a named party shall retrieve
from the Court all “CONFIDENTIAL” physical objects that it filed with the Court
during the litigation and return or dispose of such information in accordance
with paragraph 24.
26.
If information subject to a claim of attorney-client privilege or work
product immunity is inadvertently or mistakenly produced, such production
shall in no way prejudice or otherwise constitute a waiver of, or estoppel as to,
any claim of privilege or work-product immunity for such information.
If a
party has inadvertently or mistakenly produced information subject to a claim
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of immunity or privilege, upon written request made by the producing party
within twenty-one (21) days of discovery of such inadvertent or mistaken
production, the information for which a claim of inadvertent production is
made, including all copies, shall be returned within seven (7) business days of
such request unless the receiving party intends to challenge the producing
party’s assertion of privilege or immunity.
All copies of inadvertently or
mistakenly produced documents shall be destroyed. All paper copies of such
documents shall be shredded, and electronic copies of such documents shall
be wiped from any storage medium upon which the copy resides or, if the
medium cannot be wiped, the storage medium shall be physically destroyed.
Any document or material information reflecting the contents of the
inadvertently produced information shall be expunged.
If a receiving party
objects to the return of such information within the seven (7) business day
period described above, the producing party may move the Court for an order
compelling the return of such information.
receiving
party
may
retain
the
Pending the Court’s ruling, a
inadvertently
or
mistakenly
produced
documents in a sealed envelope and shall not make any use of such
information.
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27.
Nothing in this Order shall prevent any party from applying to the
Court for relief therefrom, or from applying to the Court for further or
additional protective orders or modification of this Order.
Dated: 11/3/2011
______________________________________
Cheryl R Zwart
United States Magistrate Judge
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CERTIFICATION - EXHIBIT A
I hereby certify that I have read the attached Protective Order in Brecek
and Young Advisors, Inc. v. Syndicate 2003, Lloyd’s of London, et al., Case No.
4:11-cv-3003, dated ________ ___, 2011 (the “Order”), and I agree that I will not
reveal “CONFIDENTIAL” information to, or discuss such with, any person who
is not entitled to receive “CONFIDENTIAL” information in accordance with the
Order.
I will use “CONFIDENTIAL” information only for the purposes of
facilitating the prosecution or defense of the action and not for any business or
other purpose.
I will otherwise keep all “CONFIDENTIAL” information
confidential in accordance with this Order.
I agree that the United States
District Court for the District of Nebraska has jurisdiction to enforce the terms
of the Order, and I consent to jurisdiction of that Court over my person for that
purpose. I will otherwise be bound by the strictures of the Order.
Dated: __________________________
___________________________________
___________________________________
[Print Name]
___________________________________
[Company]
___________________________________
[Address]
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