Ashokkumar v Elbaum, et al

Filing 84

PROTECTIVE ORDER granting 83 Motion. Ordered by Magistrate Judge Cheryl R. Zwart. (Zwart, Cheryl)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA

PADMAPRIYA ASHOKKUMAR, an
Individual,

)
)
)
Plaintiff,
)
)
v.
)
)
SEBASTIAN ELBAUM, Professor at
)
the University of Nebraska-Lincoln,
)
SCOTT HENNINGER, Former
)
Professor at the University of
)
Nebraska-Lincoln, LORIN
)
HOCHSTEIN, Former Professor at the )
University of Nebraska-Lincoln,
)
STEVE GODDARD, Current Chair of )
the Department of Computer Science )
and Engineering at the University of
)
Nebraska-Lincoln, KIMBERLY
)
ANDREWS ESPY, Former Associate
)
Vice Chancellor for Research at the
)
University of Nebraska-Lincoln,
)
PREM PAUL, Vice Chancellor for
)
Research and Dean of Graduate
)
Studies, all in their individual and
)
official capacities,
)
)
Defendants.
)

Case No. 4:12-cv-3067
STIPULATED PROTECTIVE ORDER

Pursuant to the parties’ Joint Motion for Entry of Protective Order (Filing No.
8 ), it is hereby ORDERED as follows:
1.

Materials Deemed Confidential. If a party or an attorney for a party

(or a third-party subject to subpoena issued by the Court in this case or an
attorney for such third-party) has a good faith belief that certain documents or
other materials or information (including digital information) subject to disclosure

pursuant to a discovery or other request, are confidential and should not be
disclosed other than in connection with this action pursuant to Rule 26(c) of the
Federal Rules of Civil Procedure, the party or attorney shall mark each such
document or other materials as “CONFIDENTIAL.”

A party or an attorney may

mark documents “ATTORNEYS’ EYES ONLY” if the party or attorney has a good
faith belief that the documents contain highly sensitive information that could
result in injury to the disclosing party or a third-party if disclosed to another party
or parties in this case.
2.

Redesignation of Materials as Confidential.

inadvertently

produces

confidential

documents

or

In the event a party
materials

without

the

designation “CONFIDENTIAL” or “ATTORNEYS’ EYES ONLY”, it shall not be
deemed a waiver of the confidential nature of the documents or materials provided
that the producing party notify all other parties of the inadvertent production
within a reasonable time after the producing party discovers the inadvertent
production. In the event that the disclosing party notifies the receiving party that
a document or thing was produced without the appropriate confidentiality
designation, the disclosing party shall provide the receiving party with replacement
copies of the documents or things bearing the appropriate confidentiality
designation.

Upon receipt of the replacement copies, the receiving party shall

retrieve and return or destroy all copies of the previously produced documents or
things.
3.

Inadvertent Disclosure. As to documents produced before filing of

this Stipulated Protective Order, any disputes related to instances in which a party
or third party has produced or disclosed materials for which any privilege or

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protection is claimed, including but not limited to the attorney-client privilege or
work product protection, will be governed in accordance with Rule 26 of the
Federal Rules of Civil Procedure, Rule 502 of the Federal Rules of Evidence, and
any applicable provisions of the Initial Progression Order (Filing No. 64) entered in
this case.

As to documents produced after filing of this Protective Order, the

following procedures shall govern instances in which a party or third-party has
inadvertently produced or disclosed materials for which any privilege or protection
is claimed, including but not limited to the attorney-client privilege or workproduct protection:
a.

The disclosing party must notify the receiving party promptly,

in writing or on the record, upon discovery that a document has been
inadvertently produced. Upon receiving written notice from the disclosing
party that privileged and/or work-product material has been inadvertently
produced, all such information, and all copies thereof, shall be returned to
the disclosing party within five business days of receipt of such notice and
the receiving party shall not use such information for any purpose, until
further order of the Court. The receiving party shall also attempt, in good
faith, to retrieve and return or destroy all copies of the document in
electronic format, and shall provide the disclosing party with written notice
that all copies of the document have been returned or destroyed.

If the

receiving party intend to file a motion under paragraph 3(b), below, it may
maintain a copy of the document for purposes of filing such a motion.
b.

If the receiving party contests the privilege or work-product

designation by the disclosing party, it shall file a motion to compel

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production of the document or information. The receiving party shall not
assert as a ground for compelling production the facts or circumstances of
the inadvertent production, unless it is asserted that privilege or workproduct protection was knowingly and intentionally waived.
c.

The disclosing party retains the burden of establishing the

privileged or protected nature of any document or information that is
claimed as privileged or otherwise protected.

Nothing in this paragraph

shall limit the right of any party to petition the Court for an in camera review
of such documents or information.
d.

Upon notification of inadvertent disclosure from the disclosing

party, the receiving party shall place any analyses, memoranda, or notes
which were internally generated based upon such inadvertently-produced
information in sealed envelopes if in hard copy form or shall segregate such
analyses, memoranda, or notes if in electronic form.
e.

Pursuant to Rule 502 of the Federal Rules of Evidence, if the

receiving party does not contest that the information is privileged or
otherwise protected or if the Court so rules, then the inadvertent disclosure
of the information shall not be deemed a waiver or impairment of any claim
of privilege or protection, including, but not limited to, the attorney-client
privilege, the protection afforded to work-product materials or the subject
matter thereof, as to the inadvertently disclosed document or information
and any related material, and such documents and information shall be
destroyed or returned to the producing party.

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4.

Challenging Designation of Confidentiality. If a party or an attorney

for a party disputes whether a document or other material should be marked
“CONFIDENTIAL” or “ATTORNEYS’ EYES ONLY”, the parties and/or attorneys
shall attempt to resolve the dispute between themselves. If they are unsuccessful,
the party or attorney challenging the confidentiality designation shall do so by
filing an appropriate motion.
5.

Distribution of Confidential Materials. No party or attorney or other

person subject to this Protective Order shall distribute, transmit, or otherwise
divulge any document or other material which is marked “CONFIDENTIAL” or
“ATTORNEYS’ EYES ONLY”, or the contents thereof, except in accordance with this
Protective Order.
6.

Persons Entitled to View Confidential Materials.

Any document or

other material which is marked “CONFIDENTIAL,” or the contents thereof may
only be disclosed to the following individuals:
a.

counsel for the parties to this action who are involved in the

conduct of this action, together with the partners, associates, secretaries,
paralegals, assistants, agents and employees of such counsel;
b.

court officials involved in this action (including persons such as

court reporters and persons operating video recording equipment at
depositions);
c.

the parties;

d.

any person designated by the Court in the interest of justice,

upon such terms as the Court may deem proper;

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e.

persons noticed for depositions or designated as trial witnesses,

but only to the extent reasonably necessary to prepare them to testify;
f.

outside consultants or experts retained for the purpose of

assisting counsel in this action who sign the undertaking attached hereto as
Exhibit “A”, but only to the extent reasonably necessary for them to provide
such services in this action; and
g.

any person or entity who created or previously received the

document.
Any document or other material which is marked “ATTORNEYS’ EYES
ONLY,” or the contents thereof, may only be disclosed to the individuals listed in
subparagraphs (a), (b), (d), (f), and (g), above.
7.

Use of Confidential Materials. Any document or other material which

is marked “CONFIDENTIAL” or “ATTORNEYS’ EYES ONLY”, or the contents
thereof, may be used by a party, or a party’s attorney, expert witness, consultant,
or other person to whom disclosure is made, only for the purpose of this action.
Nothing contained in this Protective Order shall prevent the use of any document
or other material which is marked “CONFIDENTIAL” or “ATTORNEYS’ EYES
ONLY”, or the contents thereof, as evidence at trial, or at any deposition taken in
this action, as long as the party using the document or other material complies
with the other provisions of this Protective Order.

The parties, attorneys, and

other persons to whom disclosure is made shall take appropriate measures in
court filings and proceedings to protect the confidentiality of any document or
other material which is marked “CONFIDENTIAL” or “ATTORNEYS’ EYES ONLY.”
Such measures may include filing pleadings and evidence as “Restricted Access”

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documents on the CM/ECF system and/or filing a motion requesting the Court to
seal a document or a portion thereof.
8.

Return or Destruction of Confidential Materials After Litigation.

At

the conclusion of the proceedings in this action, all documents and materials
marked “CONFIDENTIAL” or “ATTORNEYS’ EYES ONLY”, including any copies or
extracts or summaries thereof, or documents containing or derived from
information taken therefrom, shall be returned to producing counsel with
producing counsel to pay the shipping costs associated with the return of such
documents or materials. Upon the consent of the producing party, which consent
shall not be unreasonably withheld, the recipient of such materials may, as an
alternative to returning the materials to the producing party, submit a written
certification that all “CONFIDENTIAL” and “ATTORNEYS’ EYES ONLY” materials
have been destroyed.

Notwithstanding the other provisions of this paragraph,

counsel for each party may retain one (1) complete set of the pleadings, trial
transcripts, exhibits admitted in any deposition, documents filed with the court,
deposition transcripts (including deposition exhibits), and discovery responses and
shall remain bound to preserve the confidentiality of such documents in
accordance with the provisions of this Protective Order.

Nothing herein shall

require legal counsel for any party to return or destroy correspondence, including
electronic email correspondence, which has “CONFIDENTIAL” or “ATTORNEYS’
EYES ONLY” materials attached thereto.
9.

Subpoenas and Legal Process. In the event that any of the parties is

subpoenaed or is served with any other legal process by a person not a party to
this litigation, and is requested to produce or otherwise disclose “CONFIDENTIAL”

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or “ATTORNEYS’ EYES ONLY” information that was so designated by another
party, the party subpoenaed or served as referred to in this paragraph shall object
to the production of the such information by setting forth the existence of this
Protective Order and shall give prompt written notice to the party who produced
the information in this litigation.

Nothing in this Protective Order shall be

construed as requiring the party from whom “CONFIDENTIAL” or “ATTORNEYS’
EYES ONLY” information was requested to challenge or appeal any order requiring
production of such information covered by this Protective Order, to subject itself
to any penalties for noncompliance with any legal process or order, or to seek any
relief from this Court. Notwithstanding the other provisions of this paragraph, a
party from whom “CONFIDENTIAL” or “ATTORNEYS’ EYES ONLY” documents or
information are subpoenaed or otherwise required by a governmental agency may
produce the documents or information to that agency without itself making
objections, but shall provide prompt written notice of any such subpoena to the
party who disclosed the “CONFIDENTIAL” or “ATTORNEYS’ EYES ONLY”
information.
10.

No Effect on Other Issues. Nothing contained in this Protective Order

and no action taken pursuant to it shall prejudice the right of any party to contest
the alleged relevancy, admissibility, or discoverability of the documents or other
materials marked “CONFIDENTIAL” or “ATTORNEYS’ EYES ONLY” and disclosed
pursuant to this Protective Order.
11.

Waiver. To be effective, any waiver under this Protective Order must

be made in writing or on the record in a deposition or court proceeding.

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12.

Henninger

Grievance

Documents.

Plaintiff

has

requested

that

Defendant produce documents related to a grievance procedure initiated by Dr.
Scott Henninger and Defendant has agreed to produce responsive documents with
the

designation

“ATTORNEYS’

EYES

ONLY”

(the

“Henninger

Grievance

Documents”). Plaintiff and Defendant agree that should either party seek to
change the designation of any or all of the Henninger Grievance Documents, the
party seeking such change will provide written notice to Dr. Henninger’s counsel,
Dave Watermeier, at least 10 days prior to initiating the change in designation.
Dated this 2nd day of August, 2013
BY THE COURT:
Hon. Cheryl R. Zwart
United States Magistrate Judge

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EXHIBIT A
ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND
I declare under penalty of perjury that I have read in its entirety and
understand the Stipulated Protective Order that was issued by the United States
District Court for the District of Nebraska in the case of Padmapriya Ashokkumar
v. Steve Goddard, Case No. 4:12-cv-3067. I agree to comply with and to be bound
by all the terms of this Stipulated Protective Order and I understand and
acknowledge that failure to so comply could expose me to sanctions and
punishment in the nature of contempt.
I further agree to submit to the jurisdiction of the United States District
Court for the District of Nebraska for the purpose of enforcing the terms of this
Stipulated Protective Order, even if such enforcement proceedings occur after
termination of this action.
I hereby appoint __________________________ of ____________________________
as my Nebraska agent for service of process in connection with any proceedings
related to enforcement of this Stipulated Protective Order.
Dated this ____ day of _________, _____.
By:

[Signature]
[Printed Name]

4836-1734-6837, v. 1

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