Menard, Inc. v. Dial-Columbus, LLC et al
ORDER granting 86 Motion for Protective Order. Ordered by Magistrate Judge Cheryl R. Zwart. (BHC)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
MENARD, INC., a Wisconsin corporation,
Dial-Columbus, LLC a/k/a Dial Columbus,
LLC, a Nebraska limited liability company;
DKC-Columbus, LLC, a Nebraska limited
liability company; and Terry L. Clauff, a
Case No. 4:12-cv-03077-JMG-CRZ
Plaintiff Menard, Inc., (“Menard”) and Defendant Terry L. Clauff (“Clauff”) have moved
that the Court enter a protective order pursuant to Fed. R. Civ. P. 26(c). The Court has
determined that the terms set forth herein are appropriate to protect the respective interests of the
parties, the public, and the Court. Accordingly, it is ORDERED:
Scope. All information and documents produced by Clauff in conjunction to the
proceedings in aid of execution of judgment (“Judgment Execution Proceedings”), which may be
subject to restrictions on disclosure for good cause and information derived directly therefrom
(hereinafter collectively “Documents”), shall be subject to this Order concerning confidential
information as set forth below. The Order is also subject to the applicable rules of procedure and
local rules on matters of procedure and calculation of time periods.
Form and Timing of Designation.
Clauff may designate Documents as
confidential and restricted in use and disclosure under this Order by placing or affixing the words
“CONFIDENTIAL” on the document in a manner that will not interfere with the legibility of the
document. Documents shall be designated CONFIDENTIAL prior to or at the time of the
production or disclosure of the documents. Any document produced by Clauff prior to entry of
this Order may be designated and deemed confidential subject the terms of this Order by
identifying each such document in writing within twenty (20) days of the date this Order is
entered. The designation “CONFIDENTIAL” does not mean that the Document has any status
or protection by statute or otherwise except to the extent and for the purposes of this Order.
Additionally, if the CONFIDENTIAL documents contain highly sensitive trade secrets or
other highly sensitive competitive or confidential information and disclosure to Menard would result in
demonstrable harm to Clauff, then Clauff may add the additional designation of “CONFIDENTIALATTORNEY EYES ONLY” or “HIGHLY CONFIDENTIAL.”
The documents designated
“CONFIDENTIAL-ATTORNEY EYES ONLY” or “HIGHLY CONFIDENTIAL” shall constitute an
additional category of protection that carries all of the same protections as documents designated
“CONFIDENTIAL” and the additional protections as outlined in ¶ 6(c) below.
Documents Which May be Designated CONFIDENTIAL.
designate Documents as CONFIDENTIAL upon a good faith belief that the documents contain
information protected from disclosure by statute or that should be protected from disclosure as
confidential personal or business information, medical or psychiatric information, trade secrets,
personnel records, or such other sensitive commercial and/or financial information that is not
Documents Which May be Designated CONFIDENTIAL-ATTORNEY
EYES ONLY. Clauff may designate any document as CONFIDENTIAL-ATTORNEY EYES
ONLY upon a good faith belief that the document contains highly sensitive trade secrets or other
highly sensitive competitive or confidential information and disclosure to Menard would result in
demonstrable harm to Clauff or related business entities.
Depositions. Deposition testimony and testimony during a Debtor’s Exam shall
be deemed CONFIDENTIAL only if designated as such within 30 days of receipt of the
deposition transcript, in writing. Such designation shall be specific as to the portions of the
transcript or any exhibit to be designated as CONFIDENTIAL. Thereafter, the transcripts and
any those portions so designated shall be protected as CONFIDENTIAL, pending objection,
under the terms of this Order. However, a party may designate any portion of the deposition or
debtor’s exam as testimony is being taken, in which case any individual not authorized to access
Documents with such designation shall leave the room.
Protection of Confidential Material.
Documents designated CONFIDENTIAL under
this Order shall not be used or disclosed by the parties, counsel for the parties or any
other persons identified in ¶ 6(b) for any purpose whatsoever other than to prepare for
and to conduct discovery related to the Judgment Execution Proceedings, including any
Limited Third-Party Disclosures. The parties and counsel for the parties
shall not disclose or permit the disclosure of any CONFIDENTIAL Documents to any
third person or entity except as set forth in subparagraphs (1)-(5). Subject to these
requirements, the following categories of persons may be allowed to review Documents
that have been designated CONFIDENTIAL:
Counsel. Counsel (or the employees and agents of Counsel) who
have responsibility for the preparation and representation during the
Judgment Execution Proceedings and are not employees of a party;
Parties. Parties and employees of a party to this Order. In-house
attorneys, who are employees of a party, are included in the definition of
the term Parties, and are specifically excluded from the term Counsel.
Court Reporters and Recorders. Court reporters and recorders
engaged for depositions and debtor’s exams;
investigators, or experts (hereinafter referred to collectively as "experts")
employed by the parties or counsel for the parties to assist in matters
directly related to the Judgment Execution Proceedings, but only after
such persons have completed the certification contained in Attachment A,
Acknowledgment of Understanding and Agreement to Be Bound; and
Others by Consent. Other persons only by written consent of the
producing party or upon order of the Court and on such conditions as may
be agreed or ordered. All such persons shall execute the certification
contained in Attachment A, Acknowledgment of Understanding and
Agreement to Be Bound.
ATTORNEY EYES ONLY”: Counsel for the parties shall not disclose any documents
designated “CONFIDENTIAL – ATTORNEY EYES ONLY” to any other person unless
authorized by the producing party in writing.
Control of Documents. Counsel for the parties shall take reasonable and
appropriate measures to prevent unauthorized disclosure of documents designated as
CONFIDENTIAL pursuant to the terms of this Order.
Counsel shall maintain the
originals of the forms signed by persons acknowledging their obligations under this Order
for a period of 1 year after dismissal of the action, the entry of final judgment and/or the
conclusion of any appeals arising therefrom.
Copies. Prior to production to another party, all copies, electronic images,
duplicates, extracts, summaries or descriptions (hereinafter referred to collectively as
("copies") of Documents designated as CONFIDENTIAL under this Order, or any
individual portion of such a document, shall be affixed with the designation
“CONFIDENTIAL” if the word does not already appear on the copy. All such copies
shall thereafter be entitled to the protection of this Order. The term "copies" shall not
include indices, electronic databases or lists of documents provided these indices,
electronic databases or lists do not contain substantial portions or images of the text of
confidential documents or otherwise disclose the substance of the confidential
information contained in those documents.
All information derived from Documents designated pursuant to this
“CONFIDENTIAL – ATTORNEY EYES ONLY” as the Documents from which it was
Inadvertent Production. Inadvertent production of any document or
information without a designation of “CONFIDENTIAL” shall be governed by the
applicable rules of procedure.
Filing of CONFIDENTIAL Documents Under Seal.
The Court highly
discourages the manual filing of any pleadings or documents under seal. To the extent that a
brief; memorandum or pleading references any document marked as CONFIDENTIAL, then
the brief, memorandum or pleading shall refer the Court to the particular exhibit filed under
seal without disclosing the contents of any confidential information as provided for by local
rule and related filing procedures.
Before any Document designated pursuant to the terms herein is filed
under seal with the Clerk, the filing party shall first consult with the party that produced
and designated the Document as CONFIDENTIAL to determine whether, with the
consent of that party, the document or a redacted version of the document may be filed
with the Court not under seal.
Where agreement is not possible or adequate, when a Document is filed
with the Clerk, it shall be filed pursuant to the court’s rules regarding the electronic
submission of confidential or restricted documents, on which shall be endorsed with the
caption of the litigation, and a notation that the contents are subject to this protective
To the extent that it is necessary for a party to discuss the contents of any
confidential information in a written pleading, then such portion of the pleading may be
filed under seal with leave of Court. In such circumstances, Counsel shall prepare two
versions of the pleadings, a public and a confidential version. The public version shall
contain a redaction of references to Documents. The confidential version shall be a full
and complete version of the pleading and shall be filed with the Clerk under seal as
If any party notifies another party that they intend or need to file one or
more of the Protected Documents in response to a motion previously filed, the party
who filed such motion specifically agrees to provide whatever extension or continuance
is necessary to file such response to allow for compliance with paragraph. Specifically,
upon reasonable request, the parties agree to provide an extension or continuance for the
filing of any response to any motion to provide appropriate time to comply with
applicable law regarding filing such documents under seal.
Challenges by a Party to Designation as Confidential. Any CONFIDENTIAL
and CONFIDENTIAL – ATTORNEY EYES ONLY designation are subject to challenge by
any party or nonparty with standing to object (hereafter "party"). Before filing any motions or
objections to a confidentiality designation with the Court, the objecting party shall have an
obligation to meet and confer in a good faith effort to resolve the objection by agreement. If
agreement is reached confirming or waiving the designation as to any Documents subject to the
objection, the designating party shall serve on all parties a notice specifying the Documents and
the nature of the agreement.
Action by the Court. Applications to the Court for an order relating to any
Documents designation shall be by motion under the applicable rules of procedure and local
rules of the Court and any other procedures set forth in the presiding judge’s standing orders or
other relevant orders. Nothing in this Order or any action or agreement of a party under this
Order limits the Court’s power to make any orders that may be appropriate with respect to the
use and disclosure of any documents produced or use in discovery or at trial.
Use of Confidential Documents or Information During Hearings or Other
Proceedings Open to the Public. The Court shall enter a separate order regarding the use of
Documents during any Hearings or other proceedings open to the public that is not inconsistent
with the protections on use and disclosure provided herein.
Obligations on Conclusion of Litigation.
Order Remains in Effect. Unless otherwise agreed or ordered, this
Order shall remain in force after dismissal or entry of satisfaction of judgment not
subject to further appeal or after applicable appeals.
Return of CONFIDENTIAL Documents.
Within thirty days after
dismissal or entry of satisfaction of judgment not subject to further appeal, all
Documents designated under this Order, including copies as defined in ¶ 6(e), and all
information derived therefrom shall be returned to the producing party unless: (1) the
document has been offered into evidence or filed without restriction as to disclosure;
OR (2) the party in possession of such document(s) elects to destroy the Documents and
certifies to the producing party that it has done so.
Notwithstanding the above
requirements to return or destroy Documents, Counsel may retain attorney work
product, including an index which refers or relates to Documents, so long as that work
product does not duplicate verbatim substantial portions of the text or images of
confidential documents. This work product shall continue to be CONFIDENTIAL
under this Order. An attorney may use his or her work product in a subsequent litigation
provided that its use does not disclose or use Documents.
Return of Documents Filed under Seal. After dismissal or entry of
satisfaction of judgment not subject to further appeal, the Clerk may elect to return to
Counsel for the parties or, after notice, destroy Documents filed or offered at trial under
seal or otherwise restricted by the Court as to disclosure.
Order Subject to Modification. This Order shall be subject to modification by
the Court on its own motion or on motion of a party or any other person with standing
concerning the subject matter.
Persons Bound. This Order shall take effect when entered and shall be binding
upon all Counsel and their law firms, the parties, and persons made subject to this Order by its
July 23, 2014
s/ Cheryl R. Zwart
United States Magistrate Judge
Stipulated and Agreed to on July 22, 2014 by:
MENARD, INC, Plaintiff,
TERRY L. CLAUFF, Defendant,
By: /s/ Craig C. Dirrim
Craig C. Dirrim (#20055)
WOODS & AITKEN LLP
301 South 13th Street, Suite 500
Lincoln, Nebraska 68505
(402) 437-8500 Telephone
(402) 437-8558 Facsimile
By: /s/ Mark D. Hill
Michael S. Degan (#20372)
Mark D. Hill (#24549)
HUSCH BLACKWELL LLP
13330 California Street, Suite 200
Omaha, NE 68154
(402) 964-5000 Telephone
(402) 964-5050 Facsimile
ATTORNEY FOR PLAINTIFF
ATTORNEYS FOR DEFENDANT
AGREEMENT TO BE BOUND
The undersigned hereby acknowledges that he/she has read the Protective Order dated
___________________ in the above-captioned action and attached hereto, understands the
terms thereof; and agrees to be bound by its terms. The undersigned submits to the jurisdiction of
the Court herein in matters relating to the Protective Order and understands that the terms of the
Protective Order obligate him/her to use documents designated CONFIDENTIAL and
CONFIDENTIAL-ATTORNEY EYES ONLY in accordance with the Order solely for the
purposes of the above captioned action, and not to disclose any such documents or information
derived directly therefrom to any other person, firm or concern.
The undersigned acknowledges that violation of the Protective Order may result in
penalties for contempt of court.
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