Wattier v. United Parcel Service
Filing
29
ORDER granting 28 Stipulation for Protective Order. Ordered by Magistrate Judge Cheryl R. Zwart. (BHC)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
SHERRY WATTIER,
Plaintiff,
4:12CV3108
vs.
PROTECTIVE ORDER
UNITED PARCEL SERVICE, Inc.;
Defendant.
IT IS ORDERED:
Upon stipulation of the parties for an order pursuant to Fed. R. Civ. P. 26(c) that
confidential information be disclosed only in designated ways:
1.
As used in the Protective Order, these terms have the following meanings:
“Attorneys” means counsel of record;
“Confidential” documents are documents designated pursuant to
paragraph 2;
That Plaintiff and Defendant are referred to in this Stipulation and
Order as “Parties,” and individually, as a “Party,” and that a person
or entity that produces or reveals information subject to protection of
this Stipulation and Protective Order is referred to as a “Producing
Party,” whether or not that person or entity is a Party to the Action;
“Documents” are all materials within the scope of Fed. R. Civ. P. 34;
“Outside Vendors” means messenger, copy, coding, and other
clerical-services vendors not employed by a party or its Attorneys;
and
“Written Assurance” means an executed document in the form
attached as Exhibit A.
2.
A party may designate a document “Confidential” to protect information
within the scope of Fed. R. Civ. P. 26(c). The parties agree, however, that Plaintiff’s
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Personnel File will not be marked Confidential. Non-personnel file documents that refer
only to Plaintiff will also be marked Non-Confidential.
3.
All Confidential documents, along with the information contained in the
documents, shall be used solely for the purpose of this action, and no person receiving
such documents shall, directly or indirectly, use, transfer, disclose, or communicate in
any way the documents or their contents to any person other than those specified in
paragraph 4. Any other use is prohibited.
4.
Access to any Confidential document shall be limited to:
(a)
(b)
Attorneys, their law firms, and their Outside Vendors;
(c)
Persons shown on the face of the document to have authored or
received it;
(d)
Court reporters retained to transcribe testimony;
(e)
The parties;
(f)
Outside independent persons (i.e., persons not currently or formerly
employed by, consulting with, or otherwise associated with any
party) who are retained by a party or its attorneys to provide
technical or expert services, or to provide assistance as mock jurors
or focus group members or the like, or to furnish technical or expert
services, and/or to give testimony in this action.
(g)
5.
The Court and its staff;
Witnesses or potential witnesses may be shown documents marked
Confidential for purposes of discovery or trial preparation only.
Third parties producing documents in the course of this action may also
designate documents as “Confidential,” subject to the same protections and constraints as
the parties to the action. All documents produced by such third parties shall be treated as
“Confidential” for a period of 14 days from the date of their production, and during that
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period any party may designate such documents as “Confidential” pursuant to the terms
of the Protective Order.
6.
Each person appropriately designated pursuant to paragraph 4(f) to receive
Confidential information shall execute a “Written Assurance” in the form attached hereto
as Exhibit A. Opposing counsel shall be notified at least 14 days prior to disclosure to
any such person who is known to be an employee or agent of, or consultant to, any
competitor of the party whose designated documents are sought to be disclosed. Such
notice shall provide a reasonable description of the outside independent person to whom
disclosure is sought sufficient to permit objection to be made. If a party objects in
writing to such disclosure within 14 days after receipt of notice, no disclosure shall be
made until the party seeking disclosure obtains the prior approval of the Court or the
objecting party.
7.
All depositions or portions of depositions taken in this action that contain
trade secrets or confidential information may be designated “Confidential” and thereby
obtain the protections accorded other “Confidential” documents. Confidentiality
designations for depositions shall be made either on the record or by written notice to the
other party within 14 days of receipt of the transcript. Unless otherwise agreed,
depositions shall be treated as “Confidential” during the 14-day period following receipt
of the transcript. The deposition of any witness (or any portion of such deposition) that
encompasses Confidential information shall be taken only in the presence of persons who
are qualified to have access to such information.
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8.
Any party who inadvertently fails to identify documents as “Confidential”
shall, promptly upon discovery of its oversight, provide written notice of the error and
substitute appropriately-designated documents. Any party receiving such improperlydesignated documents shall retrieve such documents from persons not entitled to receive
those documents and, upon receipt of the substitute documents, shall return or destroy the
inadvertently unmarked documents.
9.
If a party files a document containing Confidential information with the
Court, it shall do so in compliance with the Electronic Case Filing Procedures for the
District of Nebraska. Prior to disclosure at trial or a hearing of materials or information
designated “Confidential,” the parties may seek further protections against public
disclosure from the Court.
10.
Inadvertent disclosure of material designated “Confidential” to another
party without identifying the same as “Confidential” and/or of attorney-client privileged
and/or work-product material shall not be deemed a waiver of confidentiality, privilege or
work product with regard to the material inadvertently disclosed, and shall not be deemed
a waiver of confidentiality, privilege and/or work product with regard to similar material.
Any such material inadvertently disclosed shall be returned to the disclosing party
promptly upon receipt by the receiving party of notice of the inadvertent disclosure, and
the receiving party shall keep no copies or reproductions, and shall make no use
whatsoever of the material inadvertently disclosed.
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11.
Any party may request a change in the designation of any information
designated “Confidential.” Any such document shall be treated as designated until the
change is completed. If the requested change in designation is not agreed to, the party
seeking the change may move the Court for appropriate relief, providing notice to any
third party whose designation of produced documents as “Confidential” in the action may
be affected. The party asserting that the material is Confidential shall have the burden of
proving that the information in question is within the scope of protection afforded by Fed.
R. Civ. P. 26(c).
12.
Nothing in this Order requires the disclosure of information, documents or
things protected from disclosure by the attorney-client privilege, the attorney workproduct immunity, or any other applicable privilege or immunity. A Producing Party
may produce a redacted version of information, documents or things that it contends is
protected from disclosure by the attorney-client privilege, the attorney work-product
immunity or any other identified applicable privilege or immunity, identifying where the
privileged or immune material was redacted with the designation “Redacted –
Privileged.”
13.
In the event that a Producing Party inadvertently or mistakenly produces
information, documents or things that are protected from disclosure under the attorneyclient privilege, work-product immunity or any other identified applicable privilege or
immunity, such production shall not prejudice such claim or otherwise constitute a
waiver of any claim of attorney-client privilege, work product immunity or any other
identified applicable privilege or immunity. A Producing Party may at any time notify
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the receiving Party of the inadvertent production in writing and request that the
inadvertently produced information, documents or things, be returned to the Producing
Party. Within three (3) business days of receiving such notice and request, the receiving
Party shall return the inadvertently or mistakenly produced information, documents or
things identified by the Producing Party. The receiving Party shall also destroy extra
copies or summaries of, or notes relating to, any such inadvertently or mistakenly
produced information, except that the receiving Party may retain one copy of such
material for the purpose of submitting such material to the Court under seal. The
receiving Party may challenge the claim of privilege or immunity asserted by the
Producing Party upon motion to the Court.
14.
Within 60 days of the termination of this action, including any appeals,
each party shall either destroy or return to the opposing party all documents designated
by the opposing party as “Confidential,” and all copies of such documents, and shall
destroy all extracts and/or data taken from such documents. Each party shall provide a
certification as to such return or destruction within the 60-day period. However,
attorneys shall be entitled to retain a set of all documents filed with the Court and all
correspondence generated in connection with the action.
15.
Any party may apply to the Court for a modification of the Protective
Order, and nothing in this Protective Order shall be construed to prevent a party from
seeking such further provisions enhancing or limiting confidentiality as may be
appropriate.
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16.
Neither acting nor failing to object to another party’s actions under this
Order shall be construed as a waiver of any claim or defense in this Action.
17.
No action taken in accordance with the Protective Order shall be construed
as a waiver of any claim or defense in the action or of any position as to discoverability
or admissibility of evidence.
18.
The obligations imposed by the Protective Order shall survive the
termination of this action.
19.
The Order entered on this Stipulation shall be effective retroactively to the
date by which counsel first produced documents in this matter.
Dated this 29th day of October, 2012.
BY THE COURT:
s/ Cheryl R. Zwart
United States Magistrate Judge
Stipulated to:
NILAN JOHNSON LEWIS PA
Dated: October 26, 2012
By: s/ Anna Hickman
Matthew E. Damon, Admitted Pro Hac Vice
Anna R. Hickman , Admitted Pro Hac Vice
120 South Sixth Street, Suite 400
Minneapolis, MN 55402-4501
Phone: (612) 305-7500
Facsimile: (612) 305-7501
mdamon@nilanjohnson.com
ahickman@nilanjohnson.com
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-ANDDavid R. Buntain, NE #10506
Tara A. Stingley, NE #23243
CLINE WILLIAMS WRIGHT JOHNSON
& OLDFATHER, L.L.P.
233 South 13th Street
1900 U.S. Bank Building
Lincoln, NE 68508
Phone: (402) 474-6900
Facsimile: (402) 474-5393
dbuntain@clinewilliams.com
tstingley@clinewilliams.com
Attorneys for Defendant
United Parcel Service of America, Inc.
DeMARS, GORDON, OLSON, ZALEWSKI
& WYNNER
Dated: October 24, 2012
By: s/ James C. Zalewski
James C. Zalewski, #16090
Matthew R. Watson, #24735
134 South 13th Street, Suite 800
Lincoln, NE 68508
Phone: (402) 438-2500
Attorneys for Plaintiff
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EXHIBIT A
WRITTEN ASSURANCE
_________________________________________ declares that:
I reside at _______________________________________ in the City of
__________________, County of _________________, State of _________________ .
My telephone number is __________________________________.
I am currently employed by ___________________________________, located at
_____________________________________________________, and my current job
title is ____________________________________________________.
I have read and I understand the terms of the Protective Order dated
________________, filed in Case No. 4:12-cv-03108, pending in the United States
District Court for the District of Nebraska. I agree to comply with and be bound by the
provisions of the Protective Order. I understand that any violation of the Protective
Order may subject me to sanctions by the Court.
I shall not divulge any documents, or copies of documents, designated
“Confidential” obtained pursuant to such Protective Order, or the contents of such
documents, to any person other than those specifically authorized by the Protective
Order. I shall not copy or use such documents except for the purposes of this action and
pursuant to the terms of the Protective Order.
As soon as practical, but no later than 30 days after final termination of this action,
I shall return to the attorney from whom I have received them, any documents in my
possession designated “Confidential”, and all copies, excerpts, summaries, notes, digests,
abstracts, and indices relating to such documents.
I submit myself to the jurisdiction of the United States District Court for the
District of Nebraska for the purpose of enforcing or otherwise providing relief relating to
the Protective Order.
Executed on ______________________
(Date)
(Signature
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