Ludlow v. BNSF Railway Company

Filing 11

PROTECTIVE ORDER granting 10 Motion for Protective Order Ordered by Magistrate Judge Cheryl R. Zwart. (Zwart, Cheryl)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA

KIRK J. LUDLOW,
Plaintiff,

v.
BNSF RAILWAY COMPANY, a
Delaware Corporation,
Defendant.

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4:12CV3113

PROTECTIVE ORDER

Pursuant to the Joint Stipulated Motion for Protective Order filed by the parties,
the Court hereby Orders as follows:
1.
information,

This Protective Order shall apply to all documents, materials, and
including

without

limitation,

documents

produced,

answers

to

interrogatories, responses to requests for admission, deposition testimony, and other
information disclosed pursuant to the disclosure or discovery duties created by the
Federal Rules of Civil Procedure.
2.

As used in this Protective Order, “document” is defined as provided by

Fed. R. Civ. P. 34(a). A draft or non-identical copy is a separate document within the
meaning of this term.
3.

One who provides, serves, discloses or files any nonpublic documents or

information in connection with this civil action, and who in good faith believes such

documents or information contains nonpublic personal, personnel, employment, private,
medical, or other information implicating privacy interests, proprietary interests or safety
and security concerns of either the Plaintiff, Kirk J. Ludlow, or the Defendant, BNSF
Railway Company, may designate such documents or information as “Confidential.”
The documents or information so designated shall be deemed “Confidential Material”
subject to this Protective Order.
4.

Confidential Material shall be subject to the following restrictions.

Confidential Material shall be used only for the limited purpose of preparing for and
conducting this civil action (including any appeals), and not for any other purpose
whatsoever, and shall not, without the consent of the party producing it or further Order
of the Court, be disclosed in any way to anyone except those specified in this
paragraph:
(a)

attorneys actively working on this case;

(b)

persons regularly employed or associated with the attorneys actively

working on the case whose assistance is required by said attorneys in the preparation
for trial, or at other proceedings in this case;
(c)

the parties and designated representatives of the Defendant;

(d)

testifying expert witnesses retained in connection with the proceeding

(e)

consulting expert witnesses and other consultants retained in connection

with this proceeding, to the extent such disclosure is necessary for preparation, trial or
other proceedings in this case;
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(f)

the Court and its employees (“Court Personnel”);

(g)

stenographic reporters who are engaged in proceedings necessarily

incident to the conduct of this action;
(h)

deponents, witnesses, or potential witnesses who execute the attached

Exhibit A;
(h)

and other persons by written agreement of the parties who execute the

attached Exhibit A.
5.

No Confidential Material shall be disclosed to anyone other than the

named parties in this litigation or their counsel until said person first signs an agreement
with respect to the confidentiality of such information in the form attached hereto as
Exhibit A. Prior to disclosing any Confidential Material to any person listed in paragraph
4 above (other than counsel, persons employed by counsel, Court Personnel and
stenographic reporters), counsel shall provide such person with a copy of this Protective
Order and have such person execute a copy of Exhibit A acknowledging that he or she
has read this Protective Order and agreed to be bound by its provisions. All such
acknowledgments shall be retained by counsel and shall be subject to in camera review
by the Court if good cause for review is demonstrated by opposing counsel.
6.

This Protective Order shall not prohibit or restrain any party from

performing the tasks necessary to prepare for trial; however, any redisclosure or
communication of the information covered by this Protective Order, except as
specifically allowed by this Protective Order for the purposes of this litigation only, is
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strictly prohibited. The object of this Protective Order is that none of the information
revealed in connection with such protections be used for any purpose other than in
relation to this litigation and that no one be allowed to use any information produced
pursuant to this order in connection with any other issue, dispute, litigation or charge
against any of the parties whether currently pending or contemplated in the future.
7.

No reproduction of information disclosed in reliance on this Protective

Order is authorized, except to the extent copies are required to prepare the case for
trial. All copies, excerpts, or summaries made, shown, or given to those authorized
hereby and according to the provisions hereof shall be stamped to indicate the
protected and confidential nature of the disclosed information.

Review of Confidential

Material by counsel, experts or consultants for the litigation will not constitute any waiver
of the confidentiality of the document or of any objections to production.

The

inadvertent, unintentional or in camera disclosure of Confidential Material shall not,
under any circumstances, be deemed a waiver, in whole or in part, of any claims of
confidentiality.
8.

Counsel to the parties are required to advise, instruct and supervise all

associates, staff and employees of counsel to keep designated Confidential Material
confidential in the strictest possible fashion. Counsel and the Parties also agree to such
treatment of the information by themselves, and counsel will appropriately instruct their
clients as to the protected nature of the information produced pursuant to this order and
the limitations on its use and disclosure.
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9.

Documents are designated as Confidential Material by placing or affixing

on them (in a manner that will not interfere with their legibility) the following or other
appropriate notice: “CONFIDENTIAL.”
10.

Whenever a deposition involves the disclosure of Confidential Material,

the deposition or portions thereof shall be designated as Confidential and subject to this
Protective Order. Such designation shall be made on the record during the deposition
whenever possible, but a party may designate portions of depositions as Confidential
after transcription, provided written notice of the designation is promptly given to all
counsel of record within thirty (30) days after notice by the court reporter of the
completion of the transcript. The cover page, those portions of the original transcripts
that contain confidential material shall bear the legend “CONFIDENTIAL—SUBJECT
TO PROTECTIVE ORDER,” and shall be bound or otherwise designated separately
from the non-confidential portions of the transcript. Any deposition exhibits designated
confidential shall also be bound or designated separately.
11.

A party may object to the designation of particular documents as

Confidential Material by giving written notice to the party designating the disputed
information. The written notice shall identify the information to which objection is made.
If the parties cannot resolve the objection within fourteen (14) business days after the
time the notice is received, it shall be the obligation of the party designating the
information as confidential to file an appropriate motion requesting that the Court
determine whether the disputed information should be subject to the terms of this
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Protective Order. If such a motion is timely filed, the dispute information shall be treated
as confidential under the terms of this Protective Order until the Court rules on the
motion. If the designating party fails to file such a motion within the prescribed time, the
disputed information shall lose its designation as confidential and shall not thereafter be
treated as confidential in accordance with this Protective Order. In connection with any
motion filed under this provision, the party designating the information as confidential
shall bear the burden of establishing that good cause exists for the disputed information
to be treated as confidential.
12.

After the conclusion of this case, unless other arrangements are agreed

upon, each document and all copies thereof designated as Confidential shall be
maintained as confidential by the parties and their counsel and destroyed pursuant to
the applicable records retention policies of the parties and their counsel.
13.

Stamped confidential documents shall not be filed with the clerk except

when required in connection with motions under Federal Rules of Civil Procedure 12 or
56, motions to determine confidentiality under the terms of this Protective Order, and
motions related to discovery disputes if the confidential documents are relevant to the
motion. A party contemplating filing Confidential Material protected by this Protective
Order to the Court must include a notice to the Court that Confidential Material is being
filed under seal pursuant to the ECF procedures and the local rules of this Court.

All

Confidential Materials so filed with the Court shall be maintained by the Clerk of the
Court under seal and shall be released only upon further Order of the Court.
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14.

This Protective Order may be modified by the Court at any time for good

cause shown following notice to all parties and an opportunity for them to be heard.
15.

Nothing in this Protective Order shall prevent any party or other person

from seeking modification of this order or from objecting to discovery that the party or
other person believes to be improper. Nothing in this Protective Order shall prejudice
the right of any party to contest the alleged relevancy, admissibility, or discoverability of
confidential documents or information sought.
Dated this _____ day of July, 2012.
13th
BY THE COURT:
__________________________
Cheryl R. Zwart
United States Magistrate Judge

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA

KIRK J. LUDLOW,

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Plaintiff,

v.
BNSF RAILWAY COMPANY, a
Delaware Corporation,
Defendant.

4:12CV3113

EXHIBIT A TO PROTECTIVE
ORDER--CONFIDENTIALITY
AGREEMENT

I, _____________________________________, the undersigned, being duly sworn, hereby
acknowledges that I have read the Protective Order issued by the Court in the above captioned civil
action and I understand the terms and conditions of such Protective Order governing the restricted use of
information and materials obtained from the Parties and provided to me for the sole purposes of the
above captioned action, and hereby agree to keep all such information and materials strictly and
absolutely confidential, and in all other respects to be bound by the terms of the Protective Order.

My current address and telephone number is:

________________________________
________________________________
________________________________
Signature

STATE of _________________ )
)ss.
COUNTY of _______________ )
The foregoing Confidentiality Agreement was sworn and acknowledged to before me by
_________________________ on this ______ day of _____________________, 201___.
Witness my hand and official seal.
[S E A L]

_________________________
Notary Public

My commission expires:_________________________

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