Lincoln Composites, Inc. v. Firetrace USA, LLC

Filing 23

ORDER granting 22 Joint Motion for Protective Order Governing the Exchange and Use of Confidential Information. Ordered by Magistrate Judge Cheryl R. Zwart. (JAB)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA

LINCOLN COMPOSITES, INC.,
Plaintiff,
v.
FIRETRACE USA, LLC,
Defendant.

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4:12-CV-3142

ORDER GOVERNING THE EXCHANGE
AND USE OF CONFIDENTIAL
INFORMATION

On the motion [Document No. 22] dated March 20, 2013 for entry of an order regarding
confidentiality of documents and other information, and the Court being advised that confidential
information will be produced by various persons and entities in these proceedings, and it
appearing that the relief requested is in the best interests of the parties herein, that due and
sufficient notice of the motion having been given, and that no further or other notice need to be
provided, the Court enters this Order governing the exchange and use of such information.
1.

This Order Governing the Exchange and Use of Confidential Information

(“Order”) applies to Lincoln Composites, Inc. (“Plaintiff”), Firetrace USA, LLC (“Defendant”)
and any other person or entity producing or providing documents or other information in
connection with these proceedings.
2.

This Order shall govern all documents and other discovery materials and

information designated as “Confidential Information” and/or “Attorneys Eyes Only” and
produced pursuant to any mandatory disclosure obligations or in response to any formal or
informal discovery requests in these proceedings. This Order shall govern, among other things,
documents and information produced pursuant to Rules 26, 34 or 45 of the Federal Rules of Civil

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Procedure, deposition and/or trial transcripts, all information contained therein, and all copies,
excerpts or summaries thereof.
3.

A person or entity may designate certain materials and information as

“Confidential Information” under this Order if the designating party reasonably believes that
such materials and information contain non-public, confidential, technical, proprietary, financial,
secret or other commercially sensitive or otherwise private information.
4.

A person or entity may designate certain materials and information as “Attorneys

Eyes Only” under this Order if the designating party reasonably believes that such materials and
information are so confidential that their dissemination should be limited to those persons
described in paragraph 9 below. Attorneys Eyes Only Information shall be restricted to Outside
Counsel’s eyes only, except as set forth in paragraph 8 below. All persons receiving Attorneys
Eyes Only Information (but not Outside Counsel or those persons affiliated with the Court) shall
be required to execute the undertaking attached hereto as Exhibit A (“Undertaking”) before or in
conjunction with receiving or reviewing any Attorneys Eyes Only Information.
5.

Confidential Information and Attorneys Eyes Only Information (collectively,

“Restricted Information”) may be used solely for purposes of these proceedings.
6.

A person or entity may designate materials and information as Confidential

Information or Attorneys Eyes Only by affixing a legend substantially similar to “Confidential”
or “Attorneys Eyes Only,” respectively, to each page of the document; provided that the
inadvertent failure to designate materials or information as Confidential Information or
Attorneys Eyes Only Information at the time of production shall not constitute a waiver of such
right, and such failure may be remedied by the producing party by notifying the receiving party

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of the proper designation, whereupon all materials so re-designated shall be fully subject to the
appropriate confidentiality restrictions in this Stipulation.
7.

Materials and information designated as “Confidential Information” may be

disclosed, summarized, described or otherwise communicated or made available in whole or in
part only to the following persons:
(a)

Outside counsel who represents any party and is counsel of record in

connection with this proceeding, including lawyers, paralegals and support staff in their law
firms (“Outside Counsel”);
(b)

In-house counsel for the parties, as well as those of their employees who

are necessary for the prosecution or defense of these proceedings;
(c)

Witnesses or deponents and their counsel during the course of, and only to

the extent necessary for, the prosecution or defense of these proceedings;
(d)

Any outside expert or consultant retained by counsel in connection with

these proceedings who is not an employee of the parties, provided that such expert or consultant
may use such Restricted Information solely in connection with the prosecution or defense of
these proceedings. Any outside expert or consultant receiving Restricted Information (but not
those persons affiliated with the Court) shall be required to execute the Undertaking attached
hereto as Exhibit “A” before or in conjunction with reviewing any Confidential Information;
(e)

Specifically as to a particular document or information designated as

Restricted Information, any person indicated on such document as its author, addressee, or a
copy recipient, or for whom a party’s counsel has a reasonable good-faith belief has had previous
lawful access to the Restricted Information;

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(f)

The Court and its employees, to the extent that such material or

information is filed with, or submitted to, the Court in connection with these proceedings (in
which case such material or information must be filed under seal), or court reporters or
videographers employed in connection with these proceedings; and
(g)

Any other person upon further order of the Court or stipulation of the

parties.
8.

Materials and information designated as “Attorneys Eyes Only” may be disclosed,

summarized, described or otherwise communicated or made available by the receiving party in
whole or in part only to Outside Counsel, to the Court and its employees (in which case such
material shall be filed under seal), court reporters, and experts and consultants retained by
Outside Counsel. Provided that, such experts and consultants (a) may use Restricted Information
solely in connection with the prosecution or defense of these proceedings, and (b) shall be
required to execute the Undertaking attached hereto as Exhibit “A” before or in conjunction with
reviewing any Attorneys Eyes Only Information.

The parties agree to work together as

necessary (as well as with any third party as may be applicable) to agree on further disclosure of
Restricted Information designated as “Attorneys Eyes Only”; provided however, that no
disclosure shall be made to any other individuals in the absence of agreement by the producing
party or an order from the Court. Nothing in this Order shall prevent Outside Counsel from
advising their clients about Outside Counsels’ impressions, recommendations, strategies, or
opinions formed in part based on a review of Attorneys Eyes Only Information, provided that
Outside Counsel may not communicate Attorneys Eyes Only Information to clients.
9.

The parties will work together to limit the disclosure of any Restricted

Information at any public hearing, trial, or other proceeding in connection with these

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proceedings. As such, if a receiving party intends to disclose any Restricted Information in such
a setting, before making such disclosure, the receiving party shall (a) inform the producing party
that it intends to disclose the Restricted Information, and (b) cooperate with the producing party
to limit, to the maximum extent possible, the amount of Restricted Information that will be
disclosed, if at all, including treatment of the hearing transcript and/or exhibits containing the
Restricted Information.
10.

All documents of any kind to be filed with the Court, including legal memoranda

and any attachments thereto, that contain Restricted Information shall be filed under seal in
accordance with the applicable rules of this Court, and may not be disclosed in public court
proceedings or otherwise without the prior approval of the producing party or the Court.
11.

Counsel for a party receiving Attorneys Eyes Only Information shall, upon

written request from the producing party, provide copies of all Undertakings to counsel for the
producing party within three (3) days of receiving such written request for same.
12.

If a party objects to the designation of any materials or information as

“Confidential Information” or “Attorneys Eyes Only,” or seeks to disclose such Restricted
Information to individuals other than those permitted under this Order as identified in paragraphs
7 and 8, respectively, it shall state the objection and/or request by letter to counsel for the
producing party. The parties shall attempt to resolve the dispute among themselves, and if
applicable with any third party, in a timely manner. In the absence of such resolution, the
receiving party may move the Court for an order challenging such confidentiality designation or
restriction, provided however, that such Restricted Information shall continue to be deemed
“Confidential Information” or “Attorneys Eyes Only,” as designated, and so treated under the
terms of this Order, unless and until the Court has entered a final order to the contrary and the

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period for appeal of such order has expired, or the producing party agrees in writing to withdraw
the confidentiality designation, or agrees to the request for broader disclosure, as applicable.
13.

Producing and/or receiving Restricted Information or otherwise complying with

the terms and conditions of this Order shall not (a) constitute an admission that any Restricted
Information contains or reflects trade secrets or other private or confidential information, (b)
prejudice in any way a party’s right to object to the production of materials or information, (c)
prevent the parties from agreeing to alter or waive the provisions herein with respect to any
particular Restricted Information, (d) prejudice in any way a party’s right to object to the
admissibility, authenticity or use of any Restricted Information, or (e) prejudice in any way the
rights of any party to seek further protection or a determination by the Court whether any
material or information designated Restricted Information should be subject to this Order.
14.

Nothing herein shall impose any restrictions on the use or disclosure by any party

of documents or information otherwise designated as Confidential Information or Attorneys Eyes
Only that have been obtained lawfully, independently and outside of these proceedings, where
(a) such information or documents were or became generally available to the public other than as
a result of a disclosure under this Order; (b) the party can reasonably demonstrate that such
information or documents were known to it, prior to disclosure under this Order, on terms that do
not restrict its further disclosure; or (c) such information or documents become available to the
party on a non-confidential basis from a source other than disclosure under this Order, provided
that such source is not, to the knowledge of the receiving party, subject to any prohibition against
transmitting such information.
15.

Nothing herein shall be construed as limiting in any way a party’s use of its own

Confidential or Attorneys Eyes Only.

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16.

Inadvertent disclosure of Restricted Information that is protected from disclosure

under attorney-client privilege, work-product immunity, and/or any other applicable privilege or
immunity shall not constitute a waiver of, or an estoppel as to any claim of, such privilege or
immunity. If a producing party at any time notifies a receiving party in writing that it has
inadvertently produced such Restricted Information, the receiving party shall return all copies of
such Restricted Information to the producing party within five (5) days of receipt of such notice,
and shall not further use such items for any purpose unless authorized to do so by further order of
the Court or agreement of the parties. The return of any Restricted Information shall not in any
way preclude a party from moving the Court for an order that (a) the Restricted Information was
never privileged or otherwise immune from disclosure and/or (b) that any applicable privilege or
immunity has been waived by some act other than production of the Restricted Information.
Except as expressly set forth in this paragraph regarding return of inadvertently produced
Restricted Information which is also protected from disclosure, this Order does not alter or affect
the attorney/client privilege, work product protection, or any other applicable privilege.
17.

Upon the closing of the case and any appeals thereof, the parties shall, upon

request, return any Restricted Information that had been produced (and all copies, summaries and
excerpts therefrom), including third party documents, to the producing party or destroy all such
Restricted Information, at the receiving party’s option. The receiving party will, upon request,
provide verification to the producing party that such Restricted Information has been destroyed.
18.

In the event that a subpoena, document request or public records request calls for

production of Restricted Information, the party receiving the subpoena or other request shall
promptly notify counsel for the designating party of the subpoena or other request and shall

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cooperate with the designating party to prevent any disclosure to which the designating party has
not consented.
19.

This Order is entered solely for the purpose of facilitating the exchange of

documents and information among parties to this proceeding without involving the Court
unnecessarily in the process. Nothing in this Order nor the production of any document or
information pursuant to this Order nor any proceeding pursuant to this Order shall be deemed to
have the effect of and admission or waiver by any party of any rights or privileges.

March 22, 2013
BY THE COURT:
s/ Cheryl R. Zwart
United States Magistrate Judge

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EXHIBIT A

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA

LINCOLN COMPOSITES, INC.,
Plaintiff,
v.
FIRETRACE USA, LLC,
Defendant.

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4:12-CV-3142

UNDERTAKING OF ________________

I _________________________, being duly sworn, state that:
1.

My address is _____________________________________________________.

2.

My present employer is ______________________________________________

3.

My present occupation or job description is ______________________________
__________________________________________________________________

4.

I have received a copy of the Order Governing the Exchange And Use Of

Confidential Information (the “Order”).
5.

I have carefully read and understand the provisions of the Order.

6.

I will comply with all of the provisions of the Order.

7.

I will hold in confidence, will not disclose to anyone not qualified under the

Order, and will use only for purposes of these proceedings any Restricted Information (as
defined in the Order) which is disclosed to me.
8.

I will return all Restricted Information which comes into my possession, and

documents or things which I have received or prepared relating thereto, to counsel for the party
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by whom I am employed or retained at the conclusion of my retainer or at the final termination
of these proceedings.
9.

I hereby submit to the jurisdiction of the United States District Court for the

District of Nebraska for the purpose of enforcement of the Order.

(Signature)
By:
Address:

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