Pettigrew v. Cherry County School District No. 16-0006 a/k/a Valentine Community Schools and f/k/a Valentine Rural High School

Filing 33

PROTECTION ORDER granting stipulated Motion for Protective Order. Ordered by Magistrate Judge Cheryl R. Zwart. (JAB)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
BUD PETTIGREW,
Plaintiff,
vs.

CHERRY COUNTY SCHOOL DISTRICT
NO. 16-0006 a/k/a VALENTINE
COMMUNITY SCHOOLS AND f/k/a
VALENTINE RURAL HIGH SCHOOL,
Defendant.

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Case No. 4:12-CV-3159

JOINT STIPULATION FOR
PROTECTION ORDER

WHEREAS, the parties agree that parties to this action may consider certain
information, documents, and other items discoverable in the above-captioned matter,
pursuant to FED. R. CIV. P. 26(c), to be confidential and that such party may seek to
protect such items from disclosure, or to designate such items confidential to avoid
making such information available to non-disclosed party representatives, party
employees, non-parties or the general public;
IT IS HEREBY STIPULATED AND AGREED by and between the parties
hereto, through their undersigned counsel, that:
1.

The following definitions shall apply to the Stipulated Protective Order to

be issued in this action:
“Attorneys” means counsel of record;

1

“Confidential” documents or materials are documents designated
pursuant to paragraph 2;
“Protected” documents or materials are documents and/or materials
designated pursuant to paragraph 2, and protected in accordance with and Order of
this Court;
“Documents” are all materials within the scope of FED. R. CIV. P. 26 and
34;
“Written Assurance” means an executed document in the form attached
as Exhibit A.
2.

Confidential and/or Protected Documents/Material. As used herein, the

term “Confidential and/or Protected Documents/Material” shall mean “confidential
personal information designated by a party in good faith to be confidential,” and/or
“information protected by state statute and any Order of this Court.” Pursuant to
Order of this Court: the following information is also considered Confidential or
Protected Material and/or Confidential or Protected Information: Any personnel files
of any present or past applicants for employment or employees of the Defendant
provided pursuant to 4:12-cv-03159-RGK-CRZ, Document #26 (hereinafter “Order to
Compel”) in this matter.

A party may designate any document, including

interrogatory responses, other discovery responses, or transcripts, to be
“Confidential” or “Protected” that it in good faith contends to constitute or contain
Confidential or Protected Material or Information.
2

Each party shall designate such material it deems “Confidential” or “Protected”
by marking all documents with the designations “Confidential” or “Protected.” In lieu
of marking a document with said designations, the producing party can produce
written documentation in which it identifies the documents it designates
“Confidential” or “Protected.” Only such portions of a deposition transcript as are
affirmatively designated in writing by a party to be “Confidential” or “Protected” shall
be treated as confidential and/or protected. The party designating a portion of a
deposition transcript as such shall provide written notice to all parties by listing the
page and inclusive line numbers of the material to be kept confidential/protected,
and shall designate such pages confidential and/or protected. In any deposition
transcript in which any portion of the transcript has been designated
confidential/protected by any party, the court reporter, or the party holding the
original transcript, shall imprint the word “Confidential” or “Protected” on the front
page of the original of the deposition transcript.

A deposition containing

confidential/protected information shall not be filed with this Court unless it is filed as
provided in Paragraph 5 of this Joint Stipulation for Protection Order.
Expert reports and/or summaries containing Confidential Information shall be
automatically deemed confidential and/or protected if the information used to
prepare the expert reports and/or summaries included Confidential and/or Protected
Materials and/or Confidential and/or Protected Information. An expert report may
avoid such a designation if the expert report avoids specifically referencing
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confidential or protected information and/or replaces confidential or protected
information with non-confidential/protected descriptions.
3.

Litigation of This Action. As used herein, the phrase “litigation of this

action” shall mean preparation for any hearing, trial, or appeal of this action,
including specifically, but not exclusively, pre-trial discovery, trial of this action, any
alternative dispute resolution in this action, including but not limited to mediation, and
preparation for, participation in, and litigation and defense of, any appeal, rehearing,
review or other judicial proceeding which relates to the subject matter of this action.
4.

Use of Confidential or Protected Information: Unless and until agreed by

the undersigned parties, or ordered by the Court, all materials and information
appropriately designated to be “Confidential” and/or “Protected,” and any
summaries, compilations or other work product which contains or reflects such
confidential/protected materials, shall be kept and treated as confidential or
protected and shall be used only for purposes of the litigation of this action.
Confidential and/or Protected Materials designated as such shall not be disclosed to
any person or entity other than: (a) Counsel of record for the parties in this action,
including partners, associates and employees of such counsel; (b) qualified persons
recording testimony involving documents or information described in paragraph 1
(i.e., court reporters) and necessary stenographic or clerical assistants thereof; (c) to
the extent necessary for the litigation of this action, the named parties themselves,
including any trustees, administrators, officers, directors, employees or agents of the
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named parties; (d) to the extent necessary for the litigation of this action, expert
witnesses, consultants, potential witnesses and/or any other person retained in
connection with the litigation of this action; and (e) any Court before which any
aspect of this action is present.
5.

(a)

In the event a receiving party wishes to use any "Confidential"

and/or “Protected” information or materials in any affidavits, briefs, memoranda of
law, deposition transcripts, or other papers filed with the Court in this action, the
party submitting the information to the Court shall file a motion to file restricted
access documents. The motion shall state the restricted access documents filed
contain “Confidential” and/or “Protected” information which is subject to an agreed
protective order between the parties, and not to be placed on the public docket
except upon order of the Court.
(b)

Documents filed by counsel as restricted access documents can

be accessed and viewed by the attorneys of record and the Court, but not by the
general public. Once the motion to file as restricted access documents is granted,
these documents will continue to be accessible for viewing by only the Court and the
attorneys of record during the pendency of this case and after its conclusion.
(c)

This paragraph does not apply to exhibits offered at a hearing.

Any Party shall be entitled to seek a protective order concerning “Confidential”
and/or “Protected” material to be introduced in such a proceeding as it deems
reasonable and/or necessary to protect disclosure of such information to the public.
5

No later than fourteen (14) days before the date of any hearing or trial, a receiving
Party shall advise a producing Party in writing of any “Confidential” and/or
“Protected” material he intends to use in such proceeding to afford the producing
Party an opportunity to seek a protective order.
6.

Promptly upon completion of this action, each party shall return to the

designating party all documents designated by that party as “Confidential” and/or
“Protected” and all copies thereof, except deposition transcripts or documents filed
with the Court. Each party shall certify in writing that it has returned all documents
designated as “Confidential” and/or “Protected” in accord with this paragraph.
Termination of the litigation of this action shall not, however, relieve any person to
whom Confidential and/or Protected Material and/or Confidential and/or Protected
Information was disclosed, including counsel for the parties, from the obligation of
maintaining the confidentiality of all such material or information received pursuant to
this Joint Stipulation for Protection Order.
7.

Any party may object to the designation by any other party of any

material as "Confidential" or “Protected” by notifying the party that designated the
material as confidential/protected in writing and stating the basis for its objection.
The parties shall, within seven (7) days after service of the objection, confer in an
attempt to resolve the dispute. If the designating party refuses to confer within the
required seven (7) days, or if the parties are unable, after conferring, to resolve the
matters, the dispute may be submitted to the Court for resolution. The party
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challenging the designation of materials as “Confidential” and/or “Protected” shall
have the burden to establish the impropriety of that designation. If the Court
determines that a party has unreasonably or in bad faith designated documents or
materials to be “Confidential” and/or “Protected” which are neither confidential nor
entitled to protection, the Court may award costs and sanctions as permitted under
the Federal Rules of Civil Procedure.
8.

If a party inadvertently discloses any document or thing containing

information that it deems confidential without designating it as "Confidential" and/or
“Protected,” the disclosing party shall promptly upon discovery of such inadvertent
disclosure inform the receiving party in writing and the receiving party shall thereafter
treat the information as “Confidential” and/or “Protected” under this Joint Stipulation
for Protection Order. To the extent such information may have been disclosed to
persons other than authorized person described in this document, the receiving party
shall make every reasonable effort to retrieve the information promptly from such
person and to avoid any further disclosure to non-authorized person. If a producing
party inadvertently discloses to a receiving party information that is privileged or
otherwise immune from discovery, said producing party shall promptly upon
discovery of such disclosure so advise the receiving party in writing and request that
the item or items of information be returned, and no party to this action shall
thereafter assert that such disclosure waived any privilege or immunity. It is further
agreed that the receiving party will return such inadvertently produced item or items
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of information and all copies thereof within ten (10) days of the earliest of (a)
discovery by the receiving party of its inadvertent production, or (b) receiving a
written request for the return of such item or items of information. The party having
returned such inadvertently produced item or items of information may thereafter,
without asserting waiver because of inadvertent production, seek production of any
such documents in accordance with the Federal Rules of Civil Procedure.
9.

Notwithstanding any other provision of this Joint Stipulation for

Protection Order, any person indicated on the face of a “Confidential” and/or
“Protected” document as having been its originator, author, or a recipient thereof,
may be shown the same. That person's representative may also be shown the
same.
10.

Nothing in this stipulation shall be deemed to preclude any party from

seeking and obtaining, on an appropriate showing, additional protection with respect
to the confidentiality or protected status of documents or other discovery material, or
relief from this stipulation with respect to particular material designated hereunder.
11.

Each of the firms and parties named above, by executing a copy of this

Joint Stipulation for Protection Order, undertakes to abide by and be bound by its
provisions and to use due care to see that its provisions are known and adhered to
by those under its supervision or control.
Date: October 16, 2012.

Date: October 16, 2012.

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By:

s/ Michael W. Khalili
Michael W. Khalili, # 24508
KNUDSEN, BERKHEIMER,
RICHARDSON & ENDACOTT, LLP
3800 VerMaas Place – Suite 200
Lincoln, NE 68502
[phone]
Attorney for Defendant

By:

By: s/ Steven E. Williams
Steven E. Williams, # 21111
HARDING & SHULTZ P.C.,L.L.O.
800 Lincoln Square
121 South 13th Street
Lincoln, NE 68508
[phone]
Attorney for Thayer County
School District No. 85-0070

s/ Kathleen M. Neary
Kathleen M. Neary, #20212
VINCENT M. POWERS & ASSOCIATES
411 S. 13th Street, Suite 300
Lincoln, NE 68508
[phone]

IT IS ORDERED:
----The terms and conditions of the foregoing Joint Stipulation for Protective Order
are hereby adopted and ordered by the Court.
---------10/18/2012
______________________________
United States Magistrate Judge

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Michael W. Khalili