Goral v. Eaton Corporation et al

Filing 20

PROTECTIVE ORDER granting 17 Joint Motion. Ordered by Magistrate Judge Cheryl R. Zwart. (JAB)

IN THE UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF NEBRASKA

ANDREA GORAL, Personal
Representative of the ESTATE OF
KRISTINE GRIFFING, deceased,
Plaintiff,
v.

OMRON ELECTRONICS, L.L.C. and
EATON CORPORATION,
Defendants.

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Case No. 4:13-cv-03003

PROTECTIVE ORDER
Pursuant to the Federal Rules of Civil Procedure and upon joint motion of the parties, the
Court hereby grants, this Protective Order governing the production, use and distribution of
information or data obtained, learned or discovered through the above-referenced lawsuit. This
Court finds that discovery and trial of this action will involve the production and/or disclosure of
the design, production and manufacturing process and procedures of the Defendants, as well as
other corporate information which this Court believes is proprietary, commercially sensitive
and/or confidential and, if disclosed, would confer an unfair competitive advantage upon the
Defendants’ competitors and irreparably compromise the confidential information, trade secrets
and intellectual property rights of the parties. Further, the necessary discovery and trial of this
action will involve the production and/or disclosure of the Defendants’ sensitive business
information and Plaintiff’s decedent’s personal information which this Court believes should
remain confidential and, if disclosed, would confer an undue hardship upon them. The Court
further finds that good cause has been shown to support the entry of this Order.

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I.

DEFINITIONS:

(a)

“Confidential Material” means information deemed by the parties to be
particularly sensitive and includes confidential information that is claimed to be
not publicly available and that, if disclosed and used by anyone other than the
parties in this litigation, may result in undue hardship, unfair competition,
improper disclosure of trade secrets, a loss of the inherent value of such
information, or a violation of confidentiality or privacy of a party.

(b)

“Documents” include, but are not limited to, all physical and electronic forms of
correspondence, letters, transcripts, minutes, telegraphs, cables, tapes, recordings,
films, memoranda, work papers, notes, drafts, press releases, diaries, employment
records, time records, evaluations, appraisals, studies, chemical analyses, other
analyses, ledgers, journals, pages, books or records of accounts, contracts,
agreements, promissory notes, instruments of indebtedness, endorsements,
accounts, statements, purchase orders, receipts, invoices, shipment records,
delivery records, balance sheets, income statements, financial statements,
statistical records, notices, assignments, reports, valuations, evaluations, any other
writings regardless of by whom prepared or to whom addressed and regardless of
whether the document is an original or a copy or whether sent or received. The
term document shall also include any other form of reporting, storing, maintaining
or indexing information including, but not limited to, electronic, computer,
magnetic, microfilm, microfiche storage, shorthand notes, diagrams, magnetic
cards and other forms of storage.

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(c)

“Information” includes all confidential material obtained or learned through
documents and/or testimony.

II.

DESIGNATION OF CONFIDENTIAL MATERIAL

1.

The parties believe certain Documents or Information responsive to discovery

served in this matter will require the production of confidential material, and the parties shall
treat

all

such

Documents

and/or

Information

(when

marked

or

identified

as

“CONFIDENTIAL”) as confidential absent further order of the Court or written agreement of
the parties to this action.
(a)

If a party believes any Document or Information is not confidential, then the party
shall notify opposing counsel in writing stating why the Document or Information
should not be considered Confidential Material, specifically identifying the
Document or Information or attaching a copy of the Document or summary of the
Information. If within (20) days after the receipt of the request to consider the
document non-confidential, the opposing party fails to waive confidentiality as to
the document, the moving party may move this Court to find that the document or
information is not confidential material.

(b)

If required to provide deposition or trial testimony, the parties may designate such
testimony or a portion thereof, including exhibits, as Confidential Material.
Designation of deposition testimony, including exhibits, as Confidential Material
shall be made by placing a statement to such effect on the record in the course of
the deposition of any such person or by notifying all parties in writing within
twenty (20) days after receipt of the transcript. All parties in possession of the
transcript thereafter shall place CONFIDENTIAL (the “Confidential Legend”) at

4130387.1

the top of each page so designated and each photocopy thereof. All deposition
transcripts shall be treated as Confidential Material for a period of twenty (20)
days after receipt of such transcript to allow time for each party to make their
designations of Confidential Material, if any.
(c)

All Documents provided by the parties to this litigation and marked as
Confidential shall continue to be treated as Confidential Material subject to the
terms of this Protective Order until the Court orders otherwise, including the time
in which any party seeks a Court determination that any document is not
confidential material.

(d)

The parties agree and the Court hereby orders that documents produced
inadvertently or prior to the entry of this protective order may be marked
Confidential at the request of either party and subject to the same terms and
conditions set forth herein. Requests for documents to be treated as confidential
after production and/or disclosure shall be made in writing and specifically
identify the document by bates number or other definitive description. The party
receiving the request must affix a “Confidential” label on each document and/or
copy thereof within twenty (20) days from the request and certify in writing that
each document has been marked confidential.

III.

DISCLOSURE OF CONFIDENTIAL MATERIAL

2.

Any Documents, and any Information contained therein, that are designated as

Confidential Material under this Protective Order shall be used only for purposes of the abovecaptioned litigation, not for any business or competitive or other purpose, and shall be disclosed
solely to the following:

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(a)

the attorneys for plaintiff, defendants, third-party plaintiff, and third-party
defendants, including any member, associate, paralegal or secretary of the law
firm for any such, but only in connection with such work;

(b)

the Court, Court personnel and Court reporters, and their personnel, involved in
the adjudication of this action;

(c)

current employees of a party or any expert expressly retained by the party or by
its/his attorney to assist in trial preparation in this case, whether in a consulting or
testifying capacity; provided, however, that, prior to disclosure of confidential
material to such person, such person executes an affidavit in the form attached
hereto as Exhibit “A”;

3.

Counsel for each party shall maintain a complete and current file of the affidavits

executed pursuant to subparagraphs (a) and (c) of paragraph 3 above, which shall be maintained
for one year after this action is finally terminated.
IV.

MAINTENANCE OF CONFIDENTIAL MATERIAL

4.

All Documents, testimony and other materials, or portions thereof, containing

Information subject to by this Protective Order, and the contents of all such materials, as well as
any duplicates, notes, memoranda and other documents referring to any such information, shall
be maintained in the strictest confidence by counsel for the party or parties receiving the same.
The obligation to maintain the confidentiality of Confidential Material shall continue after the
termination of this litigation.
V.

USE OF CONFIDENTIAL MATERIAL IN COURT PROCEEDINGS

5.

All documents containing Confidential Material provided by the parties that are

filed with the Court during this action, including all pleadings, memoranda, duplications or

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photographs purporting to reproduce or paraphrase such Documents or Information, shall be
filed pursuant to the Court’s electronic filing procedures for confidential document or, if allowed
by the Court in sealed envelopes or other appropriately sealed containers, on which shall appear
a statement substantially in the following form:
THIS CONTAINS DOCUMENTS FILED IN THIS CASE BY [NAME OF
PARTY] PURSUANT TO THE PROTECTIVE ORDER ENTERED IN
THIS ACTION, AND IS TO BE FILED AND MAINTAINED UNDER
SEAL, AND IS NOT TO BE OPENED OR THE CONTENTS THEREOF
DISPLAYED OR REVEALED EXCEPT BY ORDER OF THE COURT.
6.

Confidential Material shall not lose its confidential status because it is used in any

Court proceeding in this lawsuit.
VI.

NON-WAIVER OF OBJECTIONS

7.

Nothing contained herein shall bar or limit the use of Confidential Documents

and/or Court files containing the same, upon appeal.
8.

A party shall not be obligated to challenge the propriety of the designation of

documents or information as Confidential Information at the time such designation is made, and
failure to do so shall not preclude a subsequent challenge during the pendency of this litigation,
provided that any such challenge may only be made by motion subject to the applicable
provisions of this Order, the Federal Rules of Civil Procedure and/or the rules of this Court,
including the obligation to confer in good faith prior to the filing of any such motion.
VII.

RETURN OF CONFIDENTIAL MATERIAL AFTER LITIGATION

9.

Within ninety (90) days of the conclusion of the above-captioned litigation,

including any appeal, all Confidential Material, and all copies of same, obtained during this
litigation and that are in the possession of the Parties, counsel for plaintiff, defendants, third-

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party plaintiff, and third-party defendants, or any non-party shall be returned to the producing
party or shall be certified in writing to the producing party as having been destroyed.
SO ORDERED:

s/Cheryl R. Zwart
United States Magistrate Judge
DATE: March 25, 2013

AGREED:

SANDBERG PHOENIX & von GONTARD P.C.

By:

/s/ Jonathan T. Barton
Jonathan T. Barton
600 Washington Avenue - 15th Floor
St. Louis, MO 63101-1313
314-231-3332
314-241-7604 (Fax)
E-mail: [e-mail]
Attorneys for Defendant
Omron Electronics, Inc.
KEATING, O’GARA, NEDVED & PETER, P.C.,
L.L.O.

By:

/s/ Joel N. Nelson/JTB
Jefferson Downing
Joel D. Nelson
530 South 13th Street, Suite 100
Lincoln, NE 68508
402-475-8230
402-475-8328 (Fax)
Attorneys for Plaintiff

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SHIVELY & LANNIN, P.C., L.L.O.

By:

/s/Bob Shively/JTB
Robert W. Shively, Jr.
4400 South 86th Street, Suite 100
Lincoln, NE 68526
402-488-5044
402-488-5110 (Fax)
Attorneys for Eaton Corporation

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IN THE UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF NEBRASKA

ANDREA GORAL, Personal
Representative of the ESTATE OF
KRISTINE GRIFFING, deceased,
Plaintiff,
v.

OMRON ELECTRONICS, L.L.C. and
EATON CORPORATION,
Defendants.

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Case No. 4:13-cv-03003

AFFIDAVIT OF COMPLIANCE WITH STIPULATED PROTECTIVE ORDER
EXHIBIT “A”
The undersigned, having first been sworn under oath, does hereby affirm as follows:
1.

I have on this _______ day of

, 2013 read the Agreed

Protective Order entered by the Court in this case.
2.

I understand that I am bound by the terms and conditions of that Agreed

Protective Order and that I may not use or divulge any information for any purpose other than as
provided in said Order.
3.

I understand and acknowledge that in the event I violate any terms or conditions

of the Agreed Protective Order, I may be subject to punishment and/or censure by said Court for
contempt of the Court’s Order.

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AGREED:
______________________________________
Name:
Address:
Title:
STATE OF
COUNTY OF

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I HEREBY CERTIFY that on this _____ day of _________, 2013 before me personally
appeared ____________________________, who made oath in due form of law that he/she
executed the foregoing document and that the facts contained are true and correct.
AS WITNESS, my hand and Notarial Seal.

____________________________________
Notary Public

My commission expires:

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