Concord Hospitality, Inc. et al v. First Franchise Capital Corporation

Filing 33

PROTECTIVE ORDER - The parties' Stipulation to Entry of Protective Order 32 , is hereby accepted. Ordered by Magistrate Judge Cheryl R. Zwart. (JSF)

IN THE UNITED STATES DISTRICT COURT
FOR DISTRICT OF NEBRASKA
CONCORD HOSPITALITY, JNC. et al.,

Plaintiffs,
v.
FIRST
FRANCHISE
CORPORATION,

Defendant.

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Case No. 4:13-cv-3048

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Protective Order

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The parties' stipulation, (Filing No. 32), is hereby accepted. Pursuant to that
stipulation, and Federal Rule of Evidence 502, the court orders as follows:

The following protective order is for purposes of expediting the flow of ·
discovery, facilitating the resolution of disputes over claims of confidentiality,
providing adequate protection for material deemed confidential, and assuring
protection is afforded only to such designated material.
1. ln connection with any and all discovery in this action, any party may
designate any document or other information produced (collectively referred to
herein as "Material") to be "Confidential Information" under the terms of this
order.
2. A party may designate Material as Confidential Information if that·
party in good faith believes that such Material constitutes confidential medical
or employment information; proprietary. information; trade secrets; internal
audit practices and procedures and/or confidential business or project-related
information.
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3. Designation of Material may be made by stamping or otherwise
marking the Material prior to filing or production as follows:
"CONFIDENTIAL." Such marking shall occur on every page of the Material·
that is designated as Confidential Information.
4. Testimony given at deposition, conference, hearing, arbitration, trial or
other proceeding may be designated as Confidential Information by making a
statement to that effect on the record at such proceeding. Arrangements shall ·

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be made with the court reporter, if any, transcribing such testimony to bind
separately any portions of the transcript containing Confidential Information, .·
including Confidential Information introduced as exhibits at the proceeding,
~. and:_to label~-suchportions "CONFIDENTIAL/'~ ~-A--pa~ty~~may~designate . ~~~
testimony and/or exhibits to a deposition as Confidential Information. by
notifying the other party of such designation· within twenty (20) days· of the
party's receipt of the deposition transcription. Such information is not
protected by this order until it has been designated as Confidential
Information.
5. Material disclosed in response to. Interrogatories or other written.
discovery may be designated as Confidential Information by indicating the
same in bold and capitalized letters in the response.
6. Confidential Information may be disclosed or made available only to the
following individuals and to the extent reasonably necessary for the purpose of
assisting in the prosecution or defense of this litigation:
a.

The court, including its staff;

b.
Counsel to the parties in this litigation, including partners and
associate attorneys, paralegals, clerical and other support staff who are
employed by such counsel and are assisting counsel in this litigation.
c.
Parties, in this litigation, including any employees of any
corporate party.
d.
Court reporters who record deposition or other testimony in this
litigation; ·
e.
Expert witnesses and/or consultants retained by parties or their
counsel for this litigation.
f.
Third party witnesses at any deposition or other proceeding in
this action;
g.
Any .mediator and/or arbitrator engaged to assist m the
resolution of this litigation; and
h.

Any other person as to whom the parties agree in writing.

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Any person identified in Paragraphs 6(c), 6(e), 6(:£), 6(g), and 6(h) shall
retain Confidential Information only as reasonably necessary for the purposes
of their role in this litigation and shall return any Confidential Information to
counsel .who provided. -the ConfidentiaLinformation_ to them _after .such _
purposes have been achieved.
7. Prior to receiving any Confidential Information, any person identified in
Paragraph 6(e) through 6(h) shall be provided with a copy of this order and
agree to be bound by its terms, and shall certify such agreement by signing
Exhibit "A" to this order. Counsel or Pro Se Parties making disclosure to: any
person described herein shall retain the original executed copy of the
certificate until final resolution of this litigation.
8. Confidential Information shall be used or disclosed solely in connection
with, and only as necessary to, this litigation and the preparation and trial of
this case, or any related appellate proceedings, and not for any other reasons,
including any business competitive purposes, governmental purposes, or
personal purposes. The non-producing party must use or disclose Confidential
Information only in accordance with the provisions of this order.
9. If Confidential Information is included in any Material to be filed with
the Court, such Material shall be labeled "CONFIDENTIAL" and filed or
otherwise submitted in accordance with the Court's rules for such Material.
Any party claiming confidentiality with respect to the Confidential
Information may file a motion to seal the records.
10. A party receiving from another party Material that has been
designated as Confidential Information pursuant to this order may object in
writing to the designation and must state the reasons for such objection with .
.respect to each item. ·The parties shall then meet and confer in good faith
regarding the designation. If the parties are unable to come to an agreement
regarding the designation, the party challenging the designation shall be
obligated to file a motion with the Court challenging such designation.
11. In the event that any Confidential Information is used in any court,
arbitration, mediation, deposition, or other proceeding in this action, such use
shall not affect its confidential status.

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12. This order shall be without prejudice to the right of any party to: (a)
bring before theccourt at .any time the question of whether any particular
. Material is confidential; (b) present an application or motion to the court for a
----protective order as."to--any.cparticular Material, including. one.requesting .
restrictions different from those specified herein; (c) object to the production of
any Material it reasonably considers not subject to discovery; and/or (d) apply·
to or move the Court for an order compelling production of Material- or
modifying this order . or any order. otherwise permitting disclosure of
Confidential Information beyond the terms of this order.
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13. If a party, through inadvertence, ·produces any Confidential
Information or documents without labeling or marking or otherwise
designating it as such in accordance with the provisions of this order,· the
producing party may give written notice to· the receiving party· that the
document or thing produced is deemed confideritia1 and should be treated as
such in accordance with the provisions ofthis order. The receiving party must
treat such documents and things as confidential from the date such notice is
received. Disclosure, prior to the receipt of such notice, of such Confidential
Information to persons not authorized to receive Confidential Information
shall not be deemed by a violation of this order.

14. If a party, through inadvertence, produces any document or
information that it believes is immune from discovery pursuant to an
attorney/client privilege or the work product privilege, such production shall
not be deemed a waiver of any privilege, and the producing party may give
written notice to the receiving party that the document or information
produced is deemed privileged and that return of the document or information
is requested. Upon receipt of such written notice, the receiving party shall
immediately_gather the original and all cop-ies of the document or information
· of which the receiving partY is aware arid shall immediately returii the
original and all such copies to the producing party. The return of the
document(s) and/or information to the producing party shall not preclude the
receiving party from later moving to the Court· to compel production of the
returned documents and/or information.
15. Nothing in this order shall be deemed a waiver of any pa.rty's right to
object to production of any documents or other tangible things or answers to
interrogatories for lack of timeliness, relevance or materiality, or as a

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privileged communication, or as trial preparation materials, or ·as not
. reasonably calculated to lead to the discovery of admissible evidence .
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J(3 ...Wit.h.i!l.l3.i~tY _(§Q). <l::t:Y§_gfth~ CP:tl<::l_u,sjgp. ()ft):1e ~1·~a] Cirt_d Qf arty a:ePE:l~l,s_,

or . upon other resolution of this litigation, all. Material design:;~.ted as
Confidential Information received under the provision of this order and all .
.copies of the Material shall be tendered back to the producing party, person, or
entity, or, at the direction of the court or producing party, person, or entity, be
destroyed.
17. This order is entered solely for the :pu:ry.ose of facilitating the exchange.
of Material between the parties without unnecessarily involving the Court. No
party admits anything or waives any .otherwise unaffected right by entering .. ·
.into this order or performing under this Order. No party shall argue, question,
or imply in any way before a jury or other trier of fact that the designation of
any Material as Confidential Information is improper or suspect, or that any
adverse inferences may be drawn from the designation. (The parties
acknowledge that this provision does not prevent any party from challenging
the confidentiality of any Material as provided in Paragraph 12 before the
Court by pre-trial motion or other proceeding outside the presence of a jury
despite the fact that the Court may serve as a trier of fact)
18. Nothing in this order shall impose any restriction on the use or
disclosure by a party of Material that it obtains independent of discovery and
other proceedings in this action, without regard to whether such Material is
also produced through discovery or other proc~edings in this Action. This order.
also does not impose any restriction on any party regarding disclosure of its.
own Confidentialinformation if it so wishes.
19. The court may enter such other and further relief as it deems
appropriate and this order is without prejudice to the right of any party to
apply for such relief.

20. If another court, administrative agency, tribunal, person, or entity
· ~subpoenas or orders production of Confidential Information that a party has
obtained pursuant to this order, that party shall promptly notify the producing
party of the subpoena or production order. Such notice must be provided in
sufficient time to give the producing party, if possible, the opportunity to
participate in quashing, modifying, or otherwise responding to any compulsory

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process in an appropriate and timely manner. Upon the filing by the producing .
. party of a motion to quash or for protective order, the subpoenaed party shall
withhold production of documents during the pendency of the motion, unless
..;required by .law (or court order) not to-withhold production .. --- - --· .. - 21.. This court. shall retain jurisdiction over this order and the parties,
their counsel, and those persons to whom the Confidential Information was
disclosed for thepurposes of enforcing the terms of this order.

16th
Dated: October_·_ _, 2013

BY THE COURT:

UnitedStates Magistrate Court Magistrate
United States District Judge

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Exhibit "A"
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Agreement to Comply With Protective Order

acknow

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or

~ 1 he~eoy
1ed:ge~;receTpfof ~IIi tel'!a]s
il:i!o~iuation ane.ged~to be ···
"Confidential . - Subject to Protective Order" and/or "Confidential" by
-.,-----,------~--.,.--~-·.I certify my ur1derstanding that such material is
provided to. me purslJ.ant to the terms and restrictions of the Court Order of
_ _ _ _ _, 2013, [Case Name], Case No.
in the United States
District Court for the District of Nebraska and that I have been given a copy of
and have read said order. I understand that I am to make no copies. of any of
the aforesaid documentary material and that it is to remain in my personal
custody. until I have completed my assigned duties,· wP,ereupon it is to· be ...
returned to counsel who provided me with said material. I further agree to
notify any stenographic or clerical personnel who are required to assist me in
terms of said order. I also agree not to use, disseminate such information,
except for purposes of this action and as permitted by said order or a further
order ofthis court.

Dated: ___________

Signed: _______________

Name Printed: _____________

4837-5036-6229, v. 1

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