Linc-Drop, Inc. v. City of Lincoln et al

Filing 18

PROTECTIVE ORDER granting 16 Joint Motion for Protective Order. Ordered by Magistrate Judge Cheryl R. Zwart. (JAB)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
LINC-DROP,
Corporation;

INC.,

A

Nebraska )
)
)
)
Plaintiff,
)
)
v.
)
)
CITY OF LINCOLN, et al.;
)
Defendants.
)

Case No. 4:13CV3133

PROTECTIVE ORDER

Pursuant to FED. R. CIV. P. 26(c), IT IS HEREBY ORDERED:
1.

Confidential Information shall be treated and designated as “Confidential”

if so marked by the producing party, and shall include any information of any type, kind
or character which is designated as “Confidential” by any of the supplying parties,
whether it be a document, information contained in a document, information revealed
during a deposition, information revealed in an interrogatory answer or other material,
including information stored or recorded in electronic form (including DVDs, CDs,
computers, networks or tapes). Documents produced in this action may be designated by
either party as “Confidential” by marking the document(s) so designated with a stamp
stating “Confidential.” In lieu of marking the original of a document, if the original is not
produced, the designating party may mark the copies that are produced or exchanged. In
designating information as “Confidential”, a party will make such designation only as to
the information that it in good faith believes contains confidential information.

Information or material that is available to the public shall not be deemed confidential.
Confidential Information does not include:
A.

Information that at the time of the disclosure is in the public domain;

B.

Information that, after disclosure, becomes part of the public domain
by publication or otherwise, except through a breach or violation of
the terms of this Stipulated Protective Order;

C.

Information that is disclosed or received from a third party having
legal right to transmit the same, free of any obligation of
confidentiality;

D.

Information which the receiving party can establish was in his
possession prior to disclosure by a disclosing party as evidenced by
the receiving party’s written records or was subsequently and
independently developed by the receiving party as evidenced by the
receiving party’s written records without the use, directly or
indirectly, of information required to be held confidential hereunder;
and

E.

Information which is approved for release by the prior written
authorization of the disclosing party.

Confidential Information Does Include:
A.

All or any portion of deposition testimony in this action and the
exhibits thereto which contains, discloses or reflects Confidential

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Information. Any such testimony is to be designated as Confidential
Information by advising the reporter of that fact or by making such
designation within 30 days of receipt of the deposition transcript.
Until the expiration of such 30 day period, all deposition transcripts
and exhibits thereto are to be treated as Confidential information,
subject to the provisions this Order.
B.

Summaries, abstracts, excerpts or the like of original Confidential
Information and any information contained in or derived from
original Confidential Information.

2.

Confidential Information shall be used only for purposes necessary for the

litigation of claims between and among the parties in this action (“the Permitted
Purpose”) and not for any other purpose, whether business or otherwise.
3.

No copies of Confidential Information shall be made except by or on behalf

of counsel for the parties and should be made only for his/her/its own use in connection
with the Permitted Purpose. Copies of documents that constitute or contain Confidential
Information shall be treated in the same manner as the original documents. The attorneys
for the parties shall take all steps necessary to strictly insure that, during and after the
litigation of this case, no copies or reproductions of any information produced in this
action shall be retained by any party or person, in any form, and that any and all such
copies and reproductions are viewed only in the presence of counsel or at counsel=s
offices, and are otherwise retained and controlled by counsel for the parties at all times.

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All documents and all notes and materials based thereon shall be returned to the party
who/which produced them upon the conclusion of the litigation.
4.

Except with the prior written consent of the producing party or non-party,

Confidential Information will not be disclosed to any person other than:
A.

Counsel for the parties in this action, including the regular staff of all
such counsel to the extent necessary for the Permitted Purpose and
solely for the Permitted Purpose.

B.

The parties to the extent deemed reasonably necessary by counsel
for the parties for the Permitted Purpose and solely for the Permitted
Purpose. The parties may not directly or indirectly disclose any
information produced in this action to any employees or agents of
the parties who are not directly involved in the overall prosecution or
defense of this action. Disclosure to employees of the parties who
will testify at trial or in a deposition shall be limited to the extent
necessary to prepare for the specific testimony by the witness. Such
disclosure shall occur only after the testifying employee signs an
agreement in the form attached hereto as Exhibit “A” (hereinafter
“Confidentiality Agreement”). Prior to such disclosure, any such
persons shall be provided with a copy of this Stipulated Protective
Order by counsel proposing disclosure and, prior to such disclosure,

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shall have signed a Confidentiality Agreement to be bound by this
Stipulated Protective Order.
C.

Consulting experts whose services have been retained for purpose of
trial preparation or offering expert testimony at trial in this action, to
the extent deemed necessary by counsel for the parties for the
Permitted Purpose and solely for the Permitted Purpose. Prior to
disclosure, any such persons shall be provided with a copy of this
Stipulated Protective Order by counsel proposing disclosure. and,
prior to such disclosure, shall have signed a Confidentiality
Agreement to be bound by this Stipulated Protective Order. Counsel
for the parties shall notify opposing counsel of each person who has
been given access to Confidential Information pursuant to the terms
of this Paragraph and opposing counsel shall be given copies of all
signed Confidentiality Agreement acknowledgments confirming that
any and all such persons have agreed to be bound by the terms
hereof.

D.

The Court, Court personnel, and jurors.

E.

Court Reporters rendering services for recording or transcribing of
testimony in this action, or any outside independent reproduction
firm rendering reproduction services in this action.

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F.

Witnesses and their counsel to the extent deemed necessary by
counsel for the parties for the Permitted Purpose and solely for the
Permitted Purpose. Prior to disclosure, any such witnesses and their
counsel shall be provided with a copy of this Stipulated Protective
Order by counsel proposing disclosure, be advised that such
witnesses and their counsel are so bound, and, prior to such
disclosure, such witnesses and their counsel shall have signed a
Confidentiality Agreement to be bound by this Stipulated Protective
Order.

G.

Executives or directors of any party and former City Council
members who will assist with or make decisions regarding
preparation for disposition or potential settlement of this case,
including the Mayor and Finance Director for the City of Lincoln.

Nothing contained herein shall prevent any party from disclosing its own Confidential
Information as it deems appropriate. The signed Confidentiality Agreements called for in
subparagraphs (B), (C) and (F) of this Paragraph 4 shall be retained by the counsel who
discloses Confidential Information to any of the persons described in such subparagraphs
(B), (C) and (F) and shall be made available upon request to opposing counsel or the
Court.
5.

Confidential Information may be referred to in interrogatory answers,

motions and briefs, and other pleadings, and may be used in depositions and marked as

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deposition exhibits in this action in accordance with this Stipulated Protective Order.
However, if any information or material which constitutes Confidential Information is to
be included in any papers to be filed in Court, such information or material shall be
labeled “CONFIDENTIAL”– NOT TO BE DISCLOSED EXCEPT SUBJECT TO
COURT ORDER DATED

August 8, 2013,
, 2013, and shall be filed under seal and kept

under seal until further order of this Court.
6.

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

“Confidential” at the time made, and a failure to do so shall not preclude a subsequent
challenge thereto. In the event any party to this litigation disagrees at any stage of these
proceedings with the designation by the designating party of any information as
“Confidential”, the parties shall first try to resolve such dispute in good faith on an
informal basis, such as by production of redacted copies. If the dispute cannot be
resolved informally, the objecting party may invoke this Protective Order by objecting in
writing to the party who has designated the document or information as “Confidential.”
The objecting party shall then be required to move the Court for an order contesting the
designated status of such information. Until this Court enters an order changing the
designation, the material shall be treated in the manner designated by the producing party
as provided in this Stipulated Protective Order.
7.

“Finally Resolved” as used in this paragraph means to settle or obtain a

judgment that is final in all respects and not subject to appeal, further appeal or possible
retrial on all claims that are presently asserted or may be asserted in this action. At the

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time that this action is Finally Resolved, all Confidential Information and all copies of
same (other than exhibits within the court record) shall be returned to the producing party
or non-party; provided however, that parties may retain copies of briefs and other papers
filed with the Court.
[At the same time, all summaries, abstracts, notes, excerpts or the like which
constitute Confidential Information shall be returned or maintained by counsel in their
own closed and secure file to which only counsel has access and control. At such time
the party=s counsel destroying all such Confidential Information shall certify in writing
such destruction to counsel for the producing party or non-party.]
8.

Whenever Confidential Information is to be discussed or disclosed in a

deposition or other hearing or proceeding, any person who is not a party, counsel,
witness, Court Reporter, Court personnel, expert witness or who is not otherwise a person
entitled to receive Confidential Information shall be excluded from the room.
9.

The portions of the transcripts of all testimony designated as Confidential

Information shall be separately bound by the Court Reporter and marked “Confidential”
“as the case may be.
10.

Neither the taking nor the failure to take any action to enforce the

provisions of this Order nor the failure to object to any such action or omission, shall
constitute a waiver of any claim or defense in the trial of this action or any other action
that any information is or is not confidential or proprietary to any party or non-party or
that such information embodies any trade secrets of any party or non-party.

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11.

Nothing in this Stipulated Protective Order shall prevent any party or non-

party to this action from objecting to discovery (including the production of documents)
which it believes to be otherwise improper.
12.

Nothing in this Protective Order shall prevent or otherwise restrict counsel

from rendering advice to their clients who are parties to this case and, in the course
thereof, relying generally on examination of stamped, confidential documents; provided,
however, that in rendering such advice and otherwise communicating with such client,
counsel shall not make specific disclosure of any items so designated, except pursuant to
the procedures of Paragraph 4 herein.
13.

Prior to any hearing, whether on motion or otherwise, or trial in this action,

the parties shall meet and confer with one another with a view toward agreeing upon
procedures for the protection of Confidential Information used in the conduct of any
hearing, whether on motion or otherwise, or trial in this action. Any party or other
affected person may move the Court for an Order that the evidence be received in
camera or under other conditions to prevent unnecessary disclosure. The Court will then
determine whether the proffered evidence should continue to be treated as confidential
information and, if so, what protection, if any, may be afforded to such information at
trial. This meet and confer requirement does not apply to hearings on non-dispositive
matters held in chambers prior to the trial of this matter on its merits, but, without
displacing any other notice or filing requirement, shall apply to hearings on any motion
for summary judgment or other dispositive motion.

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14.

Should any non-party (other than the producing non-party) seek access to

Confidential Information, by request, subpoena, public records request, or otherwise,
from any party, that party (a) shall promptly notify the party or non-party who produced
the Confidential Information of the request or subpoena, and (b) shall inform the
requesting party of the existence of this Stipulated Protective Order. The non-producing
party shall not produce the requested Confidential Information pursuant to any such
request unless and until being authorized to do so by either the party or non-party which
produced the Confidential Information or further Court order.
15.

This Stipulated Protective Order is without prejudice to the right of any

party or producing non-party to seek relief from or modification of any provision
contained herein by motion to the Court with reasonable notice to the parties, including
seeking and obtaining additional protection or the subsequent elimination of protection
with respect to the confidentiality of any document or discovery response upon an
appropriate showing. This Court will rule upon any claim of privilege, work product or
other protection from disclosure which may be made by any party or person affected
herein, as such rulings become necessary or appropriate during the course of this
litigation. Compliance with this Protective Order is without prejudice to the rights of any
party or person to apply for other or different protection where it is deemed necessary.
16.

The production of any material governed by this Protective Order is

without prejudice to any claim by any party or person from whom discovery is sought

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that such material is privileged and the producing party shall not be held to have waived
any of its rights by such production.
17.

As used in this Protective Order, the term Aperson@ means any natural

person and any corporation, business organization, or other entity, domestic or foreign.
18.

This Stipulated Protective Order may be amended without leave of Court

by the agreement of the undersigned counsel in the form of a stipulation that shall be filed
with the Court. This Stipulated Protective Order shall remain in force and effect during
the entirety of this action and thereafter, until modified, superseded or terminated on the
record by the agreement of the parties hereto or by order of the Court.
BY THE COURT:

8/8/2013
Dated: __________________________

_________________________________
United States Magistrate Judge

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EXHIBIT AA@
CONFIDENTIALITY AGREEMENT
I, the undersigned, do hereby acknowledge that I have read the Stipulated Protective
Order entered by the Court in the action of Linc-Drop, Inc. v. City of Lincoln, et al., and
hereby covenant, warrant and agree: (1) to abide in full by its terms regarding the
confidentiality of the Confidential Information, as that term is defined in the Stipulated
Protective Order, which I am being provided, and that I will not disclose or cause to be
disclosed such Confidential Information to any person not permitted to receive or
otherwise access such information under the Stipulated Protective Order, (2) that such
Confidential Information should be used only for purposes necessary for the litigation of
the claims between and among the parties to the action of Linc-Drop, Inc. v. City of
Lincoln, et al., and not for any other purpose, whether business or otherwise, and (3) that
I will return all Confidential Information that I receive upon my having served the
purpose which caused me to receive the Confidential Information in accordance with the
provisions of the Stipulated Protective Order.

DATED:________________________________________________________
Printed Name

_____________________________________
Signature