Nebraska Energy v. Aurora Cooperative Elevator Company

Filing 58

ORDER granting 51 Motion for Protective Order Ordered by Magistrate Judge Cheryl R. Zwart. (Zwart, Cheryl)

IN THE UNITED STATES DISTRICT COURT
DISTRICT OF NEBRASKA

NEBRASKA ENERGY, LLC,

Civil Action No. 4:13-cv-03190

Plaintiff,
v.

PROTECTIVE ORDER

AURORA COOPERATIVE ELEVATOR
COMPANY,
Defendant.
Pursuant to the Court’s discussion with counsel at its Status Conference on June 9, 2015,
it is hereby ORDERED as follows:
1.

Materials Deemed Confidential. If a party or an attorney for a party (or a third-

party subject to subpoena issued by the Court in this case or an attorney for such third-party) has
a good faith belief that certain documents or other materials or information (including digital
information) subject to disclosure pursuant to a discovery or other request, are confidential and
should not be disclosed other than in connection with this action pursuant to Rule 26(c) of the
Federal Rules of Civil Procedure, the party or attorney shall designate each such document or
other materials as “CONFIDENTIAL.”
2.

Attorneys-Eyes Only Designations.

A party or an attorney for a party may

designate documents or other materials or information (including digital information)
“ATTORNEY’S EYES ONLY” if the party or attorney has a good-faith belief that the
documents contain highly sensitive information that could result in injury to the disclosing party
or a third party if disclosed to another party or parties in this case, including but not limited to
trade secrets and proprietary information. Such documents, materials, and information shall

include, but not necessarily be limited to, the identities of Aurora Co-op’s customers (including
those who sell grain to and purchase grain from Aurora Co-op) and information about Aurora
Co-op’s overall positions in grain and Aurora Co-op’s overall grain inventories, including but
not limited to the spreadsheets listed in subparagraphs (a), (b), (c), (e), and (f) of Aurora Co-op’s
Answer to NELLC’s Interrogatory No. 3.
3.

Designation by Third Parties. A copy of this Protective Order shall be served

with a subpoena or Notice of Deposition on each third party. A third party may designate a
document as “CONFIDENTIAL” and/or “ATTORNEYS-EYES ONLY” pursuant to this Order
by stamping it with such notice prior to production or so identifying it on the record during the
deposition of that third party. Either party may also designate documents produced by a third
party as being “CONFIDENTIAL” or “ATTORNEYS-EYES ONLY” pursuant to the terms of
this Order within thirty (30) days of being made aware of the content of such documents. Any
document produced by a third party shall be treated as “CONFIDENTIAL” pursuant to the terms
of this Order for such thirty (30) day period and thereafter if designated as “CONFIDENTIAL”
by either party or by the third party who produces it. The “CONFIDENTIAL” restrictions of this
Order shall no longer apply to any document produced by a third party that has not been
designated as “CONFIDENTIAL” by the third party or by a party within such thirty (30) day
period.
4.

Redesignation of Materials as Confidential. In the event a party inadvertently

produces confidential documents or materials without the designation “CONFIDENTIAL” or
“ATTORNEY’S EYES ONLY”, it shall not be deemed a waiver of the confidential nature of the
documents or materials provided that the producing party notify all other parties of the
inadvertent production within a reasonable time after the producing party discovers the

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inadvertent production. In the event that the disclosing party notifies the receiving party that a
document or thing was produced without the appropriate confidentiality designation, the
disclosing party shall provide the receiving party with replacement copies of the documents or
things bearing the appropriate confidentiality designation. Upon receipt of the replacement
copies, the receiving party shall retrieve and return or destroy all copies of the previously
produced documents or things.
5.

Inadvertent Disclosure. The following procedures shall govern instances in which

a party or third-party has inadvertently produced or disclosed materials for which any privilege
or protection is claimed, including but not limited to the attorney-client privilege or workproduct protection:
a.

The disclosing party must notify the receiving party promptly, in writing

or on the record, upon discovery that a document has been inadvertently produced. Upon
receiving written notice from the disclosing party that privileged and/or work-product
material has been inadvertently produced, all such information, and all copies thereof,
shall be returned to the disclosing party within five business days of receipt of such
notice and the receiving party shall not use such information for any purpose, until
further order of the Court. The receiving party shall also attempt, in good faith, to
retrieve and return or destroy all copies of the document in electronic format, and shall
provide the disclosing party with written notice that all copies of the document have been
returned or destroyed. If the receiving party intend to file a motion under paragraph 3(b),
below, it may maintain a copy of the document for purposes of filing such a motion.
b.

If the receiving party contests the privilege or work-product designation

by the disclosing party, it shall file a motion to compel production of the document or

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information. The receiving party shall not assert as a ground for compelling production
the facts or circumstances of the inadvertent production.
c.

The disclosing party retains the burden of establishing the privileged or

protected nature of any document or information that is claimed as privileged or
otherwise protected. Nothing in this paragraph shall limit the right of any party to
petition the Court for an in camera review of such documents or information.
d.

Upon notification of inadvertent disclosure from the disclosing party, the

receiving party shall place any analyses, memoranda, or notes which were internally
generated based upon such inadvertently-produced information in sealed envelopes if in
hard copy form or shall segregate such analyses, memoranda, or notes if in electronic
form.
e.

Pursuant to Rule 502 of the Federal Rules of Evidence, if the receiving

party does not contest that the information is privileged or otherwise protected or if the
Court so rules, then the inadvertent disclosure of the information shall not be deemed a
waiver or impairment of any claim of privilege or protection, including, but not limited
to, the attorney-client privilege, the protection afforded to work-product materials or the
subject matter thereof, as to the inadvertently disclosed document or information and any
related material, and such documents and information shall be destroyed or returned to
the producing party.
6.

Challenging Designation of Confidentiality. If a party or an attorney for a party

disputes whether a document or other material should be designated “CONFIDENTIAL” or
“ATTORNEY’S EYES ONLY,” the parties and/or attorneys shall attempt to resolve the dispute
between themselves.

If they are unsuccessful, the party or attorney challenging the

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“CONFIDENTIAL” or “ATTORNEY’S EYES ONLY” designation shall do so by filing an
appropriate motion.
7.

Distribution of Confidential Materials.

No party or attorney or other person

subject to this Protective Order shall distribute, transmit, or otherwise divulge any document or
other material which is designated “CONFIDENTIAL” or “ATTORNEY’S EYES ONLY,” or
the contents thereof, except in accordance with this Protective Order.
8.

Persons Entitled to View Confidential Materials. Any document or other material

which is designated “CONFIDENTIAL,” or the contents thereof may only be disclosed to the
following individuals:
a.

Counsel of record for the parties to this action who are involved in the

conduct of this action, together with the partners, associates, secretaries, paralegals,
assistants, agents and employees of such counsel;
b.

court officials involved in this action (including persons such as court

reporters and persons operating video recording equipment at depositions);
c.

the parties;

d.

Corporate counsel of the parties who are directly working on this case and

who have been informed as to the existence and requirements of this Protective Order.
e.

any person designated by the Court in the interest of justice, upon such

terms as the Court may deem proper;
f.

persons noticed for depositions or designated as trial witnesses, but only to

the extent reasonably necessary to prepare them to testify;

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g.

outside consultants or experts retained for the purpose of assisting counsel

in this action who sign the undertaking attached hereto as Exhibit “A”, but only to the
extent reasonably necessary for them to provide such services in this action; and
h.

any person or entity who created or previously received the document.

Documents designated “ATTORNEY’S EYES ONLY” may only be divulged to
individuals listed in paragraphs (a), (b),, (e), (f), and (g), above, provided that individuals listed
in paragraph (f) and (g) must first sign the Acknowledgement and Agreement attached hereto as
Exhibit “A”.
9.

Use of Confidential and Attorney’s Eyes Only Material. Any document or other

material which is designated “CONFIDENTIAL” or “ATTORNEY’S EYES ONLY” or the
contents thereof, may be used by a party, or a party’s attorney, expert witness, consultant, or
other person to whom disclosure is made, only for the purpose of this action. Nothing contained
in this Protective Order shall prevent the use of any document or other material which is
designated “CONFIDENTIAL” or “ATTORNEY’S EYES ONLY” or the contents thereof, as
evidence at trial, or at any deposition taken in this action. The parties, attorneys, and other
persons to whom disclosure is made shall take appropriate measures at trial, at depositions, and
in the filing of any confidential documents or materials with the Court to protect the
confidentiality of any document or other material which is designated “CONFIDENTIAL” or
“ATTORNEY’S EYES ONLY” or the contents thereof. Such measures may include filing
pleadings and evidence as “Restricted Access” documents on the CM/ECF system and/or filing a
motion requesting the Court to seal a document or a portion thereof.
10.

Return or Destruction of Confidential Materials After Litigation.

At the

conclusion of the proceedings in this action, all documents and materials designated

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“CONFIDENTIAL” or “ATTORNEY’S EYES ONLY,” including any copies or extracts or
summaries thereof, or documents containing or derived from information taken therefrom, shall
be returned to producing counsel with producing counsel to pay the shipping costs associated
with the return of such documents or materials. Upon the consent of the producing party, which
consent shall not be unreasonably withheld, the recipient of “CONFIDENTIAL” or
“ATTORNEY’S EYES ONLY” materials may, as an alternative to returning the materials to the
producing party, submit a written certification that such materials have been destroyed.
Notwithstanding the other provisions of this paragraph, counsel for each party may retain one (1)
complete set of the pleadings, trial transcripts, exhibits admitted in any deposition, documents
filed with the court, deposition transcripts (including deposition exhibits), and discovery
responses and shall remain bound to preserve the confidentiality of such documents in
accordance with the provisions of this Protective Order. Nothing herein shall require legal
counsel for any party to return or destroy correspondence, including electronic email
correspondence, which has “CONFIDENTIAL” or “ATTORNEY’S EYES ONLY” materials
attached thereto.
11.

Subpoenas and Legal Process. In the event that any of the parties is subpoenaed

or is served with any other legal process by a person not a party to this litigation, and is requested
to produce or otherwise disclose “CONFIDENTIAL” or “ATTORNEY’S EYES ONLY”
information that was so designated by another party, the party subpoenaed or served as referred
to in this paragraph shall object to the production of the information by setting forth the existence
of this Protective Order and shall give prompt written notice to the party who produced the
information in this litigation. Nothing in this Protective Order shall be construed as requiring the
party from whom “CONFIDENTIAL” or “ATTORNEY’S EYES ONLY” information was

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requested to challenge or appeal any order requiring production of information covered by this
Protective Order, to subject itself to any penalties for noncompliance with any legal process or
order, or to seek any relief from this Court. Notwithstanding the other provisions of this
paragraph, a party from whom “CONFIDENTIAL” or “ATTORNEY’S EYES ONLY”
documents or information are subpoenaed or otherwise required by a governmental agency may
produce the documents or information to that agency without itself making objections, but shall
provide prompt written notice of any such subpoena to the party who disclosed the information.
12.

Privilege Logs. If any document is withheld from production or disclosure on the

grounds of privilege or work product, the producing party shall, for each document, disclose a
description of the document withheld with as much specificity as is practicable without
disclosing its contents, including (a) the general nature of the document; (b) the identity and
position of its author; (c) the date it was written; (d) the identity and position of its addressee; (e)
the identities and positions of all persons who were given or have received copies of it and the
dates copies were received by them; (f) the document's present location and the identity and
position of its custodian; and (g) the specific reason or reasons why it has been withheld from
production or disclosure. The non-producing party may move to compel documents identified
on the privilege log. The producing party may also seek a protective order to preserve the
privilege or confidentiality of the documents identified.
13.

Method of Designation. A document is designated “CONFIDENTIAL” or

“ATTORNEY’S EYES ONLY” if it bears a reasonably conspicuous legend so stating, or, if
designating the document, materials, or information is impracticable, it is accompanied by a
notice that the document, materials, or information are designated “CONFIDENTIAL” or
“ATTORNEY’S EYES ONLY.”

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14.

No Effect on Other Issues. Nothing contained in this Protective Order and no

action taken pursuant to it shall prejudice the right of any party to contest the alleged relevancy,
admissibility,

or

discoverability

of

the

documents

or

other

materials

designated

“CONFIDENTIAL” or “ATTORNEY’S EYES ONLY” and disclosed pursuant to this Protective
Order.
15.

Waiver. Any waiver under this Protective Order must be made in writing or, if at

a deposition or in Court, on the record.
DATED this ___ day of ____________, 2015.
BY THE COURT:

Hon. Cheryl R. Zwart
United States Magistrate Judge

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EXHIBIT A
ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND
I declare under penalty of perjury that I have read in its entirety and understand the
Stipulated Protective Order that was issued by the United States District Court for the District of
Nebraska in the case of Nebraska Energy, LLC v. Aurora Cooperative, Case No. 4:13-cv-3190. I
agree to comply with and to be bound by all the terms of this Stipulated Protective Order and I
understand and acknowledge that failure to so comply could expose me to sanctions and
punishment in the nature of contempt.
I further agree to submit to the jurisdiction of the United States District Court for the
District of Nebraska for the purpose of enforcing the terms of this Stipulated Protective Order,
even if such enforcement proceedings occur after termination of this action.
I hereby appoint __________________________ of ____________________________
as my Nebraska agent for service of process in connection with any proceedings related to
enforcement of this Stipulated Protective Order.
Dated this ____ day of _________, _____.
By:
[Signature]

[Printed Name]

4847-4409-1940, v. 2

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