Law v. Premier Psychiatric Group, LLC et al

Filing 13

AGREED CONFIDENTIALITY ORDER. Ordered by Magistrate Judge Cheryl R. Zwart. (GJG)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
JONATHAN LAW,

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Plaintiff,
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v.
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PREMIER PSYCHIATRIC GROUP, LLC, |
NVATION, LLC, and DEEP TMS
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PROVIDER, LLC,
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Defendants.
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|

Case No. 4:14-cv-03090-CRZ

AGREED CONFIDENTIALITY ORDER

The Parties to this Agreed Confidentiality Order have agreed to the terms of this Order;
accordingly, it is ORDERED:
1.

Disclosure of Information. In the course of settlement negotiations between the Parties and

discovery, Plaintiff may disclose to Defendants information and documents relating to his earnings
history and earning potential at Neuronetics, Inc., including without limitation employment
agreements, bonus/incentive compensation plans, stock option agreements, and any information or
document which details the wages and other compensation, including benefits, Plaintiff was and
would have been entitled to had he remained employed at Neuronetics, Inc. Defendants, including
its officers, agents, employees, representatives, and attorneys, will not, either directly or indirectly,
divulge, disclose, or communicate such information and documents to any other person or entity,
or use such information and documents for any other purpose than the settlement negotiations,
discovery and the litigation related to Plaintiff’s claims, it being understood by the Parties that all
such information and documents shall be treated as strictly confidential.

In the course of

settlement negotiations between the Parties and discovery, Defendants may disclose to Plaintiff
information and documents relating to wages and other compensation, including benefits. Plaintiff,
including its officers, agents, employees, representatives, and attorneys, will not, either directly or
indirectly, divulge, disclose, or communicate such information and documents to any other person
or entity, or use such information and documents for any other purpose than the settlement
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negotiations, discovery and the litigation related to Plaintiff’s claims, it being understood by the
Parties that all such information and documents shall be treated as strictly confidential.
Furthermore, Plaintiff and Defendants agree that these documents will only be reviewed by the
following individuals:
A. Counsel. Counsel for the parties and employees of counsel who have responsibility
for the action;
B. Parties. Individual parties and employees of a party but only to the extent counsel
determines in good faith that the employee’s assistance is reasonably necessary to
the conduct of the litigation in which the information is disclosed;
C. Court. The Court and its personnel;
D. Court Reporters and Recorders. Court reporters and recorders engaged for
depositions;
E. Contractors. Those persons specifically engaged for the limited purpose of making
copies of documents or organizing or processing documents, including outside
vendors hired to process electronically stored documents;
F. Consultants and Experts. Consultants, investigators, or experts employed by the
parties or counsel for the parties to assist in the preparation and trial of this action
but only after such persons have completed the certification contained in
Attachment A, Acknowledgment of Understanding and Agreement to Be Bound;
G. Witnesses at Depositions. During their depositions, witnesses in this action to
whom disclosure is reasonably necessary. Witnesses shall not retain a copy of
documents containing Confidential Information, except witnesses may receive a
copy of all exhibits marked at their depositions in connection with review of the
transcripts. Pages of transcribed deposition testimony or exhibits to depositions
that are designated as Confidential Information pursuant to the process set out in
this Order must be separately bound by the court reporter and may not be disclosed
to anyone except as permitted under this Order;
H. Author or recipient. The author or recipient of the document (not including a
person who received the document in the course of litigation); and
I. Others by Consent. Other persons only by written consent of the producing party
or upon order of the Court and on such conditions as may be agreed or ordered.
2.

Designation. A Party may designate a document as Confidential Information for

protection under this Order by placing or affixing the words “CONFIDENTIAL - SUBJECT TO
PROTECTIVE ORDER” on the document and on all copies in a manner that will not interfere
with the legibility of the document. As used in this Order, “copies” includes electronic images,
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duplicates, extracts, summaries or descriptions that contain the Confidential Information. The
marking “CONFIDENTIAL - SUBJECT TO PROTECTIVE ORDER” shall be applied prior to
or at the time of the documents are produced or disclosed.

Applying the marking

“CONFIDENTIAL - SUBJECT TO PROTECTIVE ORDER” to a document does not mean that
the document has any status or protection by statute or otherwise except to the extent and for the
purposes of this Order. Any copies that are made of any documents marked “CONFIDENTIAL
- SUBJECT TO PROTECTIVE ORDER” shall also be so marked, except that indices, electronic
databases or lists of documents that do not contain substantial portions or images of the text of
marked documents and do not otherwise disclose the substance of the Confidential Information
are not required to be marked.
3.

Challenges by a Party to Designation as Confidential Information. The designation of any

material or document as Confidential Information is subject to challenge by any Party. The
following procedure shall apply to any such challenge.
A. Meet and Confer. A party challenging the designation of Confidential Information
must do so in good faith and must begin the process by conferring directly with
counsel for the designating party. In conferring, the challenging party must explain
the basis for its belief that the confidentiality designation was no proper and must give
the designating party an opportunity to review the designated material, to reconsider
the designation, and, if no change in designation is offered, to explain the basis for
the designation. The designating party must respond to the challenge within five (5)
business days.
B. Judicial Intervention. A party that elects to challenge a confidentiality designation
may file and serve a motion that identifies the challenged material and sets forth in
detail the basis for the challenge. Each such motion must be accompanied by a
competent declaration that affirms that the movant has complied with the meet and

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confer requirements of this procedure.

The burden of persuasion in any such

challenge proceeding shall be on the designating party. Until the Court rules on the
challenge, all parties shall continue to treat the materials as Confidential Information
under the terms of this Order.
4.

Use of Confidential Documents or Information at Trial. Nothing in this Order shall be

construed to affect the use of any document, material, or information at any trial or hearing. A
party that intends to present or that anticipates that another party may present Confidential
Information at a hearing or trial shall bring that issue to the Court’s and parties’ attention by
motion or in a pretrial memorandum without disclosing the Confidential Information. The Court
may thereafter make such orders as are necessary to govern the use of such documents or
information at trial.
5.

Destruction of Information. At the conclusion of this matter by mutual settlement, trial or

otherwise, Plaintiff and Defendants, together with their counsel agree to separately certify that all
such documents produced and all copies thereof have been destroyed or deleted. Such certification
shall take the form of an affidavit from Plaintiff and Defendants, and a separate affidavit from its
counsel, that all such documents in their respective possession have been destroyed.
6.

Breach. The Parties agree that the terms of this Agreement are important, material, and

confidential, and that any breach of the terms of this Agreement is a material breach of this
Agreement, from which Defendants may be enjoined and for which Defendants shall also pay to
Plaintiff all damages that arise from any breach of this Agreement.
7.

Cooperation.

Plaintiff believes he is authorized to produce earning information to

Defendants in the manner described in this Agreement without breaching the Neuronetics, Inc.
Restrictive Covenant and Invention Assignment Agreement between Plaintiff and Neuronetics, Inc.
If Neuronetics, Inc. claims that Plaintiff breached that agreement because of the production of
documents to Defendants under this Confidentiality Agreement, then Defendants agrees to
cooperate with Plaintiff in the defense of any legal action brought by Neuronetics, Inc. by:
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A. providing to Plaintiff a list of every person who had access to or reviewed any of the
documents produced under this Agreement and allowing Plaintiff’s counsel to interview
all persons listed, subject to the limitation that no information will be provided that is
subject to the attorney-client privilege as invoked for matters pertaining to Plaintiff’s
claims against Defendants;
B. providing affidavits, depositions, or certifications separately by Defendants and its
counsel that no documents produced under this Agreement were used for any purpose
by them other than litigation and settlement of the dispute between Defendants and
Plaintiff; and
C. providing any other material in Defendants’ possession or witnesses employed by
Defendants necessary to support Plaintiff’s position that Neuronetics, Inc. suffered no
damages from Plaintiff’s production of documents under this Agreement to Defendants.
SO ORDERED

.

BY THE COURT:

__________________
Cheryl R. Zwart
United States Magistrate Judge
WE AGREE TO ABIDE BY THE
TERMS OF THIS ORDER

WE AGREE TO ABIDE BY THE
TERMS OF THIS ORDER

JONATHAN LAW, Plaintiff

PSYCHIATRIC GROUP, LLC; NVATION
LLC; AND DEEP TMS PROVIDER, LLC,
Defendants

/s/ Jeanelle R. Lust
Signature

/s/ Larry V. Albers
Signature

Jeanelle R. Lust - #20556
KNUDSEN, BERKHEIMER,
RICHARDSON & ENDACOTT, LLP
3800 VerMaas Place, Suite 200
Lincoln, Nebraska 68502
Phone: [phone]
Fax: [phone]

Larry V. Albers - #15336
ALBERS BROWN
100 Alodium Plc
6710 L Street
Lincoln, NE 68510
Phone: [phone]
[e-mail]
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ATTACHMENT “A”
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
JONATHAN LAW,

|
|
Plaintiff,
|
v.
|
|
PREMIER PSYCHIATRIC GROUP, LLC, |
NVATION, LLC, and DEEP TMS
|
PROVIDER, LLC,
|
|
Defendants.
|
|

Case No. 4:14-cv-03090-CRZ

ACKNOWLEDGEMENT AND
AGREEMENT TO BE BOUND

The undersigned hereby acknowledges that he/she has read the Confidentiality Order dated
_____ in the above-captioned action and attached hereto, understands the terms thereof, and
agrees to be bound by its terms. The undersigned submits to the jurisdiction of the United States
District Court for the District of Nebraska in matters relating to the Confidentiality Order and
understands that the terms of the Confidentiality Order obligate him/her to use materials
designated as Confidential Information in accordance with the Order solely for the purposes of the
above-captioned action, and not to disclose any such Confidential Information to any other person,
firm or concern.
The undersigned acknowledges that violation of the Confidentiality Order may result
in penalties for contempt of court.
Name:
Job Title:
Employer:
Business Address:

Date:
Signature

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