Lambert Vet Supply, LLC v. Martin et al
Filing
39
STIPULATED PROTECTIVE ORDER. Ordered by Magistrate Judge Cheryl R. Zwart. (TCL)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
LAMBERT VET SUPPLY, LLC, a Kansas )
Limited Liability Company,
)
)
Plaintiff,
)
)
v.
)
)
CHRIS MARTIN, an individual; CHRIS
)
MARTIN d/b/a RAPID FALLS VET; FCE, )
INC., a Kentucky Corporation; and FEED )
BARN, INC., a California Corporation,
)
)
Defendants.
)
Civil Action No. 4:14-cv-3129
STIPULATED PROTECTIVE
ORDER
To protect the confidentiality of confidential information sought to be discovered in
this action, Plaintiff Lambert Vet Supply, LLC (“Plaintiff”) and Defendants Chris Martin,
Chris Martin d/b/a Rapid Falls Vet; FCE, Inc., and Feed Barn, Inc. (“Defendants”)
(collectively the "Parties" or individually a "Party"), through their undersigned counsel,
jointly request that the Court enter this Stipulated Protective Order. Upon Stipulation of
the Parties (Filing No. 38), and the Court's acceptance of the same, IT IS ORDERED that
the Stipulated Protective Order ("Protective Order") is granted and entered as follows:
1.
The terms and conditions of this Protective Order shall govern the production
and handling of documents and things (including Electronically Stored Information),
answers to interrogatories, depositions, exhibits, pleadings and other
information
exchanged by the Parties, in this action. This Protective Order is made without prejudice
to the Parties' rights to stipulate to other terms of confidentiality regarding Confidential
Information as defined herein.
2.
The Parties anticipate that they will seek information that may be
designated as containing confidential, proprietary, business, commercial, technical,
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scientific, financial, personnel, and/or trade secrets information that is not generally known
and that the designating party would not normally reveal to third parties or would cause
third parties to maintain in confidence, or information, the present disclosure of which
would, in the good faith judgment of the designating party, be detrimental to the
designating party in the conduct of its business (hereinafter "Confidential Information").
3.
When used in this Protective Order, the word "documents" means all written,
recorded, graphic, or Electronically Stored Information whatsoever including, but not
limited to, documents produced by a producing Party to this action whether pursuant to
Federal Rules of Civil Procedure 34, a subpoena, or by agreement.
4.
For purposes of this Protective Order, the term “Party” includes a Party’s
agents, attorneys, directors, employees, members, officers and partners.
5.
The protections afforded by this Protective Order shall in no way affect a
Party’s right to withhold Confidential Information as privileged under the Attorney-Client
Privilege, any other applicable privilege, the Attorney Work-Product Doctrine, or as otherwise
exempted from discovery pursuant to the laws of the United States or the State of Nebraska.
6.
A Party may designate Confidential Information as “CONFIDENTIAL” under
this Protective Order if the designating party reasonably believes that such materials and
information contain non-public, confidential, technical, proprietary, financial, secret or other
commercially sensitive or otherwise private information.
7.
A Party may designate Confidential Information as “CONFIDENTIAL-
ATTORNEYS' EYES ONLY” under this Protective Order if the designating party reasonably
believes that such materials and information contain such highly confidential or proprietary
information that their dissemination should be limited to those persons described in
paragraph 11 below.
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8.
Any documents produced or Confidential Information provided by a Party,
pursuant to or in response to any discovery request or by agreement, may be designated by
the responding party as Confidential Information in the following manner:
a)
b)
By imprinting the word "CONFIDENTIAL" or “CONFIDENTIALATTORNEYS' EYES ONLY” next to or above any answer to any
interrogatory or any other discovery request;
c)
With respect to portions of a deposition transcript, by making
arrangements with the attending court reporter to bind the
confidential portion(s) of such transcripts separately and labeling
them as "CONFIDENTIAL" or “CONFIDENTIAL- ATTORNEYS'
EYES ONLY;” and
d)
9.
By imprinting the word "CONFIDENTIAL" or “CONFIDENTIALATTORNEYS' EYES ONLY” on the first page or cover of any document
produced;
With respect to electronic information, by describing the information
to the fullest extent possible and noting, in writing, that the described
information is confidential. If such information is reproduced in paper
form, such paper document may also be designated as
"CONFIDENTIAL or “CONFIDENTIAL- ATTORNEYS' EYES ONLY."
All documents and information provided by a Party in response to a discovery
request, or deposition testimony designated as "CONFIDENTIAL" or “CONFIDENTIALATTORNEYS' EYES ONLY” shall be subject to the following restrictions:
a)
They shall be used only for the purpose of this litigation and not for
any business or other purposes whatsoever;
b)
That all information designated as "CONFIDENTIAL" or
“CONFIDENTIAL-ATTORNEYS' EYES ONLY” in whatever format
shall be furnished only under the terms of this Protective Order and
shall be treated by all persons accorded access pursuant to this
Protective Order as constituting Confidential Information and shall
neither be used nor disclosed except for the purpose of this litigation,
and solely in accordance with this Protective Order or subsequent
order of the Court upon motion.
c)
Confidential Information shall not be disclosed to anyone except those
categories of persons provided herein under the terms of this
Protective Order and to whom disclosure is necessary for the purposes
associated with this lawsuit. Counsel of record, experts, consultants,
3
and other persons or entities retained to assist a party in this lawsuit
who have signed a Nondisclosure Agreement shall appropriately
notify such persons that the disclosure is made in confidence and must
be kept in confidence in accordance with this Protective Order.
d)
e)
No access to Confidential Information shall be provided to any
individual required to sign a Nondisclosure Agreement until the
individual to be accorded access has signed a Nondisclosure
Agreement in the form attached as Exhibit "A", certifying that they
have read this Protective Order and agree to be bound by its terms
and such executed Nondisclosure Agreement has been provided to
counsel for the disclosing party. Counsel for each disclosing Party
shall maintain a file of such written agreements until this action is
completed.
f)
Before trial, counsel for the parties shall agree to the appropriate
means to protect the confidentiality of the information that counsel
desire to present at trial. If counsel cannot reach an agreement, they
shall apply to the Court for resolution of the issue.
g)
All documents, information identified as "CONFIDENTIAL” or
“CONFIDENTIAL-ATTORNEYS' EYES ONLY” including all copies,
excerpts and summaries, must be retained in the custody of counsel or
other persons authorized by this Protective Order during the pendency
of this litigation.
h)
10.
Individuals authorized to review Confidential Information pursuant to
this Protective Order shall hold such information in the strictest
confidence and shall not divulge the information, either verbally or in
writing, to any other person, entity or government agency unless
authorized by the Party designating such information as
"CONFIDENTIAL" or “CONFIDENTIAL- ATTORNEYS'
EYES
ONLY” or order of the Court.
If information or documents designated as "CONFIDENTIAL" or
“CONFIDENTIAL- ATTORNEYS' EYES ONLY” are included in any
pleading or other document to be filed with the Court, they shall be
labeled “CONFIDENTIAL” or “CONFIDENTIAL- ATTORNEYS' EYES
ONLY” and filed under seal or otherwise submitted in accordance with
the Court’s rules. Any party claiming confidentiality with respect to
the information or documents may file a motion to seal the records.
Confidential Information designated as “CONFIDENTIAL” shall not be
communicated or disclosed in any manner, either directly or indirectly, to anyone other
than:
4
a)
b)
The Parties and their designated and identified employees, directors
or officers of the parties, and their insurers;
c)
Outside experts and consultants who have, prior to disclosure, agreed
in writing to be bound by the terms of this Protective Order as
provided in sub-paragraph c. of Paragraph 9;
d)
This Court, Court personnel, and stenographic reporters engaging in
proceedings necessarily incident to the preparation for trial (e.g.,
depositions) and/or trial of this action;
e)
Any arbitrator, mediator, or other alternative dispute resolution
facilitator in front of whom the Parties agree to appear or are ordered
to appear;
f)
Persons actually deposed or called to testify at any hearing or trial
who have, prior to disclosure, agreed in writing to be bound by the
terms of this Protective Order as provided in sub-paragraph c of
Paragraph 9;
g)
Third-party vendors retained by the Parties or their counsel who are
involved in one or more aspects of copying, reproducing, coding, or
storing discovery materials who have, prior to disclosure, agreed in
writing to be bound by the terms of this Protective Order as provided
in sub-paragraph c of Paragraph 9; and
h)
11.
The attorneys of record in this lawsuit, in-house counsel and persons
employed by attorneys of record and in-house counsel's law
department;
Such other persons as the Court may specifically approve after notice
and hearing who have, prior to disclosure, agreed in writing to be
bound by the terms of this Protective Order as provided in subparagraph c. of Paragraph 9.
Confidential Information designated as “CONFIDENTIAL-ATTORNEYS'
EYES ONLY” shall not be communicated or disclosed in any manner, either directly or
indirectly, to anyone other than:
a)
The attorneys of record in this lawsuit, and persons employed by
attorneys of record and in-house counsel;
b)
Outside experts and consultants who have, prior to disclosure, agreed
in writing to be bound by the terms of this Protective Order as
provided in sub-paragraph c. of Paragraph 9;
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c)
d)
Persons actually deposed or called to testify at any hearing or trial
who have, prior to disclosure, agreed in writing to be bound by the
terms of this Protective Order as provided in sub-paragraph c of
Paragraph 9 and who have knowledge of the information. The parties
agree that the non-producing party may be required to excuse herself
or himself if in attendance at a deposition.
e)
Third-party vendors retained by the Parties or their counsel who are
involved in one or more aspects of copying, reproducing, coding, or
storing discovery materials who have, prior to disclosure, agreed in
writing to be bound by the terms of this Protective Order as provided
in sub-paragraph c of Paragraph 9;
f)
Such other persons as the Court may specifically approve after notice
and hearing who have, prior to disclosure, agreed in writing to be
bound by the terms of this Protective Order as provided in subparagraph c. of Paragraph 9; and
g)
12.
This Court, Court personnel, and stenographic reporters engaging in
proceedings necessarily incident to the preparation for trial (e.g.,
depositions) and/or trial of this action provided that any such material
shall be filed under seal;
The Parties agree to work together as necessary (as well as with any
third party as may be applicable) to agree on further disclosure of
Confidential
Information
designated
as
“CONFIDENTIALATTORNEYS' EYES ONLY;” provided however, that no disclosure
shall be made to any other individuals in the absence of agreement by
the producing party or an order from the Court. Nothing in this
Protective Order shall prevent Counsel from advising their clients
Counsels’ impressions, recommendations, strategies, or opinions
formed in part based on a review of material designated
“CONFIDENTIAL-ATTORNEYS' EYES ONLY,” provided that
Outside Counsel nor In-House Counsel may not communicate such
information to clients.
Acceptance by a Party of any information, document or thing identified as
"CONFIDENTIAL" or “CONFIDENTIAL-ATTORNEYS' EYES ONLY” hereunder shall not
constitute a concession that the information, document or thing is confidential. If,
subsequent to the acceptance of information or documents identified as "CONFIDENTIAL"
or “CONFIDENTIAL-ATTORNEYS' EYES ONLY”, a Party wishes this Court to rule upon
the other Party's claim of confidentiality, that Party may move this Court for such
determination.
In the resolution of such motion, the burden of establishing the
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confidentiality of the information or document shall be on the Party who made the claim of
confidentiality.
However,
materials
designated
as
"CONFIDENTIAL"
or
“CONFIDENTIAL-ATTORNEYS' EYES ONLY” shall be treated as such pending resolution
of the motion by the Court. It is, however, acknowledged by the Parties that, without
limitation, the following information may be claimed as being "CONFIDENTIAL" or
“CONFIDENTIAL-ATTORNEYS' EYES ONLY”:
a)
Information that is not normally available to the Parties without
restriction;
b)
Information that is not a part of the public domain; and
c)
Information of a third party that is deemed confidential by the third
party and which was made available to the disclosing Party pursuant
to the terms of a confidential/restricted information agreement.
Provided that nothing herein shall preclude either Party from challenging in court the
confidential status of any document.
13.
Transcripts of the depositions covered by this Protective Order shall be filed
under seal in the manner described above.
14.
Inadvertent
failure
to
designate
materials
as
“CONFIDENTIAL”
or
“CONFIDENTIAL-ATTORNEYS' EYES ONLY” at the time of production may be remedied
by supplemental written notice given by the producing Party. Upon receipt of such
notification, all Confidential Information so designated or re-designated shall be fully subject
to this Protective Order as if it had been initially so designated; provided, however, that the
receiving Party shall incur no liability for any prior treatment of such information in
conformance with its original designation. The Party receiving such notice shall make a
reasonable good faith effort to insure that any analyses, memoranda, or notes which were
internally generated based upon such information shall immediately be treated in
conformance with any such designation or re-designation.
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15.
The failure to designate information as Confidential Information in
accordance with this Protective Order or the failure to object to a designation at or within a
given time shall not preclude the filing of a motion at a later date seeking to impose such
designation or challenge the propriety thereof.
16.
In the event that a Party shall desire to provide access to information or
documents identified as "CONFIDENTIAL" or “CONFIDENTIAL-ATTORNEYS' EYES
ONLY” hereunder to any person or category of persons not identified above, if the Parties
cannot mutually agree to such disclosure, it shall move this Court for an order that such a
person or category of persons may be given access to the information. In the event that the
motion is granted, such person or category of persons may have access to the information,
provided that such person or persons have agreed in writing before such access is given to
be bound by the terms of this Protective Order, or other conditions as the Court may order.
17.
This Protective Order shall in no way affect or impair the right of any Party
or person to raise or assert any defense or objection, including but not limited to defenses or
objections to the discovery or production of documents or information, and to the use or
admissibility at any hearing of any evidence, whether or not comprised of documents or
information governed by this Protective Order.
18.
If a non-party is called upon, by subpoena or otherwise, to provide or produce
non-public documents, information, or things that the non-party reasonably and in good
faith believes contains Confidential Information, the non-party may designate such
documents,
information,
or
things
as
“CONFIDENTIAL”
or
"CONFIDENTIAL
ATTORNEYS' EYES ONLY" in the manner set forth in this Protective Order. Additionally,
the same procedures outlined in this Protective Order shall apply to documents,
information, or things designated as “CONFIDENTIAL” by any producing non-party. The
producing non-party shall have the same rights and obligations as a Party with regard to
8
such documents, information, or things. In addition, the Parties may designate documents
produced by non-parties as "CONFIDENTIAL" within ten (10) days of being notified by the
production.
19.
Any waiver under this Protective Order must be made in writing or, if at a
deposition or in Court, on the record.
20.
No inadvertent disclosure of any documents or information by either Party
shall constitute a waiver of any privilege including the Attorney-Client Privilege or the
protections of the Attorney Work-Product Doctrine. Parties reserve the right to challenge
the assertion of the privilege on grounds other than disclosure during production. For all
materials and documents, including but not limited to Electronically Stored Information,
the Parties agree that: (i) upon notification or discovery of an inadvertently produced
document, the opposing Party should be notified; (ii) all copies of the inadvertently
produced document should be returned to the producing Party; (iii) any copies of the
inadvertently produced privileged document provided to third parties, contained in the
discovery record, or filed with the Court should be returned to the producing Party or
destroyed; and (iv) to the extent the receiving Party is challenging the assertion of privilege,
the opposing party shall return the inadvertently produced record until the issue of
privilege can be timely addressed by the Court.
21.
This Protective Order is without prejudice to the right of any party to seek
relief from the Court from any of the restrictions provided above upon good cause shown or
for any other grounds provided by applicable law.
Dated this 21st day of August, 2015.
BY THE COURT:
s/ Cheryl R. Zwart
United States Magistrate Judge
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Stipulated as to form and substance:
LAMBERT VET SUPPLY, LLC.,
a Kansas Limited Liability Company,
Plaintiff.
By:
/s/ Daniel E. Klaus
Daniel E. Klaus (#17889)
Sheila A. Bentzen (#25020)
REMBOLT LUDTKE LLP
1128 Lincoln Mall, Suite 300
Lincoln, NE 68508
402-475-5100
dklaus@remboltlawfirm.com
sbentzen@remboltlawfirm.com
ATTORNEYS FOR PLAINTIFF
CHRIS MARTIN, CHRIS MARTIN d/b/a
RAPID FALLS VET, FCE, INC., AND
FEED BARN INC., Defendants.
By:
/s/ Todd C. Kinney
Todd C. Kinney (#21960)
Maggie L. Ebert (#24394)
KUTAK ROCK, LLP
1650 Farnam Street
The Omaha Building
Omaha, NE 68102
(402)231-8968
todd.kinney@kutakrock.com
maggie.ebert @kutakrock.com
ATTORNEYS FOR DEFENDANTS
10
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
LAMBERT VET SUPPLY, LLC, a Kansas )
Limited Liability Company,
)
)
Plaintiff,
)
)
v.
)
)
CHRIS MARTIN, an individual; CHRIS
)
MARTIN d/b/a RAPID FALLS VET; FCE, )
INC., a Kentucky Corporation; and FEED )
BARN, INC., a California Corporation,
)
)
Defendants.
)
I,
Civil Action No. 4:14-cv-3129
STIPULATED PROTECTIVE
ORDER
, do hereby acknowledge that I have received and
read the Stipulated Protective Order entered in the above entitled case. I understand the
terms of that Stipulated Protective Order, and I agree to be bound by its terms and to be
subject to the jurisdiction of this Court for enforcement of all terms of the Stipulated
Protective Order and for judicial action for any violation of the Stipulated Protective Order.
DATED this
STATE OF
day of
, 201 .
)
) ss.
COUNTY OF
)
Subscribed and sworn to before me this
day of
Notary Public
Exhibit A
11
, 201__.
4824-5442-1798, v. 1
11
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