NL Enterprises, LLC v. United Pacific Pet, LLC

Filing 69

PROTECTIVE ORDER. Ordered by Magistrate Judge Cheryl R. Zwart. (LAC)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
NL ENTERPRISES, LLC,
Plaintiff,
v.
UNITED PACIFIC PET, LLC,
Defendant.

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Case No. 4:15-cv-03163-JMG-CRZ

PROTECTIVE ORDER
Now before the Court is the parties' Joint Motion for Entry of Protective Order (ECF No.
68). After careful consideration, the Court GRANTS the parties’ motion and, pursuant to the
parties’ consent and agreement, enters the following protective order:
1.

Scope and Definitions. This order is intended to limit the parties' use of

confidential information furnished by any party or nonparty to any party in connection with this
action. "Confidential Information" includes, but is not limited to, information that constitutes a
trade secret or other confidential information, the disclosure of which would adversely affect the
commercial, financial, or competitive position of the producing party, or would pose a significant
threat of identity theft or disclosure of highly personal information, such as medical records.
"Confidential Information" also includes information that is subject to a pre-existing protective
order or confidentiality agreement that would preclude disclosing the information. “Highly
Confidential Information" is information that contains technical, financial or other business
information (e.g. pricing, customer lists, business and/or marketing plans or analysis, sales
projections, profit margins and the like) the disclosure of which to the non-producing party
would cause competitive harm to the producing party. "Confidential Materials" are any materials
that contain "Confidential Information." "Highly Confidential Materials" are any materials that
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contain "Highly Confidential Information." Each party shall hold properly marked confidential
materials received from the opposing party in confidence, as described below, using such
materials only in connection with the prosecution or defense of this pending litigation.
2.

Any Confidential Material or Highly Confidential Material may be claimed by

any producing party, subject to the provisions of paragraph 7 of this Protective Order based on a
good faith belief that the material contains "Confidential Information" or "Highly Confidential
Information" as defined above.
3.

A party claiming that a document is confidential shall mark "Confidential" or

"Highly Confidential" (as the case may be) on the face of the document prior to production or
otherwise notify all counsel of record in writing of the designation. The scope of this Protective
Order shall be understood to encompass not only those items or things which are expressly
designated as "Confidential," or "Highly Confidential," but also any information derived
therefrom, and all copies, excerpts, and summaries thereof, as well as testimony and oral
conversation derived therefrom or related thereto. A party claiming that information discussed
during a deposition is Confidential or Highly Confidential shall notify opposing counsel either
(i) at the time of the deposition by making a statement for inclusion in the deposition transcript
on the record before the close of the deposition or (ii) within five (5) business days after receipt
of the deposition transcript, by so notifying counsel for each other Party in writing. During the
period between the deposition testimony and the time when the five (5) business day period after
receipt of the transcript has run, all deposition transcripts shall be treated as Confidential in the
manner provided for in this Protective Order. A party claiming that any material other than
documents or depositions is Confidential or Highly Confidential or contains Confidential

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Information or Highly Confidential Information shall notify opposing counsel in writing that the
material should be so treated pursuant to the terms of this Protective Order.
4.

Persons Who May Access Confidential Information. Materials marked or

designated as “Confidential” and any copies of such materials and any information contained in
or derived from such materials, shall be made available only to the following persons in
connection with their duties in the conduct of this action:
(i)

The parties and their attorneys of record in this litigation (including any of
their partners or associate attorneys);

(ii)

Any persons employed by such attorneys or their firms, when working in
connection with this litigation under the direct supervision of partners or
associate attorneys of said firms;

(iii)

The Court and Court personnel;

(iv)

Any mediator or other neutral appointed by the Court or chosen by the
parties;

(v)

Court reporters, videographers, and/or other official personnel reasonably
required for the preparation of transcripts of testimony;

(vi)

All experts and consultants retained by any party for the preparation or
trial of this case other than an expert who is a direct competitor of the
producing party;

(vii)

Witnesses necessary to the prosecution or defense of the case, other than
witnesses employed by a direct competitor of the producing party; and

(viii) Any other person on such terms and conditions as the parties may
mutually agree, or as the Court may hereafter direct by further order.
Any person falling within subsections vi, vii, and viii of this paragraph shall, prior to
receipt of Confidential Materials or Information, sign a document in the form attached as Exhibit
A hereto acknowledging that the person has read this Protective Order and agrees to be bound by
it. Access to materials or information designated as "Highly Confidential-Attorneys' Eyes Only"
shall be limited to individuals designated in paragraphs 4(i),(ii), (iii), (iv), (v), (vi) and (viii).
Such acknowledgments shall be retained by counsel for the party providing Confidential
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materials or information to such person(s). For purposes of this Protective Order the parties to
this action shall be deemed not to be direct competitors.
5.

Except as provided in this Protective Order, no copies of material designated as

“Confidential” or "Highly Confidential" shall be made or furnished, and no Confidential
Information or Highly Confidential Information shall be disclosed to any person, firm, or
corporation except those identified in this Protective Order, without prior written consent of the
party to whom the materials belong or their attorneys of record in this action. Prior to the
disclosure of any material or information designated as “Confidential” or "Highly Confidential"
the attorney or other person making such disclosure shall require such person, firm, or
corporation to execute a document in the form attached as Exhibit A hereto.
6.

Any party who seeks to file with the Court a pleading or other paper that contains

Confidential or Highly Confidential Materials or Information shall do so only if the filing is
made with a "restricted access" designation. The parties do not waive the right to object at trial
to the admissibility of any materials or portions thereof. The parties also do not waive the right to
file a motion in limine regarding the use at trial of any materials or portions thereof.
7.

Making and Challenging Designations. In the event that any party to this

litigation disagrees with the designation of any materials or information as “Confidential," or
Highly Confidential the objecting party shall notify counsel of record for the opposing party of
such objection or concerns in writing. The parties shall make a good-faith effort to resolve any
disagreement regarding the designation and use of “Confidential” and Highly Confidential
Material or Information without the necessity of the Court’s intervention. If the disagreement is
not resolved, the producing party shall bear the burden of filing a motion seeking relief from the
Court regarding the designation within ten calendar (10) business days of the producing party’s

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receipt of the written objection and shall seek expedited resolution of the dispute. The disputed
material shall be treated as designated unless and until the Court rules otherwise. The producing
party’s failure to file and serve a motion as provided in this paragraph shall constitute a waiver of
the “Confidential” or “Highly Confidential” designation and the materials will no longer be so
protected. The producing party shall have the burden of showing that the materials or
information are properly designated as “Confidential” or “Highly Confidential,” as the case may
be.
8.

Use of This Protective Order by Third-Parties. A third party, not a party to this

action, who produces documents, testimony or other information, pursuant to a subpoena or a
court order, may designate such material or information in the same manner and shall receive the
same level of protection under this Protective Order as any party to this lawsuit. A third party’s
use of this Protective Order does not entitle that third party access to any Confidential
Information produced by any party in this case. The party requesting the issuance of such
subpoena, or obtaining such court order, shall be responsible for informing the third party of
their rights under this Protective Order.
9.

All parties and counsel for such parties in this litigation shall make a good faith

effort to ensure that their experts, employees and agents comply with this Protective Order. In
the event of a change in counsel, retiring counsel shall fully instruct new counsel of their
responsibilities under this Protective Order.
10.

Within ninety (90) days of the termination of this litigation (including any

appeals) or such other time as the producing party may agree in writing, the parties shall return
the confidential materials to counsel for the producing party in the form such confidential
materials were originally produced (e.g., if the materials were provided electronically via

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compact disk, the compact disk shall be returned), or destroy such confidential materials and
counsel shall certify that all such documents were returned or destroyed. Notwithstanding the
foregoing, counsel may retain a copy of all pleadings filed or served in this case, provided that
any such pleadings filed under seal in accordance with this Protective Order are kept
confidential.
11.

The entry of this Protective Order shall be without prejudice to the rights of the

parties, or either of them, or of any non-party, to assert or apply for additional or different
protection. All parties who review materials or information subject to the terms of this Protective
Order are hereby bound by the terms of this Protective Order and subject themselves to the
jurisdiction of this Court.
12.

This Protective Order is not intended to govern the use of documents or evidence

at trial.
IT IS SO ORDERED.

Dated: July 8, 2016

s/Cheryl R. Zwart
HON. CHERYL R. ZWART
UNITED STATES MAGISTRATE JUDGE

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NON-DISCLOSURE AGREEMENT
I, ________________________________________, hereby certify my understanding
that Confidential materials and/or information are being provided to me pursuant to the terms
and restrictions of the Protective Order entered by the United States District Court for the
District of Nebraska, in the case titled NL Enterprises, LLC v. United Pacific Pet, LLC, Case No.
4:15-cv-03163. I further certify that I have been provided a copy of and have read the Protective
Order, and agree to comply with and be bound by its terms and conditions. I also consent to the
jurisdiction of the United States District Court for the District of Nebraska, for purposes of
enforcing the Protective Order. I understand that violation of the Protective Order is punishable
by contempt of Court.

Date: _____________________

Signature: _________________________________

WA 8289670.1