Cyclonaire Holding Corp. v. Baker et al

Filing 84

ORDER granting 83 Motion for Protective Order Ordered by Magistrate Judge Cheryl R. Zwart. (Zwart, Cheryl)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
CYCLONAIRE HOLDING CORP., a
Delaware Corporation

Case No. 4:16-cv-00467

Plaintiff,
v.

STIPULATED PROTECTIVE ORDER

DONALD E. BAKER, BRUCE A.
HOCKING, AS SELLERS'
REPRESENTATIVE, GLENDA BAKER,
PATRICIA SALTZMAN, JERRY L.
ELFRING, CHESTER KLIEWER,
DERYL L. KLIEWER, JOHN MEOLA,
MERLIN C. MOHNIKE, JOSEPH B.
MORRIS, ROGER L. QUAINTANCE,
RYAN R. QUICK, ROBERT D. RANDALL,
SCOTT SCHMID, AND FRED
WUERTELE
Defendants.
The parties, by and through their respective undersigned counsel, hereby stipulate
to and request the entry of the following Protective Order in order to expedite the flow of
discovery, facilitate the resolution of disputes over claims of confidentiality and provide
adequate protection for material deemed confidential.
IT IS HEREBY ORDERED THAT:
1.

APPLICATION.

This Protective Order limits the use or disclosure of

documents, deposition testimony, or other discovery designated as “Confidential” and it
applies to: (a) documents, deposition testimony and electronic data designated to be
subject to this Protective Order as set forth below; (b) information, copies, extracts, and
complete or partial summaries of documents, deposition testimony and electronic data so
designated; (c) answers to interrogatories, responses to requests for admissions,
responses to requests for production, and initial disclosures (and exhibits to any of these
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materials) which are designated by any party as “Confidential” under this order; and (d)
portions of briefs, affidavits, memoranda, or any other writing filed with the Court (and
exhibits thereto) which include any materials or information identified in (a), (b), or (c) of
this paragraph.
2.

CONFIDENTIAL DOCUMENTS. A party producing documents or electronic

data in discovery may stamp as “Confidential” or so designate by written notice with
reference to the applicable Bates numbers, any document, disc or other media which it
believes contains confidential or proprietary personal or business information and/or trade
secrets. A party which has produced documents prior to the entry of this Order may,
within ten days of the entry of this Order, inform the party to whom documents were
produced that certain documents (identified by Bates numbers) already produced are
designated as “Confidential.”

Further dissemination and disclosure of documents

designated as “Confidential” and the information in documents so designated shall be
limited as set forth in this Protective Order.
3.

DEPOSITION TRANSCRIPTS. Any party may designate as “Confidential”

any portion of deposition testimony which it believes contains confidential or proprietary
business information and/or trade secrets. The party shall so designate the portions of the
deposition transcript either at the time of the deposition or within thirty (30) days following
that party’s counsel’s receipt of the transcript of the deposition from the reporter.

Each

such reporter shall designate the portions of deposition transcripts designated as
“Confidential” with the legend “Confidential—Designated by Counsel.”
4.

EFFECT OF CONFIDENTIAL DESIGNATION.

Documents or electronic

data designated “Confidential” and deposition testimony so designated will be retained by
counsel and will not be used by counsel or by any party for any purpose other than this
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litigation, and will not be disclosed except pursuant to court order entered after notice, to
anyone except:
a.

Counsel who have signed this Order approving it as to form and
content, attorneys who are affiliated with the law firms of counsel who
have signed this Order, retained outside counsel, in-house counsel,
law clerks, secretaries or paralegals directly involved in the conduct of
this litigation;

b.

Individual parties and officers, directors, employees and agents of
corporate parties;

c.

Experts and consultants retained by either of the parties for purposes
of assisting in the preparation or presentation of claims or defenses,
but only to the extent reasonably necessary to prepare them to testify
or when reasonably necessary during their testimony;

d.

Any deposition or trial witness, during the course of deposition or trial
testimony, when necessary to the testimony of such witness;

e.

Clerical and data processing personnel involved in the production,
reproduction, organizing, filing, coding, cataloging, converting,
storing, retrieving, and review of Confidential information, to the
extent reasonably necessary to assist the other persons identified in
this Paragraph;

f.

Any person who authored, received, or who otherwise has already
been provided access to the document in the ordinary course of
business;

g.

The parties' insurers, reinsurers, ceding companies, and their
affiliates;

h.

Court, court personnel, court reporters and similar personnel.

Prior to receiving or being shown such documents or deposition testimony, persons
falling in the categories listed above in subparagraphs (c) and (d) shall be shown a copy
of, and shall agree in writing, or on the record during trial or deposition, to be bound by the
terms of this Protective Order. Any party asserting confidentiality of any of its documents
during a deposition shall ask the deponent on the record to agree to the terms of this
Protective Order. If the deponent refuses to agree, the documents may still be disclosed
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during deposition and that disclosure shall not constitute a waiver of confidentiality
protections provided by this Protective Order. A witness who does not agree to be bound
by the terms of this Protective Order shall sign the original deposition transcript in the
presence of the court reporter and shall not be permitted to obtain a copy of the transcript
or exhibits of the deposition.
5.

NON-PARTY WITNESSES.

A non-party witness may designate any

document it believes contains confidential or proprietary business information and/or
trade secrets as “Confidential” pursuant to this Protective Order by stamping it with such
designation prior to production.
7.

CHALLENGE TO DESIGNATION.

Any party may challenge the

“Confidential” designation of any document or other discovery material subject to this
Protective Order by notifying all parties of the fact that it is challenging the designation
and providing the designating party not less than ten (10) days’ notice before moving for
an order compelling removal of the designation. The parties shall attempt to resolve
such disagreements before submitting them to the Court. Once challenged, the burden
to establish confidentiality shall be on the designating party.
8.

FILING DOCUMENTS CONTAINING CONFIDENTIAL. Any party filing a

document with the Court that contains information or materials that have been deemed
“Confidential” shall file that document with restricted status or under seal, in accordance
with the rules and procedures provided for under local practice.
9.

RETURN OF DOCUMENTS.

Any originals or reproductions of any

documents and/or other materials containing information designated as “Confidential”
shall be (a) returned to the designating party at its expense within thirty (30) days of the
designating party’s written request, after the conclusion of this action, including appeal,
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by entry of a final order; or (b) held in the possession of the receiving party, or its
attorneys, pursuant to the terms of this Protective Order and destroyed in accordance
with the established document retention policy of the receiving party or that of its
attorneys. This Protective Order shall remain in full force and effect after the final
resolution of this litigation.
10.

USE OF DOCUMENTS BY PRODUCING PARTIES.

Nothing in this

Protective Order shall limit any party or person in its use of its own documents, or from
disclosing its own documents and information, or from any use of documents or other
discovery not designated as “Confidential.”
11.

EFFECT OF PRODUCTION. Neither the designation of any documents

as “Confidential” pursuant to this Protective Order nor the production of such documents
in discovery shall be deemed a waiver of any objection to the admissibility of such
documents or their contents at trial.
12.

EXCEPTIONS. This Protective Order shall be binding on any party to

whom any material designated as “Confidential” is disclosed absent a showing that the
material has become public knowledge without a breach of this Protective Order.
13.

APPLICATION TO COURT. Any interested party may apply for a court

order seeking any additional disclosure or modifying or limiting this Order in any
respect.
14.

WAIVER. A party’s waiver of any rights under this Protective Order must

be made in writing or, if at a deposition or in Court, on the record.

A waiver not

expressly made general shall be deemed limited to the narrow purpose of the
circumstances involved and shall not otherwise waive any of the rights provided by this
Protective Order.
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15.

NON-EXCLUSIVITY.

All ethical, legal, and equitable rights and

obligations not addressed in this Protective Order remain in force.
SO ORDERED this 12th day of December, 2017.

BY THE COURT:
s/ Cheryl R. Zwart
United States Magistrate Judge
Approved as to form and content:

By: /s/ Nicholas K. Rudman
Thomas E. Johnson # 12089
Nicholas K. Rudman #25182
BAIRD HOLM LLP
[e-mail]
[e-mail]
By: /s/ Alison M. Gutierrez
Patrick B. Griffin #18072
Alison M. Gutierrez #24025
KUTAK ROCK LLP
[e-mail]
[e-mail]
By: /s/ Thomas J. Culhane
Thomas J. Culhane #10859
Heather B. Veik #23463
Erickson & Sederstrom PC, LLO
[e-mail]
By: /s/ Scott Daniel
Scott E. Daniel #10901
Gettman & Mills, LLP
By: /s/ Lauren Goodman
William F. Hargens #16578
Mark Enenbach #15202
Lauren Goodman #24645
Jay Koehn #25784
McGrath North Mullin & Kratz, PC LLO
[e-mail]

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