Hurd v. The City of Lincoln et al

Filing 25

STIPULATED PROTECTIVE ORDER granting JOINT STIPULATION for Protective Order 24 . Ordered by Magistrate Judge Cheryl R. Zwart. (KLF)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
TROY M. HURD,
Plaintiff,
v.
THE CITY OF LINCOLN, a political
subdivision, TOM CASADY, JOHN HUFF,
PAT BORER, ROGER BONIN, JEANNE
PASHALEK, and LEO BENES, in their
individual and official capacities,
Defendants.

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Case No. 4:16-cv-03029

STIPULATED
PROTECTIVE ORDER

1.

As used herein:

a.

“Confidential Documents” shall mean documents produced by a party in discovery

and designated as “CONFIDENTIAL.” For purposes of this agreement, Confidential Documents
shall be limited to following documents under the control of Plaintiff and those documents under
the control of the City of Lincoln and not readily available to the general public:
i.

Employee personnel and training records;

ii.

City of Lincoln policies, procedures, and general orders;

iii.

City of Lincoln training records;

iv.

Plaintiff’s personnel and medical records; and

v.

Any other documents or electronic information either Party designates as

“CONFIDENTIAL.”
b.

“Disclosed”

shall

mean

divulged,

revealed,

described, summarized,

paraphrased, quoted, transmitted or otherwise communicated to any Person or Persons in any
manner and for any purpose other than as allowed herein;
c.

“Attorney” shall include all partners, associates, paralegals, secretaries and other

employees of the Attorneys for the Parties;
d.

“Party” shall mean any named Plaintiff or Defendants in this case;

e.

“Producing Party” shall mean, with respect to Confidential Documents, Plaintiff or

City of Lincoln and/or its employees or witnesses turning the Confidential Documents over to the
opposing party in discovery;
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f.

“Person” shall mean any individual, corporation, partnership, association,

society, unincorporated organization, city, state, republic or governmental agency or employee,
or any other entity, including without limitation, each Party to this action;
g.

“Consultant” shall mean any expert retained or hired by a Party or Attorney in this

case for the purpose of providing expert testimony in the trial of this matter or for the purpose of
assisting a Party or Attorney in any manner in the litigation of this case and further shall include
in-house experts and/or technical personnel of the Parties; and
h.

“Witness” shall mean any individual who may testify in court proceedings or

depositions in the above-captioned case.
2.

Confidential Documents shall not be used or Disclosed by any Party,

his/her/its Attorney(s), or anyone else for whom they are responsible for any purpose unrelated
to preparing for trial and/or for trial of this action and any appeal herein or for any business or
competitive purpose. Disclosure other than as provided for herein shall first require written
consent of the Producing Party, or by order of the Court. The Parties and Attorney(s) shall
maintain a list of documents disclosed and to whom. The Parties and Attorney(s) shall also
require anyone receiving Confidential Documents to agree to the terms of this Agreement. The
Attorney(s) for either Party shall be responsible for instructing witnesses, consultants, and outside
counsel assisting in preparation of the case, that disclosure of the Confidential Documents is
prohibited as set forth herein.
3.

Confidential Documents under 1(a)(i-iv) above are produced to Plaintiff’s or

Defendants’ Attorney(s). Plaintiff’s or Defendants’ Attorney(s) shall not provide to or allow
Plaintiff, the Defendants or non-expert witnesses to make copies of the Confidential Documents.
Plaintiff, Defendants, and Witnesses may view the Confidential Documents in the presence of the
Attorneys for the parties or his or her Attorney(s). 4. Should either Party and Attorney(s) question
whether documents designated as Confidential Documents are truly confidential, they shall f irst
contact the P roducing P arty in good fa ith to resolve the issue. If the issue cannot be
resolved, e ither P arty may petition the Court for an order as to whether the designated
Confidential Document is subject to the conditions of this Protective Order. A Party shall not
be obligated to challenge the propriety of a designation as “Confidential” at the time made, and a
failure to do so shall not preclude a subsequent challenge thereto.

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5.

If Confidential Documents are disclosed to or comes into the possession of any

person other than in the manner authorized by this Protective Order, the Party responsible for the
disclosure must immediately provide written notice to the Party and Attorney(s) who designated
the information as Confidential pursuant to the terms of this Protective Order of all pertinent facts
relating to such disclosure. Within five (5) business days of the written notice, any Party,
Attorney(s), or Consultant that has disclosed the Confidential Documents shall make reasonable
efforts to prevent further disclosure by each unauthorized person who received the Confidential
Documents.
6.

In the event a Confidential Document is used by e ither P arty or Attorney(s) at

the deposition of any Consultant or Witness, the court reporter shall agree in writing or on
the record of such deposition that no copies of the deposition or the deposition exhibit previously
identified as a Confidential Document herein shall be made for, delivered, or made available to
any Person except Attorneys of record for the Parties in the above-captioned case, the
Court, and the deposition Witness. In the event the court reporter refuses such request, either
Party may withdraw from the deposition until a court reporter is found willing to comply.
7.

A Party’s compliance with the terms of this Protective Order shall not operate as

an admission that any particular testimony, information or document is or is not (a) confidential or
(b) privileged.

The inadvertent production or disclosure of any information or documents

protected by the attorney-client privilege, the attorney work product doctrine, a joint defense
privilege or any other applicable privilege shall not constitute, or be considered as a factor
suggesting a waiver or impairment of any claims of such privilege or protection. In the event of
inadvertent production or disclosure of privileged material, the Producing Party must provide
written notice that privileged material has been inadvertently produced or disclosed. Within five
(5) business days of receipt of such notice, any Party, Attorney(s), or Consultant that has received
such privileged material shall return to the Producing Party all such privileged material and copies
thereof in its possession, and shall make reasonable efforts to reclaim and return such privileged
material.
8.

Confidential Documents may be used to examine or cross-examine any Witness or

Consultant at any hearing, deposition, or trial. Such use may be limited as provided in this
Agreement. The Producing Party shall have the right to request the Court to exclude or sequester

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any individual who is in attendance at any hearing, deposition or trial for purposes of maintaining
the confidentiality of such documents.
9.

Confidential Documents may be referred to in interrogatory answers, motions and

briefs, and other pleadings, and may be used in depositions and marked as deposition exhibits in
this action in accordance with this Protective Order. However, if any Confidential Documents to
be included in any papers to be filed in Court, such information or material shall be labeled
“CONFIDENTIAL,” and shall be filed under seal and kept under seal until further order of this
Court. Either Party may move the Court for an Order that the evidence be received in camera or
under other conditions to prevent unnecessary disclosure.
10.

Following the conclusion of this litigation, including any appeal, writ, or

petition for review, the Producing Party may make written demand for the return of the
Confidential Documents produced. Upon demand for return, the Party receiving the demand
shall return the originals and any copies of the Confidential Documents which are in their
custody or control.
11.

Any person in possession of Confidential Information who receives a public

information request, subpoena, or other request from any person (including natural persons,
corporations, partnerships, firms, governmental agencies, departments, or bodies, boards, or
associates) who is not a party to this action, seeking production or other disclosure of a Party's
Confidential Information, shall promptly give telephonic notice and written notice by overnight
delivery and/or email to counsel for the Producing Party, person or entity, enclosing a copy of the
subpoena or other request. In no event shall production or other disclosures be made before the
later of (a) ten (10) days following the date on which notice is given, or (b) the return date of the
subpoena, unless otherwise required by applicable law or court order.
12.

The Parties may, by stipulation, provide for exceptions to this Order and any Party

may seek an order of this Court modifying this Protective Order.
TROY HURD, Plaintiff
By: s/ Kelly Brandon
Kelly K. Brandon, #20734
Fielder & Timmer, P.L.L.C.
20615 Highway 370
Gretna, NE 68028
[phone]
[e-mail]
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AND
THE CITY OF LINCOLN, TOM CASADY,
JOHN HUFF, PAT BORER, ROGER BONIN,
JEANNE PASHALEK and LEO BENES,
Defendants

JEFFERY R. KIRKPATRICK, City Attorney
JOCELYN W. GOLDEN, Assistant City Attorney
By: /s/ Jocelyn W. Golden
Jocelyn W. Golden, #23039
555 South 10th Street, Suite 300
Lincoln, NE 68508
[phone]
[e-mail]

SIGNED this the 29th day of September, 2016.

s/ Cheryl R. Zwart
UNITED STATES MAGISTRATE JUDGE

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