Lozovyy v. Kurtz

Filing 4

PROTECTIVE ORDER: 1) The Motion for Protective Order 1 is stricken as incomplete. 2) The parties' Stipulated and Agreed Protective Order 2 is hereby approved and ordered. Ordered by Magistrate Judge Cheryl R. Zwart. (Zwart, Cheryl)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
YAROSLAV LOZOVYY,
Plaintiff,
v.
RICHARD L. KURTZ, et al.,
Defendants.

)
Civil Case No. 4:16-cv-3083
) [M.D. La. Case No. 3:13-cv-00424}
)
)
STIPULATION AND
) AGREED PROTECTIVE ORDER
)
)
)
)

WHEREAS, subpoenas have been issued for the deposition of Professor
Peter Dowben, Ph.D. (hereinafter “Dr. Dowben”) and documents in his
possession and documents located at the University of Nebraska-Lincoln; and
WHEREAS, discovery in the above-entitled action may involve the
production of documents and disclosure of information which the Board of
Regents of the University of Nebraska (hereinafter "University") and Dr. Dowben
claim to be confidential; and,
WHEREAS, the University, Dr. Dowben and the parties desire to pursue
discovery with a minimum of delay and expense; and
WHEREAS, the parties have agreed pursuant to Fed. R. Civ. P. Rules 29
and 26(c) and NELR 7.2 and 7.3 that a protective order should be entered in
connection with the production of documents and disclosure of information by
Dr. Dowben and the University;
IT IS HEREBY ORDERED AND AGREED:
1.

When used in this order, the word "documents" has the full extent

of its meaning as provided in the Federal Rules of Civil Procedure and includes
all written, recorded or graphic matter whatsoever including documents and
electronically stored information produced by Dr. Dowben and the University
whether pursuant to Federal Rules of Civil Procedure 26, 45, by subpoena
duces tecum or by agreement, deposition transcripts and exhibits, and any
portion of any Court papers which quote from any of the foregoing.

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2.

As used in this order, the words "research" means trade secrets,

academic and scientific research work which is in progress and unpublished,
and other proprietary or commercial information which if released would give
advantage to business competitors, and serve no public purpose which could
be withheld from disclosure to the public under Neb. Rev. Stat. § 84-712.05 (3)
(Reissue 2014); "personnel information" means information about current or
former employees of the University which could be withheld from disclosure to
the public under Neb.

Rev.

Stat. § 84-712.05(7)

(Reissue 2014), and

information that is deemed to be confidential under§ 1.4.4 of the Bylaws of the

Board of Regents of the University of Nebraska; and "student information "
means information regarding a student, prospective student, or former student
which could be withheld from disclosure to the public under Neb. Rev. Stat. §
84-712.05(1) (Reissue 2014) or under 20 U.S.C. § 1232g.
3.

All

documents

and

disclosure

of information

pertaining to

research, personnel and student information and every portion thereof,
produced by Dr. Dowben and the University, pursuant to any discovery
procedure or informal exchange of documents in this matter, shall be
considered "confidential" for purposes of this order and shall be used by the
non-producing parties, their experts and attorneys, only for the preparation for
and conduct of proceedings herein and not for any business or other purpose
whatsoever.

Documents which were prepared by and obtained from any

individual, entity or agency other than the University or a person acting for the
University and which would be discoverable from that entity, agency, or person
shall not be deemed confidential for purposes of this order. Upon receiving
documents from the University, the Defendants shall give written notice to the
University of those documents Defendants view as not covered by this
Protective Order. The University shall then have fourteen days within which to
arrive at an agreement for a protective order on some other basis or to file an
appropriate motion for a protective order.

In the event that no agreement is

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reached and no motion is filed within the fourteen day time period, this
Protective Order shall be deemed not to apply to the documents listed by the
Defendants in its notice of non-covered documents. For the period of fourteen
days following the Defendants' delivery of the notice identified in this
paragraph and for the period that a motion for a protective order is pending
under this paragraph, the information shall be deemed subject to this
Protective Order.
4.

Except as hereinafter provided, no confidential documents or

disclosure information, nor any portion or summary thereof, produced by the
University shall be given, shown, disclosed, or communicated by the parties in
any way, directly or indirectly, to any person or entity other than:
(a)

Counsel for the parties in this action, and their employees;

(b)
(c)

The parties;
Outside consultants and experts consulted or retained for the
purpose of testifying or assisting in the preparation for the conduct
of the proceedings herein.

No confidential documents or disclosure information shall be disclosed to
persons other than those listed above, unless the party desiring to make such
disclosure first notifies the person to whom the confidential document or
disclosure information pertains and that person is given thirty (30) days to
consent or object to the proposed disclosure.

Notification about proposed

disclosure of confidential information concerning the plaintiff and defendant
shall be given to their counsel, and notification of proposed disclosure of
information concerning the current or former employees of the University shall
be given to counsel for the University.
Parties may question potential lay witnesses regarding the underlying
facts contained in personnel records so long as subject's names and/or
personally identifiable information is not disclosed.

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5.

Before disclosure of any confidential documents is made to any

person described in paragraph 4 above, the person to whom disclosure is made
shall be informed of the terms of this order and shall agree in writing to be
bound by the terms of this order. Counsel for each party shall maintain a file
of such written agreements until this action is concluded.
6.

If any party files any confidential documents

or disclosure

information produced by the University with the Court, or testimony is given
concerning disclosure information contained therein, all such documents,
testimony and documents incorporating or referring to such disclosure
information shall be filed under seal and shall be maintained under seal of the
Court. For the convenience of the parties, the Clerk and the Court, any filing
containing both confidential and non-confidential material may be filed entirely
under seal.
7.

Notwithstanding

the

foregoing,

this

order

shall

be

without

prejudice to the right of any party to object to the production of any
documents, or any testimony, or inspection upon any appropriate grounds and
nothing contained herein shall be construed as a waiver of any objection which
might be raised as to the admissibility at trial of any evidentiary materials.
8.

This 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 other grounds provided by applicable law.
9.

Prior to the trial of this action, the attorneys for the parties shall

meet and attempt to agree on an appropriate form of order to submit to the
Court regarding the confidential status, if any, to be afforded documents,
testimony, or other information disclosed during the course of the trial. If the
parties cannot agree upon an appropriate form of order, the matter will be
submitted to the Court for determination prior to trial under terms and
conditions established by the Court.

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10.

At the conclusion of this action all originals or reproductions of all

documents subject to this protective order shall be returned to the producing
party upon request, or destroyed by the non-producing parties.
APPROVED this __ day of _ _ _ _ _ __ _ __ , 2016.
9th
June

Cheryl R. Zwart
United States Magistrate Judge
Respectfully submitted,
Board of Regents of the
University of Nebr ska,
By:
n C . W i tse, # 1
Dep
General Counsel
University of Nebraska
237 Varner Hall
3835 Holdrege Street
Lincoln, NE 68583-07 45
[phone]
(402) 4 72-20 38 (facsimile)
jwi lt sc01
)ncbra ska. c d u

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and
Yaroslav Lozovyy,

Pl~
By:

s~
533 Europe Street
Baton Rouge, LA 70802
[phone] (voice)
[phone] (facsimile)
[e-mail]
and

2016 0519 1543 Dowben protective order

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Richard L. Kurtz, et al.,
efendants,
By:

ro
arn - ernal
Long Law Firm, LLP
One United Plaza
4041 Essen Lane
Suite 500
Baton Rouge, LA 70809
[phone] (voice)
[phone] (facsimile)
bbb(a),longla w. com

2016 0519 1543 Dowben protective order

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