BNSF Railway Company v. Seats, Incorporated

Filing 48

PROTECTIVE ORDER - Upon consideration of the parties' joint request for entry of a Protective Order, (Filing No. 47 ), the Court enters the following Protective Order governing the disclosure of confidential Discovery Material by a Producing Party to a Receiving Party in this Action. Ordered by Magistrate Judge Cheryl R. Zwart. (LKO)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
BNSF RAILWAY COMPANY, a
Delaware Corporation authorized to do
business in Nebraska;

4:16CV3121

Plaintiff,
PROTECTIVE ORDER
vs.
SEATS, INCORPORATED, a
Wisconsin Corporation;
Defendant.
Upon consideration of the parties’ joint request for entry of a Protective Order,
(Filing No. 47), the Court enters the following Protective Order governing the disclosure
of confidential Discovery Material by a Producing Party to a Receiving Party in this
Action.

1)

Definitions. As used in this Order:
a. Action refers to the above-captioned litigation.
b. Discovery Material includes all information exchanged between the
parties, whether gathered through informal requests or communications
between the parties or their counsel, or gathered through formal discovery
conducted pursuant to Rules 30 through 36, and Rule 45. Discovery
Material includes information within documents, depositions, deposition
exhibits, and other written, recorded, computerized, electronic or graphic
matter, copies, and excerpts or summaries of documents disclosed as
required under Rule 26(a).
c. A Producing Party is a party to this litigation, or a non-party either acting
on a party’s behalf or responding to discovery pursuant to a Rule 45
subpoena, that produces Discovery Material in this Action.
d. A Receiving Party is a party to this litigation that receives Discovery
Material from a Producing Party in this Action.

2)

Confidential Discovery Material. This Protective Order applies to all

confidential Discovery Material produced or obtained in this case. For the purposes of
this Protective Order, confidential Discovery Material shall include:
a. Commercial information relating to any party’s business including, but not
limited to, tax data, financial information, financial or business plans or
projections, proposed strategic transactions or other business
combinations, internal audit practices, procedures, and outcomes, trade
secrets or other commercially sensitive business or technical information,
proprietary business and marketing plans and strategies, studies or
analyses by internal or outside experts, competitive analyses, customer or
prospective customer lists and information, profit/loss information, product
or service pricing or billing agreements or guidelines, and/or confidential
project-related information;
b. Personnel data of the parties or their employees, including but not limited
to employment application information; the identity of and information
received from employment references; wage and income information;
benefits information; employee evaluations; medical evaluation and
treatment information and records; counseling or mental health records;
educational records; and employment counseling, discipline, or
performance improvement documentation;
c. Information concerning settlement discussions and mediation, including
demands or offers, arising from a dispute between a party and a nonparty;
d. Medical or mental health information;
e. Records restricted or prohibited from disclosure by statute; and
f. Any information copied or extracted from the previously described
materials, including all excerpts, summaries, or compilations of this
information or testimony, and documentation of questioning, statements,
conversations, or presentations that might reveal the information
contained within the underlying confidential Discovery Material.

3)

Manner of Confidential Designation. A Producing Party shall affix a

“CONFIDENTIAL” designation to any confidential Discovery Material produced in this
Action.

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a. As to documentary information (defined to include paper or electronic
documents, but not transcripts of depositions or other pretrial or trial
proceedings), the Producing Party must affix the legend “CONFIDENTIAL”
to each page that contains protected material.
b. If only a portion or portions of the information on a document page
qualifies for protection, the Producing Party must clearly identify the
protected portion(s) (e.g., by using highlighting, underlining, or appropriate
markings in the margins).
c. If it is not feasible to label confidential Discovery Material as
“CONFIDENTIAL,” the Producing Party shall indicate via cover letter or
otherwise at the time of production that the material being produced is
CONFIDENTIAL.
Counsel for a disclosing party may further designate confidential Discovery
Material as CONFIDENTIAL--ATTORNEYS' EYES ONLY if such counsel concludes in
good faith that the material is or contains non-public information that is highly sensitive
proprietary information including, but not limited to, trade secrets, privileged
information, or nonpublic technical, financial, personal or business information.
Discovery Material designated as CONFIDENTIAL - FOR ATTORNEYS’ EYES ONLY
means any document which bears the legend CONFIDENTIAL - FOR ATTORNEYS’
EYES ONLY or, if it is not feasible to label the Discovery Material, which the producing
party indicates via cover letter or otherwise at the time of production as
CONFIDENTIAL - FOR ATTORNEYS’ EYES ONLY.

4)

Timing of Confidential Designation.
a. Except as otherwise stipulated or ordered, or where discovery is made
available for inspection before it is formally disclosed, Discovery Material
that qualifies for protection under this Order must be clearly so designated
before the material is disclosed or produced.
b. If the Producing Party responds to discovery by making Discovery Material
available for inspection, the Producing Party need not affix confidential
designations until after the Receiving Party has selected the material it
wants to receive. During the inspection and before the designation, all
material made available for inspection is deemed “CONFIDENTIAL.” After
the Receiving Party has identified the Discovery Material it wants

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produced, the Producing Party must determine which materials, or
portions thereof, qualify for protection under this Order, and designate the
materials as “CONFIDENTIAL” and/or CONFIDENTIAL--ATTORNEYS'
EYES ONLY as required under this order.

5)

Qualified Recipients. For the purposes of this Protective Order, the persons

authorized to receive confidential Discovery Material (hereinafter “Qualified Recipient”)
are:
For information designated as CONFIDENTIAL:
a. The Parties, including any members, council members, officers, board
members, directors, employees, or other legal representatives of the
parties;
b. Legal counsel representing the parties, and members of the paralegal,
secretarial, or clerical staff who are employed by, retained by, or assisting
such counsel; including vendors who are retained to copy documents or
electronic files, provide technical, litigation support, or mock trial services,
or provide messenger or other administrative support services;
c. Any non-expert witness during any deposition or other proceeding in this
Action, and counsel for that witness;
d. Potential witnesses and their counsel, but only to the extent reasonably
related to the anticipated subject matter of the potential witness’s
deposition, trial, or hearing testimony for this Action, so long as such
persons agree to maintain the confidential Discovery Material in
confidence per the terms of this Order, and provided that such persons
may only be shown copies of confidential Discovery Material and may not
retain any such material;
e. Consulting or testifying expert witnesses who will be providing
professional opinions or assistance for this Action based upon a review of
the CONFIDENTIAL information, and the staff and assistants employed by
the consulting or testifying experts;
f. Any mediator or arbitrator retained by the parties to assist with resolving
and/or settling the claims of this Action and members of the arbitrator’s or
mediator’s staff and assistants;

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g. The parties’ insurers for this Action, and their staff and assistants,
members, officers, board members, directors or other legal
representatives;
h. Court reporters for depositions taken in this Action, including persons
operating video recording equipment and persons preparing transcripts of
testimony;
i.

The court and its staff, any court reporter or typist recording or transcribing
hearings and testimony, and jurors; and

j.

Any auditor or regulator of a party entitled to review the confidential
Discovery Material due to contractual rights or obligations, or federal or
state laws, or court orders, but solely for such contractual or legal
purposes.

For information designated as “CONFIDENTIAL INFORMATION-ATTORNEYS’
EYES ONLY”:
a. Legal counsel representing the Receiving Parties, and members of the
paralegal, secretarial, or clerical staff who are employed by, retained by,
or assisting such counsel;
b. Consulting or testifying experts for the Receiving Party, defined to include
only those experts retained or employed to assist the Receiving party in
preparing for trial or any other proceeding in the Action and who need
access to the CONFIDENTIAL INFORMATION-ATTORNEYS EYES
ONLY information to provide such assistance, and who are not employed
by, or an agent or representative for, the Receiving Party, nor anticipated
to become an employee, agent or representative of the Receiving Party in
the near future;
c. If necessary to promote alternative dispute resolution, any mediator or
arbitrator (and their assistants or staff) retained by the parties who needs
access to the CONFIDENTIAL INFORMATION-ATTORNEYS EYES
ONLY information to assist the parties with resolving the claims of this
Action;
d. Court reporters for depositions taken in this Action, including persons
operating video recording equipment and persons preparing transcripts of
testimony; and

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e. The court and its staff, any court reporter or typist recording or transcribing
hearings and testimony, and jurors.

6)

Dissemination by the Receiving Party. Counsel for the Receiving Party

shall:
a. Require Qualified Recipients who are non-expert witnesses or expert
witnesses and consultants and who receive information designated as
“CONFIDENTIAL” and/or CONFIDENTIAL--ATTORNEYS' EYES ONLY to
review and agree to the terms of this Protective Order and execute a copy
of the Agreement attached hereto as Appendix A before receiving
confidential Discovery Material.
b. Instruct witnesses, consultants, and outside counsel who assist with case
preparation or represent a witness that disclosure of the information
designated as “CONFIDENTIAL” and/or CONFIDENTIAL--ATTORNEYS'
EYES ONLY is prohibited as set forth herein.
c. Maintain a list of any confidential Discovery Material disclosed and to
whom, along with the executed copies of the Appendix A Agreement.
The prohibition on disclosing information designated as “CONFIDENTIAL” and/or
CONFIDENTIAL--ATTORNEYS' EYES ONLY exists and is enforceable by the court
even if the person receiving the information fails or refuses to sign the Appendix A
Agreement.

7)

Duty as to Designations.

Each

Producing

Party

that

designates

information or items as CONFIDENTIAL and/or CONFIDENTIAL--ATTORNEYS' EYES
ONLY must exercise reasonable care to limit any such designation to specific material
that qualifies under the appropriate standards, and designate only those parts of
material, documents, items, or oral or written communications that qualify, so that other
portions of the material, documents, items, or communications for which protection is
not warranted are not swept unjustifiably within the ambit of this Order. Broadly
described, indiscriminate, or routinized designations are prohibited.

8)

Limitations on Use. Confidential Discovery Material shall be used by the

Receiving Party only to prepare for and conduct proceedings herein and not for any
business or other purpose whatsoever. The parties acknowledge that some of the

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information produced in this case may be protected health information, or contain such
information, within the meaning of the Health Insurance Portability and Accountability
Act (HIPAA). Consistent with 45 C.F.R. § 164.512(e)(1)(iv)(v), and as to the health
information requested, counsel and the Receiving Party:
a. Shall not use or disclose the information for any purpose other than the
litigating this Action;
b. Shall return or destroy the protected health information (including all
copies made) at the end of this Action; and
c. Shall request, use and disclose only the minimum amount necessary to
conduct this Action.

9)

Maintaining

Confidentiality.

Discovery

Material

designated

as

“CONFIDENTIAL” and/or CONFIDENTIAL--ATTORNEYS' EYES ONLY shall be held
in confidence by each Qualified Recipient to whom it is disclosed, shall be used only
for purposes of this action, and shall not be disclosed to any person who is not a
Qualified Recipient. Each party, each Qualified Recipient, and all counsel representing
any party, shall use their best efforts to maintain all information designated as
“CONFIDENTIAL” and/or CONFIDENTIAL--ATTORNEYS' EYES ONLY in such a
manner as to prevent access, even at a hearing or trial, by individuals who are not
Qualified Recipients. Nothing herein prevents disclosure beyond the terms of this
Protective Order if the party claiming confidentiality consents in writing to such
disclosure.

10) Copies. Discovery Material designated as “CONFIDENTIAL” and/or
CONFIDENTIAL--ATTORNEYS' EYES ONLY shall not be copied or otherwise
reproduced by the Receiving Party, except for transmission to Qualified Recipients,
without the written permission of the Producing Party or, in the alternative, by order of
the court. However, nothing herein shall restrict a Qualified Recipient from loading
confidential documents into document review platforms or programs for the purposes
of case or trial preparation or making working copies, abstracts, digests, and analyses
of

information

designated

as

“CONFIDENTIAL”

and/or

ATTORNEYS' EYES ONLY under the terms of this Protective Order.

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CONFIDENTIAL--

11) Docket Filings. All documents of any nature including, but not limited to,
briefs, motions, memoranda, transcripts, discovery responses, evidence, and the like
that are filed with the court for any purpose and that contain Discovery Material
designated as “CONFIDENTIAL” and/or CONFIDENTIAL--ATTORNEYS' EYES ONLY
shall be provisionally filed under restricted access with the filing party’s motion for
leave to file restricted access documents. A party seeking to file Discovery Material
under restricted access must comply with the court’s rules and electronic docketing
procedures for filing such motions.

12) Depositions. The following procedures shall be followed at all depositions to
protect the integrity of all Discovery Material designated as “CONFIDENTIAL” and/or
CONFIDENTIAL--ATTORNEYS' EYES ONLY:
a. Only Qualified Recipients may be present at a deposition in which such
information is disclosed or discussed.
b. All deposition testimony which discloses or discusses information
designated as “CONFIDENTIAL” and/or CONFIDENTIAL--ATTORNEYS'
EYES ONLY is likewise deemed designated as “CONFIDENTIAL” and/or
CONFIDENTIAL--ATTORNEYS' EYES ONLY.
c. Information designated as “CONFIDENTIAL” and/or CONFIDENTIAL-ATTORNEYS' EYES ONLY may be used at a nonparty deposition only if
necessary to the testimony of the witness.

13) Challenges to Confidentiality Designations. A Receiving Party that
questions the Producing Party’s confidentiality designation will, as an initial step,
contact the Producing Party and confer in good faith to resolve the dispute. If the
parties are unable to resolve the dispute without court intervention, they shall schedule
a conference call with the magistrate judge assigned to the case before engaging in
written motion practice. If a written motion and briefing are necessary and the
information in dispute must be reviewed by the court to resolve that motion, the
confidential information shall be filed under restricted access pursuant to the court’s
electronic docketing procedures. The party that produced the information designated
as “CONFIDENTIAL” and/or CONFIDENTIAL--ATTORNEYS' EYES ONLY bears the
burden

of

proving

it

was

properly

designated.

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The

party

challenging

a

“CONFIDENTIAL” and/or CONFIDENTIAL--ATTORNEYS' EYES ONLY designation
must obtain a court order before disseminating the information to anyone other than
Qualified Recipients.

14) Use at Court Hearings and Trial. Subject to the Federal Rules of Evidence,
Discovery Material designated as “CONFIDENTIAL” and/or CONFIDENTIAL-ATTORNEYS' EYES ONLY may be offered and received into evidence at trial or at
any hearing or oral argument. A party agreeing to the entry of this order does not
thereby waive the right to object to the admissibility of the material in any proceeding,
including trial. Any party may move the court for an order that Discovery Material
designated as “CONFIDENTIAL” and/or CONFIDENTIAL--ATTORNEYS' EYES ONLY
be reviewed in camera or under other conditions to prevent unnecessary disclosure.

15) Return or Destruction of Documents. Upon final termination of this Action,
including all appeals, each party shall make reasonable efforts to destroy all Discovery
Material designated as “CONFIDENTIAL” and/or CONFIDENTIAL--ATTORNEYS'
EYES ONLY. The destroying party shall notify the producing party when destruction
under this provision is complete. If a party is unable to destroy all Discovery Material
designated as “CONFIDENTIAL” and/or CONFIDENTIAL--ATTORNEYS' EYES ONLY,
that material shall be returned to the Producing Party or the Producing Party’s counsel.
This Protective Order shall survive the final termination of this action, and it shall be
binding on the parties and their legal counsel in the future.

16) Modification. This Protective Order is entered without prejudice to the right
of any party to ask the court to order additional protective provisions, or to modify, relax
or rescind any restrictions imposed by this Protective Order when convenience or
necessity requires. Disclosure other than as provided for herein shall require the prior
written consent of the Producing Party, or a supplemental Protective Order of the court.

17) Additional Parties to Litigation. In the event additional parties are joined in
this action, they shall not have access to Discovery Material as “CONFIDENTIAL”
and/or CONFIDENTIAL--ATTORNEYS' EYES ONLY until the newly joined party, by its
counsel, has executed and, at the request of any party, filed with the court, its
agreement to be fully bound by this Protective Order.

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18) Sanctions.
a. Any party subject to the obligations of this order who is determined by the

court to have violated its terms may be subject to sanctions imposed by
the court under Rule 37 of the Federal Rules of Civil Procedure and the
court’s inherent power.
b. Confidentiality designations that are shown to be clearly unjustified or

that have been made for an improper purpose (e.g., to unnecessarily
prolong or encumber the case development process or to impose
unnecessary expenses and burdens on other parties) expose the
designating party to sanctions. Upon discovering that information was
erroneously designated as CONFIDENTIAL and/or CONFIDENTIAL-ATTORNEYS' EYES ONLY, the Producing Party shall promptly notify all
other Parties of the improper designation

19) Inadvertent Disclosure of Protected Discovery Material.
a. A Producing Party that inadvertently fails to properly designate Discovery

Material as “CONFIDENTIAL” and/or CONFIDENTIAL--ATTORNEYS'
EYES ONLY shall have 14 days from discovering the oversight to correct
that failure. Such failure shall be corrected by providing written notice of
the error to every Receiving Party.
b. Any Receiving Party notified that confidential Discovery Material was

received without the appropriate confidentiality designation as authorized
under this order shall make reasonable efforts to retrieve any such
documents distributed to persons who are not Qualified Recipients under
this order, and as to Qualified Recipients, shall exchange the
undesignated or improperly designated documents with documents that
include the correct “CONFIDENTIAL” and/or CONFIDENTIAL-ATTORNEYS' EYES ONLY designation.

20) Disclosure of Privileged or Work Product Discovery Material.
a. The production of attorney-client privileged, or work-product protected
electronically stored information (“ESI”) or paper documents, whether
disclosed inadvertently or otherwise, is not a waiver of the privilege or
protection from discovery in this case or in any other federal or state
proceeding. This Protective Order shall be interpreted to provide the
maximum protection allowed by Federal Rule of Evidence 502(d). Nothing
contained herein is intended to or shall serve to limit a party’s right to

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conduct a review of documents, ESI or information (including metadata)
for relevance, responsiveness and/or segregation of privileged and/or
protected information before production.
b. Any party who discloses documents that are privileged or otherwise
immune from discovery shall promptly upon discovery of such disclosure,
advise the Receiving Party and request that the documents be returned.
The Receiving Party shall return such produced documents or certify their
destruction, including all copies, within 14 days of receiving such a written
request. The party returning such produced documents may thereafter
seek re-production of any such documents pursuant to applicable law.

April 10, 2019.

BY THE COURT:
s/ Cheryl R. Zwart
United States Magistrate Judge

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA

Plaintiff,
EXHIBIT A
vs.

Defendant.

I hereby acknowledge that I am about to receive Confidential Information
supplied in connection with the above-captioned case. I understand that such
information is being provided to me pursuant to the terms and restrictions of the
Protective Order entered in this case. I have been given a copy of the Protective Order,
have read the Protective Order, and agree to be bound by its terms. I understand that
Confidential Information as defined in the Protective Order, or any notes or other
records that may be made regarding any such materials, shall not be disclosed to any
persons except as permitted by the Protective Order.

Click or tap to enter a date..

Printed Name

Signature

BY THE COURT:
s/ Cheryl R. Zwart
United States Magistrate Judge

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