Kopecky v. Schwan's Home Service, Inc.

Filing 30

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

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA

Joseph Kopecky,
CASE NO. 4:16-cv-03124-JMG-CRZ

Plaintiff,

JOINT STIPULATED PROTECTIVE
ORDER

v.
Schwan's Home Service, Inc.,
Defendant.

WHEREAS, Plaintiff Joseph Kopecky and Defendant Schwan's Home Service,
Inc. (individually a "Party" or together the "Parties") hereby agree that either or both
may consider certain information, documents, and other items discoverable in the
above-captioned matter, pursuant to FED. R. CIV. P. 26(c), to be confidential or
proprietary in nature and that such party may seek to protect such items from disclosure,
or to designate such items confidential to avoid making such information available to
non-disclosed Party representatives, Party employees, non-Parties or the generally
public;
IT IS HEREBY STIPULATED AND AGREED by and between the Parties hereto,
through their undersigned counsel, that:

1.

The following definitions shall apply to the Stipulated Protective Order to be

issued in this action:

a.

"Attorneys" means counsel of record;

b.

"Confidential"

documents

or

designated pursuant to paragraph 2;

materials

are

documents

c.

"Documents" are all materials or items within the scope of
FED. R. CIV. P. 34;

d.

"Written Assurance" means an executed document in the
form attached as Exhibit A.

2.

Confidential Documents/Material. As used herein, the term "Confidential

Material" shall mean "confidential personal financial information and personal bank
records, documents, materials, trade secrets, or proprietary information designated by
a party in good faith to be confidential." The following information is also considered
Confidential Material, if so designated: (1) customer and client names, lists and
contact information; (2) employee and owner social security numbers and contact
information; (3) employee medical information that may be included in personnel files;
and (4) personal information regarding employees not parties to this lawsuit. A Party
may designate any document, including interrogatory responses, other discovery
responses, documents produced by third parties, or transcripts, to be "Confidential"
that it in good faith contends to constitute or contain Confidential Material,
confidential information, trade secrets or proprietary information.
Each Party shall designate such material it deems "Confidential" by marking all
documents with the designation "Confidential." In lieu of physically marking a document
with the designation "Confidential," the producing Party can produce (1) written
documentation in which it identifies the documents it designates "Confidential" or (2)
electronic stored information or documentation in which it includes "Confidential" in the
file name of the document.
Only such portions of a deposition transcript as are affirmatively designated in
writing by a Party to be "Confidential" shall be treated as confidential.

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The Party

designating a portion of a deposition transcript as confidential shall either: (1) provide
written notice to all Parties by listing the page and inclusive line numbers of the
material to be kept confidential, and shall designate such pages confidential; or (2)
while on the record at the deposition, verbally designate the portion of the deposition
transcript to be kept confidential. In any deposition transcript in which any portion of
the transcript has been designated confidential by any Party, the court reporter, or the
party holding the original transcript, shall imprint the word "Confidential" on the front
page of the original of the deposition transcript. The p o r t i o n o f t h e deposition
t r a n s c r i p t containing confidential information shall not be filed with the Court unless
it is filed as provided in Paragraph 5 of this Stipulated Protective Order.
Expert reports and/or summaries containing Confidential Information shall
be automatically deemed confidential if the information used to prepare the expert
reports and/or summaries included Confidential Materials and/or confidential
information. An expert report may avoid a Confidential designation if the expert report
avoids specifically referencing Confidential Material or information and/or replaces
Confidential Material or confidential information with non-confidential descriptions (i.e.,
Residential Project No. 1 or Client No. 2).
A third party may designate a document as “CONFIDENTIAL” pursuant to this
Order by stamping it with such notice prior to production or so identifying it on the
record during the deposition of that third party. Nothing in this section shall be
construed as an agreement by the receiving party that any designation of material as

“CONFIDENTIAL” is appropriate and nothing herein shall prevent a receiving party
from challenging any such designation.

3.

Prosecution and/or Defense of This Action. As used herein, the

phrase "prosecution and/or defense of this action" shall mean preparation for trial of
this action, including specifically, but not exclusively, pre-trial discovery pursuant to the
Federal Rules of Civil Procedure, trial of this action, any alternative dispute
resolution in this action, including but not limited to mediation, and preparation for,
participation in, and prosecution and defense of, any appeal, rehearing, review or
other judicial proceeding which relates to the subject matter of this action.

4.

Use of Confidential Material or confidential information: Unless and

until agreed by the undersigned parties, or ordered by the Court, all materials and
information appropriately designated to be "Confidential," and any summaries,
compilations or other work product which contains or reflects such confidential
materials, shall be kept and treated as confidential and shall be used only for
purposes of the prosecution and/or defense of this action. Confidential Materials
designated as "Confidential" shall not be disclosed to any person or entity other
than: (a) Counsel of record for the Parties in this action, including partners,
associates and employees of such counsel; (b) qualified persons recording
testimony involving documents or information described in paragraph 1.A. (i.e., court
reporters) and necessary stenographic or clerical assistants thereof; (c) to the extent
necessary for the prosecution and/or defense of this action, the named Parties
themselves, including any trustees, administrators, officers, directors, employees or
agents of the named Parties; (d) to the extent necessary for the prosecution and/or

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defense of this action, expert witnesses, consultants, potential witnesses and/or any
other person retained in connection with the prosecution and/or defense of this action;
(e) persons noticed for depositions or designated as trial witnesses, but only to the extent
reasonably necessary to prepare them to testify or when reasonably necessary during their
testimony; (f) any other person with the prior written consent of the party designating the
document or other material as “CONFIDENTIAL;” and (g) the Court.
Prior to receiving or being shown “CONFIDENTIAL” documents or material,
persons falling in the categories listed above in subparagraphs (d), (e) (except when
shown a “CONFIDENTIAL” document during a deposition or other testimony), and (f)
shall sign a copy of the Written Assurance attached as Exhibit A, agreeing to abide by
the terms of this order and to submit to the jurisdiction of this Court for enforcement of
the terms of this order. Any signed Written Assurance shall be produced to counsel of
record for the Parties.

5.

(a) In the event a receiving party wishes to use any "Confidential"

information or materials in any affidavits, briefs, memoranda of law, deposition
transcripts, or other papers filed with the Court in this lawsuit, the party submitting the
information to the court shall electronically file a motion to file restricted access
documents and file the documents as restricted access documents using the Court's
Case Management/Electronic Case Filing system (CM/ECF). The motion shall state
the restricted access documents filed contain "Confidential" information which is
subject to an agreed protective order between the Parties, and not to be placed on the
public docket except upon order of the Court.

(b)

Documents filed by counsel on CM/ECF as restricted access documents

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can be accessed and viewed by the attorneys of record and the court, but not by
the general public. Once the motion to file as restricted access documents is granted,
these documents will continue to be accessible for viewing by only the court and the
attorneys of record during the pendency of this case and after its conclusion.

(c)

This paragraph does not apply to exhibits offered at a hearing or trial.

Any Party shall be entitled to seek a protective order concerning "Confidential"
material to be introduced in such a proceeding as it deems reasonable and/or
necessary to protect disclosure of such information to the public. No later than
seven (7) days before the date of any hearing or trial, a receiving Party shall advise a
producing Party in writing of any "Confidential" material he or she intends to use in
such proceeding to afford the producing Party an opportunity to seek a protective
order.

6.

Promptly upon completion of this action, each Party shall e i t h e r

d e s t r o y o r return to the designating Party all documents designated by that
Party as "Confidential" and all copies thereof, except deposition transcripts or
documents filed with the Court. Each Party shall certify in writing that it has returned
or destroyed all documents designated as "Confidential" in accord with this paragraph.
Termination of the prosecution and/or defense of this action shall not, however, relieve
any person to whom Confidential Material and/or confidential information was
disclosed, including counsel for the Parties, from the obligation of maintaining the
confidentiality of all Confidential Material and/or confidential information received
pursuant to this Stipulated Confidentiality Agreement.

7.

Any Party may object to the designation by any other Party of any

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material as "Confidential" by notifying the Party that designated the material as
confidential in writing and stating the basis for its objection. The Parties shall, within
seven (7) days after service of the objection, meet and confer in an attempt to
resolve the dispute. If the designating Party refuses to meet within the required
seven (7) days, or if the Parties are unable, after meeting and conferring, to resolve
the matters, the dispute may be submitted to the Court for resolution. The Party
challenging the designation of materials as "Confidential" shall have the burden to
establish the impropriety of that designation. If the Court determines that a Party has
unreasonably or in bad faith designated documents or materials to be "Confidential"
which are neither confidential nor entitled to protection under FED. R. CIV. P. 26(c),
the Court may award the appropriate sanctions, as enumerated in FED. R. CIV. P.
37(a)(5).

8.

If a Party inadvertently discloses any document or thing containing

information that it deems confidential without designating it as "Confidential," the
disclosing Party shall promptly upon discovery of such inadvertent disclosure inform
the receiving Party in writing and the receiving Party shall thereafter treat the
information as "Confidential" under this Stipulated Confidentiality Agreement. To
the extent such information may have been disclosed to persons other than
authorized person described in this document, the receiving Party shall make
every reasonable effort to retrieve the information promptly from such person and
to avoid any further disclosure to non- authorized person.

9.

If a producing Party inadvertently discloses to a receiving Party

information that is privileged or otherwise immune from discovery, said producing Party

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shall promptly upon discovery of such disclosure so advise the receiving Party in
writing and request that the item or items of information be returned, and no Party to
this action shall thereafter assert that such disclosure waived any privilege or
immunity. It is further agreed that the receiving Party will return such inadvertently
produced item or items of information and all copies thereof within ten (10) days of the
earliest of (a) discovery by the receiving party of its inadvertent production, or (b)
receiving a written request for the return of such item or items of information. The
Party having returned such inadvertently produced item or items of information may
thereafter, without asserting waiver because of inadvertent production, seek
production of any such documents in accordance with the Federal Rules of Civil
Procedure and Local Rules.

10.

Notwithstanding any other provision of this Stipulated Protective Order,

any person indicated on the face of a "Confidential" document as having been its
originator, author, or a recipient thereof, may be shown the same. That person's
representative may also be shown the same.

11.

Nothing in this stipulation shall be deemed to preclude any Party

from seeking and obtaining, on an appropriate showing, additional protection with
respect to the confidentiality of documents or other discovery material, or relief from this
stipulation with respect to particular material designated hereunder.

12.

Each of the firms and Parties named herein, by executing a copy of

this Stipulated Protective Order, undertakes to abide by and be bound by its
provisions and to use due care to see that its provisions are known and adhered
to by those under its supervision or control.

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SO ORDERED this 14th day of February, 2017
BY THE COURT:

s/ Cheryl R. Zwart
United States Magistrate Judge

Submitted By:

s/Leigh Campbell Joyce
Allison D. Balus (#23270)
Leigh Campbell Joyce (MA#682637)
BAIRD HOLM, LLP
1700 Farnam Street, Suite 1500
Omaha, Nebraska 68102-2068
[phone]
[phone] (facsimile)
[e-mail]
[e-mail]

/s/Kathleen Neary
Kathleen Neary (NE #20212)
POWERS LAW
411 South 13th Street, Suite 300
Lincoln, NE 68508
402-474-8000
402-474-5006 (facsimile)
[e-mail]
Attorney for Plaintiff

Attorneys for Defendant

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EXHIBIT A
WRITTEN ASSURANCE
I, the undersigned, do hereby acknowledge that I have read the Stipulation for
Protective Order and the Protective Order entered by the Court in the action of Joseph
Kopecky v. Schwan's Home Services, Inc. and hereby covenant, warrant and agree: (1)
to abide in full by its terms regarding the confidentiality of the Confidential Material, as
that term is defined in the Stipulation for Protective Order, which I am being provided,
and that I will not disclose or cause to be disclosed such Confidential Material to any
person not permitted to receive or otherwise access such information under the
Stipulation for Protective Order, (2) that such Confidential Material should be used only
for purposes necessary for the litigation of the claims between and among the parties to
the action of Joseph Kopecky v. Schwan's Home Services, Inc. and not for any other
purpose, whether business or otherwise, and (3) that I will return all Confidential
Material that I receive upon my having served the purpose which caused me to receive
the Confidential Material in accordance with the provisions of the Stipulation for
Protective Order.
Dated this __ day of ______________ 20__.

By:

________________________________
[Signature]

________________________________
[Printed Name]

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