TCW Construction, Inc. v. Western Engineering Company, Inc.

Filing 25

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

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
TCW CONSTRUCTION, INC., a
Nebraska corporation,
Plaintiff,
v.
WESTERN ENGINEERING COMPANY,
INC., an Iowa corporation,
Defendant.

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Civil Action No. 4:16-cv-3126

PROTECTIVE ORDER

To protect the confidentiality of confidential information sought to be discovered in
this action, Plaintiff TCW Construction, Inc. (“Plaintiff”) and Defendant Western
Engineering Company, Inc. (“Defendant”) (collectively the "Parties" or individually a
"Party"), through their undersigned counsel, jointly request that the Court enter this
Protective Order.

Upon Stipulation of the Parties (Filing No. 24), and the Court's

acceptance of the same, IT IS ORDERED that the Protective Order is granted and entered
as follows:
1.

The terms and conditions of this Protective Order shall govern the production

and handling of documents and things (including Electronically Stored Information),
answers to interrogatories, depositions, exhibits, pleadings and other information
exchanged by the Parties, in this action. This Protective Order is made without prejudice
to the Parties' rights to stipulate to other terms of confidentiality regarding Confidential
Information as defined herein.
2.

The Parties anticipate that they will seek information that may be

designated as containing confidential, proprietary, business, commercial, technical,
scientific, financial, personnel, and/or trade secrets information that is not generally known
and that the designating party would not normally reveal to third parties or would cause
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third parties to maintain in confidence, or information, the present disclosure of which
would, in the good faith judgment of the designating party, be detrimental to the
designating party in the conduct of its business (hereinafter "Confidential Information").
3.

When used in this Protective Order, the word "documents" means all written,

recorded, graphic, or Electronically Stored Information whatsoever including, but not
limited to, documents produced by a producing Party to this action whether pursuant to
Federal Rules of Civil Procedure 34, a subpoena, or by agreement.
4.

For purposes of this Protective Order, the term “Party” includes a Party’s

agents, attorneys, directors, employees, members, officers and partners.
5.

The protections afforded by this Protective Order shall in no way affect a

Party’s right to withhold Confidential Information as privileged under the Attorney-Client
Privilege, any other applicable privilege, the Attorney Work-Product Doctrine, or as otherwise
exempted from discovery pursuant to the laws of the United States or the State of Nebraska.
6.

A Party may designate Confidential Information as “CONFIDENTIAL” under

this Protective Order if the designating party reasonably believes that such materials and
information contain non-public, confidential, technical, proprietary, financial, secret or other
commercially sensitive or otherwise private information.
7.

Any documents produced or Confidential Information provided by a Party,

pursuant to or in response to any discovery request or by agreement, may be designated by
the responding party as Confidential Information in the following manner:
a)

By imprinting the word "CONFIDENTIAL" on the first page or cover
of any document produced;

b)

By imprinting the word "CONFIDENTIAL" next to or above any
answer to any interrogatory or any other discovery request;

c)

With respect to portions of a deposition transcript, by making
arrangements with the attending court reporter to bind the
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confidential portion(s) of such transcripts separately and labeling
them as "CONFIDENTIAL", and
d)

8.

With respect to electronic information, by describing the information
to the fullest extent possible and noting, in writing, that the described
information is confidential. If such information is reproduced in paper
form, such paper document may also be designated as
"CONFIDENTIAL."

All documents and information provided by a Party in response to a discovery

request, or deposition testimony designated as "CONFIDENTIAL" shall be subject to the
following restrictions:
a)

They shall be used only for the purpose of this litigation and not for
any business or other purposes whatsoever;

b)

That all information designated as "CONFIDENTIAL" in whatever
format shall be furnished only under the terms of this Protective
Order and shall be treated by all persons accorded access pursuant to
this Protective Order as constituting Confidential Information and
shall neither be used nor disclosed except for the purpose of this
litigation, and solely in accordance with this Protective Order or
subsequent order of the Court upon motion.

c)

Confidential Information shall not be disclosed to anyone except those
categories of persons provided herein under the terms of this
Protective Order and to whom disclosure is necessary for the purposes
associated with this lawsuit. Counsel of record, experts, consultants,
and other persons or entities retained to assist a party in this lawsuit
who have signed a Nondisclosure Agreement shall appropriately
notify such persons that the disclosure is made in confidence and must
be kept in confidence in accordance with this Protective Order.

d)

Individuals authorized to review Confidential Information pursuant to
this Protective Order shall hold such information in the strictest
confidence and shall not divulge the information, either verbally or in
writing, to any other person, entity or government agency unless
authorized by the Party designating such information as
"CONFIDENTIAL" or order of the Court.

e)

No access to Confidential Information shall be provided to any
individual required to sign a Nondisclosure Agreement until the
individual to be accorded access has signed a Nondisclosure
Agreement in the form attached as Exhibit "A", certifying that they
have read this Protective Order and agree to be bound by its terms
and such executed Nondisclosure Agreement has been provided to
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counsel for the disclosing party. Counsel for each disclosing Party
shall maintain a file of such written agreements until this action is
completed.
f)

g)

All documents, information identified as "CONFIDENTIAL” or
including all copies, excerpts and summaries, must be retained in the
custody of counsel or other persons authorized by this Protective
Order during the pendency of this litigation.

h)

9.

Before trial, counsel for the parties shall agree to the appropriate
means to protect the confidentiality of the information that counsel
desire to present at trial. If counsel cannot reach an agreement, they
shall apply to the Court for resolution of the issue.

If information or documents designated as "CONFIDENTIAL" are
included in any pleading or other document to be filed with the Court,
they shall be labeled “CONFIDENTIAL” and filed under seal or
otherwise submitted in accordance with the Court’s rules. Any party
claiming confidentiality with respect to the information or documents
may file a motion to seal the records.

Confidential Information designated as “CONFIDENTIAL” shall not be

communicated or disclosed in any manner, either directly or indirectly, to anyone other
than:
a)

The attorneys of record in this lawsuit, in-house counsel and persons
employed by attorneys of record and in-house counsel's law
department;

b)

The Parties and their designated and identified employees, directors
or officers of the parties, and their insurers;

c)

Outside experts and consultants who have, prior to disclosure, agreed
in writing to be bound by the terms of this Protective Order as
provided in sub-paragraph c. of Paragraph 8;

d)

This Court, Court personnel, and stenographic reporters engaging in
proceedings necessarily incident to the preparation for trial (e.g.,
depositions) and/or trial of this action;

e)

Any arbitrator, mediator, or other alternative dispute resolution
facilitator in front of whom the Parties agree to appear or are ordered
to appear;

f)

Persons actually deposed or called to testify at any hearing or trial
who have, prior to disclosure, agreed in writing to be bound by the
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terms of this Protective Order as provided in sub-paragraph c of
Paragraph 8;
g)

h)

10.

Third-party vendors retained by the Parties or their counsel who are
involved in one or more aspects of copying, reproducing, coding, or
storing discovery materials who have, prior to disclosure, agreed in
writing to be bound by the terms of this Protective Order as provided
in sub-paragraph c of Paragraph 8; and
Such other persons as the Court may specifically approve after notice
and hearing who have, prior to disclosure, agreed in writing to be
bound by the terms of this Protective Order as provided in subparagraph c. of Paragraph 8.

Acceptance by a Party of any information, document or thing identified as

"CONFIDENTIAL" hereunder shall not constitute a concession that the information,
document or thing is confidential.

If, subsequent to the acceptance of information or

documents identified as "CONFIDENTIAL", a Party wishes this Court to rule upon the
other Party's claim of confidentiality, that Party may move this Court for such
determination.

In the resolution of such motion, the burden of establishing the

confidentiality of the information or document shall be on the Party who made the claim of
confidentiality. However, materials designated as "CONFIDENTIAL" shall be treated as
such pending resolution of the motion by the Court. It is, however, acknowledged by the
Parties that, without limitation, the following information may be claimed as being
"CONFIDENTIAL":
a)

Information that is not normally available to the Parties without
restriction;

b)

Information that is not a part of the public domain; and

c)

Information of a third party that is deemed confidential by the third
party and which was made available to the disclosing Party pursuant
to the terms of a confidential/restricted information agreement.

Provided that nothing herein shall preclude either Party from challenging in court the
confidential status of any document.
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11.

Transcripts of the depositions covered by this Protective Order shall be filed

under seal in the manner described above.
12.

Inadvertent failure to designate materials as “CONFIDENTIAL” at the time of

production may be remedied by supplemental written notice given by the producing Party.
Upon receipt of such notification, all Confidential Information so designated or re-designated
shall be fully subject to this Protective Order as if it had been initially so designated; provided,
however, that the receiving Party shall incur no liability for any prior treatment of such
information in conformance with its original designation. The Party receiving such notice
shall make a reasonable good faith effort to insure that any analyses, memoranda, or notes
which were internally generated based upon such information shall immediately be treated in
conformance with any such designation or re-designation.
13.

The failure to designate information as Confidential Information in

accordance with this Protective Order or the failure to object to a designation at or within a
given time shall not preclude the filing of a motion at a later date seeking to impose such
designation or challenge the propriety thereof.
14.

In the event that a Party shall desire to provide access to information or

documents identified as "CONFIDENTIAL" hereunder to any person or category of persons
not identified above, if the Parties cannot mutually agree to such disclosure, it shall move
this Court for an order that such a person or category of persons may be given access to the
information. In the event that the motion is granted, such person or category of persons
may have access to the information, provided that such person or persons have agreed in
writing before such access is given to be bound by the terms of this Protective Order, or
other conditions as the Court may order.
15.

This Protective Order shall in no way affect or impair the right of any Party

or person to raise or assert any defense or objection, including but not limited to defenses or
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objections to the discovery or production of documents or information, and to the use or
admissibility at any hearing of any evidence, whether or not comprised of documents or
information governed by this Protective Order.
16.

If a non-party is called upon, by subpoena or otherwise, to provide or produce

non-public documents, information, or things that the non-party reasonably and in good
faith believes contains Confidential Information, the non-party may designate such
documents, information, or things as “CONFIDENTIAL” in the manner set forth in this
Protective Order. Additionally, the same procedures outlined in this Protective Order shall
apply to documents, information, or things designated as “CONFIDENTIAL” by any
producing non-party. The producing non-party shall have the same rights and obligations
as a Party with regard to such documents, information, or things. In addition, the Parties
may designate documents produced by non-parties as "CONFIDENTIAL" within ten (10)
days of being notified by the production.
17.

Any waiver under this Protective Order must be made in writing or, if at a

deposition or in Court, on the record.
18.

No inadvertent disclosure of any documents or information by either Party

shall constitute a waiver of any privilege including the Attorney-Client Privilege or the
protections of the Attorney Work-Product Doctrine. Parties reserve the right to challenge
the assertion of the privilege on grounds other than disclosure during production. For all
materials and documents, including but not limited to Electronically Stored Information,
the Parties agree that: (i) upon notification or discovery of an inadvertently produced
document, the opposing Party should be notified; (ii) all copies of the inadvertently
produced document should be returned to the producing Party; (iii) any copies of the
inadvertently produced privileged document provided to third parties, contained in the
discovery record, or filed with the Court should be returned to the producing Party or
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destroyed; and (iv) to the extent the receiving Party is challenging the assertion of privilege,
the opposing party shall return the inadvertently produced record until the issue of
privilege can be timely addressed by the Court.
19.

This Protective 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 any other grounds provided by applicable law.
Dated this 13th day of February, 2017.
BY THE COURT:

s/ Cheryl R. Zwart
United States Magistrate Judge
Stipulated as to form and substance:
TCW CONSTRUCTION, INC., Plaintiff
By:

REMBOLT LUDTKE LLP
1128 Lincoln Mall, Suite 300
Lincoln, NE 68508
[phone]

By:

/s/ Timothy R. Engler
Timothy R. Engler (#15940)
Robert L. Nefsky (#15449)

and
By:

and

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/s/ Thomas A. Grennan
Thomas A. Grennan (#15675)
GROSS & WELCH, P.C., L.L.O.
1500 Omaha Tower
2120 South 72nd Street
Omaha, NE 68124
402-392-1500

WESTERN ENGINEERING COMPANY,
Defendant
By:

Cassem, Tierney, Adams,
Gotch & Douglas
9290 West Dodge Road, Suite 302
Omaha, Nebraska 68114-3320

By:

/s/ Ronald F. Krause
Ronald F. Krause – 15980
Michael K. Huffer – 18087

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EXHIBIT “A”
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
TCW CONSTRUCTION, INC., a
Nebraska corporation,
Plaintiff,
v.
WESTERN ENGINEERING COMPANY,
INC., an Iowa corporation,
Defendant.

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Civil Action No. 4:16-cv-03126

AGREEMENT—
PROTECTIVE ORDER

I, ____________________________, do hereby acknowledge that I have received and
read the Protective Order entered in the above entitled case. I understand the terms of
that Protective Order, and I agree to be bound by its terms and to be subject to the
jurisdiction of this Court for enforcement of all terms of the Protective Order and for
judicial action for any violation of the Protective Order.
DATED this ____ day of ____________, 2017.
__________________________
STATE OF _________________ )
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COUNTY OF________________)
Subscribed and sworn to before me this ___ day of _________, 2017.
____________________________________
Notary Public