Preferred Popcorn, LLC v. Williams

Filing 20

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

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA

PREFERRED POPCORN, LLC, a Nebraska
limited liability company,

CASE NO. 4:16-cv-3194

Plaintiff,
v.

PROTECTIVE ORDER

CHRISTINE WILLIAMS,
Defendant.

1.

DEFINITIONS.

Limitations under this Protective Order on the use or

disclosure of documents, deposition testimony or other discovery designated as
"Confidential" shall apply to (a) all information, copies, extracts and complete or partial
summaries prepared or derived from such documents or testimony; (b) portions of
deposition transcripts, answers to interrogatories, responses to requests for admissions,
responses to requests for production, initial disclosures and exhibits thereto which directly
refer or directly relate to any such information, documents, copies, extracts or summaries;
and (c) portions of briefs, memoranda or any other writing filed with the Court and exhibits
thereto which directly relate to any such information, documents, copies, extracts or
summaries.
a.

"Confidential Material" or "Confidential Documents" shall mean all
documents, material, and information entitled to protection under Fed. R.
Civ. P. 26(c) and designated pursuant to paragraph 2 hereof, including, but
not limited to, interrogatory answers, documents produced during discovery
by any party in this action, whether produced voluntarily, in response to an
informal request, pursuant to Fed. R. Civ. P. 26(c) or in response to a formal
discovery request, or pursuant to the order of a court of competent
jurisdiction, deposition testimony and/or transcripts, and any portions of any
pleadings or other court papers that quote from or summarize any of the
foregoing.

b.

"Requesting Party" shall mean any party requesting documents or
information pursuant to Fed. R. Civ. P. 26(c), conducting a deposition
pursuant to Fed. R. Civ. P. 30 and 31, propounding interrogatories pursuant
to Fed. R. Civ. P. 33, requesting the production of documents pursuant to
Fed. R. Civ. P. 34 or pursuant to a subpoena duces tecum served upon any
person or entity in this proceeding, and/or otherwise seeking discovery
herein.

c.

"Producing Party" shall mean any person or entity on whom a discovery
request, in whatever form, has been propounded in this action.

2.

CONFIDENTIAL DOCUMENTS. Before produced documents are copied or

inspected, the producing party may stamp as "Confidential" any document or deposition
testimony it believes contains confidential or proprietary business information, information
concerning non-parties or subject to privacy rights, including without limitation, HIPAA
protected or medical information, and/or trade secrets in order to limit disclosure as set
forth in this Paragraph 2. Documents may also be designated as "Confidential" by written
notice to opposing counsel which identifies the documents so designated by Bates
number. The parties may further restrict such designations for proprietary/trade secret
information as "Confidential for Attorney Eyes Only" in which case only attorneys may
have copies of the documents and may not provide copies to any third party or their client
except upon order of the Court or written permission of the producing party. The attorney
may, however, review the documents marked "Confidential for Attorney Eyes Only" with
their client, in person so long as counsel is present with the party during any such review.
Documents designated "Confidential," deposition testimony so designated, and
information derived therefrom will be retained by counsel and will not be used for any
purpose other than this litigation and will not be disclosed except pursuant to court order
entered after notice, to anyone except:

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a.

Counsel who have signed this Order approving it as to form and content,
attorneys who are employed or are members of the law firms or counsel who
have signed this Order, in house counsel, law clerks, secretaries or
paralegals directly involved in the conduct of this litigation;

b.

Experts and consultants (or any employee of such outside expert or
consultant) retained, or sought to be retained by counsel by either of the
parties for purposes of assisting in the preparation or presentation of claims
or defenses. for purposes of consulting, and/or testifying in this Proceeding,
and to whom counsel in good faith has deemed disclosure of such
"Confidential" material is reasonably necessary in order to assist in the
preparation or the conduct of this Proceeding. This paragraph shall not
relieve, change or otherwise affect any obligations or limitations imposed on
any person by contract or law regarding disclosure or use of trade secrets or
other confidential or propriety information.

c.

Any deposition or trial witness, during the course of deposition or trial
testimony or preparation for a deposition or trial testimony, when necessary
to the testimony of such witness;

d.

Outside photocopying, data processing, graphical production services, or
any other third-party litigation support vendor employed by the parties or
their counsel to assist in this Proceeding.

e.

Any person who was involved in the preparation of the document;

f.

The Court, Court personnel, court reporters, jurors and similar personnel;

g.

The named parties to this case, excluding their agents and/or
representatives except those identified at Paragraph 2(a) above.

h.

Any other person with the prior written consent of the party producing the
document, pleading or deposition testimony.

Prior to receiving or being shown such documents or deposition testimony, persons
falling in the categories listed above in subparagraphs (b), (c), (d), (g) and (h) shall be
shown a copy of, and shall agree in writing, or on the record during trial or deposition, to
be bound by the terms of this Protective Order. During a deposition, any party asserting
confidentiality of any of its documents shall ask the deponent on the record to accept the
terms of this Order. If the deponent refuses to assent, disclosure of the documents during
deposition shall not constitute a waiver of confidentiality. Under such circumstances, the
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witness shall sign the original deposition transcript in the presence of the court reporter
and no copy of the transcript or exhibits shall be given to the deponent.
3.

DOCUMENTS ALREADY PRODUCED.

Any documents previously

produced with the designation "Confidential" or "Subject to Protective Order" automatically
shall be subject to this Order. For any documents previously produced that were not so
marked, within ten days of the entry of this Order, any party may inform the party to whom
documents have been produced that it considers certain documents already produced as
being subject to this Order as "Confidential."
4.

THIRD PARTY WITNESSES.

A copy of this Protective Order shall be

served with a subpoena or Notice of Deposition on each third party deponent. A third
party witness 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. Either party may also designate documents produced by a
third party as being "Confidential" pursuant to the terms of this Order within ten (10) days
of being made aware of the content of such documents. Any document produced by a
third party shall be treated as "Confidential" pursuant to the terms of this Order for such ten
(10) day period and thereafter if designated as "Confidential" by either party or by the third
party which produces it. The "Confidential" restrictions of this Order shall no longer apply
to any document produced by a third party which has not been designated as
"Confidential" by the third party or by a party within such ten (10) day period.
5.

CHALLENGE TO DESIGNATION.

Any party may challenge the

"Confidential" designation of any document, by notifying all interested parties and
providing the producing party thirty (30) days in which to move the Court for an Order
preventing or limiting disclosure.

The burden of establishing that the document or
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information is Confidential under the protective order is on the producing party.

The

parties shall in good faith attempt to resolve such disagreement before submitting it to the
Court. If the producing party files such a motion within such time, the documents shall
continue to be treated as "Confidential" pursuant to the terms of this Order until such time
as the Court has made a ruling with respect to the motion. If no motion is filed within that
time (or such other time frame as the parties may agree) the "Confidential" restriction of
this Order shall no longer apply to such document.
6.

RETURN OF DOCUMENTS. Within sixty (60) business days after the final

resolution of this litigation, including all appeals, all Confidential Information shall be
returned to counsel for the party or non-party that produced it, or shall be destroyed. As to
those materials that contain or reflect Confidential Information, but that constitute or reflect
counsel's work product, counsel of record for the parties, or non-parties, shall be entitled to
retain such work product in their files in accordance with the provisions of this Order, so
long as they are clearly marked to reflect that they contain information subject to this Order
and may not be used in connection with any other proceeding or action.
7.

USE OF DOCUMENTS. Documents produced by any party, including, but

not limited to, "Confidential" documents and information from any documents acquired in
discovery in this litigation shall not be used for any purpose except in connection with this
litigation pending in the United States District Court for the District of Nebraska, Case No.
4:16-cv-3194, titled Preferred Popcorn, LLC v. Christine Williams and shall not be used
for any business, competitive, personal, private, public or other purpose. Nothing in this
Order shall limit any party or person in its use of its own documents or from disclosing its
own documents and information. This Order or production of any documents shall not
affect the admissibility of any such document or be deemed a waiver of any objection to
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the admissibility of such documents. Nothing contained in this Order shall affect the right, if
any, of any party or witness to make any other type of objection, claim, or other response
to discovery requests, including, without limitation, interrogatories, requests for admission,
requests for production of documents or questions at a deposition. Nor shall this Order be
construed as a waiver by any party of any legally cognizable privileges to withhold any
Confidential Information other than on a basis that it has been designated Confidential, or
of any right which any party may have to assert such privilege at any stage of this
litigation.
8.

EXCEPTIONS. The restrictions embodied in this Order shall be binding on

the party to whom "Confidential" information is disclosed unless and until there is a
showing that:
(1)

Such information was or has become public knowledge absent a breach of
this Protective Order; or

(2)

The party to whom such disclosure was made had already learned such
information from a third party who himself has not breached any confidential
relationship which may have existed or exists between such third party and
the party making the disclosure.

9.

PROTECTED HEALTH INFORMATION

The parties acknowledge that some of the information produced in this case may
include protected health information within the meaning of HIPAA. Consistent with 45
C.F.R. § 164.512(e)(1)(iv)(v):
a.

Counsel and the party seeking protected health information shall not use
or disclose the protected health information for any purpose other than the
litigation or proceeding for which such information has been requested.

b.

Counsel and the party requesting the protected health information shall
return or destroy the protected health information (including all copies
made) at the end of the litigation or proceeding.

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c.

Counsel and the party requesting protected health information shall
request, use and disclose only the minimum necessary protected health
information to conduct the litigation or proceeding.

d.

Any information or documentation that falls within the meaning and
protection of HIPAA need not be designated or stamped as "Confidential."
Rather, the parties agree that any such information or documentation will
automatically be treated as Confidential.

10.

FILING UNDER SEAL WITH THE COURT. The parties shall follow Local

Rule 7.5 with respect to filing items subject to protective order under seal.
11.

DEPOSITION TESTIMONY. Information disclosed at depositions taken in

the Action may be designated as Confidential Material by the party disclosing such
information by indicating on the record at the deposition that the testimony contains
Confidential Material or by providing written notice to opposing counsel of the intent to
designate such information as confidential within fourteen (14) days of receiving the
transcript of the deposition. The designated testimony shall be marked as confidential
and sealed by the court reporter and treated as Confidential Material under the terms of
this Order. Furthermore, during the fourteen (14) day period after receiving the
transcript, all parties shall treat the depositions as confidential before any such
designation.
12.

NON-EXCLUSIVITY. This Order does not affect the right of a party to seek

to compel disclosure or production of a document or to seek an order modifying or limiting
this Order in any aspect.
exclusive.

The obligations and prohibitions under this Order are not

All other ethical, legal and equitable obligations are unaffected by this

agreement.

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13.

NO ADMISSION. A party's compliance with the terms of this Order shall not

operate as an admission that any particular Document is not (1) confidential, (2) privileged,
or (3) admissible in evidence at trial.
14.

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

deposition or in Court, on the record.
15.

ENFORCEMENT.

Any party or person subject to the obligations and

prohibitions of this Order who is determined by the Court to have violated its terms is
subject to sanctions imposed by the Court pursuant to the Federal Rules of Civil
Procedure.
16.

USE AT TRIAL. The use, rules, and procedures governing the use of

Confidential Information at trial shall be determined by the Court at the final pretrial
conference.
17.

APPLICATION TO OTHER COURT. If another Court or an administrative

agency subpoenas or orders production of stamped "Confidential" documents which a
party has obtained under the terms of this Order, such party shall promptly notify the
designating party of the pending of such subpoena or order. The subpoenaed party,
absent other controlling law, will not make such documents or information available until
at least fourteen (14) calendar days after the producing party has been notified of the
request, subpoena or order. However, this provision in no way imposes any obligation
on the subpoenaed party to file anything to protect disclosure of the documents.
18.

INADVERTENT DESIGNATION.

A Producing Party that inadvertently

fails to designate discovery material as "Confidential" or mis-designates discovery
material as "Confidential" pursuant to this Order at the time of its production shall be
entitled to make a correction to its designation within a reasonable time of the discovery
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of the non- or mis-designation. Such correction and notice thereof shall be made in
writing accompanied by substitute copies of each item of discovery material,
appropriately designated. Those individuals who received the discovery material prior
to notice of non- or mis-designation by the Producing Party shall within five (5) days of
receipt of substitute copies, take reasonable steps to destroy or return to the law firm
representing Producing Party all copies of such mis-designated documents.

The

obligation to treat such material pursuant to the corrected designation shall be
prospective only, and those individuals who reviewed the mis-designated discovery
material prior to notice of the mis-designation by the Producing Party shall abide by the
provisions of this Order with respect to all future use and disclosure of any information
contained in the mis-designated materials.
19.

INADVERTENT DISCLOSURE OF PRIVILEGED INFORMATION.

The

parties agree to and the Court orders protection of privileged and otherwise protected
Documents against claims of waiver (including as against third parties and in other
federal and state proceedings) as follows:
a.

The disclosure or production of Documents by a Producing Party subject
to a legally recognized claim of privilege, including without limitation the
attorney-client privilege and the work-product doctrine, to a Receiving
Party, shall in no way constitute the voluntary disclosure of such
Document.

b.

The inadvertent disclosure or production of any Document in this action
shall not result in the waiver of any privilege, evidentiary protection or
other protection associated with such Document as to the Receiving Party
or any third parties, and shall not result in any waiver, including subject
matter waiver, of any kind.

c.

If, during the course of this litigation, a party determines that any
Document produced by another party is or may reasonably be subject to a
legally recognizable privilege or evidentiary protection ("Protected
Document"):
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(i)

(ii)

d.

the Receiving Party shall: (A) refrain from reading the
Protected Document any more closely than is necessary to
ascertain that it is privileged or otherwise protected from
disclosure; (B) immediately notify the Producing Party in
writing that it has discovered Documents believed to be
privileged or protected; (C) specifically identify the Protected
Documents by Bates number range or hash value, and, (D)
within ten (10) days of discovery by the Receiving Party,
return, sequester, or destroy all copies of such Protected
Documents, along with any notes, abstracts or compilations
of the content thereof. To the extent that a Protected
Document has been loaded into a litigation review database
under the control of the Receiving Party, the Receiving Party
shall have all electronic copies of the Protected Document
extracted from the database.
Where such Protected
Documents cannot be destroyed or separated, they shall not
be reviewed, disclosed, or otherwise used by the Receiving
Party. Notwithstanding, the Receiving Party is under no
obligation to search or review the Producing Party’s
Documents to identify potentially privileged or work product
Protected Documents.
If the Producing Party intends to assert a claim of privilege or
other protection over Documents identified by the Receiving
Party as Protected Documents, the Producing Party will,
within ten (10) days of receiving the Receiving Party’s written
notification described above, inform the Receiving Party of
such intention in writing and shall provide the Receiving
Party with a log for such Protected Documents that is
consistent with the requirements of the Federal Rules of Civil
Procedure, setting forth the basis for the claim of privilege or
other protection. In the event that any portion of a Protected
Document does not contain privileged or protected
information, the Producing Party shall also provide to the
Receiving Party a redacted copy of the document that omits
the information that the Producing Party believes is subject
to a claim of privilege or other protection.

If, during the course of this litigation, a party determines it has produced a
Protected Document:
(i)

the Producing Party may notify the Receiving Party of such
inadvertent production in writing, and demand the return of
such documents. Such notice shall be in writing; however, it
may be delivered orally on the record at a deposition,
promptly followed up in writing. The Producing Party’s
written notice will identify the Protected Document
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inadvertently produced by bates number range or hash
value, the privilege or protection claimed, and the basis for
the assertion of the privilege and shall provide the Receiving
Party with a log for such Protected Documents that is
consistent with the requirements of the Federal Rules of Civil
Procedure, setting forth the basis for the claim of privilege or
other protection. In the event that any portion of the
Protected Document does not contain privileged or protected
information, the Producing Party shall also provide to the
Receiving Party a redacted copy of the Document that omits
the information that the Producing Party believes is subject
to a claim of privilege or other protection.
(ii)

The Receiving Party must, within ten (10) days of receiving
the Producing Party’s written notification described above,
return, sequester, or destroy the Protected Document and
any copies, along with any notes, abstracts or compilations
of the content thereof. To the extent that a Protected
Document has been loaded into a litigation review database
under the control of the Receiving Party, the Receiving Party
shall have all electronic copies of the Protected Document
extracted from the database.

e.

To the extent that the information contained in a Protected Document has
already been used in or described in other documents generated or
maintained by the Receiving Party prior to the date of receipt of written
notice by the Producing Party as set forth in paragraphs (c)(ii) and d(i),
then the Receiving Party shall sequester such documents until the claim
has been resolved. If the Receiving Party disclosed the Protected
Document before being notified of its inadvertent production, it must take
reasonable steps to retrieve it.

f.

The Receiving Party’s return, sequestering or destruction of Protected
Documents as provided herein will not act as a waiver of the Requesting
Party’s right to move for the production of the returned, sequestered or
destroyed documents on the grounds that the documents are not, in fact,
subject to a viable claim of privilege or protection. However, the Receiving
Party is prohibited and estopped from arguing that:
(i)

the disclosure or production of the Protected Documents
acts as a waiver of an applicable privilege or evidentiary
protection;

(ii)

the disclosure of the Protected Documents was not
inadvertent;

(iii)

the Producing Party did not take reasonable steps to prevent
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the disclosure of the Protected Documents; or
(iv)

the Producing Party failed to take reasonable or timely steps
to rectify the error pursuant to Federal Rule of Civil
Procedure 26(b)(5)(B), or otherwise.

g.

Either party may submit Protected Documents to the Court under seal for
a determination of the claim of privilege or other protection. The
Producing Party shall preserve the Protected Documents until such claim
is resolved. The Receiving Party may not use the Protected Documents
for any purpose absent this Court’s Order.

h.

Upon a determination by the Court that the Protected Documents are
protected by the applicable privilege or evidentiary protection, and if the
Protected Documents have been sequestered rather than returned or
destroyed by the Receiving Party, the Protected Documents shall be
returned or destroyed within 10 (ten) days of the Court’s order. The Court
may also order the identification by the Receiving Party of Protected
Documents by search terms or other means.
(i)

Nothing contained herein is intended to, or shall serve to limit a
party’s right to conduct a review of documents, data (including
electronically stored information) and other information, including
without limitation, metadata, for relevance, responsiveness and/or
the segregation of privileged and/or protected information before
such information is produced to another party.

i.

To any extent duplicate copies of Confidential Documents or Confidential
Material are produced that include inconsistent designations of
confidentiality, the parties agree that the most stringent confidentiality
designation in any copy thereof shall be applied to all copies thereof.

20.

TIMING AND DURATION OF ORDER. Once executed by all parties, the

Stipulation shall be by treated by the Parties as an Order of Court until it is formally
approved by the Court. Upon final resolution of this litigation (including conclusion of
any appeal), this Order shall remain in effect and continue to be binding, unless
expressly modified, superseded, or terminated by consent of all parties or by Order of
the Court. This Court expressly retains jurisdiction over this action for enforcement of
the provision of this Order following the final resolution of this litigation.

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SO ORDERED this 12th day of January, 2017.

s/ Cheryl R. Zwart
United States Magistrate Judge

Prepared and submitted by:
PREFERRED POPCORN, LLC, Plaintiff,
By: /s/ Christopher R. Hedican
Christopher R. Hedican
of
BAIRD HOLM LLP
1700 Farnam St. Ste. 1500
Omaha, NE 68102-2068
Phone: [phone]
Fax: [phone]
[e-mail]

DOCS/1795586.1

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