Behrends v. BNSF Railway Company

Filing 47

PROTECTIVE ORDER - This matter is before the Court on the parties' Joint Stipulation for Protective Order. (Filing No. 46 .) The Stipulation is adopted and approved. Ordered by Magistrate Judge Susan M. Bazis. (KLF)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
MELISSA L. BEHRENDS,
Plaintiff,
v.
BNSF RAILWAY COMPANY,
Defendant.

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4:17-CV-3008

PROTECTIVE ORDER

This matter is before the Court on the parties’ Joint Stipulation for Protective
Order.

(Filing No. 46.)

The Stipulation is adopted and approved.

Accordingly, a

Protective Order is entered as follows:
1.

In connection with any and all discovery in this action, any party may

designate any document or other information produced (collectively referred to herein
as “Material”) to be “Confidential Information” under the terms of this Protective Order.
2.

A party may designate Material as Confidential Information if that party in

good faith believes that such Material constitutes confidential medical, employment or
personal information of Plaintiff or of employees of Defendant; financial information;
proprietary information; trade secrets; internal audit practices and procedures and/or
confidential business or project-related information.
3.

Designation of Material may be made by stamping or otherwise marking

the Material prior to filing or production as follows: “CONFIDENTIAL”. Such marking
shall occur on every page of the Material that is designated as Confidential Information.
4.

Testimony given at deposition, conference, hearing, or other informal

proceeding may be designated as Confidential Information by making a statement to
that effect on the record at such proceeding. Arrangements shall be made with the court

reporter, if any, transcribing such testimony to bind separately any portions of the
transcript containing Confidential Information, including Confidential Information
introduced as exhibits at the proceeding, and to label such portions “CONFIDENTIAL”.
A party may designate testimony and/or exhibits to a deposition as Confidential
Information by notifying the other party of such designation within twenty (20) days of
the party’s receipt of the deposition transcription. Such information is not protected by
this Protective Order until it has been designated as Confidential Information.
5.

Material disclosed in response to written discovery may be designated as

Confidential Information by indicating the same in bold and capitalized letters in the
response.
6.

Confidential Information may be disclosed or made available only to the

following individuals and to the extent reasonably necessary for the purpose of assisting
in the prosecution or defense of this litigation:
a. The Court, including its staff, under seal;
b. Counsel to the parties in this litigation, including partners and associate
attorneys, paralegals, clerical and other support staff who are employed
by such counsel and are assisting counsel in this litigation;
c. Parties, in this litigation;
d. Court reporters who record deposition or other testimony in this litigation;
e. Expert witnesses and/or consultants retained by parties or their counsel
for this litigation;
f. Third party witnesses at any deposition or other proceeding in this action
including in preparation for those events;

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g. Any mediator and/or arbitrator engaged to assist in the resolution of this
litigation; and
h. Any other person as to whom the parties agree in writing.
Any person identified in Paragraphs 6(c), 6(e), 6(f), 6(g), and 6(h) shall retain
Confidential Information only as reasonably necessary for the purposes of their role in
this litigation and shall return any Confidential Information to counsel who provided the
Confidential Information to them after such purposes have been achieved.
7.

Prior to receiving any Confidential Information, any person identified in

Paragraph 6(e) through 6(h) shall be provided with a copy of this Protective Order and
agree to be bound by its terms, and shall certify such agreement by signing a document
of the form set forth as Exhibit “A” to this Protective Order. Counsel making disclosure
to any person described herein shall retain the original executed copy of the certificate
until final resolution of this litigation.
8.

Confidential Information shall be used or disclosed solely in connection

with, and only as necessary to, this litigation and the preparation and trial of this case,
or any related appellate proceedings, and not for any other reasons, including any
business competitive purposes, governmental purposes, or personal purposes. The
non-producing party must use or disclose Confidential Information only in accordance
with the provisions of this Protective Order.
9.

If Confidential Information is included in any Material to be filed with the

Court, such Material shall be labeled “CONFIDENTIAL” and filed or otherwise submitted
in accordance with the Court’s rules for such Material including a request that the
materials be filed under seal and/or restricted access pursuant to this Protective Order.

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10.

A party receiving from another party Material that has been designated as

Confidential Information pursuant to this Protective Order may object in writing to the
designation and must state the reasons for such objection with respect to each item.
The parties shall then meet and confer in good faith regarding the designation. If the
parties are unable to come to an agreement regarding the designation, the party
challenging the designation shall be obligated to file a motion with the Court challenging
such designation. The burden of establishing that material is Confidential Information is
on the party asserting confidentiality.
11.

In the event that any Confidential Information is used in any court,

arbitration, mediation, deposition, or other proceeding in this action, such use shall not
affect its confidential status.
12.

This Protective Order shall be without prejudice to the right of any party to:

(a) bring before the Court at any time the question of whether any particular Material is
confidential; (b) present an application or motion to the Court for a protective order as to
any particular Material, including one requesting restrictions different from those
specified herein; (c) object to the production of any Material it reasonably considers not
subject to discovery; and/or (d) apply to or move the Court for an order compelling
production of Material or modifying this Protective Order or any order otherwise
permitting disclosure of Confidential Information beyond the terms of this Protective
Order.
13.

If a party, through inadvertence, produces any Confidential Information or

documents without labeling or marking or otherwise designating it as such in
accordance with the provisions of this Protective Order, the producing party may give

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written notice to the receiving party that the document or thing produced is deemed
confidential and should be treated as such in accordance with the provisions of this
Order. The receiving party must treat such documents and things as confidential from
the date such notice is received. Disclosure, prior to the receipt of such notice, of such
Confidential Information to persons not authorized to receive Confidential Information
shall not be deemed to be a violation of this Order.
14.

If a party, through inadvertence, produces any document or information

that it believes is immune from discovery pursuant to an attorney/client privilege or the
work product privilege, such production shall not be deemed a waiver of any privilege,
and the producing party may give written notice to the receiving party that the document
or information produced is deemed privileged and that return of the document or
information is requested. Upon receipt of such written notice, the receiving party shall
immediately gather the original and all copies of the document or information of which
the receiving party is aware and shall immediately return the original and all such copies
to the producing party. The return of the document(s) and/or information to the
producing party shall not preclude the receiving party from later moving to the Court to
compel production of the returned documents and/or information.
15.

Nothing in this Order shall be deemed a waiver of any party’s right to

object to production of any documents or other tangible things or answers to
interrogatories for lack of timeliness, relevance or materiality, or as a privileged
communication, or as trial preparation materials, or as not reasonably calculated to lead
to the discovery of admissible evidence.

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16.

Within two years of the conclusion of the trial and of any appeals, or upon

other resolution of this litigation, all Material designated as Confidential Information
received under the provision of this Protective Order and all copies of the Material shall
be tendered back to the producing party, person, or entity, or be destroyed.
17.

This Protective Order is entered solely for the purpose of facilitating the

exchange of Material between the parties without unnecessarily involving the Court. No
party admits anything or waives any otherwise unaffected right by entering into the
Stipulation for Protective Order or performing under this Protective Order. No party shall
argue, question, or imply in any way before a jury or other trier of fact that the
designation of any Material as Confidential Information is improper or suspect, or that
any adverse inferences may be drawn from the designation. (The parties acknowledge
that this provision does not prevent any party from challenging the confidentiality of any
Material as provided in Paragraph 13 before the Court by pre-trial motion or other
proceeding outside the presence of a jury despite the fact that the Court may serve as a
trier of fact).
18.

Nothing in this Protective Order shall impose any restriction on the use or

disclosure by a party of Material that it obtains independent of discovery and other
proceedings in this action, without regard to whether such Material is also produced
through discovery or other proceedings in this Action. This Protective Order also does
not impose any restriction on any party regarding disclosure of its own Confidential
Information if it so wishes.
19.

The Court may enter such other and further relief as it deems appropriate

and this Order is without prejudice to the right of any party to apply for such relief.

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20.

If another court, administrative agency, tribunal, person, or entity

subpoenas or orders production of Confidential Information that a party has obtained
pursuant to this Protective Order, that party shall promptly notify the producing party of
the subpoena or production order. Such notice must be provided in sufficient time to
give the producing party, if possible, the opportunity to participate in quashing,
modifying, or otherwise responding to any compulsory process in an appropriate and
timely manner. Upon the filing by the producing party of a motion to quash or for
protective order, the subpoenaed party shall withhold production of documents during
the pendency of the motion, unless required by law (or court order) not to withhold
production.
21.

The provisions of this Protective Order shall survive the termination of this

action and continue in full force and effect until further order of this Court.
22.

This Court shall retain jurisdiction over this Protective Order and the

parties, their counsel, and those persons to whom the Confidential Information was
disclosed for the purposes of enforcing the terms of this Protective Order.
IT IS SO ORDERED.
Dated February 8, 2018.
BY THE COURT:
S/ Susan M. Bazis
United States Magistrate Judge

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EXHIBIT A
AGREEMENT TO ABIDE BY TERMS OF PROTECTIVE ORDER
1. I have read the Protective Order entered on ______________________, 2018,
in Case No. 4:17CV3008, currently pending in, or on appeal from, the United States
District Court for the District of Nebraska, and a copy of it has been provided to me.
2. I understand the provisions of the Protective Order, and agree to comply with
and to be bound by those provisions.
3. I will keep in confidence, and will not divulge to anyone other than those
permitted to have access under the terms of the Protective Order, or copy or use except
solely for the purposes of this case, any documents, testimony or other information
designated as Confidential Information (as defined in the Protective Order) pursuant to
the terms of the Protective Order.
4. I will return all Confidential Information to counsel who provided the
Confidential Information to me, or destroy it, within thirty (30) days after I am notified
that this case has concluded. If Confidential Information is destroyed, I will certify in
writing that the destruction has been completed.

Signature: ___________________________________

Printed Name: __________________________________

Date: __________________________________

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