Fischer v. Accounts Receivable Solutions et al
Filing
17
STIPULATED PROTECTIVE ORDER granting 16 Joint Motion. Ordered by Magistrate Judge Michael D. Nelson. (JAB)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
DELROY FISCHER,
Plaintiff,
4:17CV3067
vs.
ACCOUNTS RECEIVABLE SOLUTIONS,
and DOES 1-10, INCLUSIVE,
STIPULATED
PROTECTIVE ORDER
Defendants.
This matter is before the Court on the parties’ Joint Motion and Stipulation for Protective
Order (Filing No. 16). The parties agree that during the course of discovery it may be necessary
to disclose certain confidential information relating to the subject matter of this action. They
agree that certain categories of such information should be treated as confidential, protected from
disclosure outside this litigation, and used only for purposes of prosecuting or defending this
action and any appeals. The parties jointly request entry of this proposed Protective Order to
limit the disclosure, dissemination, and use of certain confidential information. For good cause
shown under Fed. R. Civ. P. 26(c),
IT IS ORDERED: The Joint Motion and Stipulation for Protective Order (Filing No. 16)
is granted, and the following Protective Order shall apply to this case:
1.
PURPOSES AND LIMITATIONS
Disclosure and discovery activity in this action are likely to involve production of
confidential, proprietary, or private information for which special protection from public
disclosure and from use for any other purpose other than prosecuting this litigation may be
warranted. Accordingly, the parties hereby stipulate to and petition the court to enter the
following Stipulated Protective Order. The parties acknowledge that this Order does not confer
blanket protections on all disclosures or responses to discovery and that the protection it affords
from public disclosure and use extends only to the limited information or items that are entitled
to confidential treatment under the applicable legal principles. The parties further acknowledge,
as set forth in Section 12.3, below, that this Stipulated Protective Order entitles them to file
confidential information under seal; subject to the provisions of Local Rule NECivR 7.5 and
General Rule NEGenR 1.3(c).
2.
DEFINITIONS
2.1
Challenging Party: a Party or Non-Party that challenges the designation of
information or items under this Order.
2.2
“CONFIDENTIAL” Information or Items: information (regardless of how
it is generated, stored or maintained) or tangible things that qualify for
protection under Fed.R.Civ.P. 26(c).
2.3
Counsel (without qualifier): Outside Counsel of Record and House
Counsel (as well as their support staff).
2.4
Designating Party: a Party or Non-Party that designates information or
items that it produces in disclosures or in responses to discovery as
“CONFIDENTIAL.”
2.5
Disclosure or Discovery Material: all items or information, regardless of
the medium or manner in which it is generated, stored, or maintained (including, among
other things, testimony, transcripts, and tangible things), that are produced or generated in
disclosures or responses to discovery in this matter.
2.6
Expert: a person with specialized knowledge or experience in a matter
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pertinent to the litigation who has been retained by a Party or its counsel to serve as an
expert witness or as a consultant in this action.
2.7
House Counsel: attorneys who are employees of a party to this action.
House Counsel does not include Outside Counsel of Record or any other outside counsel.
2.8
Non-Party: any natural person, partnership, corporation, association, or
other legal entity not named as a Party to this action.
2.9
Outside Counsel of Record: attorneys who are not employees of a party to
this action but are retained to represent or advise a party to this action and have appeared
in this action on behalf of that party.
2.10
Party: any party to this action, including all of its officers, directors,
employees, consultants, retained experts, and Outside Counsel of Record (and their
support staffs).
2.11
Producing Party: a Party or Non-Party that produces Disclosure or
Discovery Material in this action.
2.12
services
Professional Vendors: persons or entities that provide litigation support
(e.g.,
photocopying,
videotaping,
translating,
preparing
exhibits
or
demonstrations, and organizing, storing, or retrieving data in any form or medium) and
their employees and subcontractors.
2.13
Protected Material: any Disclosure or Discovery Material that is
designated as “CONFIDENTIAL.”
2.14
Receiving Party: a Party that receives Disclosure or Discovery Material
from a Producing Party.
3.
SCOPE
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The protections conferred by this Motion and Order cover not only Protected Material (as
defined above), but also (1) any information copied or extracted from Protected Material; (2) all
copies, excerpts, summaries, or compilations of Protected Material; and (3) any testimony,
conversations, or presentations by Parties or their Counsel that might reveal Protected Material.
However, the protections conferred by this Stipulation and Order do not cover the following
information: (a) any information that is in the public domain at the time of disclosure to a
Receiving Party as a result of publication not involving a violation of this Order, including
becoming part of the public record through trial or otherwise; and (b) any information known to
the Receiving Party after the disclosure from a source who obtained the information lawfully and
under no obligation of confidentially to the Designating Party. Any use of Protected Material at
trial shall be governed by a separate agreement or order.
4.
DURATION
Even after final disposition of this litigation, the confidentiality obligations
imposed by this Order shall remain in effect until a Designating Party agrees otherwise in writing
or a court order otherwise directs. Final disposition shall be deemed to be the later of (1)
dismissal of all claims and defenses in this action, with or without prejudice; and (2) final
judgment herein after the completion and exhaustion of all appeals, rehearings, remands, trials,
or reviews of this action, including the time limits for filing any motions or applications for
extensions of time pursuant to applicable law.
5.
DESIGNATING PROTECTED MATERIAL
5.1
Exercise of Restraint and Care in Designating Material for Protection:
Each Party or Non-Party that designates information or items for protection under
this Order must take care to limit any such designation to specific material that
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qualifies under the appropriate standards. The Designating Party must designate
for production 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.
If it comes to a Party’s or a non-party’s attention that information or items
that it designated for protection do not qualify for protection, that Designating
Party must promptly notify all other Parties that it is withdrawing the mistaken
designation.
5.2
Manner and Timing of Designations: Except as otherwise provided in this
Order (see, e.g., second paragraph of section 5.2(a) below), or as otherwise stipulated or ordered,
Disclosure or Discovery Material that qualifies for protection under this Order must be clearly so
designated before the material is disclosed or produced.
Designation in conformity with this Order requires:
(a) for information in documentary form (e.g., paper or electronic
documents, but excluding transcripts of depositions or other pretrial or trial
proceedings), that the Producing Party affixes the legend “CONFIDENTIAL” to
each page that contains protected material. If only a portion or portions of the
material on a page qualifies for protection, the Producing Party also must clearly
identify the protected portion(s) (e.g., by making appropriate markings in the
margins).
A Party or non-party that makes original documents or materials available
for inspection need not designate them for production until after the inspecting
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Party has indicated which material it would like copied and produced. During the
inspection and before designation, all of the material made available for
inspection shall be deemed “CONFIDENTIAL.” After the inspecting Party has
identified the document it wants copied and produced, the Producing Party must
determine which documents, or portions thereof, qualify for protection under this
Order. Then, before producing the specified documents, the Producing Party must
affix the “CONFIDENTIAL” legend to each page that contains Protected
Material. If only a portion or portions of the material on a page qualifies for
protection, the Producing Party also must clearly identify the protected portion(s)
(e.g., by making appropriate markings in the margins).
(b) for testimony given in deposition or in other pretrial or trial
proceedings, that the Designating Party may identify on the record, before the
close of the deposition, hearing, or other proceeding, all protected testimony.
Otherwise, deposition testimony is to be treated as confidential for thirty (30)
days after receipt of the transcript by the parties, at which time any confidential
designations shall be made. Confidentiality designations of protected testimony
given in any hearing or at trial shall be identified on the record before the close of
the hearing or trial in which the testimony was given unless otherwise agreed by
the parties.
(c) for information produced in some form other than documentary and for
any other tangible items, that the Producing Party affix in a prominent place on
the exterior of the container or containers in which the information or item is
stored the legend “CONFIDENTIAL.” If only a portion or portions of the
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information or item warrant protection, the Producing Party, to the extent
practicable, shall identify the protected portion(s).
5.3 Inadvertent Failures to Designate: If timely corrected, an inadvertent failure to
designate qualified information or items does not, standing alone, waive the Designating
Party’s right to secure protection under this Order for such material. Upon timely
correction of designation, the Receiving Party must make reasonable efforts to assure that
the material is treated in accordance with the provisions of this Order.
6.
CHALLENGING CONFIDENTIALITY DESIGNATIONS
6.1
Timing of Challenges: Any Party or Non-Party may challenge a
designation of confidentiality within 60 days from receipt of the documents designated
confidential. In the event the information designated confidential is later produced in
some publicly available format, the sixty (60) day period for challenging the designated
confidential information starts again from the date of publication.
6.2
Meet and Confer: The Challenging Party shall initiate the dispute
resolution process by providing written notice of each designation it is challenging and
describing the basis for each challenge. To avoid ambiguity as to whether a challenge has
been made, the written notice must recite that the challenge to confidentiality is being
made in accordance with this specific paragraph of the Protective Order. The parties shall
attempt to resolve each challenge in good faith and must begin the process by conferring
directly (in voice to voice dialogue; other forms of communication are not sufficient)
within 14 days of the date of service of notice. In conferring, the Challenging Party must
explain the basis for its belief that the confidentiality designation was not proper and
must give the Designating Party an opportunity to review the designated material, to
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reconsider the circumstances, and, if no change in designation is offered, to explain the
basis for the chosen designation. A Challenging Party may proceed to the next stage of
the challenge process only if it has engaged in this meet and confer process first or
establishes that the Designating Party is unwilling to participate in the meet and confer
process in a timely manner.
6.3
Judicial Intervention: If the Parties cannot resolve a challenge without
court intervention, the Designating Party shall file and serve a motion to retain
confidentiality under Fed.R.Civ.P. 5.2 (and in compliance with NECivR 7.5 and
NEGenR 1.3(c), if applicable) within 21 days of initial notice of challenge or within 14
days of the parties agreeing that the meet and confer process will not resolve their
dispute, whichever is earlier. Each such motion must be accompanied by a competent
declaration affirming that the movant has complied with the meet and confer
requirements imposed in the preceding paragraph. Failure by the Designating Party to
make such a motion including the required declaration within 21 days (or 14 days, if
applicable) shall automatically waive the confidentiality designation for each challenged
designation. In addition, the Challenging Party may file a motion challenging a
confidentiality designation at any time if there is good cause for doing so, including a
challenge to the designation of a deposition transcript or any portions thereof. Any
motion brought pursuant to this provision must be accompanied by a competent
declaration affirming that the movant has complied with the meet and confer
requirements imposed by the preceding paragraph.
The burden of persuasion in any challenge proceeding shall be on the Designating Party.
Frivolous challenges, and those made for an improper purpose (e.g. to harass or impose
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unnecessary expenses and burdens on other parties) may expose the Challenging Party to
sanctions. Unless the Designating Party has waived the confidentiality designation by failing to
file a motion to retain confidentiality as described above, all parties shall continue to afford the
material in question the level of protection to which it is entitled under the Producing Party’s
designation until the court rules on the challenge.
7.
ACCESS TO AND USE OF PROTECTED MATERIAL
7.1
Basic Principles: A Receiving Party may use Protected Material that is
disclosed or produced by another Party or by a Non-party in connection with this case
only for prosecuting, defending, or attempting to settle this litigation. Such Protected
Material may be disclosed only to the categories of persons and under the conditions
described in this Order. When the litigation has been terminated, a Receiving Party must
comply with the provisions of section 13 below (FINAL DISPOSITION).
Protected Material must be stored and maintained by a Receiving Party at a location and
in a secure manner that ensures that access is limited to the persons authorized under this Order.
7.2
Disclosure of “CONFIDENTIAL” Information or Items: Unless otherwise
ordered by the court or permitted in writing by the Designating Party, a Receiving Party may
disclose any information or item designated “CONFIDENTIAL” only to:
(a) the Receiving Party’s Outside Counsel of record in this action, as well as
employees of said Outside Counsel to whom it is reasonably necessary to disclose
the information for this litigation and who have signed the “Acknowledgment and
Agreement to be Bound” that is attached hereto as Exhibit A;
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(b) the officers, directors, and employees (including House Counsel) of the
Receiving Party to whom disclosure is reasonably necessary for this litigation and
who signed the “Acknowledgment and Agreement to be Bound” (Exhibit A);
(c) Experts (as defined in this Order) of the Receiving Party to whom disclosure is
reasonably
necessary
for
this
litigation
and
who
have
signed
the
“Acknowledgment and Agreement to be Bound” (Exhibit A);
(d) the court and its personnel;
(e) court reporters and their staff, professional jury or trial consultants, mock
jurors, and Professional Vendors to whom disclosure is reasonably necessary for
this litigation and who have signed the “Acknowledgment and Agreement to be
Bound” (Exhibit A);
(f) during their depositions, witnesses in the action to whom disclosure is
reasonably necessary and who have signed the “Acknowledgment and Agreement
to be Bound” (Exhibit A), unless otherwise agreed by the Designating Party or
ordered by the court. Pages of transcribed deposition testimony or exhibits to
depositions that reveal Protected Material must be separately bound by the court
reporter and may not be disclosed to anyone except as permitted under this
Stipulated Protective Order;
(g) the author of the document containing the information or a custodian or other
person who otherwise possessed or knew the information.
8. PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED IN
OTHER LITIGATION
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If a Party is served with a subpoena or an order issued in other litigation that compels
disclosure of any information or items designated in this action as “CONFIDENTIAL,” that
Party must:
(a) promptly notify in writing the Designating Party. Such notification shall
include a copy of the subpoena or court order;
(b) promptly notify in writing the party who caused the subpoena or order to issue
in the other litigation that some or all of the material covered by the subpoena or
order is subject to this Protective Order. Such notification shall include a copy of
this Stipulated Protective Order; and
(c) cooperate with respect to all reasonable procedures sought to be pursued by
the Designating Party whose Protected Material may be affected.
If the Designating Party timely seeks a protective order, the Party served with the
subpoena or court order shall not produce any information designated in this
action as “CONFIDENTIAL” before a determination by the court from which the
subpoena or order is issued, unless the Party has obtained the Designating Party’s
permission. The Designating Party shall bear the burden and expense of seeking
protection in the court of its confidential material – and nothing in these
provisions should be construed as authorizing or encouraging a Receiving Party in
this action to disobey a lawful directive from another court.
9.
A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE PRODUCED
IN THIS LITIGATION
(a) The terms of this Order are applicable to information produced by a Non-Party
in this action and designated as “CONFIDENTIAL.” Such information produced
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by Non-Parties in connection with this litigation is protected by the remedies and
relief provided by this Order. Nothing in these provisions should be construed as
prohibiting a Non-Party from seeking additional protections.
(b) In the event that a Party is required, by a valid discovery request, to produce a
Non-Party’s confidential information in its possession, and the Party is subject to
an agreement with the Non-Party not to produce the Non-Party’s confidential
information, the Party shall:
(1) promptly notify in writing the Requesting Party and the Non-Party that
some or all of the information requested is subject to a confidentiality agreement
with a Non-Party;
(2) promptly provide the Non-Party with a copy of the Stipulated
Protective Order in this litigation, the relevant discovery request(s), and a
reasonably specific description of the information requested; and
(3) make the information requested available for inspection by the NonParty.
(c) If the Non-Party fails to object or seek a protective order from this court
within 14 days of receiving the notice and accompanying information, the
Receiving Party may produce the Non-Party’s confidential information responsive
to the discovery request. If the Non-Party timely seeks a protective order, the
Receiving Party shall not produce any information in its possession or control that
is subject to the confidentiality agreement with the Non-Party before a
determination by the court. [The purpose of this provision is to alert the interested
parties to the existence of confidentiality rights of a Non-Party and to afford the
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Non-Party an opportunity to protect its confidentiality interests in this court.]
Absent a court order to the contrary, the Non-Party shall bear the burden and
expense of seeking protection in this court of its Protected Material.
10.
UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL
If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed
Protected Material to any person or in any circumstance not authorized under this Stipulated
Protective Order, the Receiving Party must immediately (a) notify in writing the Designating
Party of the unauthorized disclosures, (b) use its best efforts to retrieve all unauthorized copies of
the Protected Material, (c) inform the person or persons to whom unauthorized disclosures were
made of all the terms of this Order, and (d) request such person or persons to execute the
“Acknowledgment and Agreement to be Bound” (Exhibit A).
11.
INADVERTENT
PRODUCTION
OF
PRIVILEGED
OR
OTHERWISE
PROTECTED MATERIAL
When a Producing Party gives notice to Receiving Parties that certain
inadvertently produced material is subject to a claim of privilege or other protection, the
obligations of the Receiving Parties are those set forth in Federal Rule of Civil Procedure
26(b)(5)(B). This provision is not intended to modify whatever procedure may be established in
an e-discovery order that provides for production without prior privilege review. Pursuant to
Federal Rule of Evidence 502(d) and (e), insofar as the parties reach an agreement on the effect
of disclosures of a communication or information covered by the attorney-client privilege or
work product protection, the parties may incorporate their agreement in the stipulated protective
order submitted to the court.
12.
MISCELLANEOUS
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12.1
Right to Further Relief: Nothing in this Order abridges the right of any
person to seek its modification by the Court in the future.
12.2
Right to Assert Other Objections: By stipulating to the entry of this
Protective Order no Party waives any right it otherwise would have to object to disclosing or
producing any information or item on any ground not addressed in this Motion and Protective
Order. Similarly, no Party waives any right to object on any ground to use in evidence of any of
the material covered by this Protective Order.
12.3
Filing Protected Material: A Party that seeks to file under seal any
Protected Material must comply with Local Rule NECivR 7.5, NEGenR 1.3(c) and the terms of
this agreement. Protected Material may only be filed under seal pursuant to court order
authorizing the sealing of the specific Protected Material at issue.
13.
FINAL DISPOSITION
Within 60 days after the final disposition of this action, as defined in paragraph 4,
each Receiving Party must return all Protected Material to the Producing Party or destroy such
material. As used in this subdivision, “all Protected Material” includes all copies, abstracts,
compilations, summaries, and any other format reproducing or capturing any of the Protected
Material. Whether the Protected Material is returned or destroyed, the Receiving Party must
submit a written certification to the Producing Party (and, if not the same person or entity, to the
Designating Party) by the 60 day deadline that (1) identifies (by category, where appropriate) all
the Protected Material that was returned or destroyed and (2) affirms that the Receiving Party has
not retained any copies, abstracts, compilations, summaries or any other format reproducing or
capturing any of the Protected Material. Notwithstanding this provision, Counsel are entitled to
retain an archival copy of all pleadings, motion papers, trial, deposition, and hearing transcripts,
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legal memoranda, correspondence, deposition and trial exhibits, expert reports, attorney work
product, and consultant and expert work product, even if such materials contain Protected
Material. Any such archival copies that contain or constitute Protected Material remain subject to
this Protective Order as set forth in Section 4 (DURATION).
Dated this 22nd day of November, 2017.
BY THE COURT:
s/ Michael D. Nelson
United States Magistrate Judge
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ATTACHMENT A
ACKNOWLEDGMENT
AND
AGREEMENT TO BE BOUND
The undersigned hereby acknowledges that he/she has read the Protective Order dated
_______________ in the case captioned, Delroy Fischer v. Accounts Receivable Solutions, Case
No. 4:17-CV-3067, and attached hereto, understands the terms thereof, and agrees to be bound
by its terms. The undersigned submits to the jurisdiction of the United States District Court for
the District of Nebraska in matters relating to this Protective Order and understands that the
terms of the Protective Order obligate him/her to use materials designated as Confidential
Information in accordance with the order solely for the purposes of the above-captioned action,
and not to disclose any such Confidential Information to any other person, firm, or concern,
except in accordance with the provisions of the Protective Order.
The undersigned acknowledges that violation of the Protective Order may result in
penalties for contempt of court.
Name:
Job Title:
Employer:
Business Address:
Date:
Signature
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