Fontenot v. McNeil Industrial, Inc.
Filing
46
PROTECTIVE ORDER - For good cause shown under Fed. R. Civ. P. 26(c), the Court hereby enters the Protective Order. Ordered by Magistrate Judge Susan M. Bazis. (LKO)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
MATTHEW FONTENOT, Individually and on
Behalf of All Others Similarly Situated,
4:17-cv-03113
Plaintiff(s),
v.
PROTECTIVE ORDER
MCNEIL INDUSTRIAL, INC.,
Defendant.
For good cause shown under Fed. R. Civ. P. 26(c), the Court hereby enters the following
Protective Order:
1.
Scope. All information, documents and materials produced in the course of
discovery of this case, including initial disclosures, all responses to discovery requests, all
deposition testimony and exhibits, and information derived directly therefrom (hereinafter
collectively “documents”), are subject to this Order concerning confidential information as set
forth below. The Order is also subject to the applicable rules of procedure and local rules on
matters of procedure and calculation of time periods.
2.
Form and Timing of Designation. A party may designate documents as
confidential and restricted in use and disclosure under this Order by placing or affixing the word
“CONFIDENTIAL” on the document in a manner that will not interfere with the legibility of the
document. Documents shall be designated CONFIDENTIAL prior to or at the time of the
production or disclosure of the documents. Any document produced by either party prior to
entry of this Order may be designated and deemed confidential subject the terms of this Order by
identifying each such document in writing within twenty (20) days of the date this Order is
entered. The designation “CONFIDENTIAL” does not mean that the document has any status or
protection by statute or otherwise except to the extent and for the purposes of this Order.
3.
Documents Which May be Designated CONFIDENTIAL. Any party may
designate documents as CONFIDENTIAL upon a good faith belief that the documents contain
information protected from disclosure by statute or that should be protected from disclosure as
confidential personal information, medical or psychiatric information, trade secrets, personnel
records, or such other sensitive commercial and/or financial information that is not publicly
available.
4.
Inadvertent Failure to Designate. Inadvertent failure to designate any
documents as “CONFIDENTIAL,” in itself, will not constitute a waiver of an otherwise valid
claim of confidentiality pursuant to this Order, so long as a claim of confidentiality is asserted
within thirty (30) days after discovery of the inadvertent failure.
5.
Depositions. Deposition testimony will be deemed confidential only if
designated as such when the deposition is taken or within thirty (30) days after receipt of the
deposition transcript, in writing. Such designation must be specific as to the portions of the
transcript and/or any exhibits to be protected.
6.
Protection of Confidential Material.
(a)
General Protections. Documents designated CONFIDENTIAL must be
used or disclosed solely for purposes of prosecuting or defending this lawsuit, including any
appeals.
(b)
Who May View Designated Confidential Information. Except with the
prior written consent of the designating party or prior order of the Court, documents designated
CONFIDENTIAL may only be disclosed to the following persons:
(1)
The parties to this litigation, including any employees, agents, and
representatives of the parties;
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(2)
(3)
The Court and court personnel, including any special master
appointed by the Court, and members of the jury;
(4)
Court reporters, recorders, and videographers engaged for depositions;
(5)
Any mediator appointed by the Court or jointly selected by the
parties;
(6)
Any expert witness, outside consultant, or investigator retained
specifically in connection with this litigation, but only after such
persons have completed the certification contained in Attachment
A, Acknowledgment and Agreement to be Bound;
(7)
Any potential, anticipated, or actual fact witness and his or her
counsel, but only to the extent such confidential documents or
information will assist the witness in recalling, relating, or
explaining facts or in testifying, and only after such persons have
completed the certification contained in Attachment A,
Acknowledgement and Agreement to Be Bound;
(8)
Other persons only by written consent of the producing party or
upon order of the Court and on such conditions as may be agreed
or ordered. All such persons shall execute the certification
contained in Attachment A, Acknowledgement and Agreement to
Be Bound.
(c)
appropriate
Counsel for the parties and employees and agents of counsel;
Control of Documents. Counsel for the parties shall take reasonable and
measures
to
prevent
unauthorized
disclosure
of
documents
designated
CONFIDENTIAL pursuant to the terms of this Order. Counsel shall maintain copies of the forms
signed by persons acknowledging their obligations under this Order for a period of one (1) year
after dismissal of the action, the entry of final judgment and/or the conclusion of any appeals
arising therefrom. No acknowledgement forms are required for persons listed in paragraphs
6(b)(1) through (5).
(d)
Copies. Prior to production to another party, all copies, electronic images,
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duplicates, extracts, summaries or descriptions (hereinafter referred to collectively as "copies")
of documents designated CONFIDENTIAL under this Order, or any individual portion of such a
document, shall be affixed with the designation “CONFIDENTIAL” if the word does not already
appear on the copy. All such copies shall thereafter be entitled to the protection of this Order.
The term "copies" shall not include indices, electronic databases or lists of documents provided
these indices, electronic databases or lists do not contain substantial portions or images of the
text of confidential documents or otherwise disclose the substance of the confidential
information contained in those documents.
7.
Filing of CONFIDENTIAL Documents Under Seal. In the event a party seeks
to file any documents designated CONFIDENTIAL and subject to protection under this Order
with the Court, that party must take appropriate action to insure that the document receives
proper protection from public disclosure including: (a) filing a redacted document with the
consent of the party who designated the document as confidential; (b) seeking permission to file
the document as a "restricted access" document; or (c) where appropriate, submitting the
document solely for in camera review. Nothing in this Order will be construed as a prior
directive to allow any document to be filed under seal or under restricted access. The parties
understand that the requested documents may be filed under seal or under restricted access only
with the permission of the Court after proper motion.
8.
Challenges to a Confidential Designation. All CONFIDENTIAL designations
are subject to challenge by any party. A party shall be obligated to challenge the propriety of a
designation by providing and serving a written explanation of the factual and/or legal bases for
the challenge to the designating party within thirty (30) days of receiving a document or
transcript that has been expressly marked or designated, in whole or in part, as
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CONFIDENTIAL.
The failure to timely object to a CONFIDENTIAL designation, shall
preclude a subsequent challenge to the designation. In the event any party to this litigation timely
objects to the designation of information, testimony or documents as CONFIDENTIAL, the
designating party shall provide and serve a written explanation supporting the factual and/or
legal bases for each challenged CONFIDENTIAL designation. The designating party shall
provide and serve the written explanation within fourteen (14) days from receiving notice of the
objection. After receiving the written explanation from the designating party and before filing
any motion or objection to a confidential designation, the parties shall meet and confer in good
faith to resolve the objection informally without judicial intervention. If agreement is reached
confirming or waiving the designation as to any documents subject to the objection, the
designating party shall serve on all parties a notice specifying the documents and the nature of
the agreement. If the dispute cannot be resolved informally, the challenging party shall be
obligated to file a motion with the Court challenging such designation. The designating party
shall have the burden of establishing that the information is entitled to confidential treatment.
The disputed information or documents shall remain CONFIDENTIAL unless and until the
Court orders otherwise.
9.
Use of Confidential Documents or Information at Trial or Hearing. Nothing
in this Order will be construed to affect the use of any document, material, or information at any
trial or hearing. A party that intends to present or that anticipates that another party may present
documents or other information designated CONFIDENTIAL at a hearing or trial must bring that
issue to the attention of the Court and the other parties without disclosing the documents. The
Court may thereafter make such orders as are necessary to govern the use of such documents or
information at the hearing or trial.
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10.
Obligations on Conclusion of Litigation.
(a)
Order Remains in Effect. Unless otherwise agreed or ordered, this Order
shall remain in force after dismissal or entry of judgment not subject to further appeal or after
any applicable appeals.
(b)
Disposition of CONFIDENTIAL Documents. Within sixty (60) days
after dismissal or entry of final judgment not subject to further appeal, the producing party may
request that all documents designated CONFIDENTIAL under this Order, including copies as
defined in paragraph 6(d), and all information derived therefrom shall be returned to the
producing party unless: (1) the document has been offered into evidence or filed without
restriction as to disclosure; OR (2) the party in possession of such document(s) elects to destroy
the documents and certifies to the producing party that it has done so. Notwithstanding the
above requirements to return or destroy documents, counsel may retain attorney work product,
including an index which refers or relates to documents, so long as that work product does not
duplicate verbatim substantial portions of the text or images of confidential documents. This
work product shall continue to be CONFIDENTIAL under this Order. An attorney may use his
or her work product in a subsequent litigation provided that its use does not disclose or use the
documents. The parties further agree that the receiving party is not required to locate, isolate and
return emails (including attachments to emails) that may include designated documents, or
designated information contained in deposition transcripts or drafts or final expert reports.
(c)
Return of Documents Filed under Seal. After dismissal or entry of final
judgment not subject to further appeal, the Clerk may elect to return to counsel for the parties or,
after notice, destroy documents filed or offered at trial under seal or otherwise restricted by the
Court as to disclosure.
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(d)
Order Subject to Modification.
This Order shall be subject to
modification by the Court on its own motion or on motion of a party or any other person with
standing concerning the subject matter.
(e)
Persons Bound. This Order shall take effect when entered and shall be
binding upon all counsel and their law firms, the parties, and persons made subject to this Order
by its terms.
11.
No Prior Judicial Determination. This Order is entered based on the
representations and agreements of the parties and for the purpose of facilitating discovery.
Nothing in this Order will be construed or presented as a judicial determination that any
documents designated CONFIDENTIAL by counsel or the parties is entitled to protection under
Fed. R. Civ. P. 26(c) or otherwise until such time as the Court may rule on a specific document
or issue.
12.
Applicability to Parties Later Joined. If additional persons or entities become
parties to this lawsuit, they must not be given access to any documents designated
CONFIDENTIAL until they execute and file with the Court a written agreement to be bound by
the provisions of this Order.
13.
Protections Extended to Third-Party’s Confidential Information. The parties
agree to extend the provisions of this Protective Order to any documents produced in this case by
third parties, if timely requested by the third party or the parties to this litigation.
14.
Confidential Information Subpoenaed or Ordered Produced in Other
Litigation. If a receiving party is served with a subpoena or an order issued in other litigation
that would compel disclosure of any documents designated in this action as CONFIDENTIAL,
the receiving party must so notify the designating party, in writing, immediately and in no event,
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no more than three business days after receiving the subpoena or order. Such notification must
include a copy of the subpoena or court order.
The receiving party also must immediately inform 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 the subject of this Order. In addition, the receiving party must deliver a
copy of this Order promptly to the party in the other action that caused the subpoena to issue.
15.
Inadvertent Disclosure of Confidential Information Covered by Attorney-
Client Privilege or Work Product. The inadvertent disclosure or production of any information
or document that is subject to an objection on the basis of attorney-client privilege or work
product protection, including, but not limited to, information or documents that may be
considered confidential under the Protective Order, will be governed by Rule 502 of the Federal
Rules of Evidence.
IT IS SO ORDERED.
Dated June 8, 2018.
BY THE COURT:
S/ Susan M. Bazis
United States Magistrate Judge
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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
MATTHEW FONTENOT, Individually and on
Behalf of All Others Similarly Situated,
4:17-cv-03113
Plaintiff(s),
v.
MCNEIL INDUSTRIAL, INC.,
Defendant.
ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND
The undersigned hereby acknowledges that he/she has read the Protective Order dated
_______________ in the above-captioned case, 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 in accordance with the order solely for the purposes of the above-captioned
action, and not to disclose any such materials 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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