TCW Construction, Inc. v. Holmes, Murphy & Associates, Inc. et al
Filing
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PROTECTIVE ORDER - This matter is before the Court on the Joint Stipulation for Protective Order. (Filing No. 12 .) The Stipulation is approved and adopted. Ordered by Magistrate Judge Susan M. Bazis. (KLF)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
TCW CONSTRUCTION, INC., a Nebraska )
corporation,
)
)
Plaintiff,
)
)
v.
)
)
HOLMES, MURPHY & ASSOCIATES,
)
INC. and HOLMES, MURPHY &
)
ASSOCIATES, LLC,
)
)
Defendants.
)
Civil Action No. 4:17-cv-03162
PROTECTIVE ORDER
This matter is before the Court on the Joint Stipulation for Protective Order. (Filing No.
12.) The Stipulation is approved and adopted.
Accordingly,
IT IS ORDERED 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 third parties to maintain in
confidence, or information, the present disclosure of which would, in the good faith judgment of
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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 confidential
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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 counsel for the disclosing party. Counsel
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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 terms of this
Protective Order as provided in sub-paragraph c of Paragraph 8;
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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 subparagraph 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 sub-paragraph 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.
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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
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
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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 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 17th day of January, 2018.
BY THE COURT:
S/ Susan M. Bazis
United States Magistrate Judge
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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.
)
)
HOLMES, MURPHY & ASSOCIATES,
)
INC. and HOLMES, MURPHY &
)
ASSOCIATES, LLC,
)
)
Defendants.
)
)
Civil Action No. 4:17-cv-03162
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 ____________, 2018.
__________________________
STATE OF _________________ )
) ss.
COUNTY OF________________)
Subscribed and sworn to before me this ___ day of _________, 2018.
____________________________________
Notary Public
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