Sampson Construction Co., Inc. v. Developers Surety and Indemnity Company

Filing 17

PROTECTIVE ORDER- Upon consideration of the parties' Joint Motion for Protective Order, (Doc. 16 ), the Court enters the following Protective Order governing the disclosure of confidential material by a producing party to a receiving party in this action. Ordered by Magistrate Judge Cheryl R. Zwart. (MKR)

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
SAMPSON CONSTRUCTION
CO., INC.,
Plaintiff,

DEVELOPERS SURETY AND
INDEMNITY COMPANY,
Defendant.

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Case No. 4:20-cv-03149

PROTECTIVE ORDER

Upon consideration of the parties’ Joint Motion for Protective Order, (Doc. 16), the
Court enters the following Protective Order governing the disclosure of confidential
material by a producing party to a receiving party in this action.
1.

This Protective Order shall apply to all information, documents, testimony

and things within the scope of discovery in the above-referenced action that are in the
custody or possession of the Parties and/or which were received by a Party from a third
party under an obligation of confidentiality or privacy, which constitute or contain
confidential, privileged, proprietary and/or otherwise sensitive or protected trade secrets
and/or

commercial

information,

and

which

are

properly

designated

as

“CONFIDENTIAL” by the Producing Party pursuant to the following provisions,
including, but not limited to, documents and things responsive to requests for production
of documents, responses to written interrogatories, responses to requests for admission,

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testimony adduced at depositions, and hearing or trial transcripts or documents received
via third parties, but which are produced pursuant to this Protective Order. Use of
CONFIDENTIAL information by the Receiving Party shall be limited to the purposes of
this litigation and shall not be used for any other purpose or in any other proceeding or
venue, except that CONFIDENTIAL information obtained or in the possession of the
Receiving Party by another method than receipt of discovery or otherwise in this litigation
may be used by the Receiving Party in the normal course of business. The following
information shall not be deemed or considered CONFIDENTIAL under this Order: (a)
information in the public domain; (b) information already known by the receiving Party
through proper means; and (c) information that is or becomes available to a Party from a
source (i) other than the Party asserting confidentiality and (ii) rightfully in possession of
such information on a non-confidential basis.
2.

The Producing Party shall label or mark documents, portions of

documents, answers to interrogatories, responses to requests for admission, deposition
transcripts, affidavits, expert reports, legal briefs or memoranda, and information derived
therefrom

that

constitute

CONFIDENTIAL

information

with

the

legend

“CONFIDENTIAL.” Documents and things that constitute CONFIDENTIAL material
shall be labeled or marked with the appropriate legend when produced to a Receiving
Party. The designation of “CONFIDENTIAL” by a Producing Party constitutes a
representation by the Producing Party that it reasonably and in good faith believes the
designated material contains protected information.
3.

Documents and things produced without the above-referenced legend

shall not be CONFIDENTIAL pursuant to this Protective Order unless agreed by all

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Parties or ordered by this Court, or otherwise designated CONFIDENTIAL in accordance
with the provisions of Paragraph 4 of this Protective Order.
4.

Testimony adduced at depositions upon oral examination of any witness

that constitutes or includes CONFIDENTIAL information may be so designated when
such testimony is provided or within thirty (30) days after an official deposition transcript
is received by the designating party. The Parties agree to mark all copies of such
deposition transcript with the appropriate “CONFIDENTIAL” legend. The Parties agree
to treat all testimony adduced at each deposition as CONFIDENTIAL for at least thirty
(30) days after receipt of the deposition transcript. If notice is timely received, prior to
the expiration of said thirty (30) day period, that a Party or Signatory has designated
transcript pages or testimony as CONFIDENTIAL, such testimony and/or pages shall be
deemed CONFIDENTIAL under this Order. All other deposition testimony shall not be
subject to this Order.
5.

If a Producing Party, through inadvertence, mistake or neglect, produces

or provides any CONFIDENTIAL information without labeling or marking said
information with the legend “CONFIDENTIAL” as contemplated above, it may give
written notice to the Receiving Party that the document or thing is CONFIDENTIAL and
should be treated as such in accordance with the provisions of this Protective Order.
Upon receipt of such information, and unless challenged successfully pursuant to
Paragraph 20 of this Protective Order, the Receiving Party shall treat such document or
thing as CONFIDENTIAL information and shall mark the document or thing
“CONFIDENTIAL” and notify the Producing Party accordingly. Prior to receipt of such
notice, disclosure of such document or thing shall not be deemed a violation of this

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Protective Order. The acts required under this paragraph shall be made within a
reasonable period of time from production.
6.

Nothing contained in this Protective Order shall be construed to affect or

govern the scope of discovery in this action, or to preclude any Party from moving this
Court for a further order or relief. Nothing contained in this Protective Order shall be
construed to require production or disclosure of any CONFIDENTIAL information
protected from disclosure by the attorney-client privilege or the attorney work product
doctrine.
7.

Except in the event that the requesting Party disputes the claim, any

CONFIDENTIAL discovery materials the Producing Party deems to have been
inadvertently disclosed and to be subject to the attorney-client privilege or the workproduct protection shall be, upon written request, promptly returned to the Producing
Party, or destroyed, at that Party’s option. If the claim is disputed, a single copy of the
materials may be retained by the requesting Party for the exclusive purpose of seeking
judicial determination of the matter.
8.

Material marked CONFIDENTIAL may be offered into evidence at

hearings on motions and may be used to prepare for and conduct discovery, to prepare
for trial and to support or oppose any motion in this action, but shall be subject to
Paragraphs 9 through 18, below, and any further order regarding confidentiality entered
by this Court.
9.

Material marked CONFIDENTIAL shall be deemed and treated as

CONFIDENTIAL information, unless and until this Court rules to the contrary, and shall
not be disclosed by the person receiving it to any other person without the prior written
consent of the Producing Party or an order of the Court, except to the following:

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a. outside counsel who represent parties that have appeared in the action, and
regular and temporary employees of such counsel (such as other lawyers,
clerical, paralegal or secretarial personnel) necessary to assist in the
conduct of the action for use in accordance with this Order;
b. In-house counsel and employees of the parties with responsibilities relating
to this action;
c. experts, contractors, or consultants retained by outside counsel or the
parties or designated as expert witnesses in the action and deemed
necessary to assist outside counsel for parties that have appeared in the
action;
d. the Court and its employees, including, without limitation, court reporters,
employees in the Clerk's Office, and law clerks, provided that the
CONFIDENTIAL discovery material is filed in accordance with the terms of
this Order;
e. deposition or trial witnesses or potential deposition or trial witnesses in this
action who are not subject to Paragraphs 9(b) and 9(c) above;
f. corporate representatives of the Parties with a need to know basis for
purposes of handling and/or resolving this action;
g. stenographers, videographers, or other persons preparing transcripts of
testimony in connection with the action;
h. members of data entry, data processing, or computer imaging firms
employed by either the parties or counsel to assist in the development or
use of data retrieval systems or computer imaging of documents in
connection with this action;
i. employees of copy services utilized with respect to this action, provided they
return the materials and all copies thereof to the Party utilizing the service;
j. employees of litigation support vendors utilized with respect to this action;
k. insurers, reinsurers, or regulators, if any, participating in the action or
auditors;
l. any governmental or regulatory body as required by law;
m. any mediator or arbitrator retained by the parties to assist with resolving
and/or settling the claims of this action and members of the arbitrator’s or
mediator’s staff and assistants; and
n. any other person only upon order of the Court or upon stipulation of the
party that produced the CONFIDENTIAL material.
10.

Acknowledgement and Notice. Before disclosure of any CONFIDENTIAL

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discovery material is made to any person described in Paragraphs 9(c), 9(e), 9(f), 9(h),
9(j), and 9(m), the person to whom disclosure is made shall be advised of this Order and
shall agree in writing (in the form attached hereto as Exhibit “A”) to be bound by the terms
of this Order. Counsel for each disclosing party shall maintain a file of such written
agreements until this action is completed. Before disclosure of any CONFIDENTIAL
material is made to any person described in paragraph 9(j), the party providing the
Confidential discovery material to the third-party vendor(s) shall obtain assurances from
the vendor that the CONFIDENTIAL materials shall be protected from inadvertent
disclosure and the vendor shall maintain the confidentiality of the material. Before
disclosure of any CONFIDENTIAL material is made to any person described in paragraph
9(e) above, the person to whom disclosure is made shall be advised of this Order. If the
person to whom disclosure is made refuses to so agree in writing (in the form attached
hereto as Exhibit “A”), then that person shall be provided a copy of the form attached
hereto as Exhibit “C” and shall be asked to affirmatively state on the record that he or she
has received the form.
11.

Any Party may, at a deposition or in preparing for a deposition, disclose

CONFIDENTIAL information to (a) any person identified in Paragraph 9 that is entitled
to see such information; or (2) to a Party or Signatory to this Protective Order. Copies of
such CONFIDENTIAL information shown to such individuals may be retained during
preparation for the deposition, but such individuals must return all CONFIDENTIAL
information within five (5) business days of reading and, if applicable, signing their
respective deposition transcripts. Nothing in this Paragraph restricts a Party from
disclosing its own CONFIDENTIAL information to its current/former officers, directors,
members or employees.

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12.

Nothing in this Protective Order shall prohibit a Party from using

CONFIDENTIAL information produced or received by a Party for litigation purposes or
in the ordinary course of business if such information was in the possession, custody or
control of the Party prior to the filing of this lawsuit.
13.

This Protective Order does not limit the right of a Party to offer

CONFIDENTIAL information into evidence at trial or use it for any lawful trial purpose,
including impeachment. A Party may seek advance determination by the Court of the
admissibility or non-admissibility of CONFIDENTIAL information. The Court may apply
restrictions, as it deems appropriate, on the use of CONFIDENTIAL information.
14.

Any Party may move the Court for an order that CONFIDENTIAL

information be received in camera or under other conditions to prevent unnecessary
disclosure.
15.

Any corporation or entity which is affiliated with a Party and which

produces documents or information responsive to a Party’s discovery requests is a thirdparty beneficiary of this Protective Order and may pursue all civil remedies available to it
for breach of this Protective Order but only after it provides written notice to the Party
violating this Protective Order and affords that Party an opportunity to cure such alleged
breach.
16.

Third parties who produce documents in this case, pursuant to subpoenas

or otherwise, may elect to become Signatories to this Protective Order by executing an
Election in the form of the attached Exhibit B. Such third parties shall then enjoy the
benefits of this Protective Order relative to the protective of CONFIDENTIAL information

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produced by said third parties, and they shall also be bound by the obligations of this
Protective Order. With respect to any such third party, the provisions of Paragraph 10,
above, shall apply with respect to depositions and preparation for depositions.
17.

CONFIDENTIAL information and any document or thing containing such

CONFIDENTIAL information shall be held in confidence, shall not be made public by any
Party or person entitled to view such information, and shall not be used for any financial,
commercial, marketing, business, or other competitive purpose by the Receiving Party or
person, unless such Receiving Party or person had access to such information prior to this
litigation.
18.

If any Party becomes aware of the disclosure of CONFIDENTIAL

information in violation of this Order, such Party shall immediately promptly inform the
Producing Party of all pertinent facts of such disclosure and shall instruct the
unauthorized person to treat such information as CONFIDENTIAL and demand that it be
returned.
19.

If any CONFIDENTIAL information is to be filed with the Court, such

material shall be designated as “CONFIDENTIAL” and shall be provisionally filed
under restricted access with the filing party’s motion for leave to file restricted access
documents. A party seeking to file under restricted access must comply with the court’s
rules and electronic docketing procedures for filing such motions.
20.

The acceptance of material marked CONFIDENTIAL shall not constitute

an admission or concession or permit an inference that such material is, in fact,
CONFIDENTIAL. Any Party may challenge in writing the designation of material marked
as such (the “Challenge”). If any CONFIDENTIAL information is challenged, the
Producing Party shall have fourteen (14) days after receipt of the Challenge to object in

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writing to the challenge (the “Objection”). The Parties shall thereafter try to resolve the
dispute in good faith on an informal basis. If the dispute cannot be resolved informally
within fourteen (14) days after transmittal of the Objection, the Producing Party bears the
burden of proving the information was properly designated and shall file a Motion for
Protective Order with the Court and the Court shall make a decision on the designation.
The party challenging a “CONFIDENTIAL” designation must obtain a court order before
disseminating the information except as otherwise allowed by this Protective Order.
21.

This Protective Order shall not be construed to prevent the Parties from

applying to this Court for relief therefrom, or from applying for further or additional
protective orders, or from agreeing between themselves to modifications of this Protective
Order, subject to the approval of this Court. The Protective Order shall not preclude the
Parties from enforcing their rights against any other Party or any non-party believed to
be violating their rights. It is expressly understood between the Parties that the category
of personnel in Paragraph 9 may be increased by agreement or upon a showing, subject
to the approval of this Court, by any Party that such modification is necessary.
22.

This Protective Order shall survive the final determination of the lawsuit,

including all appeals.
23.

Upon final termination of this action, including all appeals, each party

shall make reasonable efforts to destroy all discovery material designated as
“CONFIDENTIAL.” The destroying party shall notify the Producing Party when
destruction under this provision is complete. If a party is unable to destroy all discovery
material designated as “CONFIDENTIAL,” that material shall be returned to the
Producing Party or the Producing Party’s counsel. This Protective Order shall survive the
final termination of this action, and it shall be binding on the parties and their legal

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counsel in the future. Counsel of record for the parties shall be entitled to retain an
archival copy of all court papers, depositions, and trial transcripts, legal memoranda,
correspondence, expert reports, and work product, even if such materials contain
CONFIDENTIAL information, provided that retained materials will continue to be
covered by this Protective Order.
24.

The restrictions and obligations herein shall not apply to any information

(a) the Parties agree should not be designated as CONFIDENTIAL information; (b) the
Parties agree or the Court determines is public knowledge; or (c) which has come into the
possession of the Receiving Party independently of production of discovery, such that the
use or public disclosure would not violate some obligation owing to another. The burden
of proving independent knowledge is upon the Party asserting such knowledge. These
restrictions shall not prohibit discussions with any person regarding material designated
CONFIDENTIAL if that person already has or obtains legitimate possession thereof.
25.

Nothing in this Protective Order shall bar or restrict an attorney herein

from rendering legal advice to the attorney’s party-client with respect to this action,
provided that in rendering such legal advice and in otherwise communicating with the
party-client, the attorney shall not disclose any CONFIDENTIAL information to anyone
not authorized to receive such information under this Protective Order.
Dated this 18th day of February, 2021.
BY THE COURT:
s/ Cheryl R. Zwart
United States Magistrate Judge

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EXHIBIT A
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
SAMPSON CONSTRUCTION
CO., INC.,
Plaintiff,
v.
DEVELOPERS SURETY AND
INDEMNITY COMPANY,
Defendant.

UNDERTAKING OF
1.

My present address is

present employer is

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Case No. 4:20-cv-03149

UNDERTAKING COMPLIANCE
WITH PROTECTIVE ORDER

.
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My

, and the

address of my present employer is
My present occupation is
2.

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I have received a copy of the Protective Order in this action. I have read and

understand it. I certify that I am eligible to review CONFIDENTIAL material. I will
comply with the Protective Order. I will hold in confidence, will not disclose to anyone
unqualified under the Protective Order, and will use only for purposes of the aboveentitled action, any CONFIDENTIAL information, including the substance and any copy,
summary, abstract, excerpt, index or description of such material that is disclosed to me.
I will return all CONFIDENTIAL information that comes into my possession, and all

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documents and things I have prepared relating thereto, to counsel for the Party by whom
I am employed or retained or from whom I received such material, upon request.
3.

I understand if I violate the provisions of the Protective Order, I will be

subject to sanctions by the Court, and that other remedies may be sought against me. I
submit to the jurisdiction of this Court for the purposes of enforcement.
DATED:
SIGNATURE:

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EXHIBIT B
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
SAMPSON CONSTRUCTION
CO., INC.,
Plaintiff,
v.
DEVELOPERS SURETY AND
INDEMNITY COMPANY,
Defendant.

NAME OF NON-PARTY:
1.

of my present employer is

2.

Case No. 4:20-cv-03149
ELECTION OF NON-PARTY TO
PARTICIPATE IN PROTECIVE
ORDER

.

My present address is

My present employer is

occupation is

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.
, and the address
. My present
.

I have received a copy of the Protective Order in this action. I have read and

understand it. I elect to become a Signatory thereto. Any CONFIDENTIAL information
produced by me will be so designated in accordance with the Protective Order, and will
receive the protections set forth in the Protective Order. I will comply with all of the
provisions of the Protective Order. I will hold in confidence, will not disclose to anyone
unqualified under the Protective Order, and will use only for purposes of the aboveentitled action, any CONFIDENTIAL information, including the substance and any copy,

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summary, abstract, excerpt, index or description of such material that is disclosed to me.
I will return all CONFIDENTIAL information that comes into my possession, and all
documents and things that I have prepared relating thereto, to counsel for the party by
whom I am employed or retained or from whom I received such material, upon request.
3.

I understand if I violate the provisions of the Protective Order, I will be

subject to sanctions by the Court, and that other remedies may be sought against me. I
submit to the jurisdiction of this Court for the purposes of enforcement.
DATED:
SIGNATURE:

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EXHIBIT C
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
SAMPSON CONSTRUCTION
CO., INC.,
Plaintiff,
v.
DEVELOPERS SURETY AND
INDEMNITY COMPANY,
Defendant.

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Case No. 4:20-cv-03149

NOTICE TO WITNESS

You are being shown one or more documents which have been designated as
“Confidential” pursuant to an Order of this Court. Except for providing testimony,
you may not disclose these documents or their contents to any person other than the
attorney who represents you. Further, neither these documents nor their contents
may be used by you for any purpose except that you may use them for your testimony
in connection with this litigation. In any event, you are prohibited from using them
for any business, competitive, personal, private, public, or other non-litigation
purpose. The improper disclosure or use of these documents or their contents may
result in the imposition of sanctions upon you by the Court. If you wish a complete
copy of the Court Order, a copy will be provided to you upon request.