Weisenberger v. Ameritas Mutual Holding Company

Filing 43

PROTECTIVE ORDER. Ordered by Magistrate Judge Susan M. Bazis. (TCL)

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
CYNTHIA WEISENBERGER, individually
and on behalf of all others similarly
situated,

CASE NO: 4-21-CV-3156

Plaintiff,

PROTECTIVE ORDER

vs.
AMERITAS MUTUAL HOLDING
COMPANY,
Defendant.
Upon consideration of the parties’ joint motion for entry of a Protective Order (Filing
No. 39), the Court enters the following Protective Order governing the disclosure of
confidential Discovery Material by a Producing Party to a Receiving Party in this Action.
1)

Definitions. As used in this Order:
a. “Action” refers to the above-captioned litigation.
b. “Discovery Material” includes all information exchanged between the
parties, whether gathered through informal requests or communications
between the parties or their counsel, or gathered through formal discovery
conducted pursuant to Rules 30 through 36, and Rule 45. Discovery
Material includes information within documents, depositions, deposition
exhibits, and other written, recorded, computerized, electronic or graphic
matter, copies, and excerpts or summaries of documents disclosed as
required under Rule 26(a).
c. “Non-Party” will mean any natural person, partnership, corporation,
association, or other legal entity not named as a Party to this Action.
d. “Party” will mean any party to this Action, including all of its officers,
directors, employees, consultants, retained experts, and outside counsel
(and their support staffs).
e. A “Producing Party” is a Party, or a Non-Party either acting on a Party’s
behalf or responding to discovery pursuant to a Rule 45 subpoena, that
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produces Discovery Material in this Action.
f. “Protected Material” will mean any Discovery Material that is designated
as “CONFIDENTIAL,” or as “CONFIDENTIAL – FOR ATTORNEYS’ EYES
ONLY,” or as “CONFIDENTIAL HEALTH INFORMATION.”
g. A “Receiving Party” is a Party that receives Discovery Material from a
Producing Party in this Action.
h. A “Designating Party” is the party that designates material as “Protected
Material” under this Order.
2)

Scope. This Protective Order applies to all Protected Materials produced or

obtained in this case, as well as (i) any information copied or extracted from Protected
Materials; (ii) all physical and electronic copies, excerpts, derivations, summaries, or
compilations of Protected Materials; and (iii) any testimony, conversations, or
presentations by Parties or their Counsel that might reveal Protected Materials.
However, the protections conferred by this Protective Order do not cover the
following information: (i) any information that is in the public domain at the time of
disclosure to a Receiving Party, excluding any information that came into the public
domain as a result of a violation of law or of this Protective Order, or becomes part of
the public domain after its disclosure to a Receiving Party as a result of publication not
involving a violation of this Protective Order, including becoming part of the public record
through trial or otherwise, excluding any information that came into the public domain as
a result of a violation of law or of this Protective Order; and (ii) any information known to
the Receiving Party prior to the disclosure or obtained by the Receiving Party after the
disclosure from a source who obtained the information lawfully and under no obligation
of confidentiality to the Designating Party.
3)

Duration. Even after final disposition of this litigation, the confidentiality

obligations imposed by this Protective Order shall remain in effect until a Producing Party
agrees otherwise in writing or a court order otherwise directs. Final disposition shall be
deemed to be the later of (i) dismissal of all claims and defenses in this Action, with or
without prejudice; and (ii) final judgment herein after the completion and exhaustion of
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all appeals, rehearings, remands, trials, or reviews of this Action, including the time limits
for filing any motions or applications for extension of time pursuant to applicable law.
4)

Confidential Discovery Material. This Protective Order applies to all

confidential Discovery Material produced or obtained in this case. For the purposes of
this Protective Order, “Confidential” material shall include:
a. Commercial information relating to any Party’s business including, but not
limited to, tax data, financial information, financial or business plans or
projections, proposed strategic transactions or other business
combinations, internal audit practices, procedures, and outcomes, trade
secrets or other commercially sensitive business or technical information,
proprietary business and marketing plans and strategies, studies or
analyses by internal or outside experts, competitive analyses, customer or
prospective customer lists and information, profit/loss information, product
or service pricing or billing agreements or guidelines, and/or confidential
project-related information;
b. Personnel data of the parties or their employees, including but not limited
to employment application information; the identity of and information
received from employment references; wage and income information;
benefits information; employee evaluations; medical evaluation and
treatment information and records; counseling or mental health records;
educational records; and employment counseling, discipline, or
performance improvement documentation;
c. Information concerning settlement discussions and mediation, including
demands or offers, arising from a dispute between a Party and a NonParty;
d. Records restricted or prohibited from disclosure by statute; and
e. Any information copied or extracted from the previously described
materials, including all excerpts, summaries, or compilations of this
information or testimony, and documentation of questioning, statements,
conversations, or presentations that might reveal the information contained
within the underlying confidential Discovery Material.
5) Attorneys’ Eyes Only. Counsel for a Producing Party may further
designate confidential Discovery Material as “CONFIDENTIAL – FOR ATTORNEYS’
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EYES ONLY” if such counsel concludes in good faith that the material is or contains nonpublic information that is highly sensitive proprietary information including, but not limited
to, trade secrets, privileged information, or nonpublic technical, financial, personal or
business information. Such information also includes, but is not limited to, information
representing internet security protocols, network security protocols, hardware and
software systems used in the design and implementation of the cyber security system,
intrusion detection software, policies and procedures relating to cyber security,
specifications, or schematics that define or otherwise describe in detail the structure of
software or hardware, disclosure of which to another Party or Non-Party would create a
substantial risk of serious harm that could not be avoided by less restrictive means.
6)

Confidential Health Information. For the purposes of this Protective Order,

Discovery Materials that contain or encompass health information protected by state or
federal law, including, but not limited to, Protected Health Information as defined below
shall be designated “CONFIDENTIAL HEALTH INFORMATION” and include:
a. Information supplied in any form, or any portion thereof, that directly or
indirectly identifies an individual in any manner or for which there is a
reasonable basis to believe could be used to identify the individual and
relates to the past, present, or future physical or mental health or condition
of such individual, the provision of health care, services or supplies to such
individual, or the past, present, or future payment for the provision of health
care to such individual.
b. The following information when it identifies an individual: medical bills,
claim forms, claims data, grievances or appeals, charge sheets, medical
records, medical charts, test results, notes, dictation, invoices, itemized
billing statements, remittance advice forms, explanations of benefits,
checks, notices, and requests, as well as any summaries or compilations
of the information contained in these documents, inasmuch as such
summaries or compilations themselves include Confidential Health
Information.
c. Protected Health Information (“PHI”) as defined by the Health Insurance
Portability and Accountability Act of 1996 (HIPAA) Privacy Rule. 45 C.F.R.
§ 160.103. A HIPAA Covered Entity may disclose PHI in the course of a
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judicial proceeding if certain “satisfactory assurances” are received. This
Protective Order provides the requisite satisfactory assurances that HIPAA
requires. See 45 C.F.R. § 164.512(e)(1)(iv).
d. This Protective Order constitutes a qualified protective order under 45
C.F.R. § 164.512(e)(1)(v)(A)-(B) of HIPAA’s Privacy Rule.
e. This Protective Order recognizes that it is not practicable to identify and
contact all individuals whose names or privileged information may be
contained in such records and that redaction of all such information would
be extremely difficult and would delay the proceedings in this Court.
Therefore, this Protective Order expressly authorizes the disclosure of PHI
of Non-Party individuals notwithstanding any privilege or confidentiality
afforded under state law. That said, a Producing Party may, but is not
required to, elect to redact from any PHI information reflecting the identities
of Non-Parties, such as their names, addresses, phone numbers, social
security numbers, or member identification numbers, as an additional layer
of protection. A Producing Party must give reasonable notice of any
proposed redactions to the Receiving Party. If the Receiving Party believes
the identities are necessary, then the Parties will meet and confer, and if
the issue cannot be resolved, the Receiving Party may raise the issue with
the Court upon a motion. The Receiving Party will retain the burden of
establishing the impropriety of the redactions.
7) Manner of Confidential Designation. A Producing Party shall affix a
designation of “CONFIDENTIAL,” “CONFIDENTIAL – FOR ATTORNEYS’ EYES
ONLY,” OR “CONFIDENTIAL HEALTH INFORMATION” to any Protected Material
produced in this Action.
a. As to documentary information (defined to include paper or electronic
documents, but not transcripts of depositions or other pretrial or trial
proceedings), the Producing Party must affix the legend
“CONFIDENTIAL,” “CONFIDENTIAL – FOR ATTORNEYS' EYES
ONLY,” or “CONFIDENTIAL HEALTH INFORMATION,” to each page
that contains protected material.
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b. If it is not feasible to label confidential Discovery Material as
“CONFIDENTIAL,” “CONFIDENTIAL - FOR ATTOR’EYS' EYES
ONLY,” or “CONFIDENTIAL HEALTH INFORMATION,” the
Producing Party shall indicate via cover letter, slip sheet, or otherwise
at the time of production that the material being produced is
CONFIDENTIAL.
8)

Timing of Designation.
a. Except as otherwise stipulated or ordered, or where discovery is made
available for inspection before it is formally disclosed, Protected Material
that qualifies for protection under this Order must be clearly so designated
before the material is disclosed or produced.
b. If the Producing Party responds to discovery by making Protected Material
available for inspection, the Producing Party need not affix confidential
designations until after the Receiving Party has selected the material it
wants to receive. During the inspection and before the designation, all
material made available for inspection is deemed “CONFIDENTIAL – FOR
ATTORNEYS’ EYES ONLY,” and must be treated as such pursuant to the
terms of this Protective Order. After the Receiving Party has identified the
Discovery Material it wants produced, the Producing Party must determine
which materials, or portions thereof, qualify for protection under this Order,
and designate the materials as “CONFIDENTIAL,” “CONFIDENTIAL – FOR
ATTORNEYS’ EYES ONLY,” and/or “CONFIDENTIAL HEALTH
INFORMATION” as required under this order.

9)

Qualified Recipients. For the purposes of this Protective Order, Protected

Materials may only be viewed or disclosed to an authorized person(hereinafter “Qualified
Recipient”).Protected Materials may also be shown to any person indicated on the face
of the document to be its originator, author, or a recipient of a copy of the relevant
document.
For information designated as “CONFIDENTIAL,” a Qualified Recipient means:
a. The Parties, including any members, council members, officers, board
members, directors, employees, or other legal representatives of the
parties;
b. Legal counsel representing the parties, and members of the paralegal,
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secretarial, or clerical staff who are employed by, retained by, or assisting
such counsel; including vendors who are retained to copy documents or
electronic files, provide technical, litigation support, or mock trial services,
or provide messenger or other administrative support services;
c. Any non-expert witness during any deposition or other proceeding in this
Action, and counsel for that witness;
d. Potential witnesses and their counsel, but only to the extent reasonably
related to the anticipated subject matter of the potential witness’s
deposition, trial, or hearing testimony for this Action, so long as such
persons agree to maintain the confidential Protected Material in confidence
per the terms of this Order, and provided that such persons may only be
shown copies of confidential Protected Material and may not retain any such
material;
e. Consulting or testifying expert witnesses who will be providing professional
opinions or assistance for this Action based upon a review of the
CONFIDENTIAL information, and the staff and assistants employed by the
consulting or testifying experts;
f. 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;
g. The parties’ insurers for this Action, and their staff and assistants, members,
officers, board members, directors or other legal representatives;
h. Court reporters for depositions taken in this Action, including persons
operating video recording equipment and persons preparing transcripts of
testimony;
i.

The court and its staff, any court reporter or typist recording or transcribing
hearings and testimony, and jurors; and

j.

Any auditor or regulator of a party entitled to review the confidential
Protected Material due to contractual rights or obligations, or federal or state
laws, or court orders, but solely for such contractual or legal purposes.

For information designated as “CONFIDENTIAL – FOR ATTORNEYS’ EYES
ONLY” or “CONFIDENTIAL HEALTH INFORMATION,” a Qualified Recipient
means:
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a. Legal counsel (including in house and external counsel) representing
the Receiving Parties, including all clerks, employees, independent
contractors, consultants, investigators, paralegals, assistants,
secretaries, staff and stenographic, computer, audio-visual and clerical
employees and agents thereof when operating under the supervision
of such attorneys;
b. Consulting or testifying experts for the Receiving Party, defined to
include only those experts retained or employed to assist the Receiving
party in preparing for trial or any other proceeding in the Action and
who need access to the CONFIDENTIAL – FOR ATTORNEYS’ EYES
ONLY information or CONFIDENTIAL HEALTH INFORMATION to
provide such assistance, and who are not employed by, or an agent or
representative for, the Receiving Party, nor anticipated to become an
employee, agent or representative of the Receiving Party in the near
future, and who have signed the Acknowledgment and Agreement to
be Bound (“Exhibit A”);
c. If necessary to promote alternative dispute resolution, any mediator or
arbitrator (and their assistants or staff) retained by the parties who
needs access to the CONFIDENTIAL – FOR ATTORNEYS’ EYES
ONLY information or CONFIDENTIAL HEALTH INFORMATION to
assist the parties with resolving the claims of this Action;
d. Professional Vendors who have signed Exhibit A;
e. Court reporters for depositions taken in this Action, including persons
operating video recording equipment and persons preparing transcripts
of testimony; and
f. The court and its staff, any court reporter or typist recording or
transcribing hearings and testimony, and jurors.
10) Dissemination by the Receiving Party. Counsel for the Receiving Party
shall:
a. Require Qualified Recipients who are non-expert witnesses or expert
witnesses and consultants and who receive information designated as
“CONFIDENTIAL” and/or “CONFIDENTIAL – FORATTORNEYS’ EYES
ONLY,” and/or “CONFIDENTIAL HEALTH INFORMATION” to review and
agree to the terms of this Protective Order and execute a copy of the
Agreement attached hereto as Exhibit A before receiving confidential
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Discovery Material.
b. Instruct witnesses, consultants, and outside counsel who assist with case
preparation or represent a witness that disclosure of the information
designated as “CONFIDENTIAL,” “CONFIDENTIAL – FOR ATTORNEYS’
EYES ONLY,” and/or “CONFIDENTIAL HEALTH INFORMATION” is
prohibited as set forth herein.
c. Maintain a list of any Protected Material disclosed and to whom such
Protected Material was disclosed, along with the executed copies of the
Exhibit A Agreement.
The prohibition on disclosing information designated as “CONFIDENTIAL,”
“CONFIDENTIAL – FOR ATTORNEYS’ EYES ONLY,” and/or “CONFIDENTIAL
HEALTH INFORMATION” exists and is enforceable by the court even if the person
receiving the information fails or refuses to sign the Exhibit A Agreement.
11) Duty as to Designations.

Each

Producing

Party

that

designates

information or items as “CONFIDENTIAL,” “CONFIDENTIAL – FOR ATTORNEYS’
EYES ONLY,” and/or “CONFIDENTIAL HEALTH INFORMATION” must exercise
reasonable care to limit any such designation to specific material that qualifies under the
appropriate standards, and designate 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. Broadly described, indiscriminate, or
routinized designations are prohibited.
12) Limitations on Use. All Discovery Material produced in this Action, including
but not limited to Protected Material, that are not also available in the public domain,
shall be used by the Receiving Party only for the purposes of the above-captioned
Action, and not for any business, competitive, personal, private, public, or other purpose
whatsoever, unless permitted by Court order.

Consistent with 45 C.F.R. §

164.512(e)(1)(v), and as to any Protected Health Information requested, counsel and
the Receiving Party:
a. Shall not use or disclose the information for any purpose other than litigating
this Action;
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b. Shall return or destroy the protected health information (including all copies
made) at the end of this Action; and
c. Shall request, use and disclose only the minimum amount necessary to
conduct this Action.
13) Maintaining Confidentiality. Protected Material shall be held in confidence
by each Qualified Recipient to whom it is disclosed, shall be used only for purposes of
this Action, and shall not be disclosed to any person who is not a Qualified Recipient.
Each party, each Qualified Recipient, and all counsel representing any Party or NonParty, shall use their best efforts to maintain all information designated as
“CONFIDENTIAL,” “CONFIDENTIAL – FOR ATTORNEYS’ EYES ONLY,” and/or
“CONFIDENTIAL HEALTH INFORMATION” in such a manner as to prevent access,
even at a hearing or trial, by individuals who are not Qualified Recipients. Nothing herein
prevents disclosure beyond the terms of this Protective Order if the Party claiming
confidentiality consents in writing to such disclosure.
14) Copies. Protected Material shall not be copied or otherwise reproduced by
the Receiving Party, except for transmission to Qualified Recipients, without the written
permission of the Producing Party or, in the alternative, by order of the court. However,
nothing herein shall restrict a Qualified Recipient from loading confidential documents
into document review platforms or programs for the purposes of case or trial preparation
or making working copies, abstracts, digests, and analyses of information designated as
“CONFIDENTIAL,” “CONFIDENTIAL – FOR ATTORNEYS’ EYES ONLY,” and/or
“CONFIDENTIAL HEALTH INFORMATION” under the terms of this Protective Order.
15) Docket Filings. All documents of any nature including, but not limited to,
briefs, motions, memoranda, transcripts, discovery responses, evidence, and the like
that are filed with the court for any purpose and that contain Protected Material 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 Protected Material under restricted
access must comply with the court’s rules and electronic docketing procedures for filing
such motions.
16) Depositions. The following procedures shall be followed at all depositions to
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protect the integrity of all Protected Material
a. Only Qualified Recipients may be present at a deposition in
which Protected Material is disclosed or discussed. The
Disclosing Party will have the right to exclude from attendance
at the deposition, during such time as the Protected Material is
to be disclosed, any person other than the deponent, legal
counsel, the court reporter, and other Qualified Recipients as
defined in this Order.
b. Designations of Protected Material may be made on the record
or designated by a Party within thirty (30) days after receipt of
the final deposition transcript.
c. All deposition testimony which discloses or discusses
information designated as “CONFIDENTIAL,” “CONFIDENTIAL
– FOR ATTORNEYS’ EYES ONLY,” and/or “CONFIDENTIAL
HEALTH INFORMATION” is likewise deemed designated as
“CONFIDENTIAL,” “CONFIDENTIAL – FOR ATTORNEYS’
EYES
ONLY,”
and/or
“CONFIDENTIAL
HEALTH
INFORMATION.”
d. Information designated as “CONFIDENTIAL,” “CONFIDENTIAL
– FOR ATTORNEYS’ EYES ONLY,” and/or “CONFIDENTIAL
HEALTH INFORMATION” may be used at a Non-Party
deposition only if necessary to the testimony of the witness.
17) Challenges to Confidentiality Designations. A Receiving Party that
questions the Producing Party’s confidentiality designation will, as an initial step, contact
the Producing Party in writing and confer in good faith to resolve the dispute. The Parties
shall attempt to resolve such challenge and must begin the process by conferring directly
(in voice-to-voice dialogue) within 7 days of the date of service of notice. If the parties
are unable to resolve the dispute without court intervention, they shall schedule a
conference call with the magistrate judge assigned to the case before engaging in written
motion practice. If a written motion and briefing are necessary and the information in
dispute must be reviewed by the court to resolve that motion, the confidential information
shall be filed under restricted access pursuant to the court’s electronic docketing
procedures. The party that produced the information designated as “CONFIDENTIAL,”
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“CONFIDENTIAL – FOR ATTORNEYS’ EYES ONLY,” and/or “CONFIDENTIAL
HEALTH INFORMATION” bears the burden of proving it was properly designated. The
party challenging a “CONFIDENTIAL,” “CONFIDENTIAL – FOR ATTORNEYS’ EYES
ONLY,” and/or “CONFIDENTIAL HEALTH INFORMATION” designation must obtain a
court order before disseminating the information to anyone other than Qualified
Recipients.
18) Use at Court Hearings and Trial. Subject to the Federal Rules of Evidence,
Protected Material may be offered and received into evidence at trial or at any hearing
or oral argument. A party agreeing to the entry of this order does not thereby waive the
right to object to the admissibility of the material in any proceeding, including trial. Any
party may move the court for an order that Protected Material be reviewed in camera or
under other conditions to prevent unnecessary disclosure.
19) Return or Destruction of Documents. Upon final termination of this Action,
including all appeals, each party shall make reasonable efforts to destroy all Protected
Material. 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,” “CONFIDENTIAL – FOR ATTORNEYS’ EYES ONLY,” and/or
“CONFIDENTIAL HEALTH INFORMATION,” 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
counsel in the future.
Notwithstanding the foregoing, Counsel for each Party may retain all pleadings,
briefs, memoranda, motions, and other documents filed with the Court that refer to or
incorporate Protected Material and will continue to be bound by this Order with respect
to all such retained information. Further, attorney work product materials that contain
Protected Material need not be destroyed, but, if they are not destroyed, the person in
possession of the attorney work product will continue to be bound by this Protective
Order with respect to all such retained information.
20) Modification. This Protective Order is entered without prejudice to the right
of any party to ask the court to order additional protective provisions, or to modify, relax
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or rescind any restrictions imposed by this Protective Order when convenience or
necessity requires. Disclosure other than as provided for herein shall require the prior
written consent of the Producing Party, or a supplemental Protective Order of the court.
21) Additional Parties to Litigation. In the event additional parties are joined in
this Action, they shall not have access to Protected Material until the newly joined party,
by its counsel, has executed and, at the request of any party, filed with the court, its
agreement to be fully bound by this Protective Order.
22) Sanctions.
a. Any Party subject to the obligations of this order who is determined by the

court to have violated its terms may be subject to sanctions imposed by
the court under Rule 37 of the Federal Rules of Civil Procedure and the
court’s inherent power.
b. Confidentiality designations that are shown to be clearly unjustified or that

have been made for an improper purpose (e.g., to unnecessarily prolong
or encumber the case development process or to impose unnecessary
expenses and burdens on other parties) expose the designating party to
sanctions. Upon discovering that information was erroneously designated
as CONFIDENTIAL, CONFIDENTIAL – FOR ATTORNEYS’ EYES ONLY,
and/or CONFIDENTIAL HEALTH INFORMATION, the Producing Party
shall promptly notify all other Parties of the improper designation
23) Inadvertent Disclosure of Protected Material.
a. A Producing Party that inadvertently fails to properly designate Discovery

Material as “CONFIDENTIAL,” “CONFIDENTIAL – FOR ATTORNEYS’
EYES ONLY,” and/or “CONFIDENTIAL HEALTH INFORMATION” shall
have 14 days from discovering the oversight to correct that failure. Such
failure shall be corrected by providing written notice of the error to every
Receiving Party.
b. Any Receiving Party notified that Protected Material was received without

the appropriate confidentiality designation as authorized under this order
shall make reasonable efforts to retrieve any such documents distributed
to persons who are not Qualified Recipients under this order, and as to
Qualified Recipients, shall exchange the undesignated or improperly
designated documents with documents that include the correct
“CONFIDENTIAL,” “CONFIDENTIAL – FOR ATTORNEYS’ EYES ONLY,”
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and/or “CONFIDENTIAL HEALTH INFORMATION” designation.
c. If a Receiving Party learns that it has disclosed Protected Material to any

person or in any circumstance not authorized under this Protective Order,
the Receiving Party must immediately (a) notify the Designating Party in
writing what was disclosed and to whom, (b) use its best efforts to retrieve
all Protected Materials improperly disseminated, including all copies, (c)
inform the person or persons to whom such 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” that is
attached hereto as Exhibit A.
24) Disclosure of Privileged or Work Product Discovery Material.
a. The production of attorney-client privileged, or work-product protected
electronically stored information (“ESI”) or paper documents, whether
disclosed inadvertently or otherwise, is not a waiver of the privilege or
protection from discovery in this case or in any other federal or state
proceeding. This Protective Order shall be interpreted to provide the
maximum protection allowed by Federal Rule of Evidence 502(d). Nothing
contained herein is intended to or shall serve to limit a party’s right to
conduct a review of documents, ESI or information (including metadata) for
relevance, responsiveness and/or segregation of privileged and/or
protected information before production.
b. Any party who discloses documents that are privileged or otherwise immune
from discovery shall promptly upon discovery of such disclosure, advise the
Receiving Party and request that the documents be returned, deleted, or
destroyed. The Receiving Party shall promptly return such produced
documents or certify their deletion or destruction, including all copies, within
14 days of receiving such a written request. The Receiving Party’s return,
deletion, or destruction of information pursuant to this Section does not
waive its right to challenge any claim of privilege, confidentiality, or other
protection.

25) Protected Material Sought in Other Proceedings.

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a.

In General. If a Party is served with a document request, subpoena, court

order, or any other request for information (including, but not limited to, requests in
litigation, administrative proceedings, arbitration, or government inquiries) that seeks
disclosure of any Protected Materials, that Party must:
i. Promptly notify in writing the Designating Party. Such notification
shall include a copy of the request;
ii. Promptly notify in writing the person who caused the request to issue
that some or all of the material covered by the request is subject to
this Order. Such notification shall include a copy of this Order; and
iii. Cooperate with respect to all reasonable procedures sought to be
pursued by the Designating Party whose Protected Material may be
affected.
b.

Protection. 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,” “CONFIDENTIAL – FOR ATTORNEYS’ EYES ONLY,”
and “CONFIDENTIAL HEALTH INFORMATION” before a determination by the court from
which the subpoena or order issued regarding the Designating Party’s motion, unless the
Party has obtained the Designating Party’s permission or such production is required by
law. The Designating Party shall bear its own expenses of seeking protection in that 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.
26) Miscellaneous.
a. Nothing within this Protective Order will prejudice the right of any Party to
object to the production of any discovery material on the grounds that the
material is protected as privileged or as attorney work product.
b. Nothing in this Protective Order will bar counsel from rendering advice to
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their clients with respect to this litigation and, in the course thereof, relying
upon any information designated as Protected Material, provided that the
contents of the information must not be disclosed.
c. This Protective Order will be without prejudice to the right of any Party to
oppose production of any information for lack of relevance or any other
ground other than the mere presence of confidential information.
d. Nothing within this Protective Order will be construed to prevent disclosure
of confidential information if such disclosure is required by law or by order
of the Court.
e. All Parties and Non-Parties will treat all Protected Material and all copies
of Protected Material as subject to this Order unless and until the Court
orders otherwise or the Parties mutually stipulate otherwise.
f. The restrictions and obligations set forth within this Protective Order will
not apply to any information that: (a) the Parties agree should not be
designated as Protected Material; (b) the Parties agree, or the Court rules,
is already public knowledge; (c) the Parties agree, or the Court rules, has
become public knowledge other than as a result of disclosure by the
Receiving Party, its employees, or its agents in violation of this Order; or
(d) has come or will come into the Receiving Party’s legitimate knowledge
independently of the production by the Producing Party. Prior knowledge
must be established by pre-production documentation.
g. The restrictions and obligations within this Protective Order will not be
deemed to prohibit discussions of any confidential information with anyone
if that person already has or obtains legitimate possession of that
information. Nothing in this Protective Order shall impose any restriction
on the use or disclosure by a Party of its own documents or information.
h. Transmission by email or some other currently utilized method of
transmission is acceptable for all notification purposes within this
Protective Order.
DATED this 1st day of August, 2022.
BY THE COURT:
s/ Susan M. Bazis
United States Magistrate Judge

16

4:21-cv-03156-JMG-SMB Doc # 43 Filed: 08/01/22 Page 17 of 17 - Page ID # 439

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA

CYNTHIA WEISENBERGER, individually
and on behalf of all others similarly
situated,

CASE NO: 4-21-CV-3156

EXHIBIT A
Plaintiff,
vs.
AMERITAS MUTUAL HOLDING
COMPANY,
Defendant.
ACKNOWLEDGEMENT AND AGREEMENT TO BE BOUND
I hereby acknowledge that I am about to receive Protected Material supplied in
connection with the above-captioned case. I understand that such information is being
provided to me pursuant to the terms and restrictions of the Protective Order entered in
this case. I have been given a copy of the Protective Order, have read the Protective
Order, and agree to be bound by its terms. I understand that Protected Material as defined
in the Protective Order, or any notes or other records that may be made regarding any
such materials, shall not be disclosed to any persons except as permitted by the
Protective Order.

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