Reynolds v. Western Sugar Cooperative

Filing 48

ORDER granting 47 the parties' Joint Motion for Protective Order Ordered by Magistrate Judge Cheryl R. Zwart.(CEW) Modified on 1/31/2019 to correct description. This filing is an Order, rather than a "Text Order" (CEW).

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
TRENTON REYNOLDS,

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Plaintiff,
vs.
WESTERN SUGAR COOPERATIVE,
Defendant.

Case No. 7:18cv3064
PROTECTIVE ORDER

THIS MATTER is before the Court on the parties’ Joint Motion and Stipulation for
Protective Order (Filing No. 47). The Court finds that the discovery and evidence in this
case will include information the parties consider to be confidential, proprietary, and
trade secrets. Accordingly, the Court finds that this Protective Order should be and
hereby is granted as follows.
FACTS
This matter arises from an incident which took place at Western Sugar
Cooperative’s facility located in Scottsbluff, Nebraska on January 6, 2017. Plaintiff was
injured while cleaning inside a tank/vessel at the facility.
The parties anticipate that documents will be requested and produced in the
course of this case which are confidential, proprietary, and may contain trade secrets.
The parties agree that the confidential information and documents produced and
discussed in this case should be protected as further set forth herein.
PROTECTIVE ORDER
IT IS THEREFORE ORDERED that the confidential, proprietary, and trade secret
information and documents received and produced by the parties and filed with this
Court may be utilized in this case only in accordance with the following terms:
1.
Confidential Information. “Confidential Information” as used herein means
confidential, proprietary, and trade secret information as designated by the parties, and
other unpublished and confidential information relating to the parties. Such information
may include any type or classification of information which is designated as
“Confidential Information” by the supplying party, whether revealed during a hearing,
deposition, in a document, in an interrogatory answer, or otherwise. “Document” as
used herein refers to any written, graphic, or electronic information, no matter how
produced, recorded, stored or reproduced and includes recordings or other
electronically stored data, together with the programming instructions and other written
material necessary to understand such recordings and data. In designating information
as Confidential Information the supplying party will make such designation only as to
that information which that party in good faith believes to be confidential. All documents
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and every portion thereof designated as “Confidential Information” shall constitute
confidential information for the purposes of this Order and shall be used by the receiving
party only for the preparation for and conduct of proceedings herein and not for any
business or other purpose whatsoever.
2.
Qualified Recipients. For the purposes of this Order, and subject to the
provisions of this paragraph, the persons authorized to receive “Confidential
Information” (hereinafter “qualified recipient”) shall include only:
a) The named parties and officers, directors, employees, board members, elected
officials, and in-house legal counsel, of the parties;
b) Legal counsel representing the parties, and members of the paralegal,
secretarial, or clerical staff who are employed by, retained by, or assisting such
counsel;
c) The Court, court reporters who take and transcribe testimony, as well as
necessary clerks of court, law clerks, and administrative assistants;
d) Consulting or testifying expert witnesses who assist counsel in the preparation of
this case;
e) Any mediator retained by the parties in an effort to mediate and/or settle the
claims made in this action;
f) Any assistant, paralegal, stenographic, secretarial or clerical personnel employed
by, retained by, or assisting a qualified person in this case;
g) Any other persons agreed to by the parties in writing, either as to all or any
confidential information in this case.
h) The empaneled jury in this matter.
Except as provided herein, Confidential Information produced in this case shall be
disclosed by the receiving party and by the Court only to Qualified Persons who shall
have read this Protective Order. Provided, however, that nothing herein shall prevent
disclosure beyond the terms of this Protective Order if the party claiming confidentiality
consents in writing to such disclosure. Requests by a party to disclose Confidential
Information which would otherwise be in violation of the terms of this Protective Order
shall be made in writing. Nothing herein shall require the Court, court reporters who
take and transcribe testimony, as well as necessary clerks of court, law clerks and
administrative assistants, and the empaneled jury in this matter to have read this
protective order prior to reviewing confidential information or hearing confidential
testimony and information.
3.
Maintenance of Confidentiality. Confidential information shall be
maintained confidentially 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
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not a qualified recipient. Each party, the Court, each qualified recipient, and all counsel
representing any party, shall use their best efforts to maintain all produced confidential
information in such a manner as to prevent access, including at depositions, hearings,
and trial, by individuals who are not qualified recipients.
4.
Copies. Confidential information 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 further
order of the Court. However, nothing herein shall restrict a qualified recipient from
making working copies, abstracts, digests, and analyses of confidential information
which shall be maintained confidentially as Confidential Information under the terms of
this Order.
5.
Filing Confidential Information. All documents of any nature including, but
not limited to, index of evidence, briefs, motions, memoranda, transcripts, and the like,
that are filed with the Court for any purpose and that contain confidential information
shall be filed in accordance with NEGenR 1.3(a)(1)(B) as appropriate for restricted or
sealed documents.
6.
Depositions. The following procedures shall be followed at all depositions
to protect the integrity of all confidential information:
a) Only qualified recipients may be present at a deposition in which confidential
information is disclosed or discussed.
b) All testimony elicited during a deposition at which confidential information is
disclosed or discussed is deemed to be confidential information and the
deposition transcript shall be designated as confidential information.
c) Material designated as confidential may be used at a non-party deposition
only if necessary to the testimony of the witness and after written notification of
the intent to use such material prior the deposition or notification of the intent to
use such material during the deposition; or
d) During a deposition, a confidential designation may be made at any time
when counsel reasonably believes that testimony regarding confidential
information is about to be provided, or alternatively, has been provided. If a party
fails to designate deposition testimony as confidential during a deposition,
counsel shall nevertheless have ten days following receipt of the deposition
transcript to designate the transcript as confidential.
7.
Trial and Court Proceedings. Prior to the trial of this action and hearings
in which the parties anticipate Confidential Information will be discussed and/or offered
as evidence, the attorneys for the parties shall meet and attempt to agree on an
appropriate proposed order to submit to the Court regarding the confidential status, if
any, to be afforded documents, testimony or other information disclosed during the
course of the trial. Absent a contrary order from the Court, after the parties meet and
confer, there shall be no restriction on the identification or use of confidential
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documents, testimony or other information during trial or at any hearing where evidence
is received by the Court.
8.
Return or Destruction of Documents. Upon final termination of this
proceeding, including all appeals, each Qualified Recipient shall at its option destroy or
return to the producing party all original materials produced and designated as
confidential information, and shall destroy, in whatever form stored or reproduced, all
other materials including, but not limited to, pleadings, correspondence, memoranda,
notes and other work product materials that contain or refer to Confidential Information.
This Protective Order shall survive the final termination of this action, and shall be
binding on the parties, their legal counsel, and qualified recipients at all times in the
future.
9.
Modification. This Order is entered without prejudice to the right of any
party to apply to the Court for any additional protective order, or to relax or rescind any
restrictions imposed by this Protective Order when convenience or necessity requires.
The existence of this Protective Order shall not be used by any party as a basis for
discovery that is not otherwise proper under applicable law and rules of discovery.
Inadvertent production by a party or third party of privileged discovery material is not
intended to waive any applicable privilege. A party notified by another party or third
party of inadvertent production of Confidential Information and/or privileged material will
return all copies of such material to the party claiming the privilege within seven days of
the receipt of the notification of the inadvertent disclosure. If the receiving party disputes
the claim of privilege or the claim the disclosure was inadvertent, the burden is on the
receiving party to seek a ruling from the Court on the applicability of the privilege before
the materials can be used in any way. In the event of a dispute about the applicability of
a privilege, the material shall be treated as Confidential Information under the terms of
this Protective Order pending the resolution of the dispute.
10.
Additional Parties to Litigation. In the event additional parties join or are
joined in this action, they shall not have access to Confidential Information 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 Stipulated Order.
IT IS SO ORDERED this 31st day of January 2019.
BY THE COURT:
______________________________
Magistrate Judge Cheryl R. Zwart
32-187/741267

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