Holmquist v. Tyson Fresh Meats, Inc.
Filing
31
PROTECTIVE ORDER - This matter is before the Court on the parties' Joint Stipulation for Protective Order. (Filing No. 30 .) The Stipulation is approved. Ordered by Magistrate Judge Susan M. Bazis. (LKO)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
JOHN HOLMQUIST,
Civil No. 7:18-cv-5003
Plaintiff,
v.
PROTECTIVE ORDER
TYSON FRESH MEATS, INC.,
Defendant.
This matter is before the Court on the parties’ Joint Stipulation for Protective Order. (Filing
No. 30.) The Stipulation is approved.
Accordingly, a protective order is entered as follows:
1.
In this action, the Parties are seeking Confidential Information (as defined in
Paragraph 2 below). The Parties also anticipate seeking additional Confidential Information during
discovery and that there will be questioning concerning Confidential Information in the course of
depositions. The Parties assert that the need for this Protective Order also applies to any information
or materials produced by a non-party as a result of discovery subpoenas or other requests. The Parties
have entered into this Stipulation and request the Court enter the Protective Order for the purpose of
preventing the disclosure and use of Confidential Information by any Party or non-party except as set
forth herein. The terms of this Protective Order shall apply to any information or materials produced
by any Party or non-party as part of discovery in this action. Each and every attorney with the law
firms representing the Parties in this case shall be deemed to be subject to this Protective Order and
shall be deemed to have actual knowledge of the restrictions herein.
2.
Definition of “Confidential Information.” Under the terms of this Protective Order,
“Confidential Information” means any document, file, portions of files, video or audio recordings of
testimony, transcribed testimony, or responses to discovery requests, including any extract, abstract,
chart, summary, note, or copy made therefrom – not made available to the public – and designated by
one of the Parties or a non-party (in the manner provided in Paragraph 3 below) as containing or
comprising confidential or sensitive information or other trade secrets or proprietary business
information. In connection with this Stipulation and Protective Order, Confidential Information shall
constitute one of two categories of information or materials, as follows:
a.
“Confidential Material” shall be documents, information or materials the
release of which would harm one of the Parties, including but not limited to,
medical information related to Holmquist, non-public financial or business
records, personnel records of non-parties, internal personnel policies and
procedures of Tyson and any affiliate entity, and other information which is
private in nature and may have the effect, if not deemed to be confidential, of
embarrassing, humiliating or otherwise invading the privacy of a Party, and
could potentially cause significant public and private harm, humiliation and
exposure to the Parties. Such information or materials may only be so
designated if they are not otherwise publicly available.
b.
“Confidential – Attorneys’ Eyes Only” shall be information or materials which
relates to highly sensitive financial, personnel and proprietary information for
which any unprotected disclosure would harm the commercial or business
interests of the designating Party. Such information or materials may only be
so designated if they are not otherwise publicly available.
3.
Designation of “Confidential Information.”
Where any kind of Confidential
Information is produced, provided or otherwise disclosed by a Party or a non-party in response to any
discovery request or subpoena, including by means of entry onto land or premises or by inspection of
books, records, documents, or tangible things, such Confidential Information will be designated in
the following manner:
a.
By imprinting the words “Confidential” or “Confidential – Attorneys’ Eyes
Only,” as appropriate, on at least the first page or cover of any document
produced;
b.
By imprinting the words “Confidential” or “Confidential – Attorneys’ Eyes
Only,” as appropriate, next to or above any response to a discovery request;
2
c.
With respect to video or audio recordings, for such recordings maintained via
a physical storage device, by imprinting the words “Confidential” or
“Confidential – Attorneys’ Eyes Only,” as appropriate on the outside of the
device, or, for such recordings maintained via digital file, inclusion of the
words “Confidential” or “Confidential – Attorneys’ Eyes Only,” as appropriate
in the name of the file; and
d.
With respect to transcribed testimony, either during the deposition on the
record, or by giving written notice to opposing counsel sufficient to designate
such portions as “Confidential” or “Confidential – Attorneys’ Eyes Only,” as
appropriate, no later than twenty (20) calendar days after receipt of the
transcribed testimony.
During a deposition, the deponent or his counsel, or any other counsel of record
present at the deposition, may give notice on the record that testimony about
to be given is deemed “Confidential” or “Confidential – Attorneys’ Eyes
Only,” as appropriate. If during the course of a deposition, a document or other
material that has previously been designated “Confidential” or “Confidential –
Attorneys’ Eyes Only” is used, then that particular portion of the deposition
shall be deemed to be subject to the same level of protection accorded to the
designated document without further need of any written designation of the
deposition transcript by the designating party.
4.
Restrictions on Confidential Information. All Confidential Information provided by a
Party or a non-party in response to a discovery request, during a deposition, or as transcribed
testimony shall be subject to the following restrictions:
a.
“Confidential Material”:
i.
“Confidential Material” shall be used only for the purpose of this
litigation and not for any business or other purpose whatsoever.
ii.
“Confidential Material” shall not be communicated or disclosed by any
Party’s counsel or a Party in any manner, either directly or indirectly,
to anyone except for purposes of this litigation.
iii.
“Confidential Material” may only be disclosed or communicated to the
following persons:
(a)
The Parties and employees or agents of the Parties;
(b)
The Parties’ outside counsel of record in this action and any
regular or temporary employees of such counsel to whom it is
3
necessary that the information or material be shown for
purposes of this litigation;
(c)
(d)
Independent document reproduction services or document or
video recording and retrieval services;
(f)
Non-technical jury or trial consulting services retained by
counsel for a Party;
(g)
Expert witnesses retained or consulted by the Parties in
connection with this litigation;
(h)
Witnesses;
(i)
A mediator agreed upon by the parties; and
(j)
b.
Graphics or design services firms retained by counsel for a
Party for purposes of preparing demonstrative or other exhibits
for deposition, trial or other proceedings;
(e)
iv.
The Parties’ in-house counsel;
The finder of fact or concluder of law.
Undertaking: Confidential Materials may be disclosed only to the
persons listed in Paragraph 4.a.iii, subparagraphs (d) – (i) only after
such person(s) has executed a declaration in the form attached as
Exhibit A.
“Confidential – Attorneys’ Eyes Only” Material:
i.
ii.
5.
“Confidential – Attorneys’ Eyes Only Material shall be used only for
the purpose of this litigation and may not be used for any other purpose
outside the reasonable conduct of this case.
The receiving Party’s counsel shall ensure that the information is
disclosed or communicated only to persons as designated above in
Paragraph 4.a.iii, subparagraphs (b) and (c).
“Confidential –
Attorneys’ Eyes Only” may be disclosed to those persons listed in
Paragraph 4.a.iii, subparagraph (g) only after such person(s) have
executed a declaration in the form attached as Exhibit B.
Use of Confidential Materials in Court Proceedings. In the event any material
designated “Confidential Material” or “Confidential – Attorneys’ Eyes Only” is used in any court
4
filing or legal proceeding, including, but not limited to, its use at trial, it shall not lose its confidential
status as between the Parties through such use. Any memorandum, brief, or other pleading that
contains Confidential Information in the body of the document shall be prominently labeled on the
applicable pages with the following legend:
“Contains Confidential Information Subject To
Protective Order.” All Confidential Material filed with the Court, and all portions of pleadings,
motions or other papers filed with the Court that disclose any Confidential Information, shall be filed
under seal pursuant to any rules or orders pertaining to the filing of information and documents under
seal.
6.
Continuing Duty. The termination of this action shall not relieve counsel, the Parties,
or other persons obligated hereunder from their responsibility to maintain the confidentiality of
Confidential Information pursuant to this Protective Order, and the Court shall retain continuing
jurisdiction to enforce the terms of this Protective Order. The Parties agree that in no event shall the
obligations of this Protective Order continue beyond two years from the final disposition of this
matter, by order, settlement, or otherwise.
7.
Protective Order Not Admission. By agreeing to the entry of this Protective Order,
the Parties adopt no position as to the authenticity or admissibility of documents produced subject to
it.
Furthermore, by producing or receiving information or material designated “Confidential
Material” or “Confidential – Attorneys’ Eyes Only” or by otherwise complying with the terms of this
Protective Order, such conduct shall not be construed as an admission as to the relevance, authenticity,
foundation or admissibility of any document, material, transcript or other information.
8.
Obligations After Final Disposition. The provisions of this Protective Order shall,
absent written permission of the producing Party, or further order of the Court, continue to be binding
throughout and after the conclusion of this action, including any appeals or remands. Within sixty
5
(60) days after receiving notice of the entry of an order, judgment or decree finally disposing of this
action, including any appeals therefrom, all persons having received Confidential Information shall
return such materials and all copies thereof (including summaries and excerpts) to counsel for the
producing Party or shall certify destruction thereof. The outside counsel for each Party shall be
entitled to retain court papers, deposition transcripts, and attorney work product that contains, reflects
or summarizes Confidential Information, provided that such counsel, and employees of such counsel,
shall not disclose any such Confidential Information to any person or entity except pursuant to a
written agreement with the producing Party. All materials returned to the Parties or their counsel by
the Court likewise shall be disposed of in accordance with this Paragraph.
9.
No Bar to Seeking Further Relief. Nothing in this Protective Order shall preclude any
Party from filing a motion seeking further or different protection from the Court or from filing a
motion with respect to the manner in which Confidential Information shall be treated at trial.
10.
Treatment of Confidential Information at Trial.
In the event any Confidential
Information is to be used in any court proceeding or any appeal therefrom, counsel for the Parties
shall confer on such procedures as are necessary to protect the confidentiality of any documents,
information, and transcripts used in the course of any such proceeding, and shall move the Court to
incorporate such procedures.
11.
Examination of Witnesses Regarding “Confidential Information.” Any person may
be examined as a witness at trial or during a deposition concerning any information or material that
has been designated “Confidential Information” which that person had lawfully received or authored
prior to and apart from this action. During such examination, any such witness may be shown
information or material designated “Confidential Information” which appears on its face or from other
documents or testimony to have been received or authored by that witness. Whenever it appears from
6
the face of a document that has been designated “Confidential Information” that a person has been
the author or lawful recipient of that document, such person may be shown, but not permitted to retain
custody of, that specific document shown to them despite the restrictions on access set out in
Paragraph 4 of this Protective Order.
12.
Inadvertent Production of Undesignated/Misdesignated Confidential Information. If
a Party inadvertently produces Confidential Information without marking it as such, or with a
designation that is insufficient for the level of confidentiality that should be attached to the material,
it may be disclosed to others until the receiving Party becomes aware of the error, unless it appears
from the face of the material that it contains nonpublic, confidential, proprietary, commercially
sensitive, or trade secret information of the producing Party. As soon as the receiving Party becomes
aware of the inadvertent production, the information must be treated as if it had been timely and
correctly designated under this Protective Order, and the receiving Party must endeavor in good faith
to obtain all copies of the document which it distributed or disclosed to persons not authorized to have
access to such information, as well as any copies made by such persons.
13.
Inadvertent Production of Privileged Materials. If a Party inadvertently produces a
document that it later discovers to be a privileged document, the production of that document shall
not be deemed to constitute a waiver of any applicable privileges. In such circumstances, if the
receiving Party discovers such inadvertent disclosure, the receiving Party must immediately notify
the producing Party and return or confirm destruction of the privileged materials. Within five (5)
business days of receiving such notification, the receiving Party shall return or confirm destruction of
all such materials, including any summaries thereof. Such return or confirmation of destruction shall
not preclude the receiving Party from seeking to compel production of the materials for reasons other
than its inadvertent production.
7
14.
Binding Effect of Protective Order Before Entry by Court. The Parties agree to be
bound by the terms of this Stipulation and Protective Order pending its entry by the Court, or pending
entry of an alternative thereto. Any violation of the terms of this Stipulation prior to its entry, or prior
to the entry of an alternative order, shall be subject to the same sanctions and penalties as if this
Stipulation had been entered as an order of the Court.
15.
Obligations Under Subpoena in Other Action. If a Party is (a) subpoenaed in another
action, (b) served with a demand in another action to which it is a party, or (c) served with any other
legal process by one not a Party to this action, seeking Confidential Information which it received
from the other Party, the Party so served shall give prompt, written notice to the producing Party, by
hand or electronic service, within ten (10) business days of its receipt of such subpoena, demand, or
legal process.
IT IS SO ORDERED.
Dated this 4th day of January, 2019.
BY THE COURT:
s/ Susan M. Bazis
United States Magistrate Judge
8
EXHIBIT A – “Confidential Material”
DECLARATION OF _____________________
___________________ swears or affirms and states under penalty of perjury:
1.
I have read the Protective Order in this action, John Holmquist v. Tyson Fresh Meats,
Inc., Civil Action No. 7:18-cv-5003 in the United States District Court for the District of Nebraska, a
copy of which is attached to this Declaration.
2.
I have been informed by ______________________, Esq., counsel for
___________________, that I will be given access to information, documents or other materials that
have been defined as “Confidential Material” under the Protective Order.
3.
I promise that I have not and will not divulge, or undertake to divulge, to any person
or recording device any “Confidential Material,” or any other Confidential Information, shown or
told to me except as authorized in the Protective Order. I will not use the Confidential Information
for any purpose other than this litigation. I will not use the Confidential Information for any
commercial purpose.
4.
For the purposes of enforcing the terms of the Protective Order, I hereby submit myself
to the jurisdiction of the Court in the civil action referenced above.
5.
I will abide by the terms of the Protective Order.
(Signature)
(Print or Type Name)
Address:
Telephone No.: (
9
)
EXHIBIT B – “Confidential – Attorneys’ Eyes Only” Material
DECLARATION OF _____________________
___________________ swears or affirms and states under penalty of perjury:
1.
I have read the Protective Order in this action, John Holmquist v. Tyson Fresh
Meats, Inc., Civil Action No. 7:18-cv-5003 in the United States District Court for the District of
Nebraska, a copy of which is attached to this Declaration.
2.
I have been informed by ____________________, Esq., counsel for
____________________, that I will be given access to information, documents or other materials
that have been defined as “Confidential Material” or “Confidential – Attorneys’ Eyes Only” and
which were produced by the opposing Party subject to the Protective Order.
3.
I promise that I have not and will not divulge, or undertake to divulge, to any person
or recording device any “Confidential Material” or “Confidential – Attorneys’ Eyes Only”
Material or any other Confidential Information, shown or told to me except as authorized in the
Protective Order. I will not use the Confidential Information for any purpose other than this
litigation. I will not use the Confidential Information for any commercial purpose.
4.
For the purposes of enforcing the terms of the Protective Order, I hereby submit
myself to the jurisdiction of the Court in the civil action referenced above.
5.
I will abide by the terms of the Protective Order.
(Signature)
(Print or Type Name)
Address:
Telephone No.: (
)
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?