Oriental Trading Company, Inc. v. American Safety Indemnity Company

Filing 40

PROTECTIVE ORDER granting 39 Stipulated Motion for Protective Order. Ordered by Magistrate Judge F. A. Gossett. (CLS, )

IN THE UNTIED STATES DISTRICT COURT F O R THE DISTRICT OF NEBRASKA O R I E N T A L TRADING COMPANY, I N C ., a Delaware Corporation, Plaintiff, vs. A M E R I C A N SAFETY INDEMNITY C O M P A N Y , an Oklahoma Corporation, Defendant. ) ) ) ) ) ) ) ) ) ) )

8 :0 8 -C V -3 2 7 P R O T E C T I V E ORDER

W h e re a s pretrial discovery in this action will necessarily involve the disclosure of tra d e secrets or confidential research, development, product or commercial information of b o th parties and of non-parties from whom discovery may be sought; and W h e re a s the parties have in good faith conferred and have agreed upon the terms of a Protective Order and for good cause shown; therefore I T IS ORDERED pursuant to Fed. R. Civ. P. 26(c) that the parties' Stipulation and P r o te c tiv e Order (Doc. 39) is granted and approved as follows: 1. 1 .1 Scope of Protection T h is Protective Order shall govern any record of information, designated

p u rsu a n t to Paragraph 2 of this Protective Order, produced in this action, including all d e sig n a te d deposition testimony, all designated testimony taken at a hearing or other pro ceeding , all designated deposition exhibits, interrogatory answers, admissions, documents a n d other discovery materials, whether produced informally or in response to interrogatories, r e q u e s t s for admissions, requests for production of documents or other formal method of d is c o v e ry. 1.2 T h is Protective Order shall also govern any designated record of information

p ro d u c e d in this action pursuant to required disclosures under any federal procedural rule o r District of Nebraska local rule, and any supplementary disclosures thereto.

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T h is Protective Order shall apply to the parties and any nonparty from whom

d isc o v e ry may be sought and who desires the protection of this Protective Order (collectively h ere in referred to as a "party" or the "parties"). 2. 2 .1 D e s ig n a tio n . E a c h party shall have the right to designate as confidential and subject to this

P r o te c tiv e Order any information produced by it in this action which contains, reflects, or o th e rw ise discloses confidential technical, business or financial information

(" C O N F I D E N T IA L Information") including any information subject to protection under any p ro v is io n of Nebraska statutory or case law. This designation shall be made by stamping or o th e r w i s e labeling each page or thing containing confidential information with the legend C O N F ID E N T IA L -S U B JE C T TO PROTECTIVE ORDER prior to its production or, if i n a d v e rte n tly produced without such legend, by furnishing written notice to the receiving p a rty that the information shall be considered confidential under this Protective Order. The p a rtie s will use reasonable care to avoid designating any documents or information C O N F I D E N T IA L -S U B J E C T TO PROTECTIVE ORDER that are generally available to the p u b lic . 2 .2 E a c h party shall have the right to designate as restricted to review by those

c a t e g o r ie s of individuals listed in Paragraphs 4.1(a) - 4.1(g) and subject to this Protective O r d e r any information produced in this action which contains, reflects, or otherwise d is c lo s e s (1) trade secrets, (2) research and development or other highly sensitive technical in f o rm a tio n , or (3) highly sensitive business-related financial information (collectively, " H IG H L Y SENSITIVE CONFIDENTIAL information"). This designation shall be made b y stamping or otherwise labeling each page or thing containing confidential information w ith the legend HIGHLY SENSITIVE CONFIDENTIAL prior to its production or, if in a d v e rte n tly produced without such legend, by furnishing written notice to the receiving p a rty that the information shall be considered HIGHLY SENSITIVE CONFIDENTIAL u n d e r this Protective Order. To the extent that material is marked HIGHLY SENSITIVE C O N F I D E N T IA L , such material shall be revealed to or used by limited categories of ind ividu als, as provided for in Paragraph 4.2, and shall not be communicated in any manner, -2-

e ith e r directly or indirectly, to any person or entity not permitted disclosure pursuant to this P r o te c tiv e Order. Any copies of such material, abstracts, summaries or information derived th e re f ro m , and any notes or other records regarding the contents thereof, shall also be d e e m e d HIGHLY SENSITIVE CONFIDENTIAL, and the same terms regarding c o n f id e n tiality of these materials shall apply as apply to the originals. Use of this highly re stric tiv e designation is limited to information of the highest sensitivity. The parties will u s e reasonable care to avoid designating any documents or information HIGHLY S E N S IT IV E CONFIDENTIAL for which the designating party does not have a good faith b e lie f that the documents or information satisfy the criteria set forth in this Paragraph 2.2. H I G H L Y SENSITIVE CONFIDENTIAL information, or information derived therefrom, s h a ll be used only for purposes directly related to this action, and for no other purpose w h a ts o e v e r, except by consent of all of the parties or order of the Court. 2.3 T o the extent that any party has, prior to the date that this Order is entered,

p ro d u c e d to the other side materials that the producing party has marked with any c o n f id e n tia lity designation, all such materials shall be considered to have been designated u n d e r this Order as HIGHLY SENSITIVE CONFIDENTIAL unless otherwise agreed by the P a rties . To the extent that any such documents or information has already been disclosed to a n o th e r Party, the disclosing Party is obligated to re-designate such documents or in f o rm a tio n within thirty (30) days of entry of this Order. 3. 3 .1 L im it On Use And Disclosure Of Designated Information. E a c h party and all persons bound by the terms of this Protective Order shall

u se any information or document governed by this Protective Order only in connection with th e prosecution or defense of this action, except by consent of the parties or order of the C o u rt. No party or other person shall disclose or release to any person not authorized under th is Protective Order any information or document governed by this Protective Order for any p u rp o s e , or to any person authorized under this Protective Order for any other purpose. 3.2 It is, however, understood that counsel for a party may give advice and

o p in io n s to his or her client based on his or her evaluation of designated Confidential In f o rm a tio n received by the party, provided that such rendering of advice and opinions shall -3-

n o t reveal the content of such information except by prior written agreement with counsel f o r the producing party. 3 .3 T h e attorneys of record for the parties and other persons receiving information

g o v e rn e d by this Protective Order shall exercise reasonable care to ensure that the i n f o rm a tio n and documents governed by this Protective Order are (a) used only for the p u rp o s e specified herein, and (b) disclosed only to authorized persons. 4. 4.1 D is c lo s u re Of Confidential Material. D o c u m e n ts or information designated CONFIDENTIAL-SUBJECT TO

P R O T E C T IV E ORDER shall be disclosed by the recipient thereof, only to: (a ) th e attorneys who are actively involved in this action and who are partners or

a ss o c ia te s of the attorneys of record for the parties, and their authorized secretarial, clerical a n d legal assistant staff, including Baker, Donelson, Bearman, Caldwell & Berkowitz and F itz g e ra ld , Schorr, Barmettler & Brennan, PC, LLO; (b ) (c ) (d ) (e ) R o b e rt Siffring, the General Counsel of Oriental Trading Company; J e a n Fisher, the General Counsel of American Safety Indemnity Company; th e Court and Court personnel, as provided in Paragraph 12; c o n s u lta n ts or experts and their staffs retained by the parties or their attorneys

f o r purposes of this action, in accordance with the procedures set forth in Paragraph 6, who a re not employees or otherwise affiliated with any of the parties, and who first agree to be b o u n d by the terms of this Protective Order; (f ) (g ) c o u rt reporters employed in connection with this action; o u ts id e copying and computer services necessary for document handling, and

o ther litigation support personnel (e.g., graphic designers and animators); (h) u p to three (3) American Safety Indemnity Company designated employees,

p ro v id e d that each such individual must first agree to be bound by the terms of this P ro tec tiv e Order;

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(i)

u p to three (3) Oriental Trading Company designated employees, provided that

ea ch such individual must first agree to be bound by the terms of this Protective Order. 4 .2 D o c u m en ts or information designated HIGHLY SENSITIVE

C O N F I D E N T IA L shall be disclosed by the recipient thereof only to those categories of in d iv id u a ls listed in Paragraphs 4.1(a) ­ 4.1(g) subject to the restrictions therein. 5. R e d a ctio n .

C o u n s e l for a party producing documents may mask ("redact") material deemed e x e m p t from discovery because it is outside the scope of Rule 26, and/or protected from d isc lo su re under the attorney-client privilege or work product immunity afforded by Rule 2 6 (b ), Fed. R. Civ. P. However, any document from which material is masked must identify in the masked area where that masking or redaction has occurred. The reason for any such m a sk in g must be stated on a log to be provided within thirty (30) days after the production o f the documents. Sufficient information regarding the masked material must be provided to the other party to enable it to evaluate the legitimacy of the asserted privilege or im m u n ity. The parties reserve the right to pursue categories for redaction in addition to th o s e identified above, by either consent of the parties or order of the Court, to be addressed o n a case-by-case basis. 6. 6 .1 Disclosure to Independent Consultants and Experts. In f o rm atio n may be disclosed to independent consultants and experts who are

e m p lo ye d or retained by any of the parties or their counsel and who are assisting counsel in th is litigation, but only to the extent that such experts and consultants reasonably need the in f o rm a tio n to render such assistance and execute a written Confidentiality Undertaking (in th e form set forth in Exhibit A hereto) acknowledging and agreeing to be bound by the terms o f this Protective Order. 6.2 A party desiring to have CONFIDENTIAL or HIGHLY SENSITIVE

C O N F I D E N T IA L information of another party or of a non-party disclosed to an independent e x p e rt or consultant under Paragraph 4.1(e) of this Order shall first give written notice to the o p p o s in g party or non-party by providing the curriculum vitae of the proposed independent

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e x p e rt or consultant and identifying any prior relationships between the proposed i n d e p e n d e n t expert or consultant and any party or non-party. If a party objects to the d is c lo s u re of CONFIDENTIAL or HIGHLY SENSITIVE CONFIDENTIAL information to a proposed independent expert or consultant, the objecting party or non-party must object b y providing a reasonable explanation of the basis of its objection, and move, within five (5) d a ys , and on an expedited basis, for an Order from the Court to prevent disclosure of such in f o rm a tio n to the independent expert or consultant in question, the burden of preventing d is c lo s u re shall be on the objecting party. The independent expert or consultant in question s h a ll not be given access to CONFIDENTIAL or HIGHLY SENSITIVE CONFIDENTIAL in f o rm a tio n while the motion is pending. Consent to the disclosure of CONFIDENTIAL or H IG H L Y SENSITIVE CONFIDENTIAL information to a proposed independent expert or c o n su lta n t shall not be unreasonably withheld. 6 .3 B e f o re counsel for the Receiving Party makes a disclosure of

C O N F I D E N T IA L or HIGHLY SENSITIVE CONFIDENTIAL information to any persons w h o are authorized under Paragraph 4.1(e) of this Order to receive such information, counsel s h a ll, prior to such disclosure, inform the individual to whom the information is to be d isc lo se d of the terms of this Order and obtain that individual's written acknowledgment, in the form of Exhibit A hereto, stating that he or she has read and understands this Order a n d agrees to be bound by its terms. Executed copies of Exhibit A shall be retained by c o u n se l and submitted to the opposing counsel upon request within thirty (30) days after fin al termination of this action (including any appeals). 6 .4 C o u n se l for the parties shall maintain a list of the names and addresses of all

p e rs o n s to whom CONFIDENTIAL or HIGHLY SENSITIVE CONFIDENTIAL in f o rm a tio n is disclosed pursuant to Paragraph 4.1(e) and shall make that list available to o p p o s in g counsel upon request within thirty (30) days after final termination of this action (in clud ing any appeals). 7. In A g re e m e n t Of Confidentiality. no event shall any information designated HIGHLY SENSITIVE

C O N F I D E N T IA L be disclosed to any person authorized pursuant to Paragraph 4, other than -6-

(a ) the Court and Court personnel, (b) the parties' attorneys identified in Paragraph 4.1(a) a n d their authorized secretarial and legal assistant staffs, (c) court reporters, and (d) outside c o p yin g and computer services necessary for document handling, until such person has e x e cu te d a written Confidentiality Undertaking (in the form set forth in Exhibit A hereto) a c k n o w le d g in g and agreeing to be bound by the terms of this Protective Order. 8. Related Documents. In f o rm a tio n designated CONFIDENTIAL-SUBJECT TO PROTECTIVE ORDER o r HIGHLY SENSITIVE CONFIDENTIAL shall include (a) all documents, copies, extracts, a n d complete or partial summaries prepared from or containing such information; (b) p o rtio n s of deposition transcripts and exhibits thereto which contain or reflect the content o f any such documents, copies, extracts, or summaries; (c) portions of briefs, memoranda o r any other papers filed with the Court and exhibits thereto which contain or reflect the c o n te n t of any such documents, copies, extracts, or summaries; (d) deposition testimony d e sig n a te d in accordance with Paragraph 9; and (e) testimony taken at a hearing or other p ro c e ed in g that is designated in accordance with Paragraph 10. 9. 9.1 D e s ig n a tio n of Deposition Transcripts. D e p o sitio n transcripts, or portions thereof, may be designated as subject to this

P r o te c tiv e Order either (a) at the time of such deposition, in which case the transcript of the d e sig n a te d testimony shall be marked by the reporter with the appropriate legend (see P a ra g ra p h 2.1) as the designating party may direct, or (b) within thirty (30) days following th e receipt of the transcript of the deposition by providing written notice to the reporter and a ll counsel of record, in which case all counsel receiving such notice shall mark the copies o r portions of the designated transcript in their possession or under their control as directed b y the designating party. 9.2 A ll deposition transcripts not previously designated shall be deemed to be, and

s h a ll be treated as, HIGHLY SENSITIVE CONFIDENTIAL until the expiration of the p e rio d set forth in Paragraph 9.1, and neither the transcript nor the content of the testimony s h a ll be disclosed by a non-designating party to persons other than those persons named or a p p ro v e d according to Paragraph 4. -7-

9 .3

T h e designating party shall have the right to exclude from a deposition, before

th e taking of testimony which the designating party designates CONFIDENTIAL-SUBJECT T O PROTECTIVE ORDER or HIGHLY SENSITIVE CONFIDENTIAL and subject to this P r o te c t iv e Order, all persons other than those persons previously qualified to receive such in f o rm a tio n pursuant to Paragraph 4. 10. D e sig n a tio n Of Hearing Testimony Or Argument.

W ith respect to testimony elicited during hearings and other proceedings, whenever co u n sel for any party deems that any question or line of questioning calls for the disclosure o f CONFIDENTIAL-SUBJECT TO PROTECTIVE ORDER or HIGHLY SENSITIVE C O N F ID E N T IA L information, counsel may designate on the record prior to such disclosure th a t the disclosure is subject to confidentiality restrictions. Whenever matter designated C O N F ID E N T IA L -S U B J E C T TO PROTECTIVE ORDER or HIGHLY SENSITIVE C O N F I D E N T IA L is to be discussed in a hearing or other proceeding, any party claiming s u c h confidentiality may ask the Court to have excluded from the hearing or other p r o c e e d in g any person who is not entitled under this Order to receive information so d e s ig n a te d . 11. Disclosure To Author or Recipient.

N o tw ith sta n d in g any other provision of this Order, nothing herein shall prohibit c o u n s e l for a party from disclosing a document containing information designated C O N F ID E N T IA L -S U B J E C T TO PROTECTIVE ORDER or HIGHLY SENSITIVE C O N F ID E N T IA L to any person which the document clearly identifies as an author, a d d re ss e e , or carbon copy recipient of such document, or to any current employee of the p ro d u c in g party who by their testimony indicates they have access to the type of information s o u g h t to be disclosed. During deposition or trial testimony, counsel may disclose

d o c u m e n ts produced by a party to current employees and officers of the producing party who b y their testimony indicates they have access to the type of information sought to be d is c lo s e d . And regardless of such designation pursuant to this Protective Order, if a d o c u m e n t or testimony makes reference to the actual or alleged conduct or statements of a p e rs o n who is a potential witness, counsel may discuss such conduct or statements with such -8-

w itn e ss without revealing any portion of the document or testimony other than that which sp e c if ica lly refers to such conduct or statement, and such discussion shall not constitute d is c lo s u re in violation of this Protective Order. 12. Designation of Documents Under Seal.

A n y information designated CONFIDENTIAL-SUBJECT TO PROTECTIVE O R D E R or HIGHLY SENSITIVE CONFIDENTIAL, if filed with the Court, shall be filed u n d e r seal and shall be made available only to the Court and to persons authorized by the te rm s of this Protective Order. The party filing any paper which reflects, contains or includes a n y CONFIDENTIAL or HIGHLY SENSITIVE CONFIDENTIAL information subject to th is Protective Order shall file such paper in a sealed envelope, or other appropriately sealed c o n ta in e r, which indicates the title of the action, the party filing the materials, the nature of th e materials filed, the appropriate legend (see Paragraph 2.1), and a statement substantially in the following form: T h is envelope contains documents subject to a Protective Order of the Court. It s h o u ld be opened only by the Court. Its contents should not be disclosed, revealed or made p u b lic except by Order of the Court or written agreement of the parties. 13. C o n f id e n tia lity of Party's Own Documents.

No person may disclose, in public or private, any designated information of another p a rty except as provided for in this Protective Order, but nothing herein shall affect the right o f the designating party to disclose to its officers, directors, employees, attorneys, c o n su lta n ts or experts, or to any other person, its own information. Such disclosure shall not w a iv e the protection of this Protective Order and shall not entitle other parties or their a tto rn e ys to disclose such information in violation of it, unless by such disclosure of the d e s ig n a tin g party the information becomes public knowledge (see Paragraph 16). Similarly, th e Protective Order shall not preclude a party from showing its own information to its o f f ic e rs , directors, employees, attorneys, consultants or experts, or to any other person, w h ic h information has been filed under seal by the opposing party.

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14. 1 4 .1

Other Protections. N o person shall use any CONFIDENTIAL or HIGHLY SENSITIVE

C O N F I D E N T I A L information, or information derived therefrom, for purposes other than th e prosecution or defense of this action. 14.2 A n y party may mark any document or thing containing CONFIDENTIAL or

H IG H L Y SENSITIVE CONFIDENTIAL information as an exhibit to a deposition, hearing o r other proceeding and examine any witness thereon qualified under the terms of this P ro tec tiv e Order to have access to such designated material. 15. 15.1 C h a lle n g e To Confidentiality. T h is Protective Order shall not preclude any party from seeking and obtaining,

o n an appropriate showing, such additional protection with respect to the confidentiality of d o c u m e n ts or other discovery materials as that party may consider appropriate. Nor shall a n y party be precluded from (a) claiming that any matter designated hereunder is not entitled to the protections of this Protective Order, (b) applying to the Court for an Order permitting th e disclosure or use of information or documents otherwise prohibited by this Protective O rd e r, or (c) applying for a further Order modifying this Protective Order in any respect. No p a r ty shall be obligated to challenge the propriety of any designation, and failure to do so s h a ll not preclude a subsequent challenge to the propriety of such designation. 15.2 O n any motion challenging the designation of any information, the burden of

p ro o f shall lie with the producing party to establish that the information is, in fact, C O N F I D E N T IA L or HIGHLY SENSITIVE CONFIDENTIAL information. If a party seeks d e c la s s if ic a tio n or removal of particular items from a designation on the ground that such d e sig n a tio n is not necessary to protect the interests of the party wishing the designated in f o rm a tio n , the following procedure shall be utilized: a. T h e party seeking such declassification or removal shall give counsel of record

f o r the other party written notice thereof specifying the designated information as to which s u c h removal is sought and the reasons for the request; and

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b.

If, after conferring, the parties cannot reach agreement concerning the matter,

th e n the party requesting the classification of information as CONFIDENTIAL or HIGHLY S E N S IT IV E CONFIDENTIAL may file and serve a motion for a further Order of this Court d ire c tin g that the designation shall be so maintained. 15.3 If a party through inadvertence produces or provides discovery that it believes

is subject to a claim of attorney-client privilege or work product immunity, the producing p a r ty may give written notice to the receiving party or parties that the document is subject to a claim of attorney-client privilege or work product immunity and request that the d o c u m e n t be returned to the producing party. The inadvertent disclosure of information s h a l l not constitute a waiver of attorney-client privilege or work-product immunity. The re c e iv in g party or parties shall return to the producing party such document and destroy all c o p ie s of the document and notes concerning the document. Return of the document by the re c eiv in g party shall not constitute an admission or concession, or permit any inference, that th e returned document is, in fact, properly subject to a claim of attorney-client privilege or w o rk product immunity or that it was inadvertently produced, nor shall it foreclose any party f ro m moving the Court for an Order that such document has been improperly designated or s h o u ld be producible for any reason. If a party through inadvertence produces or provides discovery of any Confidential M a ter ial without designating or marking it with the appropriate legend as provided in this S tip u la tio n and Order, the producing party may subsequently give written notice to the re c e iv in g party or parties that the document, or other information, response or testimony is C o n f id e n tia l and should be treated in accordance with the provisions of this Stipulation and O r d e r for such designation. The receiving party or parties must treat such documents, in f o rm a tio n , responses, and testimony as subsequently designated from the date that such n o tic e is received. Disclosure of such documents, information, responses or testimony prior to receipt of such notice to persons not authorized to receive Confidential Material shall not b e deemed a violation of this Stipulation and Order. The receiving party must cooperate in g o o d faith with the producing party to advise those persons to whom disclosure was made

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th a t the material disclosed is Confidential Material and must be treated in accordance with th is Stipulation and Order for such designation. 16. Prior or Public Knowledge. T h is Protective Order shall not apply to information that, prior to disclosure, is public k n o w led g e , and the restrictions contained in this Protective Order shall not apply to in f o rm a tio n that is, or after disclosure becomes, public knowledge other than by an act or o m is s io n of the party to whom such disclosure is made, or that is legitimately and ind ep en d en tly acquired from a source not subject to this Protective Order. 17. L im itatio n of Protective Order. This Protective Order is not intended to

a d d r e s s discovery objections to produce, answer, or respond on the grounds of attorneyc lie n t privilege or work product doctrine, or to preclude any party from seeking further relief o r protective orders from the Court as may be appropriate under the Federal Rules of Civil P r o c e d u re . This Protective Order does not address waiver of the attorney-client privilege or w o rk product doctrine based on inadvertent disclosure or otherwise. The parties expressly re se r v e the right to seek relief or protective orders from the Court that the inadvertent d is c lo s u re of attorney-client privilege or work product information or documents shall not b e deemed a waiver and that the material shall be returned to the producing party if the Court d e te rm in e s that there has not been a waiver. 18. O th e r Proceedings.

B y entering this order and limiting the disclosure of information in this case, the C o u rt does not intend to preclude another court from finding that information may be re le v a n t and subject to disclosure in another case. Any person or party subject to this order w h o may be subject to a motion to disclose another party's CONFIDENTIAL or HIGHLY S E N S I T IV E CONFIDENTIAL information pursuant to this order shall promptly notify that p a rty of the motion so that it may have an opportunity to appear and be heard on whether s u c h information should be disclosed.

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19.

N o n -P a rty Material.

T h e terms of this Protective Order, as well as the terms of any protective order that m a y be entered into between a discovering party and a third party for the production of in f o rm a tio n in the discovering party, are applicable to CONFIDENTIAL or HIGHLY S E N S I T IV E CONFIDENTIAL information provided by a non-party. Information provided b y a non-party in connection with this action and designated CONFIDENTIAL-SUBJECT T O PROTECTIVE ORDER or HIGHLY SENSITIVE CONFIDENTIAL, pursuant to the ter m s of this Protective Order shall be protected by the remedies and relief provided by this P ro te c tiv e Order. 20. Return of Designated Information.

W ith in forty-five (45) days of final termination of this action, unless otherwise agreed to in writing by an attorney of record for the designating party, each party shall assemble and re tu rn all materials containing information designated CONFIDENTIAL-SUBJECT TO P R O T E C T I V E ORDER or HIGHLY SENSITIVE CONFIDENTIAL, including all copies, e x tra c ts and summaries thereof, to the party from whom the designated material was o b ta in e d , except that (a) any documents or copies which contain, constitute or reflect a tto rn e y's work product or attorney-client privilege communications, and (b) archive copies o f pleadings, motion papers, deposition transcripts, correspondence and written discovery re sp o n se s may be destroyed by counsel. 21. Waiver Or Termination of Order.

N o part of the restrictions imposed by this Protective Order may be waived or te rm in a te d , except by written stipulation executed by counsel of record for each designating p a rty, or by an Order of the Court for good cause shown. The restrictions provided for h e re in shall not terminate upon the conclusion of this action, but shall continue until further O rd e r of this Court. DATED May 21, 2009. B Y THE COURT: s / F.A. Gossett U n ite d States Magistrate Judge -13-