Nebraska Beef, Ltd. v. Meyer Foods Holdings et al.

Filing 54

ORDER granting 53 Motion for Protective Order. Ordered by Magistrate Judge F. A. Gossett. (CLS, )

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEBRASKA NEBRASKA BEEF, LTD., a Nebraska Limited Partnership, Plaintiff,
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Case No. 8:09-CV-43

) ) v. ) MEYER FOODS HOLDINGS, L.L.C., ) a Delaware Limited Liability Company, ) and MEYER NATURAL FOODS, L . L . C . , ) a Delaware Limited Liability Company, )

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Defendants.
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CONSENT PROTECTIVE ORDER OF CONFIDENTIALITY

T h e parties (the term "parties" is defined herein as any party to this action; including all present officers, directors, current employees, consultants, retained. experts, and outside counsel (and their support s t a f f ) . by stipulation, having .jointly moved this Court for a protective order o f confidentiality based on the fact ,that discovery, including, but not limited to, interrogatories, requests for admissions, document requests, and depositions, exhibits, declarations, and affidavits, in the above entitled action may involve the production or disclosure o f trade secrets or sensitive commercial, financial, or proprietary information and confidential medical records, income, employment, and other personal records; IT IS HEREBY ORDERED that: 1.
" C O N F I D E N T I A L M A T E R I A L . " As used in this Consent Protective Order

o f Confidentiality, the term "Confidential Material" refers to any discovery material

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produced by the any of the parties to the above referenced action, which said party reasonably and in good faith believes contains or discloses the following: (a) confidential research, development, or commercial information,

including but not limited to sensitive pricing and financial data, (b) technical information, trade secrets, proprietary or sensitive

nonpublic commercial information, including but not limited to Hazard Analysis and Critical Control Point (HACCP), Standard Operating

Procedures (SOP), Sanitation Standard Operating Procedures (SSOP); (c) (d) information involving privacy interests o f third parties or parties; information. involving the medical, physical, and/or psychological

condition o f parties o r t h i r d parties; and .( e) other commercially .arid/or competitively sensitive information of a
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,', non-public nature; o r received' on a confidential basis that is entitled t o ' protection pursuant to Nebraska: Rules o f Court . . Discovery material may be so designated by stamping "CONFIDENTIAL" on each such document or by using such other procedures as may be agreed upon in writi ng' b y the parties. 2. In the event that any documents, materials, testimony, or other matters

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produced during the course o f discovery or trial are designated as "Confidential" in accordance with this Order, such documents, materials, testimony, or other matters, and the information therein, shall be maintained in confidence and shall be subject to the remaining provisions of this Order.

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3.

Subject to paragraph 6 below, any and all documents, materials,

testimony, or other matters developed during the course o f discovery and designated as "Confidential" shall be used solely for the purpose of this lawsuit and for no other purpose, including without limitation any business or competitive purpose. 4. When any Confidential information is embodied in any document which is

ultimately filed with this Court, it shall be designated as Confidential and shall be maintained under seal o f the Clerk of the Court to the extent permitted by law, or subsequently agreed to by the parties. pursuant to NECivR 7.5. Such documents shall be filed under. seal .

5.

Any document designated by counsel for either party as confidential shall If the confidentiality label is inadvertently omitted, , t h e

be marked "Confidential."
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producing person may subsequently request that the receiving party treat previously
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produced documents as "Confidential" by sending copies appropriately marked . . . The , ..... ' : :' receiving party shall comply with the request to the extent that the documents or
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contents thereof have not already been disclosed beyond those permitted access in paragraph 6 infra. 6.

ACCESS TO CONFIDENTIAL MATERIAL.

Access to confidential

material shall be limited to authorized persons in the performance of their duties in connection with trial preparation in this case. Authorized persons include: (a) Counsel o f record, parties, parties' representatives, and fact

witnesses to this civil action who have consented to this Consent Order of Confidentiality and signed the Promise of Confidentiality (Exhibit A hereto);
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(b)

Paralegal, secretarial, administrative, and legal personnel working

under the direction and control o f those counsel of record; (c) Outside experts and consultants retained by counsel of record who

have first consented to this Consent Order o f Confidentiality and signed the Promise of Confidentiality and agree in writing to be bound by its terms; and (d) Further access may be agreed to by the parties documented in

',writing or requested by any party by motion filed with this Court and approved by this Court. 7. Any deposition t r a n s c r i p t , o r portions thereof, containing "Confidential"

information shall be so designated a n d if filed with the Clerk of this Court shall be held . under seal of the Clerk and shall b a s o maintained until further order of this Court. Each. _
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party to this cause shall endeavor to designate those- portions o f deposition testimony . which it deems confidential at the time o f the deposition,. but in no event later than thirty (30) days following receipt o f the transcript from the reporter. Each party must treat deposition testimony as confidential until the period for making designations - thirty (30) days - expires. Each court reporter shall designate those portions of such deposition transcript(s) with the legend "Confidential" and shall place on the cover of any such transcript o f confidential information the following legend. This transcript contains information designated confidential by counsel - to be filed in the Court under seal to the extent permitted bylaw. 8. The restrictions embodied in the present Order shall be binding on the

party to whom such Confidential information is disclosed unless and until there is a

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showing that: (i) information which is so designated as "Confidential" was o r has become public knowledge absent a breach o f the restrictions embodied herein, or (ii) such information was already known to the party to whom such disclosure was made by a third party who himself has not breached any confidential relationship which may have existed or exists between such third party and the party making the disclosure. 9. The agreement of the parties to this Order shall not be construed as an

agreement o r admission: (i) that any material or document designated as "Confidential" is, in fact, confidential; (ii) as to the correctness or truth o f any allegation made or position taken relative to any matter designated as "Confidential" or (iii) with respect to the authenticity, competency, relevant, or materiality o f any document or thing designated as "ConfidentiaL"

10,

Execution and entry of this O r d e c d o e s n o t p r e c i u d e a party to the litigation

f r o m s e e k i n g r e l i e f f r o m this Order or ,from seeking other r e l i e f or Protective Orders as may, become appropriate or necessary. Both parties w i l l cooperate one with another .in presenting confidential information for hearings and for presentation at mediation and/or trial.

11.

CO URT RECORDS. In the event that any confidential material is in any

way disclosed in any pleading, motion, deposition transcript, videotape, exhibit, photograph, or other material filed with any court, the confidential material shall be filed under seal pursuant t o N E C i v R 7.5. Such confidential material shall, however, remain available to the personnel authorized by that court and to authorized persons. Where practicable, only the confidential portions o f pleadings filed with the court w i l l be filed under seal. If any confidential material is furnished to any court by any party, a

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duplicate copy with the discrete confidential material deleted may be substituted in the public record, if appropriate. 12.

DEPOSITIONS.

If confidential material is used or referred to during

depositions, counsel for the party claiming that the information is Confidential may serve a copy o f this Consent Order of Confidentiality upon the deponent (and his or her attorney), the court reporter, and the camera operator, and require that each sign the Promise of Confidentiality prior to further questioning. Counsel for the party claiming that the information is Confidential may state on the record at the deposition that the deposition includes information claimed. to be confidential material. Within a reasonable time, but in no event later than thirty (30) days after receipt of the completed deposition transcript, Counsel making such claim may then .specifically designate, b y page and line, the portions o f the deposition for which the claim of confidentiality is m a d e , a n d give written notice o f this designation t o the courtreporter and all other parties .. If t h e claim o f confidentiality is made at the time o f the deposition, the deposition and all exhibits shall be treated in their entirety as confidential material until such time as the designation of confidential material is provided to the court reporter a n d to all parties.
I f a party fails to make such

designation within thirty (30) days of receipt of the deposition transcript, the claim of confidentiality shall be waived .

. . 13.

TRIAL. If, at t h e time of trial, a party intends to introduce into evidence

any information designated as confidential, the introducing party shall give notice of that . intention to the Court. At such time, the parties and the Court shall confer to determine

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the manner in which such materials are be utilized during and/or introduced into evidence during trial. 14.
JURISDICTION.

This Court shall retain jurisdiction indefinitely with

respect to enforcement o f and/or any dispute regarding the improper use o f confidential material, to modify the terms o f this Order, or to enter further Orders regarding confidential material, as may be necessary. 15.
NO PRIVATE CAUSE· O F ACTION. This Consent Order o f Confidentiality

shall not create any private cause of action. 16. NO WAIVER. The production of Confidential Material pursuant to this

Order is n o t intended to constitute a waiver o f any privilege or right to claim the. trade s e c r e t o r confidential status o f the documents, materials or information produced. 17. All Confidential information supplied t o receiving counsel, and copies

t h e r e o f , s h a l l b e returned to producing counsel withinthirty"(30).days of the termination o f this action upon written r e q u e s t , o r shall be otherwise·· disposed o f in a manner agreeable to both parties. The term "termination o f this action"· shall mean the

conclusion o f this litigation in its entirety whether by judgment, dismissal, or appeal. . Except for one archival copy, all summaries and condensations shall be destroyed at such time, with confirmation sent to opposing counsel within thirty (30) days o f the termination o f this action. 18. This Order shall be w i t h o u t prejudice to the right of either party to bring

before the Court at any time questions o f whether any particular information is or is not "Confidential" at which time the producing party bears the burden o f proving that the information shall be "ConfidentiaL"

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19.

The parties agree that the inadvertent production of any document that

would be protected from disclosure pursuant to the attorney-client privilege, the work product privilege, or any other relevant privilege shall not constitute waiver of the applicable privilege. If any such document is inadvertently produced, the recipient o f the document agrees that, upon request from the producing party, it will promptly return all copies of the documents in its possession,delete any versions of the documents on any database it maintains, and make no use o f the information contained in the document, provided, however, that the party returning such document shall have the right to apply to the Court for a n · o r d e r t h a t such document is not protected from disclosure by any privilege. DATED this 30th day o f April ,2010.

s/ F.A. Gossett Hon. F.A. Gossett, HI United States Magistrate Judge

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Charles L. Clay, Jr. Michael A. Sexton Pro Hac Vice Weinberg, Wheeler. Hudgins, Gunn & Dial, l L C 950 East Paces Ferry Road, Suite 3000 Atlanta, Georgia 30326 Telephone: [phone] Facsimile: 404-875-9433

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Brian J .. BOOlan Cathy S. Treiit-Vilim lamson/'Dugan and Murray, L.L.P. 10306 Regency Parkway Drive Omaha, Nebraska 68114-3743 TelephQne: 402-397-7300' Fa~mile: 402-397-7624 .

Michael K. H r #1 Ronald F. Krause # Cassem, TIerney, Adams, Gotch & Douglas 8805 Indian Hills Drive - Suite 300 Omaha, Nebraska 68114 Telephone: [phone] Facsimile: 402-390-9676

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UNITED STATES DISTRICT C O U R T FOR THE DISTRICT OF NEBRASKA N E B R A S K A BEEF, LTD., a N e b r a s k a Limited Partnership, ) ) ) Plaintiff, ) ) v. ) ) M E Y E R F O O D S H O L D I N G S , L.L.C., ) a D e l a w a r e Limited L i a b i l i t y C o m p a n y , ) and M E Y E R N A T U R A L F O O D S , L . L . C . , ) a D e l a w a r e Limited Liability C o m p a n y , ) ) Defendants. )

Case No. 8:09-CV-43

EXHIBIT A T O CONSENT P R O T E C T I V E ORDER OF CONFIDENTIALlY

PROMISE O F CONFIDENTIALITY I hereby acknowledge and affirm that I have read the terms and conditions o f the Consent Protective Order o f Confidentiality that was issued b y the United States District Court for the District o f Nebraska in this matter. I understand the terms o f the Order and consent to be bound b y its terms as a condition to being provided access to any confidential documents furnished b y any o f the parties in the above referenced action. Further, I hereby consent to the jurisdiction o f the above-captioned Court for the special and limited purpose o f enforcing the terms o f the Consent Order o f Confidentiality.
THIS T H E

DAY

,,2010.

Name

Firm

Address

City

State/Zip Code

Telephone N u m b e r

Witness m y hand and seal this _ _ day o f (SEAL) State o f

, 2010.

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County o f

I, , a notary public for t h i s county and state, certify that , whose name is signed to the foregoing instrument, , and who is know t o me, acknowledged before me on this day that, being informed o f t h e contents o f the instrument, [s]he executed the same voluntarily on the day the same bears date.

N o t a r y Public M y Commission Expires:

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