Edelstein et al v. Optimus Corporation

Filing 70

PROTECTIVE ORDER - Ordered by Magistrate Judge F.A. Gossett. (TEL)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
STANLEY EDELSTEIN, IVAN GERARD,
PAT HOY, BARRY BLUE, ROBERT
CAMPNEY, GROVONDA COLEMAN,
WAYNE COREY, PETER DANIELSON,
WILLIAM GOLDMAN, DANA HAMIK,
MICHAEL HICKS, BILL KELLER,
RICHARD NEVINS, JOE SCHUETTE,
ROBERT SCHMIDT, CHRISTL UPCHURCH,
LORRAINE VASHON, TIM WHITTINGHILL,
and PACESETTER CORPORATION
AMENDED AND RESTATED KEY
EXECUTIVE RETIREMENT PLAN.
Plaintiffs,
v.
OPTIMUS CORPORATION, formerly known
as THE PACESETTER CORPORATION,
Defendant.

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CASE NO. 8:10-CV-00061

PROTECTIVE ORDER

Upon the stipulation of the parties, and the court’s acceptance of the same,
IT IS HEREBY ORDERED that a Protective Order is granted and entered as follows:
1.

Nondisclosure of Confidential Documents

(a)

Except with prior written consent of the party designating a document to be

protected from disclosure, no document designated as CONFIDENTIAL may be disclosed to any
person or entity. A party who produces material may designate it as CONFIDENTIAL only
when the party in good faith believes it contains proprietary information, trade secrets, privileged
information, or nonpublic technical, financial, personal or business information. A document
designated

as

CONFIDENTIAL

means

any

document

which

bears

the

legend

"CONFIDENTIAL." The parties agree that documents produced by Lutz & Company relating to

the Appraisal of Optimus Corporation shall be designated as CONFIDENTIAL and shall be
subject to this Stipulated Protective Order.
(b)

A party receiving from another party any document that has been designated as

CONFIDENTIAL may object in writing to the designation and must state the reasons for such
objection with respect to each item. The parties shall then meet and confer in good faith
regarding the designation. If the parties are unable to come to an agreement regarding the
designation, the party challenging the designation shall be obligated to file a motion with the
Court challenging such designation.
(c)

This Stipulated Protective Order shall be without prejudice to the right of any

party to: bring before the Court at any time the question of whether any information or
documents are confidential; object to the production of any information or documents it
reasonably considers not subject to discovery or object to their use at trial; and/or apply to or
move the Court for an order compelling production of information or documents or modifying
this Stipulated Protective Order.
2.

Permissible Disclosures of Stamped Confidential Documents

Notwithstanding paragraph 1, documents designated as CONFIDENTIAL may be
disclosed to:
(a)

the parties and their legal counsel in these proceedings;

(b)

partners, associates, secretaries, paralegal assistants, and employees of such

counsel to the extent reasonably necessary to render professional services in the litigation;
(c)

persons with prior knowledge of the documents designated as CONFIDENTIAL

and confidential information contained therein;

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(d)

experts who will be providing professional opinions based upon a review of the

CONFIDENTIAL information;
(e)

court officials involved in this litigation, including court reporters; and

(f)

any person designated by the Court in the interest of justice, upon such terms as

the Court may deem proper.
3.

Securing Confidential Documents and Information

Counsel for the parties must keep all documents designated as CONFIDENTIAL which
are received under this Stipulated Protective Order in a secure area. Prior to receiving any
CONFIDENTIAL information, any Plaintiff or person identified in Paragraph 2(d) or 2(f) shall
be provided with a copy of this Stipulated Protective Order and agree to be bound by its terms,
and shall certify such agreement by signing a document of the form set forth as Exhibit “A” to
this Stipulated Protective Order. Such persons provided CONFIDENTIAL information shall not
duplicate or make copies and shall return all CONFIDENTIAL information to Counsel upon
termination of this litigation. Counsel making disclosure to any person described herein shall
retain the original executed copy of the certificate until final resolution of this litigation.
4.

Confidential Documents and Information in Depositions

(a)

A deponent may during a deposition be shown and examined about documents

designated as CONFIDENTIAL or confidential information contained therein only if the
deponent is one of the persons or entities designated in paragraph 2 or if the provisions of
paragraph 2 are complied with. Deponents shall not retain or copy portions of the transcript of
their depositions that contain confidential information not provided by them or the entities they
represent. A deponent who is not a party or a representative of a party shall be furnished a copy

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of this Order before being examined or asked to produce documents potentially subject to this
Order.
(b)

Parties (and deponents) may, within 30 days after receiving a deposition

transcript, designate pages of the transcript (and exhibits thereto) as CONFIDENTIAL by
underlining the portions of the pages that are confidential and marking such pages with the
following legend: CONFIDENTIAL-SUBJECT TO PROTECTIVE ORDER.

Until the

expiration of the 30-day period, the entire deposition will be treated as CONFIDENTIAL
pursuant to this Order. If no party or deponent timely designates information or testimony in a
deposition as CONFIDENTIAL, then none of the transcript or its exhibits will be treated as
material protected by this Order.
5.

Filing

If information or documents designated as Confidential are included in any pleading or
other document to be filed with the Court, they shall be labeled “CONFIDENTIAL” and filed or
otherwise submitted in accordance with the Court’s rules. Any party claiming confidentiality
with respect to the information or documents may file a motion to seal the records.
6.

Inadvertent Disclosure

(a)

If a party, through inadvertence, produces any information or documents without

labeling or marking or otherwise designating it as CONFIDENTIAL in accordance with the
provisions of this Order, the producing party may give written notice to the receiving party that
the document or thing produced is deemed confidential and should be treated as such in
accordance with the provisions of this Order. The receiving party must treat such documents and
things as confidential from the date such notice is received. Disclosure, prior to the receipt of

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such notice, to persons not authorized to receive confidential information shall not be deemed by
a violation of this Order.
(b)

If a party, through inadvertence, produces any document or information that it

believes is immune from discovery pursuant to an attorney/client privilege or the work product
privilege, such production shall not be deemed a waiver of any privilege, and the producing party
may give written notice to the receiving party that the document or information produced is
deemed privileged and that return of the document or information is requested. Upon receipt of
such written notice, the receiving party shall immediately gather the original and all copies of the
document or information of which the receiving party is aware and shall immediately return the
original and all such copies to the producing party. The return of the document(s) and/or
information to the producing party shall not preclude the receiving party from later moving to the
Court to compel production of the returned documents and/or information.
7.

Use

(a)

Persons or entities obtaining access to documents designated as CONFIDENTIAL

and confidential information contained therein under this Order shall use the information only
for preparation and trial of this litigation (including appeals and retrial), and shall not use such
information

for

any

other

purpose,

including

business,

governmental,

commercial,

administrative, or judicial proceedings.
(b)

If another court, administrative agency, tribunal, person, or entity subpoenas or

orders production of information or documents designated as CONFIDENTIAL that a party has
obtained pursuant to this Order, that party shall promptly notify the producing party of the
subpoena or production order. Such notice must be provided in sufficient time to give the
producing party, if possible, the opportunity to participate in quashing, modifying, or otherwise

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responding to any compulsory process in an appropriate and timely manner. Upon the filing by
the producing party of a motion to quash or for protective order, the subpoenaed party shall
withhold production of documents during the pendency of the motion, unless required by law (or
court order) not to withhold production.
8.

Non-Termination

The provisions of this Order shall survive the termination of this action and continue in
full force and effect until further order of this Court. Within 60 days after final conclusion of all
aspects of this litigation, documents designated as CONFIDENTIAL or documents containing
confidential information, and all copies of same, shall be returned upon written request to the
party or person that produced such documents, or, at the option of the producer, destroyed.
9.

Modification

Nothing in this Stipulation and Protective Order shall prevent any party or other person
from seeking modification of this Stipulated Protective Order or from objecting to discovery that
it believes to be otherwise improper.
10.

Matters of Public Record

This Stipulated Protective Order shall not apply to any document or materials obtained by
counsel which that counsel can demonstrate:
(a)

were already a matter of public record before its receipt by discovery; or

(b)

became a matter of public record after discovery without fault, negligence or a

violation of this Stipulated Protective Order.
DATED May 17, 2011.
BY THE COURT:
S/ F.A. Gossett, III
United States Magistrate Judge

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EXHIBIT “A”

The undersigned, _________________________________(print or type name of person)
hereby acknowledges that he or she received a copy of the Stipulated Protective Order entered
into in the case entitled “STANLEY EDELSTEIN, ET AL. vs. OPTIMUS CORPORATION”
pending before the United States District Court for the District of Nebraska (Case No. 8:10-CV00061), has read the Stipulated Protective Order, agrees to be bound by all the provisions
thereof, and hereby submits to the jurisdiction of the United States District Court for the District
of Nebraska for the purpose of enforcement of the terms of the Stipulated Protective Order and
the punishment of violations thereof.

Dated:

[Signature]

[Address]

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