Martinez v. Tyson Foods, Inc. et al
Filing
38
PROTECTIVE ORDER granting 37 Joint Stipulation for Protective Order. Ordered by Magistrate Judge Thomas D. Thalken. (TRL)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
ELOY MARTINEZ,
8:10CV343
Plaintiff,
v.
PROTECTIVE ORDER
TYSON FOODS, INC. and TYSON FRESH
MEATS, INC.,
Defendants.
This matter comes before the Court on the Joint Stipulation for Protective Order filed by
Plaintiff Eloy Martinez and Defendants Tyson Foods, Inc. and Tyson Fresh Meats, Inc.
(collectively, the “Parties”) (Filing No. 37). The Court, being fully advised in the premises,
hereby orders that all documents, materials, things, information, answers, pleadings, testimony,
and other discovery information or items produced by the Parties and non-parties are governed
by the following:
1.
Stipulation and Agreement of the Parties. In this action, the Parties have
sought and are seeking Confidential Information (as defined in
Paragraph 2 below) during discovery. The Parties further anticipate that
there will be questioning concerning Confidential Information in the
course of depositions.
The Parties assert the disclosure of such
information outside the scope of this litigation could result in significant
injury to one or more of the Parties’ business interests. The Parties also
assert that the need for this Protective Order applies to any information or
materials produced by a non-party as a result of discovery subpoenas or
other requests. The Parties have stipulated agreement to this Protective
Order and request the Court enter it 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, including but not limited to information or
materials, marked “Confidential,” already produced.
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,
electronic material, portions of files, 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 policies or
procedures, or proprietary business or financial information.
In
connection with this Protective Order, “Confidential Material” shall be
information or materials that the producer of the documents deems
confidential or the release of which would harm the business interests or
otherwise embarrass or invade the privacy of the designating Party. Such
materials may only be so designated as Confidential 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 word “Confidential” on at least the first page or cover
of any document produced;
b.
By imprinting the word “Confidential,” as appropriate, next to or above
any response to a discovery request; and
c.
With respect to transcribed testimony, by declaring such testimony
“Confidential” during the deposition on the record, or by giving written notice to
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opposing counsel sufficient to designate such portions as “Confidential,” no later
than 10 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,” as appropriate.
If, during the course of a deposition, a document or other material that has
previously been designated “Confidential” 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 or as
transcribed testimony shall be subject to the following restrictions:
a.
Confidential Material shall be used only for the purpose of this litigation
and not for any business or other purpose whatsoever.
b.
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.
c.
Confidential Material may only be disclosed or communicated to the
following persons:
i.
The Parties’ outside counsel of record in this action and any
regular or temporary employees of such counsel to whom it is
necessary that the information or material be shown for purposes
of this litigation;
ii.
The Parties’ in-house counsel and employees, officers, or directors
of each of the Parties whose assistance is needed by counsel for the
purposes of this litigation;
iii.
Third Party Consultants or Expert Witnesses;
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iv.
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;
v.
Non-technical jury or trial consulting services retained by counsel
for a Party;
vi.
Document reproduction or coding services retained by counsel for
a Party;
vii.
viii.
d.
Witnesses in the above-captioned action; or
The finder of fact or concluder of law.
Undertaking: Confidential Materials may be disclosed only to the persons
listed in Paragraph 4.c, subparagraphs iii., iv., v., vi., vii. and viii. only after such
persons have executed a declaration in the form attached as Exhibit A.
5.
Use of Confidential Materials in Court Proceedings. In the event any
material designated “Confidential Material” is used in any court 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. 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
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admissibility of documents produced subject to it.
Furthermore, by
producing or receiving information or material designated “Confidential
Material” or by otherwise complying with the terms of this Protective
Order, such conduct shall not be deemed to:
a.
Operate as an admission by any Party that any designated material
contains or reflects proprietary or commercially sensitive information, or any
other type of Confidential Information;
b.
Operate as an admission by any Party that the restrictions and procedures
set forth herein constitute or do not constitute adequate protection for any
designated information;
c.
Prejudice in any way the rights of the Parties to object to the production of
documents they consider not subject to discovery;
d.
Prejudice in any way the rights of any Party to object to the authenticity or
admissibility into evidence of any document, testimony or other evidence subject
to this Protective Order;
e.
Prejudice in any way the rights of any Party to seek a determination by the
Court, whether any information or material should be subject to the terms of this
Protective Order, including, but not limited to, designations made by a non-party;
f.
Prejudice in any way the rights of any Party to petition the Court for a
further protective order relating to any purportedly Confidential Information; or
g.
Prevent the Parties from agreeing in writing or on the record during a
deposition or hearing in this action to alter or waive the provisions or protections
provided for herein with respect to any particular information or material.
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 this action,
including any appeals or remands. Within 60 days after final disposition
of this matter, via appeal or otherwise, each party must destroy
confidential information or return it to the party that produced it.
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9.
Challenge to Confidentiality.
In the event any party to this action
disagrees with the designation of any information as Confidential
Information, the party challenging the propriety of a confidentiality
designation must notify the other party of its challenge in writing within
30 days of receipt of the confidential materials. Failure by either party to
object to the confidentiality designation within the time prescribed will
serve as a waiver of any subsequent objection. The parties shall first try to
dispose of such dispute in good faith on an informal basis. If the dispute
cannot be resolved informally, the party opposing the confidentiality of
the information may apply for appropriate relief from this Court, which
may conduct an in camera inspection of the confidential materials. The
party seeking confidentiality of this information shall have the burden of
establishing that the information is entitled to confidential treatment. If
the challenging party fails to apply for relief from the Court within 60
days from receipt of the confidential materials, the party will be
considered to have abandoned its objection and will be estopped from any
further assertion of the same.
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 “Confidential Information” that appears
on its face or from other documents or testimony to have been received or
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authored by that witness. Whenever a person appears from the face of a
document that has been designated “Confidential Information” to have
been the author or lawful recipient of that document, such person may be
shown, but may not be permitted to retain custody of, that specific
document 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, the producing Party
must immediately notify the receiving Party of the inadvertent production
and request the return or confirmed destruction of the privileged materials.
Within five 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
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not preclude the receiving Party from seeking to compel production of the
materials for reasons other than its inadvertent production.
14.
Binding Effect of Protective Order Before Entry by Court. The Parties
agree to be bound by the terms of this Protective Order pending its entry
by the Court, even if this action is ultimately dismissed. Any violation of
the terms of this Protective Order 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 Protective Order had been entered as an order of the Court.
15.
Designation of Confidentiality by Non-Parties. If a non-party is called
upon, by subpoena or otherwise, to provide or produce nonpublic
documents, information or things that the non-party reasonably and in
good faith believes are confidential, the non-party may designate such
documents, information or things as “Confidential” in the manner set forth
in this Protective Order.
The producing non-party shall have the same
rights and obligations as a Party with regard to such documents,
information or things.
DATED this 3rd day of August, 2011.
BY THE COURT:
s/ Thomas D. Thalken
United States Magistrate Judge
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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, Eloy Martinez v. Tyson Foods, Inc.
and Tyson Fresh Meats, Inc., Case No. 8:10-cv-343, 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
may 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.: (
)_
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