Roberts et al v. Valley Bank and Trust Company et al

Filing 45

PROTECTIVE ORDER. Ordered by Magistrate Judge Thomas D. Thalken. (TRL)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
UNITED STATES OF AMERICA, ex rel.
KEITH ROBERTS,
Plaintiff,
v.
VALLEY BANK AND TRUST COMPANY,
Defendant.

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8:11CV48

STIPULATED PROTECTIVE ORDER
The above-captioned case comes before the Court for consideration pursuant to
agreement of the parties for entry of a Protective Order pursuant to the Federal Rules of Civil
Procedure, Rule 26(c), to preserve the confidentiality of certain information, documents and
records of Plaintiff and Defendant previously produced or to be produced to the opposing party
or parties or their respective legal counsel.
WHEREAS, the parties to this litigation anticipate that discovery in this action will result
in the production of documents and information which are sensitive, confidential or proprietary
in nature; and
WHEREAS, the parties to this litigation anticipate that discovery in this action may
include requests for documents and information that the Plaintiff, as a former officer of the
Defendant Bank, and the Defendant as a Federally regulated Bank may be prohibited from
disclosing pursuant to Federal Regulations; and
WHEREAS, the parties to this litigation wish to protect the confidentiality of such
documents and information and to ensure that the parties can obtain and pursue discovery with
the minimum of delay and expense.
IT IS HEREBY ORDERED THAT: Documents or information produced by either the
Plaintiff or the Defendant which contain information which the producing party requests to be
maintained confidential, shall be used only for the purposes of this proceeding and shall be
produced, handled, maintained, preserved, or otherwise dealt with pursuant to the following
provisions:

USA ex rel Roberts v. Valley Bank

STIPULATED PROTECTIVE ORDER

Page |1

1.

All parties are required to comply with any and all State and Federal regulations

relating to the disclosure or non-disclosure of documents and information by banking
institutions. To the extent either party believes it is prohibited from disclosing any document or
information based on State or Federal regulations, upon withholding any such document or
information, the withholding party shall notify counsel for the opposing party of the particular
regulation upon which the disclosing party bases its belief that its disclosure is prohibited, and
counsel for both parties shall work together to resolve such issues. To the extent counsel is
unable to resolve such issues regarding regulatory prohibitions to disclosure, the parties shall
submit appropriate motions to the Court for judicial determination.
2.

In connection with discovery or other pre-trial proceedings in this action relating

to documents and information that are not encompassed within the type of documents and
information subject to the preceding paragraph, the parties may designate any document, thing,
material, testimony or other information derived therefrom, as "Confidential" under the terms of
this Protective Order. "Confidential" information is that which either party reasonably believes
has not been made public and which concerns or relates to the processes, operations, type of
work, sales, purchases, transfers, identification of customers, customer information, loan and
credit agreements, policies, amount or source of income, profits, losses, or expenditures of any
person, firm, partnership, corporation, or other organization, if the disclosure of such information
has the effect of causing harm or potential harm to the competitive position or privacy rights of
the person, firm, partnership, corporation, or to the organization from which the information was
obtained or of third parties, including but not limited to persons transacting business with any of
the parties to this action or their clients/customers.
3.

Documents that contain any information that is confidential under this Order shall

be so designated by identifying the documents in a cover letter at time of production or by
stamping copies of the document with the legend "CONFIDENTIAL," and may contain such
other and further legend as may reasonably be included to specify such confidentiality (hereafter,
the "CONFIDENTIAL" legend). Stamping the legend "CONFIDENTIAL" on the cover of any
multipage document shall designate all pages of the document as confidential, unless otherwise
indicated by the producing party. Confidential documents (including deposition transcripts) also
may be so designated after production by written communication to all counsel advising of the
portion of the information that is designated Confidential, and all parties shall use their best
USA ex rel Roberts v. Valley Bank

STIPULATED PROTECTIVE ORDER

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efforts to ensure that no prior disclosure shall be used or re-disclosed contrary to the terms of this
Order.
4.

Deposition, hearing or other testimony may also be designated as confidential by

making a statement to that effect on the record at the deposition or other proceeding, or within
thirty days of the designated party's receipt of the transcript or testimony. If designated at the
deposition or other proceeding, arrangements shall be made with the court reporter taking and
transcribing such proceedings to separately bind such portions of the transcript containing
information designated as confidential, if possible, and to label such portions appropriately. In
the event that it is not possible or counsel for the parties agree that separate binding would be
inconvenient, then counsel may designate such portions of the transcript or the whole transcript
as “Confidential,” as is appropriate to preserve information in accordance with this Order.
5.

Information provided in responses to Interrogatories may be designated as

Confidential material by the responding party so identifying the same in the response.

If

Interrogatory responses have been provided prior to the entry of this Order which the responding
party wishes to make Confidential within the terms of this Order, then said previously
responding party may do so by providing correspondence to all parties’ counsel advising of
which portion or request responses are deemed Confidential pursuant to this Order.
6.

Recognizing the legitimate confidentiality needs of the parties, all discovery shall

be used only for purposes of this case, entitled, United States of America, ex rel. Keith Roberts v.
Valley Bank and Trust Company, currently pending in the Unites States District Court for the
District

of

Nebraska,

bearing

case

number

8:11CV48.

Materials

designated

as

"CONFIDENTIAL" under this Order, the information contained therein, and any summaries,
copies, abstracts, or other documents derived in whole or in part from material designated as
Confidential (hereinafter, "Confidential Material") shall be used only for the purpose of the
prosecution, defense or settlement of this action, and for no other purpose.
7.

Confidential Material produced pursuant to this Order may be disclosed or made

available only to the Court, to counsel for a party (including the paralegal, clerical and secretarial
staff employed by such counsel), to a mediator agreed to by the parties, and to "Qualified
Persons": A Qualified Person is a person who falls into one of the categories set forth in
subparagraph (a) below, and has met the requirements of subparagraph (b), below:

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STIPULATED PROTECTIVE ORDER

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(a)

(1)

a party, or an officer, director, employee or agent of a party

deemed necessary by counsel to aid in the prosecution, defense or
settlement of this action;
(2)

experts or consultants (together with their clerical staff) retained by

such counsel to assist in the prosecution, defense or settlement of this
action;
(3)

court reporter(s) employed in this action;

(4)

a witness at any deposition or other proceeding in this action who

has or is reasonably likely to have information relating to such
Confidential Material; and
(5)

any other person as to whom all parties agree in writing prior to

disclosure of Confidential Material to such other person.
(b)

Prior to receiving any Confidential Material, each Qualified Person shall
be provided with a copy of this Order and shall execute a Nondisclosure
Agreement in the form set forth in Attachment A hereto, a copy of which
shall be retained by counsel for the parties.

However, a witness as set

forth in subparagraph (a)(4) above who does not sign attachment A hereto
may still review confidential material for purposes of their deposition or
other proceeding only if that review takes place in the presence of counsel,
and the witness returns the documents to counsel after the witness' review
is completed.
(1)

An officer of any corporation or other business entity executing a
Nondisclosure Agreement pursuant to this Order shall be sufficient
for purposes of this Order to bring all directors, officers, and
employees of said corporation or entity under the authority of this
Order.

(2)

Access to information, documents or other Confidential Material
of plaintiff or defendant shall be limited to attorneys of record and
their staff, associates of the attorneys of record and their staff, the
parties to this case, including directors, officers and employees
thereof, the Court, the court staff, court reporters in connection

USA ex rel Roberts v. Valley Bank

STIPULATED PROTECTIVE ORDER

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with this action, and independent experts or consultants employed
to assist any attorneys of record in the course of trial or pretrial
preparation pursuant to this Order or as otherwise stated in this
Order.
(3)

In the event that any information, document or materials covered
by this Order or the contents thereof is to be disclosed to any
associate, assistant, expert, consultants, contemplated witness, or
employee of counsel, prior to disclosure of such information,
documents, or materials, or the contents of such, counsel shall
advise such person of the substance of this Order and shall inform
such person that neither the information, documents, or materials,
nor the content of such shall be copied, used, published or
disclosed by such person except in accordance with this Order.

(4)

On the request of any party, any non-qualified persons shall be
excluded from any deposition during the period in which
Confidential Material is discussed.

8.

To the extent any of the documents disclosed by the producing party constitute or

contain, or may be construed to constitute or contain, “consumer reports” as defined by the Fair
Credit Reporting Act, 15 U.S.C. § 1681 et seq., the producing party is hereby ordered to disclose
such documents to the requesting party notwithstanding provisions of the Fair Credit Reporting
Act limiting the disclosure of such consumer reports, if the disclosing party is not otherwise
protected by the court from making the disclosure on the basis of any claim of privilege, other
terms of this Order, or applicable rule of civil procedure or other law.
9.

To the extent any of the documents disclosed by producing party constitute or

contain, or may be construed to constitute or contain, “nonpublic personal information” as
defined by the Gramm-Leach-Bliley Act, 15 U.S.C. §§ 6801-6810, the producing party is hereby
ordered to disclose such documents to the requesting party notwithstanding provisions of the
Gramm-Leach-Bliley Act limiting the disclosure of such nonpublic personal information, if the
disclosing party is not otherwise protected by the court from making the disclosure on the basis
of any claim of privilege, other terms of this Order, or applicable rule of civil procedure or other
law or regulation.
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STIPULATED PROTECTIVE ORDER

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10.

Notwithstanding the designation of such documents with respect to the limitations

on use and confidentiality placed on recipients of confidential information and documents
disclosed pursuant to this order, the recipients of any consumer reports or nonpublic personal
information as defined by the statutes referenced in paragraphs 8 and 9 above, shall treat such
information and documents as “attorneys’ eyes only” and disclose such materials only as
permitted thereby.
11.

The parties understand that the Bank is required to comply with various

regulations and statutes that relate to the privacy of the Bank’s customers, and that such
regulations may require the Bank to request approval from any customer before it discloses
private information in relation to the customer(s).

The parties further understand that the

Plaintiff, Keith Roberts, as a former officer of the Bank, is similarly prohibited from disclosing
Bank customer information which he obtained while an officer of the Bank or due to his having
previously been an officer of the Bank without first similarly requesting approval from any
customer prior to disclosure of customer information.

In order to avoid this cumbersome

requirement and its potentially financially detrimental results to the Bank, the parties agree that
the parties shall redact from documents and information it produces during the course of this
case all names, account numbers, social security numbers, loan numbers, addresses, and other
identifying information and information of a personal and private nature which may disclose or
be used to determine the identity of the Bank’s customers or may disclose private customer
financial information.

The parties further agree that the producing party who redacts the

customer name from documents and information produced may insert a non-descript identifier
for such customer (i.e., “Customer H”) into the redacted document/information where the
customer’s name had previously appeared. Parties’ counsel are ordered to cooperate together to
coordinate appropriate and consistent non-descript identifiers into documents so that the
identifier remains consistent throughout all production and trial of the case. The producing
party’s counsel shall retain a non-redacted copy of all documents which are redacted pursuant to
this paragraph, and shall produce such documents pursuant to court order subsequent to
appropriate motion by the non-producing party for an in-camera inspection for Court
determination as to the appropriateness of disclosure of the redacted information. Should the
Court order disclosure of the documents in un-redacted form after an in-camera inspection, such
documents may be identified as Confidential Material pursuant to this Stipulated Protective
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STIPULATED PROTECTIVE ORDER

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Order, and shall be disclosed as ordered by the Court with any additional restrictions placed
thereon by the Court.
12.

Nothing herein shall impose any restrictions on the use or disclosure by a party of

material obtained by such party independent of discovery in this action beyond that otherwise
imposed by law, whether or not such material is also obtained through discovery in this action, or
from disclosing its own Confidential Material as it deems appropriate.
13.

This Protective Order shall not prohibit or restrain any party from performing the

tasks necessary to prepare for trial; however, any re-disclosure or communication of the
information covered by this Protective Order, except as specifically allowed by this Protective
Order for the purposes of this litigation only, is strictly prohibited. The object of this Protective
Order is that none of the information revealed in connection this litigation pursuant to this Order
be used for any purpose other than in relation to this litigation, that no one be allowed to use any
information produced pursuant to this Protective Order for their own purposes or in connection
with any other issue, dispute, litigation or charge against any of the parties whether currently
pending or contemplated in the future, and that all information revealed pursuant to this
Protective Order be protected from public disclosure throughout the litigation and following.
No reproduction of information disclosed in reliance on this Protective Order is
authorized, except to the extent copies are required to prepare the case for trial. All copies,
excerpts, or summaries made, shown, or given to those authorized hereby and according to the
provisions hereof shall be stamped to indicate the protected and confidential nature of the
disclosed information. Review of Confidential Material by counsel, experts, or consultants for
the litigation will not constitute any waiver of the confidentiality of the document or any
objections to production. The inadvertent, unintentional, or in-camera disclosure of Confidential
Material shall not, under any circumstances, be deemed a waiver, in whole or in part, of any
claims of confidentiality.
14.

The parties hereto agree this protective order does not encompass regulatory

materials, such as bank examination reports, etc., that are protected by specific statute and/or
regulation(s) which prohibit disclosure of such materials, unless and until such time as agency
permission or court order requiring disclosure of such materials is issued, at which time such
materials and information shall be automatically and immediately encompassed within this
protective order as Confidential Material.
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STIPULATED PROTECTIVE ORDER

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15.

Confidential Material shall only be filed before the Court under restricted access

or seal pursuant to court rules NECivR 5.3 and 7.5. In addition to being stamped confidential,
said documents shall be filed with a label noting they are subject to the January 4, 2013,
Protective Order and "CONFIDENTIAL – DISCLOSE ONLY SUBJECT TO COURT
ORDER". To the extent any Confidential Material is quoted within or is sufficiently referenced
within any pleading, motion or other filing of any party so as to essentially disclose the substance
of the Confidential Material, counsel for the filing party shall likewise mark and file such
pleading, motion or other filing under restricted access or seal pursuant to this paragraph.
16.

In the event that any Confidential Material is used in any proceeding in this

action, it shall not lose its confidential status through such use.
17.

This Order shall be without prejudice to the right of any party at any time after

any document, material, testimony or information is designated to file a motion with the Court (i)
to challenge the designation of any particular “Confidential” document or information as
confidential or whether its use should be restricted, provided such party has first made a goodfaith attempt to resolve such question with the designating party; or (ii) seek a separate protective
order as to any particular document or information, including restrictions differing from those as
specified herein. This Order shall not be deemed to prejudice the parties in any way in any
future application for modifications of this Order.

The burden of establishing that any

information designated as Confidential Material meets the definition set forth in paragraph 1
above shall be on the party which seeks to uphold the designation.
18.

Notwithstanding the provisions of this Stipulated Protective Order, nothing herein

shall be deemed to constitute a waiver of the parties' right to raise legitimate objections to
discovery requests, including but not limited to objections on the grounds that disclosure of
certain documents or information is prohibited by any statute, regulation or rule. The party
requesting production or disclosure of any such documents or information shall comply with all
statutes, rules and regulations regarding prior authorization or consent of appropriate federal,
state or local departments, agencies or other regulatory authorities. Further, nothing herein shall
be deemed or constitute a waiver of the parties right to object to the production of information in
electronic form, and such information produced shall be kept separate and apart from any and all
other electronic databases that the parties and/or their attorneys maintain unless and until the

USA ex rel Roberts v. Valley Bank

STIPULATED PROTECTIVE ORDER

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parties and/or their attorneys obtain court authority to use the electronic data for anything other
than the purposes of this lawsuit.
19.

This Order is entered for the purpose of facilitating the exchange of documents

and information between the parties to this action and the Court without involving the Court
unnecessarily in the process. Nothing in this Order nor the reproduction of any information or
document under the terms of this Order nor any proceedings pursuant to this Order shall be
deemed to have the effect of an admission or waiver by either party or of altering the
confidentiality or non-confidentiality of any such document or information or altering any
existing obligation of any party or the absence thereof.
20.

This Order shall survive the final termination of this action to the extent that the

information contained in Confidential Material does not become known to the public, and the
Court shall retain jurisdiction to resolve any dispute concerning the use of information disclosed
hereunder. Upon termination of this action, counsel for the parties shall assemble and return to
each other all Confidential Material, including all copies of same, or (by mutual agreement only)
shall certify the destruction thereof.
IT IS SO ORDERED.
DATED this 4th day of January, 2013.
BY THE COURT:
s/ Thomas D. Thalken
United States Magistrate Judge

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STIPULATED PROTECTIVE ORDER

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PROTECTIVE ORDER – EXHIBIT A
NONDISCLOSURE AGREEMENT
The undersigned has read the Stipulated Protective Order entered in the matter of United
States of America, ex rel. Keith Roberts v. Valley Bank and Trust Company, currently pending in
the Unites States District Court for the District of Nebraska, bearing case number 8:11CV48, and
agrees to abide by its terms.

___________________________________
Signature

__________________________________
Printed Name

___________________________________
Date Signed

__________________________________
Title/Role in Case of Signor

NOTE: Legal Counsel is required to preserve/retain the original of this Nondisclosure
Agreement pursuant to the terms of the Stipulated Protective Order. Please provide the original
of this Nondisclosure Agreement to legal counsel for one of the parties to the aforementioned
suit.

USA ex rel Roberts v. Valley Bank

STIPULATED PROTECTIVE ORDER

Exhibit A