Zech Farms Trucking, Inc. v. Abengoa Bioenergy of Nebraska, L.L.C.

Filing 33

STIPULATED PROTECTIVE ORDER approving 32 Joint Stipulation. Ordered by Magistrate Judge F.A. Gossett. (JAB)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
ZECH FARMS TRUCKING, INC.,
a Nebraska Corporation,
Plaintiff and
Counterclaim Defendant,
vs.
ABENGOA BIOENERGY OF
NEBRASKA, L.L.C., a Nebraska
Limited Liability Company,
Defendant, Counterclaimant
and Third-party Plaintiff,
vs.
BRAD ZECH, an individual,
Third-party Defendant.

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Case No. 8:11CV51

STIPULATED PROTECTIVE ORDER

This matter is before the Court upon the parties’ stipulation for entry of a
protective order (filing 32). The Court being duly advised of the premises herein, enters
a protective order as follows:
1.

The parties anticipate that they will seek information which may be

designated as containing proprietary business and financial information, personnel
information, personal information, and/or trade secrets (hereinafter "Confidential
Information"). Any documents produced or information provided by a party pursuant
to or in response to any discovery request may be designated by either party as
"confidential" in the following manner:
a.

By imprinting the word "confidential" on the first page or cover of any
document produced;
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b.

By imprinting the word "confidential" next to or above any answer to any
Interrogatory or any other discovery request;

c.

With respect to portions of a deposition transcript, by making
arrangements with the attending court reporter to bind the confidential
portion(s) of such transcripts separately and labeling them as
"confidential;" and

d.

With respect to electronic information, by describing the information to
the fullest extent possible and noting, in writing, that the described
information is confidential. If such information is reproduced in paper
form, such paper document may also be designated as "confidential."

2.

All documents and information provided by a party in response to a

discovery request or deposition testimony designated as "confidential" shall be subject
to the following restrictions:
a.

They shall be used only for the purpose of this litigation and not for any
business or other purposes whatsoever;

b.

They shall not be communicated or disclosed in any manner, either
directly or indirectly, to anyone other than:
(1)
(2)

Outside experts and consultants who have, prior to disclosure,
agreed in writing to be bound by the terms of this Protective Order
as provided in sub-paragraph d. hereof;

(3)

This Court and Court personnel; and

(4)

c.

The attorneys of record and persons employed by them;

Such other persons as the Court may specifically approve after
notice and hearing.

That all information designated as "Confidential" Information in whatever
format shall be furnished only under the terms of this Protective Order
and shall be treated by all persons accorded access pursuant to this
Protective Order as constituting Confidential Information and shall
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neither be used nor disclosed except for the purpose of this litigation, and
solely in accordance with this Protective Order or subsequent order of the
Court upon motion.
d.

This Confidential Information shall not be disclosed to anyone except
those categories of persons provided herein or those who have signed a
Nondisclosure Agreement and to whom disclosure is necessary for the
purposes associated with this lawsuit. Counsel of record, experts,
consultants, and other persons or entities retained to assist a party in this
lawsuit who have signed a Nondisclosure Agreement shall appropriately
notify such employee(s) that the disclosure is made in confidence and
must be kept in confidence in accordance with this Protective Order.

e.

Individuals authorized to review Confidential Information pursuant to
this Protective Order shall hold such information in the strictest
confidence and shall not divulge the information, either verbally or in
writing, to any other person, entity or government agency unless
authorized by the party designating such information as confidential or
order of the Court.

f.

No access to Confidential Information shall be provided to any individual,
other than the Plaintiffs or Defendant and their counsel of record, until the
individual to be accorded access has signed a Nondisclosure Agreement
in the form attached as Exhibit "A", attached hereto, certifying that they
have read this Protective Order and agree to be bound by its terms and
such executed Nondisclosure Agreement has been provided to counsel.

g.

In the event a party learns of information which causes any one or all of
them to have a good faith concern that a signatory to a Nondisclosure
Agreement is employed by or affiliated with any business or enterprise
that is a competitor of a party and otherwise poses a threat that disclosure
of Confidential Information to the signatory will create a reasonable risk
that the information could be used in a manner that could harm that
party's business interests, that party may file an objection to disclosure of
Confidential Information to such signatory with the Court. In such an
event, no Confidential Information will be provided to such signatory
until the Court determines whether disclosure will be permitted.

h.

Before trial, counsel for the parties shall agree to the appropriate means to
protect the confidentiality of the information that counsel desire to present
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at trial. If counsel cannot reach an agreement, they shall apply to the
Court for resolution of the issue.
i.

There shall be no reproduction whatsoever of any confidential documents
or information, except that, as required in the course of this litigation,
copies, excerpts or summaries may be shown or given to those persons
authorized by this Protective Order to receive such documents or
information.

j.

All documents, information identified as "confidential," including all
copies, excerpts and summaries, must be retained in the custody of
counsel or other persons authorized by this Protective Order during the
pendency of this litigation.

k.

All Confidential Information filed with the Court shall be filed and
maintained under seal until further order of the Court. The filing party
shall include a notice to the Court and other parties that the document
filed contains "Confidential" or "Protected Material" subject to the
provisions of this Order.

3.

Acceptance by a party of any information, document or thing identified as

"confidential" hereunder shall not constitute a concession that the information,
document or thing is confidential. If, subsequent to the acceptance of information or
documents identified as confidential, a party wishes this Court to rule upon the other
party's claim of confidentiality, that party may move this Court for such determination.
In the resolution of such motion, the burden of establishing the confidentiality of the
information or document shall be on the party who made the claim of confidentiality.
However, materials designated as confidential shall be treated as such pending
resolution of the motion by the Court. It is, however, acknowledged by the parties that,
without limitation, the following information may be claimed as being "confidential":
a.

Information that is not normally available to the parties without
restriction;

b.

Information that is not a part of the public domain;

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c.

Information of a third party that is deemed confidential by the third party
and which was made available to the disclosing party pursuant to the
terms of a confidential/restricted information agreement.

Provided that nothing herein shall preclude either party from challenging in court the
confidential status of any document.
4.

In the event that a party shall desire to provide access to information or

documents identified as "confidential" hereunder to any person or category of persons
not identified above, it shall move this Court for an order that such a person or category
of persons may be given access to the information. In the event that the motion is
granted, such person or category of persons may have access to the information,
provided that such person or persons have agreed in writing before such access is given
to be bound by the terms of this Protective Order, or other conditions as the Court may
order.
5.

Upon final termination of this action, including all appeals, all confidential

documents and any other confidential information of the other party which was
provided in discovery, including any copies, excerpts, or summaries that have been
prepared from or utilizing such information by a party, its counsel, or other persons or
entities retained to assist such party in this litigation, shall be returned to the opposing
party's counsel or destroyed by counsel and a certificate of the destruction of such
information provided to opposing counsel; provided, however, that (i) in no event shall
counsel be obligated to turn over to opposing counsel any items which constitute
attorney work product (as defined by applicable law) and (ii) counsel shall be entitled

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to retain one copy of all information as part of its permanent litigation file and such
information shall remain subject to the confidentiality obligations of this Order.
DATED November 22, 2011.
BY THE COURT:
S/ F. A. Gossett
United States Magistrate Judge

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EXHIBIT A
NONDISCLOSURE AGREEMENT
I, ____________________________, certify that I have read the Protective Order
entered in the case of Zech Farms Trucking, Inc. et al. v. Abengoa Bioenergy of
Nebraska, LLC, in the United States District Court for the District of Nebraska, Case No.
8:11cv51. I understand the terms of that Protective Order and I agree to be bound by its
terms.

__________________________________________

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