Cornhusker Energy Lexington, LLC v. English Boiler & Tube, Inc.

Filing 19

STIPULATED PROTECTIVE ORDER regarding filing 18 Joint MOTION for Protective Order Relating To Discovery filed by English Boiler & Tube, Inc. Upon entry, the Clerk is directed to send certified copies of this Order to all counsel of record. Ordered by Senior Judge Lyle E. Strom. (GJG)(Certified copies sent as directed)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA

CORNHUSKER ENERGY LEXINGTON,
LLC,
Case No. 8:11cv92
Plaintiff,
STIPULATED PROTECTIVE
ORDER

v.
ENGLISH BOILER & TUBE, INC.,
Defendant.

By consent of the parties to this action and pursuant to the Federal Rules of Civil Procedure,
the Court makes the following Protective Order, which shall be permanently binding and
enforceable against the parties, their officers, agents, servants, employees, attorneys, and all legal
or equitable successors, and all other persons in active consort or participating with any of them who
received actual notice hereof.
Upon agreement of counsel, and deeming it just and proper so to do, it is hereby ORDERED
that:
1.

This Order governs the handling of all documents, testimony and information

produced, given or filed herein by the parties (“Producing Person”) and designated as
“CONFIDENTIAL.” “Receiving Person” refers to any person that receives documents, testimony,
or information produced, given or filed by a Producing Person and designated as
“CONFIDENTIAL.”

2.

Any party may disclose certain confidential, proprietary, financial or personal

information and/or otherwise privileged documents to opposing counsel in this litigation which
such party seeks to protect from disclosure.
3.

A party may designate as “CONFIDENTIAL” any document produced in this

action, any Answer to Interrogatory or other discovery requests in this action, or any portion of
any deposition (including deposition exhibits) in this action, that contains confidential, personal,
financial or proprietary information by writing, typing or stamping on the face of such document,
answer or transcript the word “CONFIDENTIAL” or by otherwise notifying counsel of the
parties in writing, and, in the case of deposition transcripts and exhibits, also the court reporter.
Should a party object to the designation of a document, answer or transcript as
“CONFIDENTIAL”, it may apply to the Court for a ruling that the document, answer or
transcript, or information contained therein, shall not be so treated after giving prior written
notice of such application to counsel for all parties. Until this Court enters an Order, if any,
changing the designation of the documents, answers or transcripts, it shall be given the
“CONFIDENTIAL” treatment initially assigned as provided for in this Order.
4.

Except upon further Order of this Court, documents, answers or transcripts, or

portions thereof, designated as “CONFIDENTIAL” pursuant to this Order, and information
contained in any such documents, answers or transcripts, shall be disclosed only to the Court,
counsel of record for the parties, the parties, or independent experts (as provided in paragraph 8)
retained by the parties and identified in written discovery responses. No person receiving such
“CONFIDENTIAL” documents, answers, transcripts or information shall disclose them or their

contents to any person other than the Court, counsel of record, the parties or independent experts
(as provided in paragraph 8).
5.

All documents, answers or transcripts and information disclosed, given or

produced by the parties herein shall be used solely for the preparation for and use at the trial of
this action and the case styled, Cornhusker Energy Lexington, LLC v. English, Civil Action No.
8:11cv92, and shall not be used or disclosed by any receiving person for any other purpose,
including any commercial or business purpose.
6.

Except for those individuals identified in paragraph 4, counsel of record receiving

such documents, answers, transcripts or portions thereof marked “CONFIDENTIAL” shall be
allowed to disclose them or their contents to any other person only upon order of the Court or
upon receipt of written permission from opposing counsel granting such disclosure.
7.

Except to provide copies to those individuals identified in paragraph 4, counsel

agrees that none of the documents, answers, transcripts or portions thereof designated as
“CONFIDENTIAL” shall be photocopied or reproduced by any other means without the prior
written consent of opposing counsel or until further order of this Court.
8.

Counsel may permit expert or experts hired by any party in anticipation of

litigation and those individuals identified in paragraph 4, to review the documents subject to this
Protective Order, but counsel must first obtain from each such individual or expert a written
statement confirming the expert’s agreement to comply with every element of this Protective
Order. A copy of said written statement is attached as Exhibit “A.” Said persons and experts
shall agree that the contents of the documents shall not be disclosed to any other person and said
documents shall not be photocopied or reproduced by any other means, except for the purposes
of this litigation.

9.

Notwithstanding the foregoing provisions, this Order shall be without prejudice to

the right of any party to challenge the propriety of discovery on any grounds including, but not
limited to, relevance, privilege and materiality.
10.

The parties may file documents protected herein under Restricted Access with the

Court pursuant to the requirements of this Order and NECivR 5.0.3. All transcripts of depositions,
exhibits, answers to interrogatories, pleadings, briefs, and other documents submitted to the Court
that have been designated as “CONFIDENTIAL,” or which contain information so designated, shall
be filed under restricted access, or if electronic submission is impossible, in sealed envelopes or
other appropriate sealed containers labeled with the case caption, the word “CONFIDENTIAL,” and
a statement in the following form, or such other form as ordered by the Court or required by the
Clerk of the Court:
This envelope contains confidential information filed in this case by [name of party]
that is subject to a Protective Order of the Court. It should not be opened or its
contents disclosed, revealed or made public except by Order of the Court or
agreement of the parties.
Pursuant to this Order and NECivR 7.5, a party filing information identified as
“CONFIDENTIAL” as restricted access with the Court is not required to file a separate motion
requesting leave to file same; provided that, nothing in this provision shall restrict a party from
challenging the confidentiality designation of the document or information as provided in this Order.
11.

Notwithstanding the foregoing provision, this Order shall not restrict in any manner

the right of any party to offer or use as evidence at the trial of this action any of the documents,
answers, transcripts or portions thereof designated as “CONFIDENTIAL” subject to this Protective
Order and nothing contained herein shall be construed as a waiver of any objection which might be
raised as to the admissibility at trial of any evidentiary material.

12.

The inadvertent production of document(s) or other material subject to the attorney-

client privilege, work product doctrine, or any other privilege or immunity does not constitute a
waiver. Promptly upon learning of the inadvertent disclosure, however, the Producing Person must
notify the Receiving Person of the inadvertent production and request the return of the documents.
The Receiving Person must promptly return or confirm destruction of all copies of such materials;
but doing so shall not preclude the Receiving Person from seeking to compel production of those
materials, nor constitute an admission that the materials were, in fact, privileged, and the Producing
Person must preserve any such documents.
13.

All documents, answers and transcripts or portions thereof designated

“CONFIDENTIAL” pursuant to this Order, and all copies of such documents, which may have been
made in compliance with this Order, shall be returned to counsel for the party producing such
information at the conclusion of this action.
14.

This Order may be modified by further order of this Court or by agreement of counsel

for the parties, subject to the approval of the Court, provided that any such agreement be
memorialized in the form of a stipulation that shall be filed with the Clerk and made a part of the
record in the case.
Upon entry, the Clerk is directed to send certified copies of this Order to all counsel of
record.

Dated: May 10, 2011
Respectfully submitted,
ENGLISH BOILER & TUBE, INC.,
Defendant,
________________________________
Michael T. Hilgers (#24483)
Gober Hilgers PLLC
1603 Farnam Street, Ste. 3000
Omaha, NE 68102
Telephone: [phone]
Facsimile: [phone]
[e-mail]

Christopher M. Malone (VSB No. 18678) (Pro hac vice)
Neil S. Talegaonkar (VSB No. 44589) (Pro hac vice)
Thompson & McMullan, P.C.
100 Shockoe Slip
Richmond, Virginia 23219
Telephone: [phone]
Facsimile: [phone]
-ANDCORNHUSKER ENERGY LEXINGTON, LLC,
Plaintiff,
___________________________
John M. Lingelbach (#20429)
Patrice D. Ott (#24435)
KOLEY JESSEN P.C., L.L.O.
One Pacific Place, Suite 800
1125 South 103rd Street
Omaha, NE 68124-1079
E-mail: [e-mail]
E-mail: [e-mail]
So ORDERED and SIGNED this 12th day of May, 2011.
BY THE COURT:
/s/ Lyle E. Strom
_______________________________________
UNITED STATES DISTRICT JUDGE

EXHIBIT “A”

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
CORNHUSKER ENERGY LEXINGTON,
LLC,
Plaintiff,
Case No. 8:11cv92

v.
ENGLISH BOILER & TUBE, INC.,
Defendant.
ACKNOWLEDGMENT

__________________________ hereby acknowledges and agrees that he/she has been
provided a copy of the Stipulated Protective Order entered in the above-captioned action; he/she has
read the Order; he/she agrees to be bound by its terms; and he/she subjects himself/herself to the
jurisdiction of the United States District Court for the District of Nebraska for purposes of any action
and to enforce the terms of the Order.
Date: ____________________________

589362.2