WorldCare Limited Corporation v. World Insurance Company

Filing 92

STIPULATED PROTECTIVE ORDER.Ordered by Magistrate Judge F.A. Gossett. (TCL )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
WORLDCARE LIMITED CORPORATION, a )
Bermuda corporation,
)
)
Plaintiff,
)
)
v.
)
)
WORLD INSURANCE COMPANY, a
)
Nebraska corporation,
)
)
Defendant.
)

CASE NO. 8:11-CV-99

STIPULATED PROTECTIVE ORDER

This matter is before the Court on the parties’ Joint Motion for Protective Order
(filing 91). The Motion will be granted and, pursuant to the parties’ request, a protective
order is entered in the above-captioned action (this “Action”) as follows:
I.

NATURE OF INFORMATION AND MATERIALS PROTECTED
1.

Applicability.

i.

“Confidential Information” will include any document, information, tangible

or intangible thing, testimony, response to a discovery request or transcript
(collectively “Information”) or any copy of any Information that is designated as such
pursuant to this Joint and Stipulated Protective Order (this “Order”). Any party may
designate any Information as “Confidential” which: (a) constitutes or contains trade
secrets, research, know-how, identification of customers, amounts or sources of any
income, profits, losses, or expenditures, financial, accounting, tax or developmental
information, or information concerning the marketing, sales, purchases, pricing,
commission or business strategies of the producing party; (b) if disclosed to another
party would harm or disadvantage the commercial interests of the producing party; (c)

is subject to a non-disclosure or confidentiality agreement with a third party; or (d)
otherwise meets the standards for protection set forth in Fed. R. Civ. P. 26(c).
ii.

“Confidential Information” does not include, and this Protective Order does

not apply to, documents already in the knowledge or possession of the party to whom
disclosure is made unless that party is already bound by an agreement not to disclose
such information, or information that has been disclosed to the public or third persons
in a manner making such information no longer confidential. Notwithstanding the
foregoing, all Information previously exchanged between or among the parties will be
treated under the applicable designation set forth in this Order.
iv.

This Order shall be applicable to the Parties; officers, directors, members and

employees of the Parties; and the following as defined below:

Other law firm

attorneys, Law firm personnel, Outside consultants/experts, Service bureaus, and
Other qualified persons.
2.

Confidential Information of Third Parties. The term “producing party”

encompasses not only the Parties, but also third parties who may disclose or produce
information, e.g., in response to a subpoena.
3.

“Confidential Information.” All Confidential Information shall be used solely

for the purpose of this Action and for no other purpose whatsoever and shall not be disclosed
to any person or entity except in accordance with the terms of this Order. Notwithstanding
the foregoing, a producing party is not so restricted in the use of its own Confidential
Information that it produces.

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II.

RESTRICTIONS ON ACCESS TO CONFIDENTIAL INFORMATION
4.

Access to information designated “Confidential.” Access to information that is

designated “Confidential” shall be limited to the following on a strictly need-to-know basis
as related to the litigation at issue: (a) officers, directors, members and employees of the
Parties; (b) counsel of record for any Party; (c) Other law firm attorneys; (d) Law firm
personnel; (e) Service bureaus; (f) Outside consultants/experts; (g) the Court and its staff;
and (h) Other qualified persons.
5.

Definitions. Certain terms referenced above are defined as follows:
(a)

“Other law firm attorneys” means attorneys who are members or

employees of the law firms of the outside attorneys of record for any party but who
are not themselves of record.
(b)

“Law firm personnel” means regular full-time or part-time employees

of the law firms of the outside attorneys of record for any party to whom it is
necessary that the Confidential Information in question be disclosed for purposes of
this Action.
(c)

“Outside consultant/expert” means a person, not employed by the

receiving party, who is retained by that Party or its attorneys of record in this matter,
for the purposes of assisting with this litigation (e.g., accountants, consultants,
economists) provided that such consultant/expert signs the attached Exhibit A, which
shall be retained by the attorney for the party making such disclosure to the
consultant/expert.

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(d)

“Service bureau” means a company or person that is engaged by

counsel of record to perform court reporting or clerical-type services in connection
with this Action (e.g., photocopying, imaging, computer data entry).
(e)

“Other qualified persons” means any other person who is (i)

designated by written agreement of the Parties, or (ii) designated by order of the
Court.
6.

“Confidential Information” may be disclosed to a person who is not already

allowed access to such information under this Order if: (a) the Information was previously
received or authored by the person or was authored or received by a director, officer,
employee or agent of the company for which the person is testifying as a designee under
FED. R. CIV. P. 30(b)(6); (b) the designating party is the person or is a party for whom the
person is a director, officer, employee, consultant or agent; or (c) counsel for the party
designating the material agrees that the material may be disclosed to the person.
In the event of disclosure under this section 6, only the reporter, the person, his or her
counsel, the presiding judge, and persons to whom disclosure may be made and who are
bound by this Protective Order, may be present during the disclosure or discussion of
Confidential Information.
Disclosure of material pursuant to this section 6 does not constitute a waiver of the
confidential status of the material so disclosed.
7.

Confidential Information of nonparties. In the event that a Party seeks

discovery from a nonparty to this action, the nonparty may designate its responsive
information “Confidential” so that such information is subject to the terms of this Order.

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8.

Disclosure to certain persons associated with producing party. Nothing in this

Order shall preclude any Party from showing a document designated as Confidential
Information to an individual currently employed by the producing party.
9.

No waiver of right or obligation to object to production. Nothing contained in

this Order shall be construed as a waiver by any Party of its right to object to the subject
matter or scope of any discovery in this Action.
10.

Requests for additional protection. This Order shall be without prejudice to the

right of the Parties to request additional confidentiality protection from the Court.
III.

DESIGNATION AND LABELING OF CONFIDENTIAL INFORMATION
11.

Labeling of documents. Information being designated as protected that is in

documentary or other tangible form shall be designated by the producing party as containing
“Confidential Information” by placing on each page and each thing a legend substantially as
follows:
CONFIDENTIAL
or
CONFIDENTIAL INFORMATION
SUBJECT TO PROTECTIVE ORDER

11.

Designation of other disclosures. Information being designated as protected

that is not in documentary or other tangible form, or that cannot conveniently be labeled,
shall be designated and/or categorized by the producing party in a writing provided to the
receiving party at the time of production.
12.

Preliminary designation of documents being inspected. If a producing party

elects to produce documents and things for inspection, it need not label the documents and
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things in advance of the initial inspection. For purposes of the initial inspection, all
documents within the produced files will be considered as having been marked
“Confidential.” Thereafter, on selection of specified documents for copying by the inspecting
party, the producing party shall mark the original documents and/or the copies of such
documents with the appropriate confidentiality marking at the time the copies are produced
to the inspecting party.
13.

Requests for declassifying Confidential Information. At any time that a Party

believes that a document or information which has been classified by the producing party as
“Confidential” should be declassified from its indicated status, counsel for the Party desiring
declassification shall notify counsel for the producing party, in writing, of its request for
declassification. Such request shall particularly identify the “Confidential” information that
the Party requesting declassification contends is not confidential and the reasons supporting
its contentions. If the Parties cannot resolve the issue of declassification within three (3)
business days after such identification, then it shall be the obligation of the Party requesting
declassification to file an appropriate motion requesting that the Court determine whether the
disputed information should be subject to the terms of this Order. If such a motion is filed,
the disputed information shall still be treated in the manner designated by the producing
party until the Court rules on the motion.
14.

Designation of and procedure for any deposition testimony. The following

procedures shall be followed if Confidential Information of a producing party is discussed or
disclosed in any deposition permitted in this proceeding.
(a)

The producing party shall have the right to exclude from attendance at

the deposition, during such time the producing party reasonably believes Confidential
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Information will be discussed or disclosed, any person other than the deponent, the
court reporter, and persons entitled to access to the Confidential Information.
(b)

At any time on the record during a deposition the producing party may

designate any portion of the deposition and transcript thereof to be “Confidential.” If
such a request is made on the record during the deposition, the reporter shall later
indicate on the cover page of the transcript that the transcript contains “Confidential
Information” and additionally, if less than the entire transcript, shall list the pages and
line numbers of the transcript in which the Confidential Information is contained.
(c)

Alternatively, such a designation of deposition confidentiality may be

made in writing within twenty (20) calendar days after counsel receives a copy of the
transcript of the deposition. The designation shall contain a list of the numbers of the
pages and lines of the transcript that are being designated as containing Confidential
Information. Such designation shall be provided in writing to all counsel of record.
All counsel of record shall treat all deposition transcripts as “Confidential” for the
first twenty (20) calendar days after receipt of such deposition transcripts.
15.

Inadvertent production. If a party inadvertently produces a document

containing Confidential Information without marking or labeling it as such, the information
shall not lose its protected status through such production and the Parties shall take all steps
reasonably required to assure its future confidentiality to the greatest extent possible if the
producing party provides written notice to the receiving party within ten (10) days of
discovering the incorrect designation or the production of the document, whichever is later,
such notice identifying the document in question and of the corrected confidential
designation for the document.
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IV.

FILING OF CONFIDENTIAL INFORMATION AND HEARINGS
16.

Court Filings and Hearings. If a receiving party wishes to file Confidential

Information with the Court, it must file that Confidential Information under seal in
accordance with NebCivR 7.5 and/or any other applicable rule. The receiving and producing
parties may in the alternative agree, however, that materials marked as confidential may be
filed under the ordinary procedure (i.e., not under seal), or may be filed with appropriate
redactions. A receiving party may use Confidential Information during any hearing or trial
that occurs before the Court, and the producing party bears the responsibility to seek any
appropriate order from the Court relating to the protection of the confidentiality of such
Confidential Information used during any such hearing or trial.
V.

MISCELLANEOUS
17.

Return and destruction of documents. Except as set forth below, within sixty

(60) days of final termination of this Action, including the termination of any appeal and/or
the expiration of the time allowed for appeal, the attorneys of record for each receiving party
shall return to each producing party or its attorney of record all Confidential Information
(and any copies thereof) that have been furnished to it by the producing party. At the option
of the receiving party, such information may be destroyed in lieu of being returned, with
appropriate written notice of destruction being furnished by the receiving party. This Section
does not require the receiving party to destroy or alter any of its computer archival and
backup tapes or archival and backup files (for example and without limitation, if a receiving
party might internally circulate a producing party’s confidential document by email, which
email might then automatically be preserved in the receiving party’s computer backup tapes)
provided that such tapes and files shall be kept confidential in accordance with the terms of
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this Order. Attorneys for the parties also may retain copies of documents or materials
marked as Confidential, pursuant to their respective document retention policies.
18.

Subpoena by other courts, agencies or persons. If another court, agency or

person subpoenas or orders production of Confidential Information that a Party has obtained
under the terms of this Order, such Party shall immediately (and as many days as possible
prior to the date of the return of the subpoena) notify the producing party of such subpoena
or orders. The responsibility of the subpoenaed Party to protect the Confidential Information
shall be fulfilled upon the giving of such notice.
19.

Non-termination. The provisions of this Order protecting Confidential

Information shall not terminate at the conclusion of this Action.
20.

No Prejudice. Producing or receiving “Confidential Information,” or otherwise

complying with the terms of this Order, will not: (a) operate as an admission by any party
that any particular “Confidential Information” contains or reflects trade secrets or any other
type of confidential or proprietary information; (b) prejudice the rights of a party to object to
the production of information or material that the party does not consider to be within the
scope of discovery; (c) prejudice the rights of a party to seek a determination by the presiding
judge that particular materials be produced; (d) prejudice the rights of a party to apply to the
presiding judge for further protective orders; or (e) prevent the parties from agreeing in
writing to alter or waive the provisions or protections provided for in this Protective Order
with respect to any particular information or material.

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DATED August 10, 2011.

BY THE COURT:

S/ F.A. Gossett
United States Magistrate Judge

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EXHIBIT A
AGREEMENT TO BE BOUND BY
JOINT AND STIPULATED PROTECTIVE ORDER

I,

, of
, in order to be provided access to information designated
as Confidential Information pursuant to the Joint and Stipulated Protective Order (hereafter
the “Protective Order”) entered in the matter captioned Worldcare Limited Corporation v.
World Insurance Company, United States District Court for the District of Nebraska
(hereafter the “Action”), represent and agree as follows:
1.
I have received and read the Protective Order, understand its terms and agree
to be bound by all of its terms.
2.
For any and all information designated as Confidential Information pursuant to
the terms of the Protective Order to which I am given access in connection with the Action, I
agree to be bound by the provisions of the Protective Order and to handle such Confidential
Information in the manner required by the Protective Order.
3.
I understand that the violation of the terms of the Protective Order will
constitute breach of the Protective Order and may subject me or any entity I represent to
sanctions, including a possible claim for damages against me personally.
4.
I consent to the exercise of jurisdiction over me by the Court presiding over
the Action for purposes of enforcing my compliance with the Protective Order and for
purposes of sanctioning me for any violation of the Protective Order.

Individual’s Printed Name and Entity Name (If Any)

Signature
Date:

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