Erickson v. Credit Bureau Services, Inc. et al

Filing 78

STIPULATED PROTECTIVE ORDER on the parties' request for a protective order. Ordered by Magistrate Judge Thomas D. Thalken. (MKR)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
WILLIAM P. ERICKSON,
On behalf of himself and all others
similarly situated,
Plaintiff,
vs.
CREDIT BUREAU SERVICES, INC.,
d/b/a PROFESSIONAL CREDIT
MANAGEMENT, DANIEL A. MARTIN,
and C.J. TIGHE,
Defendants.

)
)
)
)
)
)
)
)
)
)
)
)
)
)

8:11CV215
STIPULATED PROTECTIVE
ORDER

This matter comes before the court on the parties’ request for a protective order.
1.

PURPOSES AND LIMITATIONS
Disclosure and discovery activity in this action are likely to involve production of

confidential, proprietary, or private information for which special protection from public
disclosure and from use for any other purpose other than prosecuting this litigation may
be warranted. Accordingly, the parties hereby stipulate to and petition the court to enter
the following Stipulated Protective Order. The parties acknowledge that this Order does
not confer blanket protections on all disclosures or responses to discovery and that the
protection it affords from public disclosure and use extends only to the limited information
or items that are entitled to confidential treatment under the applicable legal principles.
The parties further acknowledge, as set forth in Section 12.3, below, that this Stipulated
Protective Order does not entitle them to file confidential information under seal; Local
Rules NECivR 5.0.3 and 7.5 and General Rule NEGenR 1.3(c) set forth the procedures
that must be followed and the standards that will be applied when a party seeks permission
from the court to file material under seal or restricted access.
2.

DEFINITIONS
2.1

Challenging Party: a Party or Non-Party that challenges the designation of

information or items under this Order.

2.2

"CONFIDENTIAL" Information or Items: information (regardless of how it is

generated, stored or maintained) or tangible things that qualify for protection under Fed.
R. Civ. P. 26(c).
2.3

Counsel (without qualifier): Outside Counsel of Record and House Counsel

(as well as their support staff).
2.4

Designating Party: a Party or Non-Party that designates information or items

that it produces in disclosures or in responses to discovery as "CONFIDENTIAL."
2.5

Disclosure or Discovery Material: all items or information, regardless of the

medium or manner in which it is generated, stored, or maintained (including, among other
things, testimony, transcripts, and tangible things), that are produced or generated in
disclosures or responses to discovery in this matter.
2.6

Expert: a person with specialized knowledge or experience in a matter

pertinent to the litigation who has been retained by a Party or its counsel to serve as an
expert witness or as a consultant in this action.
2.7

House Counsel: attorneys who are employees of a party to this action.

House Counsel does not include Outside Counsel of Record or any other outside counsel.
2.8

Non-Party: any natural person, partnership, corporation, association, or other

legal entity not named as a Party to this action.
2.9

Outside Counsel of Record: attorneys who are not employees of a party to

this action but are retained to represent or advise a party to this action and have appeared
in this action on behalf of that party.
2.10

Party: any party to this action, including all of its officers, directors,

employees, consultants, retained experts, and Outside Counsel of Record (and their
support staffs).
2.11

Producing Party: a Party or Non-Party that produces Disclosure or Discovery

Material in this action.
2.12

Professional Vendors: persons or entities that provide litigation support

services (e.g., photocopying, videotaping, translating, preparing exhibits or demonstrations,
and organizing, storing, or retrieving data in any form or medium) and their employees and
subcontractors.

2

2.13

Protected Material: any Disclosure or Discovery Material that is designated

as "CONFIDENTIAL."
2.14 Receiving Party: a Party that receives Disclosure or Discovery Material from
a Producing Party.
3.

SCOPE
The protections conferred by this Stipulation and Order cover not only Protected

Material (as defined above), but also (1) any information copied or extracted from
Protected Material; (2) all copies, excerpts, summaries, or compilations of Protected
Material; and (3) any testimony, conversations, or presentations by Parties or their Counsel
that might reveal Protected Material. However, the protections conferred by this Stipulation
and Order do not cover the following information: (a) any information that is in the public
domain at the time of disclosure to a Receiving Party as a result of publication not involving
a violation of this Order, including becoming part of the public record through trial or
otherwise; and (b) any information known to the Receiving Party after the disclosure from
a source who obtained the information lawfully and under no obligation of confidentially to
the Designating Party. Any use of Protected Material at trial shall be governed by a
separate agreement or order.
4.

DURATION
Even after final disposition of this litigation, the confidentially obligations imposed

by this Order shall remain in effect until a Designating Party agrees otherwise in writing or
a court order otherwise directs. Final disposition shall be deemed to be the later of (1)
dismissal of all claims and defenses in this action, with or without prejudice; and (2) final
judgment herein after the completion and exhaustion of all appeals, rehearings, remands,
trials, or reviews of this action, including the time limits for filing any motions or applications
for extensions of time pursuant to applicable law.
5.

DESIGNATING PROTECTED MATERIAL
5.1

Exercise of Restraint and Care in Designating Material for Protection:

Each Party or Non-Party that designates information or items for protection under
this Order must take care to limit any such designation to specific material that qualifies
under the appropriate standards. The Designating Party must designate for production

3

only those parts of material, documents, items, or oral or written communications that
qualify - so that other portions of the material documents, items, or communications for
which protection is not warranted are not swept unjustifiably within the ambit of this Order.
Mass, indiscriminate, or routineized designations are prohibited. Designations that
are shown to be clearly unjustified or that have been made for an improper purpose (e.g.
to unnecessarily encumber or retard the case development process, or to impose
unnecessary expenses and burdens on other parties), expose the Designating Party to
sanctions.
If it comes to a Party's or a non-party's attention that information or items that it
designated for protection do not qualify for protection, that Designating Party must promptly
notify all other Parties that it is withdrawing the mistaken designation.
5.2 Manner and Timing of Designations: Except as otherwise provided in this Order
(see, e.g., second paragraph of section 5.2(a) below), or as otherwise stipulated or
ordered, Disclosure or Discovery Material that qualifies for protection under this Order must
be clearly so designated before the material is disclosed or produced.
Designation in conformity with this Order requires:
(a) for information in documentary form (e.g., paper or electronic documents,
but excluding transcripts of depositions or other pretrial or trial proceedings), that the
Producing Party affix the legend "CONFIDENTIAL" to each page that contains protected
material. If only a portion or portions of the material on a page qualifies for protection, the
Producing Party also must clearly identify the protected portion(s) (e.g., by making
appropriate markings in the margins).
A Party or non-party that makes original documents or materials available for
inspection need not designate them for production until after the inspecting Party has
indicated which material it would like copied and produced. During the inspection and
before designation, all of the material made available for inspection shall be deemed
"CONFIDENTIAL." After the inspecting Party has identified the document it wants copied
and produced, the Producing Party must determine which documents, or portions thereof,
qualify for protection under this Order. Then, before producing the specified documents,
the Producing Party must affix the "CONFIDENTIAL" legend to each page that contains

4

Protected Material. If only a portion or portions of the material on a page qualifies for
protection, the Producing Party also must clearly identify the protected portion(s) (e.g., by
making appropriate markings in the margins).
(b) for testimony given in deposition or in other pretrial or trial proceedings,
that the Designating Party identify on the record, before the close of the deposition,
hearing, or other proceeding, all protected testimony.
(c) for information produced in some form other than documentary and for
any other tangible items, that the Producing Party affix in a prominent place on the exterior
of the container or containers in which the information or item is stored the legend
"CONFIDENTIAL." If only a portion or portions of the information or item warrant protection,
the Producing Party, to the extent practicable, shall identify the protected portion(s).
5.3 Inadvertent Failures to Designate: If timely corrected, an inadvertent failure to
designate qualified information or items does not, standing alone, waive the Designating
Party's right to secure protection under this Order for such material. Upon timely correction
of designation, the Receiving Party must make reasonable efforts to assure that the
material is treated in accordance with the provisions of this Order.
6.

CHALLENGING CONFIDENTIALITY DESIGNATIONS
6.1 Timing of Challenges: Any Party or Non-Party may challenge a designation of

confidentiality at any time.

Unless a prompt challenge to a Designating Party's

confidentiality designation is necessary to avoid foreseeable substantial unfairness,
unnecessary economic burdens, or a significant disruption or delay of the litigation, a Party
does not waive its right to challenge a confidentiality designation by electing not to mount
a challenge promptly after the original designation is disclosed.
6.2 Meet and Confer: The Challenging Party shall initiate the dispute resolution
process by providing written notice of each designation it is challenging and describing the
basis for each challenge. To avoid ambiguity as to whether a challenge has been made,
the written notice must recite that the challenge to confidentiality is being made in
accordance with this specific paragraph of the Protective Order. The parties shall attempt
to resolve each challenge in good faith and must begin the process by conferring directly
(in voice to voice dialogue; other forms of communication are not sufficient) within 14 days

5

of the date of service of notice. In conferring, the Challenging Party must explain the basis
for its belief that the confidentiality designation was not proper and must give the
Designating Party an opportunity to review the designated material, to reconsider the
circumstances, and, if no change in designation is offered, to explain the basis for the
chosen designation. A Challenging Party may proceed to the next stage of the challenge
process only if it has engaged in this meet and confer process first or establishes that the
Designating Party is unwilling to participate in the meet and confer process in a timely
manner.
6.3 Judicial Intervention: If the Parties cannot resolve a challenge without court
intervention, the Designating Party shall file and serve a motion to retain confidentiality
under Fed. R. Civ. P 5.2 (and in compliance with NECivR 5.0.3 or 7.5 and NEGenR 1.3(c),
if applicable) within 21 days of initial notice of challenge or within 14 days of the parties
agreeing that the meet and confer process will not resolve their dispute, whichever is
earlier. Each such motion must be accompanied by a competent declaration affirming that
the movant has complied with the meet and confer requirements imposed in the preceding
paragraph. Failure by the Designating Party to make such a motion including the required
declaration within 21 days (or 14 days, if applicable) shall automatically waive the
confidentiality designation for each challenged designation. In addition, the Challenging
Party may file a motion challenging a confidentiality designation at any time if there is good
cause for doing so, including a challenge to the designation of a deposition transcript or
any portions thereof. Any motion brought pursuant to this provision must be accompanied
by a competent declaration affirming that the movant has complied with the meet and
confer requirements imposed by the preceding paragraph.
The burden of persuasion in any challenge proceeding shall be on the Designating
Party. Frivolous challenges, and those made for an improper purpose (e.g. to harass or
impose unnecessary expenses and burdens on other parties) may expose the Challenging
Party to sanctions. Unless the Designating Party has waived the confidentiality designation
by failing to file a motion to retain confidentiality as described above, all parties shall
continue to afford the material in question the level of protection to which it is entitled under
the Producing Party's designation until the court rules on the challenge.

6

7.

ACCESS TO AND USE OF PROTECTED MATERIAL
7.1 Basic Principles: A Receiving Party may use Protected Material that is disclosed

or produced by another Party or by a Non-party in connection with this case only for
prosecuting, defending, or attempting to settle this litigation. Such Protected Material may
be disclosed only to the categories of persons and under the conditions described in this
Order. When the litigation has been terminated, a Receiving Party must comply with the
provisions of section 13 below (FINAL DISPOSITION).
Protected Material must be stored and maintained by a Receiving Party at a location
and in a secure manner that ensures that access is limited to the persons authorized under
this Order.
7.2 Disclosure of "CONFIDENTIAL" Information or Items: Unless otherwise ordered
by the court or permitted in writing by the Designating Party, a Receiving Party may
disclose any information or item designated "CONFIDENTIAL" only to:
(a) the Receiving Party's Outside Counsel of record in this action, as well as
employees of said Outside Counsel to whom it is reasonably necessary to disclose the
information for this litigation and who have signed the "Acknowledgment and Agreement
to be Bound" that is attached hereto as Exhibit A;
(b) the officers, directors, and employees (including House Counsel) of the
Receiving Party to whom disclosure is reasonably necessary for this litigation and who
signed the "Acknowledgment and Agreement to be Bound" (Exhibit A);
(c) Experts (as defined in this Order) of the Receiving Party to whom disclosure is
reasonably necessary for this litigation and who have signed the "Acknowledgment and
Agreement to be Bound" (Exhibit A);
(d) the court and its personnel;
(e) court reporters and their staff, professional jury or trial consultants, mock jurors,
and Professional Vendors to whom disclosure is reasonably necessary for this litigation
and who have signed the "Acknowledgment and Agreement to be Bound" (Exhibit A);
(f) during their depositions, witnesses in the action to whom disclosure is reasonably
necessary and who have signed the "Acknowledgment and Agreement to be Bound"
(Exhibit A), unless otherwise agreed by the Designating Party or ordered by the court.

7

Pages of transcribed deposition testimony or exhibits to depositions that reveal Protected
Material must be separately bound by the court reporter and may not be disclosed to
anyone except as permitted under this Stipulated Protective Order;
(g) the author of the document containing the information or a custodian or other
person who otherwise possessed or knew the information.
8. PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED IN OTHER
LITIGATION
If a Party is served with a subpoena or an order issued in other litigation that
compels disclosure of any information or items designated in this action as
"CONFIDENTIAL," that Party must:
(a) promptly notify in writing the Designating Party. Such notification shall include
a copy of the subpoena or court order;
(b) promptly notify in writing the party who caused the subpoena or order to issue
in the other litigation that some or all of the material covered by the subpoena or order is
subject to this Protective Order. Such notification shall include a copy of this Stipulated
Protective Order; and
(c) cooperate with respect to all reasonable procedures sought to be pursued by the
Designating Party whose Protected Material may be affected.
If the Designating Party timely seeks a protective order, the Party served with the
subpoena or court order shall not produce any information designated in this action as
"CONFIDENTIAL" before a determination by the court from which the subpoena or order
is issued, unless the Party has obtained the Designating Party's permission.

The

Designating Party shall bear the burden and expense of seeking protection in the court of
its confidential material - and nothing in these provisions should be construed as
authorizing or encouraging a Receiving Party in this action to disobey a lawful directive
from another court.
9.

A NON-PARTY'S PROTECTED MATERIAL SOUGHT TO BE PRODUCED IN THIS

LITIGATION
(a) The terms of this Order are applicable to information produced by a Non-Party
in this action and designated as "CONFIDENTIAL." Such information produced by

8

Non-Parties in connection with this litigation is protected by the remedies and relief
provided by this Order. Nothing in these provisions should be construed as prohibiting a
Non-Party from seeking additional protections.
(b) In the event that a Party is required, by a valid discovery request, to produce a
Non-Party's confidential information in its possession, and the Party is subject to an
agreement with the Non-Party not to produce the Non-Party's confidential information, then
the Party shall:
(1) promptly notify in writing the Requesting Party and the Non-Party that
some or all of the information requested is subject to a confidentiality agreement with a
Non-Party;
(2) promptly provide the Non-Party with a copy of the Stipulated Protective
Order in this litigation, the relevant discovery request(s), and a reasonably specific
description of the information requested; and
(3) make the information requested available for inspection by the Non-Party.
(c) If the Non-Party fails to object or seek a protective order from this court within
14 days of receiving the notice and accompanying information, the Receiving Party may
produce the Non-Party's confidential information responsive to the discovery request. If
the Non-Party timely seeks a protective order, the Receiving Party shall not produce any
information in its possession or control that is subject to the confidentiality agreement with
the Non-Party before a determination by the court. [The purpose of this provision is to alert
the interested parties to the existence of confidentiality rights of a Non-Party and to afford
the Non-Party an opportunity to protect its confidentiality interests in this court.] Absent a
court order to the contrary, the Non-Party shall bear the burden and expense of seeking
protection in this court of its Protected Material.
10.

UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL
If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed

Protected Material to any person or in any circumstance not authorized under this
Stipulated Protective Order, the Receiving Party must immediately (a) notify in writing the
Designating Party of the unauthorized disclosures, (b) use its best efforts to retrieve all
unauthorized copies of the Protected Material, (c) inform the person or persons to whom

9

unauthorized disclosures were made of all the terms of this Order, and (d) request such
person or persons to execute the "Acknowledgment and Agreement to be Bound" (Exhibit
A).
11.

INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE PROTECTED

MATERIAL
When a Producing Party gives notice to Receiving Parties that certain inadvertently
produced material is subject to a claim of privilege or other protection, the obligations of
the Receiving Parties are those set forth in Federal Rule of Civil Procedure 26(b)(5)(B).
This provision is not intended to modify whatever procedure may be established in an
e-discovery order that provides for production without prior privilege review. Pursuant to
Federal Rule of Evidence 502(d) and (e), insofar as the parties reach an agreement on the
effect of disclosures of a communication or information covered by the attorney-client
privilege or work product protection, the parties may incorporate their agreement in the
stipulated protective order submitted to the court.
12.

MISCELLANEOUS
12.1 Right to Further Relief: Nothing in this Order abridges the right of any person

to seek its modification by the Court in the future.
12.2 Right to Assert Other Objections: By stipulating to the entry of this Protective
Order no Party waives any right it otherwise would have to object to disclosing or producing
any information or item on any ground not addressed in this Stipulated Protective Order.
Similarly, no Party waives any right to object on any ground to use in evidence of any of
the material covered by this Protective Order.
12.3 Filing Protected Material: Without written permission from the Designated Party
or a court order secured after appropriate notice to all interested persons, a Party may not
file in the public record in this action any Protected Material. A Party who seeks to file
under seal or restricted access any Protected Material must comply with Local Rules
NECivR 5.0.3 and 7.5 and NEGenR 1.3(c). Protected Material may only be filed under seal
or restricted access pursuant to court order authorizing the restricting of the specific
Protected Material at issue. Pursuant to Local Rules NECivR 5.0.3 and 7.5 and NEGenR
1.3(c), a restricting order will issue only upon request establishing that the Protected

10

Material at issue is privileged, protectable as a trade secret, or otherwise entitled to
protection under the law. If a Receiving Party's request to file Protected Material under
seal or restricted access pursuant to NECivR 5.0.3 and 7.5 and NEGenR 1.3(c) is denied
by the court, then the Receiving Party may file the information in the public record pursuant
to NECivR 5.0.3(c)(2) or 7.5(a)(iii) unless otherwise instructed by the court.
13.

FINAL DISPOSITION
Within 60 days after the final disposition of this action, as defined in paragraph 4,

each Receiving Party must return all Protected Material to the Producing Party or destroy
such material. As used in this subdivision, "all Protected Material" includes all copies,
abstracts, compilations, summaries, and any other format reproducing or capturing any of
the Protected Material. Whether the Protected Material is returned or destroyed, the
Receiving Party must submit a written certification to the Producing Party (and, if not the
same person or entity, to the Designating Party) by the 60 day deadline that (1) identifies
(by category, where appropriate) all the Protected Material that was returned or destroyed
and (2) affirms that the Receiving Party has not retained any copies, abstracts,
compilations, summaries or any other format reproducing or capturing any of the Protected
Material. Notwithstanding this provision, Counsel are entitled to retain an archival copy of
all pleadings, motion papers, trial, deposition, and hearing transcripts, legal memoranda,
correspondence, deposition and trial exhibits, expert reports, attorney work product, and
consultant and expert work product, even if such materials contain Protected Material. Any
such archival copies that contain or constitute Protected Material remain subject to this
Protective Order as set forth in Section 4 (DURATION).
IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD.
Dated this 11th day of April, 2012

/s/William L. Reinbrecht, #20138
Attorneys for the Plaintiff

Dated this 11th day of April, 2012

/s/J. Scott Paul, #16635
Attorneys for Defendants

IT IS SO ORDERED.
Dated this 12th day of April, 2012.
BY THE COURT:
s/ Thomas D. Thalken
United States Magistrate Judge
11

EXHIBIT A
ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND
I,_________________________, of________________________, declare under
penalty of perjury that I have read in its entirety and understand the Stipulated Protective
Order that was issued by the United States District Court for the District of Nebraska on
the____day of________, 2012, in the case of William P. Erickson, On behalf of himself and
all others similarly situated vs. Credit Bureau Services, Inc., d/b/a Professional Credit
Management, Daniel A. Martin, and C.J. Tighe, at Case No. 8:11CV215. I agree to comply
with and to be bound by all the terms of this Stipulated Protective Order and I understand
and acknowledge that failure to so comply could expose me to sanctions and punishment
in the nature of contempt. I solemnly promise that I will not disclose in any manner any
information or item that is subject to this Stipulated Protective Order to any person or entity
except in strict compliance with the provisions of this Order.
I further agree to submit to the jurisdiction of the United States District Court for the
District of Nebraska for the purpose of enforcing the terms of this Stipulated Protective
Order, even if such enforcement proceedings occur after termination of this action.
I hereby appoint__________________of______________________, as my
Nebraska agent for service in connection with this action or any proceedings related to
enforcement of this Stipulated Protective Order.
Date:_____________________
City and State where sworn and signed:__________________________

Printed Name:_______________________________

Signature:___________________________________