Morris v. R.A. Popp Enterprises, Inc. et al

Filing 54

PROTECTIVE ORDER granting 52 Stipulation Ordered by Magistrate Judge Cheryl R. Zwart. (Zwart, Cheryl)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
JOSEPH J. MORRIS, on behalf of himself
and all others similarly situated,

CASE NO. 8:11-CV-263

Plaintiffs,
vs.

PROTECTIVE ORDER

R.A. POPP ENTERPRISES, INC. d/b/a
WHEATFIELDS EATERY AND BAKERY,
RONALD POPP, RUTH ANN POPP,
KAREN POPP, and ANDREW POPP,
Defendants,

STIPULATION FOR PROTECTIVE ORDER REGARDING
THE CONFIDENTIALITY OF DOCUMENTS AND MATERIALS
Pursuant to Federal Rule of Civil Procedure 26(c), the parties in connection with
the above-captioned litigation agree to the following Stipulation and Protective Order to
facilitate the exchange of discoverable information under the Federal Rules of Civil
Procedure. This Order shall remain in effect unless modified pursuant to the terms
contained in this Order.
WHEREAS, discovery in the above-captioned proceeding has and may continue
to involve the production of documents and information which the parties claim to be
confidential, and the parties desire to pursue discovery with a minimum of delay and
expense.

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IT IS HEREBY ORDERED:
1.

When used in this Order, the word “documents” means any written,

printed, typed, graphic, electronic or otherwise drawn or recorded matter of any kind,
however, produced or reproduced, including but not limited to: all writings, drawings,
graphs, charts, photographs, phonorecords, computer input, computer printouts or other
computer readable media in whatever form, notes, working papers, correspondence,
memoranda, telegrams, telexes, telecopies, cables, reports, records, electronically
stored

information,

books,

journals,

pamphlets,

circulars,

calendars,

diaries,

agreements, consultant’s reports, studies, guidelines, instructions, sound or visual
recordings, and other data compilations from which information can be obtained,
voluntarily produced by the parties or produced in response to discovery responses or
the United States District Court for the District of Nebraska’s (this “Court”) orders.
2.

A party may designate any documents produced in the course of

discovery that it reasonably and in good faith believes contains or reflects proprietary or
confidential information as confidential by (a) if the designating party is producing the
documents, marking them “Confidential” prior to production, and (b) if the designating
party is receiving the documents from another party or a non-party, marking the
documents as “Confidential” and providing a marked copy back to the other party. All
such marked documents are herein after referred to as “Confidential Documents.” In
designating information as “Confidential,” a party will make such designation only as to
that information that it reasonably and in good faith believes contains confidential
information; information or material which is available to third parties or to the public
shall not be classified. The parties’ attorneys shall not permit documents produced by a

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non-party to be distributed or revealed to any non-party witness until the parties have
had at least ten (10) business days to designate the documents as “Confidential.” The
payroll and tip records/information concerning opt-in plaintiffs shall not be considered
“Confidential” for purposes of this Stipulation.
3.

All such Confidential Documents and every portion thereof, shall be

considered “confidential” for purposes of this Order and shall be used by the nonproducing parties only for the preparation for and conduct of this proceeding and not for
any other purpose whatsoever.

The non-producing party may challenge the

confidentiality designation by (1) first attempting to informally resolve the designation
dispute with counsel for the producing party; and (2) if not informally resolved, then by
notifying the designating party in writing and providing a description of the material
which the objecting party believes should be freed from the constraints of this Order.
The party designating such material must then file a motion for protective order within
fourteen (14) days from receipt of such notice and shall bear the burden of justifying
confidential treatment of the disputed material. If such a motion is timely filed, the
protection afforded by the Protective Order shall continue until this Court makes a
decision on the motion. If no motion is timely filed, the protection afforded by this Order
shall terminate as to the material described in the objecting party’s notice.
4.

Neither the Confidential Documents, nor any portion or summary thereof,

shall be given, shown, disclosed or communicated by the non-producing parties in any
way to any person or entity, other than to the parties, attorneys for the parties, experts
of the parties, witnesses for the sole purpose of preparing for or providing testimony in
this proceeding and this Court (all “Authorized Persons”). Any experts or witnesses to

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whom Confidential Documents are disclosed shall be informed of this Order, and shall
agree in writing, to adhere to the provisions hereof by signing and dating an
Acknowledgement which reads as follows:
I have been advised and fully understand that the Documents being
shown to me in this litigation, which is pending before the United States
District Court for the District of Nebraska, generally referred to as Joseph
J. Morris, et al v. R.A. Popp Enterprises, Inc. d/b/a Wheatfields Eatery and
Bakery, Ronald Popp, Ruth Ann Popp, Karen Popp, and Andrew Popp at
case number 8:11-cv-263, are deemed “CONFIDENTIAL” pursuant to a
Protective Order, and I agree to be bound by the requirements of that
Order that I not disclose any information from these Confidential
Documents. I further agree to be subject to the contempt powers of a
court of competent jurisdiction should I violate such Order.
Counsel for each disclosing party shall maintain a file of executed copies of the
Acknowledgments until this action is completed.

Any party shall produce executed

copies of the Acknowledgments upon written demand within five business days of the
request.
5.

Any party or attorney for a party furnishing Documents or disclosing

information pursuant to the terms of this Order shall not waive the confidentiality thereof.
6.

Any Documents designated as confidential may be used in this

proceeding. However, to the extent that anyone other than an Authorized Person is
present at a hearing, deposition, trial, or other proceeding, and subject to any
agreement or this Court’s Order otherwise, there shall be no disclosure of the

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designated Confidential Documents unless and until all such persons are excluded from
the proceeding during the disclosure or use of the material. Every court reporter taking
any testimony relating to designated Confidential Documents shall be informed of and
provided with a copy of this Order and shall adhere to the provision hereof.
7.

Should Confidential Documents be utilized in connection with any

document filed with this Court, or be utilized at any hearing, or should information
governed by this Order be disclosed in any document filed with this Court, or in the
transcript of any hearing, such exhibit, affidavit, discovery answer, or other document or
transcript filed with this Court, the parties and their counsel shall take appropriate
measures to protect against public disclosure of such Documents or information by
noting on the filing that it “Contains Confidential Information.”
8.

At the conclusion of all proceedings in the above-captioned litigation, all

Confidential Documents governed by the terms of this Order (and all copies of such
Confidential Documents) shall be returned, from any person in possession thereof, to
the producing party or destroyed, except that each party’s outside counsel may maintain
one archival copy for the file for five (5) years after the conclusion of all proceedings in
the above-captioned litigation, at which time all such Confidential Documents shall be
destroyed, and the obligations of this Order shall survive as to each party’s outside
counsel during such time as each party’s outside counsel shall maintain such archival
copy. Moreover, the obligations of this Order shall not terminate upon the conclusion of
the above-captioned litigation, but shall continue until further reorder of this Court or
until the producing party claiming confidentiality has waived the same in writing or the
Confidential Documents are shown to no longer be confidential.

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9.

This Order shall in no way affect or impair the right of any party or person

to raise or assert any defense or objection, including but not limited to defenses or
objections to the discovery or production of documents or information, and to the use or
admissibility at any hearing of any evidence, whether or not comprised of Documents or
information governed by this Court’s Order.
10.

This Order shall not be construed as preventing any person from making

use of or disclosing any documents or information which were lawfully in possession of
that person prior to the date of this Order.
11.

This Order is without prejudice to the right of any party to seek relief from

this Court from any of the restrictions provided above upon good cause shown or for
any other grounds provided by applicable law.
12.

The terms of this Order are enforceable from the date this Order is signed

by the Court.
13.

This Court may, upon a showing of good cause, impose sanctions upon

any person who grants access to the Confidential Documents for any purpose not
permitted by this Order or who otherwise violates the terms of this Order, including an
award of consequential damages, sanctions, costs, attorneys’ fees and other
appropriate relief.
14.

After termination of this litigation, the provisions of this Order shall

continue to be binding. This Court retains and shall have continuing jurisdiction over the
parties and recipients of the Protected Documents for enforcement of the provisions of
this Order following termination of this litigation.

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652674.1

IT IS SO STIPULATED:
JOSEPH J. MORRIS, on behalf of
himself and all others similarly situated,
Plaintiffs,

R.A. POPP ENTERPRISES, INC. d/b/a
WHEATFIELDS EATERY AND BAKERY,
RONALD POPP, RUTH ANN POPP, KAREN
POPP, and ANDREW POPP, Defendants,

By: s/ Kelly K. Brandon
Kelly K. Brandon, #20734
DYER LAW, PC, LLO
10730 Pacific Street, Suite 111
Omaha, NE 68114
[phone]
[phone] (facsimile)
[e-mail]

By:
s/ Brenda K. George
Richard D. Vroman, #22538
Heather Voegele-Andersen, #22730
Brenda K. George, #23641
KOLEY JESSEN P.C., L.L.O.
One Pacific Place, Suite 800
1125 South 103rd Street
Omaha, NE 68124-1079
[phone]
[phone] (facsimile)
[e-mail]
[e-mail]
[e-mail]

Attorney for Plaintiffs.

Attorneys for Defendants.
CERTIFICATE OF SERVICE
The undersigned hereby certifies that on this 6th day of July 2012, I electronically
filed the foregoing with the Clerk of the Court using the CM/ECF system which sent
notification of such filing to all CM/ECF participants.

/s/ Brenda K. George
IT IS ORDERED:
The foregoing stipulation is approved and adopted as the terms of the court's
protective order governing the disclosure of information in this case.
7/6/2012

BY THE COURT:
________________________
U.S. Magistrate Judge
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