Union Pacific Railroad Company v. The Timken Company et al

Filing 62

PROTECTIVE ORDER. Ordered by Senior Judge Lyle E. Strom. (TEL)

IN THE UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF NEBRASKA
UNION PACIFIC RAILROAD
COMPANY,

)
)
)
Plaintiff,
)
)
v.
)
)
THE TIMKEN COMPANY and
)
MERIDIAN RAIL ACQUISITION
)
CORP., d/b/a GREENBRIER RAIL )
SERVICES,
)
)
Defendants.
)
______________________________)

8:11CV373

PROTECTIVE ORDER

The following Protective Order incorporating the
parties’ agreed upon language is ORDERED:
1.

If a party or an attorney for a party has a good

faith belief that certain documents or other materials or
information (including information in digital format) are subject
to disclosure pursuant to a discovery or other request, are
confidential and should not be disclosed, other than in
connection with this action pursuant to this Protective Order,
the party or attorney shall mark each such document or other
materials as "CONFIDENTIAL."
2.

In the event a party inadvertently produces

confidential documents or materials without the designation
“CONFIDENTIAL", it shall not be deemed a waiver of the
confidential nature of the documents or materials provided that
the producing party notify all other parties of the inadvertent
production within a reasonable time after the producing party
discovers the inadvertent production.

3.

If a party or an attorney for a party disputes

whether a document or other material should be marked
“CONFIDENTIAL," the parties and/or attorneys shall attempt to
resolve the dispute between them.

If they are unsuccessful, the

party or attorney challenging the "CONFIDENTIAL" designation
shall do so by filing an appropriate motion and no disclosure
shall take place until such motion has been ruled upon.
4.

No party or attorney or other person subject to

this Protective Order shall distribute, transmit, or otherwise
divulge any document or other material which is marked
"CONFIDENTIAL," or the contents thereof, except in accordance
with this Protective Order.

At the conclusion of the proceedings

in this action, all documents and materials marked
"CONFIDENTIAL," including any copies or extracts or summaries
thereof, or documents containing or derived from information
taken therefrom, shall be returned to producing counsel with
producing counsel to pay the shipping costs associated with the
return of such documents or materials.

Upon the consent of the

producing party, which consent shall not be unreasonably
withheld, the recipient of "CONFIDENTIAL" materials may, as an
alternative to returning the CONFIDENTIAL" materials to the
producing party, submit a written certification that all
“CONFIDENTIAL" materials have been destroyed.

Provided, however,

that a party that receives "CONFIDENTIAL" materials that it was
entitled to receive irrespective of the above captioned
litigation, shall not be required to either return or certify the
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destruction of such "CONFIDENTIAL" materials.

Notwithstanding

the other provisions of this paragraph, outside counsel for each
party may retain one (1) complete archival copy of the pleadings,
motion papers, transcripts, exhibits admitted in any deposition,
documents filed with the court, legal memoranda, correspondence
or attorney work product, regardless of whether such materials
contain confidential material.

Counsel retaining “CONFIDENTIAL”

materials shall remain bound to preserve the confidentiality of
such documents in accordance with the provisions of this
Protective Order, including the limitations on use and disclosure
for purposes other than pursuit of the current action.
5.

Any document or other material which is marked

"CONFIDENTIAL," or the contents thereof, may be used by a party,
or a party's attorney, expert witness, consultant, or other
person to whom disclosure is made, only for the purpose of this
action.

Nothing contained in this Protective Order shall prevent

the use of any document or other material which is marked
"CONFIDENTIAL," or the contents thereof, as evidence at trial, or
at any deposition taken in this action.

The parties, attorneys,

and other persons to whom disclosure is made shall take
appropriate measures at trial, at depositions, and in the filing
of any confidential documents or materials with the Court to
protect the confidentiality of any document or other material
which is marked" CONFIDENTIAL," or the contents thereof.

Such

measures may include filing a motion requesting the Court to seal

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a document or a portion thereof.

The parties and attorneys shall

not otherwise file documents under seal.
6.

Any document or other material which is marked

"CONFIDENTIAL," or the contents thereof may only be disclosed to
counsel for the parties to this action who are involved in the
conduct of this action; to the partners, associates, secretaries,
paralegals, assistants, agents and employees of such counsel; and
to Court officials involved in this action (including persons
such as court reporters and persons operating video recording
equipment at depositions); but, as to all such persons identified
in this paragraph, only to the extent reasonably necessary to
render professional and related services in the action.

Subject

to the provisions of paragraphs 7, 8 and 9 below, such documents
or other materials which are marked “CONFIDENTIAL," may also be
disclosed to:
a. the parties;
b. any person designated by the Court in the
interest of justice, upon such terms as the
Court may deem proper;
c. to persons noticed for depositions or
designated as trial witnesses, but only to
the extent reasonably necessary to prepare
them to testify; and
d. to outside consultants or experts retained
for the purpose of assisting counsel in this
action, but only to the extent reasonably
necessary for them to provide such services
in this action.
7.

Any individual to whom disclosure is to be made

pursuant to subparagraphs 6.b. through 6.d. above must first sign

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a form entitled "Non disclosure Agreement" in the form set forth
as Exhibit A to this Protective Order, containing:
a. a recital that the signatory has read and
understands this Protective Order;
b. a recital that the signatory understands
that disclosure of documents or other
materials marked “CONFIDENTIAL" not
authorized by this Protective Order may be
subject to sanctions by the Court, including
contempt proceedings; and
c. a statement that the signatory consents to
the exercise of personal jurisdiction over
him or her by this Court for the purpose of
enforcing this Protective Order. Signed
acknowledgments shall be maintained by
counsel responsible for such disclosures and
will be provided to all other counsel upon
request.
8.

Before disclosing documents or other materials

marked "CONFIDENTIAL" to any person or organization listed in
paragraph 6 who the producing party has identified as a
competitor or potential competitor (or an employee, consultant,
agent, representative or affiliate of such competitor or
potential competitor), the party intending to disclose shall give
at least 10 business days' advance notice in writing to the
producing party's counsel who designated such documents or other
materials as "CONFIDENTIAL," stating the names and addresses of
the person(s) to whom the disclosure will be made, identifying
with particularity the items to be disclosed, and stating the
purpose(s) of such disclosure.

If, within the 10-day period, a

motion is filed objecting to the proposed disclosure, disclosure
is not permissible unless and until the Court has denied such
motion.
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9.

Nothing contained in this Order shall act as a

waiver of the right of either party to seek a supplemental
protective order from the Court requiring that certain documents,
information or materials be produced or disclosed on an
"ATTORNEYS EYES ONLY" basis in order to seek greater protection
from production or disclosure than that provided by the
"CONFIDENTIAL" designation.
10.

Counsel for parties to this action to whom any

documents or other materials marked "CONFIDENTIAL" are disclosed
pursuant to this Protective Order shall maintain a list of all
disclosures made by such counsel to any person pursuant to
paragraphs 6, 7, 8 or 9.

Such list shall contain (i) the name

and address of the person to whom the disclosure is made; and
(ii) the date the disclosure is made.
11.

Nothing contained in this Protective Order and no

action taken pursuant to it shall prejudice the right of any
party to contest the alleged relevancy, admissibility, or
discoverability of the documents or other materials marked
"CONFIDENTIAL” and disclosed pursuant to this Protective Order.
DATED this 17th day of August, 2012.
BY THE COURT:
/s/ Lyle E. Strom
____________________________
LYLE E. STROM, Senior Judge
United States District Court

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EXHIBIT A
The undersigned, having read the Confidentiality
Agreement and Protective Order (the "Protective Order") agreed to
in this action and intending to be legally bound thereby, agrees
as follows:
All Confidential information disclosed to the
undersigned pursuant to the Protective Order shall be used only
in connection with the above-captioned action and shall not be
used for any business or other purpose.
Such Confidential information shall be disclosed to and
discussed only with the parties to this suit, the parties' legal
counsel, and other persons who have, in accordance with the
provisions of the Protective Order, executed a similar
Nondisclosure Agreement.

Neither Confidential documents nor

information acquired or extracted from such documents will be
divulged or made accessible to any other person, company, firm or
news entity whatsoever, except in compliance with this
Nondisclosure Agreement.

This Nondisclosure Agreement does not

limit the right of the signatory to testify at trial in this
action or to prepare documents or other materials for submission
at trial in this action.
The undersigned agrees to take all appropriate and
necessary precautions to avoid loss or inadvertent disclosure of
documents or information designated as "CONFIDENTIAL" under the
Protective Order.

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The undersigned affirms that he or she is not employed
by any competitor of Plaintiff, Union Pacific Railroad Company,
or its affiliated companies or corporations.

The undersigned

further agrees that upon the final termination of this
litigation, he or she shall return any such Confidential
information which may be in his or her possession or control
(including all abstracts, summaries, descriptions, lists,
synopses, pleadings, or other writings reflecting or revealing
such information), to the attorney from whom he or she received
such documents and materials.

The undersigned understands that

unauthorized disclosure of Confidential information may subject
the unauthorized disclosing person to sanctions by the Court
enforcing the Protective Order, and consents to the exercise of
personal jurisdiction over the undersigned by such Court for the
purpose of enforcing the Protective Order.

Dated:
Signature:
Name:
Address:
Employer:

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