Deed Research, Inc. v. Willis of Minnesota, Inc. et al

Filing 29

STIPULATED PROTECTIVE ORDER granting 27 Stipulation. Ordered by Senior Judge Lyle E. Strom. (ADB, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA

DEED RESEARCH, INC., doing business
as DRI Title & Escrow, a Nebraska
corporation,
Plaintiff,
v.
WILLIS OF MINNESOTA, INC., doing
business as Willis of Nebraska, a foreign
corporation; and CAROLINE KRUEGER,
an individual,
Defendants.

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Case No. 8:11-CV-00398
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) STIPULATED PROTECTIVE ORDER
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This matter comes before the Court on the Stipulation for Protective Order (Filing
No. 27) submitted by Plaintiff Deed Research, Inc. d/b/a DRI Title & Escrow
(“Plaintiff”) and Defendants Willis of Minnesota, Inc. d/b/a Willis of Nebraska and
Caroline Krueger (collectively, “Defendants”). Having reviewed the Stipulation and
being duly advised in the premises thereof, the Court hereby enters the following
Stipulated Protective Order (“Protective Order”).
1.

It is anticipated that in the course of discovery in this action (the

“Litigation”), either Plaintiff or any of Defendants (collectively, the “Parties” and
individually, a “Party”) may produce Confidential Information. For the purposes of this
Protective Order, “Confidential Information” means and includes information or
documents that: (i) contain or constitute non-public, commercially-sensitive information;
(ii) contain or constitute technical, financial and/or other business information (e.g.
pricing, customer lists, business and/or marketing plans or analysis, license agreements
and the like) the public disclosure of which would cause competitive harm to the Party
producing the information or document; (iii) is subject to an express obligation of

confidentiality owed by a Party to a third-party; (iv) contains personally identifiable
information about an individual as described in Fed. R. Civ. P. 5.2 or NECivR
5.03(b)(1)-(5); or (v) constitutes a trade secret under the laws of the State of Nebraska.
2.

This Protective Order shall be applicable to all Confidential Information

designated as Confidential in accordance with the procedures set forth in this Protective
Order by either of the Parties, by any additional persons or entities hereafter served with
summons or entering an appearance herein or produced by any non-party in response to a
subpoena or other judicial process. For the purposes of this Protective Order, the term
“documents” includes, without limitation, documents or materials, items, testimony
elicited in depositions, or other information, including information produced in electronic
format, and also includes any derivative, compilation or summary of any “documents,”
and the information therein. Except with respect to personally identifiable information
about an individual as described in Fed. R. Civ. P. 5.2 or NECivR 5.03(b)(1)-(5),
Confidential Information shall not include documents or information which (a) is or
becomes publicly known other than through a breach of this Protective Order; or (b) is
lawfully received by a person from a source other than the Party designating the
documents or information as Confidential Information subject to this Protective Order,
which source is not itself known by the receiving Party to be bound by a confidentiality
agreement with the Party designating the documents or information as Confidential
Information subject to this Protective Order.
3.

Any Party to this Litigation or any other person who produces or supplies

information, documents or tangible items in the course of discovery (hereafter
“Designating Party” or “Producing Party”) may designate as Confidential Information

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subject to this Protective Order any documents, material or information that it reasonably
and in good faith believes is a trade secret or constitutes confidential, private, or similarly
protected information under applicable statutory or common law; however, nothing in
this Protective Order shall be construed as a waiver by any Party of the right to assert a
timely, good faith and reasonable objection to any request for discovery or to production
of documents or information on the basis that the information sought is confidential,
private or similarly protected information under applicable statutory or common law.
4.

Confidential Information which a Party does produce, either voluntarily or

by Court Order, shall be designated as Confidential Information either by marking
“CONFIDENTIAL” on the face of the original or photocopy of the document,
information or tangible item (“tangible item” includes a CD or other electronic form of
information) being produced and upon each page so designated, if practicable, or by
identifying the Bates Number, page number or range of numbers constituting or
including Confidential Information. With respect to a deposition, a Party or counsel for a
non-party deponent may designate testimony or any exhibits to a deposition as
Confidential Information by identifying such testimony or exhibits as Confidential
Information during the deposition or, within thirty (30) days following receipt of the
deposition transcript, by identifying in a writing sent to all counsel and to the deponent, if
not a party, the portions of the transcript and any exhibits which are being designated as
Confidential Information.
5.

Confidential Information shall not be furnished or disclosed to any person

except as provided for herein, and shall be used solely for the purposes of this Litigation
and shall not be used for any business or other purpose.

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6.

Confidential Information may be disclosed only to the following persons:
A.

A

This Court and its personnel.

B.

Counsel of record in this Litigation, and their respective clients

and client representatives.
C.

Other attorneys employed by the Parties and/or employees of the

counsel’s law firms to the extent reasonably necessary to render
professional services in the Litigation; provided that prior to disclosure,
counsel of record have advised such other attorneys and employees of
their obligations under this Order.
D.

Any consultant, investigator or independent expert (collectively,

“Expert”) who is assisting in the preparation or trial of this Litigation, but
only to the extent reasonably necessary to enable such Expert to render
such assistance; provided that, prior to disclosure, each such Expert shall
execute the Confidentiality Agreement, attached hereto as Exhibit “A.”
Counsel of record retaining such consultant shall maintain a copy of each
such Confidentiality Agreement during the course of this Litigation.
E.

Current and former personnel of State Farm Bank, Chubb or

Group9 including, without limitation, any current and former employees,
officers, directors, attorneys or representatives of any of such entities.
F.

Persons noticed for depositions or designated as trial witnesses to

the extent reasonably necessary to prepare to testify and/or testify.
G.

Court reporters retained for depositions, hearings or other events in

the Litigation.

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H.

Outside copying services; provided that the copying service has

been advised of this Order and executes a Confidentiality Agreement in
the form attached hereto as Exhibit A.
7.

Counsel for each Party agrees, acknowledges, and affirms that they shall

instruct their respective clients as to the protected nature of Confidential Information, and
that Confidential Information shall not be discussed or disclosed to anyone, other than in
strict accordance with this Protective Order, and, that the use of any Confidential
Information produced in the Litigation in contravention of the terms of this Protective
Order may subject the violating entity/entities or individuals to civil action and penalties
as may be allowed by law, and any and all remedies deemed appropriate by the Court.
8.

Where any documents designated as Confidential Information are

included as exhibits to any pleadings, motions, briefs, papers, documents or depositions
filed with the Court, unless expressly waived or excused by the Designating Party, such
materials shall be filed in accordance with NECivR 7.5.
9.

Non-parties producing documents in this case pursuant to subpoena or

other process may designate such documents as Confidential Information in accordance
with paragraph 3 of this Protective Order before production.

If a Party wishes to

designate documents produced by third parties as Confidential Information, the
Designating Party will have twenty (20) days, which may be extended by agreement,
after the receipt of the documents to provide a log to the other Parties, identifying the
Confidential Information by Bates number, if available, or by other sufficient description
to identify the documents to be protected under this Protective Order. The Parties will
then prominently mark the Confidential Information “Confidential” on all such
documents in their possession.

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10.

Any Party may, at any time after production of information designated as

Confidential Information under this Protective Order, object to its designation by
notifying the Designating Party in writing of that objection and specifying the designated
material to which the objection is made. Within ten (10) days of service of the written
objections, the Parties shall confer concerning the objection. If the objection is not
resolved, the Party objecting to the designation shall, within fifteen (15) days of the
conference, file and serve a motion to resolve the dispute over the designation. The
Designating Party shall bear the burden of proof on the issue.
11.

This Protective Order shall not prevent any of the Parties from moving this

Court for an order that information designated as Confidential Information may be
disclosed other than in accordance with this Order. Any Party may seek modification of
this Protective Order from the Court at any time; however, it shall remain in effect until
such time as it is modified, amended or rescinded by the Court.
12.

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 confidential documents and information sought.

The Parties

reserve all proprietary and other rights in any such documents and information produced
in accordance with this Protective Order. Disclosure of such documents and information
in accordance with this Protective Order is required by applicable rules of civil procedure
and shall not be construed to constitute waiver of confidentiality or any proprietary or
other rights, or construed as consent to the use, disclosure, or publication of such
information or documents except in strict compliance with this Protective Order.

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13.

This Protective Order is not intended to govern the use of the Confidential

Information at trial.

Questions regarding the protection of Confidential Information

during trial will be presented to the Court prior to or during the trial as needed.
14.

Subject to the other provisions of this Protective Order, this Protective

Order will not terminate at the conclusion of the Litigation. Within ninety days (90) days
after final termination of the Litigation (including any appeal), unless a different date is
otherwise agreed by the Parties, all Confidential Information that was produced by a
Party to the Litigation during discovery (including any copy thereof) shall be returned to,
and at the expense of, the Producing or Designating Party, except to the extent that Party
agrees in writing that some or all of such documents may be destroyed in lieu of
returning the documents.

Unless otherwise mutually agreed to by the Parties, each

attorney of record shall certify his or her compliance with this section in writing, and
deliver the certification to the producing party no later than ninety (90) days after final
termination of litigation.
15.

Neither the termination of this Litigation nor the termination of

employment of any person who has access to Confidential Information shall relieve any
such person from the obligation of maintaining both the confidentiality and the
restrictions on use of any Confidential Information disclosed pursuant to this Order.
16.

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 Party must notify any receiving party of the inadvertent production and
request return of the documents. The receiving party must promptly return or confirm

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destruction of all copies of such materials; but doing so shall not preclude the receiving
party from seeking to compel production of those materials, nor constitute an admission
that the materials were, in fact, privileged, and the Producing Party must preserve any
such documents. Nothing in this Paragraph 16 is intended to restrict or limit any right or
remedy of a Party pursuant to Fed. R. Civ. P. 26(b)(5)(B) or Fed. R. Evid. 502.
DATED this 14th day of June, 2012.
BY THE COURT:
/s/ Lyle E. Strom
___________________________
Lyle E. Strom, Senior Judge
United States District Court

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EXHIBIT “A”
CONFIDENTIALITY AGREEMENT
I, __________________________________, state the following:
I have read and understand the foregoing Protective Order approved by the Court
and to which this Exhibit “A” is annexed, and attest to my understanding that access to
information or documents designated as “Confidential” may be provided to me,
conditioned upon and pursuant to the terms, conditions and restrictions of the Protective
Order. I agree to be bound by the terms of the Protective Order, both with respect to the
Court’s powers of supervision of the Litigation, and contractually to any designating
Party, which I acknowledge to be an expressly intended beneficiary of the undertakings I
have in this Confidentiality Agreement. I understand that certain of the confidential
information which I may receive or be given access to may constitute material, nonpublic
information regarding the affairs and plans of one or more of the Parties to the Litigation
and/or their subsidiaries or affiliates. I understand that the use of such information by
me, or the disclosure of such information by me to others for a competitive advantage or
other purpose in violation of the terms of the Protective Order, may subject me to
sanctions and penalties. I hereby agree not to use any such confidential information for
any prohibited purpose or to encourage or knowingly permit others to use information for
any such purpose.
DATED this ____ day of __________________, 20__

Signature:

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