Valmont Industries, Inc. v. Lindsay Corporation et al

Filing 60

PROTECTIVE ORDER - Pursuant to Federal Rule of Civil Procedure 26(c), the parties agree to the entry of this Protective Order (this "Order") to facilitate and expedite discovery in this action. Ordered by Senior Judge Lyle E. Strom. (GJG)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
VALMONT INDUSTRIES, INC.;
FARMSCAN AG PTY LTD; and BOARD OF
REGENTS OF THE UNIVERSITY OF
IDAHO,

Civil Action No. 8:11-cv-415

Plaintiffs,

PROTECTIVE ORDER

v.
LINDSAY CORPORATION,
Defendant.

Pursuant to Federal Rule of Civil Procedure 26(c), the parties agree to the entry of this
Protective Order (this “Order”) to facilitate and expedite discovery in this action.
IT IS ORDERED THAT:
1.

Protected Information. Upon a determination by any party or non-party from

whom discovery is sought (the “Designating Party”) that any documentation or thing being
produced or disclosed, whether formally or informally, including, but not limited to:
(a)

initial and supplemental disclosures;

(b)

answers to interrogatories;

(c)

documents;

(d)

transcripts of depositions;

(e)

responses to requests for admissions; and

(f)

any other discovery or disclosure made in this litigation,

contains a trade secret or other proprietary or confidential business, technical, sales, marketing,
financial, or other commercial information that the Designating Party would not disclose to third

4826-4972-2639.1

parties or that it would cause third parties to maintain in confidence, the Designating Party may
designate such document or thing protected (collectively, “Protected Information”). Protected
Information further includes, but is not limited to, technical information such as product design
and operation and manufacturing techniques or processing information, trade secrets, formulas,
research and development information, source code, object code, customer lists, sales and cost
information, and pricing information, patent license agreements, or information that was
generated in connection with, or reveals the content of, patent licensing negotiations; information
that a party has treated as confidential and is not subject to public disclosure; information within
the definition of trade secret as set forth in Section 1(4) of the Uniform Trade Secret Act (1985);
and any other information that would qualify as confidential pursuant to Federal Rule of Civil
Procedure 26(c) or any other legal standard.
Non-parties may invoke the protection of this Order for documents and deposition
testimony and exhibits provided in connection with this litigation, including, but not limited to,
documents, deposition testimony and exhibits provided in response to subpoenas served on those
third parties. All Protected Information of non-parties contained in such documents, depositions
and exhibits shall be protected hereunder in the same manner as the Protected Information of the
parties to this lawsuit.
2.

Designation. The Designating Party shall identify such Protected Information by

affixing to it, in a manner that shall not interfere with its legibility, the words
“CONFIDENTIAL,” “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY,” or
“RESTRICTED CONFIDENTIAL – SOURCE CODE INFORMATION” (collectively,
“DESIGNATION” OR “DESIGNATED”) on all or any part of the document or thing. Any
summary, compilation or copy of any document or thing containing a “DESIGNATION” shall

4826-4972-2639.1

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be treated as provided by this Order. The DESIGNATION shall, when practicable, be made
prior to, or contemporaneously with, production or disclosure, except in the case of depositions,
which shall be designated as set forth in Paragraph 13. An inadvertent failure to designate
Confidential Information shall be dealt with in accordance with the terms of Paragraph 18.
3.

Confidential Information.

For purposes of this Order, “CONFIDENTIAL

INFORMATION” shall mean all information or material produced to or disclosed to a Receiving
Party that a producing party, including any party to this action and any non-party producing
information or material voluntarily or pursuant to a subpoena or a Court order, considers in good
faith such documents and things to contain confidential and/or proprietary information not
otherwise known or available to the public.
A.

Documents designated “CONFIDENTIAL” and information contained

therein shall be available only to:
(1)

Attorneys with the law firms of record and supporting personnel

employed by the law firm(s) of record, such as attorneys, paralegals, legal translators, legal
secretaries, legal clerks, commercial copy vendors, and shorthand reporters;
(2)

Outside Experts and/or Consultants retained by a party for

purposes of assisting with the claims or defenses asserted in this matter (“Expert” or “Outside
Expert”) and their necessary support personnel, subject to the provisions of Paragraphs 10-11
herein, and who have signed the form attached hereto as Exhibit A;
(3)

Any in-house counsel or employee of a party who either has

responsibility for making decisions dealing directly with this action or who is assisting outside
counsel in preparation for proceedings in this action;

4826-4972-2639.1

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(4)

The Court, its personnel and stenographic reporters (under seal or

with other suitable precautions determined by the Court);
(5)

Independent legal translators retained to translate in connection

with this action and independent stenographic reporters and videographers retained to record and
transcribe testimony in connection with this action;
(6)

Graphics, translation, or design services retained by counsel for

purposes of preparing demonstrative or other exhibits for deposition, trial, or other Court
proceedings in this action and non-technical jury or trial consulting services, not including mock
jurors, who have signed the form attached hereto as Exhibit A;
(7)

Any person to whom the producing party agrees to provide a copy;

(8)

With respect to a particular document, an individual who is shown

and

on the face of the document to have been an author, source, or recipient of the document.
4.

Highly

Confidential

–

Attorneys’

Eyes

Only.

The

“HIGHLY

CONFIDENTIAL – ATTORNEYS’ EYES ONLY” designation is reserved for Protected
Information that constitutes or contains trade secrets or other non-public, highly sensitive
confidential research, development, technical, business, and/or financial information that has not
become public, the disclosure of which is likely to cause harm to the competitive position of the
producing party; Protected Information obtained from a non-party pursuant to a current
Nondisclosure Agreement (“NDA”); and settlement agreements, the disclosure of which is likely
to cause harm to the competitive position of the producing party. In determining whether
information should be designated as “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES
ONLY,” each party agrees to use such designation only in good faith.

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A.

Documents designated “HIGHLY CONFIDENTIAL – ATTORNEYS’

EYES ONLY” and information contained therein shall be available only to:
(1)

Attorneys with the law firms of record and supporting personnel

employed by the law firm(s) of record, such as attorneys, paralegals, legal translators, legal
secretaries, legal clerks, commercial copy vendors, and shorthand reporters;
(2)

Experts and their necessary support personnel, subject to the

provisions of Paragraphs 10-11 herein, and who have signed the form attached hereto as Exhibit
A;
(3)

The Court, its personnel and stenographic reporters (under seal or

with other suitable precautions determined by the Court);
(4)

Independent legal translators retained to translate in connection

with this action and independent stenographic reporters and videographers retained to record and
transcribe testimony in connection with this action;
(5)

Graphics, translation, or design services retained by counsel for

purposes of preparing demonstrative or other exhibits for deposition, trial, or other Court
proceedings in this action and non-technical jury or trial consulting services, not including mock
jurors, who have signed the form attached hereto as Exhibit A;
(6)

Any person to whom the producing party agrees to provide a copy;

(7)

With respect to a particular document, an individual who is shown

and

on the face of the document to have been an author, source, or recipient of the document.
5.

Restricted Confidential – Source Code Information. Each party shall have the

right to designate any source code (including comments contained therein), object code, RTL,

4826-4972-2639.1

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HDL or other hardware description language, live data (that is, data as it exists residing in a
database or databases), or pseudo-source-code (i.e., a notation resembling a programming
language but not intended for actual compilation, which usually combines some of the structure
of a programming language with an informal natural-language description of the computations to
be carried out) (“Code”), and copies thereof as “RESTRICTED CONFIDENTIAL – SOURCE
CODE.” Nothing in this Order shall require the producing party to provide executable code, and
no electronic copies of Code may be made, except by the producing party and as set forth in
Paragraphs 5.D-5.F. herein. Under no circumstances shall the Code be compiled into executable
code by the requesting party. For purposes of this Paragraph, the “requesting party” includes
Experts retained by the requesting party to review Code in compliance with Paragraphs 10-11
herein and outside counsel of record for the parties to this litigation.
B.

Documents and Code designated as “RESTRICTED CONFIDENTIAL –

SOURCE CODE,” and the information contained therein, shall only be available to:
(1)

Attorneys with the law firms of record and employees of such law

firms of record for a party or parties to whom such Code and/or “RESTRICTED
CONFIDENTIAL – SOURCE CODE” material was produced and whose duties and
responsibilities require access to such materials;
(2)

Experts and their necessary support personnel, subject to the

provisions of Paragraphs 10-11 herein, and who have signed the form attached hereto as Exhibit
A;
(3)

The Court, its personnel and stenographic reporters (under seal or

with other suitable precautions determined by the Court);

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(4)

Independent stenographic reporters and videographers retained to

record and transcribe testimony in connection with this action;
(5)

Graphics, translation, or design services retained by counsel for

purposes of preparing demonstrative or other exhibits for deposition, trial, or other Court
proceedings in this action and non-technical jury or trial consulting services, not including mock
jurors, who have signed the form attached hereto as Exhibit A;
(6)

Any person to whom the producing party agrees to provide a copy;

(7)

With respect to a particular document, an individual who is shown

and

on the face of the document to have been an author, source, or recipient of the document.
C.

Code designated under this section shall be made available for inspection

to the requesting party at the offices of the producing party’s outside counsel of record, or at the
producing party’s election, at a facility where the Code is maintained in its ordinary course of
business, or as otherwise agreed, at a mutually agreeable time and place during regular business
hours, or at such other location as may be mutually agreed upon by the parties.
D.

When a party is making its Code available via inspection, a list of persons

who intend to inspect the Code will be provided to the producing party at least three (3) business
days in advance of any scheduled inspection. The party providing the inspection shall provide a
stand-alone computer (that is not connected to a network, internet, or peripheral device) for
reviewing and analyzing the Code. The stand-alone computer may be equipped to store print
requests in a print folder.
E.

For all parties (plaintiff and defendant), at the request of the requesting

party, the party providing the inspection shall provide the requesting party paper copies of

4826-4972-2639.1

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reasonable portions of the Code identified by the requesting party. The party providing the
inspection will provide such paper copies to the requesting party within five (5) business days of
the reviewing party’s request, unless otherwise agreed. The party providing the inspection shall
mark such copies clearly and prominently as “RESTRICTED CONFIDENTIAL – SOURCE
CODE” and affix individual production numbers.
F.

Paper copies of Code must be kept under lock and key or otherwise

secured at the offices of outside counsel of record, or at the office of an Outside Expert cleared
under the terms of this Order. Paper copies of Code may not be converted into electronic format
(including for emailing) except as required for filing or service of papers (including expert
reports and discovery responses), motions, exhibits and pleadings, made under seal, or trial or
hearing presentation. Any deposition transcript may be electronically stored in outside counsel’s
deposition database. Paper copies of Code may not themselves be copied, except to provide a
copy to a person who has been cleared as an Outside Expert under the terms of this Order for the
Receiving Party and except for use as exhibits for a deposition, expert report, motion, filing,
hearing or trial.
G.

Portions of deposition transcripts that contain reference to Code or

exhibits with Code will be considered “RESTRICTED CONFIDENTIAL – SOURCE CODE.”
All such portions of deposition transcripts that contain reference to Code or exhibits with Code
are to be kept under lock and key or otherwise secured at the offices of outside counsel of record,
or at the office of an Outside Expert cleared under the terms of this Order. Paper copies of Code
may not be removed from a secured container unless in a secured area under the control of
outside counsel of record or an Outside Expert cleared under the terms of this Order. Any

4826-4972-2639.1

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printed Code filed with the Court shall be filed under seal, as provided in herein. Only those
individuals authorized and identified in Paragraph 5 shall be allowed to access printed Code.
H.

Any party producing Code may, at its option and at its expense, produce

the Code to a third-party escrow agent at a facility located in a mutually agreeable location who
will safeguard the Code while allowing access to and use of the Code by the Receiving Party in
accordance with subparagraph (f) of this Paragraph. In addition to the requirements set forth
elsewhere in this Order, any person authorized under the terms of this Order to receive Code that
has been produced in this lawsuit must handle such Restricted Code in accordance with the
following:
(1)

Access to Code is strictly limited to those authorized to view

material or information that has been designated “RESTRICTED CONFIDENTIAL – SOURCE
CODE INFORMATION.”
(2)

No more than four (4) consultants/Experts for each party, after

signing the Confidentiality Agreement, may have access to Code, including, but not limited to,
reviewing it and/or consulting with respect to it.
(3)

If a party produces Code to a third-party escrow agent at a facility

located in a mutually agreeable location, such Code shall be made available during regular
business hours (9:00 a.m. to 6:00 p.m., local time) on three (3) business days’ notice at the thirdparty escrow agent’s secure facility (“Secure Facility”). While the parties shall make their best
efforts to restrict their requests to view the Code to normal business hours, access to the Secure
Facility may also be provided on Saturdays and Sundays, so long as a request is made to the
Producing Party by 9:00 a.m., local time, on the Thursday before the weekend for which access
is requested and so long as the Secure Facility can accommodate such request. The parties agree

4826-4972-2639.1

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that any Secure Facility will be located in a place conveniently accessible to all parties to this
lawsuit. Any party viewing Code outside of the normal business hours of the escrow agent shall
do so at its own expense.
I.

The reviewing party may take written notes of portions of the Code and

other such notes as may be reasonably necessary to facilitate inspection of the Code, except that
the reviewing party shall not copy the Code into the notes. Any such notes shall be treated the
same way as Code and shall be labeled “RESTRICTED CONFIDENTIAL – SOURCE CODE.”
In addition, no recordable media or recordable devices, including, without limitation, sound
recorders, cellular telephones, peripheral equipment, CDs, DVDs, or drives of any kind, shall be
permitted in the Code review room where the stand-alone computer is made available for
viewing.
6.

Filing Under Seal.

All transcripts of depositions, exhibits, answers to

interrogatories, pleadings, briefs, and other documents submitted to the Court which have been
designated as “CONFIDENTIAL,” “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES
ONLY,” or “RESTRICTED CONFIDENTIAL – SOURCE CODE,” or which contain
information so designated, shall be filed electronically under seal in accordance with the
applicable Local Rule(s) or order(s) of this Court, or if electronic submission is impossible, in
sealed envelopes or other appropriate sealed containers on which shall be endorsed the title of
this matter, an indication of the nature of the contents of such sealed envelope or other container,
the words “Confidential [or Highly Confidential – Attorneys’ Eyes Only or Restricted
Confidential – Source Code] – Under Protective Order” and a statement substantially in the
following form:
This envelope contains protected information filed in this case by
(name of party) and is not to be opened nor the contents thereof to

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be displayed or revealed except by order of the Court presiding
over this matter.
7.

Undertaking. Prior to any disclosure, each testifying and consulting Expert to

whom such disclosure is to be made shall execute the Confidentiality Agreement annexed hereto
as Exhibit A (“Confidentiality Agreement”).

The Confidentiality Agreements shall be

maintained by Outside Counsel for the Receiving Party with whom such persons are affiliated or
by whom they are retained, and such counsel shall provide a copy of each executed
Confidentiality Agreement to all counsel of record.
8.

Outside Counsel’s Communication With Client. Nothing in this Order shall

preclude or impede Outside Counsel’s ability to communicate with or advise his or her client
based on his or her review and evaluation of Confidential Information produced by the opposing
party, provided that such communications or advice shall not disclose or reveal such Confidential
Information.
9.

Disclosure to Author or Recipient.

Notwithstanding any other provisions,

nothing in this Order shall prohibit Outside Counsel for a party from disclosing a document or
thing designated as Protected Information to any person whom the document or thing clearly
identifies as an author, addressee, source, or carbon copy recipient of such document or thing.
Regardless of its designation, if a document or thing makes reference to the actual or alleged
conduct or statements of a person, Outside Counsel may discuss such conduct or statements with
such person, provided such discussions do not directly or indirectly disclose or reveal any
portion of the document or thing other than that which specially refers to such conduct or
statement. Nothing herein is intended to permit counsel to contact an employee of the other
party or any other person who is represented by counsel.

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10.

Disclosure to Experts.

Subject to Paragraph 11, Outside Counsel for the

Receiving Party may disclose Protected Information to Experts who are assisting in the
preparation for and/or trial of this action. Prior to disclosing any Protected Information to any
Expert, Outside Counsel for the Receiving Party shall determine that disclosure to an Expert of
particular Confidential Information is, in that counsel’s good-faith judgment, reasonably
necessary to the Receiving Party’s prosecution or defense of this action.
11.

Opportunity to Object to Proposed Expert. At least five (5) business days

prior to disclosure of any of the Designating Party’s Protected Information to an Expert, the
Receiving Party shall provide the Designating Party written notice stating the name and address
of the Expert; a copy of the Expert’s Confidentiality Agreement; a copy of the Expert’s current
resume showing his/her education and employment for the last four (4) years; a list of the
Expert’s patents and/or publications for the last ten (10) years; a list of all entities for which the
Expert has provided consulting services in the last four (4) years; and a list of all lawsuits for
which the Expert has served as an expert witness, including the names of all parties, the court,
the cause number, and an identification of the parties for which the Expert served as an expert
witness (Expert’s Background Information).
If, within the eight (8) business-day period, the Designating Party objects to the proposed
disclosure to the Expert, the Parties shall proceed to resolve the matter informally. Within five
(5) days of making an objection, the Parties shall agree on how to proceed or the objecting party
may file a Motion with this Court identifying the ground for the objection and the Expert’s
background information.
Disclosure shall not be made until and unless this Court orders disclosure to that Expert
or overrules the objection of the Designating Party. This Court shall deny the Designating

4826-4972-2639.1

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Party’s objection unless the Designating Party shows good cause why the proposed disclosure
should not be permitted.
If the objecting party does not file a Motion within five (5) days of making an objection
to the disclosure, the objection shall be deemed waived and the Receiving Party shall be allowed
to disclose the Protected Information to the Expert.
12.

Use of Protected Information at Depositions. Except as otherwise approved by

the Designating Party or by an order of this Court, a Receiving Party may show Protected
Information to a witness when the witness is (a) an individual who has had or who is eligible to
have access to the Protected Information by virtue of his or her employment with the
Designating Party, (b) an individual identified in the Protected Information as an author,
addressee, source, or copy recipient of such information, (c) an individual who, although not
identified as an author, addressee, source, or copy recipient of such Protected Information, has
seen such Protected Information in the ordinary course of business, (d) an individual who is
employed by the Designating Party and has knowledge about the subject matter contained in the
Protected Information sought to be shown to the witness, (e) designated as a 30(b)(6) corporate
representative by the party producing the Protected Information that is to be shown to the
witness, or (f) an Expert duly qualified under Paragraphs 10-11 (who shall first have executed
the Confidentiality Agreement). In addition to items (a) through (e) above, non-parties may be
examined or testify at a deposition or trial concerning any document containing Protected
Information of a Designating Party that appears on its face or from other documents or testimony
to have been received from or communicated to the non-party as a result of a preexisting contract
or business relationship between the Designating Party and the non-party and/or the non-party’s
employer.

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13.

Attendees at Protected Information Depositions and Designations of

Deposition Testimony. No one may attend, view, or review the transcripts of the portions of
any depositions at which Protected Information is shown or discussed, other than those persons
authorized to have access to Protected Information pursuant to this Order. Such depositions shall
be DESIGNATED as soon as practicable by stating such designation in the record.
14.

Distribution of Protected Information Transcripts.

The portions of any

deposition transcript that Outside Counsel for either party has DESIGNATED on the record at
the deposition as “CONFIDENTIAL” and any Protected Information that is marked as a
deposition exhibit shall be treated as Protected Information. Notwithstanding the foregoing, the
entirety of all deposition transcripts shall be deemed Protected Information for thirty (30) days
after the transcript is delivered to the party’s Outside Counsel. During the thirty (30) day period,
Outside Counsel for the Designating Party may remove the DESIGNATION of any portion of
the deposition transcript, by indicating page and line numbers (insofar as practicable). Transcript
pages and exhibits containing Protected Information shall be distributed only to individuals
authorized to receive Protected Information pursuant to this Order.
15.

Presentation of Protected Information to This Court.

With respect to

testimony elicited during hearings and other proceedings, whenever Outside Counsel for any
party deems any question or line of questioning calls for the disclosure of Protected Information,
Outside Counsel may make a DESIGNATION on the record prior to such disclosure. Any
presentation of Protected Information to this Court at or prior to trial shall be made in the
presence of only those individuals authorized to receive Protected Information under this Order.
Prior to any presentation of Protected Information to this Court, the presiding officer or the Clerk

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of this Court shall advise all Court personnel and court reporters of the highly confidential nature
of the Protected Information and of the duty to maintain the confidentiality of such information.
GENERAL PROVISIONS
16.

Limitation on Use and Disclosure. A person authorized to receive Protected

Information under this Order shall not use or disclose Protected Information for any purpose
other than the preparation and trial of this action and any appeals therefrom. This Order does not
restrict in any manner the use or disclosure by any Designating Party of any information in its
own documents and things.
17.

No Presumption of Protected Status. This Order does not address discovery

objections and does not preclude any party from moving for any relief under the Federal Rules of
Civil Procedure or this Court’s inherent powers. Nothing in this Order creates a presumption or
implies that information designated as Protected Information actually constitutes a trade secret,
or proprietary or otherwise protectable information.

If a Receiving Party believes any

information is improperly designated under this Order, it may contest such designation at any
time until forty-five (45) days before trial. The designation of any information designated as
Protected Information produced thereafter may be contested within a reasonable time. Protected
Information subject to such a dispute shall be treated consistently with its designation by the
Designating Party until this Court orders otherwise.
Upon contesting the designation and within five (5) days of receiving notice thereof, the
party seeking to preserve the designation shall come forth with specific reasons it believes in
good faith provide the basis of the contested confidentiality. If the parties cannot resolve the
designation contest, the designating party under this Order shall, within ten (10) days of

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receiving notice, file under seal, as provided in this Order, a Motion with this Court identifying
with specificity the information sought to maintain confidential and the reasons therefor.
18.

Inadvertent Disclosure of Protected Information.

Inadvertent failure to

identify documents or things as Protected Information pursuant to this Order shall not constitute
a waiver of any otherwise valid claim for protection, so long as such claim is asserted within
fifteen (15) days of the discovery of the inadvertent failure. At such time, arrangements shall be
made for the Designating Party to appropriately mark the information in accordance with this
Order. The Receiving Party shall have no liability, under this Order or otherwise, for any
disclosure of information contained in documents or things not bearing a confidentiality legend
occurring before the Receiving Party was placed on notice of the Designating Party’s claims of
confidentiality, but should make reasonable efforts to minimize any adverse impact of such
disclosure once a designation as Protected Information has been made.
19.

Inadvertent Disclosure of Work Product or Privileged Information.

Inadvertent production of documents or things subject to work-product immunity or the
attorney-client privilege shall not constitute a waiver of the immunity or privilege, provided the
Producing Party shall notify the Receiving Party in writing of such inadvertent production within
ten (10) days after the earlier of (a) the Producing Party’s discovery of the inadvertent production
or (b) its use in pleadings, motions or deposition testimony by the Receiving Party. The return of
the inadvertently produced documents and things along with any presentation to the Court for
determination of privilege shall be controlled by Federal Rule of Civil Procedure 26(b)(5)(B). If
the Receiving Party disputes the inadvertently produced documents are protected by a privilege,
or other immunity, the parties shall confer to resolve the dispute. If, after conferring, the parties
are unable to reach a satisfactory agreement, the Producing Party may obtain the return of the

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inadvertently produced documents by complying with Federal Rule of Civil Procedure
26(b)(5)(B). However, the Producing Party’s compliance with Federal Rule of Civil Procedure
26(b)(5)(B) shall not prevent the Receiving Party from challenging any claim of attorney-client
privilege, work-product immunity, or other applicable privilege or immunity from disclosure.
20.

Subpoena of Protected Information.

If any entity subpoenas, orders

production, or requests discovery of Protected Information a Receiving Party has obtained
subject to this Order, the Receiving Party shall promptly notify the Designating Party of the
subpoena, order, or discovery request and shall not produce the information until the Designating
Party has had reasonable time (at least ten (10) days) to object or take other appropriate steps to
protect the information. During such time, the Receiving Party shall take all reasonable steps to
object to disclosure to protect the Protected Information. This duty of notification shall continue
after a Designating Party is no longer a party to this action and after this action is fully
concluded.
21.

Continuing Jurisdiction. After the conclusion of the above-captioned action, the

provisions of this Order shall continue to be binding until further order of this Court, and this
Court shall retain jurisdiction over the parties and any other person who has had access to
Confidential Information pursuant to this Order, in order to enforce the provisions of this Order.
22.

Modification. The Court may modify this Order upon a showing of good cause.

23.

Duty to Return Documents and Things. Within sixty (60) days after the entry

of a final non-appealable judgment or order concluding the above-captioned action or the
complete settlement of all claims asserted against all parties in this action, each party shall, at its
option, either return to the Designating Party or destroy all physical objects and documents that
were received from the Designating Party that embody DESIGNATED information and shall

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destroy in whatever form stored or reproduced all other physical objects and documents,
including, but not limited to, correspondence, memoranda, notes and other work-product
materials that contain DESIGNATED information. Outside Counsel for any party or non-party
receiving Confidential Information shall provide written certification of compliance with this
provision to counsel for the Designating Party within ninety (90) days after the entry of a final
non-appealable judgment or order concluding this action or the complete settlement of all claims
asserted against all parties in the above-captioned action. Counsel of record may retain one set
of all papers filed with the Court, including any Protected Information filed under seal.
24.

Interpretation; Headings. Should the parties have any issues concerning the

interpretation of this Order, they shall endeavor to promptly meet and confer to resolve the
dispute before any party moves for this Court’s assistance. The headings used in this Order are
supplied for convenience only and shall not be taken into account in the interpretation of this
Order.
25.

Limitations of Order.

The restrictions set forth in any of the preceding

Paragraphs shall not apply to information or material that:
(a)

was, is, or becomes public in a manner other than by violation of this

Order or another Protective Order concerning the litigation of Valmont’s patents;
(b)

is acquired by the non-designating party from a third party having the right

to disclose such information or material;
(c)

was already lawfully possessed by the non-designating party before the

disclosure by the Designating Party; or

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(d)

was independently developed by the non-designating party by personnel

who did not receive or have access to the Designating Party’s Protected Information.
So ORDERED and SIGNED this 1st day of May, 2012.
BY THE COURT:
/s/ Lyle E. Strom
_________________________________
LYLE E. STROM, Senior Judge
United States District Court

4826-4972-2639.1

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
VALMONT INDUSTRIES, INC.;
FARMSCAN AG PTY LTD; and BOARD OF
REGENTS OF THE UNIVERSITY OF
IDAHO,

Civil Action No. 8:11-cv-415

Plaintiffs,
v.
LINDSAY CORPORATION,
Defendant.

EXHIBIT A
CONFIDENTIALITY AGREEMENT AND UNDERTAKING FOR EXPERTS
RECEIVING CONFIDENTIAL INFORMATION
I, _______________, state the following:
1.

I have been retained by _____________________________ [party] to serve as an

________________________________________________ [describe proposed area of expertise,
such as “database,” “network process” or “financial”] in the above-captioned action.
2.

My address is ______________________________________________________

_________________________________________________________.
3.

My present employer is and the address of my present employer is ____________

_________________________________________________________.
4.

My present occupation or job description is ______________________________

_________________________________________________________.

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5.

I have received a copy of the Protective Order in this lawsuit and I have carefully

read and understood the provisions of the Protective Order.
6.

I will comply with all of the provisions of the Protective Order.

7.

I will hold in confidence, will not disclose to anyone not qualified under the

Protective Order, and will use only for purposes of this lawsuit, any Protected Information
disclosed to me.
8.

I will advise any necessary assistant of mine, to the extent permitted under the

Protective Order, the nature of any Protected Information I disclose to such assistant and will be
responsible for assuring that such assistant complies with the same obligations of confidentiality
to which I am hereby agreeing.
9.

I will return all Protected Information that comes into my possession, and all

notes, documents, or things that I prepare relating thereto, to counsel from whom I received the
information.
10.

If I am given access to source Code and/or object Code, I agree to abide by all

terms of the Protective Order concerning such Code, including, but not limited to:
(a)

Viewing source Code only on a stand-alone computer (that is not

connected to a network, internet, or peripheral device) for reviewing and analyzing the Code.
The stand-alone computer may be equipped to store print requests in a print folder;
(b)

Keeping any written reference to the password for such source Code

and/or object Code separate from the source Code and/or object Code on removable media, and I
agree to destroy any and all such references to the password once my review is complete;
(c)

Not making any copies of source Code unless permitted to do so by the

Protective Order; and

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(d)

Securing all printed copies of the source Code as called for in the

Protective Order.
11.

I hereby submit to the jurisdiction of the United States District Court for the

District of Nebraska for the purpose of enforcement of this Undertaking pursuant to the
Protective Order.
12.

I declare that all statements made herein are true and accurate and understand that

any willful false statement is punishable by fine and/or imprisonment.

Signature:
Printed Name:
Address:

Subscribed and sworn to me this ____ day of ________, 2012.
Witness my hand and official seal.

Notary Public

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