Election Systems & Software, LLC v. RBM Consulting, LLC et al

Filing 59

PROTECTIVE ORDER granting 43 Motion for Protective Order regarding confidential documents. Ordered by Magistrate Judge Cheryl R. Zwart. (ADB)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
ELECTION SYSTEMS & SOFTWARE, LLC,

Case No. 8:11-cv-00438

Plaintiff,
vs.
RBM CONSULTING, LLC, and
GERALD G. HAYEK,
Defendants.
__________________________________

PROTECTIVE ORDER

RBM CONSULTING, LLC,
Counterclaim
Plaintiff,
vs.
ELECTION SYSTEMS & SOFTWARE, LLC,
Counterclaim
Defendant.

The motion for a entry of a protective order, (Filing No. 43), is granted. The terms set
forth herein are appropriate to protect the respective interests of the parties, the public, and the
Court. Accordingly, it is ORDERED:
1.

Scope. All information and documents produced in the course of discovery,

including initial disclosures, all responses to discovery requests, all deposition testimony and
exhibits, other materials which may be subject to restrictions on disclosure for good cause and
information derived directly therefrom (hereinafter collectively “Documents”), shall be subject
to this Order concerning confidential information as set forth below. The Order is also subject to
the applicable rules of procedure and local rules on matters of procedure and calculation of time
periods.
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2.

Form and Timing of Designation.

A party may designate Documents as

confidential and restricted in use and disclosure under this Order by placing or affixing the words
“CONFIDENTIAL” on the document in a manner that will not interfere with the legibility of the
document. Documents shall be designated CONFIDENTIAL prior to or at the time of the
production or disclosure of the documents. Any document produced by either party prior to
entry of this Order may be designated and deemed confidential subject the terms of this Order by
identifying each such document in writing within twenty (20) days of the date this Order is
entered. The designation “CONFIDENTIAL” does not mean that the Document has any status
or protection by statute or otherwise except to the extent and for the purposes of this Order.
Additionally, if the CONFIDENTIAL documents contain highly sensitive trade secrets or
other highly sensitive competitive or confidential information and disclosure to another party
would result in demonstrable harm to the disclosing party, then the party may add the additional
designation

of

“CONFIDENTIAL-ATTORNEY

EYES

CONFIDENTIAL” which shall mean the same thing.

ONLY”

or

“HIGHLY

The documents designated

“CONFIDENTIAL-ATTORNEY EYES ONLY” or “HIGHLY CONFIDENTIAL” shall
constitute an additional category of protection that carries all of the protections as documents
designated “CONFIDENTIAL” and the additional protections as outlined in ¶ 6(c) below.
3.

Documents Which May be Designated CONFIDENTIAL.

Any party may

designate Documents as CONFIDENTIAL upon a good faith belief that the documents contain
information protected from disclosure by statute or that should be protected from disclosure as
confidential personal information, medical or psychiatric information, trade secrets, personnel
records, or such other sensitive commercial and/or financial information that is not publicly
available.

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4.

Documents Which May be Designated CONFIDENTIAL-ATTORNEY

EYES ONLY.

Any party may designate any document as CONFIDENTIAL-ATTORNEY

EYES ONLY upon a good faith belief that the document contains highly sensitive trade secrets or
other highly sensitive competitive or confidential information and disclosure to another party would result
in demonstrable harm to the disclosing party. In-house counsel or other attorney employees of the

parties shall be deemed parties for purposes of this Protective Order and shall not be deemed
“attorneys” for purposes of “CONFIDENTIAL--ATTORNEY EYES ONLY” designations.
5.

Depositions. Deposition testimony shall be deemed CONFIDENTIAL only if

designated as such within thirty (30) days of receipt of the deposition transcript, in writing. Such
designation shall be specific as to the portions of the transcript or any exhibit to be designated as
CONFIDENTIAL. Thereafter, the deposition transcripts and any those portions so designated
shall be protected as CONFIDENTIAL, pending objection, under the terms of this Order.
However, a party may designate any portion of the deposition as testimony is being taken, in
which case any individual not authorized to access Documents with such designation shall leave
the room.
6.

Protection of Confidential Material.
(a)

General Protections.

Documents designated CONFIDENTIAL under

this Order shall not be used or disclosed by the parties, counsel for the parties or any
other persons identified in ¶ 6(b) for any purpose whatsoever other than to prepare for
and to conduct discovery and trial in this action, including any appeal thereof.
(b)

Limited Third-Party Disclosures. The parties and counsel for the parties

shall not disclose or permit the disclosure of any CONFIDENTIAL Documents to any
third person or entity except as set forth in subparagraphs (1)-(5). Subject to these

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requirements, the following categories of persons may be allowed to review Documents
that have been designated CONFIDENTIAL:
(1)

Counsel. Counsel (or the parties and employees and agents of

counsel) who have responsibility for the preparation and trial of the action
including all in-house counsel;
(2)

Parties. Parties and employees of a party to this Order.

(3)

Court Reporters and Recorders. Court reporters and recorders

engaged for depositions;
(4)

Consultants,

Investigators

and

Experts.

Consultants,

investigators, or experts (hereinafter referred to collectively as "experts")
employed by the parties or counsel for the parties to assist in the
preparation and trial of this action or proceeding, but only after such
persons have completed the certification contained in Attachment A,
Acknowledgment of Understanding and Agreement to Be Bound; and
(5)

Others by Consent. Other persons only by written consent of the

producing party or upon order of the Court and on such conditions as may
be agreed or ordered. All such persons shall execute the certification
contained

in Attachment A, Acknowledgement of Understanding and

Agreement to Be Bound.
(c)

Disclosure

of

Documents

Designated

“CONFIDENTIAL-

ATTORNEY EYES ONLY”: Counsel for the parties shall not disclose any documents
designated “CONFIDENTIAL – ATTORNEY EYES ONLY” to any other person unless
authorized by the producing party in writing.

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(d)

Control of Documents. Counsel for the parties shall take reasonable and

appropriate measures to prevent unauthorized disclosure of documents designated as
CONFIDENTIAL pursuant to the terms of this Order, and shall take all necessary and
reasonable precautions to prevent the unauthorized or inadvertent disclosure of
documents designated “CONFIDENTIAL – ATTORNEY EYES ONLY” to the parties or
their employees. Counsel shall maintain the originals of the forms signed by persons
acknowledging their obligations under this Order for a period of one (1) year after
dismissal of the action, the entry of final judgment and/or the conclusion of any appeals
arising therefrom.
(e)

Copies. Prior to production to another party, all copies, electronic images,

duplicates, extracts, summaries or descriptions (hereinafter referred to collectively as
("copies") of Documents designated as CONFIDENTIAL under this Order, or any
individual portion of such a document, shall be affixed with the designation
“CONFIDENTIAL” if the word does not already appear on the copy. All such copies
shall thereafter be entitled to the protection of this Order. The term "copies" shall not
include indices, electronic databases or lists of documents provided these indices,
electronic databases or lists do not contain substantial portions or images of the text of
confidential documents or otherwise disclose the substance of the confidential
information contained in those documents.
(f)

All information derived from Documents designated pursuant to this

Confidentiality

Protective

Order

is

also

considered

“CONFIDENTIAL”

or

“CONFIDENTIAL ATTORNEY EYES ONLY” as the Documents from which it was
derived.

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(g)

Inadvertent Production.

Inadvertent production of any document or

information without a designation of “CONFIDENTIAL” shall be governed by the
applicable rules of procedure.
6.

Filing of CONFIDENTIAL Documents Under Seal.

The Court highly

discourages the manual filing of any pleadings or documents under seal. To the extent that a
brief; memorandum or pleading references any document marked as CONFIDENTIAL, then
the brief, memorandum or pleading shall refer the Court to the particular exhibit filed under
seal without disclosing the contents of any confidential information as provided for by local
rule and related filing procedures.
(a)

Before any Document designated pursuant to the terms herein is filed

under seal with the Clerk, the filing party shall first consult with the party that produced
and designated the Document as CONFIDENTIAL to determine whether, with the
consent of that party, the document or a redacted version of the document may be filed
with the Court not under seal.
(b)

Where agreement is not possible or adequate, before a Document is filed

with the Clerk, it shall be placed in a sealed envelope marked “CONFIDENTIAL”,
displaying the case name, docket number, a designation of what the document is, the
name of the party in whose behalf it is submitted, and name of the attorney who has
filed the documents on the front of the envelope. A copy of any document filed under
seal shall also be delivered to the judicial officer’s chambers.
(c)

To the extent that it is necessary for a party to discuss the contents of any

confidential information in a written pleading, then such portion of the pleading may be
filed under seal with leave of Court. In such circumstances, counsel shall prepare two

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4819-6918-3252.2

versions of the pleadings, a public and a confidential version. The public version shall
contain a redaction of references to Documents. The confidential version shall be a full
and complete version of the pleading and shall be filed with the Clerk under seal as
above.

A copy of the unredacted pleading also shall be delivered to the judicial

officer’s chambers.
(d)

If any party notifies another party that they intend or need to file one or

more of the Protected Documents in response to a motion previously filed, the party
who filed such motion specifically agrees to provide whatever extension or continuance
is necessary to file such response to allow for compliance with paragraph. Specifically,
upon reasonable request, the parties agree to provide an extension or continuance for the
filing of any response to any motion to provide appropriate time to comply with
applicable law regarding filing such documents under seal.
7.

Challenges by a Party to Designation as Confidential. All CONFIDENTIAL

and “CONFIDENTIAL – ATTORNEY EYES ONLY” designations are subject to challenge by
any party. Before filing any motion challenging confidentiality designation with the Court, the
objecting party shall have an obligation to meet and confer in a good faith effort to resolve the
objection by agreement. If agreement is reached confirming or waiving the designation as to any
Documents subject to the objection, the designating party shall serve on all parties a notice
specifying the Documents and the nature of the agreement.
8.

Action by the Court. Applications to the Court for an order relating to any

Documents designated shall be by motion under the applicable rules of procedure and local
rules of the Court and any other procedures set forth in the presiding judge’s standing orders or
other relevant orders. Nothing in this Order or any action or agreement of a party under this

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4819-6918-3252.2

Order limits the Court’s power to make any orders that may be appropriate with respect to the
use and disclosure of any documents produced or use in discovery or at trial.
9.

Use of Confidential Documents or Information at Trial. The Court shall enter

a separate order regarding the use of Documents at trial not inconsistent with the protections on
use and disclosure provided herein.
10.

Obligations on Conclusion of Litigation.
(a)

Order Remains in Effect. Unless otherwise agreed or ordered, this

Order shall remain in force after dismissal or entry of judgment not subject to further
appeal or after any applicable appeals.
(b)

Disposition of CONFIDENTIAL Documents. Within thirty days after

dismissal or entry of final judgment not subject to further appeal, all Documents
designated under this Order, including copies as defined in ¶ 6(e), and all information
derived therefrom shall be returned to the producing party unless: (1) the document has
been offered into evidence or filed without restriction as to disclosure; OR (2) the party
in possession of such document(s) elects to destroy the Documents and certifies to the
producing party that it has done so. Notwithstanding the above requirements to return
or destroy Documents, counsel may retain attorney work product, including an index
which refers or relates to Documents, so long as that work product does not duplicate
verbatim substantial portions of the text or images of confidential documents. This
work product shall continue to be CONFIDENTIAL under this Order. An attorney may
use his or her work product in a subsequent litigation provided that its use does not
disclose or use Documents.

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(c)

Return of Documents Filed under Seal. After dismissal or entry of

final judgment not subject to further appeal, the Clerk may elect to return to counsel for
the parties or, after notice, destroy Documents filed or offered at trial under seal or
otherwise restricted by the Court as to disclosure.
11.

Order Subject to Modification. This Order shall be subject to modification by

the Court on its own motion or on motion of a party or any other person with standing
concerning the subject matter.
12.

Persons Bound. This Order shall take effect when entered and shall be binding

upon all counsel and their law firms, the parties, and persons made subject to this Order by its
terms.
So Ordered.
June 27, 2013.

BY THE COURT:
s/ Cheryl R. Zwart
United States Magistrate Judge

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4819-6918-3252.2

ATTACHMENT A
ACKNOWLEDGMENT
AND
AGREEMENT TO BE BOUND
The undersigned hereby acknowledges that he/she has read the Protective Order dated
__________________ in the above-captioned action and attached hereto, understands the
terms thereof; and agrees to be bound by its terms. The undersigned submits to the jurisdiction of
the Court herein in matters relating to the Protective Order and understands that the terms of the
Protective Order obligate him/her to use documents designated CONFIDENTIAL and
CONFIDENTIAL-ATTORNEY EYES ONLY in accordance with the Order solely for the
purposes of the above captioned action, and not to disclose any such documents or information
derived directly therefrom to any other person, firm or concern.
The undersigned acknowledges that violation of the Protective Order may result in
penalties for contempt of court.
Name:

______________________________________

Job Title:

______________________________________

Employer:

______________________________________

Business Address:

_______________________________
________________________________
________________________________

Date: _______________________

________________________________
Signature

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