United States of America For the Use of Enviroworks, Inc. et al v. Coastal Environmental Group, Inc. et al
Filing
70
STIPULATED PROTECTIVE ORDER granting 69 Motion for Protective Order. Ordered by Senior Judge Lyle E. Strom. (ADB)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
UNITED STATES OF AMERICA FOR THE
USE OF ENVIROWORKS, INC., and
ENVIROWORKS, INC.,
Plaintiff,
Case No. 8:11-cv-00444
vs.
COASTAL ENVIRONMENTAL GROUP,
INC., and AEGIS SECURITY INSURANCE
COMPANY,
STIPULATED PROTECTIVE ORDER
Defendants.
The parties to this action have moved that the Court enter a protective order. The Court
has determined that 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 documents and information 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.
2.
Form and Timing of Designation.
A party may designate documents as
confidential and restricted from 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 and that will permit complete removal of the CONFIDENTIAL designation. The
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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.
3.
Documents Which May be Designated CONFIDENTIAL. Any party may
designate documents as CONFIDENTIAL upon making a good faith determination that the
documents contain information protected from disclosure by law or that should be protected
from disclosure as confidential personal information, medical or psychiatric information, trade
secrets, personnel records, or such other sensitive commercial information that is not publicly
available.
4.
Depositions. Deposition testimony shall be deemed CONFIDENTIAL only if
designated as such within 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.
5.
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 ¶5(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
requirements, the following categories of persons may be allowed to review documents
that have been designated CONFIDENTIAL:
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(1)
Counsel. Counsel (or the parties and employees and agents of
counsel) who have responsibility for the preparation and trial of the action;
(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 or retained 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, Acknowledgment of Understanding and
Agreement to Be Bound.
(c)
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.
Counsel shall maintain the
originals of the forms signed by persons acknowledging their obligations under this Order
for a period of 1 year after dismissal of the action, the entry of final judgment and/or the
conclusion of any appeals arising therefrom.
(d)
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
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individual portion of such a document, shall be affixed with the designation
"CONFIDENTIAL" if the word does not already appear on the copy, or may be
designated as “CONFIDENTIAL” by letter from counsel to a party. 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.
(e)
Inadvertent Production. If a party inadvertently produces a document
otherwise intended to be “CONFIDENTIAL” without marking it as such, or with a
designation that is insufficient for the level of confidentiality that should be attached to
the material, it may be disclosed to others until the receiving party becomes aware of the
error, unless it appears from the face of the material that it contains nonpublic,
confidential, proprietary, commercially sensitive, or trade secret information of the
producing party. As soon as the receiving party becomes aware of the inadvertent
production, the information must be treated as if it had been timely and correctly
designated “CONFIDENTIAL”, and the receiving party must endeavor in good faith to
obtain all copies of the document which it distributed or disclosed to persons not
authorized to have access to such information, as well as any copies made by such
persons.
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
(a)
Before any document marked as CONFIDENTIAL is filed under seal
with the Clerk, the filing party shall first consult with the party that originally
designated the document as CONFIDENTIAL to determine whether, with the consent
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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 CONFIDENTIAL
document is filed with the Clerk, it shall be placed in a sealed envelope marked
"CONFIDENTIAL – SUBJECT TO PROTECTIVE ORDER DOCUMENTS",
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
versions of the pleadings, a public and a confidential version. The public version shall
contain a redaction of references to CONFIDENTIAL 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, upon
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. Any CONFIDENTIAL
designation is subject to challenge by any party (hereafter "party"). Before filing any motions or
objections to a 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 CONFIDENTIAL designation as to any
documents subject to the objection, the designating party shall serve on all parties a notice
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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 CONFIDENTIAL 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 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. All trials are open to
the public. Absent order of the Court, there will be no restrictions on the use of any document
that may be introduced by any party during the trial. If a party intends to present at trial
CONFIDENTIAL documents or information derived therefrom, such party shall provide
advance notice to the other party at least five (5) days before the commencement of trial by
identifying the documents or information at issue as specifically as possible (i.e., by Bates
number, page range, deposition transcript lines, etc.) without divulging the actual
CONFIDENTIAL documents or information. The Court may thereafter make such orders as are
necessary to govern the use of such documents or information at trial.
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.
(b)
Return of CONFIDENTIAL Documents.
Within thirty days after
dismissal or entry of final judgment not subject to further appeal of the above captioned
action, all documents treated as CONFIDENTIAL under this Order, including copies as
defined in ¶5(d), 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
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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 information designated CONFIDENTIAL, 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 CONFIDENTIAL documents.
(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.
No Prior Judicial Determination.
This Order is entered based on the
representations and agreements of the parties and for the purpose of facilitating discovery.
Nothing herein shall be construed or presented as a judicial determination that any documents
or information designated CONFIDENTIAL by counsel or the parties is subject to protection
applicable law until such time as the Court may rule on a specific document or issue.
13.
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.
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So Ordered.
Dated: December 10, 2012
__/s/ Lyle E. Strom_______________
LYLE E. STROM, Senior Judge
United States District Court
Stipulated and agreed to by counsel for both parties and filed with consent:
COASTAL ENVIRONMENTAL GROUP,
INC., Defendant and Counterclaimant, and
AEGIS SECURITY INSURANCE
COMPANY, Defendant.,
By: _/s David M. Newman______________
Michael S. Degan (#20372)
David M. Newman (#24549)
HUSCH BLACKWELL LLP
1620 Dodge Street, Suite 2100
Omaha, NE 68102
(402) 964-5000 Telephone
(402) 964-5050 Facsimile
mike.degan@huschblackwell.com
david.newman@huschblackwell.com
ENVIROWORKS, INC., Plaintiff,
By: _ s/ Edward M. Fox II______________
Thomas J. Kenny (#20022)
Edward M. Fox II (#24601)
KUTAK ROCK LLP
1605 Farnam Street
Omaha, NE 68102-2186
(402) 346-6000 Telephone
thomas.kenny@kutakrock.com
edward.fox@kutakrock.com
ATTORNEYS FOR PLAINTIFF
Dated December 10, 2012
ATTORNEYS FOR DEFENDANTS
Dated December 10, 2012
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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 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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