TSYS Merchant Solutions, LLC v. Global Transact, LLC et al

Filing 19

STIPULATED PROTECTIVE ORDER. Ordered by Magistrate Judge Thomas D. Thalken. (MKR)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
TSYS M ERCHANT SOLUTIONS, LLC, a
Delaware limited liability company,
Plaintiff,
v.
GLOBAL TRANSACT, LLC, a Texas limited
liability company doing business as GLOBAL
CARD 1, LLC and M ICHAEL W .
DELEONARDIS, an individual,

Defendants.

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8:11CV3175
STIPULATED PROTECTIVE ORDER

This matter comes before the Court on the Stipulation for Protective Order (Filing 18)
submitted by Plaintiff TSYS Merchant Solutions, LLC (“Plaintiff”) and Defendants Global Transact,
LLC d/b/a Global Card 1, LLC and Michael W. DeLeonardis (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 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;

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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.
6.

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

This Court and its personnel.

B.

Counsel of record in this Litigation, and their respective clients and client representatives

who have a “need to know.”

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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.

Persons noticed for depositions or designated as trial witnesses to the extent

reasonably necessary to prepare to testify; provided that, prior to disclosure, each
such person shall execute the Confidentiality Agreement, attached hereto as
Exhibit A. Counsel shall maintain a copy of each such Confidentiality Agreement,
and shall provide, if requested, a copy of the signed Agreement to counsel for the
requesting Parties. As to any witness shown documents or information designated
as Confidential Information, disclosure shall not include the physical transfer to or
retention by such individual of any document or any tangible item containing
Confidential Information, unless that witness is an Expert referred to in subparagraph
D above.
F.

Court reporters retained for depositions, hearings or other events in the

Litigation.

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G.

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.
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

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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.
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 (90) days after final termination of the

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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 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 10th day of January, 2012.
BY THE COURT:
s/ Thomas D. Thalken
United States Magistrate Judge

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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: