United States of America v. Luther et al
PROTECTIVE ORDER - Ordered by Magistrate Judge F.A. Gossett. (AOA)
IN THE UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF NEBRASKA
UNITED STATES OF AMERICA,
MICHAEL S. LUTHER, et al.,
Civil No. 8:12-cv-80-LSC-FG3
On May 10, 2013, Defendant Laura Dodge Luther filed a motion for protective order
(filing 118) seeking to limit disclosure of certain information produced in this case, including
personal tax information. This motion was joined by Defendant Michael Luther. On June 20,
2013, the Court granted Ms. Luther’s motion, in part, stating that the Court would approve a
reasonable protective order which allows documents, including tax documents, to be designated
as confidential and limits access to the Court and the parties. (Filing 143.) The Court directed
the parties to confer and jointly submit a proposed protective order by July 5, 2013. Despite
their efforts, the parties have been unable to reach an agreement with respect to appropriate terms
for a protective order to govern this matter. Consequently, the parties separately submitted
proposed protective orders to the Court by email. Upon review and consideration of these
proposed orders, the Court enters a protective order as follows.
IT IS ORDERED:
This Protective Order shall apply to any agents, attorneys, accountants,
consultants, employees, parent companies, subsidiaries, officers, directors and employees of the
parties, including but not limited to personnel of an office, board, division, or bureau of the
(“Department”), clerical personnel and supervisory personnel of the Department, officers and
employees of the Internal Revenue Service, and officers and employees of another federal
agency working under the direction and control of the Department of Justice.
The terms contained in this Protective Order shall apply to all documents
(including all copies, excerpts and summaries thereof) produced, present or future, and
deposition testimony provided, as between the parties and through the third party subpoenas
served, in connection with the above referenced suit (collectively “Discovery Material”), or
further documents derived or created in whole or in part from Discovery Material.
Discovery Material either expressly designated as confidential or “Luther Return
Information” as hereinafter defined shall be subject to protections and restrictions regarding
confidential documents within this Order. Discovery Material that is deemed confidential shall
be stamped by the producing party “CONFIDENTIAL.” The acceptance by the non-designating
party of materials designated as confidential, whether received in discovery or otherwise, shall
not be construed to waive the non-designating party’s right later to object to the designation in
accordance with the terms of this Order.
“Luther Return Information” means (a) any and all documents that are “return” or
“return information” as defined in 26 U.S.C. § 6103 in relation to Michael or Laura Luther, and
(b) to the extent not “return information” any and all documents evidencing (i) IRS auditing or
investigation of Defendants Michael or Laura Luther, (ii) IRS officers’ and agents’
communications, notes, and actions regarding Defendants Michael or Laura Luther, (iii) financial
asset documentation regarding Defendants Michael or Laura Luther including check images, and
checking, savings, or brokerage account statements, and (iv) notes that summarize or republish
any of said information.
Excluded from this definition are documents that were, prior to
commencement of this action, publicly disclosed in a manner not in violation of any agreement
or court order.
All copies, duplicates, extracts, summaries, or descriptions (hereinafter referred to
collectively as “copies”) of documents or information designated as confidential under this
Order, or any portion thereof, must be immediately affixed with the words: “CONFIDENTIAL”.
If a document marked confidential is introduced during a deposition, the portion
of the deposition regarding the confidential document may be designated confidential, if such
designation is made on the record at the time of the deposition or within fourteen (14) days after
the transcript of the deposition has been delivered to the parties ordering a copy by written notice
and delineation. The portions of the transcript designated as confidential shall be affixed with
the words: “CONFIDENTIAL”.
Except as otherwise provided in this Protective Order, information or documents
designated as confidential by a party under this Protective Order shall not be used or disclosed by
the remaining parties or their counsel or any persons identified in Paragraphs 1 and 7 of this
Protective Order for any purposes whatsoever other than preparing for and conducting the
litigation in this lawsuit (including any appeals).
The parties and counsel for the parties shall not disclose or permit the disclosure
of any documents or information designated as confidential under this Protective Order to any
other person or entity, except that disclosures may be made in the following circumstances:
Disclosure may be made to employees of counsel for the parties, or to employees
of the parties necessary to properly accomplish any purpose or activity described in 26 U.S.C.
§§ 6103(h) or (k)(6) and the regulations thereunder, which is necessary for the preparation and
trial of the above-captioned lawsuit, which include those employees that may be witnesses. Any
such employee to whom counsel for the parties makes a disclosure must be advised of, and
become subject to, the provisions of this Protective Order requiring that the documents and
information be held in confidence;
Disclosure may be made to the Court and its employees;
Disclosure may be made to court reporters engaged for depositions and those
persons, if any, specifically engaged for the limited purpose of making photocopies of
Subject to the receiving party executing a Confidentiality Agreement in the form
attached as Exhibit A agreeing to be bound by the terms of this Protective Order, disclosure may
be made to:
any independent outside experts or consultants retained by the
parties or their counsel for purposes of this litigation;
employees and subcontractors of the independent outside experts
or consultants retained by the parties or by their counsel for purposes of this
litigation in paraprofessional, clerical, stenographic and ministerial positions; and
any third-party fact witnesses or potential fact witnesses when a
good faith determination is made that the documents would be relevant to their
testimony or potential testimony and ten days prior written notice of disclosure is
given to the party who originally produced the confidential documents, and the
disclosing party does not object in writing within ten (10) days of receiving the
Except as provided otherwise in this Protective Order, counsel for the parties shall
keep all Discovery Material designated as confidential secure within their exclusive possession
and must place such documents in a secure area. The parties shall retain all copies of the
Confidentiality Agreements executed until this action is resolved.
Nothing in this Protective Order limits the right of any party to seek any
protection it deems necessary for any documents or information, in accordance with Rule 26 of
the Federal Rules of Civil Procedure.
Any party may at any time serve a written objection to any designation of
confidentiality made by the designating party. This notice shall specifically identify the material
or information to which the objecting party wishes to have the designation removed. Within
seven (7) days of receipt of such objection, the designating party (i) shall review the material to
which the objection applies, (ii) notify the objecting party in writing whether the designating
party will agree to remove the designation as requested, and (iii) if it will not agree to remove the
designation, the designating party will state with specificity its reasons for not agreeing. If an
agreement cannot be reached, either party may move for a ruling from the Court. The material at
issue will be treated as confidential until a Court order determines the material is not
If Discovery Materials designated confidential are to be filed with the Court,
absent consent they shall be filed under seal or in a similar matter such that public access is
prohibited. Nothing in this Protective Order shall be grounds for limiting or restricting the use
of materials filed with the court at trial.
Nothing in this Protective Order shall prevent disclosure of any confidential
information if the designating party consents in writing to the disclosure.
Notwithstanding any provision of this Protective Order, the parties may disclose
confidential information or documents if necessary to comply with a subpoena or court order,
whether or not originating with the Court in this captioned Protective Order. Within seven days
of when it is recognized that disclosure of confidential information or documents is required to
comply with a subpoena or court order, the party shall give prompt written notice to the
designating party of the impending disclosure, unless otherwise prohibited by law.
Notwithstanding any provision of this Protective Order, where counsel believe
confidential information or documents, either on its face or in conjunction with other
information, indicates a violation or potential violation of law—criminal, civil, or regulatory in
nature—the relevant information or documents may be disclosed to the appropriate federal, state,
local, foreign, or tribal, law enforcement authority or other appropriate agency charged with the
responsibility of investigating or prosecuting such a violation or enforcing or implementing such
At the conclusion of this litigation (including any appeals) all material designated
confidential pursuant to the terms of this Protective Order shall either be destroyed or returned to
the designating party, within sixty (60) days after the conclusion of the litigation, except with
respect to (a) material that becomes part of the Court record in this matter, (b) work product of
counsel, (c) transcripts, exhibits, and other documents required to be maintained by the
Plaintiff’s written record retention policy, provided that all material designated confidential in
such retained material is maintained in accordance with the provisions hereof.
This Protective Order may be modified or amended only by an order of this Court
or by stipulation between the parties.
DATED July 16, 2013.
BY THE COURT:
S/ F.A. Gossett
United States Magistrate Judge
I have received and read all the terms of the Protective Order in the action
captioned United States of America v. Michael S. Luther, et al., Civil No. 8:12-cv-80-LSCFG3, and understand and hereby agree to be bound by all the terms thereof with respect to
the use and disclosure of information and materials designated as “CONFIDENTIAL”. I
further expressly agree that I will not in any way use, disclose, discuss, summarize, reveal
or refer to any information or material designated “CONFIDENTIAL” for any purpose
whatsoever other than as permitted in the terms of the Protective Order, unless the Court
hereafter alters the Protective Order or its applicability to me.
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