Animal Health International, Inc. v. Livingston Enterprises, Inc.

Filing 44

PROTECTIVE ORDER (with Rule 502 approval) granting 40 Stipulation. Ordered by Magistrate Judge Cheryl R. Zwart. (Zwart, Cheryl)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA

LIVINGSTON ENTERPRISES, INC.,

CASE NO. 8:11-CV-0352-JMG-CRZ

PLAINTIFF,
v.

STIPULATION FOR PROTECTIVE
ORDER

LEXTRON, INC., a Colorado corporation;
ANIMAL HEALTH INTERNATIONAL, INC. a
Colorado corporation, d/b/a LEXTRON
ANIMAL HEALTH; and BOEHRINGER
INGELHEIM VETMEDICA, INC.,
DEFENDANTS.
ANIMAL HEALTH INTERNATIONAL, INC. a
Colorado corporation,

CASE NO. 8:12-CV-144-JMG-CRZ

PLAINTIFF,
v.

STIPULATION FOR PROTECTIVE
ORDER

LIVINGSTON ENTERPRISES, INC., a
Nebraska corporation.
DEFENDANT.
Plaintiff-Counterdefendant

Livingston

Enterprises

Inc.,

(“Plaintiff”),

Defendant-

Counterclaimant Animal Health International, Inc. (“Animal Health”), and Defendant
Boehringer Ingelheim Vetmedica, Inc. (“Boehringer”) (collectively, “Defendants”), by and
through their respective counsel, hereby stipulate and agree, and request an Order of this Court,
to the following Protective Order (“Protective Order”):
1.

Plaintiff and Defendants stipulate and agree that they have an obligation to ensure

the confidentiality of documents filed as Restricted Documents under the E-Government Act,
medical records, financial records, commercial and proprietary information, and agreements with

4821-5090-3824.1

non-parties related to the present matter which may be produced in this case in response to any
party’s discovery requests or to testifying or non-testifying experts. Accordingly, the parties
show the Court that good cause exists for the entry of a protective order.
2.

The Protective Order shall be without prejudice to the right of any of the parties

of this action (i) to bring before this Court at any time the question of whether any particular
information is or is not relevant to any issue of this case or whether any information is or is not
confidential as defined in Paragraph 1 of this Stipulation for Protective Order; (ii) to seek a
further protective order; (iii) to exercise any right or raise any objection otherwise available
under the rules of discovery or evidence; or (iv) by application and notice, to seek relief from any
provision of this Protective Order on any ground. During the pendency of any challenge to the
applicability of this Protective Order to any document, information or thing, however, said
document, information or thing shall remain subject to the provisions of this Protective Order.
3.

Documents, things, testimony, pleadings, various matters and information

designated as confidential by any party to this action (“Confidential Information”):
(a)

Shall be designated by a stamp, sticker or similar variation indicating that the

documents are “Confidential,” “Proprietary,” “Trade Secret,” “Subject to Protective Order” or
some similar variation;
(b)

Shall be used only for the purpose of this litigation, including any appeals, and

may not be used for any purpose or disclosed in any manner outside the reasonable conduct of
this case even if said information is used or offered at trial or in open court;
(c)

Shall not be disclosed to anyone other than the Court, the parties hereto, their

outside counsel, and the employees who are assisting such counsel in this litigation, any in-house
counsel, employees of insurers for the parties hereto with responsibilities respecting this

4821-5090-3824.1

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litigation, court reporters who record deposition or other testimony, witnesses, deponents,
consultants and/or experts;
(d)

Shall be filed as Restricted Documents under the E-Government Act whenever

said documents are filed with this Court; and
(e)

If any party, attorney or individual shall disclose confidential material(s) or

information to a consultant, expert witness, or non-party witness, it is the obligation of the
disclosing party to provide such person with a copy of this Protective Order and obtain a signed
Confidentiality Agreement (in the form attached hereto and marked as Exhibit A) whereby such
person agrees to be bound by the terms of this Protective Order. A copy of each executed
Confidentiality Agreement shall be maintained by counsel for the disclosing party in a secure
place and, upon request, such counsel shall produce the same to counsel for the non-disclosing
party. If any party discloses confidential material(s) or information to an expert witness who is
not expected to be called as a witness at trial (“non-trial expert”), the disclosing party still has the
obligation to provide the non-trial expert with a copy of this Protective Order and obtain a signed
Confidentiality Agreement (in the form attached hereto and marked as Exhibit A) whereby the
non-trial expert agrees to be bound by the terms of this Protective Order. Although a copy of
each executed Confidentiality Agreement obtained from such non-trial expert shall be
maintained by counsel for the disclosing party in a secure place, a copy of said executed
Confidentiality Agreement shall be produced to the non-disclosing party only upon court order.
4.

Pursuant to Federal Rule of Evidence 502, any disclosure connected with this

litigation of privileged or protected information shall not waive any privilege or protection in the
instant proceeding or any other Federal or State proceeding. A party may request the return of
any information it claims to be subject to a privilege or protection, including without limitation

4821-5090-3824.1

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the attorney-client privilege and the work-product protection (“Privileged Information”) by
identifying the Privileged Information and the basis for withholding such information from
disclosure. If a party requests the return, pursuant to this paragraph, of Privileged Information
then in the custody of one or more other parties, the possessing parties shall not make further use
of the Privileged Information until such time as the Court has ruled on a motion for an order on
the privilege objections. If a possessing party does not agree that the Privileged Information is
covered by a privilege or work product protection, then the producing party shall bring a motion
seeking to protect the Privileged Information within fifteen (15) business days of the possessing
party’s disagreement. If the Court grant such motion, all parties in possession of the Privileged
Information shall, within five (5) business days of that ruling, destroy or return to the producing
party the Privileged Information and all copies thereof, and shall destroy and/or expunge from
any other document or material information solely derived from the Privileged Information.
Nothing in this paragraph shall affect the burden imposed by law on either the producing party or
the possessing party with respect to Privileged Information.
5.

Nothing in the Protective Order shall be construed to limit the use of information

regarding individuals obtained by lawful means or from sources other than this litigation.
6.

The Protective Order shall be binding upon the parties, their attorneys, agents,

employees, representatives, successors and assigns from this date forward for documents first
produced or disclosed from such date.

4821-5090-3824.1

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Dated this 31st day of August, 2012.

LIVINGSTON ENTERPRISES, INC.,
Plaintiff-Counterdefendant

ANIMAL HEALTH INTERNATIONAL,
F/K/A LEXTRON ANIMAL HEALTH,
Defendant-Counterclaimant

By: /s/ Sean P. Moore
Sean P. Moore
Michael R. Blaser
John D. Hunter
Matthew H. McKinney
Brown Winick PLC
666 Grand Avenue
Suite 2000
Des Moines, IA 50309-2510
[phone]
[phone] (fax)
[e-mail]
[e-mail]
[e-mail]
[e-mail]

By: /s/ Robert M. Slovek
Robert M. Slovek #17798
D. David DeWald #24765
Kutak Rock LLP
The Omaha Building
1650 Farnam Street
Omaha, NE 68102-2186
Phone: [phone]
Facsimile: [phone]
[e-mail]
[e-mail]
and
Tamir Goldstein
Reed W. Morgan
Sherman & Howard LLC
633 17th Street, Suite 300
Denver, CO 80202

BOEHRINGER INGELHEIM
VETMEDICA, INC.
By: /s/ Michael E. McWilliams
Michael E. McWilliams
Kyle V. Miller
Butler Snow PLLC
1020 Highland Colony Parkway
Suite 1400
Ridgeland, MS 39157
[phone]
[phone]
and
Keith Harvat
David S. Houghton
Lieben Whitted
Scoular Building
2027 Dodge Street Suite 100
Omaha, NE 68102

4821-5090-3824.1

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[phone]
[phone] (fax)
[e-mail]
[e-mail]

CERTIFICATE OF SERVICE
I hereby certify that, on August 31, 2012, I electronically filed the foregoing with the
Clerk of Court using the CM/ECF system, which will send notification of such filing to the
following:
[e-mail]
[e-mail]
[e-mail]

[e-mail]
[e-mail]
[e-mail]

By: /s/ Robert M. Slovek
Robert M. Slovek
Upon the court's review of the parties' discovery agreement, (as set forth above),
including their agreement regarding the application of Rule 502 to their discovery processes,

IT IS ORDERED:

In accordance with Rule 502(d) and (e) of the Federal Rules of Evidence and the
authority granted therein, the terms of the parties' discovery agreement are hereby ordered and
enforceable against the parties herein and all persons in federal and state proceedings, including
third parties.

BY THE COURT:

______________________________
United States Magistrate Judge

4821-5090-3824.1

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EXHIBIT A
CONFIDENTIALITY AGREEMENT
I have read the Protective Order (“Protective Order”) entered by the United States
District Court for the District of Nebraska in the action entitled Livingston Enterprises, Inc. v.
Lextron, Inc., Animal Health International, Inc., and Boehringer Ingelheim Vetmedica, Inc., and
the companion action entitled Animal Health International, Inc. v. Livingston Enterprises, Inc.,
Case Nos. 8:11-CV-0352-JMG-CRZ and 8:12-CV-144-JMG-CRZ respectively. I understand the
Protective Order is a court order designed to preserve the confidentiality of the “Confidential
Information” designated under the terms of the Protective Order. I also understand the
Protective Order restricts my use, disclosure and retention of such Confidential Information and
also requires my safeguarding and/or return of documents and other materials containing
Confidential Information as required by the Protective Order.
I agree to comply with all provisions of the Protective Order. I also hereby submit
myself to the jurisdiction of the United States District Court for the District of Nebraska for the
purpose of enforcement of any provision of the Protective Order.
Dated: _____________
Signature

Name (Print)

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