White v. Kellogg Company et al

Filing 28

ORDER granting 27 Motion for Protective Order. Ordered by Magistrate Judge Thomas D. Thalken. (TRL)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA

JERAMIA WHITE,
Plaintiff,
v.
KELLOGG COMPANY, AND THE
BAKERY, CONFECTIONARY,
TOBACCO WORKERS & GRAIN
MILLERS INTERNATIONAL UNION,
LOCAL NO. 50 G,
Defendants.

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8:12CV164
PROTECTIVE ORDER

It is stipulated and agreed by counsel for the parties to this action that the terms and
conditions of this Stipulated Protective Order shall be applicable to, and govern, documents and
information specifically identified below.
Plaintiff alleges claims of disability discrimination, failure to reasonably accommodate,
breach of duty of fair representation and retaliation in this lawsuit. Defendants seek discovery
regarding Plaintiff’s financial, medical, educational, employment and mental condition. Plaintiff
considers this information to be confidential and private information. Plaintiff seeks discovery
regarding personnel records of employees of Defendant Kellogg, who are not parties to this
lawsuit. Additionally, Plaintiff may seek information regarding Defendants’ financial condition
and their operations, which Defendants consider to be proprietary and to contain trade secrets.
As a result of the anticipated discovery, the parties have agreed to limit the disclosure of
confidential information through a Protective Order.
Plaintiff claims he was damaged as a result of such purported discrimination.
Accordingly, Plaintiff is expected to request documents and information regarding Defendants’
operations and financial condition that are both proprietary and considered to be trade secrets.

Moreover, Plaintiff is expected to request documents and information regarding personnel files
and records regarding Defendants’ employees who are not, and are not expected to be, parties to
this action. Finally, Defendants are expected to request documents and information regarding
Plaintiff’s personal, financial, medical, educational, employment and mental condition.
Defendants consider their proprietary information, trade secrets, and employment records to be
private and/or confidential. Plaintiff considers his personal information to be private and/or
confidential. The purpose of this Stipulated Protective Order is to prevent and/or limit the
disclosure of documents and information the parties appropriately deem confidential.
For good cause shown, IT IS HEREBY ORDERED AS FOLLOWS:
1.

Designations of “CONFIDENTIAL” materials. Plaintiff shall have the right to

designate as “CONFIDENTIAL” any document or information he believes, in good faith, relates
to Plaintiff’s financial, medical, educational, employment and mental condition. Defendants
shall have the right to designate as “CONFIDENTIAL” personnel records regarding non-parties,
proprietary and confidential economic information, and such other similar information it deems
to be confidential or proprietary.
2.

Restriction on Disclosure of Designated Materials. No information or things

designated “CONFIDENTIAL” shall be disclosed to any person or entity except as set forth in
this Order. No person shall use any material designated “CONFIDENTIAL” for any purpose
other than to assist counsel of record in the preparation and trial of this action. No copies of
designated materials shall be made except by or on behalf of counsel of record for the parties to
this Order.
3.

Marking of Designated Materials.

Documents that the parties reasonably

believe are protected against unauthorized disclosure or use shall be marked by placing the
legend “CONFIDENTIAL,” or an equivalent marking, on each page of the document, or, if the
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document consists of multiple pages that are bound together, by marking each page of such
bound document as “CONFIDENTIAL.” All documents to be so designated shall be marked
prior to the provision of a physical copy thereof to the receiving party. If such documents have
already been produced to the other party, the party producing such documents shall notify the
other party immediately that such documents shall be marked and deemed “CONFIDENTIAL”
under the terms of this Order.
To the extent not inconsistent with any other paragraph, this paragraph shall govern
information

that

“CONFIDENTIAL.”

has

been

produced

and

inadvertently

not

initially

designated

The initial failure to designate information in accordance with this

Stipulated Protective Order shall not preclude the producing party, at a later date, from
designating any information “CONFIDENTIAL.” The producing party may, by written notice to
counsel of record for the receiving party, designate previously produced information as
“CONFIDENTIAL” which it had inadvertently failed to designate as “CONFIDENTIAL.”
Upon receipt of such notice, the receiving party shall promptly mark its copies of the material
accordingly,

shall

thereafter

treat

the

information

as

if

it

has

been

designated

“CONFIDENTIAL,” shall restrict the disclosure or use of such information only to those persons
qualified pursuant to this Order, and if such information has previously been disclosed to persons
not qualified pursuant to this Order, take reasonable steps to obtain all such previously disclosed
information and advise such persons to treat the designated materials confidentially as though
originally so designated.
4.

Access to “CONFIDENTIAL” Materials.

Information designated as

“CONFIDENTIAL” shall not be provided, shown, made available, or communicated in any way
to any person or entity with the exception of:
a.

Counsel working on this action on behalf of any party to this action, and
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all assistants and stenographic and clerical employees working under the
direct supervision of counsel;
b.

Any person not employed by a party who is expressly retained by a party
to this Order, or any attorney described in paragraph 4(a), to assist in
litigation of this action, with disclosure of “CONFIDENTIAL” materials
only to the extent necessary to perform such work;

c.

Court reporters and any person who is author or recipient of the
confidential materials of whom testimony is taken, except that such
persons may be shown copies of “CONFIDENTIAL” materials only
during such testimony and may not retain any “CONFIDENTIAL”
materials or copies thereof;

d.

The Court or its staff in connection with the Court’s administration and
adjudication of this action, and any individual retained by the parties for
purposes of mediating or otherwise adjudicating Plaintiff’s claims. All
proceedings involving this Order shall be subject to the Order; and

e.

Defendants’ officers, directors, and employees.

5.

Undertaking of Persons Receiving Designated Materials. In no event shall any

material designated “CONFIDENTIAL” be disclosed to any person, except those described in
paragraphs 4(a), (c), (d), and (e), until that person has executed a written declaration in the form
attached hereto as Exhibit A acknowledging he or she has read a copy of this Order and agrees to
be bound thereby.

In the event of depositions of third party witnesses at which

“CONFIDENTIAL” information is to be shown or revealed to the deponent, the party seeking to
use such information shall request that said deponent execute a written declaration in the form
attached hereto as Exhibit A. Unless such a declaration is obtained, or a court order allowing
disclosure is made, “CONFIDENTIAL” information shall not be disclosed to the deponent.
Likewise, disclosures to individuals under paragraph 4(b) above may only be made after such
individuals execute a written declaration in the form attached hereto as Exhibit A. Counsel of
record shall be responsible for maintaining a file of all such declarations.

The signed

declarations shall be available for inspection by this Court upon good cause shown by opposing
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counsel.
6.

Limitations Upon the Scope of Order. Nothing contained in this Order shall

affect the right of the designating party to disclose, or use for any purpose, the documents or
information produced by it as “CONFIDENTIAL.” This Order shall not limit or affect the rights
of any party to use or disclose any information or thing that has not been obtained through, or
derived as a result of, this litigation.
7.

Return of Designated Materials.

Upon final adjudication (including any

appellate proceedings) of the claims at issue in this action, or upon such earlier order as the Court
may enter pursuant to a duly noticed motion and hearing, either party, or both parties, may move
the Court for its Order requiring the Clerk of the Court to return to the parties all materials
designated “CONFIDENTIAL” that have been filed with the Court.
8.

Breach of This Order. Breach of this Order may be punished by the contempt

powers of the Court and also give rise to a civil cause of action. Pursuant to the agreement of the
parties to this matter, reasonable attorneys’ fees and other litigation costs shall be awarded to the
prevailing party in any proceeding arising out of the breach of the confidentiality provisions of
this Order.
9.

Duration of Order. The confidentiality obligations imposed by this Order shall

remain in effect unless otherwise expressly ordered by the Court.
IT IS SO ORDERED.
Dated this 30th day of October, 2012.
BY THE COURT:
s/ Thomas D. Thalken
United States Magistrate Judge

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EXHIBIT A
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA

JERAMIA WHITE,
Plaintiff,
v.
KELLOGG COMPANY, AND THE
BAKERY, CONFECTIONARY,
TOBACCO WORKERS & GRAIN
MILLERS INTERNATIONAL UNION,
LOCAL NO. 50 G,
Defendants.

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8:12CV164

DECLARATION REGARDING PROTECTIVE ORDER AGAINST UNAUTHORIZED
USE OR DISCLOSURE OF CONFIDENTIAL INFORMATION
I _____________________ declare as follows:
My address is ___________________________________________________________;
My present employer is ___________________________________________________;
My present occupation or job description is ___________________________________.
I hereby acknowledge that I have received, or may receive, information designated as
“CONFIDENTIAL” under a Stipulated Protective Order of the Court in the above lawsuit, and I
acknowledge such information is provided to me pursuant to the terms and restrictions of such
Stipulated Protective Order.
I further state that I have (i) been given a copy of, and have read, the Stipulated
Protective Order; (ii) I am familiar with the terms of the Stipulated Protective Order; (iii) I agree
to comply with, and to be bound by, each of the terms thereof; and (iv) I agree to hold in

EXHIBIT A
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confidence any information disclosed to me pursuant to the terms of the Stipulated Protective
Order.
To assure compliance with the Stipulated Protective Order, I hereby submit myself to the
jurisdiction of the United States District Court for the District of Nebraska for the limited
purpose of participating in any proceedings relating to performance under, compliance with, or
violation of this Stipulated Protective Order.
I understand that: (i) I am to retain all of the materials I receive which have been
designated as “CONFIDENTIAL” in a container, cabinet, drawer, room, or other safe place in a
manner consistent with this Stipulated Protective Order; (ii) I will make no copies or other
reproductions of any such materials; (iii) all such materials are to remain in my custody until I
have completed my assigned duties, whereupon they are to be returned to the party who provided
them to me; and (iv) any materials, memoranda, work notes, or other documents derived from
documents designated as “CONFIDENTIAL,” or any information contained therein, are to be
delivered to the party who provided the designated materials. Such delivery shall not relieve me
from any of the continuing obligations imposed upon me by the Stipulated Protective Order. I
further agree to notify any stenographic or clerical personnel who are required to assist me of the
terms of the Stipulated Protective Order.
I declare under penalty of perjury that the foregoing is true and correct.

Name: __________________________________
Date: ___________________________________

EXHIBIT A
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