New Alliance Bean and Grain Company v. Anderson Commodities, Inc. et al

Filing 35

PROTECTIVE ORDER adopting 34 Stipulated Confidentiality and Protective Order as set forth herein. Ordered by Magistrate Judge Thomas D. Thalken. (TRL)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
NEW ALLIANCE BEAN AND GRAIN
COMPANY, a Division of Western
Cooperative Company, a Nebraska
Cooperative Corporation,

Case No. 12-CV-00197-JFB-TDT

STIPULATED CONFIDENTIALITY AND
PROTECTIVE ORDER

Plaintiff
v.
ANDERSON COMMODITIES, INC., a
Minnesota corporation; ANDERSON
SEED COMPANY, a Minnesota
corporation, RONALD L. ANDERSON, and
RAMONA ANDERSON,
Defendants.

WHEREAS the parties to this proceeding, New Alliance Bean and Grain
Company and Anderson Commodities, Inc., Anderson Seed Company, Ronald L.
Anderson and Ramona Anderson, recognize that during the course of this proceeding,
issues may arise which may require the disclosure of trade secrets, confidential
research, or sensitive commercial, financial, process, marketing or business
information, or other confidential information and the parties desire to plan for that
contingency by entry of this Stipulated Confidentiality and Protective Order (“Order”);
WHEREAS such information should not be released into the public domain, but
rather should be treated as confidential pursuant to the privacy interests of the parties;

Attachment

WHEREAS the parties have, through counsel, agreed to be bound by and
stipulated to the entry of this Order to prevent unnecessary disclosure or dissemination
of such confidential information;
WHEREAS the Court has found that the parties should respect and recognize
the privacy interests of each other by the avoidance of any release of the confidential
information, documents or things that are produced in this action;
IT IS HEREBY STIPULATED, AGREED AND ORDERED that the terms and
conditions of this Order shall govern the production and handling of documents and
things, answers to interrogatories, depositions, pleadings, exhibits and other information
exchanged by the parties, or received from non-parties, in this action:
1.

This Order is entered for the purposes of this case and shall remain in full

force and effect unless modified by an Order of this Court or by the written stipulation of
the parties filed with the Court. Without limiting the foregoing, this Order shall survive
and remain in full force and effect after the termination of this litigation.
2.

This Order shall become effective upon the signatures of counsel for the

parties and the approval of the U.S. Magistrate or his designee.
3.

Nothing in this Order shall limit or preclude any party from applying to the

Court to modify the terms of this Order or the status of any particular information,
document, or thing, or for relief from this Order, or for such further or additional
Protective Orders as the Court may deem appropriate.
4.

Portions of documents, deposition testimony, and other materials

produced or provided by any party during discovery, which contain confidential
information or commercial secrets not available in the public domain, shall be

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considered confidential material at the request of the producing party. The producing
party shall designate clearly the portion or portions of any documents or other materials
produced that its contents should be confidential, by labeling or identifying such portions
as “CONFIDENTIAL-ATTORNEYS’ EYES ONLY.”
5.

Documents labeled or identified as “CONFIDENTIAL-ATTORNEYS’ EYES

ONLY” shall be revealed only to and used by:
A.

This Court, including its staff and any jury selected in this case;

B.

Counsel for the parties to this action, together with their support

personnel.

As used herein, “counsel” shall mean those attorneys who are

members or associates of any law firm employed by the parties, including those
members of a corporate party’s general counsel’s office, and who are charged
with the responsibility for and actively engaged in preparation of this matter, as
well as any of counsel’s respective secretaries, legal assistants, paralegals and
other staff; and
C.

Independent

experts

or

consultants

who

may

examine

“CONFIDENTIAL-ATTORNEYS’ EYES ONLY” materials in connection with
discovery and the presentation of evidence in the trial of this case, and who,
before receiving such materials or information, have signed the attached
Acknowledgement and Agreement to be Bound.
6.

All “CONFIDENTIAL-ATTORNEYS’ EYES ONLY” material shall not be

used by any recipient or disclosed to anyone for any purpose other than in connection
with this action and shall not be disclosed by the recipient to anyone other than those
persons designated above, or in Court filings as provided below, unless and until the

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restrictions herein are removed either by written agreement of counsel for the parties or
by Order of the Court.
7.

If timely corrected, an

inadvertent failure

to

designate qualified

information or materials as “CONFIDENTIAL-ATTORNEYS’ EYES ONLY” does not,
standing alone, waive a party's right to secure protection for such material. If
information or material is appropriately designated as “CONFIDENTIAL-ATTORNEYS’
EYES ONLY” after the material was initially produced, the receiving party, on timely
notification of the designation, must make reasonable efforts to assure that the material is
treated in accordance with the provisions herein.
8.

Any party may bring before the Court the question of whether particular

information designated as “CONFIDENTIAL-ATTORNEYS’ EYES ONLY” is in fact of a
confidential nature, as contemplated by this Order.

However, the parties agree to

attempt to resolve any such disputes prior to bringing them to the Court pursuant to
NECivR 7.1(i). Until the Court has ruled on any disputed designations of confidentiality,
the

parties

shall

treat

information

and

documents

properly designated as

“CONFIDENTIAL-ATTORNEYS’ EYES ONLY” by another party as “CONFIDENTIALATTORNEYS’ EYES ONLY.”

The party asserting confidentiality over a document,

including a deposition or trial transcript, or portion thereof, shall bear the burden of
establishing that the information contained therein is in fact “CONFIDENTIALATTORNEYS’ EYES ONLY”
9.

A party that wishes to designate as “CONFIDENTIAL-ATTORNEYS’

EYES ONLY” any material or information that is contained in a deposition transcript
shall indicate orally at the time of the deposition that it intends to designate all or part of

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the testimony as confidential. Within twenty-one (21) days after receipt of the deposition
transcript, the designating party shall advise the other parties of the specific portions of
the testimony it contends are confidential, unless the parties agree to an extension of
that period of time. Until the period of time for designation has passed, or until the
Court has ruled on any disputed designations of confidentiality, the parties shall treat
the

designated

portions

of

any

deposition

transcripts

as

“CONFIDENTIAL-

ATTORNEYS’ EYES ONLY.”
10.

Nothing in this Order is intended to limit or otherwise affect the scope of

discovery by the parties or the use or admissibility of evidence at trial. Materials subject
to this Order may be filed with the Court, provided that any portions of such documents
that are designated as “CONFIDENTIAL-ATTORNEYS’ EYES ONLY” are filed as
restricted documents pursuant to NECivR 5.3 and prominently marked: "Information
Subject to Protective Order." Parties shall file only that portion of a pleading, motion or
brief that contains “CONFIDENTIAL-ATTORNEYS’ EYES ONLY” information with the
Court under restricted access.
11.

Upon final disposition of this matter by a court of competent jurisdiction or

upon conclusion of any settlement, all “CONFIDENTIAL-ATTORNEYS’ EYES ONLY”
information and materials furnished or produced under the terms of this Order, including
all copies thereof and all documents incorporating such information, except all pleadings
filed with the Court, all exhibits marked in discovery or at trial, and material which, in the
judgment of the attorney in possession of the materials, are work product materials,
shall be destroyed or delivered to the counsel for the designating party, unless
otherwise agreed in writing. Outside counsel for a party may retain all materials in their

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files relating to this case, but in so doing must comply with the terms of this Order,
meaning that all “CONFIDENTIAL-ATTORNEYS’ EYES ONLY” information and
materials, including but not limited to the above-described pleadings, exhibits, and work
product materials, must be retained in confidence under the terms of this Order.
12.

The Protective Order applies to information contained in the briefs,

memoranda, motions or pleadings, or any other documents prepared or filed in this
litigation, which reveal confidential information contained in documents or materials that
have been designated as “CONFIDENTIAL-ATTORNEYS’ EYES ONLY” by one of the
parties, unless this Court has ruled that such designation was improper.
13.

By entering into this stipulation, no parties waives any right it would

otherwise have to object to disclosing or producing records on any ground not
addressed in this stipulation.

Similarly, no party waives any right to object on any

ground to use in evidence or during pretrial discovery or during trial confidential material
cover by the stipulation.
Dated this 7th day of February, 2013.

BY THE COURT
s/ Thomas D. Thalken
United States Magistrate Judge

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Agreed as to form and content:
NEW ALLIANCE BEAN AND GRAIN,
COMPANY, a Division of Western
Cooperative Company, a Nebraska
Cooperative Corporation, Plaintiffs,
By: s/ Bonnie Boryca______
Bonnie Boryca, # 24886
ERICKSON, SEDERSTROM, P.C.
Regency Westpointe, Suite 100
10330 Regency Parkway Drive
Omaha, NE 68114-3761
[phone]
[e-mail]
Attorneys for Plaintiff.

ANDERSON COMMODITIES, INC.,
ANDERSON SEED COMPANY,
RONALD L. ANDERSON, and Ramona Anderson,
Defendants,
By: s/ Kristin M.V. Farwell_______
Donald L. Swanson, #16385
Kristin M.V. Farwell, #23919
KOLEY JESSEN P.C., L.L.O.
1125 South 103rd Street, Suite 800
Omaha, NE 68124-1079
[phone]
[phone] (facsimile)
[e-mail]
[e-mail]
Attorneys for Defendants.

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ACKNOWLEDGEMENT AND AGREEMENT TO BE BOUND
I, _______________________, of _____________________, declare under
penalty of perjury that I have read in its entirety the Stipulated Protective Order or have
had the Stipulated Protective Order explained to me by Counsel for a party and
understand the Stipulated Protective Order that was issued by the United States District
Court for the District of Nebraska on February 7, 2013, in the case of New Alliance
Bean and Grain Company v. Anderson Commodities, Inc., Anderson Seed Company,
Ronald L. Anderson and Ramona Anderson, Case No. 12CV197. I agree to comply
with and to be bound by all the terms of this Stipulated Protective Order and I
understand and acknowledge that failure to so comply could expose me to sanctions
and punishment in the nature of contempt. I promise that I will not disclose in any
manner any information or item that is subject to this Stipulated Protective Order to any
person or entity except in strict compliance with the provisions of this Order.
I further agree to submit to the jurisdiction of the United States District Court for
the District of Nebraska, for the purpose of enforcing the terms of this Stipulated
Protective Order, even if such enforcement proceedings occur after termination of this
action.
Printed Name:

______________________________________________

Signature:

___________________________________________ ___

Address:

___________________________________________ ___

Dated:

______________________________________________

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