Bussing v. Legent Clearing, LLC et al

Filing 149

PROTECTIVE ORDER. Ordered by Magistrate Judge Cheryl R. Zwart. (MKR)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
JULIE A. BUSSING,

Case No. 8:12-cv-238

Plaintiff,
v.
COR CLEARING, LLC; COR SECURITIES
HOLDINGS, INC.; STEVEN SUGARMAN;
CARLOS P. SALAS; and CHRISTOPHER L.
FRANKEL,

PROTECTIVE ORDER

Defendants.

WHEREAS, discovery in the above-captioned action has and may continue to involve the
production of documents and information which Defendants COR Clearing, LLC, COR
Securities Holdings, Inc., Steve Sugarman, Carlos P. Salas, and Christopher L. Frankel
(“Defendants”) (Bussing and Defendants are hereafter collectively referred to as the “Parties”),
represents to be confidential and proprietary and asserts the disclosure of such information
outside the scope of this litigation or any related arbitration could result in significant injury to its
business interests,
IT IS HEREBY ORDERED
1.

In this action, the Parties are seeking Confidential Information (as defined in

Paragraph 2 below). The Parties also anticipate seeking additional Confidential Information
during discovery and that there will be questioning concerning Confidential Information in the
course of depositions. The Parties assert that the need for this Protective Order also applies to
any information or materials produced by a non-party as a result of discovery subpoenas or other
requests. The Parties have entered into this Stipulation and request the Court enter the Protective

4849-3134-6469.1

Order for the purpose of preventing the disclosure and use of Confidential Information by any
Party or non-party except as set forth herein. The terms of this Protective Order shall apply to
any information or materials produced by any Party or non-party as part of discovery in this
action. Each and every attorney with the law firms representing the Parties in this case shall be
deemed to be subject to this Protective Order and shall be deemed to have actual knowledge of
the restrictions herein.
2.

Definition of “Confidential Information.” Under the terms of this Protective

Order, “Confidential Information” means any document, file, portions of files, transcribed
testimony, or responses to discovery requests, including any extract, abstract, chart, summary,
note, or copy made therefrom – not made available to the public – and designated by one of the
Parties or a non-party (in the manner provided in Paragraph 3 below) as containing or
comprising confidential or sensitive information or other trade secrets or proprietary business
information. Nothing in this Order shall restrict a Party or any person from using information or
documents that were in their possession prior to or at the time of disclosure in this matter. In
connection with this Stipulation and Protective Order, Confidential Information shall constitute
one of two categories of information or materials, as follows:
a.

“Confidential” Material shall be documents, information or materials the release
of which would harm one of the Parties, including but not limited to, medical
information related to Bussing, non-public financial or business records,
personnel records of non-parties, internal personnel policies and procedures of
COR and any affiliated entity, and other information which is private in nature
and may have the effect, if not deemed to be confidential, of embarrassing,
humiliating or otherwise invading the privacy of a Party, and could potentially
cause significant public and private harm, humiliation and exposure to the Parties.
Such information or materials may only be so designated if they are not otherwise
publicly available.

b.

“Confidential – Attorneys’ Eyes Only” shall be documents reflecting client lists,
(including client names, addresses, phone numbers, and email addresses), and

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agreements reflecting confidential settlements with persons who are not parties to
this litigation.
3.

Designation of “Confidential Information.”

Where any kind of Confidential

Information is produced, provided or otherwise disclosed by a Party or a non-party in response to
any discovery request or subpoena, including by means of entry onto land or premises or by
inspection of books, records, documents, or tangible things, such Confidential Information will
be designated in the following manner:
a.

By imprinting the words “Confidential” or “Confidential – Attorneys’ Eyes
Only,” as appropriate, on at least the first page or cover of any document
produced;

b.

By imprinting the words “Confidential” or “Confidential – Attorneys’ Eyes
Only,” as appropriate, next to or above any response to a discovery request; and

c.

With respect to transcribed testimony, either during the deposition on the record,
or by giving written notice to opposing counsel sufficient to designate such
portions as “Confidential” or “Confidential – Attorneys’ Eyes Only,” as
appropriate, no later than twenty (20) calendar days after receipt of the transcribed
testimony.
During a deposition, the deponent or his counsel, or any other counsel of record
present at the deposition, may give notice on the record that testimony about to be
given is deemed “Confidential” or “Confidential – Attorneys’ Eyes Only,” as
appropriate. If during the course of a deposition, a document or other material
that has previously been designated “Confidential” or “Confidential – Attorneys’
Eyes Only” is used, then that particular portion of the deposition shall be deemed
to be subject to the same level of protection accorded to the designated document
without further need of any written designation of the deposition transcript by the
designating party.

4.

Restrictions on Confidential Information. All Confidential Information provided

by a Party or a non-party in response to a discovery request or as transcribed testimony shall be
subject to the following restrictions:
a.

“Confidential” Information:
i.

“Confidential” Information shall be used only for the purpose of this
litigation and not for any business or other purpose whatsoever.

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ii.

“Confidential” Information shall not be communicated or disclosed by any
Party’s counsel or a Party in any manner, either directly or indirectly, to
anyone except for purposes of this litigation.

iii.

“Confidential” Information may only be disclosed or communicated to the
following persons:
(a)

(b)

Plaintiff, Defendants and employees of Defendants whose
assistance is needed by counsel for the purposes of this litigation;

(d)

Graphics or design services firms retained by counsel for a Party
for purposes of preparing demonstrative or other exhibits for
deposition, trial or other proceedings;

(e)

Independent document reproduction services or document or video
recording and retrieval services;

(f)

Non-technical jury or trial consulting services retained by counsel
for a Party;

(g)

Expert witnesses retained or consulted by the Parties in connection
with this litigation; and

(h)

b.

The Parties’ in-house counsel;

(c)

iv.

The Parties’ outside counsel of record in this action and any
regular or temporary employees of such counsel to whom it is
necessary that the information or material be shown for purposes
of this litigation;

The finder of fact or concluder of law.

Undertaking: Confidential Information may be disclosed only to the
persons listed in Paragraph 4.a.iii, subparagraphs (d), (e), (f) and (g) only
after such person(s) have executed a declaration in the form attached as
Exhibit A.

“Confidential – Attorneys’ Eyes Only” Material:
i.

“Confidential – Attorneys’ Eyes Only” Material shall be used only for the
purpose of this litigation and may not be used for any other purpose
outside the reasonable conduct of this case.

ii.

The receiving Party’s counsel shall ensure that the information is disclosed
or communicated only to persons as designated above in Paragraph 4.a.iii,

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subparagraphs (a) (b) and (h). “Confidential – Attorneys’ Eyes Only” may
be disclosed to those persons listed in Paragraph 4.a.iii, subparagraph (g)
only after such person(s) have executed a declaration in the form attached
as Exhibit B.
5.

Use of Confidential Information in Court Proceedings. In the event any material

designated “Confidential” or “Confidential – Attorneys’ Eyes Only” is used in any court filing or
legal proceeding, including, but not limited to, its use at trial, it shall not lose its confidential
status as between the Parties through such use. Any memorandum, brief, or other pleading that
contains Confidential Information in the body of the document shall be prominently labeled on
the applicable pages with the following legend: “Contains Confidential Information Subject To
Protective Order.”

All Confidential Information filed with the Court, and all portions of

pleadings, motions or other papers filed with the Court that disclose any Confidential
Information, shall be filed under seal pursuant to any rules or orders pertaining to the filing of
information and documents under seal.
6.

Continuing Duty. The termination of this action shall not relieve counsel, the

Parties, or other persons obligated hereunder from their responsibility to maintain the
confidentiality of Confidential Information pursuant to this Protective Order, and the Court shall
retain continuing jurisdiction to enforce the terms of this Protective Order. The Parties agree that
in no event shall the obligations of this Protective Order continue beyond two years from the
final disposition of this matter, by order, settlement, or otherwise.
7.

Protective Order Not Admission. By agreeing to the entry of this Protective

Order, the Parties adopt no position as to the authenticity or admissibility of documents produced
subject to it.

Furthermore, by producing or receiving information or material designated

“Confidential” Material or “Confidential – Attorneys’ Eyes Only” or by otherwise complying
with the terms of this Protective Order, such conduct shall not be construed as an admission as to

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the relevance, authenticity, foundation or admissibility of any document, material, transcript or
other information.
8.

Obligations After Final Disposition. The provisions of this Protective Order shall,

absent written permission of the producing Party or further order of the Court, continue to be
binding throughout and after the conclusion of this action, including any appeals or remands.
After the entry of an order, judgment or decree finally disposing of this action, including any
appeals therefrom, and upon sixty (60) days’ notice by the producing Party, all persons having
received Confidential Information shall return such materials and all copies thereof (including
summaries and excerpts) to counsel for the producing Party or shall certify destruction thereof.
The outside counsel for each Party shall be entitled to retain court papers, deposition transcripts,
and attorney work product that contains, reflects or summarizes Confidential Information,
provided that such counsel, and employees of such counsel, shall not disclose any such
Confidential Information to any person or entity except pursuant to a written agreement with the
producing Party. All materials returned to the Parties or their counsel by the Court likewise shall
be disposed of in accordance with this Paragraph.
9.

No Bar to Seeking Further Relief. Nothing in this Protective Order shall preclude

any Party from filing a motion seeking further or different protection from the Court or from
filing a motion with respect to the manner in which Confidential Information shall be treated at
trial.
10.

Treatment of Confidential Information at Trial. In the event any Confidential

Information is to be used in any court proceeding or any appeal therefrom, counsel for the Parties
shall confer on such procedures as are necessary to protect the confidentiality of any documents,

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information, and transcripts used in the course of any such proceeding, and shall move the Court
to incorporate such procedures.
11.

Examination of Third Party Witnesses Regarding “Confidential Information.”

a.

Any person who has executed Exhibit A may be examined as a witness at trial or
during a deposition concerning any information or material that has been
designated “Confidential Information.”

b.

Any person may be examined as a witness at trial or during a deposition
concerning any information or material that has been designated “Confidential
Information” where that person lawfully received or authored such information or
material prior to and apart from this action.

c.

If any third party witness does not fall within Section 11(b), and refuses or
otherwise fails to execute Exhibit A, the party who seeks to show documents to
the witness that are the subject of this Protective Order shall:
(i)

(ii)

d.

12.

seek and secure the agreement of the designating party that the documents
specified by the deposing party may be shown to the third party witness in
the absence of the witness’s execution of Exhibit A; or
seek and secure an Order from the Court requiring the third party witness
to comply with the terms and conditions of this Protective Order and not
disclose the contents of any Confidential Information outside the lawsuit
and to not use it for any purpose unrelated to the lawsuit.

Whenever access is provided solely because a person appears from the face of a
document that has been designated “Confidential Information” to have been the
author or lawful recipient of that document, such person may be shown, but not
permitted to retain custody of, that specific document despite the restrictions on
access set out in Paragraph 4 of this Protective Order.
Inadvertent Production of Undesignated/Misdesignated Confidential Information.

As soon as the receiving Party becomes aware of any inadvertent production of misdesignated
Confidential Information, the information must be treated as if it had been timely and correctly
designated under this Protective Order, and the receiving Party must endeavor in good faith to
obtain all copies of the document which it distributed or disclosed to persons not authorized to
have access to such information, as well as any copies made by such persons.

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13.

Binding Effect of Protective Order Before Entry by Court. The Parties agree to

be bound by the terms of this Stipulation and Protective Order pending its entry by the Court, or
pending entry of an alternative thereto. Any violation of the terms of this Stipulation prior to its
entry, or prior to the entry of an alternative order, shall be subject to the same sanctions and
penalties as if this Stipulation had been entered as an order of the Court.
14.

Obligations Under Subpoena in Other Action. If a Party is (a) subpoenaed in

another action, (b) served with a demand in another action to which it is a party, or (c) served
with any other legal process by one not a Party to this action, seeking Confidential Information
which it received from the other Party, the Party so served shall give prompt, written notice to
the producing Party, by hand or electronic service, within ten (10) business days of its receipt of
such subpoena, demand, or legal process. The Party so served shall also object to the production
of the requested Confidential Information to the extent permitted by law. Should the person
seeking access to the information or material take action against the Party, or anyone else
covered by this Protective Order to enforce such a subpoena, demand or other legal process, the
Party shall respond by setting forth the existence of this Protective Order. Nothing herein shall
be construed as requiring the Party, or anyone else covered by this Protective Order, to challenge
or appeal any order requiring production of information or material covered by this Protective
Order, or to subject itself to any penalties for noncompliance with any legal process or order, or
to seek any relief from this Court.

July 6, 2015.
BY THE COURT:

United States Magistrate Judge

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EXHIBIT A – “Confidential” Material

DECLARATION OF _____________________

___________________ swears or affirms and states under penalty of perjury:
1.
I have read the Protective Order in this action, Julie A. Bussing v. COR Clearing,
LLC, et al., Civil Action No. 8:12-cv-238-JMG-CRZ in the United States District Court for the
District of Nebraska, a copy of which is attached to this Declaration.
2.
I have been informed by _____________, Esq., counsel for ____________, that I
will be given access to information, documents or other materials that have been defined as
“Confidential” Material under the Protective Order.
3.
I promise that I have not and will not divulge, or undertake to divulge, to any
person or recording device any “Confidential” Material, or any other Confidential Information,
shown or told to me except as authorized in the Protective Order. I will not use the Confidential
Information for any purpose other than this litigation. I will not use the Confidential Information
for any commercial purpose.
4.
For the purposes of enforcing the terms of the Protective Order, I hereby submit
myself to the jurisdiction of the Court in the civil action referenced above.
5.

I will abide by the terms of the Protective Order.

(Signature)

(Print or Type Name)
Address:

Telephone No.: (

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)

EXHIBIT B – “Confidential – Attorneys’ Eyes Only” Material

DECLARATION OF _____________________

___________________ swears or affirms and states under penalty of perjury:
1.
I have read the Protective Order in this action, Julie A. Bussing v. COR Clearing,
LLC, et al., Civil Action No. 8:12-cv-238-JMG-CRZ in the United States District Court for the
District of Nebraska, a copy of which is attached to this Declaration.
2.
I have been informed by _____________, Esq., counsel for ____________, that I
will be given access to information, documents or other materials that have been defined as
“Confidential – Attorneys’ Eyes Only” and which were produced by the opposing Party subject
to the Protective Order.
3.
I promise that I have not and will not divulge, or undertake to divulge, to any
person or recording device any “Confidential – Attorneys’ Eyes Only” Material or any other
Confidential Information, shown or told to me except as authorized in the Protective Order. I
will not use the Confidential Information for any purpose other than this litigation. I will not use
the Confidential Information for any commercial purpose.
4.
For the purposes of enforcing the terms of the Protective Order, I hereby submit
myself to the jurisdiction of the Court in the civil action referenced above.
5.

I will abide by the terms of the Protective Order.

(Signature)

(Print or Type Name)
Address:

Telephone No.: (

)