Kuehl v. Jefferson Pilot Financial et al
PROTECTIVE ORDER granting 30 Motion for Protective Order. Ordered by Magistrate Judge Thomas D. Thalken. (TRL)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
JEFFERSON PILOT FINANCIAL and
LINCOLN FINANCIAL GROUP,
This Protective order limits the use or disclosure of
documents, deposition testimony, or other discovery designated as “Confidential” and it
applies to: (a) documents, deposition testimony and electronic data designated to be subject
to this Protective Order as set forth below; (b) information, copies, extracts, and complete or
partial summaries of documents, deposition testimony and electronic data so designated; (c)
answers to interrogatories, responses to requests for admissions, responses to requests for
production, and initial disclosures (and exhibits to any of these materials) which are
designated by any party as “Confidential” under this order; and (d) portions of briefs,
affidavits, memoranda, or any other writing filed with the Court (and exhibits thereto) which
include any materials or information identified in (a), (b), or (c) of this paragraph.
CONFIDENTIAL DOCUMENTS. A party producing documents or electronic
data in discovery may stamp as “Confidential” or so designate by written notice with
reference to the applicable Bates numbers, any document, disc or other media which it
believes contains confidential or proprietary business information and/or trade secrets or that
an opposing party may not recognize as such. All such documents produced in this litigation
will be presumptively deemed confidential and if any party desires to utilize or disseminate
any such documents outside the court, counsel, and the parties in this case notice will be
given to all other parties five (5) days prior to such use or utilization. Failure to designate a
document as confidential does not affect the presumption set forth in the preceding sentence.
Further dissemination and disclosure of documents and the information contained in
documents produced or obtained through third-party discovery shall be limited as set forth
in this Protective Order.
DEPOSITION TRANSCRIPTS. Any party may designate as “Confidential” any
portion of deposition testimony which it believes contains confidential or proprietary business
information and/or trade secrets. The party shall so designate the portions of the deposition
transcript either at the time of the deposition or within thirty (30) days following that party’s
counsel’s receipt of the transcript of the deposition from the reporter. Each reporter
participating in any such deposition shall be informed about and provided with a copy of this
Protective order and shall agree to be bound by its terms. Each such reporter shall designate
the portions of deposition transcripts designated as “Confidential” with the legend
“Confidential—Designated by Counsel.” Counsel agree that this provision must be exercised
in good faith and that no party may choose to designate the totality of every deposition as
EFFECT OF CONFIDENTIAL DESIGNATION. Documents or electronic data
and deposition testimony designated as “Confidential” will be retained by counsel and will not
be used by counsel or by any party for any purpose other than this litigation unless five (5)
days notice has been given to all other parties. If any party objects to such use, the
Confidential information, in whatever form, may not be disclosed except pursuant to court
order entered after notice. Confidential information may be distributed without notice to:
Counsel who have signed this Order approving it as to form and
content, attorneys who are affiliated with the law firms of counsel who
have signed this Order, retained outside counsel, in-house counsel, law
clerks, secretaries or paralegals directly involved in the conduct of this
Individual parties and officers, directors, employees and agents of
Experts and consultants retained by either of the parties for purposes
of assisting in the preparation or presentation of claims or defenses;
Any deposition or trial witness, during the course of deposition or trial
testimony, when necessary to the testimony of such witness;
Any person who was involved in the preparation of the document; and
Court, court personnel, court reporters and similar personnel.
Lead counsel for each party agrees to make any persons falling in the categories listed above
in subparagraphs (c), (d), and (e) aware of the existence and requirements of this Protective
Order. Any party asserting confidentiality of any of its documents during a deposition shall
ask the deponent on the record to agree to the terms of this Protective order. If the deponent
refuses to agree, the documents may still be disclosed during deposition and that disclosure
shall not constitute a waiver of confidentiality protections provided by this Protective Order.
A witness who does not agree to be bound by the terms of this Protective order shall sign the
original deposition transcript in the presence of the court reporter and shall not be permitted
to obtain a copy of the transcript or exhibits of the deposition.
EXPERT WITNESSES. Each expert or consultant who is expected to be
called as a witness at trial or used as a consulting expert and to whom a party plans to
disclose “Confidential” information shall be identified to opposing counsel by name and
position at least ten (10) days prior to the date of any such proposed disclosure, and shall
agree to be bound by the terms of this Protective Order. If opposing counsel provides
notice of objection to the disclosure of confidential information to the expert, disclosure shall
not be made until the objection is resolved by agreement or court order.
CHALLENGE TO DESIGNATION.
Any party may challenge the
“Confidential” designation of any document or other discovery material subject to this
Protective order by notifying all parties of the fact that it is challenging the designation and
providing the designating party not less than ten (10) days’ notice before moving for an
order compelling disclosure. The parties shall attempt to resolve such disagreements
before submitting them to the Court.
RETURN OF DOCUMENTS. After this litigation (including all appeals) is
finally resolved, the parties shall destroy or return to the producing party all documents
and/or other materials containing information deemed “Confidential” that were obtained
during the course of pretrial discovery or at trial, including all copies of such documents.
The party destroying or returning the documents shall provide to counsel for the producing
party a sworn affidavit attesting to such disposition if requested. This Protective Order shall
remain in full force and effect after the final resolution of this litigation.
USE OF DOCUMENTS BY PRODUCING PARTIES.
Nothing in this
Protective Order shall limit any party or person in its use of its own documents, or from
disclosing its own documents and information, or from any use of documents or other
discovery not designated as “Confidential”.
EFFECT OF PRODUCTION. Any designation of or failure to designate any
documents as “Confidential” pursuant to this Protective Order nor the production of such
documents in discovery shall be deemed a waiver of any objection to the admissibility of
such documents or their contents at trial.
EXCEPTIONS. This Protective Order shall be binding on any party to whom
any “Confidential” material is disclosed and any use or distribution outside the terms of this
agreement is a breach of this Protective Order absent a showing that the material has
become public knowledge.
APPLICATION TO COURT. Any interested party may apply for a court order
seeking any additional disclosure or modifying or limiting this Order in any respect.
WAIVER. A party’s waiver of any rights under this Protective order must be
made in writing or, if at a deposition or in Court, on the record. A waiver not expressly
made general shall be deemed limited to the narrow purpose of the circumstances involved
and shall not otherwise waive any of the rights provided by this Protective Order.
NON-EXCLUSIVITY. All ethical, legal, and equitable rights and obligations
not addressed in this Protective Order remain in force.
SO ORDERED this 24th day of October, 2012.
BY THE COURT:
s/ Thomas D. Thalken
United States Magistrate Judge
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