Home Instead, Inc. v. Florance et al
Filing
70
ORDER granting 69 Motion for Protective Order. Ordered by Magistrate Judge Cheryl R. Zwart. (BHC)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
HOME INSTEAD, INC., a Nebraska
Corp.,
Plaintiff,
vs.
DAVID FLORANCE, MICHELLE
FLORANCE, and FRIEND OF A FRIEND,
INC.,
Defendants.
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Case No. 8:12-CV-264
PROTECTIVE ORDER
Pursuant to Rule 26(c) of the Federal Rules of Civil Procedure, it is
hereby stipulated and agreed by and between the parties, through their
respective counsel, as follows:
IT IS HEREBY STIPULATED AND ORDERED AS FOLLOWS:
1.
disclosures,
The terms and conditions of this Order shall govern initial
the
production
and
handling
of
documents,
answers
to
interrogatories, responses to requests for admissions, depositions, pleadings,
exhibits, other discovery taken pursuant to the Federal Rules of Civil
Procedure, and all other documents and information exchanged by the parties
or by any third party in response to discovery requests or subpoenas.
2.
The designation “CONFIDENTIAL” shall be limited to documents or
information that any party in good faith, believes to: (a) contain proprietary or
commercially sensitive information; (b) be subject to a confidentiality
agreement or other agreement containing a confidentiality provision; (c) contain
1
sensitive personal or financial information; or (d) contain information that
should otherwise be subject to confidential treatment under Rule 26(c)(1)(G) of
the Federal Rules of Civil Procedure. For purposes of this Order, “party” and
“parties” shall mean the named parties to this litigation, as further defined in
paragraph 4(a) below.
3.
The designation “ATTORNEYS’ EYES ONLY” may only be used for
documents or information that any party reasonably and in good faith
determines to constitute confidential and highly sensitive financial or business
information, the disclosure of which could result in irreparable financial injury
or the reduction in a party’s competitive advantage in the marketplace.
Information or documents that are publically available may not be designated
as CONFIDENTIAL and/or ATTORNEYS’ EYES ONLY.
4.
Documents or information designated “CONFIDENTIAL” may be
disclosed only to the following:
a.
the named parties, meaning any named plaintiff, defendant,
counterclaimant, counterdefendant, third party plaintiff or
defendant, or an intervenor in this case. Any officer, director,
or employee of a corporate party provided with
“CONFIDENTIAL” documents and/or information shall
execute the Certification attached hereto as Exhibit A;
b.
a person who prepared, received, or reviewed the
“CONFIDENTIAL” documents and/or information prior to its
production in this litigation;
c.
a witness at any deposition or other proceeding in this action
and his or her counsel, provided that such witness executes
the Certification attached hereto as Exhibit A and is only
shown “CONFIDENTIAL” documents or information during his
or her testimony or in preparation for such testimony. Under
no circumstances shall the witness retain a copy of any
documents or information designated as “CONFIDENTIAL” in
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any form unless the witness is a named party as described in
paragraph 4(a) above or an expert as described in paragraph
4(f) below.
The witness’ counsel shall not retain any
documents or information designated as “CONFIDENTIAL”
unless the attorney fits within the category described in
paragraph 4(d) below;
d.
e.
court reporters recording a properly noticed deposition,
hearings, or other court proceedings in this case;
f.
an expert or consultant who (i) is retained by any attorney
described in paragraph 4(d) to assist with this litigation, (ii) is
not a current employee of a party (as that term is described in
paragraph 4(a)) or subsidiary or affiliate of a party, and
(iii) executes the Certification attached hereto as Exhibit A;
g.
any private mediators utilized in this litigation, provided such
person executes the Certification attached hereto as Exhibit A;
and
h.
5.
outside counsel representing a named party in this action
(described in paragraph 4(a) above), including all legal
associates, clerical, copy service providers, document imaging
service
providers,
database/coding
service
providers,
temporary or other support staff who are employed by such
counsel to assist such counsel and who have been advised of
this Order;
the United States District Court for the District of Nebraska
(the “Court”), any Special Masters and/or Mediators appointed
by the Court, the jury, and court personnel.
Documents or information designated “ATTORNEYS’ EYES ONLY”
may be disclosed only to:
a.
the persons identified in paragraphs 4(d)-(h); and
b.
a witness at any deposition or other proceeding in this case,
provided that such witness executes the Certification
attached hereto as Exhibit A and is only shown the
documents or information designated as “ATTORNEYS’ EYES
ONLY” during his or her testimony or in preparation for such
testimony. Under no circumstances shall the witness retain
a copy of any document or information designated as
“ATTORNEYS’ EYES ONLY” unless the witness is an expert
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as described in paragraph 4(f). The witness’ attorney shall
also not retain a copy of any document or information
designated as “ATTORNEYS’ EYES ONLY” unless the
attorney fits within the category described above in
paragraph 4(d).
6.
This Order does not apply to any documents or information:
a.
b.
7.
already in the lawful possession of a party and not subject to
any obligation of confidentiality; and
acquired by a party from a third party without being
designated confidential unless the third party received the
documents or information subject to any form of
confidentiality protection.
All documents and information designated “CONFIDENTIAL” or
“ATTORNEYS’ EYES ONLY” in accordance with the terms of this Order and
produced or exchanged in the course of this litigation shall be used or
disclosed solely for the purpose of this litigation and in accordance with the
provisions of this Order. Such “CONFIDENTIAL” or “ATTORNEYS’ EYES ONLY”
documents and information shall not be used for any business purpose, or in
any other litigation or other proceeding or for any other purpose, except by
Court Order or otherwise required by law.
8.
allowed
Persons other than those listed above in paragraph 4 may be
to
review
documents
and/or
information
designated
as
“CONFIDENTIAL” or “ATTORNEYS’ EYES ONLY” if, at least five (5) business
days prior to such review, the requesting counsel first identifies the person to
whom counsel desires to disclose the documents and/or information and
obtains the written consent of the attorney for the party who designated such
documents and information; provided, however, that no party shall be required
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to disclose the identity of any expert not retained as a trial witness. Should the
attorney to whom the request is made decline to give consent, the requesting
attorney may file a motion seeking permission from the Court. For purposes of
this Order, “person” refers to natural beings and corporate/legal entities.
9.
If a party in receipt of “CONFIDENTIAL” or “ATTORNEYS’ EYES
ONLY” documents and information pursuant to this Order receives a request,
subpoena, or facially valid order from a non-party to this Protective Order
seeking production or disclosure of “CONFIDENTIAL” or “ATTORNEYS’ EYES
ONLY” documents and information, that party shall promptly give notice by
facsimile or electronic mail to the counsel of record for the party that originally
produced said “CONFIDENTIAL” or “ATTORNEYS’ EYES ONLY” documents and
information
or
the
party
that
designated
said
“CONFIDENTIAL”
or
“ATTORNEYS’ EYES ONLY” documents and information pursuant to this
Order. The notice shall identify the documents and information sought and
shall enclose a copy of the request, subpoena, or order. If a timely motion,
appeal, or other application for relief from the request, subpoena, or order has
been filed by any party, the party upon whom the request, subpoena, or order
was served shall not produce or disclose the requested documents and/or
information without consent of the disclosing party and/or designating party,
or until ordered by a court of competent jurisdiction.
The party seeking to
prevent further disclosure or redissemination of documents and/or information
designated as “CONFIDENTIAL” or “ATTORNEYS’ EYES ONLY” shall bear
it/his/her own costs of seeking to prevent such further disclosure or
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redissemination including, without limitation, court costs, attorney fees, and
bond costs. Nothing in this Order shall be construed to require the party in
receipt of “CONFIDENTIAL” or “ATTORNEYS’ EYES ONLY” documents and/or
information to subject himself/herself/itself to sanctions or penalties for
noncompliance with any legal process or order or to seek any relief whatsoever
from any court.
10.
Counsel shall inform each person to whom they disclose or give
access to “CONFIDENTIAL” or “ATTORNEYS’ EYES ONLY” documents and/or
information, pursuant to paragraphs 4 and 5 above, the terms of this Order, as
well as the obligation to comply with those terms.
“CONFIDENTIAL”
or
“ATTORNEYS’
EYES
ONLY”
Persons receiving
documents
and/or
information are prohibited from disclosing it except in conformance with this
Order. The recipient of any “CONFIDENTIAL” or “ATTORNEYS’ EYES ONLY”
documents and/or information agrees to subject himself/herself/itself to the
jurisdiction of the Court for the purpose of any proceedings relating to the
performance under, compliance with, or violation of this Order. The parties
agree,
and
agree
“CONFIDENTIAL”
to
or
inform
each
“ATTORNEYS’
person
EYES
to
whom
ONLY”
they
disclose
documents
and/or
information, that damages for violation of this Order are not an adequate
remedy and that the appropriate remedy is injunctive relief as well as any other
relief provided for by law. Counsel for each named party agrees to maintain a
file of all Certifications (Exhibit A) required by this Order.
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11.
The recipient of any “CONFIDENTIAL” or “ATTORNEYS’ EYES
ONLY” documents and/or information shall maintain such documents and/or
information in a secure and safe area and shall exercise the same standard of
due and proper care with respect to the storage, custody, use and/or
dissemination of such documents and/or information as is exercised by the
recipient with respect to his or her own confidential or proprietary information.
12.
All or any part of a document, tangible item, discovery response or
pleading disclosed, produced, or filed by any party or person in this litigation
may be designated “CONFIDENTIAL” or “ATTORNEYS’ EYES ONLY” by marking
the appropriate legend on the face of the document and each page so
designated.
With respect to tangible items, the appropriate legend shall be
marked on the face of the tangible item, if practicable, or by delivering at the
time of disclosure, production, or filing to the party to which disclosure is
made, written notice that such tangible item is “CONFIDENTIAL” or
“ATTORNEYS’ EYES ONLY”.
13.
The manner with which “CONFIDENTIAL” or “ATTORNEYS’ EYES
ONLY” documents and information may be presented at trial will be addressed
by the Court at the Final Pretrial Conference or otherwise in advance of trial.
14.
The parties may designate the deposition testimony and exhibits
(or portions thereof) of any witness in this litigation as “CONFIDENTIAL” or
“ATTORNEYS’ EYES ONLY” at the time of the deposition by advising the
reporter and all parties of such fact during the deposition. If any portion of a
videotaped
deposition
is
designated
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pursuant
to
this
paragraph,
the
videocassette or other videotape or CD-ROM or DVD container shall be labeled
with the appropriate legend. Unless a shortened time period is requested as
set forth below, within thirty (30) days of receipt of a transcript, the deponent’s
counsel, or any other party may redesignate all or portions of the transcript
“CONFIDENTIAL” or “ATTORNEYS’ EYES ONLY.”
The deponent’s counsel or
any other party shall list on a separate piece of paper the numbers of the pages
of the deposition transcript containing “CONFIDENTIAL” or “ATTORNEYS’
EYES ONLY” information and serve the same on opposing counsel. Pending
such designation, the entire deposition transcript, including exhibits, shall be
deemed “CONFIDENTIAL” or “ATTORNEYS’ EYES ONLY,” depending on the
designation at the time of the deposition.
If no designation is made within
thirty (30) days after receipt of the transcript, the transcript shall be considered
not to contain any “CONFIDENTIAL” or “ATTORNEYS’ EYES ONLY” documents
or information.
15.
A party may reasonably request a shortening of the time period
within which a confidentiality designation for a deposition transcript must be
made for the purpose of conducting effective discovery, and consent to such a
request shall not be unreasonably withheld.
16.
In the event of a dispute as to a request for a shortened time
period, the parties shall first try to dispose of such dispute in good faith on an
informal basis. If the dispute cannot be resolved within five (5) business days,
the party requesting the shortened time period may request appropriate relief
from the Court. The parties agree, subject to Court approval, that such relief
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sought can be in the form of a telephone conference to be scheduled at the
Court’s earliest convenience with the objective of obtaining an immediate
resolution of the dispute.
17.
A party seeking to file “CONFIDENTIAL” or “ATTORNEYS’ EYES
ONLY” information, documents, or pleadings must follow the procedures set
forth in NECivR 7.5 or NECivR 5.3(c) so that they are filed under seal or with
restricted access.
18.
If any party receives a document that contains information related
to its/his/her business operations that could have been designated either
“CONFIDENTIAL” or “ATTORNEYS’ EYES ONLY” in accordance with this Order,
but was not designated as such by the producing party, that party may, within
thirty (30) days of receipt, notify all other parties in writing that the information
or documents should be designated as “CONFIDENTIAL” or “ATTORNEYS’
EYES ONLY.” Within thirty (30) days of such notice, the party designating the
document shall provide all other parties with properly designated documents.
During the thirty (30) day period after notice, the materials shall be treated as
designated in the designating party’s notice. If a party is aware that a person
not authorized to access the documents or information under either paragraph
4 or 5 of this Order has access to the documents or information at the time of
notice, that party shall notify the designating party within five (5) business
days and shall use its best efforts to obtain the immediate return of such
documents and/or information and to inform such person of the terms of this
Order.
Within five (5) business days of receipt of the properly designated
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documents, the other parties shall deliver all unmarked or incorrectly
designated documents and other materials, including copies of those
documents and other materials, to the designating party.
Any party that
disagrees with a designation made in accordance with this paragraph may
object to the designation as provided in paragraph 19.
19.
Nothing in this Order shall be construed in any way as a finding
that documents and information designated “CONFIDENTIAL” or “ATTORNEYS’
EYES ONLY” actually are entitled to such designation. Any party may object,
in writing, to the designation by another party by specifying the documents
and/or information in issue and its grounds for questioning the designation. A
party shall not be obligated to challenge the propriety of a designation at the
time made, and a failure to do so shall not preclude any subsequent challenge.
In the event that any party to this litigation disagrees at any point in these
proceedings with the designation by the designating party, the parties shall try
first to dispose of such dispute in good faith on an informal basis.
If the
parties cannot resolve the dispute within twenty-one (21) days of service of a
written objection, or a shorter period if trial/discovery schedule does not
reasonably allow for the twenty-one (21) day period, the party challenging the
designation may file a motion within twenty-one (21) days after the parties’
informal attempts at resolution have concluded.
The documents and
information shall continue to receive the protection of their designation until
the Court rules on the motion.
The party that designated the documents
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and/or information “CONFIDENTIAL” or “ATTORNEYS’ EYES ONLY” shall have
the burden of demonstrating the propriety of the designation.
20.
Nothing herein shall be construed to be an admission of relevance
or to affect, in any way, the admissibility of any documents, testimony or other
evidence in this litigation. This Order is without prejudice to the right of any
party to bring before the Court at any time the question of whether any
particular document or information is or is not discoverable or admissible.
21.
Nothing in this Order shall bar or otherwise restrict any attorney
herein from rendering advice to clients with respect to this litigation and in the
course thereof, referring to or relying upon the attorney’s examination of
“CONFIDENTIAL” or “ATTORNEYS’ EYES ONLY” documents and information so
long as the attorney does not disclose “CONFIDENTIAL” or “ATTORNEYS’ EYES
ONLY” documents and/or information except as provided for in this Order.
22.
Inadvertent disclosure by a producing party of “CONFIDENTIAL” or
“ATTORNEYS’ EYES ONLY” documents and/or information that is not properly
designated in accordance with this order shall not constitute a waiver of any
claim of protection under this order.
Upon discovery of the inadvertent
production, the producing party shall notify the receiving parties in writing of
such disclosure and within thirty (30) days of such notice shall provide
properly designated documents or information.
During the thirty (30) day
period after notice, the materials shall be treated as designated in the
producing party’s notice. Within five (5) business days of receipt of properly
designated documents or information, the receiving parties shall deliver all
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hard copies and portable data storage devises (e.g., CDs, DVDs, USB flash
drives, etc.) containing electronic copies of all unmarked or incorrectly
designated documents or information to the producing party. During the five
(5) business day time period, the receiving party shall also ensure that all
electronic copies of unmarked or incorrectly designated documents or
information are erased from any type of Storage Medium, as that term is
defined below, on which the electronic copies were maintained. The receiving
party shall not retain any unmarked or incorrectly designated copies, in either
hard or electronic format, and shall treat information contained in said
documents and materials and any summaries or notes thereof as appropriately
marked pursuant to the producing party’s notice. For purposes of this Order,
the term “Storage Medium” (and the plural form, “Storage Media”) means any
technology used to place, store, and retrieve electronic data (e.g., hard drive,
computer network, cloud storage, database, etc.), but does not include portable
data storage devices.
23.
Should any “CONFIDENTIAL” or “ATTORNEYS’ EYES ONLY”
documents or information be disclosed, through inadvertence or otherwise, by
a receiving party to any person not authorized under this Order, then that
receiving party shall: (a) use its best efforts to obtain the return of any such
documents and/or information; (b) within seven (7) business days of the
discovery of such disclosure, inform such person of all provisions of this Order
and identify such person to the producing or designating party; and (c) request
such person to sign the Certification attached hereto as Exhibit A.
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The
executed Certification shall be served upon counsel for the producing or
designating party within ten (10) business days of its execution by either the
party to whom the documents and/or information was inadvertently disclosed
or the disclosing party.
Nothing in this paragraph is intended to limit the
remedies that the producing or designating party may pursue for breach of this
Order.
24.
A producing person who is not a party in this litigation shall be
entitled to the protections afforded herein by signing a copy of this Order and
serving same on all counsel of record.
Thereafter, a non-party producing
person or entity may designate as “CONFIDENTIAL” or “ATTORNEYS’ EYES
ONLY” only testimony, information, documents or things that such producing
person has produced or provided in the action.
25.
This Order shall survive the termination of this litigation and shall
continue in full force and effect thereafter.
26.
Except as set forth in this paragraph below, within thirty (30) days
after final termination of this litigation, including all appeals: (a) all hard copies
and portable data storage devices (e.g., CDs, DVDs, USB flash drives, etc.)
containing electronic copies of “CONFIDENTIAL” or “ATTORNEYS’ EYES ONLY”
documents and/or information, including those in the custody of a party, a
party’s counsel, any authorized agents for a party, outside experts, or
consultants retained or utilized by a receiving party, shall be delivered to
counsel for the party who produced such “CONFIDENTIAL” or “ATTORNEYS’
EYES ONLY” documents and information or counsel for the party who
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designated such documents and information pursuant to this Order; (b) all
persons who maintained “CONFIDENTIAL” or “ATTORNEYS’ EYES ONLY”
documents and/or information in electronic form on any type of Storage
Medium shall ensure that all copies are erased from all Storage Media upon
which the person maintained the electronic copies; and (c) all persons and
parties
who
received
“CONFIDENTIAL”
or
“ATTORNEYS’
EYES
ONLY”
documents and/or information during the course of litigation shall execute a
sworn statement that it/he/she has disposed of all documents and information
in accordance with this paragraph, and shall serve the executed sworn
statement on the producing or designating party. The only exceptions to these
requirements are as follows: (a) exhibits in the clerk’s custody that contain
“CONFIDENTIAL”
or
“ATTORNEYS’
EYES
ONLY”
documents
and/or
information shall be treated as set forth in paragraphs 27-28 below; and (b)
outside counsel for the named parties may each retain one copy of the
following: (i) deposition transcripts and exhibits; (ii) Court transcripts and
exhibits; (iii) written discovery responses; and (iv) documents and other
materials submitted to the Court. Nothing herein shall require the return or
destruction of attorney work product.
If any of the materials retained by
outside counsel contain “CONFIDENTIAL” or “ATTORNEYS’ EYES ONLY”
documents and/or information, such material shall continue to be treated in
accordance with this Order.
27.
If this matter continues through trial or other final determination
by the Court, the parties’ respective outside counsel shall comply with NECivR
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79.1(f) regarding withdrawal and retention of exhibits in the clerk’s custody.
During the period of retention, the parties and their counsel shall maintain the
confidentiality of all exhibits marked as “CONFIDENTIAL” or “ATTORNEYS’
EYES ONLY” in accordance with the terms of this Order. Within thirty (30)
days after the NECivR 79.1(f) retention period, the parties’ respective outside
counsel shall comply with paragraph 26 with respect to all exhibits marked as
“CONFIDENTIAL” or “ATTORNEYS’ EYES ONLY”.
28.
If the parties settle this matter with prejudice, outside counsel for
each named party shall retrieve from the Court all “CONFIDENTIAL” or
“ATTORNEYS’ EYES ONLY” exhibits that it filed with the Court during the
litigation and handle such exhibits in accordance with paragraph 26.
29.
Pursuant to Federal Rule of Evidence 502(d), if documents or
information subject to a claim of attorney-client privilege or work product
immunity is inadvertently or mistakenly produced, such production shall in no
way prejudice or otherwise constitute a waiver of, or estoppel as to, any claim
of privilege or work-product immunity for such documents and information.
Unless the receiving party intends to challenge the producing party’s assertion
of privilege or immunity, within seven (7) business days after receipt of a
written request made by the producing party, the receiving parties shall: (a)
deliver all hard copies and all portable data storage devices (e.g., CDs, DVDs,
USB flash drives, etc.) containing electronic copies of documents or information
for which a claim of inadvertent production is made to the producing party; (b)
erase all electronic copies of inadvertently or mistakenly produced documents
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or information that are maintained on Storage Media; and (c) expunge any
document or material reflecting the contents of the inadvertently produced
documents or information. If a receiving party serves a written objection to the
return of such documents and/or information within the seven (7) business
day period described above, the producing party may move the Court for an
order compelling the return of such documents and/or information. Pending
the Court’s ruling, a receiving party may retain the inadvertently produced
documents and/or information, however, the party must not use or disclose
the documents or information until the claim is resolved and must take
reasonable steps to retrieve the documents and information if the party
disclosed it before being notified.
30.
Nothing in this order shall prevent any party from applying to the
Court for relief therefrom, or from applying to the Court for further or
additional protective orders or modification of this order.
Dated: June 20, 2013
s/Cheryl R. Zwart
Hon. Cheryl R. Zwart
United States Magistrate Judge
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CERTIFICATION - EXHIBIT A
I hereby certify that I have read the attached Protective Order in Home
Instead, Inc. v. Friend of a Friend, et al., Case No. 8:12-cv-264, dated ________
___, 2013 (the “Order”), and I agree that I will not reveal “CONFIDENTIAL”
and/or “ATTORNEYS’ EYES ONLY” documents or information to, or discuss
such with, any person, entity, or party who is not entitled to receive
“CONFIDENTIAL”
and/or
“ATTORNEYS’
EYES
ONLY”
documents
and
information in accordance with the Order. I will use “CONFIDENTIAL” and/or
“ATTORNEYS’ EYES ONLY” documents and information only for the purposes
of facilitating the prosecution or defense of the action and not for any business
or other purpose.
I will otherwise keep all “CONFIDENTIAL” and/or
“ATTORNEYS’ EYES ONLY” documents and information confidential in
accordance with this Order. I agree that the United States District Court for
the District of Nebraska has jurisdiction to enforce the terms of the Order, and
I consent to jurisdiction of that Court over my person for that purpose. I will
otherwise be bound by the strictures of the Order.
Dated: __________________________
___________________________________
___________________________________
[Print Name]
___________________________________
[Company]
___________________________________
[Address]
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Respectfully submitted this 20th day of
June, 2013.
HOME INSTEAD, INC.
Plaintiff,
/s/ Theresa D. Koller
Trenten P. Bausch (#20655)
Theresa D. Koller (#22437)
Adam W. Barney (#24521)
CLINE WILLIAMS WRIGHT
JOHNSON & OLDFATHER, L.L.P.
One Pacific Place
1125 South 103rd Street, Ste. 600
Omaha, NE 68124
(402) 397-1700
tbausch@clinewilliams.com
tkoller@clinewilliams.com
abarney@clinewilliams.com
Respectfully submitted this 20th day of
June, 2013.
FRIEND OF A FRIEND, INC., DAVID
FLORANCE, and MICHELLE
FLORANCE,
Defendants
/s/ Kirk E. Goettsch
Kirk E. Goettsch
Mark A. Williams
Parsonage, Vandenack, Williams, LLC
5332 S 138th St., Suite 100
Omaha, NE 68137
kgoettsch@pvwlaw.com
mwilliams@pvwlaw.com
4814-8161-4356, v. 4
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