Adler Funding LLC v. Hansen-Mueller Company
CONFIDENTIALITY ORDER - Pursuant to the parties' Joint Motion for Entry of Agreed Confidentiality Order (filing 18 ). Ordered by Magistrate Judge F.A. Gossett. (GJG)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
ADLER FUNDING LLC,
a Delaware limited liability company,
a Nebraska corporation
Case No. 8:12-cv-00341
Pursuant to the parties’ Joint Motion for Entry of Agreed Confidentiality Order (filing
IT IS ORDERED:
Scope. All materials produced or adduced in the course of discovery, including
Initial disclosures, responses to discovery requests, deposition testimony and exhibits, and
information derived directly therefrom (hereinafter collectively “documents”), shall be subject to
this Order concerning Confidential Information as defined below. This Order is subject to the
Local Rules of this District and the Federal Rules of Civil Procedure on matters of procedure and
calculation of time periods.
Confidential Information. As used in this Order, “Confidential Information”
means information designated as “CONFIDENTIAL-SUBJECT TO PROTECTIVE ORDER” by
the producing party that falls within one or more of the following categories: (a) information
prohibited from disclosure by statute or agreement; (b) information that reveals trade secrets; (c)
research, technical, commercial or financial information that the party has maintained as
confidential; (d) medical information concerning any individual; (e) personal identity
information; (f) income tax returns (including attached schedules and forms), W-2 forms and
1099 forms; or (g) personnel or employment records of a person who is not a party to the case.
Information or documents that are available to the public may not be designated as Confidential
A party may designate a document as Confidential Information for
protection under this Order by placing or affixing the words
“CONFIDENTIAL - SUBJECT TO PROTECTIVE ORDER” on the
document and on all copies in a manner that will not interfere with the
legibility of the document. As used in this Order, “copies” includes
electronic images, duplicates, extracts, summaries or descriptions that
contain the Confidential Information. The marking “CONFIDENTIAL SUBJECT TO PROTECTIVE ORDER” shall be applied prior to or at the
time of the documents are produced or disclosed. Applying the marking
“CONFIDENTIAL - SUBJECT TO PROTECTIVE ORDER” to a
document does not mean that the document has any status or protection by
statute or otherwise except to the extent and for the purposes of this Order.
Any copies that are made of any documents marked “CONFIDENTIAL SUBJECT TO PROTECTIVE ORDER” shall also be so marked, except
that indices, electronic databases or lists of documents that do not contain
substantial portions or images of the text of marked documents and do not
otherwise disclose the substance of the Confidential Information are not
required to be marked.
The designation of a document as Confidential Information is a certification
by an attorney or a party appearing pro se that the document contains
Confidential Information as defined in this order. 1
Depositions. Deposition testimony is protected by this Order only if designated as
“CONFIDENTIAL – SUBJECT TO PROTECTIVE ORDER” on the record at the time the
testimony is taken. Such designation shall be specific as to the portions that contain
An attorney who reviews the documents and designates them as CONFIDENTIAL - SUBJECT TO
PROTECTIVE ORDER must be admitted to the Bar of at least one state but need not be admitted to
practice in the District of Nebraska unless the lawyer is appearing generally in the case on behalf of a
party. By designating documents confidential pursuant to this Order, counsel submits to the jurisdiction
and sanctions of this Court on the subject matter of the designation.
Confidential Information. Deposition testimony so designated shall be treated as
Confidential Information protected by this Order until fourteen days after delivery of the
transcript by the court reporter to any party or the witness. Within fourteen days after
delivery of the transcript, a designating party may serve a Notice of Designation to all
parties of record identifying the specific portions of the transcript that are designated
Confidential Information, and thereafter those portions identified in the Notice of
Designation shall be protected under the terms of this Order. The failure to serve a timely
Notice of Designation waives any designation of deposition testimony as Confidential
Information that was made on the record of the deposition, unless otherwise ordered by
Protection of Confidential Material.
General Protections. Confidential Information shall not be used or disclosed
by the parties, counsel for the parties or any other persons identified in
subparagraph (b) for any purpose whatsoever other than in this litigation,
including any appeal thereof.
Limited Third-Party Disclosures. The parties and counsel for the parties
shall not disclose or permit the disclosure of any Confidential Information
to any third person or entity except as set forth in subparagraphs (1)-(9).
Subject to these requirements, the following categories of persons may be
allowed to review Confidential Information:
1) Counsel. Counsel for the parties and employees of counsel who have responsibility for
2) Parties. Individual parties and employees of a party but only to the extent counsel
determines in good faith that the employee’s assistance is reasonably necessary to the
conduct of the litigation in which the information is disclosed;
3) The Court and its personnel;
4) Court Reporters and Recorders. Court reporters and recorders engaged for depositions;
5) Contractors. Those persons specifically engaged for the limited purpose of making
copies of documents or organizing or processing documents, including outside vendors
hired to process electronically stored documents;
6) Consultants and Experts. Consultants, investigators, or experts employed by the parties
or counsel for the parties to assist in the preparation and trial of this action but only
after such persons have completed the certification contained in Attachment A,
Acknowledgment of Understanding and Agreement to Be Bound;
7) Witnesses at depositions. During their depositions, witnesses in this action to whom
disclosure is reasonably necessary. Witnesses shall not retain a copy of documents
containing Confidential Information, except witnesses may receive a copy of all
exhibits marked at their depositions in connection with review of the transcripts. Pages
of transcribed deposition testimony or exhibits to depositions that are designated as
Confidential Information pursuant to the process set out in this Order must be
separately bound by the court reporter and may not be disclosed to anyone except as
permitted under this Order.
8) Author or recipient. The author or recipient of the document (not including a person
who received the document in the course of litigation); and
9) Others by Consent. Other persons only by written consent of the producing party or
upon order of the Court and on such conditions as may be agreed or ordered.
Control of Documents. Counsel for the parties shall make reasonable
efforts to prevent unauthorized or inadvertent disclosure of Confidential
Information. Counsel shall maintain the originals of the forms signed by
persons acknowledging their obligations under this Order for a period of
three years after the termination of the case.
Inadvertent Failure to Designate. An inadvertent failure to designate a document
as Confidential Information does not, standing alone, waive the right to so
designate the document; provided, however, that a failure to serve a timely Notice
of Designation of deposition testimony as required by this Order, even if
inadvertent, waives any protection for deposition testimony. If a party designates a
document as Confidential Information after it was initially produced, the receiving
party, on notification of the designation, must make a reasonable effort to assure
that the document is treated in accordance with the provisions of this Order. No
party shall be found to have violated this Order for failing to maintain the
confidentiality of material during a time when that material has not been designated
Confidential Information, even where the failure to so designate was inadvertent
and where the material is subsequently designated Confidential Information.
Filing of Confidential Information. This Order does not, by itself, authorize the
filing of any document under seal. Any party wishing to file a document
designated as Confidential Information in connection with a motion, brief or other
submission to the Court must comply with this Court’s local rules.
No Greater Protection of Specific Documents. Except on privilege grounds not
addressed by this Order, no party may withhold information from discovery on the
ground that it requires protection greater than that afforded by this Order unless the
party moves for an order providing such special protection.
Challenges by a Party to Designation as Confidential Information. The
designation of any material or document as Confidential Information is subject to
challenge by any party.
The following procedure shall apply to any such
Meet and Confer. A party challenging the designation of Confidential
Information must do so in good faith and must begin the process by
conferring directly with counsel for the designating party. In conferring,
the challenging party must explain the basis for its belief that the
confidentiality designation was not proper and must give the designating
party an opportunity to review the designated material, to reconsider the
designation, and, if no change in designation is offered, to explain the basis
for the designation. The designating party must respond to the challenge
within five (5) business days.
Judicial Intervention. A party that elects to challenge a confidentiality
designation may file and serve a motion that identifies the challenged
material and sets forth in detail the basis for the challenge. Each such
motion must be accompanied by a competent declaration that affirms that
the movant has complied with the meet and confer requirements of this
procedure. The burden of persuasion in any such challenge proceeding
shall be on the designating party. Until the Court rules on the challenge, all
parties shall continue to treat the materials as Confidential Information
under the terms of this Order.
Action by the Court. Applications to the Court for an order relating to materials
or documents designated Confidential Information shall be by motion. Nothing in
this Order or any action or agreement of a party under this Order limits the Court’s
power to make orders concerning the disclosure of documents produced in
discovery or at trial.
Use of Confidential Documents or Information at Trial. Nothing in this Order
shall be construed to affect the use of any document, material, or information at
any trial or hearing. A party that intends to present or that anticipates that another
party may present Confidential information at a hearing or trial shall bring that
issue to the Court’s and parties’ attention by motion or in a pretrial memorandum
without disclosing the Confidential Information. The Court may thereafter make
such orders as are necessary to govern the use of such documents or information at
Confidential Information Subpoenaed or Ordered Produced in Other Litigation.
The receiving party also must immediately inform in writing the party who
caused the subpoena or order to issue in the other litigation that some or all
of the material covered by the subpoena or order is the subject of this
Order. In addition, the receiving party must deliver a copy of this Order
promptly to the party in the other action that caused the subpoena to issue.
If a receiving party is served with a subpoena or an order issued in other
litigation that would compel disclosure of any material or document
designated in this action as Confidential Information, the receiving party
must so notify the designating party, in writing, immediately and in no
event more than three court days after receiving the subpoena or order.
Such notification must include a copy of the subpoena or court order.
The purpose of imposing these duties is to alert the interested persons to the
existence of this Order and to afford the designating party in this case an
opportunity to try to protect its Confidential Information in the court from
which the subpoena or order issued. The designating party shall bear the
burden and the expense of seeking protection in that court of its
Confidential Information, and nothing in these provisions should be
construed as authorizing or encouraging a receiving party in this action to
disobey a lawful directive from another court. The obligations set forth in
this paragraph remain in effect while the party has in its possession, custody
or control Confidential Information by the other party to this case.
Challenges by Members of the Public to Sealing Orders. A party or interested
member of the public has a right to challenge the sealing of particular documents
that have been filed under seal, and the party asserting confidentiality will have the
burden of demonstrating the propriety of filing under seal.
Obligations on Conclusion of Litigation.
Order Continues in Force. Unless otherwise agreed or ordered, this Order
shall remain in force after dismissal or entry of final judgment not subject
to further appeal.
Obligations at Conclusion of Litigation. Within sixty-three days after
dismissal or entry of final judgment not subject to further appeal, all
Confidential Information and documents marked “CONFIDENTIAL SUBJECT TO PROTECTIVE ORDER” under this Order, including copies
as defined in ¶ 3(a), shall be returned to the producing party unless: (1) the
document has been offered into evidence or filed without restriction as to
disclosure; (2) the parties agree to destruction to the extent practicable in
lieu of return;2 or (3) as to documents bearing the notations, summations,
or other mental impressions of the receiving party, that party elects to
destroy the documents and certifies to the producing party that it has done
Retention of Work Product and one set of Filed Documents.
Notwithstanding the above requirements to return or destroy documents,
counsel may retain (1) attorney work product, including an index that refers
or relates to designated Confidential Information so long as that work
product does not duplicate verbatim substantial portions of Confidential
Information, and (2) one complete set of all documents filed with the Court
including those filed under seal. Any retained Confidential Information
shall continue to be protected under this Order. An attorney may use his or
her work product in subsequent litigation, provided that its use does not
disclose or use Confidential Information.
Deletion of Documents filed under Seal from Electronic Case Filing (ECF)
System. Filings under seal shall be deleted from the ECF system only upon
order of the Court.
Order Subject to Modification. This Order shall be subject to modification by
the Court on its own initiative or on motion of a party or any other person with
standing concerning the subject matter.
No Prior Judicial Determination. This Order is entered based on the
representations and agreements of the parties and for the purpose of facilitating
Nothing herein shall be construed or presented as a judicial
determination that any document or material designated Confidential Information
The parties may choose to agree that the receiving party shall destroy documents containing Confidential
Information and certify the fact of destruction, and that the receiving party shall not be required to locate,
isolate and return e-mails (including attachments to e-mails) that may include Confidential Information, or
Confidential Information contained in deposition transcripts or drafts or final expert reports.
by counsel or the parties is entitled to protection under Rule 26(c) of the Federal
Rules of Civil Procedure or otherwise until such time as the Court may rule on a
specific document or issue.
Persons Bound. This Order shall take effect when entered and shall be binding
upon all counsel of record and their law firms, the parties, and persons made
subject to this Order by its terms.
IT IS SO ORDERED.
DATED December 19, 2012.
BY THE COURT:
S/ F.A. Gossett
United States Magistrate Judge
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
ADLER FUNDING LLC,
a Delaware limited liability company,
a Nebraska corporation
Case No. 8:12-cv-00341
ACKNOWLEDGEMENT AND AGREEMENT TO BE BOUND
The undersigned hereby acknowledges that he/she has read the Confidentiality Order dated
in the above-captioned action and attached hereto, understands the terms thereof, and
agrees to be bound by its terms. The undersigned submits to the jurisdiction of the United States
District Court for the District of Nebraska in matters relating to the Confidentiality Order and
understands that the terms of the Confidentiality Order obligate him/her to use materials designated
as Confidential Information in accordance with the Order solely for the purposes of the abovecaptioned action, and not to disclose any such Confidential Information to any other person, firm
The undersigned acknowledges that violation of the Confidentiality Order may result in
penalties for contempt of court.
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?