Tracy et al v. Telemetrix et al

Filing 191

STIPULATED PROTECTIVE ORDER regarding Motion for Protective Order 190 . Ordered by Magistrate Judge Cheryl R. Zwart. (JAB)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
MICHAEL J. TRACY, an individual and
Derivatively as a shareholder of Telernetrix
Plaintiff,

v.
TELEMETRIX, INC.; WILLIAM W.
BECKER; LARRY L. BECKER; GARY
BROWN; BECKER CAPITAL
MANAGEMENT, LLC; GREEN EAGLE
COMMUNICATIONS, INC.; GREEN
EAGLE NETWORKS, INC.
Defendants.

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Case No. 8:12-cv-00359

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PROTECTIVE ORDER

STIPULATED PROTECTIVE ORDER
REGARDING CONFIDENTIAL INFORMATION

THIS COURT is advised that the parties in this action have sought and may in the future
seek discovery of information and documents that the disclosing party deems to constitute,
contain or reveal "Confidential Information," as that term is defined herein. Therefore, in order
to facilitate and expedite the discovery of Confidential Information, the parties and their

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respective counsel have agreed that such discovery will be subject to this Stipulated Protective
Order ("Order"), hereby entered pursuant to F.R.C.P. 26(c).
IT rs HEREBY AGREED AND ORDERED:

1.

Definitions. The following definitions shall apply:
(a)

The word "Litigation" means the above-captioned case.

(b)

"Discoverable Matter" means all information, documents and other
tangible things that are discoverable in the Litigation, in any form or
format, including, but not limited to, interrogatory answers; requests to
admit and responses thereto; documents and tangible things produced in
this Litigation by any party or non-party, whether pursuant to the Federal
Rules of Civil Procedure, subpoena or by agreement; deposition
testimony, transcripts thereof and exhibits thereto; and any quotation from,
description of, or summary of any of the foregoing.

(c)

"Confidential Information" means all Discoverable Matter that meets the
following criteria:
(i)

The Discoverable Matter constitutes, contains, refers to, or reveals
(a) any confidential or financial information, or other information
relating to any business of any party, in any form or format; (b)
information and/or documents that is/are required to be kept
confidential due to preexisting obligations, including contractual
obligations; c) any of the parties' sensitive business or technical
information, trade secrets, confidential research, development,

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business

plans,

new

business

development,

proprietary

information, internal financial accounting information, or other
technical, policy, or commercial information that, if disclosed to a
business competitor, would provide a significant advantage to the
party's competitors; or d) the personal identifying information
(e.g., social security numbers, dates of birth) and personal financial

information of the parties and/or their principals, agents or
representatives.
(ii)

The

party

designating

the

Discoverable

Matter

as

"CONFIDENTIAL" (the "Designating Party") believes in good
faith that the Discoverable Matter merits protection under F.R.C.P.
26(c); and
(iii)

The Discoverable Matter is designated as "CONFIDENTIAL"
pursuant to Paragraph 2, below.

(d)

"Qualified Person" means and refers to;
(i)

The parties, including their employees, officers and/or directors to
whom disclosure is reasonably necessary for this Litigation;

(ii)

Each party's respective undersigned counsel of record in the
Litigation, and associate attorneys, paralegals, and clerical
employees associated with them who have a need to know the
Confidential Information;

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(iii)

Stenographic reporters and videographers engaged for depositions
or proceedings necessary to this Litigation;

(iv)

Persons or entities that provide litigation support services (e.g.,
photocopying, videotaping, translating, preparing exhibits or
demonstrations, and organizing, storing, or retrieving data in any
form or medium) and their employees and subcontractors, to whom
disclosure is reasonably necessary for this Litigation;

(v)

Any expert witness or consultant (as that term is used in F.R.C.P.
26(b)(4)(D)) retained by any party in the Litigation who has a need
to know the Confidential Information;

(vi)

Third-party mediators selected by the parties;

(vii)

The Court and its personnel;

(viii)

Persons actually deposed or called to testify at hearings or trial
concerning such Confidential Information; and

(ix)

Such other persons acceptable to counsel for the parties, who sign
Exhibit A attached hereto and incorporated herein.

2.

Designating Confidential Information.

The Designating Party may designate

Discoverable Matter as confidential by placing the word "CONFIDENTIAL" on each document
(including written discovery responses) or tangible thing constituting, containing or revealing
Confidential Information; by indicating on the record those portions of deposition testimony it
intends to designate as Confidential Information; and by such other reasonable means as the
parties may agree or as the Court may order. Any failure to designate Discoverable Matter as

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confidential at the time of, or promptly after, production may be cured by a subsequent
designation, provided the failure to timely designate was the result of excusable neglect. With
respect to deposition transcripts, within twenty-one (21) days after receipt of a transcript, the
Designating Party shall advise the other parties and court reporter 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 Information.

All Discoverable Matter designated as

confidential shall be subject to this Order unless and until the parties otherwise agree or the
Court otherwise orders.
3.

Use of Confidential Information.

Each Qualified Person . given access to any

Confidential Information shall maintain the Confidential Information in strict confidence and
shall not disclose the Confidential Information to any other person, firm or enterprise, except
another Qualified Person or as otherwise permitted in this Order, and shalJ not use any
Confidential Information for his, her or its own purposes or for any purpose other than proper
use of the Confidential Information in this Litigation, subject to this Order.
4.

Filing Confidential Information.

All Confidential Information filed with the

Court, and all pleadings, motions, or other papers filed with the Court disclosing any
Confidential Infonnation, shall be filed under seal and kept under seal pursuant to NECivR 7.5
until further order of the Court. Where possible, only those portions of papers filed with the
Court that contain, constitute or reveal Confidential Information shall be filed under seal.

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5.

Court Proceedings. Confidential Information may be offered in evidence at trial

or any court hearing. Any party may move the Court for an Order that the evidence be received
in camera or subject to other conditions to prevent unnecessary disclosure. Discoverable Matter

designated as confidential shall not lose its status as Confidential Information because it is used
in any court proceeding herein, unless the confidential status of such Confidential Information is
expressly waived by a party or its counsel in open court, or upon order of the Court.
6.

Contested Designations. A party shall not be obligated to challenge the propriety

of a designation of Confidential Information at the time of the designation, and a failure to do so
shall not preclude a subsequent challenge thereto. In the event that a party disagrees at any stage
of these proceedings with the designation by the Designating Party of any Discoverable Matter
as Confidential Information, the parties shall try first to resolve such dispute in good faith on an
informal basis. A party may object to the designation by giving written notice to the party
designating the disputed information. The written notice shall identify the information to which
the objection is made. If the dispute cannot be resolved within 14 days, any party may challenge
the propriety of a designation of Confidential Information before the Court. Until the Court has
ruled on any disputed designations of confidentiality, the parties shall treat Discoverable Matter
designated as Confidential Information by another party as such.

Upon a challenge of

confidentiality before the Court, the party claiming confidentiality of the subject Discoverable
Matter shall bear the burden of proving it is Confidential Information.
7.

Termination of the Litigation.

Upon the termination of the Litigation in any

manner, including but not limited to, a final judgment after appeal (if any) or by a settlement,
each Qualified Person shall upon request return all Confidential Information to the Designating

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Party or the Designating Party's counsel, along with all copies thereof in his, her, or its
possession, custody or control, and shall certify in writing that all such Confidential Information
and copies have been returned. As an alternative, each Qualified Person may, with the consent
of the Designating Party, destroy all Confidential Information, and all copies and/or swnmaries
of Confidential Information, including notes or other memoranda or writings regarding the
contents of such Confidential Information. Each Qualified Person shall thereupon provide the
Designating Party's counsel with a written certification that, to the best of his, her, or its
knowledge and information, all such Confidential Information has been destroyed. However, the
foregoing obligations shall not extend to any Confidential Information embodied in materials
protected by the attorney/client privilege or the work product doctrine, and counsel for each
party in this Litigation may retain one copy of any and all items constituting Confidential
Information for purposes of any possible future dispute over alleged violation of this Order or
over any agreement, decision, decree or order of judgment disposing of all or part of the
Litigation.
8.

Effect of Order.

Neither the taking of any action in accordance with the

provisions of this Order, nor the failure to object thereto, shall be construed as a waiver of any
claim or defense in the Litigation. The entry of this Order shall not be construed as a waiver of
any right to object to the furnishing of information in response to discovery and, except as
expressly provided, shall not relieve any party of the obligation of producing information in the
course of discovery. This Order shall not prevent any of the parties from applying to the Court
for relief herefrom or from other Orders, or from agreeing between themselves to a modification
of this Order, subject to the approval of the Court.

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9.

Jurisdiction of Court. Each Qualified Person agrees that this Court shall have,

and shall retain after this action is terminated, jurisdiction over it and them for the purpose of
enforcing this Order, and/or granting such amendments, modifications, and additions to this
Order, and/or such other and further relief as may be necessary.

10.

Breach. Any breach of the provisions of this Order may subject the breaching
'

party to an injunction, damages, or such other sanctions which, in the discretion of the Court, are
necessary to ensure compliance with this Order, as within or authorized by any statute, rule or
inherent power of the Court, or as otheiwise provided by law.

11.

Effective Date. This Order is effective immediately upon execution by the parties

and their respective counsel in this Litigation.
12.

Survival.

This Order shall survive the final disposition of this action, by

judgment, dismissal, settlement, appeal, or otherwise.
SO ORDERED
.
March 26, 2015. on this _ _ day of _ _ _ _ _ _• 2014.
BY THE COURT:
BY THE COURT:

_______________________
United States Magistrate Judge
Cheryl R. Zwart

United States Magistrate Judge

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AGREED AS TO FORM AND SUBSTANCE:
LARRY BECKER, BECKER CAPITAL
MANAGEMENT, LLC, GREEN EAGLE
COMMUNICATIONS, INC., AND GREEN
EAGLE NETWORKS, INC., Defendants,

By: ___,i.,;;..::-:q,4f'.~'!.../-~::::::::::__~~~­
Stuart J.
Thomas J. 1 OJJaghan, NE Bar #12874
Ross R. Pesek, NE Bar #24636
DORNAN, LUSTGARTEN & TROIA PC LLO
1403 Farnam Street, Suite 232
Omaha, Nebraska 68102
[phone]
[phone] (facsimile)
[e-mail]
[e-mail]
[e-mail]

Thomas J. Cu ha~NE B #10859
Matthew B. Rei y NE ar #24186
ERICKSON
STROM, P.C.
10330 Regency Parkway Drive, Suite 100
Omaha, NE 68114-3761
[phone]
[phone] (facsimile)
[e-mail]
[e-mail]

Is

;,~

TELEMETRlX, INC., WILLIAM BECKER,
AND GARY BROWN, Defendants,

By:

Benjnmin J. Larson, Esq.
IRELAND STAPLETON PRYOR& PASCOE, PC
717 17th Street, Suite 2800
Denver, CO 80202
[e-mail]
[e-mail]

~~~~~~~~~~~~

Daniel K. Calisher, Esq.
Brian C. Proffitt, Esq.
David S. Canter, Esq.
FOSIBR GRAHAM MILSTEIN
& CALISHER LLP
360 S. Garfield Street, 6tti Floor
Denver, CO 80209
[e-mail]
[e-mail]
[e-mail]
AND
By: ~~~~~~~~~~~~

Philip M. Kelly, NSBA #15427
DOUGLAS, KELLY, OSTDIEK & OSSIAN, P.C.
105 E. l61h Street-P.O. Box 419
Scottsbluff, NE 69363-0419
[phone]
[e-mail]

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AGREED AS TO FORM AND SUBSTANCE:

~i

LARRY BECKER, BECKER CAPITAL
MANAGEMENT. LLC, GREEN EAGLE
COMMUNICATIONS, INC., AND GREEN
EAGLE NETWORKS, INC., Defendants,

By
Stuart 1. • r1 11 11, NE Bo~
Thomas J. f\,fonoghnn, NE Bar #12874
Ross R. Pesek, NE Bar #24636
DORNAN, LUSTGARTEN & TROIA PC LLO
1403 Farnam Street, Suite 232
Omaha, Nebraska 68102
[phone]
[phone] (facsimile)
[e-mail]
[e-mail]
[e-mail]

By: _ _ _ __ _ _ _ __ _ __
Thomas J. Culhane, NE Bar# 10859
Matthew B. Reilly, NE Bar ff24186
ERICKSON SEDERSTROM, P.C.
10330 Regency Parkway Drive, Suite 100
Omaha, NE 68114-3761
[phone]
[phone] (facsimile)
[e-mail]
[e-mail]

I

;~

Benjmnin J. Larson, Esq.
IRELAND STAPLETON PRYOR & PASCOE, PC
7 l 7 l 71h Street, Suite 2800
Denver, CO 80202
[e-mail]
[e-mail]

Br: --:T--~-r-H--~~~­

Dhni

. Calisher, ·

Brian C. Proffitt, Esq.

David S. Canter, Esq.
FOSTER GRAHAM MILSTEIN
& CALISHER LLP
360 S. Garfield Street, 61h Floor
Denver, CO 80209
[e-mail]
[e-mail]
[e-mail]
AND

By: ------~----­

Philip M. Kelly, NSBA #15427
DOUGLAS, KELLY, OSTDIEK & OSSIAN, P.C.
105E. 16 1hStreet-P.O.Box419
Scottsbluff, NE 693 63-0419
[phone]
[e-mail]

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AGREED AS TO FORM AND SUBSTANCE:
LARRY BECKER, BECKER CAPITAL
MANAGEMENT, LLC, GREEN EAGLE
COMMUNICATIONS, INC., AND GREEN
EAGLE NETWORKS, INC., Defendants,

' Plaintiff

.t/
r~

By: - ·
Stuart J.
· 1111 1 NE o.
Thomas J, om1ghu11 , NE Bar #12874
Ross R. Pesek, NE Bar #24636
DORNAN. LUSTGARTEN & TROIA PC LLO
1403 Farnam Street, Suite 232
Omaha, Nebraska 68102
[phone]
[phone] (facsimile)
[e-mail]
[e-mail]
[e-mail]

By: _~~-~------~­

Thomas J. Culhane, NE Bar#l0859
Matthew B. R~i lly, NH Bar /124 186
ERICKSON 'EDERSTROM, P.C.
10330 Regency PurkwnyDrive, Suite 100
Omaha, NE 68114-3761
[phone]
[phone] (facsimile)
[e-mail]
[e-mail]

I

;:, . .&/~

TELEMETRIX, INC., WILLIAM BECKER,
AND GARY BROWN, Defendants,

Bonjumin J. Larson, Esq.
IRELAND STAPLETON PRYOR & PASCOE. PC
717 17"' Street, Suite 2800
Denver, CO 80202
[e-mail]
[e-mail]

By: --~-~---~---

Daniel K. Calisher, Esq.
Brian C. Proffitt, Esq.
David S. Canter, Esq.
FOSTER GRAHAM MILSTEIN
& CALISHER LLP
360 S. Garfield Street, 61h Floor
Denver, CO 80209
[e-mail]
[e-mail]
[e-mail]
AND

By:
tt;_, JL f1 lf,j_d,.
Philip M. Kell)/JNH' #15427 7'""'i"'"-- -DOUGLAS, KELLY, OSTDIEK & OSSIAN, P.C.
105 E. 161h Street-P.O. Box 419
Scottsbluff, NE 69363-0419
[phone]
[e-mail]

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EXHIBIT A
I have read the Stipulated Protective Order Regarding Confidential Information (the
"Order") entered in the case entitled Tracy v. Telemetrix, Inc., et al., No. 8:12-cv-00359, pending
in the United States District Court for the District of Nebraska, a copy of which is annexed hereto,
and I understand the terms thereof.

In consideration of the disclosure to me of Confidential

Information, as defined irt the Order, I hereby agree to keep all such Confidential Information in
confidence and not to disclose such Confidential Information to any other persons, and not to use
such Confidential Information for any purpose other than the above-referenced civil action, except
as permitted by the terms of the Order, and I agree to be otherwise bound by the terms, and
subject to the Court's enforcement of, the Order.

Dated: - - - - - - - -

(Signature)

(Print Name)

State relationship to or interest in this action:

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