H & Q Properties, Inc. et al v. Doll et al

Filing 136

PROTECTIVE ORDER granting 135 Motion for Protective Order. Plaintiffs' Motion to Compel Subpoena Production 127 , which is regarding the materials covered by this Protective Order that the MCL Entities have now purportedly agreed to produce, is denied as moot. Ordered by Magistrate Judge F.A. Gossett. (JSF)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
H & Q PROPERTIES, INC., a
Nebraska
corporation, MARK HOULTON and
JOHN QUANDAHL,
Plaintiffs,
v.
DAVID E. DOLL, an individual,
DOUBLE D PROPERTIES, L.L.C., a
Nebraska limited liability company,
DDE, INC., a Nebraska corporation,
f/k/a Double D. Excavating, Inc.,
HNGC, INC., a Nebraska
corporation, f/k/a Double D Hook-NGo Containers, Inc., NEBRASKA
LOWBOY SERVICES, INC., a
Nebraska corporation, DOUBLE D
EXCAVATING, INC., an Iowa
corporation, LOAD RITE
EXCAVATING, L.L.C., a Nebraska
limited liability company, f/k/a Down
Dirty,
L.L.C.,
DOLL
CONSTRUCTION, L.L.C., a
Nebraska limited liability company,
NEW ERA EXCAVATION
COMPANY, a Nebraska corporation,
and MALVERN TRUST &
SAVINGS BANK, an Iowa statechartered bank,
Defendants.

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Case No. 8:13-cv-00038-LSC-FG3

PROTECTIVE ORDER

This matter comes before the Court upon Plaintiffs’ motion (filing 135) seeking
the Court’s entry of protective order with respect to the production commanded via
subpoenas duces tecum (filing 73 through 77) of third parties, including Meyers-Carlisle-

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Leapley Construction Company, Inc.; MCL, Inc., Century Holdings, LLC; Robert J.
Carlisle; and Gary N. Leapley (hereinafter the “MCL Entities”).
The Court, being fully advised in the premises, as well as upon Plaintiffs’
representation that counsel for the MCL Entities is without objection to the relief
requested, finds that said order should be issued. With respect to materials produced by
the MCL Entities pursuant to subpoenas duces tecum (filing 73 through 77),
IT IS HEREBY ORDERED as follows:
1.

DEFINITIONS. Limitations under this Protective Order on the use or

disclosure of documents or other materials designated as “Confidential” shall apply to:
(a) all information, copies, extracts and complete or partial summaries prepared or
derived from such documents or testimony; (b) portions of deposition transcripts, answers
to interrogatories, responses to requests for admissions, responses to requests for
production, initial disclosures and exhibits thereto which directly refer or directly relate to
any such information, documents, copies, extracts or summaries; and (c) portions of
briefs, memoranda or any other writing filed with the Court and exhibits thereto which
directly relate to any such information, documents, copies, extracts or summaries.
2.

CONFIDENTIAL DOCUMENTS.

Before produced documents are

copied or inspected, the producing party may stamp as “Confidential” any document or
deposition testimony it believes contains confidential or proprietary business information
and/or trade secrets in order to limit disclosure as set forth in this Paragraph 2.
Documents may also be designated as “Confidential” by written notice to opposing
counsel which identifies the documents so designated by Bates number. Documents
designated “Confidential,” deposition testimony so designated, and information derived
therefrom will be retained by counsel and will not be used for any purpose other than this
litigation and will not be disclosed except pursuant to court order entered after notice, to
anyone except:
a.

Counsel for the parties in the above-captioned matter,
attorneys who are employed or are members of the law firms
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of counsel for the parties in the above-captioned matter, in
house counsel, law clerks, secretaries or paralegals directly
involved in the conduct of this litigation;
b.

Experts and consultants retained by the parties for purposes of
assisting in the preparation or presentation of claims or
defenses;

c.

Any deposition or trial witness, during the course of
deposition or trial testimony, when necessary to the testimony
of such witness;

d.

Any person who was involved in the preparation of the
document;

e.

The Court, Court personnel, court reporters and similar
personnel;

f.

The named parties to this case, including their employees and
representatives; and

g.

Any other person with the prior written consent of the party
producing the document, pleading or deposition testimony.

Prior to receiving or being shown such documents or deposition testimony, persons
falling in the categories listed above in subparagraphs (b), (c), (f) and (g) shall be shown a
copy of, and shall agree in writing, or on the record during trial or deposition, to be bound
by the terms of this Protective Order.

During a deposition, any party asserting

confidentiality of any of its documents shall ask the deponent on the record to accept the
terms of this Order. If the deponent refuses to assent, disclosure of the documents during
deposition shall not constitute a waiver of confidentiality.
3.

CHALLENGE TO DESIGNATION.

Any party may challenge the

“Confidential” designation of any document, by notifying all interested parties and
providing the producing party ten (10) days in which to move the Court for an Order
preventing or limiting disclosure. The parties shall attempt to resolve such disagreement
before submitting it to the Court. If the producing party files such a motion within such
time, the documents shall continue to be treated as “Confidential” pursuant to the terms of

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this Order until such time as the Court has made a ruling with respect to the motion. If no
motion is filed within that time the “Confidential” restriction of this Order shall no longer
apply to such document.
4.

RETURN OF DOCUMENTS.

Upon completion of the litigation all

documents and copies of the same designated “Confidential” shall be destroyed or
returned to counsel for the producing party with signed statement reflecting the
disposition. This Order shall not terminate upon the conclusion of this action but shall
continue until the further order of the Court or until the party claiming confidentiality has
waived the same in writing.
5.

EXCEPTIONS. The restrictions embodied in this Order shall be binding

on the party to whom “Confidential” information is disclosed unless and until there is a
showing that:
a.
b.

6.

Such information was or has become public knowledge absent
a breach of this Protective Order; or
The party to whom such disclosure was made had already
learned such information from a third party who himself has
not breached any confidential relationship which may have
existed or exists between such third party and the party
making the disclosure.

NON-EXCLUSIVITY. This Order does not affect the right of a party to

seek to compel disclosure or production of a document or to seek an order modifying or
limiting this Order in any aspect. The obligations and prohibitions under this Order are
not exclusive. All other ethical, legal and equitable obligations are unaffected by this
agreement.
7.

WAIVER. Any waiver under this Order must be made in writing or, if at a

deposition or in Court, on the record.
8.

ENFORCEMENT. Any party or person subject to the obligations and

prohibitions of this Order who is determined by the Court to have violated its terms is

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subject to sanctions imposed by the Court pursuant to the Nebraska court rules of
discovery in civil cases.
IT IS FURTHER ORDERED that Plaintiffs’ Motion to Compel Subpoena
Production (filing 127), which is regarding the materials covered by this Protective Order
that the MCL Entities have now purportedly agreed to produce, is denied as moot.
DATED March 3, 2014.
BY THE COURT:

S/ F.A. Gossett
United States Magistrate Judge

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