Colombo Candy & Tobacco Wholesale Co. v Ameristar Casino Council Bluffs, Inc.

Filing 60

PROTECTIVE ORDER adopting the parties' stipulation. Ordered by Magistrate Judge Thomas D. Thalken. (TRL)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA

COLOMBO CANDY & TOBACCO
WHOLESALE CO. d/b/a COLOMBO
DISTRIBUTION,

CASE NO. 8:13-cv-00148-LSC-TDT

Plaintiff,
v.
AMERISTAR CASINO COUNCIL
BLUFFS, INC.,
Defendant,
v.
UNION INSURANCE,
Intervenor.

STIPULATION FOR PROTECTIVE ORDER
WHEREAS, the parties to this proceeding, Colombo Candy & Tobacco
Wholesale Co., d/b/a Colombo Distribution, Ameristar Casino Council Bluffs, Inc, and
Union Insurance (referred to herein individually as “Party,” or collectively as “Parties”),
wish to protect certain confidential documents and information from public dissemination
and agree to prevent such dissemination pursuant to the terms of the following
Stipulated Protective Order;
The Parties anticipate that they will produce each respective Party’s proprietary
business records; financial records and documents, including tax filings or records;
personnel files; customer records and files; business plans and pro forma statements;
and/or trade secrets that are not otherwise publicly available (hereinafter, collectively
referred to as "Confidential Information").
WHEREAS Confidential Information should not be released into the public
domain, but rather should be treated as confidential pursuant to the privacy interests of
the Parties;

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WHEREAS the Parties, through counsel, have agreed to be bound by this
Stipulated Protective Order and consent to the entry of this Stipulated Protective Order
to prevent unnecessary disclosure or dissemination of Confidential Information.
IT IS HEREBY STIPULATED, AGREED AND ORDERED that the terms and
conditions of this Stipulated Protective Order shall govern the handling of the
documents and other information produced by any Party:
1.

This Stipulated Protective Order is entered for the purposes of this case

and shall remain in full force and effect unless modified by an Order of this Court.
Without limiting the foregoing, this Stipulated Protective Order shall survive and remain
in full force and effect after the termination of this litigation.
2.

This Stipulated Protective Order shall become effective upon the signature

of the Honorable Thomas D. Thalken, United States Magistrate Judge for the District of
Nebraska.
3.

Nothing in this Stipulated Protective Order shall limit or preclude the

Parties from applying to the Court to modify the terms herein, or for further or additional
protective orders as the Court may deem appropriate.
4.

When used in this Stipulated Protective Order, the word "documents"

means all written, recorded, graphic, or Electronically Stored Information whatsoever
including, but not limited to, documents produced by a producing Party to this action
whether pursuant to Federal Rules of Civil Procedure 34, a subpoena, or by agreement.
5.

For purposes of this Stipulated Protective Order, the term “Party” includes

a Party’s agents, attorneys, directors, employees, members, officers and partners.
6.

Portions of documents and materials produced or provided by any Party

and that are marked “CONFIDENTIAL” shall be considered confidential material so long
as such materials fall within the above definition of “Confidential Information”.

The

producing Party shall designate clearly on any document or other material produced
that its contents should be confidential, by labeling or identifying each document or
other material as “CONFIDENTIAL.”
7.

Confidential Information shall not include documents or information that a

Party acquired from, or made available to, a third party or non-party to this suit, which
documents or information, at the time of acquisition by, or transmittal to, the possessing

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Party to or from the third party or non-party, were not subject to a separate express,
written protective order or confidentiality agreement between the possessing Party and
the third party or non-party, or unless such documents or information is Confidential
Information.
8.

Documents labeled or identified as “CONFIDENTIAL” shall be revealed

only to and used by:
a.

This Court and its staff/personnel;

b.

Parties and counsel for Parties, along with those employed by
counsel;

c.

Any arbitrator, mediator, or other alternative dispute resolution
facilitator in front of whom the Parties agree to appear or are
ordered to appear;

d.

Independent experts or consultants retained by counsel or Parties,
and

deposition

or

trial

witnesses

who

may

examine

“CONFIDENTIAL” materials in connection with discovery and the
presentation of evidence in court proceedings in this matter, and
who, before receiving such materials or information, have signed a
Nondisclosure Agreement in the form attached as Exhibit "A",
certifying that they have read this Stipulated Protective Order and
agree to be bound by its terms;
e.

Third-party vendors retained by the Parties or their counsel who are
involved in one or more aspects of copying, reproducing, coding, or
storing discovery materials;

f.

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

g.

Such other persons as the Court may specifically approve after
notice and hearing.

9.

No access to Confidential Information shall be provided to any expert or

consultant, as identified in Paragraph 8(d) herein, until the individual to be accorded
access has signed a Nondisclosure Agreement in the form attached as Exhibit "A",
certifying that they have read this Stipulated Protective Order and agree to be bound by

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its terms. This Stipulated Protective Order shall not be construed to allow discovery or
compel disclosure of the identities of, or any other non-discoverable information
regarding, non-testifying or consulting experts.
10.

No “CONFIDENTIAL” material may be used by any recipient or disclosed

to anyone for any purpose other than in connection with this action and shall not be
disclosed by the recipient to anyone other than those persons designated above, unless
and until the restrictions herein are removed either by written agreement of counsel for
the Parties or by Order of the Court.
11.

If timely corrected, an

inadvertent failure

to

designate qualified

information or materials as “CONFIDENTIAL” does not, standing alone, waive any
Party’s right to secure protection for such material. If information or material is
appropriately designated as “CONFIDENTIAL” after

the

material was initially

produced, the receiving Party, on timely notification of the designation, must make
reasonable efforts to assure that the material is treated in accordance with the provisions
herein.
12.

Acceptance by a Party of any information, document or thing identified as

"CONFIDENTIAL" hereunder does not waive the receiving Party’s right to contest or
challenge the other Party’s claim that the information, document or thing is confidential.
Any Party may bring before the Court the question of whether particular information
designated as “CONFIDENTIAL” is in fact Confidential Information. However, the
Parties shall agree to attempt to resolve any such disputes prior to bringing them to the
Court. Until the Court has ruled on any disputed designations of confidentiality, the
Parties shall treat information and documents properly designated as “CONFIDENTIAL”
by another Party as such. Nothing herein shall preclude either Party from challenging in
court the confidential status of any document.

Upon a challenge of confidentiality

before the Court, the Party claiming confidentiality of certain information and/or
document(s) bears the burden of proving that such information and/or document(s) is
Confidential Information.
13.

The Parties agree that they shall not mark any information or documents

“CONFIDENTIAL” that fall outside the above definition of “Confidential Information.”

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14.

Should circumstances arise in which any Party wishes to designate as

“CONFIDENTIAL” any material or information that is contained in a deposition
transcript, the Party shall indicate orally at the time of the deposition which certain parts
of the testimony it intends to designate as confidential. Within twenty-one (21) days after
receipt of the deposition transcript, the designating Party shall advise the other Parties
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.”
15.

Nothing in this Stipulated Protective Order is intended to limit, enhance or

otherwise affect the scope of permissible discovery or the use or admissibility of
evidence at trial.

This Stipulated Protective Order is not intended to eliminate, or

provide additional, objections or defenses to discovery, including any such objections or
defenses based on any legally recognized privileges or protections.
16.

If a non-party, by subpoena or otherwise, provides or produces documents

or information containing Confidential Information, any Party may designate such
documents or information as “CONFIDENTIAL” within ten (10) days of being notified of
the production, and the document or information shall then be subject to the terms of
this Stipulated Protective Order. Except as outlined herein, this Stipulated Protective
Order does not confer any additional rights or obligations on a non-party that is called
upon to produce documents or information containing Confidential Information.
17.

Upon final disposition of this matter by a court of competent jurisdiction or

upon conclusion of any settlement, all Confidential Information furnished or produced
under the terms of this Stipulated Protective Order, including all copies thereof and all
documents incorporating such information, except all pleadings filed with the Court, all
exhibits marked in discovery or at trial, and material which, in the judgment of the
attorney in possession of the materials, are work product materials, shall be destroyed
or delivered to counsel of the producing Party, unless otherwise agreed in writing.
Counsel for the Parties may retain all materials in their files relating to this case, but in
so doing must comply with the terms set forth herein, meaning that all Confidential

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Information must be retained in confidence under the terms of this Stipulated Protective
Order.
18.

By complying with this Stipulated Protective Order, no Party waives any

right it would otherwise have to object to disclosing or producing records on any ground
not addressed herein. Similarly, no Party waives any right to object on any ground to
use in evidence or during pretrial discovery or during trial of Confidential Information.
19.

Any waiver under this Stipulated Protective Order must be made in writing

or, if at a deposition or in Court, on the record.
Dated this 3rd day of February, 2014.
BY THE COURT:

s/ Thomas D. Thalken
United States Magistrate Judge

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Exhibit A
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
COLOMBO CANDY & TOBACCO
WHOLESALE CO. d/b/a COLOMBO
DISTRIBUTION,

CASE NO. 8:13-cv-00148-LSC-TDT

Plaintiff,
v.
NONDISCLOSURE AGREEMENT

AMERISTAR CASINO COUNCIL
BLUFFS, INC.,
Defendant,
v.
UNION INSURANCE,
Intervenor.

I, ____________________________, do hereby acknowledge that I have
received and read the Stipulated Protective Order entered in the above entitled case. I
understand the terms of that Stipulated Protective Order, and I agree to be bound by its
terms and to be subject to the jurisdiction of this Court for enforcement of all terms of
the Stipulated Protective Order and for judicial action for any violation of the Stipulated
Protective Order.
DATED this ____ day of ____________, 201__.
__________________________
STATE OF _______ )
) ss.
COUNTY OF______)
Subscribed and sworn to before me this ___ day of _________, 2014.
____________________________________
Notary Public

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