Intercall, Inc. v. Examination Management Services, Inc.

Filing 17

PROTECTIVE ORDER on 16 Stipulation. Ordered by Magistrate Judge F.A. Gossett. (MKR)

UNITED STATES DISTRICT COURT
DISTRICT OF NEBRASKA
INTERCALL, INC., a Delaware
corporation,
Plaintiff,
v.

CASE NO. 8:13-cv-00175

STIPULATED
PROTECTIVE ORDER

EXAMINATION MANAGEMENT
SERVICES, INC.,
Defendant.
This matter comes before the Court on the Stipulation for Protective Order (filing 16)
submitted by Plaintiff InterCall, Inc. (“Plaintiff”) and Defendant Examination Management
Services, Inc. (“Defendant”). Having reviewed the Stipulation and being duly advised in the
premises thereof, the Court hereby enters the following Stipulated Protective Order (“Protective
Order”).
1.

It is anticipated that in the course of discovery in this action (the “Litigation”),

either Plaintiff or Defendant (collectively, the “Parties” and individually, a “Party”) may produce
Confidential Information. For the purposes of this Protective Order, “Confidential Information”
means and includes information or documents that: (i) contain or constitute non-public,
commercially-sensitive information; (ii) contain or constitute technical, financial and/or other
business information (e.g. pricing, customer lists, business and/or marketing plans or analysis,
license agreements and the like) the public disclosure of which would cause competitive harm to
the Party producing the information or document; (iii) is subject to an express obligation of
confidentiality owed by a Party to a third-party; (iv) contains personally identifiable information
about an individual as described in Fed. R. Civ. P. 5.2 or NECivR 5.03(b)(1)-(5); or (v)
constitutes a trade secret under the laws of the State of Nebraska.

2.

This Protective Order shall be applicable to all Confidential Information

designated as Confidential in accordance with the procedures set forth in this Protective Order by
either of the Parties, by any additional persons or entities hereafter served with summons or
entering an appearance herein or produced by any non-party in response to a subpoena or other
judicial process. For the purposes of this Protective Order, the term “documents” includes,
without limitation, documents or materials, items, testimony elicited in depositions, or other
information, including information produced in electronic format, and also includes any
derivative, compilation or summary of any “documents,” and the information therein. Except
with respect to personally identifiable information about an individual as described in Fed. R.
Civ. P. 5.2 or NECivR 5.03(b)(1)-(5), Confidential Information shall not include documents or
information which (a) is or becomes publicly known other than through a breach of this
Protective Order; or (b) is lawfully received by a person from a source other than the Party
designating the documents or information as Confidential Information subject to this Protective
Order, which source is not itself known by the receiving Party to be bound by a confidentiality
agreement with the Party designating the documents or information as Confidential Information
subject to this Protective Order.
3.

Any Party to this Litigation or any other person who produces or supplies

information, documents or tangible items in the course of discovery (hereafter “Designating
Party” or “Producing Party”) may designate as Confidential Information subject to this
Protective Order any documents, material or information that it reasonably and in good faith
believes is a trade secret or constitutes confidential, private, or similarly protected information
under applicable statutory or common law; however, nothing in this Protective Order shall be
construed as a waiver by any Party of the right to assert a timely, good faith and reasonable

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objection to any request for discovery or to production of documents or information on the basis
that the information sought is confidential, private or similarly protected information under
applicable statutory or common law. Failure to claim confidentiality as to any Documents
produced shall not be deemed to constitute a waiver of such claim for confidentiality.
4.

Confidential Information which a Party does produce, either voluntarily or by

Court Order, shall be designated as Confidential Information either by marking
“CONFIDENTIAL” on the face of the original or photocopy of the document, information or
tangible item (“tangible item” includes a CD or other electronic form of information) being
produced and upon each page so designated, if practicable, or by identifying the Bates Number,
page number or range of numbers constituting or including Confidential Information. With
respect to a deposition, a Party or counsel for a non-party deponent may designate testimony or
any exhibits to a deposition as Confidential Information by identifying such testimony or
exhibits as Confidential Information during the deposition or, within thirty (30) days following
receipt of the deposition transcript, by identifying in a writing sent to all counsel and to the
deponent, if not a party, the portions of the transcript and any exhibits which are being
designated as Confidential Information.
5.

Confidential Information shall not be furnished or disclosed to any person except

as provided for herein, and shall be used solely for the purposes of this Litigation and shall not
be used for any business or other purpose.
6.

Confidential Information may be disclosed only to the following persons:
A.

This Court and its personnel.

B.

Counsel of record in this Litigation, and their respective clients and client

representatives who have a “need to know.”
C.

Other attorneys employed by the Parties and/or employees of the
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counsel’s law firms to the extent reasonably necessary to render professional
services in the Litigation; provided that prior to disclosure, counsel of record
have advised such other attorneys and employees of their obligations under this
Order.
D.

Any consultant, investigator or independent expert (collectively, “Expert”)

who is assisting in the preparation or trial of this Litigation, but only to the extent
reasonably necessary to enable such Expert to render such assistance; provided
that, prior to disclosure, each such Expert shall execute the Confidentiality
Agreement, attached hereto as Exhibit “A.” Counsel of record retaining such
consultant shall maintain a copy of each such Confidentiality Agreement during
the course of this Litigation.
E.

Persons noticed for depositions or designated as trial witnesses to the

extent reasonably necessary to prepare to testify; provided that, prior to
disclosure, each such person shall execute the Confidentiality Agreement,
attached hereto as Exhibit “A.” Counsel shall maintain a copy of each such
Confidentiality Agreement, and shall provide, if requested, a copy of the signed
Agreement to counsel for the requesting Parties.

As to any witness shown

documents or information designated as Confidential Information, disclosure shall
not include the physical transfer to or retention by such individual of any
document or any tangible item containing Confidential Information, unless that
witness is an Expert referred to in subparagraph D above.
F.

Court reporters retained for depositions, hearings or other events in the

Litigation.
G.

Outside copying services; provided that the copying service has been
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advised of this Order and executes a Confidentiality Agreement in the form
attached hereto as Exhibit A.
7.

Counsel for each Party agrees, acknowledges, and affirms that they shall instruct

their respective clients as to the protected nature of Confidential Information, and that
Confidential Information shall not be discussed or disclosed to anyone, other than in strict
accordance with this Protective Order, and, that the use of any Confidential Information
produced in the Litigation in contravention of the terms of this Protective Order may subject the
violating entity/entities or individuals to civil action and penalties as may be allowed by law, and
any and all remedies deemed appropriate by the Court.
8.

Where any documents designated as Confidential Information are included as

exhibits to any pleadings, motions, briefs, papers, documents or depositions filed with the Court,
unless expressly waived or excused by the Designating Party, such materials shall be filed in
accordance with NECivR 7.5.
9.

If a Party wishes to designate documents produced by third parties as Confidential

Information, the Designating Party will have twenty (20) days, which may be extended by
agreement, after the receipt of the documents to provide a log to the other Parties, identifying the
Confidential Information by Bates number, if available, or by other sufficient description to
identify the documents to be protected under this Protective Order. The Parties will then
prominently mark the Confidential Information “Confidential” on all such documents in their
possession.
10.

Any Party may, at any time after production of information designated as

Confidential Information under this Protective Order, object to its designation by notifying the
Designating Party in writing of that objection and specifying the designated material to which the

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objection is made. Within ten (10) days of service of the written objections, the Parties shall
confer concerning the objection. If the objection is not resolved, the Party objecting to the
designation shall, within fifteen (15) days of the conference, file and serve a motion to resolve the
dispute over the designation. The Designating Party shall bear the burden of proof on the issue.
11.

This Protective Order shall not prevent any of the Parties from moving this Court

for an order that information designated as Confidential Information may be disclosed other than
in accordance with this Order. Any Party may seek modification of this Protective Order from the
Court at any time; however, it shall remain in effect until such time as it is modified, amended or
rescinded by the Court.
12.

Nothing contained in this Protective Order and no action taken pursuant to it shall

prejudice the right of any Party to contest the alleged relevancy, admissibility, or discoverability
of the confidential documents and information sought. The Parties reserve all proprietary and
other rights in any such documents and information produced in accordance with this Protective
Order. Disclosure of such documents and information in accordance with this Protective Order
is required by applicable rules of civil procedure and shall not be construed to constitute waiver
of confidentiality or any proprietary or other rights, or construed as consent to the use,
disclosure, or publication of such information or documents except in strict compliance with this
Protective Order.
13.

This Protective Order is not intended to govern the use of the Confidential

Information at trial. Questions regarding the protection of Confidential Information during trial
will be presented to the Court prior to or during the trial as needed.
14.

Subject to the other provisions of this Protective Order, this Protective Order will

not terminate at the conclusion of the Litigation. After final termination of the Litigation

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(including any appeal), upon the written request of Producing or Designating Party, the other
Party must return within 30 days, or such other time period mutually agreed upon by the
Parties, all Confidential Information that was produced to that Party during discovery (including
any copy thereof) shall be returned to the Producing or Designating Party, except to the extent
that Party agrees in writing that some or all of such documents may be destroyed in lieu of
returning the documents, in which case the Party must provide a written certification of
destruction.
15.

Neither the termination of this Litigation nor the termination of employment of

any person who has access to Confidential Information shall relieve any such person from the
obligation of maintaining both the confidentiality and the restrictions on use of any Confidential
Information disclosed pursuant to this Order.
16.

The inadvertent production of document(s) or other material subject to the

attorney-client privilege, work product doctrine or any other privilege or immunity does not
constitute a waiver.

Promptly upon learning of the inadvertent disclosure, however, the

Producing Party must notify any receiving party of the inadvertent production and request return
of the documents. The receiving party must promptly return or confirm destruction of all copies
of such materials; but doing so shall not preclude the receiving party from seeking to compel
production of those materials, nor constitute an admission that the materials were, in fact,
privileged, and the Producing Party must preserve any such documents. Nothing in this

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Paragraph 16 is intended to restrict or limit any right or remedy of a Party pursuant to Fed. R.
Civ. P. 26(b)(5)(B) or Fed. R. Evid. 502.
DATED November 4, 2013.
BY THE COURT:

S/ F.A. Gossett
United States Magistrate Judge

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EXHIBIT “A”
CONFIDENTIALITY AGREEMENT
I, __________________________________, state the following:
I have read and understand the foregoing Protective Order approved by the Court and to
which this Exhibit “A” is annexed, and attest to my understanding that access to information or
documents designated as “Confidential” may be provided to me, conditioned upon and pursuant
to the terms, conditions and restrictions of the Protective Order. I agree to be bound by the terms
of the Protective Order, both with respect to the Court’s powers of supervision of the Litigation,
and contractually to any designating Party, which I acknowledge to be an expressly intended
beneficiary of the undertakings I have in this Confidentiality Agreement. I understand that
certain of the confidential information which I may receive or be given access to may constitute
material, nonpublic information regarding the affairs and plans of one or more of the Parties to
the Litigation and/or their subsidiaries or affiliates. I understand that the use of such information
by me, or the disclosure of such information by me to others for a competitive advantage or other
purpose in violation of the terms of the Protective Order, may subject me to sanctions and
penalties. I hereby agree not to use any such confidential information for any prohibited purpose
or to encourage or knowingly permit others to use information for any such purpose.
DATED this ____ day of __________________, 20___

Signature:

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