Inserra v. Jewish Federation of Omaha, Inc.

Filing 27

PROTECTIVE ORDER granting 26 Joint Motion and Stipulation for Protective Order. Ordered by Magistrate Judge F.A. Gossett. (JSF)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA

PATRICIA INSERRA,

Case No. 8:13-cv-00224
Plaintiff,

vs.

PROTECTIVE ORDER

JEWISH FEDERATION OF OMAHA, INC.
d/b/a THE JEWISH FEDERATION OF
OMAHA,
Defendant.

The matter comes before the Court on the Joint Motion and Stipulation for Protective
Order submitted by Plaintiff and Defendant. (Filing 26.) The Court, being fully advised in the
premises, finds as follows:
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
documents or information containing or constituting private, sensitive, confidential, proprietary or
other information concerning a Party to the Litigation or concerning persons who are not parties
to this Litigation (hereinafter, “Confidential Information”).
2.

This Protective Order shall be applicable to all Confidential Information

designated as "Confidential" or "Attorney's Eyes Only" in accordance with the procedures set
forth in this Protective Order by 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. 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.
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" or "Attorney's Eyes Only" subject
to this Protective Order any documents, material or information that it reasonably and in good
faith believes constitutes private, sensitive, confidential, proprietary or similarly protected
information; 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 objection to any request for
discovery or to production of documents or information on the basis that the information sought
is private, sensitive, confidential, proprietary or similarly protected information.
4.

Confidential Information which a Producing Party produces, either voluntarily or

by Court Order, shall be designated as Confidential Information either by marking
“CONFIDENTIAL” or "ATTORNEY'S EYES ONLY" 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.

C.

Plaintiff and officers of Defendant and representatives of Plaintiff and

Defendant who have a reasonable need to know the Confidential Information in
order to testify, or to participate in litigation decision-making, further provided that
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.
D.

Other attorneys employed by the Parties and/or employees of the

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.

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E.

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.
F.

Persons testifying in depositions (including, without limitation, persons

preparing to testify in such depositions) to the extent the Confidential Information
was authored by, addressed to, or received by the person or party testifying;
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 E
above.
G.

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

Litigation.
H.

Outside copying services; provided that the copying service has been

advised of this Order and executes a Confidentiality Agreement in the form
attached hereto as Exhibit A.
I.

Materials and information designated as "ATTORNEY'S EYES ONLY"

shall not be shown to, discussed with or otherwise disclosed to any person other
than those persons identified in subparagraphs A-B, D-F, and G-H.
The designation of "ATTORNEY'S EYES ONLY" shall be used for information
which a producing party deems confidential, for which a producing party has a
good faith belief that it is confidential, and that it is subject to misuse for which
the confidentiality provisions of this Order are not sufficient to address. All
information produced and marked "ATTORNEY'S EYES ONLY" shall be treated

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as confidential under this Order, pending further Order of the Court or resolution
of disputed status as set forth below.
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 must be filed in a
sealed envelope or other sealed container marked with the title of the litigation, identifying each
enclosed document and thing and bear a statement precisely in the following form:
"CONFIDENTIAL"
"By Order of the United States District Court for the District of Nebraska dated
_______________________, 2013, this envelope is not to be opened, and its
contents are not to be displayed or revealed to any person, other than the
presiding Judge(s), the parties, or their attorneys, in this matter."
Transcripts of depositions covered by this Order shall be filed under seal in the manner
described above.
9.

Non-parties producing documents in this case pursuant to subpoena or other

document request may designate such documents as Confidential Information in accordance
with paragraph 3 of this Protective Order before production. 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.

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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
objection is made. Within fifteen (15) 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 must continue to treat such designated material in a manner consistent with the
terms of this Order, however, such Party may file a motion for an order challenging the
confidential designation.
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.

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

not terminate at the conclusion of the Litigation.

Within ninety days (90) days after final

termination of the Litigation (including any appeal), unless a different date is otherwise agreed
by the Parties, all Confidential Information that was produced by a Party to the Litigation shall be
returned to, and at the expense of, 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. Unless otherwise mutually agreed to by the Parties, each attorney of record
shall certify his or her compliance with this section in writing, and deliver the certification to the
producing party no later than ninety (90) days after final termination of litigation.
14.

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

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obligation of maintaining both the confidentiality and the restrictions on use of any Confidential
Information disclosed pursuant to this Order.

IT IS SO ORDERED.

DATED January 13, 2014.

BY THE COURT:

S/ F.A. Gossett
United States Magistrate Judge

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