Quality First Roofing, Inc. v. Cedar Valley Exteriors, Inc.

Filing 27

ORDER approving 26 Stipulation for Protective Order. Ordered by Magistrate Judge Cheryl R. Zwart. (BHC)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
CASE NO. 8:13cv321
Quality First Roofing, Inc., a Nebraska )
corporation,
)
)
Plaintiff/Counter Defendant,
)
)
vs.
)
)
Cedar Valley Exteriors, Inc., a
)
Minnesota corporation,
)
)
Defendant/Counter-Cross
) STIPULATED PROTECTIVE ORDER
)
Plaintiff,
)
vs.
)
)
)
JOSE A. GONZALEZ,
)
)
and
)
)
CRISTIAN A. GONZALEZ,
)
Cross-Defendants.
Upon stipulation of the parties to the above action, pursuant to Fed. R. Civ.
P. 26(c) that trade secret or financial information be disclosed only in designated
ways:
1.

As used in the Protective Order, these terms have the following meanings:
"Attorneys" means counsel of record;
"Confidential" documents are documents designated pursuant to

paragraph 2;

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"Confidential - Attorneys' Eyes Only" documents are the subset of
Confidential documents designated pursuant to paragraph 5;

"Documents" are all materials within the scope of Fed. R. Civ. P. 34;
"Written Assurance" means an executed document in the form attached as
Exhibit A.
2.

By identifying a document "Confidential", a party may designate any

document, including interrogatory responses, other discovery responses, or
transcripts, that it in good faith contends to constitute or contain trade secret or
financial information. To the extent only a portion of a document requires
treatment as a Confidential document, the disclosing party shall designate only
that portion of the document as confidential, and the receiving party may freely
disclose the non-confidential portions of the document.
3.

All Confidential documents, along with the information contained in the

documents, shall be used solely for the purpose of this action, and no person
receiving such documents shall, directly or indirectly, transfer, disclose, or
communicate in any way the Confidential contents of the documents to any
person other than those specified in paragraph 4. Prohibited purposes include,
but are not limited to, use for competitive purposes or the prosecution of
additional intellectual property rights.
4.

Access to any Confidential document shall be limited to:
(a) the Court and its officers;

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(b) Attorneys and their office associates, legal assistants, and
stenographic and clerical employees;
(c) persons shown on the face of the document to have authored or
received it;
(d) court reporters retained to transcribe testimony;
(e) the parties;
(f)

the parties’ respective insurers, if any; and

(g) outside independent persons (i.e., persons not currently or formerly
employed by, consulting with, or otherwise associated with any party) who are
retained by a party or its attorneys to furnish technical or expert services, or to
provide assistance as mock jurors or focus group members or the like, and/or to
give testimony in this action.
5.

The parties shall have the right to further designate Confidential

documents or portions of documents in the areas of trade secret information, or
highly sensitive and commercially competitive business information, as
"Confidential - Attorneys' Eyes Only". Documents, or portions of documents,
may only be designated as “Confidential – Attorneys’ Eyes Only” if the
disclosure of such documents to the opposing party’s principals would likely
result in commercial harm to the disclosing party and place the disclosing party at
a competitive disadvantage in the marketplace. Disclosure of such information
shall be limited to the persons designated in paragraphs 4(a), (b), (c), (d), (f) and
(g).
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6.

Third parties producing documents in the course of this action may also

designate documents as "Confidential" or "Confidential - Attorneys' Eyes Only",
subject to the same protections and constraints as the parties to the action. A
copy of the Protective Order shall be served along with any subpoena served in
connection with this action. All documents produced by such third parties shall
be treated as "Confidential - Attorneys' Eyes Only" for a period of 14 days from
the date of their production, and during that period any party may designate such
documents as "Confidential" or "Confidential - Attorneys' Eyes Only" pursuant to
the terms of the Protective Order.
7.

Each person appropriately designated pursuant to paragraph 4(g) to

receive Confidential information shall execute a "Written Assurance" in the form
attached as Exhibit A. Opposing counsel shall be notified at least 14 days prior
to disclosure to any such person who is known to be an employee or agent of, or
consultant to, any competitor of the party whose designated documents are
sought to be disclosed. Such notice shall provide a reasonable description of the
outside independent person to whom disclosure is sought sufficient to permit
objection to be made. If a party objects in writing to such disclosure within 14
days after receipt of notice, no disclosure shall be made until the party seeking
disclosure obtains the prior approval of the Court or the objecting party.
8.

All portions of depositions taken in this action that contain trade secret or

other confidential information may be designated "Confidential" or "Confidential Attorneys' Eyes Only," pursuant to the conditions set forth in paragraphs (2) and
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(5) above, and thereby obtain the protections accorded other "Confidential" or
"Confidential - Attorneys' Eyes Only" documents. Confidentiality designations for
deposition testimony shall be made either on the record or by written notice to
the other party within 14 days of receipt of the transcript. Unless otherwise
agreed, depositions shall be treated as "Confidential - Attorneys' Eyes Only"
during the 14-day period following receipt of the transcript. The deposition of any
witness (or any portion of such deposition) that encompasses Confidential
information shall be taken only in the presence of persons who are qualified to
have access to such information.
9.

Any party who inadvertently fails to identify documents as "Confidential" or

"Confidential - Attorneys' Eyes Only" shall have 14 days from the discovery of its
oversight to correct its failure. Such failure shall be corrected by providing written
notice of the error and substituted copies of the inadvertently produced
documents. Any party receiving such inadvertently unmarked documents shall
make reasonable efforts to retrieve documents distributed to persons not entitled
to receive documents with the corrected designation.
10.

Any party who inadvertently discloses documents that are privileged or

otherwise immune from discovery shall, promptly upon discovery of such
inadvertent disclosure, so advise the receiving party and request that the
documents be returned. The receiving party shall return such inadvertently
produced documents, including all copies, within 14 days of receiving such a

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written request. The party returning such inadvertently produced documents may
thereafter seek re-production of any such documents pursuant to applicable law.
11.

If a party files a document containing Confidential information with the

Court, it shall do so in compliance with the Electronic Case Filing Procedures for
the District of Nebraska. Prior to disclosure at trial or a hearing of materials or
information designated "Confidential" or "Confidential - Attorneys' Eyes Only",
the parties may seek further protections against public disclosure from the Court.
12.

Any party may request a change in the designation of any information

designated "Confidential" and/or "Confidential - Attorneys' Eyes Only". Any such
information shall be treated as designated until the change is completed. If the
requested change in designation is not agreed to, the party seeking the change
may move the Court for appropriate relief, providing notice to any third party
whose designation of produced documents as "Confidential" and/or "Confidential
- Attorneys' Eyes Only" in the action may be affected. The party asserting that
the material is Confidential shall have the burden of proving that the information
in question is within the scope of protection afforded by Fed. R. Civ. P. 26(c).
13.

Within 60 days of the termination of this action, including any appeals,

each party shall either destroy or return to the opposing party all documents
designated by the opposing party as "Confidential", and all copies of such
documents, and shall destroy all extracts and/or data taken from such
documents. Each party shall provide a certification as to such return or

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destruction as within the 60-day period. Attorneys and the parties’ insurers shall
be entitled to retain, however, a complete copy of the litigation file.
14.

Any party may apply to the Court for a modification of the Protective Order,

and nothing in the Protective Order shall be construed to prevent a party from
seeking such further provisions enhancing or limiting confidentiality as may be
appropriate.
15.

No action taken in accordance with the Protective Order shall be construed

as a waiver of any claim or defense in the action or of any position as to
discoverability or admissibility of evidence.
16.

The obligations imposed by the Protective Order shall survive the

termination of this action. Within 60 days following the expiration of the last
period for appeal from any order issued in connection with this action, the parties
shall remove any materials designated "Confidential" from the office of the Clerk
of Court. Following that 60-day period, the Clerk of Court shall destroy all
"Confidential" materials.
Stipulated to:
DATE: April 7, 2014
/s/ Patrick S. Cooper
Patrick S. Cooper, #22399
Clint D. Cadwallader, #24552
FRASER STRYKER PC LLO

/s/ Dustin R. DuFault
Dustin R. DuFault (MN No. 302,776)
Admitted Pro Hac Vice
DuFault Law Firm, P.C.
PO Box 1219
Minnetonka MN 55345

500 Energy Plaza
409 South 17th Street
Omaha, NE 68102
Attorneys for Quality First Roofing, Attorney for Plaintiff
Cristian Gonzalez, and Jose Cedar Valley Exteriors, Inc.
Gonzalez

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CERTIFICATE OF SERVICE
I hereby certify that on April 7, 2014, I electronically filed the
foregoing with the Clerk of the Court using the CM/ECF system, which will
send notification of such filing to the following:
Craig F. Martin
LAMSON, DUGAN and MURRAY,
LLP
10306 Regency Parkway Drive
Omaha, NE 68114

Dustin R. DuFault
DuFault Law Firm, P.C.
P.O. Box 1219
Minnetonka, MN 55345
/s/ Patrick S. Cooper

Apr 8, 2014
Dated: ______________________
Magistrate Judge Cheryl R. Zwart

1102898

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EXHIBIT A

WRITTEN ASSURANCE
declares that:
I reside at ____________________________in the city of
________________, state of ________________________ ;
I am currently employed by ___________________ located at
___________________and my current job title is
__________________________.
I have read and believe I understand the terms of the Protective Order dated
_______ , filed in Civil Action No. 8:13cv321, pending in the United States
District Court for the District of Nebraska. I agree to comply with and be bound
by the provisions of the Protective Order. I understand that any violation of the
Protective Order may subject me to sanctions by the Court.
I shall not divulge any documents, or copies of documents, designated
"Confidential" or "Confidential - Attorneys' Eyes Only" obtained pursuant to such
Protective Order, or the contents of such documents, to any person other than
those specifically authorized by the Protective Order. I shall not copy or use
such documents except for the purposes of this action and pursuant to the terms
of the Protective Order.
As soon as practical, but no later than 30 days after final termination of this
action, I shall return to the attorney from whom I have received them, any

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documents in my possession designated "Confidential" or "Confidential Attorneys' Eyes Only", and all copies, excerpts, summaries, notes, digests,
abstracts, and indices relating to such documents.
I submit myself to the jurisdiction of the United States District Court for the
District of Nebraska for the purpose of enforcing or otherwise providing relief
relating to the Protective Order.
I declare under penalty of perjury that the foregoing is true and correct.

Executed on

(Date)
(Signature)

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