Oriental Trading Company, Inc. et al v. Yagoozon, Inc.

Filing 30

STIPULATED PROTECTIVE ORDER. Ordered by Senior Judge Lyle E. Strom. (GJG)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA

ORIENTAL TRADING COMPANY, INC., a
Delaware corporation, and FUN
EXPRESS LLC, a Nebraska limited liability
corporation,
Plaintiffs,

CASE NO. 8:13-cv-351

STIPULATED PROTECTIVE ORDER

v.
YAGOOZON, INC., a Rhode Island
corporation,
Defendant.

To protect the confidentiality of confidential information sought to be discovered
in this action, Plaintiffs Oriental Trading Company, Inc. and Fun Express, LLC
("Plaintiffs") and Defendant Yagoozon, Inc. (collectively the "Parties" or individually a
"Party"), through their undersigned counsel, jointly request that the Court enter this
Stipulated Protective Order. Upon Stipulation of the Parties (Filing No. 29), and the
Court's acceptance of the same, IT IS ORDERED that the Stipulated Protective Order
("Protective Order") is granted and entered as follows:
1.

The terms and conditions of this Protective Order shall govern the

production and handling of documents and things (including Electronically Stored
Information), answers to interrogatories, depositions, exhibits, pleadings and other
information exchanged by the parties, in this action. This Protective Order is made
without prejudice to the Parties' rights to stipulate to other terms of confidentiality
regarding Confidential Information as defined herein.

2.

The Parties anticipate that they will seek information that may be

designated as containing confidential, proprietary, business, commercial, technical,
scientific, financial, personnel, and/or trade secrets information that is not generally
known and that the designating party would not normally reveal to third parties or would
cause third parties to maintain in confidence, or information, the present disclosure of
which would, in the good faith judgment of the designating party, be detrimental to the
designating party in the conduct of its business (hereinafter "Confidential Information").
3.

When used in this 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.
4.

For purposes of this Protective Order, the term “Party” includes a Party’s

agents, attorneys, directors, employees, members, officers and partners.
5.

The protections afforded by this Protective Order shall in no way affect a

Party’s right to withhold Confidential Information as privileged under the Attorney-Client
Privilege, any other applicable privilege, the Attorney Work-Product Doctrine, or as
otherwise exempted from discovery pursuant to the laws of the United States or the State
of Nebraska.
6.

A Party may designate Confidential Information as “CONFIDENTIAL” under

this Protective Order if the designating party reasonably believes that such materials and
information contain non-public, confidential, technical, proprietary, financial, secret or other
commercially sensitive or otherwise private information.
7.

A Party may designate Confidential Information as “CONFIDENTIAL-

ATTORNEYS' EYES ONLY” under this Protective Order if the designating party

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reasonably believes that such materials and information contain such highly confidential or
proprietary informations that their dissemination should be limited to those persons
described in paragraph 11 below.
8.

Any documents produced or Confidential Information provided by a Party,

pursuant to or in response to any discovery request or by agreement, may be
designated by the responding party as Confidential Information in the following manner:
a)

b)

By imprinting the word "CONFIDENTIAL" or “CONFIDENTIALATTORNEYS' EYES ONLY” next to or above any answer to any
interrogatory or any other discovery request;

c)

With respect to portions of a deposition transcript, by making
arrangements with the attending court reporter to bind the
confidential portion(s) of such transcripts separately and labeling
them as "CONFIDENTIAL" or “CONFIDENTIAL- ATTORNEYS'
EYES ONLY;” and

d)

9.

By imprinting the word "CONFIDENTIAL" or “CONFIDENTIALATTORNEYS' EYES ONLY” on the first page or cover of any
document produced;

With respect to electronic information, by describing the information
to the fullest extent possible and noting, in writing, that the
described information is confidential.
If such information is
reproduced in paper form, such paper document may also be
designated
as
"CONFIDENTIAL
or
“CONFIDENTIALATTORNEYS' EYES ONLY."

All documents and information provided by a Party in response to a

discovery request, or deposition testimony designated as "CONFIDENTIAL" or
“CONFIDENTIAL-ATTORNEYS' EYES ONLY” shall be subject to the following
restrictions:
a)

They shall be used only for the purpose of this litigation and not for
any business or other purposes whatsoever;

b)

That all information designated as "CONFIDENTIAL" or
“CONFIDENTIAL-ATTORNEYS' EYES ONLY” in whatever format
shall be furnished only under the terms of this Protective Order and

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shall be treated by all persons accorded access pursuant to this
Protective Order as constituting Confidential Information and shall
neither be used nor disclosed except for the purpose of this
litigation, and solely in accordance with this Protective Order or
subsequent order of the Court upon motion.
c)

Confidential Information shall not be disclosed to anyone except
those categories of persons provided herein under the terms of this
Protective Order and to whom disclosure is necessary for the
purposes associated with this lawsuit. Counsel of record, experts,
consultants, and other persons or entities retained to assist a party
in this lawsuit who have signed a Nondisclosure Agreement shall
appropriately notify such persons that the disclosure is made in
confidence and must be kept in confidence in accordance with this
Protective Order.

d)

Individuals authorized to review Confidential Information pursuant
to this Protective Order shall hold such information in the strictest
confidence and shall not divulge the information, either verbally or
in writing, to any other person, entity or government agency unless
authorized by the Party designating such information as
"CONFIDENTIAL" or “CONFIDENTIAL- ATTORNEYS' EYES
ONLY” or order of the Court.

e)

No access to Confidential Information shall be provided to any
individual, required to sign a Nondisclosure Agreement 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 Protective Order and agree to be bound by its terms
and such executed Nondisclosure Agreement has been provided to
counsel for the disclosing party. Counsel for each disclosing Party
shall maintain a file of such written agreements until this action is
completed.

f)

Before trial, counsel for the parties shall agree to the appropriate
means to protect the confidentiality of the information that counsel
desire to present at trial. If counsel cannot reach an agreement,
they shall apply to the Court for resolution of the issue.

g)

All documents, information identified as "CONFIDENTIAL” or
“CONFIDENTIAL-ATTORNEYS' EYES ONLY” including all copies,
excerpts and summaries, must be retained in the custody of
counsel or other persons authorized by this Protective Order during
the pendency of this litigation.

h)

If information or documents designated as "CONFIDENTIAL" or
“CONFIDENTIAL- ATTORNEYS' EYES ONLY” are included in any

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pleading or other document to be filed with the Court, they shall be
labeled “CONFIDENTIAL” or “CONFIDENTIAL- ATTORNEYS'
EYES ONLY” and filed under seal or otherwise submitted in
accordance with the Court’s rules.
Any party claiming
confidentiality with respect to the information or documents may file
a motion to seal the records.
10.

Confidential Information designated as “CONFIDENTIAL” shall not be

communicated or disclosed in any manner, either directly or indirectly, to anyone other
than:
a)

The attorneys of record in this lawsuit, in-house counsel and
persons employed by attorneys of record and in-house counsel's
law department;

b)

The Parties and their three designated and identified employees,
directors or officers of the parties, and their insurers;

c)

Outside experts and consultants who have, prior to disclosure,
agreed in writing to be bound by the terms of this Protective Order
as provided in sub-paragraph c. of Paragraph 9;

d)

This Court, Court personnel, and stenographic reporters engaging
in proceedings necessarily incident to the preparation for trial (e.g.,
depositions) and/or trial of this action;

e)

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

f)

Persons actually deposed or called to testify at any hearing or trial
who have, prior to disclosure, agreed in writing to be bound by the
terms of this Protective Order as provided in sub-paragraph c of
Paragraph 9;

g)

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 who have, prior to disclosure, agreed in
writing to be bound by the terms of this Protective Order as
provided in sub-paragraph c of Paragraph 9; and

h)

Such other persons as the Court may specifically approve after
notice and hearing who have, prior to disclosure, agreed in writing
to be bound by the terms of this Protective Order as provided in
sub-paragraph c. of Paragraph 9.

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11.

Confidential Information designated as “CONFIDENTIAL-ATTORNEYS'

EYES ONLY” shall not be communicated or disclosed in any manner, either directly or
indirectly, to anyone other than:
a)

The attorneys of record in this lawsuit, and persons employed by
attorneys of record and in-house counsel;

b)

Outside experts and consultants who have, prior to disclosure,
agreed in writing to be bound by the terms of this Protective Order
as provided in sub-paragraph c. of Paragraph 9;

c)

This Court, Court personnel, and stenographic reporters engaging
in proceedings necessarily incident to the preparation for trial (e.g.,
depositions) and/or trial of this action provided that any such
material shall be filed under seal;

d)

Persons actually deposed or called to testify at any hearing or trial
who have, prior to disclosure, agreed in writing to be bound by the
terms of this Protective Order as provided in sub-paragraph c of
Paragraph 9 and who have knowledge of the information. The
parties agree that the non-producing party may be required to
excuse herself or himself if in attendance at a deposition. In-house
counsel may remain in attendance;

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 who have, prior to disclosure, agreed in
writing to be bound by the terms of this Protective Order as
provided in sub-paragraph c of Paragraph 9;

f)

Such other persons as the Court may specifically approve after
notice and hearing who have, prior to disclosure, agreed in writing
to be bound by the terms of this Protective Order as provided in
sub-paragraph c. of Paragraph 9; and

g)

The Parties agree to work together as necessary (as well as with
any third party as may be applicable) to agree on further disclosure
of Confidential Information designated as “CONFIDENTIALATTORNEYS' EYES ONLY;” provided however, that no disclosure
shall be made to any other individuals in the absence of agreement
by the producing party or an order from the Court. Nothing in this
Protective Order shall prevent Counsel from advising their clients
Counsels’ impressions, recommendations, strategies, or opinions
formed in part based on a review of material designated

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“CONFIDENTIAL-ATTORNEYS' EYES ONLY,” provided that
Outside Counsel nor In-House Counsel may not communicate such
information to clients.
12.

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

"CONFIDENTIAL" or “CONFIDENTIAL-ATTORNEYS' EYES ONLY” hereunder shall not
constitute a concession that the information, document or thing is confidential.

If,

subsequent

as

to

the

acceptance

of

information

or

documents

identified

"CONFIDENTIAL" or “CONFIDENTIAL-ATTORNEYS' EYES ONLY”, a Party wishes this
Court to rule upon the other Party's claim of confidentiality, that Party may move this
Court for such determination.

In the resolution of such motion, the burden of

establishing the confidentiality of the information or document shall be on the Party who
made the claim of confidentiality. However, materials designated as "CONFIDENTIAL"
or “CONFIDENTIAL-ATTORNEYS' EYES ONLY” shall be treated as such pending
resolution of the motion by the Court. It is, however, acknowledged by the Parties that,
without limitation, the following information may be claimed as being "CONFIDENTIAL"
or “CONFIDENTIAL-ATTORNEYS' EYES ONLY”:
a)

Information that is not normally available to the Parties without
restriction;

b)

Information that is not a part of the public domain; and

c)

Information of a third party that is deemed confidential by the third
party and which was made available to the disclosing Party
pursuant to the terms of a confidential/restricted information
agreement.

Provided that nothing herein shall preclude either Party from challenging in court the
confidential status of any document.
13.

Transcripts of the depositions covered by this Protective Order shall be

filed under seal in the manner described above.

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14.

Inadvertent failure to designate materials as “CONFIDENTIAL” or

“CONFIDENTIAL-ATTORNEYS' EYES ONLY” at the time of production may be
remedied by supplemental written notice given by the producing Party. Upon receipt of
such notification, all Confidential Information so designated or re-designated shall be fully
subject to this Protective Order as if it had been initially so designated; provided, however,
that the receiving Party shall incur no liability for any prior treatment of such information in
conformance with its original designation. The Party receiving such notice shall make a
reasonable good faith effort to insure that any analyses, memoranda, or notes which were
internally generated based upon such information shall immediately be treated in
conformance with any such designation or re-designation.
15.

The failure to designate information as Confidential Information in

accordance with this Protective Order or the failure to object to a designation at or within
a given time shall not preclude the filing of a motion at a later date seeking to impose
such designation or challenge the propriety thereof.
16.

In the event that a Party shall desire to provide access to information or

documents identified as "CONFIDENTIAL" or “CONFIDENTIAL-ATTORNEYS' EYES
ONLY” hereunder to any person or category of persons not identified above, if the
Parties cannot mutually agree to such disclosure, it shall move this Court for an order
that such a person or category of persons may be given access to the information. In
the event that the motion is granted, such person or category of persons may have
access to the information, provided that such person or persons have agreed in writing
before such access is given to be bound by the terms of this Protective Order, or other
conditions as the Court may order.

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17.

This Protective Order shall in no way affect or impair the right of any Party

or person to raise or assert any defense or objection, including but not limited to
defenses or objections to the discovery or production of documents or information, and
to the use or admissibility at any hearing of any evidence, whether or not comprised of
documents or information governed by this Protective Order.
18.

If a non-party is called upon, by subpoena or otherwise, to provide or

produce non-public documents, information, or things that the non-party reasonably and
in good faith believes contains Confidential Information, the non-party may designate
such documents, information, or things as “CONFIDENTIAL” or "CONFIDENTIAL
ATTORNEYS' EYES ONLY" in the manner set forth in this Protective Order.
Additionally, the same procedures outlined in this Protective Order shall apply to
documents, information, or things designated as “CONFIDENTIAL” by any producing
non-party. The producing non-party shall have the same rights and obligations as a
Party with regard to such documents, information, or things. In addition, the Parties
may designate documents produced by non-parties as "CONFIDENTIAL" within ten (10)
days of being notified by the production.
19.

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

deposition or in Court, on the record.
20.

No inadvertent disclosure of any documents or information by either Party

shall constitute a waiver of any privilege including the Attorney-Client Privilege or the
protections of the Attorney Work-Product Doctrine.

Parties reserve the right to

challenge the assertion of the privilege on grounds other than disclosure during
production. For all materials and documents, including but not limited to Electronically
Stored Information, the Parties agree that: (i) upon notification or discovery of an

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inadvertently produced document, the opposing Party should be notified; (ii) all copies
of the inadvertently produced document should be returned to the producing Party; (iii)
any copies of the inadvertently produced privileged document provided to third parties,
contained in the discovery record, or filed with the Court should be returned to the
producing Party or destroyed; and (iv) to the extent the receiving Party is challenging
the assertion of privilege, the opposing party shall return the inadvertently produced
record until the issue of privilege can be timely addressed by the Court.
21.

This Protective Order is without prejudice to the right of any party to seek

relief from the Court from any of the restrictions provided above upon good cause
shown or for any other grounds provided by applicable law.
DATED this 14th day of July, 2014.
BY THE COURT:
/s/ Lyle E. Strom
________________________
Lyle E. Strom. Senior Judge
United States District Court

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Stipulated as to form and substance:
ORIENTAL TRADING, INC. and FUN
EXPRESS, INC., Plaintiffs

YAGOOZON, INC., Defendant

By:

By:

/s/Jill Robb Ackerman
Jill Robb Ackerman, (NE #17623)
Krista M. Eckhoff (NE# 25346)
BAIRD HOLM LLP
1700 Farnam Street, Suite 1500
Omaha, NE 68102-2068
[phone]
THEIR ATTORNEYS

/s/ Sheila Bentzen
Daniel E. Klaus, (NE #17889)
Andrew S. Pollack (NE #19872)
Sheila Bentzen, (NE #25020)
REMBOLT LUDTKE LLP
1201 Lincoln Mall, Suite 102
Omaha, NE 68508
[phone]
ITS ATTORNEYS

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA

ORIENTAL TRADING COMPANY, INC., a
Delaware corporation, and FUN
EXPRESS LLC, a Nebraska limited liability
corporation,
Plaintiffs,

CASE NO. 8:13-cv-351

STIPULATED PROTECTIVE ORDER

v.
YAGOOZON, INC., a Rhode Island
corporation,
Defendant.
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 _________, 201__.

____________________________________
Notary Public

Exhibit A
DOCS/1266152.2