Jenkins v. Pech et al

Filing 30

PROTECTIVE ORDER. Ordered by Magistrate Judge Thomas D. Thalken. (GJG)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
LEE A. JENKINS, on behalf of himself
and all others similarly situated,
8:14CV41
Plaintiff,
vs.

PROTECTIVE ORDER

CHRISTOPHER E. PECH and PECH,
HUGHES, & MCDONALD, P.C.,
Defendants.

1.

PURPOSES AND LIMITATIONS
Disclosure and discovery activity in this action are likely to involve

production of confidential, proprietary, or private information for which special
protection from public disclosure and from use for any other purpose other than
prosecuting this litigation may be warranted. Accordingly, the parties hereby
stipulate to and petition the court to enter the following Stipulated Protective
Order.

The parties acknowledge that this Order does not confer blanket

protections on all disclosures or responses to discovery and that the protection it
affords from public disclosure and use extends only to the limited information or
items that are entitled to confidential treatment under the applicable legal
principles. The parties further acknowledge, as set forth in Section 12.3, below,
that this Stipulated Protective Order does not entitle them to file confidential
information under seal; Local Rule NECivR 7.5 and General Rule NEGenR 1.3(c)
set forth the procedures that must be followed and the standards that will be

applied when a party seeks permission from the court to file material under
restricted access.
2.

DEFINITIONS

2.1 Challenging Party: a Party or Non-Party that challenges the designation of
information or items under this Order.
2.2 “CONFIDENTIAL” Information or Items: shall mean any document or
documents which contain any trade secret, sensitive or proprietary business
information, or private financial information pertaining to any Party, so
designated by any undersigned Party pursuant to this Protective Order,
regardless of when Disclosed.
2.3 Counsel (without qualifier): Outside Counsel of Record and House Counsel
(as well as their support staff).
2.4 Designating Party: a Party or Non-Party that designates information or items
that it produces in disclosures or in responses to discovery as
“CONFIDENTIAL.”
2.5 Disclosure or Discovery Material: all items or information, regardless of the
medium or manner in which it is generated, stored, or maintained (including,
among other things, testimony, transcripts, and tangible things), that are
produced or generated in disclosures or responses to discovery in this matter.
2.6 Expert: a person with specialized knowledge or experience in a matter
pertinent to the litigation who has been retained by a Party or its counsel to
serve as an expert witness or as a consultant in this action.
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2.7 House Counsel: attorneys who are employees of a party to this action. House
Counsel does not include Outside Counsel of Record or any other outside
counsel.
2.8 Non-Party: any natural person, partnership, corporation, association, or other
legal entity not named as a Party to this action.
2.9 Outside Counsel of Record: attorneys who are not employees of a party to
this action but are retained to represent or advise a party to this action and
have appeared in this action on behalf of that party.
2.10 Party: any party to this action, including all of its officers, directors,
employees, consultants, retained experts, and Outside Counsel of Record
(and their support staffs).
2.11 Producing Party: a Party or Non-Party that produces Disclosure or
Discovery Material in this action.
2.12 Professional Vendors: persons or entities that provide litigation support
services (e.g., photocopying, videotaping, translating, preparing exhibits or
demonstrations, and organizing, storing, or retrieving data in any form or
medium) and their employees and subcontractors.
2.13 Protected Material: any Disclosure or Discovery Material that is designated
as “CONFIDENTIAL.”
2.14

Receiving Party: a Party that receives Disclosure or Discovery

Material from a Producing Party.
3.

SCOPE
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The protections conferred by this Stipulation and Order cover not only
Protected Material (as defined above), but also (1) any information copied or
extracted from Protected Material; (2) all copies, excerpts, summaries, or
compilations of Protected Material; and (3) any testimony, conversations, or
presentations by Parties or their Counsel that might reveal Protected Material.
However, the protections conferred by this Stipulation and Order do not cover the
following information: (a) any information that is in the public domain at the time
of disclosure to a Receiving Party as a result of publication not involving a
violation of this Order, including becoming part of the public record through trial
or otherwise; and (b) any information known to the Receiving Party after the
disclosure from a source who obtained the information lawfully and under no
obligation of confidentially to the Designating Party.

Any use of Protected

Material at trial shall be governed by a separate agreement or order.
4.

DURATION
Even after final disposition of this litigation, the confidentially obligations

imposed by this Order shall remain in effect until a Designating Party agrees
otherwise in writing or a court order otherwise directs. Final disposition shall be
deemed to be the later of (1) dismissal of all claims and defenses in this action,
with or without prejudice; and (2) final judgment herein after the completion and
exhaustion of all appeals, rehearings, remands, trials, or reviews of this action,
including the time limits for filing any motions or applications for extensions of
time pursuant to applicable law.
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5.

DESIGNATING PROTECTED MATERIAL

5.1 Designating Material for Protection: Any Disclosing Party may designate any
document, or group of documents in its possession or control, to be
Confidential Documents subject to the protection of this Protective Order by:
5.1.1 Clearly

marking

or

stamping

each

such

document

"CONFIDENTIAL" prior to Disclosure; or
5.1.2 Notifying each Party in writing, within fourteen (14) days
after disclosure, of the designation of each Confidential
Document previously Disclosed by reasonably identifying
each such Confidential Document; or
5.1.3 Notifying each Party in writing, within fourteen (14) days
after this Protective Order is entered, of the designation of
each Confidential Document Disclosed prior to entry of this
Protect

Order,

by

reasonably

identifying

each

such

Confidential Document.
5.1.4 Every Confidential Document so designated by any
Disclosing Party pursuant to this Protective Order, shall be
presumed to contain confidential or proprietary information
within the meaning of Fed. R. Civ. P. 26(c)(7).
Each Party or Non-Party that designates information or items for protection
under this Order must take care to limit any such designation to specific material
that qualifies under the appropriate standards.
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The Designating Party must

designate for production only those parts of material, documents, items, or oral or
written communications that qualify – so that other portions of the material
documents, items, or communications for which protection is not warranted are
not swept unjustifiably within the ambit of this Order.
If it comes to a Party’s or a non-party’s attention that information or items
that it designated for protection do not qualify for protection, that Designating
Party must promptly notify all other Parties that it is withdrawing the mistaken
designation.
5.2 Manner and Timing of Designations: Except as otherwise provided in
this Order (see, e.g., second paragraph of section 5.2(a) below), or as otherwise
stipulated or ordered, Disclosure or Discovery Material that qualifies for
protection under this Order must be clearly so designated before the material is
disclosed or produced.
Designation in conformity with this Order requires:
(a) for information in documentary form (e.g., paper or electronic
documents, but excluding transcripts of depositions or other pretrial or trial
proceedings), that the Producing Party affix the legend “CONFIDENTIAL” to
each page that contains protected material. If only a portion or portions of the
material on a page qualifies for protection, the Producing Party also must clearly
identify the protected portion(s) (e.g., by making appropriate markings in the
margins).

6

A Party or non-party that makes original documents or materials available
for inspection need not designate them for production until after the inspecting
Party has indicated which material it would like copied and produced. During the
inspection and before designation, all of the material made available for inspection
shall be deemed “CONFIDENTIAL.” After the inspecting Party has identified the
document it wants copied and produced, the Producing Party must determine
which documents, or portions thereof, qualify for protection under this Order.
Then, before producing the specified documents, the Producing Party must affix
the “CONFIDENTIAL” legend to each page that contains Protected Material. If
only a portion or portions of the material on a page qualifies for protection, the
Producing Party also must clearly identify the protected portion(s) (e.g., by
making appropriate markings in the margins).
(b) for testimony given in deposition or in other pretrial or trial
proceedings, that the Designating Party identify on the record, before the close of
the deposition, hearing, or other proceeding, all protected testimony.
(c) for information produced in some form other than documentary
and for any other tangible items, that the Producing Party affix in a prominent
place on the exterior of the container or containers in which the information or
item is stored the legend “CONFIDENTIAL.” If only a portion or portions of the
information or item warrant protection, the Producing Party, to the extent
practicable, shall identify the protected portion(s).

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5.3 Inadvertent Failures to Designate: If timely corrected, an inadvertent
failure to designate qualified information or items does not, standing alone, waive
the Designating Party’s right to secure protection under this Order for such
material. Upon timely correction of designation, the Receiving Party must make
reasonable efforts to assure that the material is treated in accordance with the
provisions of this Order.
6.

CHALLENGING CONFIDENTIALITY DESIGNATIONS
6.1

Timing of Challenges: Any Party or Non-Party may challenge a

designation of confidentiality at any time.

Unless a prompt challenge to a

Designating Party’s confidentiality designation is necessary to avoid foreseeable
substantial unfairness, unnecessary economic burdens or a significant disruption or
delay of the litigation, a Party does not waive its right to challenge a
confidentiality designation by electing not to mount a challenge promptly after the
original designation is disclosed.
6.2 Meet and Confer: The Challenging Party shall initiate the dispute
resolution process by providing written notice of each designation it is challenging
and describing the basis for each challenge. To avoid ambiguity as to whether a
challenge has been made, the written notice must recite that the challenge to
confidentiality is being made in accordance with this specific paragraph of the
Protective Order. The parties shall attempt to resolve each challenge in good faith
and must begin the process by conferring directly (in voice to voice dialogue;
other forms of communication are not sufficient) within 14 days of the date of
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service of notice. In conferring, the Challenging Party must explain the basis for
its belief that the confidentiality designation was not proper and must give the
Designating Party an opportunity to review the designated material, to reconsider
the circumstances, and, if no change in designation is offered, to explain the basis
for the chosen designation. A Challenging Party may proceed to the next stage of
the challenge process only if it has engaged in this meet and confer process first or
establishes that the Designating Party is unwilling to participate in the meet and
confer process in a timely manner.
6.3 Judicial Intervention: If the Parties cannot resolve a challenge without
court intervention, the Designating Party shall file and serve a motion to retain
confidentiality under NECivR 7.0.1 within 21 days of the initial notice of
challenge or within 14 days of the parties agreeing that the meet and confer
process will not resolve their dispute, whichever is earlier. Each such motion must
be accompanied by a competent declaration affirming that the movant has
complied with the meet and confer requirements imposed in the preceding
paragraph. Failure by the Designating Party to make such a motion including the
required declaration within 21 days (or 14 days, if applicable) shall automatically
waive the confidentiality designation for each challenged designation. In addition,
the Challenging Party may file a motion challenging a confidentiality designation
at any time if there is good cause for doing so, including a challenge to the
designation of a deposition transcript or any portions thereof. Any motion brought
pursuant to this provision must be accompanied by a competent declaration
9

affirming that the movant has complied with the meet and confer requirements
imposed by the preceding paragraph. The burden of persuasion in any challenge
proceeding shall be on the Designating Party. Frivolous challenges, and those
made for an improper purpose (e.g., to harass or impose unnecessary expenses and
burdens on other parties) may expose the Challenging Party to sanctions. Unless
the Designating Party has waived the confidentiality designation by failing to file a
motion to retain confidentiality as described above, all parties shall continue to
afford the material in question the level of protection to which it is entitled under
the Producing Party’s designation until the court rules on the challenge.
The parties will fully comply with Local rule NECivR 7.0.1.(i) in all
respects concerning this protective order and any motions associated with it.
7.

ACCESS TO AND USE OF PROTECTED MATERIAL
7.1 Basic Principles: A Receiving Party may use Protected Material that is

disclosed or produced by another Party or by a Non-party in connection with this
case only for prosecuting, defending, or attempting to settle this litigation. Such
Protected Material may be disclosed only to the categories of persons and under
the conditions described in this Order. When the litigation has been terminated, a
Receiving Party must comply with the provisions of section 13 below (FINAL
DISPOSITION).
Protected Material must be stored and maintained by a Receiving Party at a
location and in a secure manner that ensures that access is limited to the persons
authorized under this Order.
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7.2 Disclosure of “CONFIDENTIAL” Information or Items: Unless
otherwise ordered by the court or permitted in writing by the Designating Party, a
Receiving

Party

may

disclose

any

information

or

item

designated

“CONFIDENTIAL” only to:
(a) the Receiving Party’s Outside Counsel of record in this action, as
well as employees of said Outside Counsel to whom it is reasonably necessary to
disclose the information for this litigation and who have signed the
“Acknowledgment and Agreement to be Bound” that is attached hereto as Exhibit
A;
(b) the officers, directors, and employees (including House Counsel)
of the Receiving Party to whom disclosure is reasonably necessary for this
litigation and who signed the “Acknowledgment and Agreement to be Bound”
(Exhibit A);
(c) Experts (as defined in this Order) of the Receiving Party to
whom disclosure is reasonably necessary for this litigation and who have signed
the “Acknowledgment and Agreement to be Bound” (Exhibit A);
(d) the court and its personnel;
(e) court reporters and their staff, professional jury or trial
consultants, mock jurors, and Professional Vendors to whom disclosure is
reasonably

necessary

for

this

litigation

and

who

“Acknowledgment and Agreement to be Bound” (Exhibit A);

11

have

signed

the

(f) during their depositions, witnesses in the action to whom
disclosure is reasonably necessary and who have signed the “Acknowledgment
and Agreement to be Bound” (Exhibit A), unless otherwise agreed by the
Designating Party or ordered by the court.

Pages of transcribed deposition

testimony or exhibits to depositions that reveal Protected Material must be
separately bound by the court reporter and may not be disclosed to anyone except
as permitted under this Stipulated Protective Order;
(g) the author of the document containing the information or a
custodian or other person who otherwise possessed or knew the information.
8.

PROTECTED

MATERIAL

SUBPOENAED

OR

ORDERED

PRODUCED IN OTHER LITIGATION
If a Party is served with a subpoena or an order issued in other litigation
that compels disclosure of any information or items designated in this action as
“CONFIDENTIAL,” that Party must:
(a) notify in writing the Designating Party within ten (10) business
days. Such notification shall include a copy of the subpoena or court order.
During the pendency of any challenge to the applicability of this Protective Order
to any document, information or thing, however, said document, information or
thing shall remain subject to the provisions of this Protective Order;
(b) promptly notify in writing the party who caused the subpoena or
order to issue in the other litigation that some or all of the material covered by the

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subpoena or order is subject to this Protective Order. Such notification shall
include a copy of this Stipulated Protective Order; and
(c) cooperate with respect to all reasonable procedures sought to be
pursued by the Designating Party whose Protected Material may be affected.
If the Designating Party timely seeks a protective order, the Party served with the
subpoena or court order shall not produce any information designated in this
action as “CONFIDENTIAL” before a determination by the court from which the
subpoena or order is issued, unless the Party has obtained the Designating Party’s
permission. The Designating Party shall bear the burden and expense of seeking
protection in the court of its confidential material – and nothing in these provisions
should be construed as authorizing or encouraging a Receiving Party in this action
to disobey a lawful directive from another court.
9.

A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE

PRODUCED IN THIS LITIGATION
(a) The terms of this Order are applicable to information produced by a
Non-Party in this action and designated as “CONFIDENTIAL.” Such information
produced by Non-Parties in connection with this litigation is protected by the
remedies and relief provided by this Order. Nothing in these provisions should be
construed as prohibiting a Non-Party from seeking additional protections.
(b) In the event that a Party is required, by a valid discovery request, to
produce a Non-Party’s confidential information in its possession, and the Party is

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subject to an agreement with the Non-Party not to produce the Non-Party’s
confidential information then the Party shall:
(1) promptly notify in writing the Requesting Party and the NonParty that some or all of the information requested is subject to a confidentiality
agreement with a Non-Party;
(2) promptly provide the Non-Party with a copy of the Stipulated
Protective Order in this litigation, the relevant discovery request(s), and a
reasonably specific description of the information requested; and
(3) make the information requested available for inspection by the
Non-Party.
(c) If the Non-Party fails to object or seek a protective order from this court
within 14 days of receiving the notice and accompanying information, the
Receiving Party may produce the Non-Party’s confidential information responsive
to the discovery request. If the Non-Party timely seeks a protective order, the
Receiving Party shall not produce any information in its possession or control that
is subject to the confidentiality agreement with the Non-Party before a
determination by the court. Absent a court order to the contrary, the Non-Party
shall bear the burden and expense of seeking protection in this court of its
Protected Material.
10.

UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL

If a Receiving Party learns that, by inadvertence or otherwise, it has
disclosed Protected Material to any person or in any circumstance not authorized
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under this Stipulated Protective Order, the Receiving Party must immediately (a)
notify in writing the Designating Party of the unauthorized disclosures, (b) use its
best efforts to retrieve all unauthorized copies of the Protected Material, (c) inform
the person or persons to whom unauthorized disclosures were made of all the
terms of this Order, and (d) request such person or persons to execute the
“Acknowledgment and Agreement to be Bound” (Exhibit A).
11.

INADVERTENT

PRODUCTION

OF

PRIVILEGED

OR

OTHERWISE PROTECTED MATERIAL
When a Producing Party gives notice to Receiving Parties that certain
inadvertently produced material is subject to a claim of privilege or other
protection, the obligations of the Receiving Parties are those set forth in Federal
Rule of Civil Procedure 26(b)(5)(B). This provision is not intended to modify
whatever procedure may be established in an e-discovery order that provides for
production without prior privilege review. Pursuant to Federal Rule of Evidence
502(d) and (e), insofar as the parties reach an agreement on the effect of
disclosures of a communication or information covered by the attorney-client
privilege or work product protection, the parties may incorporate their agreement
in the stipulated protective order submitted to the court.
12.

MISCELLANEOUS

12.1 Right to Further Relief: Nothing in this Order abridges the right of any
person to seek its modification by the Court in the future.

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12.2 Right to Assert Other Objections: By stipulating to the entry of this
Protective Order no Party waives any right it otherwise would have to object to
disclosing or producing any information or item on any ground not addressed in
this Stipulated Protective Order. Similarly, no Party waives any right to object on
any ground to use in evidence of any of the material covered by this Protective
Order.
12.3 Filing Protected Material: Any Disclosing Party may request the Court
to order that Confidential Documents be maintained under restricted access or
with restricted access, and that any proceeding regarding Confidential Documents
or information contained therein to be conducted before the Court outside the
presence of the public. A Party that seeks to file under restricted access any
Protected Material must comply with Local Rule NECivR 7.5 and NEGenR 1.3(c).
Protected Material may only be filed under restricted access pursuant to court
order authorizing the filing of the specific Protected Material at issue. Pursuant to
Local Rule NECivR 7.5 and NEGenR 1.3(c), an order will issue only upon request
establishing that the Protected Material at issue is privileged, protectable as a trade
secret, or otherwise entitled to protection under the law. If a Receiving Party’s
request to file Protected Material under restricted access pursuant to NECivR 7.5
and NEGenR 1.3(c) is denied by the court, then the Receiving Party may file the
information in the public record pursuant to NECivR 7.5(a)(iii) unless otherwise
instructed by the court.
13.

FINAL DISPOSITION
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Within 60 days after the final disposition of this action, as defined in
paragraph 4, each Receiving Party must return all Protected Material to the
Producing Party or destroy such material.

As used in this subdivision, “all

Protected Material” includes all copies, abstracts, compilations, summaries, and
any other format reproducing or capturing any of the Protected Material. Whether
the Protected Material is returned or destroyed, the Receiving Party must submit a
written certification to the Producing Party (and, if not the same person or entity,
to the Designating Party) by the 60 day deadline that (1) identifies (by category,
where appropriate) all the Protected Material that was returned or destroyed and
(2) affirms that the Receiving Party has not retained any copies, abstracts,
compilations, summaries or any other format reproducing or capturing any of the
Protected Material. Notwithstanding this provision, Counsel are entitled to retain
an archival copy of all pleadings, motion papers, trial, deposition, and hearing
transcripts, legal memoranda, correspondence, deposition and trial exhibits, expert
reports, attorney work product, and consultant and expert work product, even if
such materials contain Protected Material. Any such archival copies that contain
or constitute Protected Material remain subject to this Protective Order as set forth
in Section 4 (DURANTION)
IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD.
Dated this 16th day of July, 2014

/s/ William L. Reinbrecht
Attorneys for the Plaintiff

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Dated this 16th day of July, 2014

/s/ Tomio B. Nartia
Attorneys for Defendants

Dated this 16th day of July, 2014.
BY THE COURT:
s/ Thomas D. Thalken
United States Magistrate Judge

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EXHIBIT A
ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND
I, ______________________ [print or type full name], of
_______________ [print or type full address], declare under penalty of
perjury that I have read in its entirety and understand the Stipulated
Protective Order that was issued by the United States District Court for the
District of Nebraska on _______[date] in the case of Lee A. Jenkins v.
Christopher E. Pech, and Pech, Hughes & McDonald, P.C., (Case No. 8:14cv-00041-JFB-TDT). I agree to comply with and to be bound by all the
terms of this Stipulated Protective Order and I understand and acknowledge
that failure to so comply could expose me to sanctions and punishment in the
nature of contempt. I solemnly promise that I will not disclose in any
manner any information or item that is subject to this Stipulated Protective
Order to any person or entity except in strict compliance with the provisions
of this Order.
I further agree to submit to the jurisdiction of the United States
District Court for the District of Nebraska for the purpose of enforcing the
terms of this Stipulated Protective Order, even if such enforcement
proceedings occur after termination of this action.

I hereby appoint ________________________________ [print or
type full name] of ________________________________ [print or type full
address and tel. number] as my Nebraska agent for service of process in
connection with this action or any proceedings related to enforcement of this
Stipulated Protective Order.

Date: ____________________________
City and State where sworn and signed:
______________________________

Printed Name: _____________________________
Signature: ________________________________