U.S. Bank National Association v. Perkins Delaware, LLC et al

Filing 36

ORDER approving 35 Stipulation for Protective Order. Ordered by Magistrate Judge Cheryl R. Zwart. (BHC)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
U.S. BANK NATIONAL ASSOCIATION,
as Trustee, for the registered holders of the
J.P. Morgan Chase Commercial Mortgage
Securities Trust 2006-CIBC15, Commercial
Mortgage Pass-Through Certificates, Series
2006-CIBC15, acting by and through C-III
ASSET MANAGEMENT LLC, its special
servicer,

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Plaintiff,
vs.
PERKINS DELAWARE, LLC, a Delaware
limited liability company, and MICHAEL
PERKINS, an individual,
Defendants.

Case No. 8:14-cv-214

JOINT STIPULATED
PROTECTIVE ORDER

THIS MATTER came on for consideration pursuant to the agreement of the parties,
Plaintiff U.S. Bank National Association, as Trustee, for the registered holders of the J.P.
Morgan Chase Commercial Mortgage Securities Trust 2006-CIBC15, Commercial Mortgage
Pass-Through Certificates, Series 2006-CIBC15, acting by and through C-III Asset Management
LLC, its special servicer, ("Plaintiff") and Defendants Perkins Delaware, LLC and Michael
Perkins ("Defendants"), herein as evidenced by the signatures of their respective counsel below,
for entry of a protective order to preserve the confidentiality of certain documents and records to
be produced to the opposing party or parties or their respective legal counsel.
Being fully advised on the premises and pursuant to Fed. R. Civ. P. 26(c), the Court
hereby ORDERS that the following terms and procedures shall govern the handling of
confidential, trade secret, and/or proprietary information produced by any party, third party, or
witness in this action:

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1.

“Confidential Information” means any type of information, document or

tangible object, including but not limited to electronic files, electronic mail, photographs,
voicemails, videotape recordings, plans, drawings and designs, that is designated in good faith as
confidential by the supplying party, whether it be a tangible thing, a document, information
contained in a document, information revealed during a deposition or during an inspection of the
facilities of the parties, or information revealed in an interrogatory answer or other discovery.
2.

“Qualified Person” means:
(a)

The Court, court personnel, jurors, and the attorneys and their law firms of

record in this action and any associated counsel, and stenographic, clerical or paralegal
employees of those attorneys and counsel to whom it is necessary that the information be
disclosed for purposes of this action. Persons identified in this subparagraph (a) need not
physically sign the Confidentiality Agreement, the general form of which is attached
hereto as Exhibit A and incorporated by reference herein.
(b)

Independent experts or consultants employed by a party or its attorneys of

record in this action who agree in writing to be bound by the terms of this Protective
Order.

The independent expert or consultant must read this Protective Order and

complete and sign the Confidentiality Agreement in the general form of Exhibit A,
attached. Any such form signed by an expert or consultant shall be kept in the respective
counsel’s file until the time for disclosure of such experts and/or consultants, if
applicable.
(c)

The parties to this litigation.

(d)

Any other person who is designated as a Qualified Person by Order of the

Court, after notice to all parties, or who, by agreement of the parties, is designated as a

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Qualified Person.

Any person designated under this subparagraph must read this

Protective Order and complete and sign the Confidentiality Agreement in the general
form of Exhibit A, attached.
3.

Documents and things produced by any party or non-party which contain

Confidential Information shall be designated as such by marking each page of the document or
thing at or before the time of production substantially as follows: CONFIDENTIAL. In the
event a non-party produces information, any party may designate the information under the
terms of this Protective Order within thirty (30) days of receipt of such information. Only a
Qualified Person under Paragraph 2 shall have access to documents or information designated
as CONFIDENTIAL.
4.

Any information designated as CONFIDENTIAL shall not be disclosed by any

party to this action to any persons or entities as except as provided herein or as provided upon
further Order of this Court.
5.

Any information designated as CONFIDENTIAL shall not be used by the non-

designating party for any purpose other than in connection with this action.
6.

Information disclosed at the deposition of a party or one of its present or former

officers, directors, employees, agents or independent experts retained by a party for purposes of
this action may be designated as CONFIDENTIAL by indicating on the record at the deposition
or within thirty (30) days from the receipt of the transcript, and the entire deposition shall be
treated as Confidential until the thirty (30) day period has lapsed. After the expiration of the 30
days,

only

those

portions

of

the

deposition

transcript

CONFIDENTIAL information are subject to this Protective Order.

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designated

as

containing

7.

A party designating information as CONFIDENTIAL has the affirmative

obligation to do so in the good-faith belief that such information is entitled to protection from
disclosure.
8.

A party shall not be obligated to challenge the propriety of any designation for

protection at the time the designation is made, and a failure to do so shall not preclude a
subsequent challenge. In the event that any party to this litigation disagrees at any point in these
proceedings with any designation made under this Protective Order, the parties shall first try to
resolve such dispute in good faith on an informal basis. If the dispute cannot be resolved
informally, the party objecting to the designation may seek appropriate relief from this Court.
The party seeking to protect information shall have the burden of proving the appropriateness of
the level of protection sought. All parties shall continue to treat any information designated as
CONFIDENTIAL consistent with the terms of this Protective Order pending any motion to
challenge such a designation and until such designation is altered or amended by Order of this
Court or agreement of the parties.
9.

Any documents or exhibits produced and any transcripts of depositions taken in

any prior litigation that contain Confidential Information and are subject to protective orders in
those cases shall be produced under, and made subject to, the protections provided in this
Protective Order, only if such production is permitted under the terms of the applicable
protective orders.
10.

Nothing shall prevent disclosure beyond the terms of this Order if the party

designating the information as CONFIDENTIAL consents, in writing, to the disclosure or, if the
Court, after notice to all parties, orders such disclosure.

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11.

Discovery, testimony, exhibits and other material filed with the Court, including,

inter alia, transcripts of depositions, exhibits, briefs, and memoranda, which comprise or contain
CONFIDENTIAL information, shall be filed as Restricted Access in accordance with the rules
of the United States District Court for the District of Nebraska.
12.

Not later than one hundred and twenty (120) days after the conclusion of this

action, including appeal, by entry of a final order, any originals or reproductions of any
documents designated as CONFIDENTIAL information shall be returned to the designating
party or destroyed. The provisions of this Paragraph 12 do not apply to pleadings, deposition
transcripts or exhibits. If the CONFIDENTIAL information is destroyed rather than returned to
the designated party, the non-designating party must provide written confirmation of the
destruction of the CONFIDENTIAL information to the designating party. Counsel may retain
copies of CONFIDENTIAL information on their document management systems in accord with
bona fide document retention policies.
13.

The designation of any material in accordance with this Order as constituting or

containing CONFIDENTIAL information is intended to facilitate the preparation and trial of
this action and to protect such information from being used outside of this litigation to the
detriment of any of the parties. Treatment of such designated material by counsel of record for
named parties in conformity with such designation shall not be an admission or agreement by
any party that the designated material constitutes or contains any confidential or proprietary
information.
14.

The inadvertent or unintended disclosure of CONFIDENTIAL information

pursuant to discovery in this lawsuit shall not be a waiver of a subsequent claim of protected
treatment under this Protective Order, either as to the specific information and/or documents,

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provided that written notice of the claim of confidentiality is given to all counsel of record in this
action within thirty (30) days following the initial disclosure.
15.

The parties agree to be bound by the terms of the Confidentiality Agreement set

forth above regardless of whether, or when, the Court enters this Protective Order.
DATED this 2nd day of July, 2015.
BY THE COURT:
s/ Cheryl R. Zwart
United States Magistrate Judge
Agreed to and Submitted by:

/s/ Jarrod D. Reece
Jarrod D. Reece, #24800
Bryan S. Hatch, #21009
Likes Meyerson Hatch LLC
444 Regency Parkway Drive, Suite 100
Omaha, NE 68114
Telephone: [phone]
Facsimile: [phone]
[e-mail]
[e-mail]
Attorneys for Plaintiff
And
/s/ Scott D. Jochim
Martin D. Pelster, #19223
Scott D. Jochim, #21956
CROKER, HUCK, KASHER, DEWITT,
ANDERSON & GONDERINGER, LLC
2120 South 72nd Street, Suite 1200
Omaha, NE 68124
Telephone: [phone]
Facsimile: [phone]
[e-mail]
[e-mail]
Attorneys for Defendants

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EXHIBIT A -CONFIDENTIALITY AGREEMENT

1.

I have been asked by _______________________ or its counsel to receive and

review certain materials or testimony that have been designated as CONFIDENTIAL within the
terms of the Protective Order entered in the action entitled U.S. Bank National Association v.
Perkins Delaware, LLC and Michael Perkins, Case No. 8:14-cv-214, United States District Court
for the District of Nebraska.
2.

I have read the aforementioned Protective Order, and agree to be bound by it.

3.

I hereby agree to submit to the jurisdiction of the United States District Court for

the District of Nebraska for enforcement of this Protective Order.
4.

Pursuant to 28 U.S.C. § 1746, I declare under penalty of perjury that the foregoing

is true and correct.
Executed on: _________________________

_________________________________
Signature
_________________________________
Name
_________________________________
Title
_________________________________
Address
_________________________________
Phone Number

STATE OF ____________

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COUNTY OF ___________ )
SUBSCRIBED AND SWORN to before me this _____ day of _________________, 2015.

__________________________________
Notary Public

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