McDonald Apiary, LLC v. Starrh Bees, Inc., et al

Filing 78

PROTECTIVE ORDER - Ordered by Magistrate Judge Cheryl R. Zwart. (JAB)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
MCDONALD APIARY, LLC,

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Plaintiff,
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v.
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STARRH BEES, INC.; DALE ASHLEY; )
ANNE ASHLEY; and JONATHAN
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GONZALEZ,
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Defendants.
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STARRH BEES, INC.,
Counterclaim-Plaintiff,
v.
MCDONALD APIARY, LLC; ED
MCDONALD; and SUSAN
MCDONALD,
Counterclaim-Defendants

CASE NO. 8:14-cv-00351

PROTECTIVE ORDER

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The parties to this action anticipate that they will seek information that the
parties may assert as containing confidential, proprietary, business, commercial,
technical, scientific, financial, personnel, and/or trade secret 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 could, in the good faith judgment of the designating
party, be detrimental to the designating party in the conduct of its business.

Accordingly,
IT IS ORDERED that a Protective Order ("Protective Order") is entered as
follows:
1.

This Protective Order shall govern the use, handling, and disclosure

of all documents, testimony or information produced or given in this action
which are designated to be subject to this Protective Order in accordance with
the terms hereof.
2.

Any party or non-party producing, serving, or filing documents or other

materials in this action (“Producing Party”) may designate any discovery materials
as “Confidential” under the terms of this Protective Order if the Producing Party
believes in good faith that such Discovery Materials contain non-

public,

confidential, proprietary, trade secret, or commercially or personally sensitive
information that requires the protections provided in this Protective Order. The
Producing Party designating documents as "Confidential" shall do so by written
notice to opposing counsel which identifies the documents so designated by
labeling

the

document

“Confidential”

or

other

reasonable

identifying

characteristic, and such designation may be made after production in the event a
party inadvertently failed to so mark such document(s) as “Confidential”.
3.

To the extent any motions, briefs, pleadings, deposition transcripts, or

other papers to be filed with the Court incorporate documents or other materials
subject to this Protective Order, the party filing such papers shall

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designate such materials, or portions thereof, as “Confidential” and shall file them
with the Court as “restricted document” as provided in NECivR 5.3.(c); provided,
however, that a copy of such filing having the confidential information deleted
therefrom may be made part of the public record.
4.

All documents, transcripts, or other materials subject to this

Protective Order, and all information derived therefrom (including, but

not

limited to, all testimony, deposition, or otherwise, that refers, reflects or otherwise
discusses any information designated “Confidential” shall not be used, directly
or indirectly, by any person for any business, commercial or competitive
purposes or for any purpose whatsoever other than solely for the preparation and
trial of this action in accordance with the provisions of this Protective Order.
5.

Except with the prior written consent of the individual or entity

designating a document or portions of a document or any other information as
“Confidential,” no document, transcript or pleading designated “Confidential” and
no information contained in, or derived from any such materials (including but not
limited to, all deposition testimony that refers, reflects or otherwise discusses any
information designated confidential hereunder) may be disclosed other than in
accordance with this Protective Order, and may not be disclosed to any person
other than:
(a) the Court and its personnel;
(b) parties to this litigation;

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(c) counsel for the parties, whether retained counsel or in-house counsel and
employees of retained counsel reasonably assigned to assist such counsel in
the preparation of this litigation;
(d) court reporters and their staffs;
(e) fact witnesses subject to a proffer to the Court or a stipulation of the
parties that such witnesses need to know such information;
(f) present or former employees of the producing party in connection with
their depositions in this action (provided that no former employees shall be
shown documents prepared after the date of his or her departure); and
(g) experts specifically retained as consultants or expert witnesses in
connection with this litigation who have signed the Declaration of
Compliance, attached hereto as Exhibit A.
6.

All persons, excluding those identified in Paragraphs

6(a)-6(c),

receiving any or all documents or any other information produced pursuant to this
Protective Order shall be advised of their confidential nature and must sign the
Declaration of Compliance, attached hereto as Exhibit A, before receiving any
such documents or information. All persons to whom “Confidential” information
and/or documents are disclosed are hereby enjoined from disclosing same to any
person except as provided herein, and are further enjoined from using same except
in the preparation for and trial of the above-captioned action between the named
parties thereto. No person receiving or reviewing such ”Confidential” documents,
information or transcripts shall disseminate or disclose them to any

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person other than those described above in Paragraph 6 and for the purposes
specified, and in no event shall such person make any other use of such documents,
information, or transcripts.
7.

A copy of this Protective Order shall be served with a subpoena or

Notice of Deposition on any third party. A third party may designate a document as
“Confidential” pursuant to this Protective Order. Either
designate

documents produced by

a

third party

party

as being

may

also

“Confidential”

pursuant to the terms of this Protective Order within thirty (30) days of being
made aware of the content of such documents. Any document produced by a
third party and so designated shall be treated as Confidential pursuant to the
terms of this Order. The “Confidential” restriction of this Protective Order shall no
longer apply to any document produced by a third party that has not been
designated as “Confidential” by the producing third party or by a party within such
thirty (30) day period.
8.

Nothing in this Protective Order shall prevent a party from using at

trial any information or materials designated “Confidential.”
9.

This Protective Order has been entered by the Court to facilitate

discovery and the production of relevant evidence in this action. Neither the entry
of this Protective Order, nor the designation of any information, document, or
the like as “Confidential” nor the failure to make such designation, shall
constitute evidence with respect to any issue in this action.
10.

Within sixty (60) days after the final termination of this litigation,

including all appeals, counsel for each party shall certify to the other parties or
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their counsel that counsel and the party that counsel represents have destroyed or
returned all materials designated “Confidential” pursuant to this Protective
Order, including any extracts, summaries or compilations taken therefrom, but
excluding any materials which in the good faith judgment of counsel are
independent work product materials and excepting that counsel for the parties
may each retain one archival copy of each such document, subject to the terms and
conditions of this Protective Order, to maintain a complete file of the litigation.
11.

In the event that any party to this litigation disagrees at any point in

these proceedings with any designation of confidentiality made under this
Protective Order, the parties shall first try to resolve such dispute in good faith
on an informal basis involving both written and oral correspondence. If the
dispute cannot be resolved, the party objecting to the designation may seek
appropriate relief from this Court. During the pendency of any challenge to the
designation of a document or information as confidential, the designated document
or information shall continue to be treated as “Confidential” subject to the
provisions of this Protective Order.
12.

This Protective Order shall be without prejudice to the right of any of

the parties of this action (a) to bring before this Court at any time the question
of whether any particular information is or is not relevant to any issue of this case
or whether any information is or is not confidential; (b) to seek a further
protective order; (c) to exercise any right or raise any objection otherwise available
under the rules of discovery or evidence; or (d) by application and notice, to seek

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relief from any provision of this Protective Order on any ground. 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.
13.

If a party that receives “Confidential” information discovers that,

whether through inadvertence or otherwise, it has disclosed or provided such
documents or information to any person or entity not authorized to review it under
the terms of this Protective Order, then that disclosing party shall promptly:
(a) make reasonable best efforts to seek the return of the documents or
information;
(b) inform opposing/producing counsel of the disclosure and the relevant
circumstances (including the identity(ies) of the person or entity to whom
disclosure was made); and
(c) advise the recipient of the provisions of this Protective Order and
request that the “Confidential” documents or information be returned
immediately (without making copies of or notes about the same) and make all
reasonable efforts to have the recipient sign the Declaration of Compliance,
attached hereto as Exhibit A.
This paragraph does not limit the remedies that the other party may pursue for
breach of this Protective Order.
14.

This Protective Order does not authorize or require disclosure of

documents or information protected by or subject to claims of privilege

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or protection, including but not limited to the attorney-client privilege or work
product protection. Pursuant to Federal Rule of Evidence 502, the parties agree
and this Court orders that if a party inadvertently or mistakenly produces
documents or information subject to a claim of privilege or protection, such
production will not operate as a waiver of the otherwise applicable privilege or
protection. Upon receipt of written notice identifying privileged or protected
documents that were inadvertently or mistakenly produced, the receiving party
shall within ten (10) business days: (a) return or certify the destruction of all such
documents and (b) destroy work product or portions of any work product containing
or reflecting their contents. This provision shall not affect any rights of the party
returning such inadvertently produced documents to move for in camera inspection
of the documents and to compel production of the returned documents all in
accordance with Federal Rule of Evidence 502 and Federal Rule of Civil Procedure
26(b)(5)(B).
15.

Nothing herein shall affect or restrict the rights of any party with

respect to its own documents or to the information obtained or developed
independently of documents, transcripts and materials designated “Confidential”
pursuant to this Protective Order.
16.

The parties are not required to provide privilege logs for written

communications or other documents created on or after the filing of the Complaint
on October 31, 2014 for which attorney-client privilege or work-product protection is
claimed. For all other documents, the parties shall follow the Court’s standard
requirements for privilege logs.
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17.

In the event that any party is subpoenaed or served with any other

legal process by a person or entity not a party to this litigation and is thereby
requested to produce or otherwise disclose "Confidential" information that was so
designated by another party, the party subpoenaed or served as referred to in this
paragraph shall object to the production of the "Confidential" information by setting
forth the existence of this Protective Order and shall give prompt and immediate
written notice to the party who produced the "Confidential" information in this
litigation and its attorneys. Nothing in this Protective Order shall be construed
as requiring the party from whom "Confidential" information was requested to
challenge or appeal any order requiring production of "Confidential" information
covered by this Protective Order, to subject itself to any

penalties for

noncompliance with any legal process or order, or to seek any relief from this
Court. Notwithstanding the other provisions of this paragraph, a party from
whom "Confidential" documents or information are subpoenaed or otherwise
required by a governmental agency must notify the entity requesting the documents
or information of its "Confidential" status, and may ultimately produce the
documents or information to that agency without itself making objections, but shall
provide prompt and immediate written notice of any issuance of any such subpoena
to the party who disclosed the "Confidential" information and their attorneys.
18.

The Court retains the right to allow disclosure of any subject covered

by this Protective Order or to modify this Protective Order at any time in the
interest of justice.

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22.

All ethical, legal, and equitable rights and obligations not addressed in

this Protective Order remain in force.
IT IS HEREBY ORDERED.
Dated this 26th day January, 2015.

s/Cheryl R. Zwart
The Honorable Cheryl R. Zwart
United States Magistrate Judge

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EXHIBIT A
DECLARATION OF COMPLIANCE
I have read the Protective Order entered by the United States District
Court for the District of Nebraska in the action entitled McDonald Apiary, LLC v.
Starrh Bees, Inc., et al. Case No. 8:14-cv-00351. I understand the Protective Order is
a court order designed to preserve the confidentiality of information designated
under the terms of the Protective Order. I agree to comply with all provisions of
the Protective Order. I will also ensure compliance with the Protective Order by
my employees and/or agents whom I assign to work on this litigation, if any, and
will require each employee or agent to complete a Declaration of Compliance
before providing them with any "Confidential" documents or information. I also
hereby submit myself to the jurisdiction of the United States District Court for the
District of Nebraska for the purpose of enforcement of any provision of the
Protective Order.
hereby

I

appoint

[Name]
[Address

of

& Phone No.] as my

Nebraska agent for service of process in connection with this action or any
proceeding related to enforcement of this Protective Order.

Dated:
Signature

Name (Print)