Lincoln Investors, LLC v. Best Buy Stores, L.P. et al

Filing 16

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

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA

LINCOLN INVESTORS, LLC,
Plaintiff,

8:14CV3133

vs.
PROTECTIVE ORDER
BEST BUY STORES, L.P. and BEST
BUY CO. INC.,
Defendants.

ARTICLE 1 - Proceedings and information governed
1.

This Order and any amendments or modifications hereto (“Protective Order”)
shall govern any document, information, or other thing furnished by any party, to
any other party, and includes non-parties who receive a subpoena in connection
with this action. The information protected includes, but is not limited to,
pleadings, answers to interrogatories, answers to requests for admission,
responses to requests for production, deposition transcripts and videotapes,
deposition exhibits, and other writings or things produced, given or filed in this
action that are designated by a party as “Confidential Information” in accordance
with the terms of this Order, as well as to any copies, excerpts, abstracts,
analyses, summaries, descriptions, or other forms of recorded information
containing, reflecting, or disclosing such information.

ARTICLE 2 - Designation and maintenance of information
2.

“Confidential Information” consists of trade secrets or commercial information
which is not publicly known or is of technical or commercial advantage to its
possessor.

3.

Documents and things produced during the course of this litigation within the

scope of Paragraph 2 above may be designated by the producing party as
containing Confidential Information by placing on each page and each thing a
legend substantially as follows: “CONFIDENTIAL.”
4.

A party may designate information disclosed at a deposition as Confidential
Information by requesting the reporter to so designate the transcript or any
portion thereof at the time of the deposition. If no such designation is made at the
time of the deposition, any party shall have thirty (30) calendar days after the
receipt of the deposition transcript to designate, in writing to the other parties and
the court reporter, whether the transcript is being designated as Confidential
Information. If no such designation is made at the deposition or within such thirty
(30) day calendar period (during which period, the transcript shall be treated as
Confidential Information, unless the disclosing party consents to less confidential
treatment of the information), the entire deposition will be considered devoid of
Confidential Information. Each party and the court reporter shall attach a copy of
any final and timely written designation notice to the transcript and each copy
thereof in its possession, custody, or control, and the portions designated in such
notice shall thereafter be treated in accordance with this Protective Order.

5.

It is the responsibility of counsel for each party to maintain materials containing
Confidential Information in a secure manner and appropriately identified so as to
allow access to such information only to such persons and under such terms as
is permitted under this Protective Order.

ARTICLE 3 - Inadvertent failure to designate/inadvertent production
6.

The inadvertent failure to designate or withhold any information as confidential or
privileged will not be deemed to waive a later claim as to its confidential or
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privileged nature, or to stop the producing party from designating such
information as confidential at a later date in writing and with particularity. The
information shall be treated by the receiving party as confidential from the time
the receiving party is notified in writing of the change in the designation.
7.

The provisions of Fed. R. Civ. P. 26 relating to the inadvertent disclosure of
privileged information shall also apply. Specifically:
a.

Upon receiving notice of inadvertent production, the receiving party
shall

promptly return,

sequester, or

destroy

the

specified

information and any copies it has and may not use or disclose the
information until the claim is resolved. If the receiving party
disclosed the information before being notified, it must take
reasonable steps to retrieve it. The producing party must preserve
the information until the claim is resolved.
b.

If the parties cannot agree as to the claim of privilege, the
producing party shall present the information to the court under
restricted access within 30 days of the notice set forth in
subparagraph (a) for a determination of the claim. Nothing herein
shall be construed to prevent a receiving party from moving the
Court for a resolution, but such motion must be made within the 30day period.

ARTICLE 4 - Challenge to designations
8.

A receiving party may challenge the producing party’s designation at any time.
Any receiving party disagreeing with a designation may request in writing that the
producing party change the designation. The producing party shall then have
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fourteen (14) days after receipt of the challenge notice to advise the receiving
party whether or not it will change the designation. If the parties are unable to
reach agreement after the expiration of this fourteen (14) day time frame, and
after the meeting and conferring on the issue, the receiving party may at any time
thereafter seek a Court order to alter the confidential status of the designated
information. Until any dispute under this Paragraph is ruled upon by the Court,
the designation shall remain in full force and effect and the information shall
continue to be accorded the confidential treatment required by this Protective
Order.
ARTICLE 5 - Disclosure and use of Confidential Information
9.

In accordance with the parties’ Confidentiality Agreement, information designated
as Confidential Information may only be used for purposes of preparation, trial,
and appeal of this action, and may only be disclosed to those party
representatives who require such material, and who are informed of the
confidential nature of the Confidential Information and their obligations to keep
such information confidential (see Exhibit A attached hereto). Confidential
Information may not be used under any circumstances for business purposes.

ARTICLE 6 - Non-party information
10.

The existence of this Protective Order shall be disclosed to any person producing
documents, tangible things, or testimony in this action who may reasonably be
expected to desire confidential treatment for such documents, tangible things, or
testimony. Any such person may designate documents, tangible things, or
testimony pursuant to this Protective Order.

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ARTICLE 7 - Filing documents with the Court
11.

Confidential Information shall be filed, if at all, under restricted access, after
obtaining leave of the Court in accordance with the Federal Rules of Civil
Procedure, and pursuant to any other applicable Court rules or procedures.

ARTICLE 8 - No prejudice
12.

Producing or receiving Confidential Information, or otherwise complying with the
terms of this Protective Order, shall not (a) operate as an admission by any party
that any particular Confidential Information contains or reflects trade secrets or
any other type of confidential or proprietary information; (b) prejudice the rights of
a party to object to the production of information or material that the party does
not consider to be within the scope of discovery; (c) prejudice the rights of a
party to seek a determination by the Court that particular materials be produced;
(d) prejudice the rights of a party to apply to the Court for further protective
orders; or (e) prevent the parties from agreeing in writing to alter or waive the
provisions or protections provided for herein with respect to any particular
information or material.

ARTICLE 9 - Conclusion of litigation
13.

Within sixty (60) days after final judgment in this action, including the exhaustion
of all appeals, or within sixty (60) calendar days after dismissal pursuant to a
settlement agreement, each party or other person subject to the terms of this
Protective Order shall be under an obligation to destroy or return to the producing
party all materials and documents containing Confidential Information, and to
certify to the producing party such destruction or return. However, outside
counsel for any party shall be entitled to retain all court papers, trial transcripts,
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exhibits, and attorney work provided that any such materials are maintained and
protected in accordance with the terms of this Protective Order.
ARTICLE 10 - Other proceedings
14.

By entering into this Order and limiting disclosure of information in this case, the
Court does not intend to preclude another court from finding that information may
be relevant and subject to disclosure in another case. Any person or parties
subject to this Protective Order that may be subject to a motion to disclose
another party’s information designated Confidential pursuant to this Protective
Order shall promptly notify that party of the motion so that it may have an
opportunity to appear and be heard on whether that information should be
disclosed.

ARTICLE 11 - Remedies
15.

It is ordered by the Court that this Protective Order will be enforced by the
sanctions set forth in Fed. R. Civ. P. 37 and such other sanctions as may be
available to the Court, including the power to hold parties or other violators of this
Protective Order in contempt. All other remedies available to any person(s)
injured by a violation of this Protective Order are fully reserved.

16.

Any party may petition the Court for good cause shown in the event such party
desires relief from a term or condition of this Order.
IT IS SO ORDERED.

Dated this 10th day of July, 2014.
BY THE COURT:
s/ Thomas D. Thalken
United States Magistrate Judge
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EXHIBIT A - ACKNOWLEDGEMENT
_________________________________________________ declares that:
I reside at _________________________________________________, in the city of
______________________, county 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 Stipulation and Protective
Order (“Order”) dated ____________________, 20__, filed in Case No. 8:14-cv-03133TDT, 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 Order. I understand that any
violation of the Order may subject me to sanctions by the Court.
I shall not divulge any documents, or copies of documents, designated as
“Confidential Information” or obtained pursuant to such Order, or the contents of such
documents, to any person other than those specifically authorized by the Order. I shall
not copy or use such documents except for the purposes of this action and pursuant to
the terms of the 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 any documents in my
possession designated as “Confidential Information,” 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 Order.
I declare under penalty of perjury that the foregoing is true and correct.

Dated: ______________, 20__

_____________________________________
(Signature)