Valley Boys, Inc. v. Allstate Insurance Company et al
PROTECTIVE ORDER granting 59 Motion for Protective Order. Ordered by Magistrate Judge F.A. Gossett. (JSF)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
VALLEY BOYS INC. d/b/a
VALLEY BOYS ROOFING,
ALLSTATE INSURANCE COMPANY,
Case No. 8:14-CV-03148
The parties have agreed to the terms of a Confidentiality (Protective) Order. (Filing 59.)
Pursuant to this agreement,
IT IS HEREBY ORDERED as follows:
All materials produced or adduced in the course of discovery, including initial
disclosures, responses to discovery requests, deposition testimony and exhibits, and information
derived directly therefrom (hereinafter collectively “documents”), shall be subject to this Order
concerning Confidential Information as defined below. This Order is subject to the Local Rules
of the District of Nebraska and the Federal Rules of Civil Procedure on matters of procedure and
calculation of time periods.
As used in this Order, “Confidential Information” means information designated
as “CONFIDENTIAL” by the producing party who in good faith believes that the information
designated falls within one or more of the following categories: (a) information prohibited from
disclosure by statute; (b) information that reveals trade secrets; (c) research, technical,
commercial or financial information that the party has maintained as confidential; (d) medical
information concerning any individual; (e) personal information of individual persons, including
policyholders; (f) income tax returns (including attached schedules and forms), W-2 forms and
1099 forms; (g) proprietary business information or research; or (h) personnel or employment
records of a person who is not a party to the case. Information or documents that are available to
the public may not be designated as Confidential Information.
A party may designate a document as Confidential Information for
protection under this Order by placing or affixing the word “CONFIDENTIAL” on the
document and on all copies in a manner that will not interfere with the legibility of the
document. As used in this Order, “copies” includes electronic images, duplicates, extracts,
summaries or descriptions that contain the Confidential Information. The marking
“CONFIDENTIAL” shall be applied prior to or at the time of the documents are produced or
disclosed. Applying the marking “CONFIDENTIAL” to a document does not mean that the
document has any status or protection by statute or otherwise except to the extent and for the
purposes of this Order. Any copies that are made of any documents marked
“CONFIDENTIAL” shall also be so marked, except that indices, electronic databases or lists of
documents that do not contain substantial portions or images of the text of marked documents
and do not otherwise disclose the substance of the Confidential Information are not required to
The designation of a document as Confidential Information is a
certification by an attorney that the document contains Confidential Information as defined in
Deposition testimony is protected by this Order if designated as “CONFIDENTIAL” on
the record at the time the testimony is taken. Such designation shall be specific as to the
portions that contain Confidential Information. Deposition testimony so designated shall be
treated as Confidential Information protected by this Order.
Any party may also designate deposition testimony as “CONFIDENTIAL” by notifying
all parties in writing within fourteen (14) business days after receipt of the final transcript. All
deposition testimony taken in this case shall be treated as Confidential Information until the
expiration of the fourteenth day after the transcript is delivered to any party. This provision shall
not prevent a witness from reviewing his or her deposition for purposes of review and signing
and/or correcting that deposition during the fourteen (14) day period after receipt of the
Protection of Confidential Material.
General Protections. Confidential Information shall not be used or
disclosed by the parties, counsel for the parties or any other persons identified in subparagraph
(b) below for any purpose whatsoever other than in this litigation, including any appeal thereof.
Limited Third-Party Disclosures. The parties and counsel for the parties
shall not disclose or permit the disclosure of any Confidential Information to any third person or
entity except as set forth in subparagraphs (i)-(ix) below. Subject to these requirements, the
following categories of persons may be allowed to review Confidential Information:
Counsel for the parties and employees of counsel who have
responsibility for the action;
Individual parties and employees of a party but only to the extent
counsel determines in good faith that the employee’s assistance is
reasonably necessary to the conduct of the litigation
Persons identified within the document in which the information is
The Court and its personnel;
Court reporters and recorders engaged for depositions;
Those persons specifically engaged for the limited purpose of
making copies of documents or organizing or processing
documents, including outside vendors hired to process
electronically stored documents;
Consultants, investigators, or experts employed by the parties or
counsel for the parties to assist in the preparation and trial of this
action but only after such persons have completed the certification
contained in Attachment A, Acknowledgment of Understanding
and Agreement to Be Bound;
(viii) Witnesses in this action to whom disclosure is reasonably
necessary. Witnesses shall not retain a copy of documents
containing Confidential Information, except witnesses may receive
a copy of all exhibits marked at their depositions in connection
with review of the transcripts. Pages of transcribed deposition
testimony or exhibits to depositions that are designated as
Confidential Information pursuant to the process set out in this
Order must be separately bound by the court reporter and may not
be disclosed to anyone except as permitted under this Order.
The author or recipient of the document (not including a person
who received the document in the course of litigation); and
Other persons only by written consent of the producing party or
upon order of the Court and on such conditions as may be agreed
Control of Documents. Counsel for the parties shall make reasonable
efforts to prevent unauthorized or inadvertent disclosure of Confidential Information. Counsel
shall maintain the originals of the forms signed by persons acknowledging their obligations
under this Order for a period of three years after the termination of the case.
Inadvertent Failure to Designate.
An inadvertent failure to designate a document as Confidential Information does
not, standing alone, waive the right to so designate the document.
If a party designates a
document as Confidential Information after it was initially produced, the receiving party, on
notification of the designation, must make a reasonable effort to assure that the document is
treated in accordance with the provisions of this Order. No party shall be found to have violated
this Order for failing to maintain the confidentiality of material during a time when that material
has not been designated Confidential Information, even where the failure to so designate was
inadvertent and where the material is subsequently designated Confidential Information.
Filing of Confidential Information.
All Confidential Information filed with the Court shall be filed in an
appropriate sealed container on which shall be written the caption of this action, the nature of
the contents, the identify of the party filing the materials and the term “CONFIDENTIAL”
and a statement in substantially the following form:
Contains Confidential Information
Subject to Protective Order
Open Only as Directed by the Court
No Greater Protection of Specific Documents.
Except on privilege grounds not addressed by this Order, no party may withhold
information from discovery on the ground that it requires protection greater than that afforded
by this Order unless the party moves for an order providing such special protection.
Challenges by a Party to Designation as Confidential Information.
The designation of any material or document as Confidential Information is
subject to challenge by any party. The following procedure shall apply to any such challenge.
Meet and Confer. A party challenging the designation of Confidential
Information must do so in good faith and must begin the process by conferring directly with
counsel for the designating party. 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 designation, and, if no change
in designation is offered, to explain the basis for the designation. The designating party must
respond to the challenge within five (5) business days.
Judicial Intervention. A party that elects to challenge a confidentiality
designation may file and serve a motion that identifies the challenged material and sets forth in
detail the basis for the challenge. Each such motion must be accompanied by a competent
declaration that affirms that the movant has complied with the meet and confer requirements of
this procedure. The burden of persuasion in any such challenge proceeding shall be on the
designating party. Until the Court rules on the challenge, all parties shall continue to treat the
materials as Confidential Information under the terms of this Order.
Action by the Court. Applications to the Court for an order relating to
materials or documents designated Confidential Information shall be by motion. Nothing in this
Order or any action or agreement of a party under this Order limits the Court’s power to make
orders concerning the disclosure of documents produced in discovery or at trial.
Use of Confidential Documents or Information at Trial.
Nothing in this Order shall be construed to affect the use of any document,
material, or information at any trial or hearing. A party that intends to present or that anticipates
that another party may present Confidential Information at a hearing or trial shall bring that issue
to the Court’s and parties’ attention by motion or in a pretrial memorandum without disclosing
the Confidential Information. The Court may thereafter make such orders as are necessary to
govern the use of such documents or information at trial.
Confidential Information Subpoenaed or Ordered Produced in Other
If a receiving party is served with a subpoena or an order issued in other
litigation that would compel disclosure of any material or document designated in this action as
Confidential Information, the receiving party must so notify the designating party, in writing,
immediately and in no event more than three court days after receiving the subpoena or order.
Such notification must include a copy of the subpoena or court order.
The receiving party also must immediately inform 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 subpoena or order is the subject of this Order. In addition, the receiving party
must deliver a copy of this Order promptly to the party in the other action that caused the
subpoena to issue.
The purpose of imposing these duties is to alert the interested persons to
the existence of this Order and to afford the designating party in this case an opportunity to try to
protect its Confidential Information in the court from which the subpoena or order issued. The
designating party shall bear the burden and the expense of seeking protection in that court of its
Confidential Information, 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.
The obligations set forth in this paragraph remain in effect while the party has in its possession,
custody or control Confidential Information by the other party to this case.
Challenges by Members of the Public to Sealing Orders.
A party or interested member of the public has a right to challenge the sealing of
particular documents that have been filed under seal, and the party asserting confidentiality will
have the burden of demonstrating the propriety of filing under seal.
Obligations on Conclusion of Litigation.
Order Continues in Force. Unless otherwise agreed or ordered, this
Order shall remain in force after dismissal or entry of final judgment not subject to further
Obligations at Conclusion of Litigation. Within thirty (30) days after
dismissal or entry of final judgment not subject to further appeal, all Confidential Information
and documents marked “CONFIDENTIAL” under this Order, including copies as defined in
Paragraph 3(a), shall be returned to the producing party unless: (1) the document has been
offered into evidence or filed without restriction as to disclosure; (2) the parties agree to
destruction to the extent practicable in lieu of return; 1 or (3) as to documents bearing the
notations, summations, or other mental impressions of the receiving party, that party elects to
destroy the documents and certifies to the producing party that it has done so.
Retention of Work Product and one set of Filed Documents.
Notwithstanding the above requirements to return or destroy documents, counsel may retain (1)
attorney work product, including an index that refers or relates to designated Confidential
Information so long as that work product does not duplicate verbatim substantial portions of
Confidential Information, and (2) one complete set of all documents filed with the Court
including those filed under seal. Any retained Confidential Information shall continue to be
protected under this Order. An attorney may use his or her work product in subsequent
litigation, provided that its use does not disclose or use Confidential Information.
The parties may choose to agree that the receiving party shall destroy documents containing
Confidential Information and certify the fact of destruction, and that the receiving party shall not
be required to locate, isolate and return e-mails (including attachments to e-mails) that may
include Confidential Information, or Confidential Information contained in deposition
transcripts or drafts or final expert reports.
Deletion of Documents filed under Seal from Electronic Case Filing
(ECF) System. Filings under seal shall be deleted from the ECF system only upon order of the
Order Subject to Modification.
This Order shall be subject to modification by the Court on its own initiative or
on motion of a party or any other person with standing concerning the subject matter.
No Prior Judicial Determination.
This Order is entered based on the representations and agreements of the parties
and for the purpose of facilitating discovery. Nothing herein shall be construed or presented as a
judicial determination that any document or material designated Confidential Information by
counsel or the parties is entitled to protection under Rule 26(c) of the Federal Rules of Civil
Procedure or otherwise until such time as the Court may rule on a specific document or issue.
This Order shall take effect when entered and shall be binding upon all counsel of
record and their law firms, the parties, and persons made subject to this Order by its terms.
IT IS SO ORDERED.
DATED January 21, 2016.
BY THE COURT:
S/ F.A. Gossett
United States Magistrate Judge
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
VALLEY BOYS INC. d/b/a
VALLEY BOYS ROOFING,
ALLSTATE INSURANCE COMPANY,
Case No. 8:14-CV-03148
ACKNOWLEDGEMENT AND AGREEMENT TO BE BOUND
The undersigned hereby acknowledges that he/she has read the Confidentiality Order
in the above-captioned action and attached
hereto, understands the terms thereof, and agrees to be bound by its terms. The undersigned
submits to the jurisdiction of the United States District Court for the District of Nebraska in
matters relating to the Confidentiality Order and understands that the terms of the
Confidentiality Order obligate him/her to use materials designated as Confidential Information
in accordance with the Order solely for the purposes of the above-captioned action, and not to
disclose any such Confidential Information to any other person, firm or concern.
The undersigned acknowledges that violation of the Confidentiality Order may result in
penalties for contempt of court.
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