Oluyole v. Yahoo!, Inc.

Filing 58

PROTECTIVE ORDER granting 57 Joint Motion for Entry of Stipulated Protective Order. Ordered by Magistrate Judge F.A. Gossett. (SMN)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
TUMININU J. OLUYOLE,

Case No. 8:15-cv-27

Plaintiff,

STIPULATED PROTECTIVE ORDER

vs.
YAHOO!, INC.,
Defendant.
Pursuant to Fed. R. Civ. P. 26(c) and the Joint Motion for Entry of Stipulated
Protective Order [Doc. No. 57] submitted jointly by Plaintiff, Tumininu J. Oluyole
(“Plaintiff”), and Defendant, Yahoo!, Inc. (“Yahoo!”), it is hereby ORDERED as follows:
1.

Definitions. For purposes of this Order, “party” and “parties” shall mean

the named parties to this litigation.
2.

Materials Deemed Confidential. If a party or an attorney for a party (or a

third-party subject to subpoena issued by the Court in this case or an attorney for
such third-party) has a good-faith belief that certain documents or other materials or
information (including digital information), subject to disclosure pursuant to a
discovery or other request, are confidential and should not be disclosed other than in
connection with this action pursuant to Rule 26(c) of the Federal Rules of Civil
Procedure, the party or attorney shall mark each such document or other materials as
“CONFIDENTIAL.”

“CONFIDENTIAL” documents, materials, or information may

include, but are not limited to: trade secret, proprietary, confidential, or otherwise
sensitive business documents or information; benefits information; personnel records,
policies, and procedures; documents containing personal or financial information for
current or former Yahoo employees not parties to this action; and documents and

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information otherwise subject to confidential treatment pursuant to Rule 26(c) of the
Federal Rules of Civil Procedure.
3.

Designation of Depositions as Confidential. All depositions or portions of

depositions taken in this action that contain trade secrets or confidential information
may be designated “Confidential” and thereby obtain the protections accorded other
“Confidential” documents. Confidentiality designations for depositions shall be made
either on the record during the deposition or by written notice to the other party
within thirty (30) days of receipt of the deposition transcript. Unless otherwise agreed,
depositions shall be treated as “Confidential” during the thirty (30) day period
following receipt of the deposition transcript. The deposition of any witness (or any
portion of such deposition) that encompasses Confidential information shall be taken
only in the presence of persons who are qualified to have access to such information.
4.

Redesignation of Materials as Confidential.

In the event a party

inadvertently produces confidential documents or materials without the designation
“CONFIDENTIAL”, it shall not be deemed a waiver of the confidential nature of the
documents or materials provided that the producing party notifies all other parties of
the inadvertent production within twenty-one (21) days after the producing party’s
production.

In the event the disclosing party notifies the receiving party that a

document or thing was produced without the appropriate confidentiality designation,
the disclosing party shall provide the receiving party with replacement copies of the
documents or things bearing the appropriate “CONFIDENTIAL” designation.

Upon

receipt of the replacement copies, the receiving party shall retrieve and return or
destroy all copies of the previously produced documents or things.

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5.

Inadvertent Disclosure. The following procedures shall govern instances

in which a party has inadvertently produced or disclosed materials for which any
privilege or protection is claimed, including but not limited to the attorney-client
privilege or work-product protection:
a.

The disclosing party must notify the receiving party within twenty-

one (21) days, in writing or on the record, after a document has been
inadvertently produced.

Upon receiving the appropriate notice from the

disclosing party that privileged and/or work-product material has been
inadvertently produced, all such information, and all copies thereof, shall be
returned to the disclosing party within five (5) business days of receipt of such
notice and the receiving party shall not use such information for any purpose,
until further order of the Court. The receiving party shall also attempt, in good
faith, to retrieve and return or destroy all copies of the document in electronic
format, and shall provide the disclosing party with written notice that all copies
of the document have been returned or destroyed. If the receiving party intends
to file a motion under paragraph 5(b), below, it may maintain a copy of the
document for purposes of filing such a motion.
b.

If the receiving party contests the privilege or work-product

designation by the disclosing party, it shall file a motion to compel production
of the document or information.

The receiving party shall not assert as a

ground for compelling production the facts or circumstances of the inadvertent
production, unless it is asserted that privilege or work-product protection was
knowingly and intentionally waived.
c.

The disclosing party retains the burden of establishing the

privileged or protected nature of any document or information that is claimed

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as privileged or otherwise protected. Nothing in this paragraph shall limit the
right of any party to petition the Court for an in camera review of such
documents or information.
d.

Upon notification of inadvertent disclosure from the disclosing

party, the receiving party shall place any analyses, memoranda, or notes which
were internally generated based upon such inadvertently-produced information
in sealed envelopes if in hard copy form, or shall segregate such analyses,
memoranda, or notes if in electronic form.
e.

Pursuant to Rule 502 of the Federal Rules of Evidence, if the

receiving party does not contest that the information is privileged or otherwise
protected or if the Court so rules, then the inadvertent disclosure of the
information shall not be deemed a waiver or impairment of any claim of
privilege or protection, including, but not limited to, the attorney-client
privilege, the protection afforded to work-product materials or the subject
matter thereof, as to the inadvertently disclosed document or information and
any related material, and such documents and information shall be destroyed
or returned to the producing party.
6.
party

Challenging Designation of Confidentiality. If a party or an attorney for a

disputes

whether

a

document

or

other

material

should

be

marked

“CONFIDENTIAL”, the parties and/or attorneys shall attempt to resolve the dispute
between themselves. If they are unsuccessful, the party or attorney challenging the
confidentiality designation shall do so by filing an appropriate motion.
7.

Distribution of Confidential Materials.

No party or attorney or other

person subject to this Protective Order shall distribute, transmit, disclose or otherwise

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divulge any document or other material which is marked “CONFIDENTIAL”, or the
contents thereof, except in accordance with this Stipulated Protective Order.
8.

Persons Entitled to View Materials.

Any document or other material

which is marked “CONFIDENTIAL,” or the contents thereof may only be disclosed to
the following individuals:
a.

the parties;

b.

counsel for the parties to this action who are involved in the

conduct of this action, together with the partners, associates, secretaries,
paralegals, assistants, agents and employees of such counsel;
c.

the Court and any court officials involved in this action (including

persons such as court reporters and persons operating video recording
equipment at depositions);
d.

any person designated by the Court in the interest of justice, upon

such terms as the Court may deem proper;
e.

persons noticed for depositions or designated as trial witnesses,

but only to the extent reasonably necessary to prepare them to testify;
f.

outside consultants or experts retained for the purpose of

assisting counsel in this action who sign the undertaking attached hereto as
Attachment “A”, but only to the extent reasonably necessary for them to provide
such services in this action; and
g.

any person or entity who created the document or previously

received the document in a lawful, legitimate manner.
9.

Use of Confidential Materials. Any document or other material which is

marked “CONFIDENTIAL”, or the contents thereof, may be used by a party, or a
party’s attorney, expert witness, consultant, or other person to whom disclosure is

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made pursuant to and in compliance with the terms of this Protective Order, only for
the purpose of this action. Nothing contained in this Protective Order shall prevent
the use of any document or other material which is marked “CONFIDENTIAL”, or the
contents thereof, as evidence at trial or on summary judgment motion, or at any
deposition taken in this action, as long as the party using the document or other
material complies with the other provisions of this Protective Order.

The parties,

attorneys, and other persons to whom disclosure is made shall take appropriate
measures in court filings and proceedings to protect the confidentiality of any
document or other material which is marked “CONFIDENTIAL.” A party seeking to file
materials marked “CONFIDENTIAL” under seal must follow the procedures set forth in
Local Rule NECivR 7.5.

In the alternative, the parties may file documents and

pleadings under restricted access pursuant to Local Rule NECivR 5.3(c).

If the

pleading or document is already subject to this Protective Order, no additional formal
motion to file under restricted access is required. Any documents or pleadings to be
filed with the Court must bear the caption of this litigation and pleading or document
title and such other description as will allow the Court to readily identify the
documents or information or portions thereof so designated.
10.

Return or Destruction of Confidential Materials After Litigation. At the

conclusion of the proceedings in this action, the recipient of all documents and
materials marked “CONFIDENTIAL”, including any copies or extracts or summaries
thereof, or documents containing or derived from information taken therefrom, shall
submit a written certification that all “CONFIDENTIAL” materials have been destroyed.
Notwithstanding the other provisions of this paragraph, counsel for each party may
retain up to two (2) complete sets of the pleadings, trial transcripts, exhibits admitted
in any deposition, documents filed with the court, deposition transcripts (including

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deposition exhibits), and discovery responses and shall remain bound to preserve the
confidentiality of such documents in accordance with the provisions of this Protective
Order. Nothing herein shall require legal counsel for any party to return or destroy
correspondence,

including

electronic

email

correspondence,

which

has

“CONFIDENTIAL” materials attached thereto.
11.

Subpoenas and Legal Process.

In the event that any of the parties is

subpoenaed or is served with any other legal process by a person not a party to this
litigation, and is 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 such information
by setting forth the existence of this Protective Order and shall give prompt written
notice to the party who produced the information in this litigation. 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 such 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 may produce the documents or
information to that agency without itself making objections, but shall provide prompt
written notice of any such subpoena to the party who disclosed the “CONFIDENTIAL”
information.
12.

No Effect on Other Issues. Nothing contained in this Protective Order

and no action taken pursuant to it shall prejudice the right of any party to contest the

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alleged relevancy, admissibility, or discoverability of the documents or other materials
marked “CONFIDENTIAL” and disclosed pursuant to this Protective Order.
13.

Waiver. To be effective, any waiver under this Protective Order must be

made in writing or on the record in a deposition or court proceeding.

Dated this 7th day of July, 2016.
BY THE COURT:
s/ F.A. Gossett, III
United States Magistrate Judge

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ATTACHMENT “A”

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
TUMININU J. OLUYOLE,

Case No. 8:15-cv-27

Plaintiff,
vs.

CERTIFICATION

YAHOO!, INC.,
Defendant.
I, the undersigned individual, hereby certify that I have read the attached
Stipulated Protective Order in Tumininu J. Oluyole v. Yahoo!, Inc., Case No. 8:15-cv-27,
dated ___________________ _____, 2016 (the “Order”), and I agree that I will not reveal
“CONFIDENTIAL” documents or information to, or discuss such with, any person,
entity, or party who is not entitled to receive “CONFIDENTIAL” documents and
information in accordance with the Order. I will use “CONFIDENTIAL” documents and
information only for the purposes of facilitating the prosecution or defense of the
action and not for any business or other purpose. I will keep all “CONFIDENTIAL”
documents and information confidential in accordance with this Order. I hereby agree
that the Order applies to me, that I will comply with the Order, and that I will submit
to the jurisdiction of the United States District Court for the District of Nebraska for
the purposes of any proceedings relating to the Order.
Dated: __________________________

___________________________________
Signature
___________________________________
Printed Name
___________________________________
Company
___________________________________
Address

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