Gilkerson v. Nebraska Colocation Centers, L.L.C.

Filing 6

ORDER granting 5 Motion for Protective Order Ordered by Magistrate Judge Cheryl R. Zwart. (Zwart, Cheryl)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
TIMOTHY A. GILKERSON,
Plaintiff,
vs.
NEBRASKA COLOCATION
CENTERS, L.L.C.,
Defendant.

)
)
)
)
)
)
)
)
)
)

Case No. 8:15-cv-00037

STIPULATED
PROTECTIVE ORDER

STIPULATED PROTECTIVE ORDER
THIS MATTER comes before the Court on the stipulation of the parties for a
Protective Order pursuant to Federal Rules of Civil Procedure 26(c). The Court, being
fully advised in the premises, finds that a Protective Order should be entered and that
the parties’ discovery activities should be governed as follows:
IT IS THEREFORE ORDERED, ADJUDGED AND DECREED that the following
provisions shall apply to all discovery conducted in this action, regardless of date:
1. This Protective Order governs the handling of designated material produced or
obtained by the parties, as well as documents and information provided by nonparties. Such material includes documents, interrogatory answers, responses to
requests for production, responses to requests for admission, deposition
testimony, and other written, recorded, or graphic matter designated as
Confidential Information. For purposes of this Protective Order, the parties may
claim confidentiality treatment and designate as “Confidential Information” any
and all documents, materials and information entitled to protection, including
specifically, but not limited to, the following:
a. Any and all medical and/or mental health records, documents,
materials or information with respect to Plaintiff;
b. Any and all employment records, financial records and tax records,
documents, materials or information with respect to Plaintiff;

c. Any and all information, material and/or recordings obtained from
Plaintiff’s cell phone, including but not limited to recordings and any
other material inadvertently obtained therefrom;
d. Defendant’s business records, documents evidencing Defendant’s
trade secrets and personnel records related to Defendant’s
employees; and
e. Documents, materials or information that are subject to any other
protective order or agreement, confidentiality order or agreement,
or any other order, ruling, or agreement preventing or limiting the
disclosure of those documents, materials, or information.
2. In addition, this Protective Order governs the terms, including time and place, for
the production of Plaintiff’s cell phone and disclosure of any material retrieved
therefrom. For purposes of this Protective Order, the parties agree that counsel
of record for Plaintiff shall make available Plaintiff’s cell phone for the limited
purpose of inspection and reproduction of any and all recordings contained
therein between Plaintiff and any employees of Defendant. Such inspection and
reproduction shall occur at the law offices of counsel of record for Plaintiff, upon
reasonable advance written notice by counsel of record for Defendant. In the
alternative, the parties agree that counsel of record for Plaintiff shall produce
Plaintiff’s cell phone to a mutually agreed upon third party for the limited purpose
of retrieving the abovementioned recordings. Any reproduction of the
abovementioned recordings produced by a third party shall be at Defendant’s
expense. In addition, counsel of record for Defendant shall provide a duplicate
copy of all reproductions produced therein to counsel of record for Plaintiff.
3. The party claiming confidentiality treatment of any Confidential Information
produced is referred to herein as the “Designating Party.”
4. Confidential Information shall include all materials described in Paragraph 1,
without the necessity of stamping or marking the documents “confidential.”
5. The contents and the substance of Confidential Information shall only be used or
copied for the purposes of conducting the instant litigation and shall not be used
or copied for any other purpose or public use thereof. No Confidential Information
Page 2 of 7

shall be revealed, except as hereinafter provided, until further Order of the Court.
This Protective Order shall not be construed as preventing any person from
making use of any information which was lawfully in possession of that person
prior to the date of this Protective Order.
6. Confidential Information shall be made available only to “Qualified Persons” and
only such Qualified Persons shall be present while discovery related to such
Confidential Information is being conducted. No other person shall have access
to Confidential Information without approval of the Designating Party or without
approval of the Court, nor shall any such other person be informed of such
Confidential Information by any person having access to it. “Qualified Persons”
as used herein means:
a. To the named parties in this action, including employees of Defendant
who are assisting counsel in this case, provided that such employees are
made aware of this Protective Order and agree in writing to abide by
same;
b. To counsel of record for the parties and their co-counsel, partners,
associates, and employees who actually are assisting in the litigation;
c. To persons required by counsel of record to assist in conducting this
litigation, including witnesses, experts and consultants retained or
employed to consult with, advise, or assist counsel of record in the
preparation or trial of this action, but only if, before disclosure, such
person is made aware of this Protective Order and agrees in writing to
abide by same.
d. To the Court and officers of the Court in accordance with the provisions of
paragraph 10;
e. To persons shown on the face of the document to have authored or
received it; and
f. To any other persons to whom the parties in writing agree.
7. Material designated as Confidential Information may be used to examine or
cross-examine any deposition or trial witness who is not otherwise authorized to
receive such material if a prior written agreement is obtained from such witness
Page 3 of 7

in conformity with paragraph 6(c) above. If any transcripts of depositions,
answers to interrogatories, motions, briefs, documents produced, or other
pleadings that are to be filed with the Court include copies of Confidential
Information subject to this Protective Order or summarize material from such
documents, the party causing the Confidential Information to be filed shall file
such pleadings or other papers to be filed with the Court in appropriate manner
that causes such Confidential Information to be protected and filed under seal. In
order to not inadvertently cause Confidential Information to be disclosed without
the appropriate seal or protection of privilege where reference to Confidential
Information is required in pleadings, briefs, motions, examination, crossexamination, or argument, it shall be by title, exhibit number, or some other
description that will not impair the protected nature of the seal of Confidential
Information. Failure to designate any document or thing shall not constitute a
waiver of any claim outside this litigation that such document or thing contains
Confidential Information. Prior to any trial in this case, counsel for the parties
shall endeavor to reach agreement on the handling of Confidential Information at
that trial, so as to provide the maximum protection possible against public
disclosure without in any way infringing on the rights of all parties to present all
evidence they deem necessary at such trial.
8. Each court reporter taking any testimony relating to Confidential Information shall
be informed of and provided with a copy of this Protective Order and shall adhere
to the provisions thereof.
9. The production of any documents subject to this Protective Order shall not be
deemed as waiver of any objection to the admissibility of such documents or their
contents that may exist under the Nebraska Rules of Evidence, and no such
waiver shall result from any answers to interrogatories filed by a party. It is the
intent of the Court that any such objections may be asserted up to and including
the time of the entry of the final pretrial order or, in the Court’s discretion, at trial.
The inadvertent disclosure of any document that is subject to a legitimate claim
that the document is subject to the attorney-client privilege or the work-product

Page 4 of 7

protection shall not waive the protection or the privilege for either that document
or for the subject matter of that document.
10. Nothing herein shall preclude a party from seeking relief from the protections
provided by this Protective Order or from challenging the designation of any
document as Confidential Information on such notice as appropriate under the
circumstances, or seeking such other relief as may be appropriate. Any party
hereto may apply to the Court by motion for modification of or release from this
Protective Order. Should counsel for the non-disclosing party object to the
designation by the Designating Party of any particular material as Confidential
Information such counsel at any time may notify counsel for the Designating
Party in writing that he or she objects to the designation, specifying with
particularity the material he or she believes has been improperly classified and
the basis for his or her contention that said document should not be designated
as Confidential Information. Upon receipt by the Designating Party of such
written objection, counsel shall negotiate and attempt in good faith to resolve the
dispute as to the designation. If counsel are unable to resolve such a dispute,
then counsel for the Designating Party may file with the Court a motion regarding
the designation of such material as Confidential Information. If counsel for the
Designating Party does not file such a motion within 30 days of service of said
objection, the documents at issue will no longer be considered Confidential
Information. Otherwise, during the pendency of any such objection, dispute, or
motion, the material in question shall remain Confidential Information and be
handled in accordance with the terms of this Protective Order.
11. All parties, their counsel and any person who receives or is afforded access to
any Confidential Information shall not suffer or permit disclosure of Confidential
Information in violation of this Protective Order and shall exercise good faith and
reasonable care to avoid unnecessary disclosure.
12. Any party who receives from a nonparty a subpoena or other process purporting
to require disclosure of Confidential Information shall forthwith provide notice
thereof to all other parties and their counsel.

Page 5 of 7

13. At the conclusion of this case, including appeal, counsel for each of the parties
shall, upon written request by the Designating Party, within 60 days of said
request, destroy (and certify such destruction) or return to the other party all of
the Confidential Information and all copies thereof that each has received
pursuant to this Protective Order, whether obtained during the course of pretrial
discovery or at trial. Notwithstanding this paragraph, counsel may for
professional purposes retain copies of transcripts, court filings, correspondence
and other attorney work product that incorporate Confidential Information, but
any such documents shall remain Confidential Information and subject to the
restrictions contained in this Protective Order. In addition, the Clerk may return to
counsel or destroy (and certify such destruction) any sealed material in its
possession upon such time as all proceedings are complete, including any final
appeals.
14. Failure to enforce any term of this Protective Order shall not constitute a waiver
of any rights or deprive the disclosing party of the right to insist thereafter upon
strict adherence to that or any other term of this Protective Order, nor shall a
waiver of any breach of this Protective Order constitute a waiver of any preceding
or succeeding breach. No waiver of a right under any provision of this Protective
Order shall occur except as provided in this document. Further, nothing herein
shall restrict the parties in any way from seeking stricter protections or refusing
production of a document because the protections afforded hereunder are
insufficient in one or more ways or from seeking to modify this Protective Order,
by way of motion or otherwise, or from seeking further and/or additional
protections from the Court regarding Confidential Information.
15. Disputes arising under this Protective Order shall be resolved by the U.S. District
Court of Nebraska. Any person or entity violating this Protective Order may be
punished for contempt of Court.
16. This Protective Order shall not terminate upon the conclusion of this action but
shall continue until the further Order of the Court. This Court retains jurisdiction of
the parties hereto indefinitely as to any dispute between them regarding improper

Page 6 of 7

use of Confidential Information pursuant to this Protective Order or until the party
claiming confidentiality has waived the same in writing.

IT IS SO ORDERED.
DATED this ______ day of February, 2015.
February 17, 2015.
BY THE COURT:
BY THE COURT:

_______________________
________________________________
CherylCheryl R. Zwart
R. Zwart
UnitedUnited States Magistrate Judge
States Magistrate Judge
Respectfully submitted and stipulated,
TIMOTHY A. GILKERSON,
Plaintiff,
/s/ Angela Forss Schmit___________
C.G. (Dooley) Jolly, #21275
Angela Forss Schmit, #25150
ADAMS & SULLIVAN, PC, LLO
1246 Golden Gate Drive, Suite 1
Papillion, Nebraska 68046-2843
Tel: [phone]
Fax: [phone]
Email: [e-mail];
[e-mail]
Attorneys for Plaintiff
NEBRASKA COLOCATION CENTERS, L.L.C.,
Defendant.
/s/ Sarah J. Millsap_______________
Christopher E. Hoyme, #18993
Sarah J. Millsap, #23840
Jackson Lewis, P.C.
10050 Regency Circle, Suite 400
Omaha, NE 68114
Tel: [phone]
Fax: [phone]
Email: [e-mail];
[e-mail]
Attorneys for Defendant

Page 7 of 7