Gilkerson v. Nebraska Colocation Centers, L.L.C.
ORDER granting in part and denying in part 91 Stipulation for protective order. The court has stricken paragraph 15 of the proposed protective order regarding unending federal jurisdiction over allegations that the order was violated. But in all other respects, the order is entered as drafted by the parties. Ordered by Magistrate Judge Cheryl R. Zwart. (Zwart, Cheryl)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
TIMOTHY A. GILKERSON,
Case No. 8:15-cv-00037-JMG-CRZ
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:
This Protective Order governs the handling of designated material produced or
obtained by the parties, as well as documents and information provided by non-parties. Such
material includes documents, interrogatory answers, responses to requests for production, 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, the following:
a. Schedule of monthly contractual discounts and refunds from July 1, 2015 to
b. Schedule of uncollectable accounts receivables written off from July 1, 2015 to
c. Schedule of monthly “pass through” expenses for July 1, 2015 to present.
d. Federal and State Tax Income Tax Returns and schedules for 2015 and 2016.
e. Monthly balance sheets and income statements for July 1, 2015 to present.
f. Monthly accounts receivable aging reports from July 1, 2015 to present.
g. General ledger details for July 1, 2015 to present.
h. Schedule of all rents paid for July 1, 2015 to present.
i. All compensation bonus calculations prepared for any and all bonuses paid to
employees and others for July 1, 2015 to present.
j. All financial projections prepared for budgeting, financing, or any other purposes
which were prepared at any time from July 1, 2015 to present.
k. All EBITDA calculations prepared at any time from February 3, 2016 to present.
The party claiming confidentiality treatment of any Confidential Information
produced is referred to herein as the “Designating Party.”
Confidential Information shall include all materials described in Paragraph 1,
without the necessity of stamping or marking the documents “confidential.”
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 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.
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 counsel of record for the parties and their co-counsel, partners, associates, and
employees who actually are assisting in the litigation;
b. To the below designated persons required by counsel of record to assist in
conducting this litigation, 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. Such designated persons are:
i. Bradley T. Larson, CPA/ABV, CFF, expert for Plaintiff; and
ii. Ernest Preston Goss, Ph.D., expert for Defendants.
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c. To the Court and officers of the Court in accordance with the provisions of
d. To any other persons to whom the parties in writing agree.
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 in conformity with paragraph 5(b)
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, cross-examination, 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.
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
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.
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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.
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
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.
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
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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
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
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.
October 19, 2017.
BY THE COURT:
Cheryl R. Zwart
United States Magistrate Judge
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