Logsdon v. BNSF Railway Company et al

Filing 100

STIPULATED PROTECTIVE ORDER granting 99 Joint Motion for Protective Order. Ordered by Magistrate Judge Cheryl R. Zwart. (JAB)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
STEVEN C. LOGSDON,
Plaintiff,
vs.
BNSF RAILWAY COMPANY, a
corporation,
Defendant.

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CASE NO. 8:15 CV 00232

STIPULATED PROTECTIVE
ORDER

Pending before the Court is the Parties’ joint motion for a Protective Order. The
Court finds that good cause exists for the entry of a Protective Order to protect the
confidentiality of certain information exchanged during the course of this lawsuit. As
such the Court grants the Parties’ joint Motion for a Protective Order and enters the
following Stipulated Protective Order:
During discovery in this case, Plaintiff has requested - via Request for Production
of Documents No. 35, 36, 48 and 50 (and to the extent such documents are responsive
to nos. 31, 33, and 41) from his First and Second Set of Requests for Production of
Documents (“RFPs”) - documents and other information that contains “Confidential
Information” (defined below) that should be kept confidential. To prevent injury through
improper disclosure of this type of information, to allow discovery to proceed without
delay, and to avoid disputes regarding the confidential nature of such information, the
Court finds that good cause exists under Rule 26(c) of the Federal Rules of Civil
Procedure for the following protections and procedures. This Agreed Protective Order
only applies to documents being produced by BNSF in response to Plaintiff’s

First Request for Production Nos. 35, 36, 48 and 50 (and to the extent such
documents are responsive to nos. 31, 33, and 41).
1. Definitions.
1.1 Confidential Information.
The term “Confidential Information” shall mean the following: non-public financial,
private employee, and confidential business information of the Parties that is maintained
in a confidential manner, including personal employee performance reviews and
company financial performance; non-public information regarding Defendant’s clients
and employees that is maintained in a confidential manner; non-public personnel
records that are maintained in a confidential manner; proprietary information; trade
secrets; and other confidential research, development or commercial information within
the meaning of Fed.R.Civ.P. 26(c)(1)(G).
2. Initial Designations.
2.1 Produced Documents.
If a party believes that any written, recorded, or graphic material, tangible items,
electronically stored information, or any other form of information that it produces in this
action pursuant to discovery, subpoena, Court Order, written discovery request, or
agreement of the Parties, including specifically the information requested by the RFPs,
contains Confidential Information, it may designate such material as confidential by
stamping the words “Confidential - Subject to Protective Order” (or some other
reasonable notation calling attention to the sensitive and/or proprietary nature of the
document) on the document or written discovery material. Materials designated as
“Confidential” and all documents, including court filings, which quote from, summarize,

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or comment on any such materials shall be treated as confidential as set forth in this
Agreed Protective Order and shall be used solely for the prosecution or defense of this
matter (including any appeals). Subject to a party’s right to object, the designation of
documents as “Confidential - Subject to Protective Order” means that the document or
documents so designated qualify for the protections herein.
2.2 Production in Electronic Form.
If a producing party elects to produce in electronic form documents or other
information that contain Confidential Information, the producing party shall ensure the
electronic documents or information contain designations of Confidential Information
pursuant to Subparagraph 2.1, so that if any electronic information is printed, the
designation will appear on the printed copy.
2.3 Depositions.
Deposition testimony shall be treated as containing Confidential Information
under the terms of this Protective Order if so designated at any time on the record
during the deposition or otherwise in writing within thirty (30) days after receipt of a
deposition transcript. The party making such a designation will indicate the pages or
sections of the transcript that are to be treated as confidential. The designation of
documents as “Confidential - Subject to Protective Order” means that the testimony or
transcript portions so designated qualify for the protections herein. All parties in
possession of a copy of a designated deposition transcript shall appropriately label or
mark it as containing Confidential Information.

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3. Handling of Confidential Information.
3.1 Authorized Disclosures.
The parties shall not disclose or disseminate documents or other information
designated Confidential Information to any person except the following:
a) the parties in the above-captioned matter, including current or former
employees and/or agents of the parties that are assisting with this litigation;
b) counsel of record and other counsel for the parties and counsel’s employees
and/or agents that are assisting with this litigation;
c)

outside experts and consultants working with counsel for the parties, which
are requested by counsel, in good faith, to provide assistance in connection
with this action and who execute an agreement in the form attached hereto
as Exhibit A;

d) the Court (including court reporters, stenographic reporters and other Court
personnel);
e) any other person as to whom the producing party agrees in writing; and
f)

any witness to whom disclosure is necessary for the prosecution or defense
of the action, and who executes an agreement in the form attached hereto as
Exhibit A.

3.2 Maintenance of Agreements.
The written agreements required before authorized disclosure of Confidential
Information to the persons or entities described in subparagraph 3.1(c) and (f) shall be
maintained by counsel for the disclosing party until ninety (90) days after the conclusion
of this case.
3.3 Unauthorized Disclosures.
If Confidential Information is disclosed to any person or entity other than in the
manner authorized by this Protective Order, the party responsible for the unauthorized
disclosure shall immediately notify the designating party in writing. Without prejudice to

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any other rights and remedies of the designating party, the responsible party shall make
every reasonable effort to obtain the return of the Confidential Information and to
prevent any further disclosure of the Confidential Information.
3.4 Use of Own Confidential Information.
Notwithstanding any other provisions of this Agreed Protective Order, it shall
have no effect on, and shall not limit or restrict, any party’s use of documents from its
own files, its own Confidential Information, or information that a party already has in its
possession or has access to under preexisting agreements.
3.5 Use and Disclosure of Public Domain Materials.
This Agreed Protective Order governs use, dissemination, and disclosure of
properly designated Confidential Information only. It does not affect in any way the
rights of the parties to use, disseminate, or disclose materials legitimately obtained
either from the public domain or from a source other than the discovery process in this
case.
3.6 Court Filings.
To the extent a party seeks to file Confidential Information with the Court, it shall
file a motion seeking leave to file the particular document under seal pursuant to
NECivR 5.3.
4. Use of Confidential Information at Pretrial Hearings.
At least 48 hours prior to any party’s use of Confidential Information in a pretrial
hearing, that party shall notify the Court and the designating party and shall identify the
Confidential Information to the designating party. The designating party shall have the

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right to request that the Court take steps to ensure the continued confidentiality of the
Confidential Information.
5. Objections to Designations.
Any party may at any time notify the other party, or, if applicable, a non-party, in
writing, or in the case of a deposition, either upon the record of a deposition or in writing
later, of its objection to the designation of any material as Confidential Information. In
that event, the challenging and designating parties shall attempt to resolve any disputes
on an informal basis. If the dispute cannot be resolved, either the designating party or
challenging party may, on reasonable notice, apply for an appropriate ruling from the
Court. The material in issue shall continue to be treated as Confidential Information until
the Court orders otherwise.
6. Other Disclosures.
If counsel for a party receiving Confidential Information desires to disclose it to
any person other than those referred to in Paragraph 3, such counsel shall give ten (10)
days written notice to counsel for the designating party. Such written notice shall specify
the information counsel wishes to disclose and the identity of each person or categories
of persons to whom such disclosure is sought to be made. In that event, the parties
shall attempt to resolve the request informally. If the request cannot be resolved, the
requesting party, upon reasonable notice, may move for an order of the Court permitting
disclosure of such material to such person. The Confidential Information shall not be
disclosed unless and until the Court orders that it is non-confidential or orders that its
disclosure to any such person is permissible.

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7. No Implied Waivers.
(a) The entry of this Agreed Protective Order shall not be interpreted as a waiver
of the Parties’ right to object, under applicable law, to the production of information in
response to discovery requests, to the use or admission of any information at a pretrial
hearing or trial, or to a requested inspection of documents, things, or facilities.
(b) The inadvertent failure by a producing party to designate a document or
testimony or other information as Confidential Information shall not constitute a waiver
of such party’s right to subsequently designate the document, testimony, or other
information when the error is discovered. Any such designation shall be effective when
communicated in writing to counsel for the receiving party within thirty (30) days of
production. After the expiration of thirty (30) days, the producing party may seek relief
from the Court. No party will be deemed to have violated any provision of this Agreed
Protective Order by treating or handling such information as non-confidential prior to the
receipt of written notification of the failure to designate the information as Confidential
Information. In addition, the written notification does not impose an obligation to retrieve
any documents or tangible things that have otherwise been properly disseminated to
any third party prior to receipt of the written notification. If, however, the documents or
tangible things at issue can reasonably be retrieved so that all copies or versions can be
properly designated, the Parties agree to make good-faith efforts to do so.
8. Effective Length.
During and after the conclusion of this litigation, including any appeals, the
restrictions on communication and disclosure set forth in this Agreed Protective Order
shall continue to be binding upon the Parties and all other persons to whom Confidential

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Information has been communicated or disclosed pursuant to the provisions of this
Agreed Protective Order or any other order of any applicable court of competent
jurisdiction.
9. Handling Upon Conclusion of Case.
Within sixty (60) days after the final termination of this proceeding, including any
proceedings in any appellate court, each party, upon the request of the other party, shall
destroy or return to the designating party all Confidential Information designated by the
other party (including any such information disclosed to third persons), except for any
attorneys’ work product and except for any such material that has become part of the
record. A party that destroys Confidential Information subject to this paragraph shall
certify in writing that such destruction has been completed.
10. No Other Rights Affected.
Nothing in this Agreed Protective Order shall prevent any party from seeking
amendments broadening or restricting the rights of access to or the use of Confidential
Information or otherwise modifying this Agreed Protective Order, and this Agreed
Protective Order may be amended by filing a motion seeking leave of the Court to do
so. Nothing in this Order shall be construed to preclude a party who has received
Confidential Information pursuant to this Order from producing such information in
response to valid subpoena or order issued by a court or agency of competent
jurisdiction in connection with any other action, upon the giving of ten (10) days notice to
the party who has designated the material as confidential, or upon an appropriate order.

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11. Miscellaneous.
(a) Counsel for any party producing Confidential Information shall have the right
to exclude from any deposition any person (other than the deponent, the plaintiff, court
reporter, and any videographer), who is not allowed access by this Protective Order to
Confidential Information. This right to exclude shall be applicable only to those periods
of examination or testimony discussing or disclosing Confidential Information.
(b) A producing party shall Bates number or provide another unique identifying
number for each page of each document that is designated as Confidential Information
and produced in this case.
(c) The procedures established by this Stipulated Protective Order are intended
to be cumulative and in addition to any party’s right to seek further or different protection
or relief from the Court regarding any issue addressed herein. This Stipulated Protective
Order is entered without prejudice to the rights of any party to apply to the Court at any
time for modification of, or exception to, this Stipulated Protective Order.
(d) The Court’s jurisdiction to enforce this Stipulated Protective Order terminates
upon final disposition of this case. A party may, however, file a motion to seek leave to
reopen the case to enforce the provisions of this Stipulated Protective Order.
(e) By entering into this Stipulated Protective Order at this time, the parties do
not agree or concede that any documents identified and produced as “Confidential
Information” (defined above) in discovery shall remain as such at the trial of this matter.
The provisions of this Stipulated Protective Order do not extend to or address the
introduction at trial of documents previously identified as “Confidential Information.”

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IT IS THEREFORE ORDERED that the Parties’ joint request for a Stipulated
Protective Order is GRANTED and a Stipulated Protective Order, pursuant to
Fed.R.Civ.P. 26(c), is entered as set forth herein.
IT IS ALL SO ORDERED.
Dated in Lincoln, Nebraska this ______ day of ______________, 2016.
3rd
August
________________________
Judge Cheryl Zwart
U.S. Magistrate-Judge
U.S.D.C. for the District of
Nebraska

Agreed to and approved by:
CHOD LAW, LLC


SATTLER & BOGEN, LLP

By:

By:
/s/ Nichole S. Bogen
Nichole S. Bogen, # 22552
Tyler K. Spahn, #25308
SATTLER & BOGEN LLP
701 P Street, Suite 301
The Creamery Building
Lincoln, NE 68508
Tel: [phone]
Fax: [phone]
[e-mail]
[e-mail]
ATTORNEYS FOR DEFENDANT

/s/ Jeffrey E. Chod
Jeffrey E. Chod
P.O. Box 17727
Denver, CO 80217-7727
[phone] [cell]
[phone] [fax]
[e-mail]
Donald F. D’Antuono
SCHNELL, D’ANTUONO LAW FIRM
1120 Lincoln Street, Suite 1304
Denver, CO 80203
[e-mail]
ATTORNEYS FOR PLAINTIFF

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EXHIBIT A
AGREEMENT TO ABIDE BY TERMS OF STIPULATED PROTECTIVE ORDER
1.

I

have

read

the

Stipulated

Protective

Order

entered

on

______________________, 20___ in Case No. 8:15 cv 00232, currently pending in, or
on appeal from, the United States District Court for the District of Nebraska, and a copy
of it has been provided to me.
2. I understand the provisions of the Stipulated Protective Order, and agree to
comply with and to be bound by those provisions.
3. I will keep in confidence, and will not divulge to anyone other than those
permitted to have access under the terms of the Stipulated Protective Order, or copy or
use except solely for the purposes of this case, any documents, testimony or other
information designated as Confidential Information (as defined in the Stipulated
Protective Order) pursuant to the terms of the Stipulated Protective Order.
4. I will return all Confidential Information to counsel who provided the
Confidential Information to me, or destroy it, within thirty (30) days after I am notified
that this case has concluded. If Confidential Information is destroyed, I will certify in
writing that the destruction has been completed.

Signature: ___________________________________

Printed Name: __________________________________

Date: __________________________________

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