Erickson et al v. Nebraska Machinery Company

Filing 71

STIPULATED PROTECTIVE ORDER. Ordered by Magistrate Judge F.A. Gossett. (JSF)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
ERICKSON PRODUCTIONS, INC. and JIM
ERICKSON,

Case No. 8:15-cv-00248-LSC-FG3

Plaintiffs,
STIPULATED PROTECTIVE
ORDER

v.
NEBRASKA MACHINERY COMPANY,
Defendant.

The parties to this action have moved for entry of a protective order. (Filing 70.)
The Court has determined that the terms set forth herein are appropriate to protect the
respective interests of the parties, the public, and the Court.
Accordingly,
IT IS ORDERED:
1.

Scope.

All information and documents produced in the course of

discovery, including initial disclosures, all responses to discovery requests, all
deposition testimony and exhibits, other materials which may be subject to restrictions
on disclosure for good cause and information derived directly therefrom (hereinafter
collectively “Documents”), shall be subject to this Order concerning confidential
information as set forth below. The Order is also subject to the applicable rules of
procedure and local rules on matters of procedure and calculation of time periods.
2.

Form and Timing of Designation. A party may designate Documents as

confidential and restricted in use and disclosure under this Order by placing or affixing
the words “CONFIDENTIAL” on the document in a manner that will not interfere with the
legibility of the document. Documents shall be designated CONFIDENTIAL prior to or

at the time of the production or disclosure of the documents. Any document produced
by either party prior to entry of this Order may be designated and deemed confidential
subject to the terms of this Order by identifying each such document in writing within
twenty (20) days of the date this Order is entered. The designation CONFIDENTIAL
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.
Additionally, if the CONFIDENTIAL documents contain highly sensitive trade
secrets or other highly sensitive competitive or confidential information and disclosure to
another party would result in demonstrable harm to the disclosing party, then the party
may add the additional designation of “CONFIDENTIAL – ATTORNEY EYES ONLY” or
“HIGHLY CONFIDENTIAL” which shall mean the same thing. Documents designated
CONFIDENTIAL – ATTORNEY EYES ONLY or HIGHLY CONFIDENTIAL shall
constitute an additional category of protection that carries all of the protections as
documents designated CONFIDENTIAL, as well as the additional protections outlined in
¶ 6(c) below.
3.

Documents Which May be Designated CONFIDENTIAL.

Any party

may designate Documents as CONFIDENTIAL upon a good faith belief that the
documents contain information protected from disclosure by statute or that should be
protected from disclosure as confidential personal information, medical or psychiatric
information, trade secrets, personnel records, or such other sensitive commercial and/or
financial information that is not publicly available.
4.

Documents Which May be Designated CONFIDENTIAL – ATTORNEY

EYES ONLY.

Any party may designate any document as CONFIDENTIAL –

2

ATTORNEY EYES ONLY upon a good faith belief that the document contains highly
sensitive trade secrets or other highly sensitive competitive or confidential information
and disclosure to another party would result in demonstrable harm to the disclosing
party. In-house counsel or other attorney employees of the parties shall be deemed
parties for purposes of this Protective Order and shall not be deemed “attorneys” for
purposes of CONFIDENTIAL – ATTORNEY EYES ONLY designations, except one inhouse attorney for each party may have access to Documents designated
CONFIDENTIAL – ATTORNEY EYES ONLY but shall not disclose such Documents or
their contents to any other in-house counsel or attorney employee of the party in any
way.
5.

Depositions.

Deposition testimony shall be deemed CONFIDENTIAL

only if designated as such within thirty (30) days of receipt of the deposition transcript, in
writing. Such designation shall be specific as to the portions of the transcript or any
exhibit to be designated as CONFIDENTIAL. Thereafter, the deposition transcripts and
any those portions so designated shall be protected as CONFIDENTIAL, pending
objection, under the terms of this Order. However, a party may designate any portion of
the deposition as testimony is being taken, in which case any individual not authorized
to access Documents with such designation shall leave the room.
6.

Protection of Confidential Material.
(a)

General Protections.

Documents designated CONFIDENTIAL

under this Order shall not be used or disclosed by the parties, counsel for the
parties or any other persons identified in ¶ 6(b) for any purpose whatsoever other
than to prepare for and to conduct discovery and trial in this action, including any

3

appeal thereof.
(b)

Limited Third-Party Disclosures. The parties and counsel for the

parties shall not disclose or permit the disclosure of any CONFIDENTIAL
Documents to any third person or entity except as set forth in subparagraphs (1)(5). Subject to these requirements, the following categories of persons may be
allowed to review Documents that have been designated CONFIDENTIAL:
(1)

Counsel.

Counsel (or the parties and employees and

agents of counsel) who have responsibility for the preparation and
trial of the action including all in-house counsel;
(2)

Parties. Parties and employees of a party to this Order;

(3)

Court Reporters and Recorders.

Court reporters and

recorders engaged for depositions;
(4)

Witnesses. Any witnesses in a deposition;

(5)

Third-party Neutrals.

Any arbitrator, mediator, or other

alternative dispute resolution facilitator in front of whom the parties
agree to appear or are ordered to appear;
(6)

Consultants, Investigators, and Experts.

Consultants,

investigators, or experts (hereinafter referred to collectively as
“experts”) employed by the parties or counsel for the parties to
assist in the preparation and trial of this action or proceeding, but
only after such persons have completed the certification contained
in Attachment A, Acknowledgment of Understanding and
Agreement to Be Bound; and

4

(7)

Others by Consent. Other persons only by written consent

of the producing party or upon order of the Court and on such
conditions as may be agreed or ordered. All such other persons
shall execute the certification contained in Attachment A,
Acknowledgement of Understanding and Agreement to Be Bound.

(c)

Disclosure

of

Documents

Designated

CONFIDENTIAL

–

ATTORNEY EYES ONLY: Counsel for the parties shall not disclose any
documents designated CONFIDENTIAL – ATTORNEY EYES ONLY to any other
person unless authorized by the producing party in writing, by the terms of this
Order, or by further order of the Court.
(d)

Control of Documents.

Counsel for the parties shall take

reasonable and appropriate measures to prevent unauthorized disclosure of
documents designated as CONFIDENTIAL pursuant to the terms of this Order,
and shall take all necessary and reasonable precautions to prevent the
unauthorized

or

inadvertent

disclosure

of

documents

designated

CONFIDENTIAL – ATTORNEY EYES ONLY to the parties or their employees.
Counsel shall maintain the originals of the forms signed by persons
acknowledging their obligations under this Order for a period of one (1) year after
dismissal of the action, the entry of final judgment and/or the conclusion of any
appeals arising therefrom.
(e)

Copies. Prior to production to another party, all copies, electronic

images, duplicates, extracts, summaries or descriptions (hereinafter referred to
collectively as “copies”) of Documents designated as CONFIDENTIAL under this

5

Order, or any individual portion of such a document, shall be affixed with the
designation CONFIDENTIAL if the word does not already appear on the copy.
All such copies shall thereafter be entitled to the protection of this Order. The
term “copies” shall not include indices, electronic databases, or lists of
documents provided that these indices, electronic databases, or lists do not
contain substantial portions or images of the text of confidential documents or
otherwise disclose the substance of the confidential information contained in
those documents.
(f)

All information derived from Documents designated pursuant to this

Order is also considered CONFIDENTIAL or CONFIDENTIAL – ATTORNEY
EYES ONLY as the Documents from which it was derived.
(g)

Inadvertent Production. Inadvertent production of any document

or information without a designation of CONFIDENTIAL shall be governed by the
applicable rules of procedure.
7.

Filing of CONFIDENTIAL Documents Under Seal. The Court highly

discourages the manual filing of any pleadings or documents under seal.

To the

extent that a brief; memorandum or pleading references any document marked as
CONFIDENTIAL, then the brief, memorandum or pleading shall refer the Court to the
particular exhibit filed under seal without disclosing the contents of any confidential
information as provided for by local rule and related filing procedures.
(a)

Before any Document designated pursuant to the terms herein is

filed under seal with the Clerk, the filing party shall first consult with the party
that produced and designated the Document as CONFIDENTIAL to determine

6

whether, with the consent of that party, the document or a redacted version of
the document may be filed with the Court not under seal.
(b)

Where agreement is not possible or adequate, before a Document

is filed with the Clerk, it shall be placed in a sealed envelope marked
CONFIDENTIAL, displaying the case name, docket number, a designation of
what the document is, the name of the party in whose behalf it is submitted, and
name of the attorney who has filed the documents on the front of the envelope.
A copy of any document filed under seal shall also be delivered to the judicial
officer’s chambers.
(c)

To the extent that it is necessary for a party to discuss the

contents of any confidential information in a written pleading, then such portion
of the pleading may be filed under seal with leave of Court.

In such

circumstances, counsel shall prepare two versions of the pleadings, a public
and a confidential version.

The public version shall contain a redaction of

references to Documents. The confidential version shall be a full and complete
version of the pleading and shall be filed with the Clerk under seal as above. A
copy of the unredacted pleading also shall be delivered to the judicial officer’s
chambers.
(d)

If any party notifies another party that they intend or need to file

one or more of the Protected Documents in response to a motion previously
filed, the party who filed such motion specifically agrees to provide whatever
extension or continuance is necessary to file such response to allow for
compliance with paragraph. Specifically, upon reasonable request, the parties

7

agree to provide an extension or continuance for the filing of any response to
any motion to provide appropriate time to comply with applicable law regarding
filing such documents under seal.
8.

Challenges by a Party to Designation as Confidential.

All CONFIDENTIAL and CONFIDENTIAL – ATTORNEY EYES ONLY
designations are subject to challenge by any party at any time. A party shall not be
obligated to challenge the propriety of a CONFIDENTIAL or CONFIDENTIAL –
ATTORNEY EYES ONLY designation at the time such designation is made, and a
failure to do so shall not preclude a subsequent challenge to the designation. In the
event that a party shall at any time object to the designation of any Documents as
CONFIDENTIAL or CONFIDENTIAL – ATTORNEY EYES ONLY, the challenging
party shall provide the designating party with written notice of such objection, stating
the grounds for such objection. Within five (5) business days, the designating party
shall set forth in writing the basis for its designation of each challenged document.
Thereafter, the parties shall attempt to resolve the dispute in good faith, including by
having a meet-and-confer no later than five (5) business days following the
designating party’s service of the written basis for the designation of each challenged
Document. If the dispute over the confidentiality designations is not resolved within
five (5) business days of said meet-and-confer, the designating party, or any other
party that supports the confidentiality designations at issue, may move or apply to the
Court for a ruling on the issue. The designating party or other party supporting the
confidentiality designations shall have the burden of establishing that the Documents
are properly designated CONFIDENTIAL or CONFIDENTIAL – ATTORNEY EYES

8

ONLY. If the designating party or such other party fails to move for a ruling on a
challenged designation within five (5) business days of the meet-and-confer, the
designation shall be waived and the Documents will no longer be deemed designated
as CONFIDENTIAL or CONFIDENTIAL – ATTORNEY EYES ONLY.

Neither this

Order nor any party’s agreement to entry of this Order shall affect the allocation of
burdens on such a motion or provide any basis for supporting a designation of any
particular document for protection hereunder.

Until the Court has issued a ruling

declassifying the Documents in question, such material shall continue to be treated in
accordance with its designation in connection with this Order.
9.

Action by the Court.

Applications to the Court for an order relating to any Documents designated
shall be by motion under the applicable rules of procedure and local rules of the Court
and any other procedures set forth in the presiding judge’s standing orders or other
relevant orders. Nothing in this Order or any action or agreement of a party under this
Order limits the Court’s power to make any orders that may be appropriate with
respect to the use and disclosure of any documents produced or used in discovery or
at trial.
10.

Use of Confidential Documents or Information at Trial.

The Court shall enter a separate order regarding the use of Documents at trial
not inconsistent with the protections on use and disclosure provided herein.
11.

Obligations on Conclusion of Litigation.
(a)

Order Remains in Effect. Unless otherwise agreed or ordered,

this Order shall remain in force after dismissal or entry of judgment not subject

9

to further appeal or after any applicable appeals.
(b)

Disposition of Documents. Within thirty days after dismissal or

entry of final judgment not subject to further appeal, all Documents designated
under this Order, including copies as defined in ¶ 6(e), and all information
derived therefrom shall be returned to the producing party unless: (1) the
document has been offered into evidence or filed without restriction as to
disclosure; OR (2) the party in possession of such document(s) elects to
destroy the Documents and certifies to the producing party that it has done so.
Notwithstanding the above requirements to return or destroy Documents,
counsel may retain attorney work product, including an index which refers or
relates to Documents, so long as that work product does not duplicate verbatim
substantial portions of the text or images of confidential documents. This work
product shall continue to be CONFIDENTIAL under this Order. An attorney may
use his or her work product in subsequent litigation provided that its use does
not disclose or use Documents.
(c)

Return of Documents Filed under Seal. After dismissal or entry

of final judgment not subject to further appeal, the Clerk may elect to return to
counsel for the parties or, after notice, destroy Documents filed or offered at trial
under seal or otherwise restricted by the Court as to disclosure.
12.

Order Subject to Modification.

This Order shall be subject to

modification by the Court on its own motion or on motion of a party or any other
person with standing concerning the subject matter.
13.

Persons Bound. This Order shall take effect when entered and shall be

10

binding upon all counsel and their law firms, the parties, and persons made
subject to this Order by its terms.

DATED December 30, 2015.
BY THE COURT:
S/ F.A. Gossett
United States Magistrate Judge

11

ATTACHMENT A
ACKNOWLEDGMENT
AND
AGREEMENT TO BE BOUND
The undersigned hereby acknowledges that he/she has read the Protective
Order dated ______ 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 Court herein in matters relating to the Protective Order and
understands that the terms of the Protective Order obligate him/her to use documents
designated CONFIDENTIAL and CONFIDENTIAL – ATTORNEY EYES ONLY in
accordance with the Order solely for the purposes of the above captioned action, and
not to disclose any such documents or information derived directly therefrom to any
other person, firm or concern.
The undersigned acknowledges that violation of the Protective Order may
result in penalties for contempt of court.
Name:

______________________________________

Job Title:

______________________________________

Employer:

______________________________________

Business Address: _______________________________
________________________________
________________________________

Date: _______________________

________________________________
Signature

12