Fulks et al v. Heubel Material Handling, Inc. et al

Filing 32

PROTECTIVE ORDER granting 31 Stipulation. Ordered by Magistrate Judge Cheryl R. Zwart. (JAB)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
BOBBY FULKS, JR., and
ANTOINETTE FULKS, Husband and Wife,
Plaintiffs,
vs.
HEUBEL MATERIAL HANDLING, INC.,
and NATUREWORKS, LLC,

Case No. 8:15-CV-260

Defendants,
vs.
MENLO LOGISTICS, INC.,
Third-Party Plaintiff.
PROTECTIVE ORDER REGARDING CONFIDENTIALITY
OF DOCUMENTS AND MATERIALS

RECITALS
WHEREAS plaintiffs, Bobby Fulks, Jr. and Antoinette Fulks (“Plaintiffs”), defendant,
Natureworks, LLC ("Natureworks"), and third-party plaintiff, Menlo Logistics, Inc. ("Menlo")
by and through their attorneys of record, now seek and may in the future seek to have Heubel
Material Handling, Inc. (“Heubel”) make available for inspection and/or copying, documents,
information and various materials in the above-entitled matter;
WHEREAS Heubel contends that some of these documents, this information and these
other materials are in whole or in part proprietary information, confidential business records,
and/or trade secrets, all of which constitute competitively sensitive data;
WHEREAS Heubel requires that the confidentiality of the documents and/or materials,
and the information contained in the documents and materials, be maintained, as well as the
confidentiality of the fact of the existence of the documents and materials and their description
and identity; and

WHEREAS the parties and their attorneys have agreed to comply with the letter and
intent of said confidentiality;
STIPULATION
IT IS HEREBY STIPULATED THAT:
1.

At such time as Heubel delivers to Plaintiffs, Natureworks, or Menlo or their

respective attorneys any documents or materials by way of discovery in this case, or divulge any
documents or materials or any information contained therein, Heubel shall designate as
“CONFIDENTIAL” any such documents, materials, or information Heubel claims constitute or
contain trade secrets, confidential business information, or competitively sensitive data.
2.

Plaintiffs, Natureworks, and Heubel, and their respective attorneys shall not give,

show, or otherwise directly or indirectly disclose any such confidential documents, materials or
information produced by Heubel in this action, or the substance thereof, or the existence thereof,
or any copies, prints, negatives or summaries thereof, and will not disclose the fact of the
existence thereof, to any entity or person except Plaintiffs, Natureworks, or Menlo, any agents,
experts or consultants employed by Plaintiffs, Natureworks, or Menlo, or their respective
attorneys, insurers, reinsurers, regulators, and accountants, in connection with and solely for this
action.
3.

Any and all of the parties' experts, consultants and/or counsel associated in this

litigation and any other individuals who are to have access to confidential documents, materials
and/or information subject to this Stipulation and Protective Order, or to the substance thereof, or
to any copies, prints, negatives or summaries thereof, shall be presented with a copy of this
Stipulation and Protective Order. A Declaration in the form of Exhibit “A” attached hereto shall
be executed by such experts, consultants, counsel and/or other persons who are to have access to
the confidential documents, materials and/or information, stating that they will comply with the
provisions of this Stipulation and Protective Order; provided, however, that execution by counsel
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shall be sufficient to bind the party represented by such counsel, and such party’s insurers,
reinsurers, regulators, and accountants. Such Declaration shall be returned to the attorneys who
provided access to the confidential documents, materials and/or information and be maintained
by them. Those experts, consultants, counsel, and/or other individuals who are to have access to
confidential documents, materials and/or information subject to this Stipulation and Protective
Order shall not give, show, or otherwise, directly or indirectly, disclose any of the confidential
documents, materials and/or information subject to this Stipulation and Protective Order, or the
substance thereof, or the existence thereof, or any copies, prints, negatives, or summaries thereof,
to any entity or person, except as may be necessary in preparing to render, or rendering, expert
advice or assistance in this lawsuit only, or as otherwise required by law or regulation.
4.

The parties to this action and their attorneys agree that all objections, including,

but not limited to, objections based on relevancy, materiality, and privilege, are reserved and all
questions of admissibility may be asserted at the time of trial of any action in which such
confidential documents and/or materials are used or proffered should any such party deem it
proper.
5.

Confidential documents and materials shall be so designated by prominent

markings placed on each document or item at or before the time the document or item is
divulged or produced for inspection. The parties, their attorneys, their experts, , and any other
individuals provided access to confidential documents, materials and/or information shall limit
the number of copies to that which is absolutely necessary to adequately prepare their case and
shall ensure that copies are returned to their attorneys. Any and all copies shall be treated in
accordance with the terms of this Stipulation and Protective Order.
6.

Any party claiming that information designated by the other party as confidential

has been in the possession of such first party or has been in the possession of the public prior to

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disclosure of such information in discovery herein shall have the burden of proving such earlier
possession or such public knowledge of such information.
7.

By this stipulation the parties do not waive any rights they may possess to compel

further discovery responses or to object to any further discovery requests made by either party.
8.

Any confidential documents, materials and/or information attached as an exhibit

to any deposition taken in this action, and any deposition testimony containing information from
confidential documents, materials and/or information, and any papers filed with the court in this
action, which include or summarize any deposition transcripts, testimony, or exhibits containing
confidential information, as described herein, shall be filed with restricted access protection and
a motion for court approval to do so in accordance with this court’s local rules. Similarly, any
confidential documents, materials and/or information produced during discovery and/or offered
and/or admitted into evidence during pre- trial proceedings, trial, or post-trial proceedings, and
any testimony relating to such confidential documents, materials and/or information, and any
papers, affidavits, declarations, memoranda or other pleadings filed with the Court in this action,
which attach, include, quote, or summarize any such confidential documents, materials and/or
information shall likewise be filed with restricted access protection and a motion for court
approval to do so in accordance with this court’s local rules. The use of such confidential
documents, materials and/or information during depositions, such productions, and/or offerings
and/or admissions into evidence, and/or inclusion in any papers, affidavits, declarations,
memoranda or other pleadings in this action does not waive the terms of this Stipulation and
Protective Order.
9.

Within thirty (30) days after the conclusion of the trial and any appeals in this

action and the satisfaction of any judgment, or upon the conclusion of any settlement, any
confidential documents, materials and/or information, or any papers, pleading or memorandum
purporting to reproduce or paraphrase such documents, materials and/or information, including
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all copies thereof in the court records, will be released from the court records and returned to
Heubel’s attorneys. Moreover, within thirty (30) days after conclusion of the trial and any appeals in this
action and the satisfaction of any judgment, or upon the conclusion of any settlement, Plaintiffs’
attorneys shall return to counsel for Heubel all confidential documents, materials and/or information in
the possession of the parties, their attorneys, their agents, or experts, consultants, or any other person
who has signed a Declaration in the form of Exhibit “A”, produced under the terms of this Stipulation
and Protective Order except for one copy which only one attorney for Plaintiffs, Natureworks, and
Menlo, respectively, shall keep for the sole purpose of having a complete record of the work they
conducted should Plaintiffs, Natureworks, or Menlo complain about the quality of work performed by
their respective counsel in the context of a legal malpractice or negligence case This copy shall be
returned or destroyed no later than the fourth anniversary of the dismissal of this case and counsel shall
confirm destruction in the event the single copy is not returned.

10.

Should Plaintiffs, Natureworks, or Menlo propose to include in any affidavit,

declaration, memorandum or other pleading, intended to be filed with the court in the file of this
subject action, any excerpts, quotes, paraphrases or purported summaries of any confidential
information, Plaintiffs, Natureworks, or Menlo shall file such material under restricted access
protection and move the court for approval to do so in accordance with this court’s local rules.
10.

The court shall expressly reserve the right and jurisdiction to make such further

protective orders in this matter as may be required to protect the parties and the secrecy,
confidentiality, proprietary and trade secret aspect of any information to be revealed through the
discovery process.
11.

Prior to the trial of the above matter, counsel for the parties shall seek to reach

agreement on the handling of information and documents covered by the Stipulation and Order at
trial so as to provide protection against public disclosure without in any way infringing on the

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rights of the parties to present any evidence they deem necessary at such trial, and shall submit
such agreement, or proposals if no agreement can be reached, to the court for its direction or
decision.
12.

The terms of this Stipulation and Protective Order shall remain fully active until

released by written consent of Heubel. The Court shall retain jurisdiction over the parties, this
Stipulation and Protective Order, and recipients of confidential documents, and materials for the
sole purpose of enforcing this Stipulation and Protective Order and adjudicating claims of
breaches thereof and administering damages and other remedies related thereto. The provisions of
this Stipulation and Protective Order shall continue to be binding as to the confidential
documents, materials and/or information produced pursuant to it.
13.

If, within 30 days of the production of any document or information that Heubel

has marked as Confidential and subject to the terms of this Stipulation and Protective Order, any
other party advises the Heubel that such documents or information should not have been marked
Confidential and are not subject to the terms of this Stipulation and Protective Order, the burden
will be on the Heubel, within 21 days of receipt of such notice from the Plaintiffs, to file a motion
to have the disputed documents or information covered by this Stipulation and Protective Order.
During the pendency of any such motion, the documents will be considered covered by this
Stipulation and Protective Order.

IT IS SO ORDERED.
Dated this16th day of February, 2016.
BY THE COURT

The Honorable Cheryl R. Zwart
United States Magistrate Judge
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EXHIBIT A
TO STIPULATION AND PROTECTIVE ORDER
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
BOBBY FULKS, JR., and
ANTOINETTE FULKS, Husband and Wife,
Plaintiffs,
vs.
HEUBEL MATERIAL HANDLING, INC.,
and NATUREWORKS, LLC,

Case No. 8:15-CV-260

Defendants,
vs.
MENLO LOGISTICS, INC.,
Third-Party Plaintiff.
ACKNOWLEDGMENT OF CONFIDENTIALITY
STIPULATION AND PROTECTIVE ORDER

I hereby acknowledge that I have read the Stipulation and Protective Order between
Plaintiffs and Heubel in the above-referenced matter and I agree to be bound by its terms. I also
agree to submit to the jurisdiction of the United States District Court, District of Nebraska, for
enforcement of said Order.

Dated:

Signed by:
Printed Name of Person to be Bound:
Address and Telephone Number:

STATE OF
COUNTY OF
DOCS/1602768.1

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