Smith v. Werner Enterprises, Inc.

Filing 38

STIPULATED PROTECTIVE ORDER is granted 37 . Ordered by Senior Judge Lyle E. Strom. (KLF)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
EZEQUIEL OLIVARES ABARCA,
ALFREDO ALESNA, JR., DAVID
CAGLE, STEPHEN L. DAVIS, FRANK
EADS, and KENNETH J. SURMAN,
individually and on behalf of all those
similarly situated,
Plaintiffs,
v.

8:14CV319

WERNER ENTERPRISES, INC.;
DRIVERS MANAGEMENT, LLC; and
DOES 1-100 inclusive,

STIPULATED PROTECTIVE ORDER

Defendants,
and
WILLIAM SMITH, on behalf of himself,
all others similarly situated, and on behalf
of the general public,

8:15CV287

Plaintiff,
v.
WERNER ENTERPRISES, INC., d/b/a
C.L. WERNER, INC., a corporation; and
DOES 1-100, inclusive,
Defendants.
Upon the stipulation of the parties, and the Court’s acceptance of the same,
IT IS HEREBY ORDERED that a Protective Order is granted and entered as follows:
1.

Nondisclosure of Confidential Documents

(a)

"Document" means, without limiting its generality, any physical thing containing

information or any written, recorded, graphic or other matter, whether produced, printed,
reproduced, or stored on paper, cards, tapes, disks, belts, charges, film, computer storage devices
or any other medium, including but not limited to all documents necessary to the comprehension

or understandings of any designated document, such as computer code or metadata, and includes
but is not limited to originals, drafts, redrafts and each separate copy of each document.
(b)

Except with prior written consent of the party designating a document to be

protected from disclosure or as set forth in Paragraph 2 below, no document designated as
CONFIDENTIAL may be disclosed to any person or entity. A party who produces material may
designate it as CONFIDENTIAL when the party in good faith believes it contains proprietary
information, trade secrets, privileged information, or nonpublic technical, financial, personal or
business information. A document designated as CONFIDENTIAL means any document which
bears the legend CONFIDENTIAL or, if it is not feasible to label the document, which the
producing party indicates via cover letter or otherwise at the time of production is being
produced as CONFIDENTIAL.
(c)

Except with prior written consent of the party designating a document to be

protected from disclosure or as set forth in Paragraph 3 below, no document designated as
CONFIDENTIAL - FOR ATTORNEY'S EYES ONLY may be disclosed to any person or entity.
A party who produces material may designate it as CONFIDENTIAL - FOR ATTORNEY'S
EYES ONLY when the party in good faith believes it contains highly sensitive proprietary
information, trade secrets, privileged information, or nonpublic technical, financial, personal or
business information.

A document designated as CONFIDENTIAL - FOR ATTORNEY'S

EYES ONLY means any document which bears the legend CONFIDENTIAL - FOR
ATTORNEY'S EYES ONLY or, if it is not feasible to label the document, which the producing
party indicates via cover letter or otherwise at the time of production is being produced as
CONFIDENTIAL - FOR ATTORNEY'S EYES ONLY.

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(d)

A party receiving from another party any document that has been designated as

CONFIDENTIAL or CONFIDENTIAL - FOR ATTORNEY'S EYES ONLY may object in
writing to the designation and must state the reasons for such objection with respect to each item.
The parties shall then meet and confer in good faith regarding the designation. If the parties are
unable to come to an agreement regarding the designation, the party challenging the designation
shall be obligated to file a motion with the Court challenging such designation.
(e)

This Stipulated Protective Order shall be without prejudice to the right of any

party to: bring before the Court at any time the question of whether any information or
documents are confidential; object to the production of any information or documents it
reasonably considers not subject to discovery or object to their use at trial; and/or apply to or
move the Court for an order compelling production of information or documents or modifying
this Stipulated Protective Order.
2.

Permissible Disclosures of CONFIDENTIAL Documents

Notwithstanding paragraph 1, documents designated as CONFIDENTIAL may be
disclosed to:
(a)

the parties and their legal counsel in these proceedings;

(b)

partners, associates, secretaries, paralegal assistants, and employees of such

counsel to the extent reasonably necessary to render professional services in the litigation;
(c)

persons with prior knowledge of the documents designated as CONFIDENTIAL

and confidential information contained therein;
(d)

experts who will be providing professional opinions based upon a review of the

CONFIDENTIAL information;
(e)

court officials involved in this litigation, including court reporters; and

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(f)

any person designated by the Court in the interest of justice, upon such terms as

the Court may deem proper.
(g)

any other individual who has been advised of the contents of this Protective Order

and has signed a non-disclosure agreement in the form of Exhibit "A." Insofar as disclosure of
CONFIDENTIAL information to Professional Vendors, meaning persons or entities that provide
litigation support services (e.g. photocopying, videotaping, translating, preparing exhibits or
demonstrations, and organizing, storing, or retrieving data in any form or medium) and their
employees and subcontractors, it shall suffice that an authorized representative of the
Professional Vendor signs Exhibit “A.”.
3.

Permissible Disclosure of CONFIDENTIAL - FOR ATTORNEY'S EYES
ONLY Documents.

Documents designated as CONFIDENTIAL - FOR ATTORNEY'S EYES ONLY may
only be disclosed to (a) counsel for the parties; (b) partners, associates, secretaries, paralegal
assistants, and employees of such counsel, to the extent reasonably necessary to render
professional services in the litigation; (c) persons with prior knowledge of the documents
designated as CONFIDENTIAL – FOR ATTORNEY’S EYES ONLY and confidential
information contained therein; (d) experts who will be providing professional opinions based
upon a review of the CONFIDENTIAL – FOR ATTORENY’S EYES ONLY information; (e)
court officials involved in this litigation, including court reporters; (f) any person designated by
the Court in the interest of justice, upon such terms as the Court may deem proper; and (g)
Professional Vendors, meaning persons or entities that provide litigation support services (e.g.
photocopying, videotaping, translating, preparing exhibits or demonstrations, and organizing,
storing, or retrieving data in any form or medium) and their employees and subcontractors. A
party wishing to disclose documents designated as CONFIDENTIAL - FOR ATTORNEY'S
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EYES ONLY to any other person or entity must first obtain prior written consent from the
producing party or the Court.
4.

Securing Confidential Documents and Information.

Counsel for the parties must keep all documents designated as CONFIDENTIAL and all
documents designated as CONFIDENTIAL - FOR ATTORNEY'S EYES ONLY which are
received under this Stipulated Protective Order in a secure area. Prior to receiving any document
designated as CONFIDENTIAL, Plaintiff or any person identified in Paragraph 2(d) or 2(g)
shall be provided with a copy of this Stipulated Protective Order and agree to be bound by its
terms, and shall certify such agreement by signing a document of the form set forth as Exhibit
“A” to this Stipulated Protective Order.

Prior to receiving any document designated as

CONFIDENTIAL – FOR ATTORNEY’S EYES ONLY, any person identified in Paragraph 3(d)
and a person representing any Professional Vendor identified in Paragraph 3(g) shall be provided
with a copy of this Stipulated Protective Order and agree to be bound by its terms, and shall
certify such agreement by signing a document of the form set forth as Exhibit “A” to this
Stipulated Protective Order. Such persons provided CONFIDENTIAL information shall return
all CONFIDENTIAL information to Counsel upon termination of this litigation. Counsel making
disclosure to any person described herein shall retain the original executed copy of the certificate
until final resolution of this litigation.

Prior to receiving any document designated as

CONFIDENTIAL - FOR ATTORNEY'S EYES ONLY, and after written consent to such
production has been obtained from the producing party or Court, any person other than those
identified in Paragraph 3 shall be provided with a copy of this Stipulated Protective Order and
agree to be bound by its terms, and shall certify such agreement by signing a document of the
form set forth as Exhibit “A” to this Stipulated Protective Order. Such persons provided

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CONFIDENTIAL - FOR ATTORNEY'S EYES ONLY information shall return all
CONFIDENTIAL - FOR ATTORNEY'S EYES ONLY information to Counsel upon termination
of this litigation. Counsel making disclosure to any person described herein shall retain the
original executed copy of the certificate until final resolution of this litigation.
5.

Confidential Documents and Information in Depositions.

(a)

A deponent may during a deposition be shown and examined about documents

designated as CONFIDENTIAL and CONFIDENTIAL - FOR ATTORNEY'S EYES ONLY or
confidential information contained therein only if the deponent is one of the persons or entities
designated in Paragraph 2 or in compliance with the provisions of Paragraph 2 and/or Paragraph
3, as applicable. Deponents shall not retain or copy portions of the transcript of their depositions
that contain confidential information not provided by them or the entities they represent. A
deponent who is not a party or a representative of a party shall be furnished a copy of this Order
before being examined or asked to produce documents potentially subject to this Order.
(b)

Parties (and deponents) may, within 30 days after receiving a deposition

transcript, designate pages of the transcript (and exhibits thereto) as CONFIDENTIAL or
CONFIDENTIAL - FOR ATTORNEY'S EYES ONLY by underlining the portions of the pages
that are confidential and marking such pages with one of the following legends, as applicable:
(i) CONFIDENTIAL or (ii) CONFIDENTIAL - FOR ATTORNEY'S EYES ONLY. Until the
expiration of the 30-day period, the entire deposition will be treated as CONFIDENTIAL
pursuant to this Order. If no party or deponent timely designates information or testimony in a
deposition as CONFIDENTIAL or CONFIDENTIAL - FOR ATTORNEY'S EYES ONLY, then
none of the transcript or its exhibits will be treated as material protected by this Order.

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6.

Filing.

If information or documents designated as CONFIDENTIAL or CONFIDENTIAL - FOR
ATTORNEY'S EYES ONLY are included in any pleading or other document to be filed with the
Court, they shall be labeled CONFIDENTIAL or CONFIDENTIAL - FOR ATTORNEY'S
EYES ONLY and filed under seal or otherwise submitted in accordance with the Court’s rules.
Any party claiming confidentiality with respect to the information or documents may file a
motion to seal the records.
7.

Inadvertent Disclosure.

(a)

If a party, through inadvertence, produces any information or documents without

labeling or marking or otherwise designating it as CONFIDENTIAL or CONFIDENTIAL - FOR
ATTORNEY'S EYES ONLY in accordance with the provisions of this Order, the producing
party may give written notice to the receiving party that the document or thing produced is
deemed confidential and should be treated as such in accordance with the provisions of this
Order. The receiving party must treat such documents and things as confidential from the date
such notice is received. Disclosure, prior to the receipt of such notice, to persons not authorized
to receive confidential information shall not be deemed to be a violation of this Order.
(b)

If a party, through inadvertence, produces any document or information that it

believes is immune from discovery pursuant to an attorney/client privilege or the work product
privilege, such production shall not be deemed a waiver of any privilege, and the producing party
may give written notice to the receiving party that the document or information produced is
deemed privileged and that return of the document or information is requested. Upon receipt of
such written notice, the receiving party shall immediately gather the original and all copies of the
document or information of which the receiving party is aware and shall immediately return the

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original and all such copies to the producing party. The return of the document(s) and/or
information to the producing party shall not preclude the receiving party from later moving the
Court to compel production of the returned documents and/or information.
8.

Use.

(a)

Persons or entities obtaining access to documents designated as CONFIDENTIAL

or documents designated as CONFIDENTIAL - FOR ATTORNEY'S EYES ONLY and
confidential information contained therein under this Order shall use the information only for
preparation and trial of this litigation (including appeals and retrial), and shall not use such
information

for

any other

purpose,

including

business,

governmental,

commercial,

administrative, or judicial proceedings.
(b)

If another court, administrative agency, tribunal, person, or entity subpoenas or

orders production of information or documents designated as CONFIDENTIAL or
CONFIDENTIAL - FOR ATTORNEY'S EYES ONLY that a party has obtained pursuant to this
Order, that party shall promptly notify the producing party of the subpoena or production order.
Such notice must be provided in sufficient time to give the producing party, if possible, the
opportunity to participate in quashing, modifying, or otherwise responding to any compulsory
process in an appropriate and timely manner. Upon the filing by the producing party of a motion
to quash or for protective order, the subpoenaed party shall withhold production of documents
during the pendency of the motion, unless required by law (or court order) not to withhold
production.
9.

Non-Termination.

The provisions of this Order shall survive the termination of this action and continue in
full force and effect until further order of this Court. Within 60 days after final conclusion of all

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aspects of this litigation, documents designated as CONFIDENTIAL, documents designated as
CONFIDENTIAL - FOR ATTORNEY'S EYES ONLY, or documents containing confidential
information, and all copies of same, shall be returned upon written request to the party or person
that produced such documents, or, at the option of the producer, destroyed, except that counsel
may retain one copy of all such documents as part of a permanent litigation file that is otherwise
subject to the confidentiality restrictions set forth herein and the foregoing shall not be construed
as creating any obligation to disclose documents protected by the attorney-client privilege or
subject to the attorney work produce rule.
10.

Modification.

Nothing in this Stipulation and Protective Order shall prevent any party or other person
from seeking modification of this Stipulated Protective Order or from objecting to discovery that
it believes to be otherwise improper.
11.

Matters of Public Record.

This Stipulated Protective Order shall not apply to any document or materials obtained by
counsel which that counsel can demonstrate:
(a)

were already a matter of public record before its receipt by discovery; or

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(b)

became a matter of public record after discovery without fault, negligence or a

violation of this Stipulated Protective Order.
IT IS SO ORDERED.
Dated this 4th day of January, 2016.

BY THE COURT:
/s/ Lyle E. Strom
_________________________
Lyle E. Strom, Senior Judge
United States District Court

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EXHIBIT "A"
NONDISCLOSURE AGREEMENT
The undersigned, _________________________________(print or type name of person)
hereby acknowledges that he or she received a copy of the Stipulated Protective Order entered
into in the consolidated cases entitled Abarca, et. al v. Werner Enterprises, Inc. and Smith v.
Werner Enterprises, Inc., has read the Stipulated Protective Order, agrees to be bound by all the
provisions thereof, and hereby submits to the jurisdiction of the United States District Court for
the District of Nebraska for the purpose of enforcement of the terms of the Stipulated Protective
Order and the punishment of violations thereof.

Dated: __________________________
________________________________
[Signature]
________________________________
________________________________
[Address]
1257395v3

11

/s/ Elizabeth A. Culhane
Joseph E. Jones, #15970
Kathryn A. Dittrick, CA#238529, NE#23513
Elizabeth A. Culhane, #23632
500 Energy Plaza
409 South 17th Street
Omaha, Nebraska 68102
Phone: [phone]
Fax: [phone]
[e-mail]
[e-mail]
[e-mail]
ATTORNEYS FOR DEFENDANT
WERNER ENTERPRISES, INC.

/s/ Justin L. Swidler
Justin L. Swidler, Esq.
SWARTZ SWIDLER, LLC
1101 Kings Hwy N., Suite 402
Cherry Hill, NJ 08034
Tel: [phone]
Fax: [phone]
[e-mail]
ATTORNEYS FOR PLAINTIFFS
ALESNA, CAGLE, DAVIS, EADS, AND
SURNAM

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/s/ David Borgen
David Borgen (CA SBN 099354)
Laura L. Ho (CA SBN 173179)
Raymond A. Wendell (SBN 298333)
GOLDSTEIN, BORGEN,
DARDARIAN & HO
300 Lakeside Drive, Suite 1000
Oakland, CA 94612
Tel: [phone]
Fax: [phone]
[e-mail]
[e-mail]
[e-mail]
ATTORNEYS FOR PLAINTIFFS
ALESNA, CAGLE, DAVIS, EADS, AND
SURNAM
/s/James M. Sitkin
James M. Sitkin (CA SBN 107650)
LAW OFFICES OF JAMES M. SITKIN
255 California Street, 10th Floor
San Francisco, CA 94111
Tel: [phone]
[e-mail]
ATTORNEY FOR PLAINTIFFS
ALESNA, CAGLE, DAVIS, EADS, AND
SURNAM
/s/ William Turley
William Turley
David Mara
The Turley Law Office
7428 Trade Street
San Diego, CA 92121
[phone]
[e-mail]
[e-mail]
ATTORNEYS FOR PLAINTIFF SMITH

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CERTIFICATE OF SERVICE
The undersigned hereby certifies that a true and correct copy of the foregoing was
electronically filed with the Clerk of the Court for the United States District Court for the District
Court of Nebraska using the CM/ECF system this 31st day of December, 2015, which system
sent notification of such filing to counsel of record.

/s/ Elizabeth A. Culhane
1257395 v23

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