Sunderman v. Owen Industries, Inc.
PROTECTIVE ORDER granting 57 parties' joint motion for protective order. Ordered by Magistrate Judge Thomas D. Thalken. (TRL)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
JOHN R. SUNDERMAN,
OWEN INDUSTRIES, INC., an Iowa
Case No. 8:15cv-00374
) STIPULATED PROTECTIVE ORDER
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:
Nondisclosure of Confidential Documents and/or Information.
"Document" means, without limiting its generality, any physical thing containing
information or any written, electronic, 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, and further includes pleadings, memoranda, discovery responses and other
documents filed, served or exchanged in the above captioned action.
“Information” shall mean all knowledge or information, regardless of the form in
which such knowledge or information is communicated, and including the contents of any
written or electronic documents, testimony or other communications.
All Documents and Information produced in discovery (including in response to
subpoenas to third parties) shall be used only for purposes of preparation and trial in this action
or other litigation (if any) between the parties (including appeals and retrial) and shall not be
used for any other purpose, except: as may be agreed or consented to by the parties on request
with respect to particular Documents and Information (with consent not being unreasonably
withheld); for internal legitimate business purposes without disclosure to third parties; and in
response to a subpoena or similar request in a court or administrative proceeding.
Except with prior written consent of the party designating a Document or
Information to be protected from disclosure or as set forth in Paragraph 2 below, no Document or
Information designated as CONFIDENTIAL may be disclosed to any person or entity. A party
(including a third party subpoena recipient) who produces a Document or Information, or
concerning whom a Document or Information (produced by others) relates, 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 or Information designated as CONFIDENTIAL means any document
which bears the legend CONFIDENTIAL and the Information contained therein, or, if it is not
feasible to label the Document or Information, which the producing party indicates via cover
letter or otherwise at the time of production, provision or communication is being produced,
provided or communicated as CONFIDENTIAL, or which (and from the date of such indication)
the non-producing designating party indicates as CONFIDENTIAL.
A party receiving from another party any Document or Information that has been
designated as CONFIDENTIAL may in good faith 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 objection and designation. If the parties are unable to come to
an agreement regarding the objection and designation, the party challenging the designation shall
be obligated either to withdraw the objection or to file a motion with the Court challenging such
designation, with the designating party retaining the burden of demonstrating the appropriateness
of the designation. The party objecting to the designation shall treat the Document and/or
Information whose designation is objected to as CONFIDENTIAL in accordance with this Order
until there is a ruling by this Court sustaining the objection or the designation.
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 (or other discovery) are confidential or are appropriate for protective relief; object to
the production of any Information or Documents (or other discovery) the party 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 or seeking other protective relief concerning any
Information or Documents (or other discovery) or modifying this Stipulated Protective Order.
Permissible Disclosures of CONFIDENTIAL Documents and/or Information.
Notwithstanding Paragraph 1 above, a Document or Information designated as
CONFIDENTIAL may be disclosed to:
the parties, their employees, and their legal counsel (including in-house counsel)
in these proceedings;
partners, associates, secretaries, paralegal assistants, and employees of such
counsel to the extent reasonably necessary to render professional services in the litigation;
persons with prior knowledge of the Document or Information designated as
CONFIDENTIAL and all confidential information contained therein;
experts who will be consulted to provide professional opinions to the parties or
their legal counsel based upon a review of the CONFIDENTIAL Document or Information and
their staff to the extent reasonably necessary to render expert services in the litigation;
court officials involved in this litigation, including court reporters;
any person designated by the Court in the interest of justice, upon such terms as
the Court may deem proper;
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, provided that an authorized representative of the Professional Vendor has signed
a Nondisclosure Agreement in the form attached hereto as Exhibit “A”;
any other individual (including former employees of any of the parties and their
counsel) whom counsel in good faith believes is a bona fide potential or actual witness and has
Information or knowledge pertinent to the prosecution or defense of this action, and who has
been advised of the contents of this Protective Order and has signed a Nondisclosure Agreement
in the form attached hereto as Exhibit "A."
Securing Confidential Documents and Information.
Counsel for the parties must keep all Documents and Information designated as
CONFIDENTIAL under this Stipulated Protective Order in a secure area. Prior to receiving any
Document or Information designated as CONFIDENTIAL, any person identified in Paragraphs
2(d), 2(g), or 2(h) above 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 Nondisclosure
Agreement in the form attached hereto as Exhibit "A." Such persons provided CONFIDENTIAL
Documents shall return all CONFIDENTIAL Documents to Counsel upon termination of this
litigation, including any appeals. Counsel making disclosures to any person described herein
shall retain the originally executed Nondisclosure Agreement until final resolution of this
litigation, including any appeals.
Confidential Documents and Information in Depositions.
During a deposition, a deponent may be shown and/or examined about
Documents or Information designated as CONFIDENTIAL only if the deponent is one of the
persons or entities designated in Paragraph 2 and/or in compliance with the provisions of
Paragraph 2. Deponents shall not retain or copy portions of the transcripts of their depositions
designated as CONFIDENTIAL or that contain confidential information not provided by them or
their employers or the entities they represent. A deponent who is not a party or an employee or
other representative of a party shall be furnished a copy of this Order before being examined or
asked to produce Documents or provide Information potentially subject to this Order.
If a party’s counsel reasonably believes that a question asked at a deposition
contains or could elicit CONFIDENTIAL information, then counsel may notify all other counsel
on the record and thereafter only those persons permitted by this Stipulated Protective Order to
receive such Information may be present during the disclosure or discussion of such Information.
Parties (including third-party subpoena recipients and deponents) may, within
fourteen (14) calendar days after receiving a deposition transcript, designate pages of the
transcript (and exhibits thereto) as CONFIDENTIAL by underlining the portions of the pages
that are confidential and marking such pages. Until the expiration of the fourteen (14) calendar
days period, the entire deposition will be treated as CONFIDENTIAL pursuant to this Order. If
no party (including a third-party subpoena recipient) or deponent timely designates Information
(including exhibits) or testimony in a deposition as CONFIDENTIAL, then none of the transcript
or its exhibits will be treated as material protected by this Order.
Should a deposition witness refuse to sign or agree to the Nondisclosure
Agreement attached hereto as “Exhibit A,” the requirements of “Exhibit A” may be satisfied by
the court reporter or any counsel or other officer of the court reading this Order aloud to the
witness and indicating on the record that it was read to the witness.
Filing and Use at Trial.
If Information or Documents designated as CONFIDENTIAL are included in any
pleading or other document to be filed with the Court, they shall be labeled CONFIDENTIAL
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
Unless otherwise directed by this Court, nothing in this Order shall preclude the
use of Documents or Information designated CONFIDENTIAL at hearings or trial before this
Court. The parties agree, however, subject to the discretion of this Court, that they will request
the Court to maintain the confidentiality of any such Documents or Information during all court
proceedings, including trial and any appeal in this action.
If a party (including a third-party subpoena recipient), through inadvertence or
otherwise, produces any Information or Documents without labeling or marking or otherwise
designating it as CONFIDENTIAL in accordance with the provisions of this Order, the
producing party may give written notice to the receiving party that the Document or Information
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 Information as confidential
from the date such notice is received. Disclosure, prior to the receipt of such notice, to persons
not authorized to receive confidential Documents or Information shall not be deemed to be a
violation of this Order.
If a party (including a third-party subpoena recipient), through inadvertence or
otherwise, produces any Document or Information that it believes is immune from discovery
pursuant to the attorney-client privilege and/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 original and all such copies
to the producing party, and the Information contained therein shall not be used or relied upon in
any way by the receiving party other than for the purpose of challenging before this Court the
assertion of privilege. 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.
If another court, administrative agency, tribunal, person, or entity subpoenas or orders
production of Information or Documents designated as CONFIDENTIAL that a party has
obtained pursuant to this Order, that party shall promptly notify the producing and designating
party of the subpoena or production order. Such notice must be provided in sufficient time to
give the producing and designating 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 or designating party of a motion to quash or for
protective order, the subpoenaed party shall withhold production of Documents or Information
during the pendency of the motion, unless required by law (or court order) not to withhold
The provisions of this Order shall survive the termination of this action, including any
appeals, and continue in full force and effect until further order of this Court. Within 60 days
after final conclusion of all aspects of this litigation, including any appeals, Documents
designated as CONFIDENTIAL or Documents containing CONFIDENTIAL Information, and
all copies of same, shall be returned upon written request to the party or person that produced or
designated as CONFIDENTIAL such Documents or Information, or, at the option of the
receiving party, shall be destroyed, and with the receiving party providing within a reasonable
time a written certification of such destruction, 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 or Information protected by the attorney-client privilege or
subject to the attorney work product rule.
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.
Matters of Public Record.
This Stipulated Protective Order shall not limit use or disclosure of any Document or
was already a matter of public record before its receipt by discovery in this
litigation or through the pleadings, memoranda or other exchanges of information in the course
of this litigation; or
became a matter of public record after its receipt without fault, negligence or a
violation of this Stipulated Protective Order.
Further, nothing in this Order shall limit any party or person in his, her or its use of his,
her or its own Documents and Information or from disclosing his, her or its own Documents and
IT IS SO ORDERED.
Dated this _____ day of __________________, 2016.
BY THE COURT:
s/ Thomas D. Thalken
United States Magistrate Judge Thomas Thalken
OWEN INDUSTRIES, INC.,
_/s/ Brian J. Brislen ________________
Brian J. Brislen, #22226
Robert J. Murray, #12995
Shivani Sharma, #25959
Lamson, Dugan & Murray, LLP
10306 Regency Parkway Drive
Omaha, Nebraska 68114-3708
(402) 397-7824 (Fax)
ATTORNEYS FOR DEFENDANT
JOHN R. SUNDERMAN,
/s/Robert T. Cannella__________________
Robert T. Cannella, #10579
Gerald L. Friedrichsen, #15898
Fitzgerald, Schorr, Barmettler &
Brennan, P.C., L.L.O.
10050 Regency Circle, Suite 200
Omaha, NE 68118- 3794
(402) 342-1025 (Fax)
ATTORNEYS FOR PLAINTIFF
The court case of John R. Sunderman v. Owen Industries, Inc., Case No. 8:15cv-00374,
was filed in the United States District Court for the District of Nebraska. I am being given access
to certain documents and information pertaining to that lawsuit. I understand that those
documents and that information are subject to a Stipulated Protective Order entered by the court
in that lawsuit and I acknowledge receiving a copy of that Stipulated Protective Order. I agree
that I will not use any of those documents or that information, or disclose any of those
documents or that information to other individuals or entities, except as may be allowed by the
Stipulated Protective Order. I agree that I will be subject to the jurisdiction of the United States
District Court for the District of Nebraska for the purposes of enforcing and remedying any
violation of this Nondisclosure Agreement.
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