Superior Services, Inc. v. Universal Warranty Corp. et al

Filing 45

PROTECTIVE ORDER granting the parties' Motion for Protective Order. Member Cases: 8:15cv396, 8:15cv398, 8:15cv400, 8:15cv401, 8:15cv402. Ordered by Magistrate Judge Thomas D. Thalken. (TRL)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
SUPERIOR SERVICES, INC..,

8:15CV396

Plaintiff,
v.

PROTECTIVE ORDER

UNIVERSAL WARRANTY CORP. and
ALLY INSURANCE HOLDINGS INC.,
Defendants.
ACI DEVELOPMENT CORPORATION,

8:15CV398

Plaintiff,
v.
UNIVERSAL WARRANTY CORP., MIC
GENERAL INSURANCE CORP. and ALLY
INSURANCE HOLDINGS, INC.,
Defendants.
M.S.E. DISTRIBUTING, INC.,

8:15CV400

Plaintiff,
v.
UNIVERSAL WARRANTY CORP. and
ALLY INSURANCE HOLDINGS INC.,
Defendants.
THOMAS HANLON, D/b/a DEALER
DIRECT,
Plaintiff,
v.
UNIVERSAL WARRANTY CORP. and
ALLY INSURANCE HOLDINGS INC.,
Defendants.

8:15CV401

AUTOMOTIVE DEVELOPMENT
SERVICES, INC.,

8:15CV402

Plaintiff,
v.
UNIVERSAL WARRANTY CORP. and
ALLY INSURANCE HOLDINGS INC.,
Defendants.

1.

APPLICATION.

This Protective order limits the use or disclosure of

documents, deposition testimony, or other discovery designated as “Confidential” or
"Confidential – Attorneys Eyes Only" and it applies to:

(a) documents, deposition

testimony and electronic data designated to be subject to this Protective Order as set forth
below; (b) information, copies, extracts, and complete or partial summaries of documents,
deposition testimony and electronic data so designated; (c) answers to interrogatories,
responses to requests for admissions, responses to requests for production, and initial
disclosures (and exhibits to any of these materials) which are designated by any party as
“Confidential” or "Confidential – Attorneys Eyes Only" under this order; and (d) portions of
briefs, affidavits, memoranda, or any other writing filed with the Court (and exhibits thereto)
which include any materials or information identified in (a), (b), or (c) of this paragraph.
2.

CONFIDENTIAL DOCUMENTS. A party producing documents or electronic

data in discovery may stamp as “Confidential” or so designate by written notice with
reference to the applicable Bates numbers, any document, disc or other media which in
good faith it believes contains confidential or proprietary personal or business information
and/or trade secrets. A party producing documents or electronic data in discovery may
stamp as “Confidential – Attorneys Eyes Only” or so designate by written notice with
reference to the applicable Bates numbers, any document, disc or other media which in
good faith it believes in good faith contains confidential or proprietary personal or business
information and/or trade secrets that would present a significant risk of substantial harm if
disclosed to the receiving party. In the event a producing party designates a document as
“Confidential – Attorneys Eyes Only,” then concurrently with the production of the
document so marked, the producing party shall produce a redacted version of the
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document that may be disclosed to the receiving party. A party which has produced
documents prior to the entry of this Order may, within ten days of the entry of this Order,
inform the party to whom documents were produced that certain documents (identified by
Bates numbers) already produced are designated as “Confidential” or "Confidential –
Attorneys Eyes Only." Further dissemination and disclosure of documents designated as
“Confidential” or "Confidential – Attorneys Eyes Only" and the information in documents so
designated shall be limited as set forth in this Protective Order.
3.

DEPOSITION TRANSCRIPTS. Any party may designate as “Confidential”

or "Confidential – Attorneys Eyes Only" any portion of deposition testimony which in good
faith it believes meets the requirements of “Confidential” or Confidential – Attorneys Eyes
Only” as described in ¶ 2 of this Order. The party shall so designate the portions of the
deposition transcript either at the time of the deposition or within thirty (30) days following
that party’s counsel’s receipt of the transcript of the deposition from the reporter. Each
reporter participating in any such deposition shall be informed about and provided with a
copy of this Protective order and shall agree to be bound by its terms. Each such reporter
shall designate the portions of deposition transcripts designated as “Confidential” or
"Confidential – Attorneys Eyes Only" with the legend “Confidential—Designated by
Counsel” or "Confidential – Attorneys Eyes Only – Designated by Counsel."
4.

EFFECT OF CONFIDENTIAL DESIGNATION.

Documents or electronic

data designated “Confidential” and deposition testimony so designated will be retained by
counsel and will not be used by counsel or by any party for any purpose other than this
litigation, and will not be disclosed except pursuant to court order entered after notice, to
anyone except:
a.

Counsel who have signed this Order approving it as to form and
content, attorneys who are affiliated with the law firms of counsel who
have signed this Order, retained outside counsel, in-house counsel,
law clerks, secretaries or paralegals directly involved in the conduct of
this litigation;

b.

Individual parties and officers, directors, employees and agents of
corporate parties;

c.

Experts and consultants retained by either of the parties for purposes
of assisting in the preparation or presentation of claims or defenses,

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but only to the extent reasonably necessary to prepare them to testify
or when reasonably necessary during their testimony;
d.

Any deposition or trial witness, during the course of deposition or trial
testimony, when necessary to the testimony of such witness;

e.

Clerical and data processing personnel involved in the production,
reproduction, organizing, filing, coding, cataloging, converting,
storing, retrieving, and review of Confidential information, to the
extent reasonably necessary to assist the other persons identified in
this Paragraph;

f.

Any person who authored, received, or who otherwise has already
been provided access to the document in the ordinary course of
business;

g.

The parties' insurers, reinsurers, ceding companies, and their
affiliates;

h.

Court, court personnel, court reporters and similar personnel.

Prior to receiving or being shown such documents or deposition testimony, persons falling
in the categories listed above in subparagraphs (c) and (d) shall be shown a copy of, and
shall agree in writing, or on the record during trial or deposition, to be bound by the terms
of this Protective Order.
5.

EFFECT

OF

CONFIDENTIAL

–

ATTORNEYS

EYES

ONLY

DESIGNATION. Documents or electronic data designated “Confidential – Attorneys
Eyes Only” and deposition testimony so designated will be retained by counsel and will
not be disclosed to the parties, nor used by counsel or by any party for any purpose
other than this litigation, and will not be disclosed except pursuant to court order entered
after notice, to anyone except:
a.

Counsel who have signed this Order approving it as to form and
content, attorneys who are affiliated with the law firms of counsel who
have signed this order, retained outside counsel, in-house counsel,
law clerks, secretaries or paralegals directly involved in the conduct of
this litigation;

b.

Court reporters, stenographers, or video operators at depositions,
or court proceedings at which Confidential – Attorneys Eyes Only
Information is disclosed;

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c.

Experts and consultants retained by either of the parties for purposes
of assisting in the preparation or presentation of claims or defenses in
this action, but only to the extent reasonably necessary to prepare
them to testify or when reasonably necessary during their testimony;

d.

Any deposition or trial witness, and their counsel, during the course of
deposition or trial testimony, when necessary to the testimony of such
witness;

e.

Clerical and data processing personnel involved in the production,
reproduction, organizing, filing, coding, cataloging, converting,
storing, retrieving, and review of Confidential Attorneys Eyes Only
information, to the extent reasonably necessary to assist the other
persons identified in this Paragraph;

f.

Any person who authored, received, or who otherwise has already
been provided access to the "Confidential – Attorneys Eyes Only"
information in the ordinary course of business;

g.

Such other persons as the parties may mutually agree upon in
writing.

Prior to receiving or being shown such documents or deposition testimony, persons falling
in the categories listed above in subparagraphs (c) and (d) shall be shown a copy of, and
shall agree in writing, or on the record during trial or deposition, to be bound by the terms
of this Protective Order.
6.

NON-PARTY WITNESSES.

A copy of this Protective order shall be

served with every subpoena or Notice of Deposition served upon non-party deponents.
A non-party witness may designate any document it believes contains confidential or
proprietary business information and/or trade secrets as “Confidential” pursuant to this
Protective Order by stamping it with such designation prior to production.
7.

CHALLENGE TO DESIGNATION.

Any party may challenge the

“Confidential” or "Confidential – Attorneys Eyes Only" designation of any document or
other discovery material subject to this Protective order by notifying all parties of the fact
that it is challenging the designation and providing the designating party not less than
ten (10) days’ notice before moving for an order compelling disclosure. The parties
shall attempt to resolve such disagreements before submitting them to the Court. Once
challenged, the burden to establish confidentiality shall be on the designating party.

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8.

FILING

DOCUMENTS

CONTAINING

CONFIDENTIAL

CONFIDENTIAL- ATTORNEYS EYES ONLY INFORMATION.

OR

Any party filing a

document with the Court that contains information or materials that have been deemed
“Confidential” or "Confidential – Attorneys Eyes Only" shall file that document with
restricted status such that access is limited to counsel of record and the court, or under
RESTRICTED ACCESS, in accordance with NECivR 5.3 and 7.5.
9.

RETURN OF DOCUMENTS. After this litigation (including all appeals) is

finally resolved, the parties shall destroy or return to the producing party all documents
and/or other materials containing information deemed “Confidential” or "Confidential –
Attorneys Eyes Only" that were obtained during the course of pretrial discovery or at
trial, including all copies of such documents. The party destroying or returning the
documents shall provide to counsel for the producing party a certification attesting to
such disposition. This Protective Order shall remain in full force and effect after the final
resolution of this litigation.
10.

USE OF DOCUMENTS BY PRODUCING PARTIES.

Nothing in this

Protective Order shall limit any party or person in its use of its own documents, or from
disclosing its own documents and information, or from any use of documents or other
discovery not designated as “Confidential” or "Confidential – Attorneys Eyes Only".
11.

EFFECT OF PRODUCTION. Neither the designation of any documents

as “Confidential” or "Confidential – Attorneys Eyes Only" pursuant to this Protective
Order nor the production of such documents in discovery shall be deemed a waiver of
any objection to the admissibility of such documents or their contents at trial.
12.

EXCEPTIONS. This Protective Order shall be binding on any party to

whom any material designated as “Confidential” or "Confidential – Attorneys Eyes Only"
is disclosed absent a showing that the material has become public knowledge without a
breach of this Protective Order.
13.

APPLICATION TO COURT. Any interested party may apply for a court

order seeking any additional disclosure or modifying or limiting this Order in any
respect.
14.

WAIVER. A party’s waiver of any rights under this Protective Order must

be made in writing or, if at a deposition or in Court, on the record.
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A waiver not

expressly made general shall be deemed limited to the narrow purpose of the
circumstances involved and shall not otherwise waive any of the rights provided by this
Protective Order.
15.

NON-EXCLUSIVITY.

All ethical, legal, and equitable rights and

obligations not addressed in this Protective Order remain in force.
SO ORDERED this 12th day of August, 2016.
BY THE COURT:
s/ Thomas D. Thalken
United States Magistrate Judge

Approved as to form and content:

By:

s/Matthew V. Bartle
Matthew V. Bartle, MO #40903
(admitted pro hac vice)
David L. Marcus, MO #47846
(admitted pro hac vice)
BARTLE & MARCUS LLC
233 W. 47th St
Kansas City MO 64112
[phone]
([e-mail])
([e-mail])

By:

and
Jeffry D. Patterson, NE #20761
1141 H Street
Lincoln, NE 68508
(402) 47-2847
([e-mail])
Attorneys for Plaintiffs

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s/Nicholas K. Rudman
Steven D. Davidson, #18684
Nicholas K. Rudman, #25182
BAIRD HOLM LLP
1700 Farnam Street
Suite 1500
Omaha, NE 68102-2068
Phone: [phone]
E-mail: [e-mail]
Attorneys for Defendants