Fergin v. Westrock Company et al
PROTECTIVE ORDER - The Parties' Joint Motion for Entry of Protective Order (Filing No. 23 ) is granted. Ordered by Magistrate Judge F.A. Gossett. (LAC)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
WESTROCK COMPANY, formerly
known as known as ROCKTENN; ACE
AMERICAN INSURANCE CO.;
MAGNUM LTL, Inc.; and XPO, formerly
known as known as JACOBSON
WAREHOUSE COMPANY, INC.,
This matter comes before the court on the Parties’ Joint Motion for Entry of Protective Order
(Filing No. 23). Specifically, the Parties have indicated that they agree that during the course of
discovery it may be necessary to disclose certain confidential information relating to the subject
matter of this action. They agree that certain categories of such information should be treated as
confidential, protected from disclosure outside this litigation, and used only for purposes of
prosecuting or defending this action and any appeals. The parties have, therefore, jointly requested
entry of this proposed Protective Order to limit the disclosure, dissemination, and use of certain
identified categories of confidential information.
Protection of the identified categories of
confidential information is necessary because confidential information may need to be disclosed
during the course of discovery for this case. For good cause shown under Fed. R. Civ. P. 26(c),
IT IS ORDERED: The Parties’ Joint Motion for Entry of Protective Order (Filing No. 23) is
IT IS FURTHER ORDERED: The court hereby enters the following Protective Order:
Scope. All documents and materials produced in the course of discovery of this case,
including initial disclosures, responses to discovery requests, all deposition testimony and exhibits,
and information derived directly therefrom (hereinafter collectively “documents”), are subject to this
Order concerning Confidential Information as set forth below. As there is a presumption in favor of
open and public judicial proceedings in the federal courts, this Order will be strictly construed in
favor of public disclosure and open proceedings wherever possible.
Definition of Confidential Information.
As used in this Order, Confidential
Information is defined as information that the producing party designates in good faith has been
previously maintained in a confidential manner and should be protected from disclosure and use
outside the litigation because its disclosure and use is restricted by statute or could potentially cause
harm to the interests of disclosing party or nonparties.
As used in this Order, Confidential
Information designated as CONFIDENTIAL-SUBJECT TO PROTECTIVE ORDER falls within one
or more of the following categories:
a) proprietary, competitive or commercially sensitive business information deemed
confidential by a Party;
b) information that contains or reveals trade secrets;
c) technical, commercial or financial information that the Party has maintained as
d) financial information that is generally unavailable to the public;
e) personal identity information including social security numbers, dates of birth or other
f) personnel or employment records of a person;
g) state and federal income tax returns (including attachments);
h) information relating to customers and vendors, including identities, terms, pricing
information and transactional histories;
i) information relating to business practices.
Information or documents that are available to the public may not be designated as
Form and Timing of Designation. The producing party may designate documents
as containing Confidential Information and therefore subject to protection under this Order by
marking or placing the words CONFIDENTIAL - SUBJECT TO PROTECTIVE ORDER
(hereinafter “the marking”) on the document and on all copies in a manner that will not interfere with
the legibility of the document. As used in this Order, copies include electronic images, duplicates,
extracts, summaries or descriptions that contain the Confidential Information. The marking will be
applied prior to or at the time of the documents are produced or disclosed. Applying the marking to
a document 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. Copies that are made of any designated documents must also bear the marking, except that indices, electronic databases, or lists of documents that
do not contain substantial portions or images of the text of marked documents and do not otherwise
disclose the substance of the Confidential Information are not required to be marked. By marking a
designated document as confidential, the designating attorney thereby certifies that the document
contains Confidential Information as defined in this Order.
Inadvertent Failure to Designate. Inadvertent failure to designate any document or
material as containing Confidential Information will not constitute a waiver of an otherwise valid
claim of confidentiality pursuant to this Order, so long as a claim of confidentiality is asserted within
30 days after discovery of the inadvertent failure.
Depositions. Deposition testimony will be deemed confidential only if designated as
such when the deposition is taken or within a reasonable time period after receipt of the deposition
transcript. Such designation must be specific as to the portions of the transcript and/or any exhibits
to be protected.
Protection of Confidential Material.
General Protections. Designated Confidential Information must be used or
disclosed solely for purposes of prosecuting or defending this lawsuit, including any appeals or any
other related legal proceeding brought by one of the parties to this litigation.
Who May View Designated Confidential Information. Except with the
prior written consent of the designating party or prior order of the court, designated Confidential
Information may only be disclosed to the following persons:
The parties to this litigation, including any employees, agents, and
representatives of the parties;
Counsel for the parties and employees and agents of counsel;
The court and court personnel, including any special master appointed
by the court, and members of the jury;
Court reporters, recorders, and videographers engaged for depositions;
Any mediator appointed by the court or jointly selected by the parties;
Any expert witness, outside consultant, or investigator retained
specifically in connection with this litigation, but only after such
persons have completed the certification contained in Attachment A,
Acknowledgment and Agreement to be Bound;
Any potential, anticipated, or actual fact witness and his or her counsel,
but only to the extent such confidential documents or information will
assist the witness in recalling, relating, or explaining facts or in
testifying, and only after such persons have completed the certification
contained in Attachment A;
Any witness whose deposition is taken during the course of discovery
in this case, provided that:
Such confidential documents or information is
presented to the witness only during the course of the deposition;
Such confidential documents and information are
necessary to assist the witness in recalling, relating, or explaining facts
Such witness is not permitted to retain a copy of any
document identified as confidential under this Order; and
If such witness refuses to execute the certification
contained in Attachment A, such witness is provided a copy of this
Order on the record of such deposition;
The author or recipient of the document (not including a person who
received the document in the course of the litigation);
Independent providers of document reproduction, electronic discovery,
or other litigation services retained or employed specifically in
connection with this litigation; and
Other persons only upon consent of the producing party and on such
conditions as the parties may agree.
Control of Documents. The parties must take reasonable efforts to prevent
unauthorized or inadvertent disclosure of documents designated as containing Confidential Information pursuant to the terms of this Order. Counsel for the parties must maintain a record of those
persons given access to the documents along with the originals of the forms signed by those persons
acknowledging their obligations under this Order.
Filing of Confidential Information. In the event a party seeks to file any document
containing Confidential Information subject to protection under this Order with the court, that party
must take appropriate action to insure that the document receives proper protection from public
disclosure including: (a) filing a redacted document with the consent of the party who designated the
document as confidential; (b) where appropriate (e.g., in relation to discovery and evidentiary
motions), submitting the document solely for in camera review; or (c) when the preceding measures
are inadequate, seeking permission to file the document under seal by filing a motion for leave to file
under seal in accordance with Local Rule 5(c).
Nothing in this Order will be construed as a prior directive to allow any document to be filed
under seal. The parties understand that the requested documents may be filed under seal only with
the permission of the court after proper motion. If the motion is granted and the requesting party
permitted to file the requested documents under seal, only counsel of record and unrepresented parties
will have access to the sealed documents.
Challenges to a Confidential Designation. The designation of any material or
document as Confidential Information is subject to challenge by any party. Before filing any motion
or objection to a confidential designation, the objecting party must meet and confer in good faith to
resolve the objection informally without judicial intervention. A party that elects to challenge a
confidentiality designation may file and serve a motion that identifies the challenged material and sets
forth in detail the basis for the challenge. The burden of proving the necessity of a confidentiality
designation remains with the party asserting confidentiality. Until the court rules on the challenge,
all parties must continue to treat the materials as Confidential Information under the terms of this
Use of Confidential Documents or Information at Trial or Hearing. Nothing in
this Order will be construed to affect the use of any document, material, or information at any trial or
hearing subject to the Federal Rules of Evidence. A party that intends to present or that anticipates
that another party may present Confidential Information at a hearing or trial must bring that issue to
the attention of the court and the other parties without disclosing the Confidential Information. The
court may thereafter make such orders as are necessary to govern the use of such documents or
information at the hearing or trial.
Obligations on Conclusion of Litigation.
Order Remains in Effect.
Unless otherwise agreed or ordered, all
provisions of this Order will remain in effect and continue to be binding after conclusion of the
Return of Confidential Documents. Within 30 days after this litigation
concludes by settlement, final judgment, or final order, including all appeals, all documents
designated as containing Confidential Information, including copies as defined above, must be
returned to the party who previously produced the document unless: (1) the document has been
offered into evidence or filed without restriction as to disclosure; (2) the parties agree to destruction of
the document to the extent practicable in lieu of return; or (3) as to documents bearing the notations,
summations, or other mental impressions of the receiving party, that party elects to destroy the
documents and certifies to the producing party that it has done so.
If the parties agree to the
destruction of the confidential documents, opposing counsel must certify, in writing, that the
documents have been destroyed.
Retention of Work Product. Notwithstanding the above requirements to
return or destroy documents, counsel may retain attorney work product, including an index which
refers or relates to designated Confidential Information, so long as that work product does not
duplicate verbatim substantial portions of the text or images of designated documents. This work
product will continue to be confidential under this Order. An attorney may use his or her own work
product in subsequent litigation provided that its use does not disclose Confidential Information.
Order Subject to Modification. This Order is subject to modification by the court
on its own motion or on motion of any party or any other person with standing concerning the subject
matter. The Order must not, however, be modified until the parties have been given notice and an
opportunity to be heard on the proposed modification.
No Prior Judicial Determination.
This Order is entered based on the
representations and agreements of the parties and for the purpose of facilitating discovery. Nothing
in this Order will be construed or presented as a judicial determination that any document or material
designated as Confidential Information by counsel or the parties is entitled to protection under Fed. R.
Civ. P. 26(c) or otherwise until such time as the court may rule on a specific document or issue.
Persons Bound by Protective Order. This Order will take effect when entered and
is binding upon all counsel of record and their law firms, the parties, and persons made subject to this
Order by its terms.
Jurisdiction. The court’s jurisdiction to enforce the provisions of this Order will
terminate on the final disposition of this case. But a party may file a motion to seek leave to reopen
the case to enforce the provisions of this Order.
Applicability to Parties Later Joined. If additional persons or entities become
parties to this lawsuit, they must not be given access to any Confidential Information until they
execute and file with the court their written agreement to be bound by the provisions of this Order.
Protections Extended to Third-Party’s Confidential Information. The parties
agree to extend the provisions of this Protective Order to Confidential Information produced in this
case by third parties, if timely requested by the third party.
Confidential Information Subpoenaed or Ordered Produced in Other Litigation.
If a receiving party is served with a subpoena or an order issued in other litigation that would compel
disclosure of any material or document designated in this action as Confidential Information, the
receiving party must so notify the designating party, in writing, immediately and in no event more
than three business days after receiving the subpoena or order. Such notification must include a copy
of the subpoena or court order.
The receiving party also must immediately inform in writing the party who caused the subpoena or order to issue in the other litigation that some or all of the material covered by the subpoena
or order is the subject of this Order. In addition, the receiving party must deliver a copy of this Order
promptly to the party in the other action that caused the subpoena to issue.
The purpose of imposing these duties is to alert the interested persons to the existence of this
Order and to afford the designating party in this case an opportunity to try to protect its Confidential
Information in the court from which the subpoena or order issued. The designating party bears the
burden and the expense of seeking protection in that court of its Confidential Information, and
nothing in these provisions should be construed as authorizing or encouraging a receiving party in this
action to disobey a lawful directive from another court. The obligations set forth in this paragraph
remain in effect while the party has in its possession, custody, or control Confidential Information by
the other party to this case.
Inadvertent Disclosure of Confidential Information Covered by Attorney-Client
Privilege or Work Product. The inadvertent disclosure or production of any information or document that is subject to an objection on the basis of attorney-client privilege or work-product protection, including, but not limited, to information or documents that may be considered Confidential
Information under the Protective Order, will not be deemed to waive a party’s claim to its privileged
or protected nature or estop that party or the privilege holder from designating the information or
document as attorney-client privileged or subject to the work product doctrine at a later date. Any
party receiving any such information or document must return it upon request to the producing party.
Upon receiving such a request as to specific information or documents, the receiving party must
return the information or documents to the producing party within 15 days, regardless of whether the
receiving party agrees with the claim of privilege and/or work-product protection. Disclosure of the
information or document by the other party prior to such later designation will not be deemed a
violation of the provisions of this Order. The provisions of this section constitute an order pursuant
to Rules 502(d) and (e) of the Federal Rules of Evidence.
DATED: September 21, 2016.
BY THE COURT:
s/ F.A. Gossett
United States Magistrate Judge
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