McClelland v. Walgreen Co.
Filing
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STIPULATED PROTECTIVE ORDER. The Joint Motion for Protective Order (Filing No. 32 ) is granted. Ordered by Magistrate Judge F.A. Gossett. (GJG)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
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JOCELYN E. MCCLELLAND,
Plaintiff,
v.
WALGREEN CO. D/B/A
WALGREENS,
Defendant.
8:16CV91
STIPULATED PROTECTIVE
ORDER
This matter comes before the court on the parties’ Joint Motion for Protective Order (Filing
No. 32). For good cause shown, the court finds the motion should be granted. Accordingly,
IT IS ORDERED: The Joint Motion for Protective Order (Filing No. 32) is granted, and the
following Stipulated Protective Order shall govern discovery in the above-captioned matter:
PURSUANT TO FEDERAL RULES OF CIVIL PROCEDURE 26(c), THE PARTIES
HEREBY STIPULATE AND AGREE TO THE FOLLOWING PROTECTIVE ORDER:
Facts Establishing Good Cause and “Confidential Information,” Defined. Plaintiff
brings this lawsuit containing eight counts: (1) false imprisonment, (2) intentional infliction of
emotional distress, (3) invasion of privacy, (4) sex discrimination, (5) sex harassment, (6) marital
status discrimination, (7) wages – Nebraska wage payment collection act, and (8) accounting –
Nebraska wage payment collection act, against Defendant Walgreen Co. d/b/a Walgreens.
Defendant denies Plaintiff’s allegations. Information will be deemed “Confidential Information” if
it falls within one or more of the following categories: (a) information prohibited from disclosure
by statute; (b) information that reveals trade secrets; (c) research, technical, commercial or financial
information that the party has maintained as confidential; (d) medical information concerning any
individual; (e) personal identity information; (f) and/or (g) personnel or employment records of a
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person who is not a party to the case. Information or documents that are available to the public
may not be designated as Confidential Information.
1.
The parties recognize that the public disclosure of such Confidential Information
may cause injury to Plaintiff and Defendant, and the release of Confidential Information may affect
the privacy of Plaintiff, the Defendant, and/or current or former employees of Defendant who are
not parties to this Action. This Order protects Plaintiff and Defendant and prohibits the public
release of Confidential Information, while allowing the parties access to information each seeks to
discover and minimizing any potential harmful effects on either the parties or non-parties. The
Court finds that the parties properly seek to protect such Confidential Information as well as to
protect all parties and non-parties from any annoyance or embarrassment that unrestricted
disclosure may potentially cause.
2.
Limited Use of Confidential Information. “Confidential Information,” as defined
above in paragraph 1, shall be used by the parties only for purposes of preparing for and conducting
the Action (including the trial and any appeals) styled McClelland v. Walgreens, Case No. 8:16-CV0091 (hereinafter the “Action”).
3.
Designating Information As Confidential. Any party to this Action may designate
information as “Confidential Information” consistent with the above definition by affixing the
legend “Confidential” to every page of the document so designated or otherwise affixing such
legend in a readily visible location on any other item so designated. In the event that Confidential
Information is produced without a “Confidential” designation, any party may seek to have it
designated as “Confidential” by advising the other party of the same within thirty (30) days. With
respect to Confidential Information contained in testimony, any party may designate portions of
testimony as “Confidential” by notifying all counsel in writing of the page(s) and line(s) of such
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testimony within thirty (30) days of receipt of a copy of the transcript, or such other time period as
may be mutually agreed upon by the parties. All testimony shall be deemed confidential for a
period of thirty (30) days after counsel’s receipt of a copy of the transcript, or such other time
period as may be mutually agreed upon by the parties. There shall be no need to re-designate
documents used in or exhibits to transcripts which have been previously designated as confidential.
4.
Disputes Concerning Designation(s) Of Confidential Information. If any party
disputes the designation of any information, document, or testimony as “Confidential,” that party
shall attempt to resolve by agreement the question of whether or on what terms the information is
entitled to confidential treatment. If the parties are unable to agree as to whether the information is
properly designated, counsel for either party may file an appropriate motion with the court. The
burden rests upon the person asserting “Confidential” status to demonstrate that the designation is
proper. Until a resolution of the dispute is achieved either through consent or order of the court, all
persons shall treat the designated information in accordance with its designation.
5.
Qualified Persons To Whom Confidential Information May Be Disclosed.
Confidential Information may only be disclosed or made available on a need-to-know basis by the
party receiving such information to “qualified persons” who are defined to consist of:
a.
The United States District Court for the District of Nebraska, including court
personnel and members of the jury;
b.
The parties named in this Action, including the corporate representative(s) of
Defendant (including any of its former and/or current officers, directors,
employees, or agents);
c.
Counsel to all parties in this Action and the clerical, secretarial, and paralegal
staff employed by such counsel;
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d.
Court reporters and videographers and related staff employed by such service
providers in this Action;
e.
Independent document reproduction services or document recording and
retrieval services;
f.
Persons with prior knowledge of the documents or the Confidential
Information contained therein;
g.
Retained and/or potential experts, consultants, and/or investigators (including
their employees and/or support staff) selected by a party to this Action to
assist in the prosecution or defense of this Action;
h.
Interviewees, potential witnesses, deponents, hearing or trial witnesses (as
long as the disclosure occurs in the presence of counsel, and copies,
duplicates, images, or the like are not removed or retained by any
interviewee, potential witness, deponent, or hearing or trial witness); and
i.
6.
Any other person agreed to in writing by the parties.
Disclosure Of Protective Order To “Qualified Persons.” Each “qualified person”
to whom Confidential Information is disclosed pursuant to this Order shall be advised that the
Confidential Information is being disclosed pursuant to and subject to the terms of this Order.
7.
No Admission Or Waiver. Compliance with the terms of this Order by a party or
non-party shall not operate as an admission that any particular document is or is not (a) confidential,
(b) privileged, or (c) admissible in evidence. Counsel expressly agree that nothing in this Order
shall serve to waive the right of any party to object at trial to the admissibility of any document or
portion thereof, or the right to file a motion in limine regarding the use at trial of any document or
portion thereof.
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8.
Depositing Confidential Information With The Court.
Counsel shall not
unnecessarily disclose Confidential Information on the public record of this proceeding or in written
arguments or memoranda submitted to the Court. However, Counsel shall have the right to file or
deposit with the Court any Confidential Information at any time if such filing or deposit is intended
in good faith to support any party’s prosecution or defense of this Action, and further subject to the
right of any party or its counsel to request the Court place any Confidential Information under seal,
either before or after such Confidential Information has been initially filed with the Court. If any
party desires to request any Confidential Information be placed under seal, that party shall file a
separate motion seeking such Order from the Court.
9.
Inadvertent Disclosure of Confidential Information Without Designation.
Subject to the requirements of section 3 of this Stipulated Protective Order, if a party inadvertently
produces any Confidential Information without designating it as such in accordance with the
provisions of this Order, the producing party may give written notice to the receiving party that the
information produced is deemed Confidential Information and should be treated as such in
accordance with the provisions of this Order. The receiving party must treat such information as
Confidential Information from the date such notice is received. Disclosure, prior to the receipt of
such notice, of such Confidential Information to persons not authorized to receive such Confidential
Information shall not be deemed a violation of this Order; provided, however, that the party making
such disclosure shall make all reasonable efforts to notify any party to whom such disclosure was
made that such information is Confidential pursuant to this Order. The parties shall attempt in good
faith to retrieve any inadvertently produced Confidential Information from anyone who is not a
“qualified person” pursuant to this Order.
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10.
Information Lawfully Acquired Prior To Production In This Action. This Order
shall not be construed to prevent any party or its representatives from using Confidential
Information in any way which was lawfully in its or his possession prior to the production of such
documents or information in this Action.
11.
Privileged Information.
Nothing in this Order shall operate to require the
production of information or documents that are subject to a good faith assertion of attorney-client
privilege and/or work product doctrine, and/or any other applicable privilege.
12.
Storage Of Confidential Information During Pendency Of Action. Documents
and things designated as containing Confidential Information, and any copies or extracts thereof,
shall be retained in the custody of the attorneys of record during the pendency of this Action, except
as reasonably necessary to provide access to persons authorized under the provisions of this Order.
13.
Storage Of Confidential Information Subsequent To This Action. Upon the
conclusion of this Action by settlement, final judgment, or final order, including all appeals, counsel
for any party to this Action shall return any original Confidential Information to the designating
party, if requested. However, counsel in this Action may maintain a copy of all Confidential
Information as a part of counsel’s case files.
14.
Jurisdiction. The Court’s jurisdiction to enforce the provisions of this Protective
Order shall be terminated upon the final disposition of this case, unless and until a party seeks leave
to reopen the case to enforce the provisions of this Protective Order.
15.
a.
Inadvertent Disclosure or Production of Documents.
The inadvertent production of any document or other information during
discovery in this Action shall be without prejudice to any claim that such
material is protected by any legally cognizable privilege or evidentiary
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protection including, but not limited to, the attorney-client privilege or the
work product doctrine, and no party shall be held to have waived any rights
by such inadvertent production.
b.
Upon written notice of an unintentional production by the producing party or
oral notice if notice must be delivered at a deposition, the receiving party
must promptly return or destroy the specified document and any hard copies
the receiving party has and may not use or disclose the information until the
privilege claim has been resolved. To the extent that the producing party
insists on the return or destruction of electronic copies, rather than disabling
the documents from further use or otherwise rendering them inaccessible to
the receiving party, the producing party shall bear the costs of the return or
destruction of such electronic copies.
c.
To the extent that the information contained in a document subject to a claim
has already been used in or described in other documents generated or
maintained by the receiving party, then the receiving party will sequester
such documents until the claim has been resolved. If the receiving party
disclosed the specified information before being notified of its inadvertent
production, it must take reasonable steps to retrieve it. The producing party
shall preserve the specified information until the claim is resolved.
d.
The receiving party shall have ten (10) days from receipt of notification of
the inadvertent production to determine in good faith whether to contest such
claim and to notify the producing party in writing of an objection to the claim
of privilege and the grounds for that objection.
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e.
The producing party will then have ten (10) days from the receipt of the
objection notice to submit the specified information to the Court under seal
for a determination of the claim and will provide the Court with the grounds
for the asserted privilege or protection. Any party may request expedited
treatment of any request for the Court's determination of the claim.
f.
Upon a determination by the Court that the specified information is protected
by the applicable privilege, and if the specified information has been
sequestered rather than returned or destroyed, the specified information shall
be returned or destroyed.
g.
Upon a determination by the Court that the specified information is not
protected by the applicable privilege, the producing party shall bear the costs
of placing the information into any programs or databases from which it was
removed or destroyed and render accessible any documents that were
disabled or rendered inaccessible, unless otherwise ordered by the Court.
DATED: October 4, 2016.
BY THE COURT:
s/ F.A. Gossett
United States Magistrate Judge
26353104.1
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