Rasmussen Air & Gas Energy, Inc. v. Ingersoll-Rand Company

Filing 24

ORDER - The court preliminarily finds that Defendant's language for paragraph 17 of the parties proposed protective order is appropriate. If either party believes the court should resolve the dispute over paragraph 17 by formal motion, such motion shall be filed on or before July 1, 2016, with any response due on or before July 5, 2016. No reply shall be filed absent leave of the court for good cause shown. Absent the filing a formal motion by July 1, 2016, or the parties notice befo re July 1, 2016 that they now agree that the proposed protective order, with Defendants proposed language, may be entered, the court will enter a protective order as set forth in the attached copy. Ordered by Magistrate Judge Cheryl R. Zwart. (GJG)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
RASMUSSEN AIR & GAS ENERGY,
INC., a Nebraska corporation;
8:16CV103
Plaintiff,
vs.

ORDER

INGERSOLL-RAND COMPANY, a New
Jersey corporation;
Defendant.
After conferring with counsel:
IT IS ORDERED:
1)

The court preliminarily finds that Defendant’s language for paragraph 17 of
the parties’ proposed protective order is appropriate.

2)

If either party believes the court should resolve the dispute over paragraph
17 by formal motion, such motion shall be filed on or before July 1, 2016,
with any response due on or before July 5, 2016. No reply shall be filed
absent leave of the court for good cause shown.

3)

Absent the filing a formal motion by July 1, 2016, or the parties’ notice
before July 1, 2016 that they now agree that the proposed protective order,
with Defendant’s proposed language, may be entered, the court will enter a
protective order as set forth in the attached copy.

June 24, 2016.
BY THE COURT:
s/ Cheryl R. Zwart
United States Magistrate Judge

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
RASMUSSEN AIR & GAS ENERGY, INC.,
Plaintiff,

Civil Action No. 8:16-cv-103

(Draft) PROTECTIVE ORDER

v.
INGERSOLL-RAND COMPANY,
Defendant.

The parties agree that certain information subject to discovery in this action may contain
trade secrets or other confidential, proprietary or commercially-sensitive information. In the
interest of protecting that information and permitting discovery to proceed without the delay
occasioned by disputes regarding such information, the parties agree to the protective provisions
set forth below. In view of these stipulations, and good cause appearing, the Court enters this
Protective Order pursuant to Federal Rule of Civil Procedure 26(c). This Protective Order shall
apply to all discovery in this matter, including informal exchange of documents.
IT IS HEREBY ORDERED:
Scope and Definitions
1.

This Protective Order applies to all information, documents, testimony and things

subject to discovery in this action which contain non-public, confidential information or trade
secrets designated as Protected Material pursuant to the terms of this Order, as well as any
secondary material, such as pleadings, written discovery, expert reports, notes, summaries or any
other materials that contain, describe or reflect such information (collectively referred to herein
as “Protected Materials”).
2.

Protected Material may be designated by any Producing Party as:

(a)

“CONFIDENTIAL” if it (i) contains non-public, commercially-sensitive

information (e.g. unpublished advertising, web pages, signage, logos and the like); (ii) contains
technical, financial and/or other business information (e.g. pricing, customer lists, business
and/or marketing plans or analysis, license agreements and the like), the public disclosure of
which would cause competitive harm to the Producing Party; (iii) is subject to an express
obligation of confidentiality owed by the Producing Party to a third party; (iv) contains
personally identifiable information about an individual as described in NECivR 5.3(b)(1)-(5); or
(v) constitutes a trade secret under the laws of the State of Nebraska.
(b)

“HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” if it contains

CONFIDENTIAL information under Paragraph 2(a), the disclosure of which to a Receiving
Party, as opposed to a third party, would cause competitive harm to the Producing Party.
3.

As used herein, “Producing Party” shall refer to any party to this action, or to any

third party (whether voluntarily or pursuant to subpoena) who discloses, testifies, produces or
makes available for inspection any Protected Material.
4.

“Receiving Party” shall refer to any person who receives Protected Material from

a Producing Party.
Permitted Disclosure and Use of Protected Material
5.

Protected Material shall not be distributed, disclosed or made available to anyone

except as expressly provided in this Order.
6.

Protected Material shall be used solely for this litigation and any related appeals

and shall not be used for any other purpose whatsoever, including without limitation any other
litigation or any business or competitive purpose or function of any kind.
Persons Who May Access Protected Material

7.

“Confidential” Material. Only the following individuals shall have access to

materials designated “CONFIDENTIAL,” absent the express written consent of the Producing
Party or further court order:
(a)

Up to four (4) corporate representatives of the Receiving Party who have

complied with Paragraph 9;
(b)

Outside counsel of record for the parties to this action, including any attorneys,

paralegals, technology specialists and clerical employees of their respective law firms assisting
in the litigation;
(c)

Outside experts and consultants of the Receiving Party, who have complied with

the procedures of Paragraph 10, and their support staff and clerical employees assisting in the
litigation;
(d)

The Court, court personnel, the jury, court reporters and/or videographers who

record testimony or other proceedings in this action;
(e)

Professional litigation support vendors, including copy, graphics, translation,

database, trial support and/or trial consulting services (“Professional Vendor”), who shall be
provided a copy of this Protective Order and execute Exhibit A, and mock jurors hired by trial
consultants but only in accordance with Paragraph 11 below; and
(f)

While testifying at deposition, hearings, or trial in this action only: (i) any

current or former officer, director or employee of the Producing Party or original source of
the information; (ii) any person designated by the Producing Party to provide testimony
pursuant to Rule 30(b)(6) of the Federal Rules of Civil Procedure; and (iii) any person who
authored, previously received or was directly involved in the specific matter(s) addressed in the
Protected Material, as evident from its face or reasonably certain in view of other testimony or

evidence. Persons authorized to view Protected Material pursuant to this sub-paragraph (f)
shall not retain or be given copies of the Protected Material except while so testifying.
8.

“Highly Confidential – Attorneys’ Eyes Only” Material. Access to materials or

information designated HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY shall be
limited to individuals designated in Paragraph 7(b), (c), (d), (e), or (f).
Approval to Access to Protected Material
9.

Obligation to Read and Be Bound By Protective Order. Any in-house counsel or

corporate representatives as identified pursuant to Paragraph 7 of this Order, outside experts or
consultants retained by the Receiving Party, or Professional Vendors authorized to access
“CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” Protected
Materials pursuant to Paragraphs 7-8 of this Order shall read and be bound by this Protective
Order. Professional Vendors shall also sign the “Agreement to Be Bound By Protective Order,”
attached as Exhibit A to this Protective Order.
10.

Additional Obligations for Outside Experts or Consultants Accessing

Confidential Protected Materials.
(a)

Prior to disclosing “CONFIDENTIAL” Protected Material to any outside experts

or consultants, the party seeking to disclose such information shall provide written notice to any
party to this action that produced “CONFIDENTIAL” Protected Material that includes: (i) the
name of the person; (ii) the present employer and title of the person; (iii) an up-to-date
curriculum vitae; (iv) a list of current and past consulting relationships undertaken within the last
four (4) years, to the extent such an undertaking is not unduly burdensome to the outside expert
or consultant; and (v) a signed copy of the person’s “Agreement to Be Bound By Protective
Order,” attached as Exhibit A to this Protective Order.

(b)

In the event that the Producing Party believes that the disclosure of

“CONFIDENTIAL” Protected Material to proposed expert or consultant is likely to result in the
further disclosure of such “CONFIDENTIAL” Protected Material to a direct competitor of the
Producing Party, then the Producing Party may object to such disclosure by providing written
notice of such objection to the Receiving Party within three (3) business days of receiving the
information identified in Paragraph 9(a) above. If an objection is made, the parties shall meet
and confer within three (3) business days after the objection and attempt in good faith to resolve
the dispute informally. If the dispute is not resolved, the party objecting to the disclosure
will have three (3) business days from the date of the meet and confer to seek relief from the
Court. The party objecting to the disclosure is required to seek expedited relief on its objection
from the Court. If relief is not sought from the Court within that time, the objection shall be
deemed withdrawn. If relief is sought, “CONFIDENTIAL” Protected Materials shall not be
disclosed to the expert or consultant until the objection is resolved by the Court. The Producing
Party shall bear the burden of demonstrating that the disclosure is likely to result in the further
disclosure of such “CONFIDENTIAL” Protected Material to a direct competitor of the
Producing Party.
11.

Mock Jurors. Mock jurors hired by trial consultants in connection with this

litigation may only be told about or shown Protected Materials provided: (1) they are not
affiliated with any party to this case or their direct competitor; (2) they agree in writing to be
bound by confidentiality; and (3) they are not themselves given custody of any Protected
Materials, nor permitted to remove any presentations, questionnaires or notes taken during the
exercise from any room in which the research is conducted.

12.

Survey Respondents.

Either party shall be entitled to disclose unpublished

advertising, web pages, signage, logos or the like to survey respondents, regardless of whether
the same has been marked as “CONFIDENTIAL,” provide that such survey respondents are not
allowed to retain copies of such Protected Materials.
Making and Challenging Designations
13.

Each party or third party that designates material for protection under this Order

must take care to limit such designations only to material that the party believes in good faith
meets the appropriate standards.
14.

Designations of Protected Material shall be made in substantially the following

manner:
(a)

For documents or written discovery.

The Producing Party may designate

documents or written discovery responses by affixing the legend “CONFIDENTIAL” or
“HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” on each page that contains
Protected Material. Document made available for inspection need not be designated in advance
and shall be treated as “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” until the
Producing Party provides copies of documents identified by the inspecting party for production
affixed with the appropriate legend.
(b)

For depositions or other testimony. Parties or third parties providing testimony

may designate depositions, or portions of depositions, as Protected Material by indicating the
appropriate designation on the record before the close of the deposition, hearing or other
proceeding, or by notifying the court reporter and all counsel in writing of the appropriate
designation within ten (10) business days after receiving the transcript, during which ten (10) day
period the deposition transcript shall be treated as HIGHLY CONFIDENTIAL – ATTORNEYS’

EYES ONLY.

The party making the designation shall make arrangements with the court

reporter to label the relevant pages with the appropriate designation. Video or DVD versions of
the depositions will automatically have the same designation as the transcript.
(c)

For tangible things and other information. A Producing Party shall affix the

appropriate legend prominently on any tangible thing or media, or on the exterior of any case or
container in which the information or item is stored. If the Receiving Party prints an item from
an electronic medium, the Receiving Party must immediately mark any unmarked pages of the
printed version with the designation of the media. A Producing Party may designate any other
Protected Material not in documentary, tangible or physical form by informing the Receiving
Party of the designation in writing at or before the time of production or inspection.
15.

Inadvertent failure to designate documents, testimony or things as Protected

Materials does not waive the Producing Party’s right to secure the protections of this Order. The
Producing Party must notify the Receiving Party in writing of the inadvertent failure to designate
promptly upon its discovery and take whatever steps are necessary to replace the documents with
appropriate legends or otherwise designate the materials as set forth above. The Receiving Party
shall not be held in violation of this Order for any otherwise permissible disclosures made before
receipt of such notice. Upon receiving the written notice, the Receiving Party must promptly
make all reasonable efforts to assure that the material is treated in accordance with the corrected
designation, including seeking the retrieval or destruction of any copies distributed to
unauthorized individuals, and destroy copies of documents that have been replaced with the
proper designation.
16.

At any time in these proceedings following the production or designation or

material as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES

ONLY,” a Receiving Party may challenge the propriety of such designation by providing the
Producing Party written notice particularly identifying the documents or information that the
Receiving Party contends should be differently designated. The parties shall meet and confer in
an attempt to resolve promptly and informally any such disputes. If agreement cannot be
reached, the Receiving Party may request in accordance with the Court’s rules governing
discovery disputes that the Court cancel or modify the designation. In considering a party’s
request to modify or cancel a designation of “HIGHLY CONFIDENTIAL – ATTORNEYS’
EYES ONLY,” the Court shall consider not only whether the subject documents meet the
definition of “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” set forth in
Paragraph 2(b) above, but the Court also shall weigh the sensitive nature of the subject
document(s) against the Receiving Party’s need to share the document(s) with its officers as
provided in Paragraph 7 so that the Receiving Party may adequately defend or prosecute the
lawsuit.
17.

Information does not qualify for protection under this Order and none of its

provisions apply to material that: (a) is available to the general public at the time of its
production, or becomes available to the general public after its production through no fault of the
Receiving Party; (b) was independently obtained by the Receiving Party from a non-party having
no obligation of confidentiality and the right to make such disclosure; or was previously
produced, disclosed or provided by the Producing Party to the Receiving Party without an
obligation of confidentiality. Notwithstanding the language of this paragraph, either party may
move the court to permit disclosure of information if failing to do so will inhibit the moving
party’s ability to fully and fairly litigate this case.

Inadvertent Production of Privileged Documents
18.

The inadvertent production of document(s) or other material subject to the

attorney-client privilege, work product doctrine or any other privilege or immunity does not
constitute a waiver.

Promptly upon learning of the inadvertent disclosure, however, the

Producing Party must notify the Receiving Party of the inadvertent production and request return
of the documents. The Receiving Party must promptly return or confirm destruction of all copies
of such materials; but doing so shall not preclude the Receiving Party from seeking to compel
production of those materials, nor constitute an admission that the materials were, in fact,
privileged, and the Producing Party must preserve any such documents.
Filing Under Seal or Restricted Access
19.

The parties may file documents protected herein under seal or with a “restricted

access” designation with the Court only pursuant to the requirements of this Order and NECivR
7.5(a)(i), (ii) or the Court’s procedure for filing documents with a “restricted access” designation.
20.

All transcripts of depositions, exhibits, answers to interrogatories, pleadings,

briefs, and other documents submitted to the Court that have been designated as
“CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” that
contain information so designated, shall be filed under seal or as “restricted access”
documents, or if electronic submission is impossible, in sealed envelopes or other appropriate
sealed containers labeled with the case caption, the words “CONFIDENTIAL” or
“HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” as appropriate, and a
statement in substantially the following form, or such other form as ordered by the Court or
required by the Clerk of the Court:

This envelope contains confidential information filed in this case by
[name of party] that is subject to a Protective Order of the Court. It
should not be opened or its contents disclosed, revealed or made public
except by Order of the Court or agreement of the parties.

Use of this Protective Order by Third Parties
21.

A third party, not a party to this action, who produces documents, testimony or

other information, including source code, voluntarily or pursuant to a subpoena or a court order,
may designate such material or information in the same manner and shall receive the same
level of protection under this Protective Order as any party to this lawsuit.
22.

A third party’s use of this Protective Order does not entitle that third party access

to any Protected Material produced by any party in this case.
Additional Protection
23.

This Protective Order is entered without prejudice to the right of any party to seek

different or additional protections if it believes the protections of this order are not applicable
or are inadequate. Nothing herein shall be deemed to preclude any Producing Party from
seeking such different or additional protection, including that certain matter not be produced at
all.
No Waiver
24.

Execution of this Protective Order shall not constitute a waiver of the right of any

party to claim in this action or otherwise that any Protected Material, or any portion thereof, is
privileged or otherwise non-discoverable, or is not admissible in evidence in this action or any
other proceeding.
No Limitations on Party’s Own Protected Materials
25.

Nothing in this Order shall restrict any party to this lawsuit or its attorneys from

disclosing or using, in any manner and for any purpose, its own Protected Materials.
Subpoena of Protected Material
26.

If any Receiving Party receives a subpoena or other legal process commanding the

production of any Protected Material, that party shall assert this Protective Order in the first
instance and promptly give written notice thereof to the Producing Party (or their counsel of
record in this case), who shall have the burden of seeking a court order relieving the subpoenaed
party of the obligations pursuant to the subpoena. The Receiving Party shall not produce any
Protected Material without either an order of a court of competent jurisdiction or the express
written consent of the Producing Party.
Unauthorized Access
27.

Counsel for the Receiving Party shall promptly notify the Producing Party upon

becoming aware of any loss, theft and/or unauthorized copying or disclosure of Protected Material
and shall take all steps reasonably necessary and available to retrieve such Protected Material and
prevent any further unauthorized access or dissemination.
Disposition of Protected Materials
28.

Unless otherwise ordered or agreed, within sixty (60) days after the settlement or

final termination of this action, each Receiving Party shall, at its option, return or destroy all
Protected Material, including all notes, abstracts, compilations, summaries or any other form of
reproducing or capturing of any Protected Material. Outside counsel for each party shall remind
any experts, consultants and others, as appropriate, of their obligation to destroy or return
Protected Materials. The Receiving Party shall submit a written certification by the sixty
(60) day deadline confirming that all Protected Material has been destroyed (or handled as
otherwise ordered or agreed) and that affirms that the Receiving Party has not retained any

paper or electronic copies. Notwithstanding this provision, outside counsel of record are
entitled to retain an archival copy of all pleadings, motion papers, briefs, exhibits, transcripts,
written

discovery,

expert

reports,

legal

memoranda,

attorney

work

product

and

correspondence, even if such materials contain or reflect Protected Material. Any such archival
copies remain subject to the terms of this Protective Order.
Survival of Order
29.

The terms of this Protective Order shall survive and remain in effect after the

termination of the above-captioned matter.
Binding Effect
30.

This Order shall be binding upon the parties and their attorneys, successors,

executors, personal representatives, administrators, heirs, legal representatives, assigns,
subsidiaries, divisions, employees, agents, independent contractors, or other persons or
organizations over which they have control.
Effective as a Stipulation
31.

This Stipulated Protective Order shall become effective as a stipulation between

the parties immediately upon its execution, notwithstanding the pendency of approval by the
Court, and the parties shall treat any Protected Materials produced before Court approval as
provided herein.
So ORDERED and SIGNED this

day of June, 2016.

/s/
United States Magistrate Judge

EXHIBIT A
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
RASMUSSEN AIR & GAS ENERGY, INC.,
Plaintiff,

Civil Action No. 8:16-cv-103

v.
INGERSOLL-RAND COMPANY,
Defendant.

ACKNOWLEDGEMENT AND AGREEMENT
TO BE BOUND BY PROTECTIVE ORDER

I,

[print or type full name], have been

provided a copy and have read the Stipulated Protective Order in the above-captioned case and
agree to be bound by its terms. I understand that I will be receiving non-public, confidential
materials and information protected pursuant to the terms of this Stipulated Protective Order. I
agree that I will not use or disclose any such Protected Material except in strict compliance
with the provision of this Order and will take all reasonable precautions to prevent any
unauthorized use or disclosure of any material in my possession or control. At the final
conclusion of the case, I will return or destroy, as directed, any Protected Materials received
and any notes or other documents reflecting such materials.
I hereby submit to the jurisdiction of this Court for the purposes of enforcement of the
Stipulated Protective Order in this case and waive any objections to jurisdiction or venue. I
understand that failure to comply with this Order could result in sanctions or other consequences.

I make the above statements under penalty of perjury.
Dated:
Printed Name:
Company Name/Address/Phone: