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

Filing 84

AMENDED PROTECTIVE ORDER. Ordered by Magistrate Judge Susan M. Bazis. (LAC)

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

Civil Action No. 8:16-cv-103
AMENDED PROTECTIVE ORDER

INGERSOLL-RAND COMPANY,
Defendant.
This matter is before the Court on the Unopposed Motion for Amended Protective
Order. (Filing No. 83.) The motion is granted.
IT IS HEREBY ORDERED:
Scope and Definitions
1.

This Amended 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information (e.g. unpublished advertising, web pages, signage, logos and the like); (ii) contains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 Amended 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 subparagraph (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 Amended
Protective Order.

Professional Vendors shall also sign the “Agreement to Be Bound By

Protective Order,” attached as Exhibit A to this Amended 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 Amended 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 nonparty 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
The parties may file documents protected herein under seal or with a “restricted

19.

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 Amended Protective Order as any party to this lawsuit.
22.

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

third party access to any Protected Material produced by any party in this case.
23.

All documents, testimony, or other information, including source code, which

are produced by FS-Elliott Co., LLC (“FS-ELLIOTT”) in this action voluntarily or pursuant
to a subpoena or court order shall automatically be designated as “HIGHLY
CONFIDENTIAL – ATTORNEYS’ EYES ONLY” Protected Materials pursuant to
Paragraphs 7-8 of this Order and, if filed with the Court, shall be filed under seal or as
“restricted access” documents pursuant to ¶ 19-20 of this Order. FS-ELLIOTT may redact
any documents, testimony, or other information, including source code, it produces if such
production is attorney-client privileged or contains confidential business pricing
information. In the interest of clarity, the set of persons identified in Paragraph 7(a) of this
Order includes all in-house counsel for any Receiving Party, including all parties to this
action.

Additionally, a Receiving Party shall not share or provide any documents,

testimony, or other information, including source code, which is produced by FS-ELLIOTT
in this action with any person identified in Paragraph 7(c) (as modified by this paragraph),
(d), or (e) of this Order until absolutely necessary. For the purposes of all documents,
testimony, or other information, including source code, which are produced by FSELLIOTT in this action, persons under Paragraph 7(c) of this order are limited to outside
experts or consultants or their support staff and clerical employees assisting in the litigation
who have been retained explicitly for the purpose of testify on the topic of the calculation of
damages. Under no circumstances shall any documents, testimony, or other information,
including source code, which are produced by FS-ELLIOTT in this action to be shared with
outside experts or consultants or their support staff and clerical employees assisting in the
litigation who have been retained for a purpose other than to testify on the topic of the
calculation of damages.”
Additional Protection
24.

This Amended 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
25.

Execution of this Amended 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
26.

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
27.

If any Receiving Party receives a subpoena or other legal process

commanding the production of any Protected Material, that party shall assert this Amended
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
28.

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
29.

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 Amended
Protective Order.
Survival of Order
30.

The terms of this Amended Protective Order shall survive and remain in

effect after the termination of the above-captioned matter.
Binding Effect
31.

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
32.

This Amended 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.
Dated this 8th day of September, 2017.
BY THE COURT:
s/ Susan M. Bazis
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 Amended 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 Amended
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 Amended 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: