Certain Underwriters at Lloyd's and those companies severally subscribing to Boeing Policy Number MARCW150053 and related policies governing the cargo et al v. Southern Pride Trucking, Inc. et al
Filing
78
ORDER granting 77 Motion for Protective Order Ordered by Magistrate Judge Cheryl R. Zwart. (Zwart, Cheryl)
IN TIIE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
CERTAIN UNDERWRITERS AT LLOYD'S
AND THOSE COMPANIES SEVERALLY
SUBSCRIBING
TO
BOEING
POLICY
NUMBER MARCW150053 AND RELATED
POLICIES GOVERNING THE CARGO, and
THE BOEING COMPANY,
Plaintiffs,
Case No.: 8:16 Civ. 00616 (JMG)
(CRZ)
v.
SOUTHERN PRIDE TRUCKING, INC.,
THUNDER ROLLS EXPRESS, INC., BAUER
BUILT INC., and ROAD STAR CARRIER, INC.
Defendants.
To expedite the flow of discovery materials, to facilitate the prompt resolution of
disputes over confidentiality of discovery materials, to adequately protect the information the
parties are entitled to keep confidential, to ensure that only materials the parties are entitled to
keep confidential are subject to such treatment, to ensure that the parties are permitted
reasonably
nece~sary
uses of such materials in preparation for and in the
c~nduct
of trial, and to
limit the disclosure and dissemination of export-controlled information, pursuant to Fed. R. Civ.
P. 26(c), it is hereby ORDERED THAT:
PROTECTED INFORMATION SUBJECT TO TIIlS ORDER
1.
For purposes of this Order, "PROTECTED INFORMATION" is any information
designated, in proper accordance with this Order, as "CONFIDENTIAL" or "EXPORT
CONTROLLED." Any PROTECTED INFORMATION obtained by any party from any person
pursuant to discovery in this litigation may be used only for purposes of preparation and
litigation of this matter.
2.
"CONFIDENTIAL" information shall mean all information or material, and any
copies thereof so designated, that is produced for or disclosed to a receiving party, that a
producing party, including any party to this action and any non-party producing information or
material voluntarily or pursuant to a subpoena or a court order, considers to constitute or to
contain trade secrets or other confidential research, development, technical, financial, or
commercial information, whether embodied in physical objects, documents, or the factual
knowledge of persons; and that has been so designated by the producing party, unless a Court
declares such information to not properly meet said descriptions.
3.
"EXPORT CONTROLLED" shall mean information that is subject to the
requirements of the Export Administration Regulations ("EAR"), 15 C.F.R. §§ 730, et seq.,
and/or the International Traffic in Arms Regulations ("ITAR"}, 22 C.F.R. §§ 120, et seq. Such
information may be contained in documents that Defendants furnish in this case related to dual
use commodities, technology, or software, or defense articles.
DESIGNATION OF PROTECTED INFORMATION
4.
Any document or tangible thing containing or including any PROTECTED
INFORMATION may be designated as such by the producing party by marking it
"CONFIDENTIAL" or "EXPORT CONTROLLED" or by identifying it in a written
communication as "CONFIDENTIAL" or "EXPORT CONTROLLED."
5.
At the request of any party, the original and all copies of any deposition transcript,
in whole or in part, may be designated as
"CONFIDENTIAL"~EXPORT CONTROLLED." <(
a. At any time during the deposition and at the request of any party, the deposition
transcript or a portion thereof shall be marked by the reporter with the appropriate
"CONFIDENTIAL" or "EXPORT CONTROLLED" designation. Any portions
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so designated shall thereafter be treated in accordance with the terms of this
Order.
b. Any party may designate a deposition -transcript or a-portion_thereof with J:he
appropriate "CONFIDENTIAL" or "EXPORT CONTROLLED" designation
within 14 days after first receiving a formal copy of the same transcript from the
deposition service by informing all other parties in writing.
c. All parties
shall treat
an
entire
deposition transcript
as
designated
"CONFIDENTIAL" or "EXPORT CONTROLLED" for 14 days after first
receiving a copy of said transcript.
6.
All PROTECTED INFORMATION not reduced to documentary, tangible or
physical form or that cannot be conveniently designated as set forth herein, shall be designated
by the producing party by informing the receiving party of the designation in writing.
7.
Any documents (including physical objects) made available for initial inspection
by counsel for the receiving party prior to producing copies of selected items shall initially be
considered, as a whole, to constitute PROTECTED INFORMATION and shall be subject to this
Order.
Thereafter, the producing party shall have 30 days to review and designate the
appropriate documents as "CONFIDENTIAL" or "EXPORT CONTROLLED."
PERSONS AUTHORIZED TO RECEIVE PROTECTED INFORMATION
8.
Counsel for a receiving party and the parties shall have access to the producing
party's PROTECTED INFORMATION. The term "Counsel" shall mean outside or in-house
attorneys for the parties working on this litigation, including supporting clerical personnel
employed by the attorneys, such as paralegals, legal translators, legal secretaries, legal clerks,
shorthand reporters, and hired experts or consultants, provided that said experts or consultants
3
also agree in writing to protect PROTECTED INFORMATION.
CHALLENGES TO PROTECTED INFORMATION DESIGNATIONS
9.
The-parties-wilLuse-r.easonable..care. when designating documents orJnfarma.tion
as "CONFIDENTIAL" or "EXPORT CONTROLLED" Nothing in this Order shall prevent a
receiving party from contending that any or all documents or information designated as
"CONFIDENTIAL" or "EXPORT CONTROLLED" have been improperly designated.
A
receiving party may at any time request that the producing party cancel or modify the
"CONFIDENTIAL" or "EXPORT CONTROLLED" designation with respect to any document
or information contained therein.
10.
A party shall not be obligated to challenge the propriety of a "CONFIDENTIAL"
or "EXPORT CONTROLLED" designation at the time made, and a failure to do so shall not
preclude a subsequent challenge thereto. Such a challenge shall be written, shall be served on
counsel for the producing party, and shall particularly identify the documents or information that
the receiving party contends should be differently designated. The parties shall use their best
efforts to resolve disputes promptly and informally.
11.
If an agreement cannot be reached between the parties, the receiving party shall
request that the Court cancel or modify a "CONFIDENTIAL" or "EXPORT CONTROLLED"
designation. The producing party shall be given at least 10 days notice prior to any hearing or
ruling by the Court.
12.
The receiving parties will treat all information as they are designated by the
producing party until the parties reach an agreement or until the Court cancels or modifies the
designation.
4
LIMITATIONS ON THE USE OF PROTECTED INFORMATION
13.
PROTECTED INFORMATION shall be held in confidence by each person to
whom it is disclosed,-Shall be-used only-for the-purpose of conducting this litigation, and_shalL
not be disclosed to any person who is not entitled to receive such information as herein provided.
14.
briefs,
and
All transcripts of depositions, exhibits, answers to interrogatories, pleadings,
other documents
submitted to the
Court that have
been designated
"CONFIDENTIAL" or "EXPORT CONTROLLED" or that contain information so designated,
shall be filed under seal. The parties agree to follow the local rules of the Court, including
NECivR 7.5, when filing any document under seal in this litigation.
15.
Any person receiving information designated as "EXPORT CONTROLLED" has
a responsibility to ensure that Export Controlled Information in their possession, custody or
control is not made public. To prevent public disclosure of Export Controlled Information, the
Parties agree to follow the procedure outlined in this paragraph before any document is
"exported," as that term is described in 15 C.F.R. § 730.5(c) or 22 C.F.R. § 120.17, or otherwise
made public. All Export Controlled Information will be furnished by U.S. Persons as defined by
U.S. export control laws and regulations (hereafter "U.S. Persons") directly to counsel. Counsel
hereby certifies that they and their personnel who receive Export Controlled Information are and
will be U.S. Persons, that they will store all Export Controlled Information in a manner such that
access is restricted only to U.S. Persons, and that no Export Controlled Information will be
physically transported outside U.S. territory. Before furnishing any document (including any
Export Controlled Information, any written discovery, and any deposition transcript) to a nonU.S. Person, including by publicly filing the document with the Court, counsel shall determine
whether the document bears a label indicating that such document contains Export Controlled
5
Information. If a particular document is determined to contain Export Controlled Information,
counsel for the Parties shall take all steps necessary to ensure that the document or information is
used and accessed in accordance with the EAR, 15 C.F.R. §§ 730, et seq., and/or ITAR, 22
C.F.R. §§ 120, et seq., and disclosed only to U.S. Persons or as otherwise permitted under U.S.
law, including:
a. Export Controlled Information disclosed in this action will be used only for the
purposes of this action.
b. Counsel or another individuals authorized to received Export Controlled
Information will not disclose, export, or transfer, in any manner, Export
Controlled Information to any foreign person except as permitted by U.S. law,
and will not transport any such document outside of U.S. territory, without prior
written approval of the Bureau of Industry and Security, the United States
Department of State, or other appropriate U.S. government department or agency
except as permitted by U.S. law.
c. Before disclosing any Export Controlled Information to any person, Counsel shall
require such third person to execute a non-disclosure agreement in the form
attached hereto.
d. The Parties will seek to file under seal all documents that contain Export
Controlled Information.
MISCELLANEOUS PROVISIONS
16.
Any requirement herein may be waived, in whole or in part, but only by a writing
signed by the attorney-in-charge for the party against whom such waiver will be effective.
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17.
If any third-party moves to compel a party to this action to produce any
PROTECTED INFORMATION, such Party shall immediately notify the parties who originally
produced and/or designated such PROTECTED INFORMATION that a motion has been made
in order to allow the Parties who originally produced and/or designated such PROTECTED
INFORMATION the opportunity to oppose the motion. In addition, if a Party is ordered to
produce PROTECTED INFORMATION covered by this Protective Order, notice and, if
available, a copy of the order compelling disclosure shall immediately be given the Parties who
originally produced and/or designated such PROTECTED INFORMATION. Nothing in this
Agreed Confidentiality and Protective Order shall be construed as requiring the Party who is
ordered to produce such PROTECTED INFORMATION to challenge or appeal any order
requiring the production of such PROTECTED INFORMATION or to subject himself/herself to
any penalty for non-compliance with any legal process or seek any relief from the Court.
18.
Within 60 days after the entry of a final non-appealable judgment or order, or the
complete settlement of all claims asserted between two parties in this action, each party shall, at
its option, either return to the producing party or destroy all physical objects and documents
.
.
which embody PROTECTED INFORMATION, and shall destroy in whatever form stored or
reproduced, all other physical objects and documents, including but not limited to,
correspondence, memoranda, notes and other work product materials, which contain or refer to
PROTECTED INFORMATION; provided that all PROTECTED INFORMATION, not
embodied in physical objects and documents, shall remain subject to this Order.
Notwithstanding the foregoing, Counsel shall be entitled to maintain all pleadings, motions, and
trial briefs (including all supporting and opposing papers thereto), written discovery requests and
responses (and exhibits thereto), deposition transcripts (and exhibits thereto), trial transcripts,
7
and exhibits offered or introduced into evidence at trial.
19.
This Order is entered without prejudice to the right of any party to apply to this
Court at any time for additional protection or to relax or rescind the restrictions of this Order
when convenience or necessity requires.
With the consent of the parties,
IT IS ORDERED:
August 5, 2016.
BY THE COURT:
_______________________
Cheryl R. Zwart
United States Magistrate Judge
ATTACHMENT A
Confidentiality Agreement
I , - - - - - - - - - - - - - - - ' state:
1. I reside at
------------------~
2. My present employer i s - - - - - - - - - - - - - - 3. My present occupation or job description is _ _ _ _ _ _ __
4. I have read the Stipulated Protective Order dated - - - - - - · ' and have been
engaged
as
a
on
behalf
of
- - - - - - - - - - - - - i n the preparation and conduct of litigation between
Plaintiffs Certain Underwriters at Lloyd's and Those Companies Severally Subscribing to
Boeing Policy Number MARCWl 50053 and Related Polices Governing the Cargo, et al., and
Defendants Southern Pride Trucking, Inc., et al.
5. I am fully familiar with and agree to comply with and be bound by the provisions of said
Order. I understand that I am to retain all copies designated as "CONFIDENTIAL" or "Export
Controlled" or containing PROTECTED INFORMATION in a secure manner, and that all
copies are to remain in my personal custody until I have completed my assigned duties,
whereupon the copies and any writings prepared by me containing PROTECTED
INFORMATION are to be returned to counsel who provided me with such material.
6. I will not divulge to persons other than those specifically authorized by said Order, and
will not copy or use except solely for purpose of this action, any information obtained pursuant
to said Order, except as provided in said Order. I also agree to notify any stenographic or
clerical personnel who are required to assist me of the terms of said Order.
7. I hereby consent to personal jurisdiction and venue in the United States District Court for
the District of Nebraska for the purposes of enforcing said Order.
8. I state under penalty of perjury under the laws of the United States of America that the
foregoing is true and correct.
Executed on _ _ _ _ _ _ _, 200
.
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