Fire Insurance Exchange v. General Electric Company et al
STIPULATED PROTECTIVE ORDER granting 40 Joint Motion for Protective Order. Ordered by Magistrate Judge F.A. Gossett. (SMN)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
FIRE INSURANCE EXCHANGE, a
Nevada foreign corporation,
GENERAL ELECTRIC COMPANY,
a New York corporation; SAMSUNG
ELECTRONICS CO., LTD., a foreign entity, )
Case No. 8:16CV158
STIPULATED PROTECTIVE ORDER OF CONFIDENTIALITY
“Confidential Material.” As used in this Protective Order, confidential material shall
refer to information and records of any party protected as trade secrets, or commercially
sensitive or confidential information pursuant to state and federal law. Additionally,
confidential materials shall refer to any of the following containing a party’s protected trade
secrets, commercially sensitive or confidential information pursuant to state and federal law: (a)
documents produced by any Party at any time in this Lawsuit; (b) the Party’s interrogatory
answers, responses to document requests and responses to requests for admissions; (c) transcripts
of depositions or portions of deposition testimony of the Party’s employees and/or designees or
experts; and (d) other information produced by any Party in the course of this Lawsuit. Any
Party may designate any of the foregoing as “Confidential Material” at the time of or within ten
(10) days of its disclosure. All confidential material is the exclusive, inalienable property of the
“Records.” As used in this Protective Order, records shall mean information, both
discrete and cumulative, that is inscribed or otherwise recorded on a tangible medium or that is
stored in an electronic or other medium and is retrievable in perceivable form. Records include
both electronic records and printed, typewritten, and other tangible records.
Scope. This Protective Order shall govern confidential material produced or disclosed
by the producing party in response to formal or informal discovery conducted in this matter.
Nothing in this Protective Order shall be deemed to preclude the producing party’s right to: (a)
oppose discovery on grounds not addressed under the terms of this Protective Order; or (b)
object on any ground to the admission of any confidential material into evidence at trial.
Further, nothing contained in this Protective Order shall prejudice the right of any party to
contest the alleged relevancy, admissibility, or discoverability of the confidential material
Designation of Confidential Material. The producing party may designate all or any
portion of documents, things, and information it produces formally or informally to other parties
to this litigation as confidential material. The designation of confidential material shall be
made by any practicable means, including placing on the thing so designated, such that it will not
interfere with its legibility, an appropriate notice such as the following: “confidential” or
“confidential material.” Confidential material will be Bates stamped, if appropriate. All
materials designated as confidential material shall be treated as such pursuant to the terms of
this Protective Order until further order by the Court.
The inadvertent, unintentional, or in camera production of any confidential material
shall not, under any circumstances, be deemed a waiver, in whole or in part, of the
confidentiality of the confidential material in question. If the producing party should
inadvertently produce any confidential material not responsive to a formal discovery demand
and/or an order of the Court, the recipient shall immediately return the confidential material,
including all copies thereof, to the producing party, and shall make no use of the confidential
material for any purpose.
Objection to Designation. If any party objects to the designation of any record as
confidential material, that party shall promptly notify all other parties in writing within thirty
(30) days receipt of the confidential material, specifying the factual and legal basis for the
objection. If a dispute arises that cannot be resolved by agreement of the parties within 14 days
after the time in which the objection was received, it shall be the obligation of the party
designating the information as confidential material to file, within 7 days after the 14 day
period, an appropriate motion requesting that the Court determine whether the disputed
information should be subject to the terms of this Protective Order Pending such determination
(or the expiration of the period in which the producing party may make a challenge to an adverse
ruling), the records shall be maintained as confidential material. In connection with a motion
filed under this provision, the party designating the information as confidential material shall
bear the burden of establishing that good cause exists for the information to be treated as
confidential. If the designating party fails to file a motion within the prescribed time, the
disputed information shall lose its designation as confidential material and shall not thereafter
be treated as confidential material in accordance with this Protective Order.
Access to Confidential Material. Access to confidential material shall be limited to
authorized persons, solely in the performance of their duties in connection with trial preparation
of this case. Authorized persons are:
The parties and counsel of record for the parties to the pending civil action
articulated above who have consented to this Protective Order and have signed the Promise of
Paralegal, secretarial, administrative, and legal personnel working under the
direction and control of those counsel of record and who have consented to this Protective Order
and have signed the Promise of Confidentiality;
Outside forensic experts and consultants retained by counsel of record who have
first consented to this Protective Order and signed the Promise of Confidentiality and agreed in
writing to be bound by its terms (specifically excluding attorneys who are not counsel of record
for the parties to this civil action);
A deponent, during the course of his or her examination;
Court reporters who record testimony taken in the course of this litigation;
Copy or computer services for the purpose of copying or indexing documents,
provided all confidential material is retrieved by the Party furnishing it immediately upon
completion of the service; and
Such other persons as may be subsequently designated by either written
agreement of the parties after a request by one of them, or by Order of this Court upon motion of
any party, after notice to the opposing party.
Access to confidential material shall not be given to any person or entity not specifically
described above, including to members of the general public. However, nothing in this
Protective Order shall prohibit the producing party from utilizing the confidential material as it
deems appropriate, and any such use by the producing party shall not destroy the confidentiality
of the confidential material in question.
Authorized persons shall not include any organization or entity, or any representative
thereof, that regularly maintains and/or disseminates documents or information regarding
documents, including abstracts or summaries, or any other records as a service to its members,
subscribers, or others.
Under no circumstances shall access to confidential material be granted to any
competitor of the producing party or employee of any competitor of the producing party. Under
no circumstances shall a testifying or consulting expert who works for, or previously worked for,
a competitor of the producing party, as either an employee, servant, agent or consultant, disclose
confidential material to the competitor of the producing party.
Promises of Confidentiality. Each authorized person who receives access to any
confidential material shall first be given a copy of this Protective Order and advised by the
counsel making the disclosure that such person must not divulge any confidential material to
any other person except in the preparation or trial of this lawsuit, and that such disclosure is
limited to authorized persons. In accord with Hartman v. Remington Arms Co., 143 F.R.D. 673,
693 (W.D. Mo. 1992), a Promise of Confidentiality is attached as Exhibit A. This Promise of
Confidentiality must be signed by each authorized person receiving any confidential material
in advance of receipt. The signed original of each such Promise of Confidentiality shall be
provided to counsel of record for the producing party within ten (10) days of execution. In the
case of consulting forensic experts, the signed original shall be maintained by the disclosing
counsel and provided to counsel for the producing party by the earlier of: (a) ten (10) days after
the consulting forensic expert is designated as a testifying expert in this lawsuit; or (b) thirty (30)
days after the final termination of this action (the earlier of execution of a settlement agreement
or entry of a judgment) if the consulting forensic expert is not designated as a testifying expert.
Storage of Confidential Material. Authorized persons shall maintain all confidential
material in a secure location. Confidential material may not be entered onto any electronic
storage system, and may not be transmitted via e-mail or other similar media. Authorized
persons shall maintain a record, by Bates number designation, of the quantity of all copies or
other reproductions made of each item of confidential material.
Use of Confidential Material. All confidential material shall be used for the purpose of
the present, pending lawsuit only.
No confidential material will be produced, disclosed, or otherwise utilized in
any other litigation, whether or not that litigation involves parties to this case. Further, no
confidential material shall be disseminated to or shared with any organization or entity, or any
representative thereof, that regularly disseminates documents or information regarding
documents, including abstracts or summaries, or any other records as a service to its members,
subscribers, or others, or the representative of such an organization or entity.
If any subpoenas, requests for production, or other forms of discovery in
connection with other litigation are served on any party to this Protective Order, or any
authorized person defined hereunder, that party will immediately notify the producing party’s
counsel of record, provide the producing party’s counsel with a copy of the subpoena or other
discovery request, and will consent to and assist in obtaining an order from the appropriate court
protecting the confidential material from being disseminated outside the scope of this
List of Persons With Access To Confidential Material. Counsel for the inspecting
party shall maintain a list of the names and addresses of all persons listed in Paragraph 7 of this
Protective Order to whom confidential material is disclosed and shall promptly make that list
available to counsel for the disclosing party. Counsel for the inspecting party shall promptly
provide new versions of the list if and when names are added. Further, counsel for the inspecting
party shall provide a Declaration, attached as Exhibit A, to all persons to whom confidential
materials are disclosed, for execution. Counsel for the inspecting party shall provide to counsel
for the disclosing party copies or originals of all Declarations executed as soon as practicable
after execution. Except however, that counsel for the inspecting party shall not be obligated to
disclose the identity of a person with access to confidential material who is an expert not
expected to be called at trial. However, in the event the Plaintiffs provide confidential material
to an expert Plaintiff does not expect to call at trial, counsel for the Plaintiff must promptly notify
counsel for the Producing Party that an unidentified non-testifying expert will be shown the
Court Records. In the event that any confidential material is in any way disclosed in
any pleading, motion, deposition transcript, videotape, exhibit, photograph, or other material
filed with any court, the confidential material shall be filed in an attached sealed separate
envelope containing the style of the case marked “CONFIDENTIAL MATERIAL Protected by
Court Order,” dated and kept under seal by the clerk of that court until further court order. Such
confidential material shall, however, remain available to personnel authorized by that court and
to authorized persons. When practicable, however, only the confidential portion of the
pleadings filed with the court will be filed in a separate sealed envelope. If any confidential
material is furnished to any court by any party, a duplicate copy with the discrete confidential
material deleted may be substituted in the public record, if appropriate.
Depositions. If any confidential material is used or referred to during any deposition,
counsel for the producing party may require that only its representatives, authorized persons,
the deponent, the court reporter, and the camera operator (if the deposition is videotaped) shall
be present for the portion of the deposition dealing with confidential material. Counsel for the
producing party may also serve a copy of this Protective Order upon the deponent, the court
reporter, and camera operator, and require that each sign the Promise of Confidentiality (Exhibit
A) prior to further questioning. Counsel for the producing party may state on the record at the
deposition that the deposition includes information claimed to be confidential material. Within
forty-five (45) days of receipt of the completed deposition transcript, counsel for the producing
party shall designate by page and line the portions for which such claim is made, and give
written notice of this designation to the court reporter and all other parties. This designation
shall be placed on the first page in the original and all copies of the deposition by the court
reporter and by counsel for the parties. The designation shall include the style of the case and
may follow the form attached as Exhibit B. Pending such designation, the deposition and all
exhibits shall be treated in its entirety as confidential material. Those portions of the deposition
which are designated as confidential material shall be bound separately under seal and
prominently marked “confidential material subject to Protective Order.” The portions of each
deposition so designated shall be returned to trial counsel for the producing party within thirty
(30) day of final termination of this action (the earlier of execution of a settlement agreement or
entry of a judgment).
Under no circumstances shall any confidential material be viewed by any deponent who
is an employee of any competitor of the producing party., or any person who, within the past two
years, has been affiliated with, employed by, or consulted with a competitor (or an entity in
privity with a competitor) of the producing party’s regarding research, development, production,
or testing of tires or, over the following two years, expects to be involved in any such
employment, affiliation, or consultation.
Evidence at Trial. Confidential material may be introduced into evidence at trial, if
otherwise admissible, provided that the party seeking to do so shall give sufficient advance
notice to the Court and to the parties to allow arrangements to be made for in camera treatment
of the confidential material. In the event that a transcript of the trial is prepared, any party may
request that certain portions thereof, which contain trade secrets or other confidential material,
be filed under seal.
Inadvertent Disclosure. Should any confidential material be disclosed to any
unauthorized persons, through inadvertence of a party or through the act or omission of any
person, the unauthorized person (a) shall be informed promptly of the provisions of this
Protective Order by the party who first learns of the disclosure, and upon such notice shall be
subject to the terms of this Protective Order; (b) shall be identified immediately to counsel of
record for the producing party; and (c) shall be directed if within control of a party, or otherwise
asked, to sign the Promise of Confidentiality (Exhibit A). At the producing party’s sole
discretion, such unauthorized person may be required to surrender to the producing party all
copies of confidential material in such unauthorized person’s possession. The person or entity
whose inadvertence caused the unauthorized disclosure shall be responsible for securing the
unauthorized person’s assent to the Promise of Confidentiality and for all reasonable attorneys’
fees, costs, and expenses associated with enforcement of this Protective Order.
Return or Destruction of Confidential Material. Within thirty (30) days of final
termination of this action (the earlier of execution of a settlement agreement or entry of a
judgment), counsel of record for each party shall either, at the choice of that party and/or its
Assemble and return to counsel of record for the producing party all confidential
material produced, including all copies, notes, summaries, renderings, photographs,
recordings, electronic storage data, and reproductions of every kind of such confidential
material. Any confidential material entered on a computer database or other electronic
media forbidden by Paragraph 9 of the Protective Order shall also be deleted and written
over or reformatted. Any direct quote from or description of confidential material will
also be returned to counsel of record for the producing party within thirty (30) days of
final termination of this action (the earlier of execution of a settlement agreement or entry
of a judgment). Accompanying the return of all confidential material, counsel of record
for each party shall provide to counsel of record for the producing party a cover letter
which includes: (a) a list of the Bates numbers of all original confidential material being
returned; (b) a detailed explanation for the failure to return any original confidential
material that had been produced to said counsel of record; and (c) an itemization of the
number of copies being returned of each item of original confidential material, as well
as an enumeration of the total number of copies ever made of each item of original
confidential material. Said cover letter shall not disclose the title or substance of the
confidential material. A copy of each such letter shall be filed with the Court. All
signed Promises of Confidentiality shall also be forwarded to counsel of record for the
producing party as provided in Paragraph 8.
Alternatively, all confidential material, including all copies, notes, summaries,
renderings, photographs, recordings, electronic storage data, and reproductions of every
kind of such confidential material, shall be destroyed in their entirety. Any
confidential material entered on a computer database or other electronic media
forbidden by Paragraph 9 of the Protective Order shall also be deleted and written over or
reformatted. Following the destruction, counsel of record for each party shall provide to
counsel of record for the producing party a cover letter which includes: (a) a list of the
Bates numbers of all original confidential material that were destroyed; (b) a detailed
explanation for the failure to destroy any original confidential material that had been
produced to said counsel of record; and (c) an itemization of the number of copies that
were destroyed of each item of original confidential material, as well as an enumeration
of the total number of copies ever made of each item of original confidential material.
Said cover letter shall not disclose the title or substance of the confidential material. A
copy of each such letter shall be filed with the Court. All signed Promises of
Confidentiality shall also be forwarded to counsel of record for the producing party as
provided in Paragraph 8.
Disclosure of Confidential Material in Other Actions. If any person subject to
this Protective Order (“Recipient”) receives a subpoena or discovery demand to copy, inspect, or
produce confidential material, then the Recipient shall, within five (5) days after receiving the
request, provide notice thereof to the Party that designated such material as confidential
material (“Designating Party”). Upon notice from Recipient, the Designating party shall
provide any written objections to the subpoena or discovery demand, which Recipient shall file.
Recipient shall not disclose said Confidential Material until either: (a) the Recipient receives
written permission from the Designating Party allowing disclosure; or (b) the Recipient is
ordered by a court or other tribunal to produce the Confidential Material.
Reservation of Rights. The Parties agree that the execution of this Protective Order
shall not constitute a waiver of any rights existing under any applicable law or court rules,
including the attorney-client privilege and the work product doctrine.
Disputes Arising Out of This Agreement. The Parties agree that money damages for
any breach or threatened breach of this Protective Order are inadequate and that, without
prejudice to any other rights and remedies otherwise available to them, the Parties shall be
entitled to seek and obtain temporary or injunctive relief for any breach or threatened breach of
this Protective Order without the necessity of posting a bond.
Jurisdiction. Any person receiving confidential material under the terms of this
Protective hereby agrees to subject himself or herself to the jurisdiction of this Court for
purposes of any proceedings relating to the performance under, compliance with or violations of
this Protective Order.
Applicable Law. This Agreement shall be governed by the laws of Nebraska.
IT IS SO ORDERED.
DATED this 31st day of March, 2017.
BY THE COURT:
s/ F.A. Gossett, III
United States Magistrate Judge
PROMISE OF CONFIDENTIALITY
State of ____________
County of __________
My name is ______________. I live at ________________. I am employed as
_______________ by ___________________.
I am aware that a Protective Order of Confidentiality has been entered in the abovereferenced lawsuit and a copy of that Protective Order of Confidentiality has been given to me.
I promise that I will use the confidential materials as defined under that Protective
Order of Confidentiality only in connection with assisting counsel of record for the Plaintiffs or
Defendants in preparing for litigation of this matter.
I promise that I will not disclose or discuss such confidential materials with any person
other than counsel of record for the parties or members of their staff who are actively engaged in
the preparation of this case.
I promise that I will not attempt or assist in any attempt to seek permission from any
other court to access the confidential material produced in this matter for use in other litigation
or for any other purpose.
I understand that any use of the confidential material I obtain, in any manner contrary to
the provisions of the Protective Order of Confidentiality or this Promise of Confidentiality may
subject me to sanctions by this Court, and I agree to the jurisdiction of this Court to enforce any
I expressly consent to the jurisdiction of this Court with respect to matters within the
scope of the Protective Order of Confidentiality.
I understand that violating the terms of the Protective Order of Confidentiality or this
Promise of Confidentiality could result in civil sanctions levied by the Court, as well as criminal
penalties under state law and the federal Economic Espionage Act of 1996, 18 U.S.C. §§ 1831 et
seq., including imprisonment for a period of up to ten (10) years.
Within twenty (20) days of final termination of this action (the earlier of execution of a
settlement agreement or entry of a judgment), I will return to the producing party, through
delivery to counsel of record representing Plaintiffs or Defendant in this case, all confidential
material or any portion or summary thereof, along with my notarized affidavit confirming the
return of said confidential materials and listing the bates number of each document returned. I
promise that under no circumstance will I retain any originals or duplicate of any such
confidential material. I assume all responsibility for returning the confidential material to the
producing party, as set forth herein, and I bear all risks associated with the purported loss,
destruction, or inadvertent disclosure of such confidential material that has been entrusted to
my care. My failure to return all such confidential material and/or to provide the notarized
affidavit described above will be deemed a disclosure of the confidential information in
violation of the Protective Order of Confidentiality and this Promise of Confidentiality, which
may subject me to sanctions. I expressly agree to pay all reasonable attorneys’ fees, costs, and
expenses associated with enforcement of this paragraph in order to obtain my compliance with it,
in addition to any sanctions the Court may impose.
DEPOSITION OF ____________________________
THIS _____ DAY OF ________________, 20__
DESIGNATION OF CONFIDENTIAL MATERIAL
Pursuant to the Court Order dated _____________________, the following parts of this
deposition are designated as confidential:
Signed this _____ day of ________________, 20___.
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