Farmers Edge Inc. et al v. Farmobile, LLC et al

Filing 77

PROTECTIVE ORDER adopting the parties' Stipulation and Joint Motion for Protective Order and ESI Protocol Governing the Disclosure and Use of Discovery Materials 76 . (Attachment: # 1 Exhibit A - Written Assurance) Ordered by Magistrate Judge Thomas D. Thalken. (TRL)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
FARMERS EDGE INC.,
FARMERS EDGE (US) INC., and
FARMERS EDGE (US) LLC,

8:16CV191

Plaintiffs,
STIPULATED PROTECTIVE ORDER
vs.
FARMOBILE, LLC,
JASON G. TATGE,
HEATH GARRETT GERLOCK, and
RANDALL THOMAS NUSS,
Defendants.
This matter is before the court on the parties’ Stipulation and Joint Motion for
Protective Order and ESI Protocol Governing the Disclosure and Use of Discovery
Materials (Filing No. 76). The parties’ stipulation is adopted as set forth herein.
1.

As used in the Protective Order, these terms have the following meanings:
a.

“Action” means the instant litigation, Farmers Edge Inc. et al. v.

Farmobile, LLC, et al., Case No. 8:16-CV-00191-TDT (D. Neb.);
b.

“Party” means any party to this Action, including all of its officers,

directors, employees, consultants, investors, trustees, authorized agents,
Experts, House Counsel, and Outside Counsel (and their respective support
staffs);
c.

“Disclosure” or “Discovery Material” means all items or information,

regardless of the medium or manner generated, stored, or maintained (including,
among other things, testimony, transcripts, or tangible things) that are produced
or generated in disclosures or responses to discovery under the Federal Rules of
Civil Procedure in this matter;
d.

“Producing Party” means any Party or non-party who discloses or

produces Disclosure or Discovery Material in the Action;
e.

“Designating Party” is a party or non-party that designates

Disclosure or Discovery Material as “CONFIDENTIAL,” “CONFIDENTIAL –

ATTORNEYS’

EYES

ONLY”

or

“CONFIDENTIAL

SOURCE

CODE

–

ATTORNEYS’ EYES ONLY” pursuant to this Protective Order;
f.

“Document(s)” or “document(s)” are all materials within the scope of

Fed. R. Civ. P. 34;
g.

“Protected Material” means any Disclosure or Discovery Materials

that is designated as “CONFIDENTIAL,” “CONFIDENTIAL – ATTORNEYS’
EYES ONLY” or “CONFIDENTIAL SOURCE CODE – ATTORNEYS’ EYES
ONLY” pursuant to this Protective Order;
h.

“Receiving Party” is a party or person that receives documents or

information designated as “CONFIDENTIAL,” “CONFIDENTIAL – ATTORNEYS’
EYES ONLY” or “CONFIDENTIAL SOURCE CODE – ATTORNEYS’ EYES
ONLY” pursuant to this Protective Order; and
i.

“Written Assurance” means an executed document in the form

attached as Exhibit A.
2.

This Order shall be applicable to and govern without limitation, all

information, documents, testimony and/or things, or portions thereof, subject to
discovery in this action, which contain non-public information that is, confidential and/or
proprietary information and/or trade secret information designated 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 and/or describe
with particularity such information. Such materials in this case shall be used exclusively
for litigating the disputes in this action and not in any other matter.
3.

Any Producing Party may designate Disclosure or Discovery Material as

“CONFIDENTIAL,”

“CONFIDENTIAL

–

ATTORNEYS’

EYES

ONLY”

or

“CONFIDENTIAL SOURCE CODE – ATTORNEYS’ EYES ONLY” as long as it meets
the requirements for the designations as described below. A Receiving Party actually
accessing materials designated “CONFIDENTIAL,” “CONFIDENTIAL – ATTORNEYS’
EYES ONLY” or “CONFIDENTIAL SOURCE CODE – ATTORNEYS’ EYES ONLY” shall
use such materials, and all information obtained therefrom, solely for the purpose of this
litigation, unless the Receiving Party independently acquires such information
independently from the designated materials in this action.

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4.

“The “CONFIDENTIAL” designation is reserved for information (regardless

of how generated, stored, or maintained) or tangible things that may be protected under
Federal Rule of Civil Procedure 26(c), including information that a Designating Party
believes to be of a confidential and/or proprietary business or technical nature and not
readily available to competitors, potential competitors, and/or other third parties, or
otherwise subject to a condition of confidentiality.
5.

Disclosure of “CONFIDENTIAL” Information or Items. Unless otherwise

ordered by the Court or permitted in writing by the Designating Party, a Receiving Party
may disclose any information or item designated “CONFIDENTIAL” only to:
a.

the Receiving Party’s outside counsel, their staff, and their litigation

support personnel and businesses including consultants and translators,
commercial litigation support service vendors, provided such vendors are subject
to conditions of confidentiality in connection with material designated under this
Protective Order;
b.

any testifying expert or non-testifying expert consultant whom the

Receiving Party retains to assist in the Actions, provided that disclosure is only to
the extent necessary to perform such work, and provided that: (a) such person
has executed an “Written Assurance” in the form attached as Exhibit A, agreeing
to be bound by the terms of this Protective Order, and (b) in the event the notice
of the expert is required under this Protective Order, no unresolved objections to
such disclosure exist after such notice has occurred;
c.

any persons who: (a) appear on the face of the designated

CONFIDENTIAL material as an author, addressee, or recipient thereof, or (b) are
witnesses during a court hearing, or trial where specific documentary or
testimonial evidence or other circumstances establishes that the designated
CONFIDENTIAL material was authored or received by the witness or that the
witness previously had authorized access to the information;
d.

court reporters and their staff, as well as graphics , translation,

design and/or trial consultants (“Professional Vendors”)), and/or mock jurors to
whom disclosure is reasonably necessary for the Actions and who have signed
the

acknowledgement

form

attached

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as

Exhibit

A.

Signature

of

the

acknowledgement form attached as Exhibit A by an authorized representative of
a Professional Vendor will be construed to encompass all employees of the
Professional Vendor;
e.

the Court, jury, and court personnel;

f.

any other person with the prior written consent of the Producing

Party; and
g.

any mediator or settlement officer who is assigned to hear this

matter, and his or her staff.
6.

The “CONFIDENTIAL – ATTORNEYS’ EYES ONLY” designation is

reserved for Protected Material that constitutes or contains trade secrets or other nonpublic, highly sensitive confidential research, development, technical, business
operations, and/or financial information that has not become public, the disclosure of
which is likely to cause harm to the competitive position of the producing party;
Protected Material obtained from a non-party pursuant to a current Nondisclosure
Agreement (“NDA”); and settlement agreements, the disclosure of which is likely to
cause harm to the competitive position of the producing party. In determining whether
information should be designated as “CONFIDENTIAL – ATTORNEYS’ EYES ONLY,”
each party agrees to use such designation only in good faith.
7.

Unless otherwise ordered by the Court or permitted in writing by the

Designating Party, a Receiving Party may disclose any information or item designated
“CONFIDENTIAL—ATTORNEYS’ EYES ONLY” only to:
a.

the Receiving Party’s outside counsel, their staff, and their litigation

support personnel and businesses including consultants and translators,
commercial litigation support service vendors, provided such vendors are subject
to conditions of confidentiality in connection with material designated under this
Protective Order;
b.

any testifying expert or non-testifying expert consultant whom the

Receiving Party retains to assist in the Actions, provided that disclosure is only to
the extent necessary to perform such work, and provided that: (a) such person
has executed an “Written Assurance” in the form attached as Exhibit A, agreeing
to be bound by the terms of this Protective Order, and (b) in the event the notice

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of the expert is required under this Protective Order, no unresolved objections to
such disclosure exist after such notice has occurred;
c.

the Court, jury and court personnel;

d.

court reporters and their staff, Professional Vendors, and/or mock

jurors to whom disclosure is reasonably necessary for the Actions and who have
signed the acknowledgement form attached as Exhibit A. Signature of the
acknowledgement form attached as Exhibit A by an authorized representative of
a Professional Vendor will be construed to encompass all employees of the
Professional Vendor;
e.

any persons who: (a) appear on the face of the designated

CONFIDENTIAL—ATTORNEYS’ EYES ONLY material as an author, addressee,
or recipient thereof, or (b) are witnesses during a court hearing, or trial where
specific documentary or testimonial evidence or other circumstances establishes
that the designated CONFIDENTIAL—ATTORNEYS’ EYES ONLY material was
authored or received by the witness or that the witness previously had authorized
access to the information.
f.

any other person with the prior written consent of the Producing

Party; and
g.

any mediator or settlement officer who is assigned to hear this

matter, and his or her staff.
8.

The designation “CONFIDENTIAL SOURCE CODE – ATTORNEYS’

EYES ONLY” is reserved for any source code (including comments contained therein),
object code, RTL, HDL or other hardware description language, schematics, live data
(that is, data as it exists residing in a database or databases), or pseudo-source-code
(i.e., a notation resembling a programming language but not intended for actual
compilation, which usually combines some of the structure of a programming language
with an informal natural-language description of the computations to be carried out)
(collectively referred to herein as “Source Code”), disclosure of which to another Party
or non-Party would create a substantial risk of harm that could not be avoided by less
restrictive means.

Nothing in this protective order shall be construed so as to (i)

obligate the parties to produce source code, (ii) serve as an admission that source code

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of any type is discoverable in this litigation, or (iii) waive any party’s right to object on
any ground to the production of source code. In the event that source code is produced
in this litigation, source code designated “CONFIDENTIAL SOURCE CODE –
ATTORNEYS’ EYES ONLY” shall be afforded the following additional protections:
a.

Absent

separate

agreement

between

the

Designating

and

Receiving Parties, Source Code shall be produced in one of the following ways:
(i)

A copy of Source Code may be produced by transfer in a

manner that permits an authorized user to view, search, and analyze the
Source Code and print or otherwise duplicate as permitted by this Order.
(ii)

A copy of Source Code may be produced by transfer of

encrypted files or media. The Designating Party may elect the encryption
technology.

The Receiving Party may duplicate the encrypted files or

media, but may not duplicate unencrypted files or media. Encrypted files
may be provided on or transferred to a secure external hard drive and
provided to the office of the Receiving Party’s outside counsel of record or
an expert, which:
(1)

shall,

at

all

times,

employ

strong

password

authentication before access to it, its storage, or its services is
allowed, and again after five (5) minutes of idle time;
(2)

shall not be accessible via, or otherwise connected to,

any external or public network (whether wired and wireless) and
(3)

shall only reside on an external drive and be reviewed

on a standalone computer isolated from direct or indirect access
from public or other external sources, and only when produced
Source Code exists on the computer exclusively in encrypted form,
but said source code shall not be downloaded onto the standalone
computer; and
(iii)

The Source Code may exist on an external drive only in its

encrypted form, except for the particular periods when the computer is in
active, actual use by those persons permitted by this Order to access the
Source Code who are examining the Source Code for purposes of

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prosecuting this litigation, during which periods it may be decrypted, and
able to be viewed, searched and analyzed and printed or otherwise
duplicated as permitted by this Order.

After each such period, the

decrypted Source Code shall be securely deleted in a manner which shall
prevent the recovery of decrypted Source Code, or any portion thereof.
Information for decrypting the Source Code, or any portion thereof (for
example a key, passphrase, or portion thereof) shall (1) not be stored on,
with, or near either media containing the encrypted Source Code or any
computer to which the encrypted Source Code is transferred; (2) not be
persistently stored on any computer which has access to any public or
external network unless separately encrypted in a comparable manner as
the Source Code and prevented from unauthorized decryption; (3) at all
times be kept strictly confidential and not disclosed except to persons who
under this Order are permitted to access the Source Code; and (4) not be
placed in transit simultaneously with either the encrypted Source Code or
any computer or media to which the encrypted Source Code is
transferred.
(iv)

The Designating Party will produce the source code and all

related files in native format and broken out by version number and, if
applicable, product name and/or product model number.
(v)

The production of a given version of source code and related

files will preserve all file names, directory names, modification and/or
commit dates, and organizing structures.
b.

No person shall copy, transmit, transfer, upload, download, print,

photograph or otherwise duplicate any portion of the designated Source Code in
decrypted form, except as follows:
(i)

Excerpts of Source Code may be:
(1)

printed using printers attached to a computer

containing the Source Code;
(2)

converted to an image-only format either directly from

a computer containing the Source Code or from Paper Copies for

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the purpose of compiling (1) attachments to expert reports or
declarations, (b) deposition exhibits, or (c) for submission to the
court in or use in trial or at a hearing;
(3)

the parties shall endeavor to keep to a minimum the

amount of Source Code that is so printed or converted and shall
destroy any printed or converted excerpts that are determined not
to be relevant to any claim or defense of any party;
(4)

the printouts shall include bates numbers with a prefix

of “[Designating Party]-SRC” and the label “CONFIDENTIAL
SOURCE CODE – ATTORNEYS’ EYES ONLY” and shall be
treated as such in accordance with the provisions of this Order; and
(5)

excerpts of limited portions of the Source Code

authorized pursuant to this subsection, and the attachments,
exhibits, or submissions containing them, or copies thereof,
retained by the Receiving Party must be kept in a secured
container or location at all times.
(ii)

Provided that the output is provided the same protections as

Source Code, persons permitted by this Order to access the Source Code
may
(1)

employ industry-accepted source code analytical tools

to generate analytical output from the Source Code that includes or
represents portions thereof reasonably believed by such persons
as needed for analysis to prosecute this litigation; and
(2)

convert excerpts of Source Code to an image-only

format either directly from a computer containing the Source Code
or from Paper Copies for such persons’ analysis or review of the
Source Code excerpts.
(iii)

Any printouts of "CONFIDENTIAL SOURCE CODE -

ATTORNEYS' EYES ONLY" material shall be stored at a facility using
appropriate and reasonable security measures only at (i) the offices of
outside counsel for the Receiving Party; (ii) the offices of outside experts

8

or consultants; (iii) temporarily at the site where any deposition is taken
and for preparation for and use at said deposition, (iv) the Court; or (v) any
intermediate location necessary to transport the information to one of the
foregoing locations. Any printouts shall be maintained at all times in a
secure location preventing access by individuals unauthorized to view
"CONFIDENTIAL SOURCE CODE - ATTORNEYS' EYES ONLY"
material, and shall be destroyed within sixty (60) days of the conclusion of
this action by settlement or final judgment, including exhaustion of all
appeals, as required under Paragraph 21 below.

Upon reasonable

request of the Designating Party, the Receiving Party will provide written
confirmation of the number of printouts made of "CONFIDENTIAL
SOURCE CODE – ATTORNEYS' EYES ONLY" material.
c.

Disclosure or Discovery Material designated as “CONFIDENTIAL

SOURCE CODE – ATTORNEYS’ EYES ONLY” may be disclosed only to:
(i)

the Receiving Party’s outside counsel, their staff, and their

litigation support personnel and businesses including consultants and
translators, commercial copying vendors, data processing vendors, ediscovery vendors, and/or database services;
(ii)

any testifying expert or non-testifying expert consultant

whom the Receiving Party retains to assist in the Actions, provided that
disclosure is only to the extent necessary to perform such work, and
provided that: (a) such person has executed an “Written Assurance” in the
form attached as Exhibit A., agreeing to be bound by the terms of this
Protective Order, and (b) no unresolved objections to such disclosure exist
after proper notice has been given to all parties as set forth in Paragraph 9
below;
(iii)

the Court, jury, and court personnel;

(iv)

court reporters and their staff, Professional Vendors, and/or

mock jurors to whom disclosure is reasonably necessary for the Actions
and who have signed the acknowledgement form attached as Exhibit A.
Signature of the acknowledgement form attached as Exhibit A by an

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authorized representative of a Professional Vendor will be construed to
encompass all employees of the Professional Vendor;
(v)

any other person with the prior written consent of the

Producing Party;
(vi)

any mediator or settlement officer who is assigned to hear

this matter, and his or her staff.
9.

Prior to the disclosure of any Protected Material pursuant to the Order to

any expert witness, consultant, investigator, mediator and/or translator, such expert
witness, consultant, investigator, mediator and/or translator shall review and execute
the Written Assurance (Exhibit A) and return a signed copy to counsel for the Producing
or Designating Party. Counsel for the Producing or Designating Party shall retain a
copy of the Written Assurance for a period of five (5) years following entry of a final
judgment in this matter. In addition, prior to the disclosure of any Protected Material
designated “CONFIDENTIAL – ATTORNEYS’ EYES ONLY” or “CONFIDENTIAL
SOURCE CODE – ATTORNEYS’ EYES ONLY,” counsel intending to disclose such
material to an expert witness, consultant, and/or investigator designated in paragraphs
7 or 8 without providing notice to the Producing/Designating Party, must confirm in
writing that they have obtained from said expert an executed copy of Exhibit A All such
affidavits shall be retained for a period of five (5) years following entry of a final
judgment in this matter.

Such affidavits shall be provided to the Producing or

Designating Party during the litigation only upon a showing of good cause.

Such

affidavits shall be made available to the Producing or Designating Party following final
judgment in the litigation for the purpose of enabling the Producing or Designating Party
to confirm that no misuse of confidential information has occurred. In the event that any
reasonable uncertainty exists as to whether expert witness, consultant, and/or
investigator is a competitor of a party, prior to the disclosure of any material designated
“CONFIDENTIAL – ATTORNEYS’ EYES ONLY” or “CONFIDENTIAL SOURCE CODE
– ATTORNEYS’ EYES ONLY,” counsel intending to disclose such material to said
expert witness, consultant, and/or investigator designated in paragraphs 7 or 8 shall first
make a written request to the Designating Party that: (1) sets forth the full name of the
expert and the city and state of his or her primary residence; (2) attaches a copy of the

10

expert’s current resume; (4) identifies the expert’s current employer(s); (3) identifies
each person or entity from whom the expert has received compensation or funding for
work in his or her area of expertise or to whom the expert has provided professional
services at any time during the preceding three years.1 A party that makes a request
and provides the information specified in paragraph 9 may disclose the material
designated “CONFIDENTIAL – ATTORNEYS’ EYES ONLY” or “CONFIDENTIAL
SOURCE CODE – ATTORNEYS’ EYES ONLY” to the identified expert unless, within 14
days of delivering the request, the party receives a written objection from the
Designating Party. Any such objection must set forth in detail the grounds on which it is
based.
a.

A party that receives a timely written objection must meet and

confer with the Designating Party to try to resolve the matter by agreement within
ten days of the written objection. If no agreement is reached, the party seeking
to make the disclosure to an expert may file a motion seeking permission from
the Court to do so.

Any such motion must describe the circumstances with

specificity, set forth in detail, but without disclosing attorney-client privileged
information and/or information protected from disclosure under the work product
doctrine, the reasons why the disclosure to the expert/consultant/investigator is
reasonably necessary, assess the risk of harm that the disclosure would entail,
and suggest any additional means that could be used to reduce that risk. In
addition, any such motion must be accompanied by a competent declaration
describing the parties’ efforts to resolve the matter by agreement (i.e., the extent
and the content of the meet and confer discussions) and setting forth the reasons
advanced by the Designating Party for its refusal to approve the disclosure.
10.

Third Parties.

Third parties producing documents in the course of this

action may also designate documents as “CONFIDENTIAL,” “CONFIDENTIAL –
ATTORNEYS’ EYES ONLY,” or “CONFIDENTIAL SOURCE CODE – ATTORNEYS’
EYES ONLY,” subject to the same protections and constraints as the parties to the
action. A copy of the Protective Order shall be served along with any subpoena served
1

If the expert believes any of this information is subject to a confidentiality obligation to a third party, then
the expert should provide whatever information the expert believes can be disclosed without violating any
confidentiality agreements, and the party seeking to disclose to the expert shall be available to meet and
confer with the Designating Party regarding any such engagement.
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in connection with this action. All documents produced by such third parties shall be
treated as “CONFIDENTIAL –ATTORNEYS’ EYES ONLY” for a period of 14 days from
the date of their production, and during that period any party may designate such
documents as “CONFIDENTIAL,” “CONFIDENTIAL – ATTORNEYS’ EYES ONLY” or
“CONFIDENTIAL SOURCE CODE –ATTORNEYS’ EYES ONLY” pursuant to the terms
of the Protective Order.
11.

Draft Reports. Drafts of expert reports and declarations, other writings

generated by testifying experts with respect to their work in this case, and
communications between outside counsel and experts relating to their work in this case
are exempt from discovery in this or any other litigation, unless relied on by the expert
as a basis for his or her expert opinion or testimony. Nothing in this Order shall be
construed to limit the discovery or examination of expert witnesses concerning
documents containing factual information or other factual information relied on by the
expert as a basis for his or her final opinions in this case, or compensation received by
such expert witness for his or her testimony, if any, including but not limited to
disclosures required by Fed. R. Civ. P. 26(a)(2)(B)(vi).
12.

Depositions.
a.

A deponent may be shown Protected Material during examination

in his or her deposition if
(i)

the deponent is an author or was a recipient of such

Protected Material;
(ii)

the Protected Material was produced in this litigation by the

deponent, the deponents employer, another party on the same side as the
deponent;
(iii)

testimony or other circumstances indicate that the deponent

previously had or was authorized to access such Protected Material or
knows its contents; or
(iv)

the Designating Party has otherwise consented either in

writing or on the record during the deposition to the showing of the
Protected Material to the witness.

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b.

Witnesses shall not be permitted to retain copies of the Protected

Materials or exhibits, although they may be reviewed in connection with the
reading and signing of the final transcript by the deponent.
c.

All depositions or portions of depositions or exhibits to depositions

taken in this action that contain trade secret or other confidential information may
be designated “CONFIDENTIAL” OR “CONFIDENTIAL – ATTORNEYS’ EYES
ONLY” and thereby obtain the protections accorded other “CONFIDENTIAL” OR
“CONFIDENTIAL – ATTORNEYS’ EYES ONLY” documents.

Confidentiality

designations for depositions shall be made either on the record or by written
notice to the other party within 14 days of receipt of the final transcript unless
otherwise extended by agreement. Unless otherwise agreed, depositions shall
be treated as “CONFIDENTIAL –ATTORNEYS’ EYES ONLY” during the 14-day
period following receipt of the transcript. The deposition of any witness (or any
portion of such deposition) that encompasses Protected Material shall be taken
only in the presence of persons who are qualified to have access to such
Protected Material.

Whether a witness is qualified to view certain Protected

Material may be established by testimony taken during the deposition.
13.

Any notes, lists, memoranda, indices, compilations, or other documents

prepared or based on an examination of “CONFIDENTIAL,” “CONFIDENTIAL –
ATTORNEYS’ EYES ONLY,” or “CONFIDENTIAL SOURCE CODE – ATTORNEYS’
EYES

ONLY”

material

with

such

specificity

that

the

“CONFIDENTIAL,”

“CONFIDENTIAL – ATTORNEYS’ EYES ONLY,” or “CONFIDENTIAL SOURCE CODE
– ATTORNEYS’ EYES ONLY” material can be identified, shall be accorded the same
status of confidentiality as the underlying “CONFIDENTIAL,” “CONFIDENTIAL –
ATTORNEYS’ EYES ONLY,” or “CONFIDENTIAL SOURCE CODE – ATTORNEYS’
EYES ONLY” material from which they are made and shall be subject to all of the terms
of this Protective Order.
14.

Inadvertent Disclosure of Protected Material. Any party who inadvertently

fails to identify documents as “CONFIDENTIAL,” “CONFIDENTIAL – ATTORNEYS’
EYES ONLY,” or “CONFIDENTIAL SOURCE CODE – ATTORNEYS’ EYES ONLY”
shall have 14 days from the discovery of its oversight to correct its failure. Such failure

13

shall be corrected by providing written notice of the error and substituted copies of the
inadvertently produced documents. Any party receiving such inadvertently unmarked
documents shall make reasonable efforts to retrieve documents distributed to persons
not entitled to receive such documents and exchange them with documents with the
corrected designation.
15.

Inadvertent Disclosure of privileged material. Any party who inadvertently

discloses documents that are privileged or otherwise immune from discovery shall,
promptly upon discovery of such inadvertent disclosure, so advise the Receiving Party
and request that the documents be returned. The Receiving Party shall return such
inadvertently produced documents or certify their destruction, including all copies, within
14 days of receiving such a written request. The party returning such inadvertently
produced documents may thereafter seek re-production of any such documents
pursuant to applicable law.
16.

Use of Protected Material in motion, hearing, or trial. All transcripts of

depositions, exhibits, responses to discovery requests, pleadings, briefs, and other
documents submitted to the Court which have been designated as “CONFIDENTIAL,”
“CONFIDENTIAL – ATTORNEYS’ EYES ONLY,” or “CONFIDENTIAL SOURCE CODE
– ATTORNEYS’ EYES ONLY,” or which contain information so designated, shall be
filed electronically under seal in accordance with NECivR 7.5 or order(s) of this Court, or
if electronic submission is impossible, in sealed envelopes or other appropriate sealed
containers on which shall be endorsed the title of this matter, an indication of the nature
of the contents of such sealed envelope or other container, the words ““CONFIDENTIAL
[or CONFIDENTIAL –ATTORNEYS’ EYES ONLY or CONFIDENTIAL SOURCE CODE
– ATTORNEYS’ EYES ONLY]” – Under Protective Order” and a statement substantially
in the following form:
This envelope contains protected information filed in this
case by (name of party) and is not to be opened nor the
contents thereof to be displayed or revealed except by order
of the Court presiding over this matter.
Prior to disclosure at trial or a hearing of materials or information designated
“CONFIDENTIAL,”

“CONFIDENTIAL

–

ATTORNEYS’

EYES

ONLY,”

or

“CONFIDENTIAL SOURCE CODE – ATTORNEYS’ EYES ONLY,” the parties may seek
further protections against public disclosure from the Court.
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17.

Any party may request a change in the designation of any information

designated “CONFIDENTIAL,” “CONFIDENTIAL – ATTORNEYS’ EYES ONLY,” or
“CONFIDENTIAL SOURCE CODE – ATTORNEYS’ EYES ONLY.” Any such document
shall be treated as designated until the change is completed. If the requested change in
designation is not agreed to, the party seeking the change may move the Court for
appropriate relief, providing notice to any third party whose designation of produced
documents as “CONFIDENTIAL,” “CONFIDENTIAL – ATTORNEYS’ EYES ONLY,” or
“CONFIDENTIAL SOURCE CODE – ATTORNEYS’ EYES ONLY” in the action may be
affected. The party asserting that the material is Protected Material shall have the
burden of proving that the material in question qualifies for the designation.
18.

The recipient of any “CONFIDENTIAL,” “CONFIDENTIAL – ATTORNEYS’

EYES ONLY,” or “CONFIDENTIAL SOURCE CODE – ATTORNEYS’ EYES ONLY”
material provided under this Protective Order shall maintain such information in a
secure and safe manner that ensures that access is limited to the persons authorized
under this Protective Order, and shall further exercise at least the same standard of due
and proper care with respect to the storage, custody, use and/or dissemination of such
information as is exercised by the recipient with respect to its own confidential
proprietary information.
19.

Any Designating Party may redact from the documents and things it

produces matter that the Designating Party claims is subject to attorney-client privilege,
work product immunity, a legal prohibition against disclosure, or any other privilege,
protection, or immunity. The Designating Party shall mark each document where matter
has been redacted with a legend stating “REDACTED,” as appropriate, or a comparable
notice, and provide a privilege log that identifies the document by Bates No., specifies
the basis for the redaction (e.g., type of claimed privilege), the identity of the parties
reflected on the document as necessary to support the claim of privilege, and sufficient
additional information concerning the document’s contents so as to assess the claim of
privilege. Where a document consists of more than one page, at least each page on
which information has been redacted shall be so marked. The Designating Party shall
preserve an unredacted version of each such document. In addition to the foregoing,
the following shall apply to redactions of Protected Source Code:

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a.

the process to change the confidentiality designations of redactions

shall be the same as the process for changing designations of “CONFIDENTIAL,”
“CONFIDENTIAL – ATTORNEYS’ EYES ONLY,” or “CONFIDENTIAL SOURCE
CODE – ATTORNEYS’ EYES ONLY” material as set forth in Paragraph 17; and
b.

to the extent that native format files are produced, redactions may

be made to those native files, provided that no more information than necessary
is redacted or changed.
20.

Within 60 days of the termination of the Actions, including any appeals,

each party shall either destroy or return to the opposing party all documents designated
by the opposing party as Protected Material, and all copies of such documents, and
shall destroy all extracts and/or data taken from such documents. Each party shall
provide a certification as to such return or destruction as within the 60-day period.
Attorneys shall be entitled to retain, however, a set of all documents filed with the Court,
their work product, all deposition transcripts and deposition exhibits, and all
correspondence generated in connection with the action.
21.

Any party may apply to the Court for a modification of the Protective

Order, and nothing in the Protective Order shall be construed to prevent a party from
seeking such further provisions enhancing or limiting confidentiality as may be
appropriate.
22.

No action taken in accordance with the Protective Order shall be

construed as a waiver of any claim or defense in the action or of any position as to
discoverability or admissibility of evidence.
23.

In no event shall a Receiving Party use Designated Material of a

Designating Party for the purpose of preparing or prosecuting any patent application, in
the United States or any foreign or international patent office. Outside Counsel who are
given access to material designated “CONFIDENTIAL – ATTORNEYS’ EYES ONLY,”
or “CONFIDENTIAL SOURCE CODE – ATTORNEYS’ EYES ONLY” under Paragraphs
5, 7 and 8 above and who actually access any such material shall not themselves, or
on behalf of a party to this action, prepare, counsel or assist others with the preparation,
filing, or prosecution of any new patent application in the same field as automated
systems and methods for capturing farming operation data in real time using CANbus

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data collection devices, to process, share, and foster analysis of agronomic data as
disclosed in the material designated “CONFIDENTIAL – ATTORNEYS’ EYES ONLY,”
or “CONFIDENTIAL SOURCE CODE – ATTORNEYS’ EYES ONLY” for the duration of
this litigation and for a period of one (1) year following termination of this action by
settlement or final judgment. Experts who are given access to material designated
“CONFIDENTIAL— ATTORNEYS’ EYES ONLY” or “CONFIDENTIAL SOURCE
CODE—ATTORNEYS’ EYES ONLY” under Paragraphs 5, 7, and 8 above and who
actually access any such material shall not themselves, or on behalf of a party to this
action, currently or in the future prepare, counsel or assist others with the preparation,
filing, or prosecution of any patent application concerning automated systems and
methods for capturing farming operation data in real time using CANbus data collection
devices, to process, share, and foster analysis of agronomic data for a period of one (1)
year following termination of this action by settlement or final judgment.
24.

The obligations imposed by the Protective Order shall survive the

termination of this action. Within 60 days following the expiration of the last period for
appeal from any order issued in connection with this action, the parties shall remove
any materials designated “CONFIDENTIAL,” “CONFIDENTIAL – ATTORNEYS’ EYES
ONLY” or “CONFIDENTIAL SOURCE CODE – ATTORNEYS’ EYES ONLY” from the
office of the Clerk of Court. Following that 60-day period, the Clerk of Court shall
destroy all “CONFIDENTIAL,” “CONFIDENTIAL – ATTORNEYS’ EYES ONLY” or
“CONFIDENTIAL SOURCE CODE – ATTORNEYS’ EYES ONLY” materials.
25.

This Protective Order shall be binding upon the Parties hereto, their

attorneys, and their successors, executors, personal representatives, administrators,
heirs, legal representatives, assigns, subsidiaries, divisions, employees, agents,
retained consultants and experts, and any persons or organizations over which they
have direct control.
IT IS SO ORDERED.
Dated this 24th day of October, 2016.
BY THE COURT:
s/ Thomas D. Thalken
United States Magistrate Judge

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