Coach, Inc. et al v. Overton
Filing
54
AGREED PROTECTIVE ORDER - In accordance with the Court's prior Order (Filing No. 53 ), Plaintiffs Coach, Inc. and Coach Services, Inc. (hereinafter collectively referred to as "Coach") and Defendant James R. Overton, III a/k/a Jay Overton, individually and d/b/a Lantex LLC a/k/a Fresh Wear (hereinafter "Mr. Overton") (together, "the Parties") agree to the terms of this Agreed Protective Order.Ordered by Magistrate Judge Michael D. Nelson. (KLF)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
COACH, INC., and
COACH SERVICES, INC.,
Plaintiffs,
vs.
8:16CV339
AGREED PROTECTIVE ORDER
JAMES R. OVERTON, III, a/k/a JAY
OVERTON, individually and d/b/a LANTEX
LLC a/k/a FRESH WEAR,
Defendant.
In accordance with the Court’s prior Order (Filing No. 53), Plaintiffs Coach, Inc. and
Coach Services, Inc. (hereinafter collectively referred to as “Coach”) and Defendant James R.
Overton, III a/k/a Jay Overton, individually and d/b/a Lantex LLC a/k/a Fresh Wear (hereinafter
“Mr. Overton”) (together, “the Parties”) agree to the terms of this Agreed Protective Order.
Accordingly,
IT IS ORDERED that the parties’ Agreed Protective Order is approved, and the following
protective order shall apply in this case:
1.
Scope. All materials produced or adduced in the course of discovery, including
initial disclosures, responses to discovery requests, deposition testimony and exhibits, and
information derived directly therefrom (hereinafter collectively “documents”), shall be subject to
this Order concerning Confidential Information as defined below. This Order is subject to the
Local Rules of this District and the Federal Rules of Civil Procedure on matters of procedure and
calculation of time periods.
2.
Confidential Information. As used in this Order, “Confidential Information”
means information designated as “CONFIDENTIAL - SUBJECT TO PROTECTIVE ORDER”
by the producing party that falls within one or more of the following categories: (a) information
prohibited from disclosure by statute; (b) information that reveals trade secrets; (c) research,
technical, commercial or financial information that the party has maintained as confidential; (d)
medical information concerning any individual; (e) personal identity information; (f) personal and
corporate income tax returns (including attached schedules and forms), W-2 forms and 1099
forms; or (g) personnel or employment records of a person who is not a party to the case.
Information or documents that are available to the public may not be designated as Confidential
Information.
3.
Designation.
(a)
A party may designate a document as Confidential Information for
protection under this Order by placing or affixing the words “CONFIDENTIAL - SUBJECT TO
PROTECTIVE ORDER” on the document and on all copies in a manner that will not interfere
with the legibility of the document. As used in this Order, “copies” includes electronic images,
duplicates, extracts, summaries or descriptions that contain the Confidential Information. The
marking “CONFIDENTIAL - SUBJECT TO PROTECTIVE ORDER” shall be applied prior to or
at the time the documents are produced or disclosed. Applying the marking “CONFIDENTIAL SUBJECT TO PROTECTIVE ORDER” to a document does not mean that the document has any
status or protection by statute or otherwise except to the extent and for the purposes of this Order.
Any copies that are made of any documents marked “CONFIDENTIAL - SUBJECT TO
PROTECTIVE ORDER” shall also be so marked, except that indices, electronic databases or lists
of documents that do not contain substantial portions or images of the text of marked documents
and do not otherwise disclose the substance of the Confidential Information are not required to be
marked.
(b)
The designation of a document as Confidential Information is a certification
by an attorney or a party appearing pro se that the document contains Confidential Information as
defined in this Order.
4.
Depositions. Deposition testimony is protected by this Order only if designated as
“CONFIDENTIAL - SUBJECT TO PROTECTIVE ORDER” on the record at the time the
testimony is taken. Such designation shall be specific as to the portions that contain Confidential
Information. Deposition testimony so designated shall be treated as Confidential Information
protected by this Order until fourteen days after delivery of the transcript by the court reporter to
any party or the witness. Within fourteen days after delivery of the transcript, a designating party
may serve a Notice of Designation to all parties of record identifying the specific portions of the
transcript that are designated Confidential Information, and thereafter those portions identified in
the Notice of Designation shall be protected under the terms of this Order. The failure to serve a
timely Notice of Designation waives any designation of deposition testimony as Confidential
Information that was made on the record of the deposition, unless otherwise ordered by the Court.
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5.
Protection of Confidential Material.
(a)
General Protections. Confidential Information shall not be used or
disclosed by the parties, counsel for the parties or any other persons identified in subparagraph (b)
for any purpose whatsoever other than in this litigation, including any appeal thereof.
(b)
Limited Third-Party Disclosures. The parties and counsel for the parties
shall not disclose or permit the disclosure of any Confidential Information to any third person or
entity except as set forth in subparagraphs (1) - (9). Subject to these requirements, the following
categories of persons may be allowed to review Confidential Information:
(1)
Counsel.
Counsel for the parties and employees of counsel
who have responsibility for the action;
(2)
Parties.
Individual parties and employees of a party but only
to the extent counsel determines in good faith that the employee’s assistance is reasonably
necessary to the conduct of the litigation in which the information is disclosed;
(3)
The Court and its personnel;
(4)
Court Reporters and Recorders. Court reporters and recorders
engaged for depositions;
(5)
Contractors. Those persons specifically engaged for the limited
purpose of making copies of documents or organizing or processing documents, including outside
vendors hired to process electronically stored documents;
(6)
Consultants and Experts. Consultants, investigators, or experts
employed by the parties or counsel for the parties to assist in the preparation and trial of this action
but only after such persons have completed the certification contained in Attachment A,
Acknowledgment of Understanding and Agreement to be Bound;
(7)
Witnesses at depositions. During their depositions, witnesses in
this action to whom disclosure is reasonably necessary. Witnesses shall not retain a copy of
documents containing Confidential Information, except witnesses may receive a copy of all
exhibits marked at their depositions in connection with review of the transcripts. Pages of
transcribed deposition testimony or exhibits to depositions that are designated as Confidential
Information pursuant to the process set out in this Order must be separately bound by the court
reporter and may not be disclosed to anyone except as permitted under this Order.
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(8)
Author or recipient. The author or recipient of the document (not
including a person who received the document in the course of litigation); and
(9)
Others by Consent. Other persons only by written consent of the
producing party or upon order of the Court and on such conditions as may be agreed or ordered.
(c)
Control of Documents. Counsel for the parties shall make reasonable
efforts to prevent unauthorized or inadvertent disclosure of Confidential Information. Counsel
shall maintain the originals of the forms signed by persons acknowledging their obligations under
this Order for a period of three years after the termination of the case.
6.
Inadvertent Failure to Designate. An inadvertent failure to designate a document
as Confidential Information does not, standing alone, waive the right to so designate the document;
provided, however, that a failure to serve a timely Notice of Designation of deposition testimony
as required by this Order, even if inadvertent, waives any protection for deposition testimony. If a
party designates a document as Confidential Information after it was initially produced, the
receiving party, on notification of the designation, must make a reasonable effort to assure that the
document is treated in accordance with the provisions of this Order. No party shall be found to
have violated this Order for failing to maintain the confidentiality of material during a time when
that material has not been designated Confidential Information, even where the failure to so
designate was inadvertent and where the material is subsequently designated Confidential
Information.
7.
Filing of Confidential Information. This Order does not, by itself, authorize the
filing of any document under seal. Any party wishing to file a document designated as Confidential
Information in connection with a motion, brief or other submission to the Court must comply with
Local Rules.
8.
No Greater Protection of Specific Documents. Except on privilege grounds not
addressed by this Order, no party may withhold information from discovery on the ground that it
requires protection greater than that afforded by this Order unless the party moves for an order
providing such special protection.
9.
Challenges by a Party to Designation as Confidential Information. The
designation of any material or document as Confidential Information is subject to challenge by
any party. The following procedure shall apply to any such challenge.
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(a)
Meet and Confer.
A party challenging the designation of Confidential
Information must do so in good faith and must begin the process by conferring directly with
counsel for the designating party. In conferring, the challenging party must explain the basis for
its belief that the confidentiality designation was not proper and must give the designating party
an opportunity to review the designated material, to reconsider the designation, and, if no change
in designation is offered, to explain the basis for the designation. The designating party must
respond to the challenge within five (5) business days.
(b)
Judicial Intervention.
A
party
that
elects
to
challenge
a
confidentiality designation may file and serve a motion that identifies the challenged material and
sets forth in detail the basis for the challenge. Each such motion must be accompanied by a
competent declaration that affirms that the movant has complied with the meet and confer
requirements of this procedure. The burden of persuasion in any such challenge proceeding shall
be on the designating party. Until the Court rules on the challenge, all parties shall continue to treat
the materials as Confidential Information under the terms of this Order.
10.
Action by the Court. Applications to the Court for an order relating to materials
or documents designated Confidential Information shall be by motion. Nothing in this Order or
any action or agreement of a party under this Order limits the Court’s power to make orders
concerning the disclosure of documents produced in discovery or at trial.
11.
Use of Confidential Documents or Information at Trial. Nothing in this Order
shall be construed to affect the use of any document, material, or information at any trial or hearing.
A party that intends to present or that anticipates that another party may present Confidential
Information at a hearing or trial shall bring that issue to the Court’s and parties’ attention by motion
or in a pretrial memorandum without disclosing the Confidential Information. The Court may
thereafter make such orders as are necessary to govern the use of such documents or information
at trial.
12.
Confidential Information Subpoenaed or Ordered Produced in Other
Litigation.
(a)
If a receiving party is served with a subpoena or an order issued in other
litigation that would compel disclosure of any material or document designated in this action as
Confidential Information, the receiving party must so notify the designating party, in writing,
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immediately and in no event more than three court days after receiving the subpoena or order.
Such notification must include a copy of the subpoena or court order.
(b)
The receiving party also must immediately inform in writing the party who
caused the subpoena or order to issue in the other litigation that some or all of the material covered
by the subpoena or order is the subject of this order. In addition, the receiving party must deliver
a copy of this Order promptly to the party in the other action that caused the subpoena to issue.
(c)
The purpose of imposing these duties is to alert the interested persons to the
existence of this Order and to afford the designating party in this case an opportunity to try and
protect its Confidential Information in the court from which the subpoena or order issued. The
designating party shall bear the burden and the expense of seeking protection in that court of its
Confidential Information, and nothing in these provisions should be construed as authorizing or
encouraging a receiving party in this action to disobey a lawful directive from another court. The
obligations set forth in this paragraph remain in effect while the party has in its possession, custody
or control Confidential Information by the other party to this case.
13.
Challenges by Members of the Public to Sealing Orders. A party or interested
member of the public has a right to challenge the sealing of particular documents that have been
filed under seal, and the party asserting confidentiality will have the burden of demonstrating the
propriety or filing under seal.
14.
Obligations on Conclusion of Litigation.
(a)
Order Continues in Force. Unless otherwise agreed or ordered, this Order
shall remain in force after dismissal or entry of final judgment not subject to further appeal.
(b)
Obligations at Conclusion of Litigation. Within sixty (60) days after
dismissal or entry of final judgment not subject to further appeal, all Confidential Information and
documents marked “CONFIDENTIAL - SUBJECT TO PROTECTIVE ORDER” under this order,
including copies as defined in Paragraph 3(a), shall be returned to the producing party unless: (1)
the document has been offered into evidence or filed without restriction as to disclosure; (2) the
parties agree to destruction to the extent practicable in lieu of return; or (3) as to documents bearing
the notations, summations, or other mental impressions of the receiving party, that party elects to
destroy the documents and certifies to the producing party that it has done so.
(c)
Retention of Work Product and one set of Filed Documents.
Notwithstanding the above requirements to return or destroy documents, counsel may retain (1)
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attorney work product, including an index that refers or relates to designated Confidential
Information so long as that work product does not duplicate verbatim substantial portions of
Confidential Information, and (2) one complete set of all documents filed with the Court including
those filed under seal. Any retained Confidential Information shall continue to be protected under
this Order. An attorney may use his or her work product in subsequent litigation, provided that its
use does not disclose or use Confidential Information.
(d)
Deletion of Documents filed under Seal from Electronic Case Filing
(ECF) System. Filings under seal shall be deleted from the ECF system only upon order of the
Court.
15.
Order Subject to Modification. This Order shall be subject to modification by the
Court on its own initiative or on motion of a party or any other person with standing concerning
the subject matter.
16.
No Prior Judicial Determination. This Order is entered based on the
representations and agreements of the parties and for the purpose of facilitating discovery. Nothing
herein shall be construed or presented as a judicial determination that any document or material
designated Confidential Information by counsel or the parties is entitled to protection under Rule
26(c) of the Federal Rules of Civil Procedure or otherwise until such time as the Court may rule
on a specific document or issue.
17.
Persons Bound. This Order shall take effect when entered and shall be binding
upon all counsel of record and their law firms, the parties, and persons made subject to this order
by its terms.
IT IS SO ORDERED.
Dated this 29th day of May, 2018.
BY THE COURT:
s/ Michael D. Nelson
United States Magistrate Judge
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ATTACHMENT A
ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND
The undersigned hereby acknowledges that he/she has read the Confidentiality Order dated
and attached hereto, entered in Coach, Inc. and Coach Services, Inc. v.
James R. Overton III, a/k/a Jay Overton, individually and d.b.a Lantex LLC a/k/a Fresh Wear, No.
8:16-cv-00339-LSC-MDN, understands the terms thereof, and agrees to be bound by its terms.
The undersigned submits to the jurisdiction of the United States District Court for the District of
Nebraska in matters relating to the Confidentiality order and understands that the terms of the
Confidentiality Order obligate him/her to use materials designated as Confidential Information in
accordance with the Order solely for the purposes of the above-captioned action, and not to
disclose any such Confidential Information to any other person, firm or concern.
The undersigned acknowledges that violation of the Confidentiality Order may result in
penalties for contempt of court.
Name:
Job Title:
Employer:
Business Address:
E-mail:
Date:
Signature
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