Westbrook v. Tyson Foods, Inc.

Filing 18

ORDER granting 17 Protective order. Ordered by Magistrate Judge Cheryl R. Zwart. (Zwart, Cheryl)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA

LLOYD E. WESTBROOK,

Civil No. 8:16-cv-00344

Plaintiff,
v.

STIPULATION FOR PROTECTIVE
ORDER AND PROTECTIVE ORDER

TYSON FOODS, INC.,
Defendant.
Plaintiff Lloyd E. Westbrook (“Westbrook”) and Defendant Tyson Fresh Meats, Inc.,
incorrectly named as Tyson Foods, Inc. (“Tyson”) (Westbrook and Tyson are hereafter collectively
referred to as the “Parties”), by and through their respective undersigned counsel, hereby stipulate
and agree to the request for, and entry of, the following Protective Order:
1.

In this action, the Parties are seeking Confidential Information (as defined in

Paragraph 2 below). The Parties also anticipate seeking additional Confidential Information during
discovery and that there will be questioning concerning Confidential Information in the course of
depositions.

The Parties assert that the need for this Protective Order also applies to any

information or materials produced by a non-party as a result of discovery subpoenas or other
requests. The Parties have entered into this Stipulation and request the Court enter the Protective
Order for the purpose of preventing the disclosure and use of Confidential Information by any Party
or non-party except as set forth herein. The terms of this Protective Order shall apply to any
information or materials produced by any Party or non-party as part of discovery in this action.
Each and every attorney with the law firms representing the Parties in this case shall be deemed to
be subject to this Protective Order and shall be deemed to have actual knowledge of the restrictions
herein.

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2.

Definition of “Confidential Information.” Under the terms of this Protective Order,

“Confidential Information” means any document, file, portions of files, transcribed testimony, or
responses to discovery requests, including any extract, abstract, chart, summary, note, or copy made
therefrom – not made available to the public – and designated by one of the Parties or a non-party
(in the manner provided in Paragraph 3 below) as containing or comprising confidential or sensitive
information or other trade secrets or proprietary business information. In connection with this
Stipulation and Protective Order, Confidential Information shall constitute one of two categories of
information or materials, as follows:
a.

“Confidential Material” shall be documents, information or materials the
release of which would harm one of the Parties, including but not limited to,
medical information related to Westbrook, non-public financial or business
records, personnel records of non-parties, internal personnel policies and
procedures of Tyson and any affiliate entity, and other information which is
private in nature and may have the effect, if not deemed to be confidential, of
embarrassing, humiliating or otherwise invading the privacy of a Party, and
could potentially cause significant public and private harm, humiliation and
exposure to the Parties. Such information or materials may only be so
designated if they are not otherwise publicly available.

b.

“Confidential – Attorneys’ Eyes Only” shall be information or materials
which relates to highly sensitive financial, personnel and proprietary
information for which any unprotected disclosure would harm the
commercial or business interests of the designating Party. Such information
or materials may only be so designated if they are not otherwise publicly
available.

3.

Designation of “Confidential Information.”

Where any kind of Confidential

Information is produced, provided or otherwise disclosed by a Party or a non-party in response to
any discovery request or subpoena, including by means of entry onto land or premises or by
inspection of books, records, documents, or tangible things, such Confidential Information will be
designated in the following manner:

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a.

By imprinting the words “Confidential” or “Confidential – Attorneys’ Eyes
Only,” as appropriate, on at least the first page or cover of any document
produced;

b.

By imprinting the words “Confidential” or “Confidential – Attorneys’ Eyes
Only,” as appropriate, next to or above any response to a discovery request;
and

c.

With respect to transcribed testimony, either during the deposition on the
record, or by giving written notice to opposing counsel sufficient to designate
such portions as “Confidential” or “Confidential – Attorneys’ Eyes Only,” as
appropriate, no later than twenty (20) calendar days after receipt of the
transcribed testimony.
During a deposition, the deponent or his counsel, or any other counsel of
record present at the deposition, may give notice on the record that testimony
about to be given is deemed “Confidential” or “Confidential – Attorneys’
Eyes Only,” as appropriate. If during the course of a deposition, a document
or other material that has previously been designated “Confidential” or
“Confidential – Attorneys’ Eyes Only” is used, then that particular portion of
the deposition shall be deemed to be subject to the same level of protection
accorded to the designated document without further need of any written
designation of the deposition transcript by the designating party.

4.

Restrictions on Confidential Information. All Confidential Information provided by

a Party or a non-party in response to a discovery request or as transcribed testimony shall be subject
to the following restrictions:
a.

“Confidential Material”:
i.

“Confidential Material” shall be used only for the purpose of this
litigation and not for any business or other purpose whatsoever.

ii.

“Confidential Material” shall not be communicated or disclosed by
any Party’s counsel or a Party in any manner, either directly or
indirectly, to anyone except for purposes of this litigation.

iii.

“Confidential Material” may only be disclosed or communicated to
the following persons:
(a)

The Parties’ outside counsel of record in this action and any
regular or temporary employees of such counsel to whom it is
necessary that the information or material be shown for
purposes of this litigation;
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(b)
(c)

Independent document reproduction services or document or
video recording and retrieval services;

(e)

Non-technical jury or trial consulting services retained by
counsel for a Party;

(f)

Expert witnesses retained or consulted by the Parties in
connection with this litigation; and

(g)

b.

Graphics or design services firms retained by counsel for a
Party for purposes of preparing demonstrative or other
exhibits for deposition, trial or other proceedings;

(d)

iv.

The Parties’ in-house counsel;

The finder of fact or concluder of law.

Undertaking: Confidential Materials may be disclosed only to the
persons listed in Paragraph 4.a.iii, subparagraphs (c), (d), (e) and (f)
only after such person(s) have executed a declaration in the form
attached as Exhibit A.

“Confidential – Attorneys’ Eyes Only” Material:
i.

ii.

5.

“Confidential – Attorneys’ Eyes Only Material shall be used only for
the purpose of this litigation and may not be used for any other
purpose outside the reasonable conduct of this case.
The receiving Party’s counsel shall ensure that the information is
disclosed or communicated only to persons as designated above in
“Confidential –
Paragraph 4.a.iii, subparagraphs (a) and (b).
Attorneys’ Eyes Only” may be disclosed to those persons listed in
Paragraph 4.a.iii, subparagraph (f) only after such person(s) have
executed a declaration in the form attached as Exhibit B.

Use of Confidential Materials in Court Proceedings. In the event any material

designated “Confidential Material” or “Confidential – Attorneys’ Eyes Only” is used in any court
filing or legal proceeding, including, but not limited to, its use at trial, it shall not lose its
confidential status as between the Parties through such use. Any memorandum, brief, or other
pleading that contains Confidential Information in the body of the document shall be prominently

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labeled on the applicable pages with the following legend: “Contains Confidential Information
Subject To Protective Order.” All Confidential Material filed with the Court, and all portions of
pleadings, motions or other papers filed with the Court that disclose any Confidential Information,
shall be filed under restricted access pursuant to any rules or orders pertaining to the filing of
information and documents under seal.
6.

Continuing Duty.

The termination of this action shall not relieve counsel, the

Parties, or other persons obligated hereunder from their responsibility to maintain the confidentiality
of Confidential Information pursuant to this Protective Order, and the Court shall retain continuing
jurisdiction to enforce the terms of this Protective Order. The Parties agree that in no event shall the
obligations of this Protective Order continue beyond two years from the final disposition of this
matter, by order, settlement, or otherwise.
7.

Protective Order Not Admission. By agreeing to the entry of this Protective Order,

the Parties adopt no position as to the authenticity or admissibility of documents produced subject to
it.

Furthermore, by producing or receiving information or material designated “Confidential

Material” or “Confidential – Attorneys’ Eyes Only” or by otherwise complying with the terms of
this Protective Order, such conduct shall not be construed as an admission as to the relevance,
authenticity, foundation or admissibility of any document, material, transcript or other information.
8.

Obligations After Final Disposition. The provisions of this Protective Order shall,

absent written permission of the producing Party, or further order of the Court, continue to be
binding throughout and after the conclusion of this action, including any appeals or remands.
Within sixty (60) days after receiving notice of the entry of an order, judgment or decree finally
disposing of this action, including any appeals therefrom, all persons having received Confidential
Information shall return such materials and all copies thereof (including summaries and excerpts) to

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counsel for the producing Party or shall certify destruction thereof. The outside counsel for each
Party shall be entitled to retain court papers, deposition transcripts, and attorney work product that
contains, reflects or summarizes Confidential Information, provided that such counsel, and
employees of such counsel, shall not disclose any such Confidential Information to any person or
entity except pursuant to a written agreement with the producing Party. All materials returned to
the Parties or their counsel by the Court likewise shall be disposed of in accordance with this
Paragraph.
9.

No Bar to Seeking Further Relief. Nothing in this Protective Order shall preclude

any Party from filing a motion seeking further or different protection from the Court or from filing a
motion with respect to the manner in which Confidential Information shall be treated at trial.
10.

Treatment of Confidential Information at Trial.

In the event any Confidential

Information is to be used in any court proceeding or any appeal therefrom, counsel for the Parties
shall confer on such procedures as are necessary to protect the confidentiality of any documents,
information, and transcripts used in the course of any such proceeding, and shall move the Court to
incorporate such procedures.
11.

Examination of Witnesses Regarding “Confidential Information.” Any person may

be examined as a witness at trial or during a deposition concerning any information or material that
has been designated “Confidential Information” which that person had lawfully received or
authored prior to and apart from this action. During such examination, any such witness may be
shown information or material designated “Confidential Information” which appears on its face or
from other documents or testimony to have been received or authored by that witness. Whenever a
person appears from the face of a document that has been designated “Confidential Information” to
have been the author or lawful recipient of that document, such person may be shown, but not

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permitted to retain custody of, that specific document shown to them despite the restrictions on
access set out in Paragraph 4 of this Protective Order.
12.

Inadvertent Production of Undesignated/Misdesignated Confidential Information. If

a Party inadvertently produces Confidential Information without marking it as such, or with a
designation that is insufficient for the level of confidentiality that should be attached to the material,
it may be disclosed to others until the receiving Party becomes aware of the error, unless it appears
from the face of the material that it contains nonpublic, confidential, proprietary, commercially
sensitive, or trade secret information of the producing Party. As soon as the receiving Party
becomes aware of the inadvertent production, the information must be treated as if it had been
timely and correctly designated under this Protective Order, and the receiving Party must endeavor
in good faith to obtain all copies of the document which it distributed or disclosed to persons not
authorized to have access to such information, as well as any copies made by such persons.
13.

Inadvertent Production of Privileged Materials. If a Party inadvertently produces a

document that it later discovers to be a privileged document, the production of that document shall
not be deemed to constitute a waiver of any applicable privileges. In such circumstances, if the
receiving Party discovers such inadvertent disclosure, the receiving Party must immediately notify
the producing Party and return or confirm destruction of the privileged materials. Within five (5)
business days of receiving such notification, the receiving Party shall return or confirm destruction
of all such materials, including any summaries thereof. Such return or confirmation of destruction
shall not preclude the receiving Party from seeking to compel production of the materials for
reasons other than its inadvertent production.
14.

Binding Effect of Protective Order Before Entry by Court. The Parties agree to be

bound by the terms of this Stipulation and Protective Order pending its entry by the Court, or

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pending entry of an alternative thereto. Any violation of the terms of this Stipulation prior to its
entry, or prior to the entry of an alternative order, shall be subject to the same sanctions and
penalties as if this Stipulation had been entered as an order of the Court.
15.

Obligations Under Subpoena in Other Action. If a Party is (a) subpoenaed in another

action, (b) served with a demand in another action to which it is a party, or (c) served with any other
legal process by one not a Party to this action, seeking Confidential Information which it received
from the other Party, the Party so served shall give prompt, written notice to the producing Party, by
hand or electronic service, within ten (10) business days of its receipt of such subpoena, demand, or
legal process.
Dated this____
March 30, 2017. day of ________________________, 2017.
BY THE COURT:
BY THE COURT:

_______________________
Cheryl R. Zwart
United United States Court Judge Judge
States District Magistrate

APPROVED BY:
Dated this 29th day of March, 2017.

Dated this 29th day of March, 2017.

LLOYD E. WESTBROOK, Plaintiff

TYSON FRESH MEATS, INC., incorrectly
named as TYSON FOODS, INC., Defendant

s/ John P. Weis
John P. Weis, #19618
Wolfe, Snowden, Hurd, Luers, & Ahl, LLP
Wells Fargo Center
1248 O Street, Suite 800
Lincoln, NE 68508
[phone]
[e-mail]

s/ Marcia A. Washkuhn
Marcia A. Washkuhn, #21022
Kasey Cappellano, #23619
KUTAK ROCK LLP
1650 Farnam Street
Omaha, NE 68102
[phone]
[e-mail]
[e-mail]

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CERTIFICATE OF SERVICE
This certifies the undersigned attorney has caused service of the foregoing STIPULATION
FOR PROTECTIVE ORDER AND PROTECTIVE ORDER to be made by mailing by ordinary
first-class mail, postage prepaid, to the last known address of the following attorneys representing
parties to this action, on this 29th day of March, 2017.
John P. Weis, Esq.
Wolfe, Snowden, Hurd, Luers, & Ahl, LLP
Wells Fargo Center
1248 O Street, Suite 800
Lincoln, NE 68508
[e-mail]
By s/Marcia A. Washkuhn
Marcia A. Washkuhn

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EXHIBIT A – “Confidential Material”

DECLARATION OF _____________________

___________________ swears or affirms and states under penalty of perjury:
1.
I have read the Protective Order in this action, Lloyd E. Westbrook v. Tyson Foods,
Inc., Civil Action No. 8:16-cv-00344 in the United States District Court for the District of
Nebraska, a copy of which is attached to this Declaration.
2.
I have been informed by ______________________, Esq., counsel for
___________________, that I will be given access to information, documents or other materials
that have been defined as “Confidential Material” under the Protective Order.
3.
I promise that I have not and will not divulge, or undertake to divulge, to any person
or recording device any “Confidential Material,” or any other Confidential Information, shown or
told to me except as authorized in the Protective Order. I will not use the Confidential Information
for any purpose other than this litigation. I will not use the Confidential Information for any
commercial purpose.
4.
For the purposes of enforcing the terms of the Protective Order, I hereby submit
myself to the jurisdiction of the Court in the civil action referenced above.
5.

I will abide by the terms of the Protective Order.

(Signature)

(Print or Type Name)
Address:

Telephone No.: (

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)

EXHIBIT B – “Confidential – Attorneys’ Eyes Only” Material

DECLARATION OF _____________________

___________________ swears or affirms and states under penalty of perjury:
1.
I have read the Protective Order in this action, Lloyd E. Westbrook v. Tyson
Foods, Inc., Civil Action No. 8:16-cv-00344 in the United States District Court for the District of
Nebraska, a copy of which is attached to this Declaration.
2.
I have been informed by ____________________, Esq., counsel for
____________________, that I will be given access to information, documents or other materials
that have been defined as “Confidential Material” or “Confidential – Attorneys’ Eyes Only” and
which were produced by the opposing Party subject to the Protective Order.
3.
I promise that I have not and will not divulge, or undertake to divulge, to any
person or recording device any “Confidential Material” or “Confidential – Attorneys’ Eyes
Only” Material or any other Confidential Information, shown or told to me except as authorized
in the Protective Order. I will not use the Confidential Information for any purpose other than
this litigation. I will not use the Confidential Information for any commercial purpose.
4.
For the purposes of enforcing the terms of the Protective Order, I hereby submit
myself to the jurisdiction of the Court in the civil action referenced above.
5.

I will abide by the terms of the Protective Order.

(Signature)

(Print or Type Name)
Address:

Telephone No.: (

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)