Cassidy et al v. Ditech Financial, LLC et al

Filing 30

PROTECTIVE ORDER granting 29 the parties' Joint Motion for Entry of Stipulated Protective Order. Ordered by Magistrate Judge Thomas D. Thalken. (TRL)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA

CHARLES A. CASSIDY and
AMY J. CASSIDY,
Plaintiffs,

8:16CV373
STIPULATED PROTECTIVE ORDER

vs.
DITECH FINANCIAL, LLC and
KOZENY & MCCUBBIN, L.C.,
Defendants.

This matter is before the Court on the Joint Motion for Entry of Stipulated Protective
Order (Filing No. 29) filed by Plaintiffs Charles A. Cassidy and Amy J. Cassidy and Defendants
Ditech Financial, LLC and Kozeny & McCubbin, L.C. (collectively, the “Parties”). For good
cause shown, the motion is granted and the Court enters this Stipulated Protective Order to
govern discovery and other matters in this case:
1.

Stipulation and Agreement of the Parties. In this action, the Parties have sought

and are seeking Confidential Information (as defined in paragraph 2 below). The Parties also
anticipate that there will be questioning concerning Confidential Information in the course of
depositions. The Parties assert the disclosure of such information outside the scope of this
litigation could result in significant injury to one or more of the Parties’ business interests. The
Parties also assert that the need for this Protective Order also applies to any information or
materials produced by a nonparty as a result of discovery subpoenas or other requests. The
Parties have agreed to the entry of this Protective Order and request the Court enter this
Protective Order for the purpose of preventing the disclosure and use of Confidential Information
by any party or nonparty except as set forth herein. The terms of this Protective Order shall
apply to any information or materials produced by any party or nonparty in this action. 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.
2.

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

Order, “Confidential Information” means any document, file, electronic material, portions of

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files, transcribed testimony or responses to discovery requests, including any extract, abstract,
chart, summary, note or copy made therefrom and designated by one of the parties or a non-party
in the manner provided in paragraph 3 below as containing or comprising confidential policies or
procedures, proprietary business or financial information the release of which would harm the
business interests or otherwise embarrass or invade the privacy of the designating party. Such
documents, information or materials may be so designated as Confidential only if they are not
otherwise publicly available. A producing non-party shall have the same rights and obligations
as a party with regard to such documents, information or things.
Designation of “Confidential Information.”

3.

Where any kind of Confidential

Information is produced, provided or otherwise disclosed by a party or a nonparty 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:
a. By imprinting the words “Confidential,” as appropriate, on at least the first page
or cover of any document produced;
b. By imprinting the words “Confidential,” as appropriate, next to or above any
response to a discovery request;
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,” as appropriate, no later than ten calendar days after
receipt of the transcribed testimony; and
d. 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,” as appropriate. If during the course of a
deposition, a document or other material that has previously been designated
“Confidential,” 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.

Treatment of Confidential Information. Any Confidential Information shall be

treated as confidential by the parties, their attorneys and persons assisting their attorneys as
follows:
a. Confidential Information shall be used only for the purpose of this litigation,
including any appeals, and may not be used for any purpose or disclosed in any
manner outside the reasonable conduct of this case;
b. Except as provided herein, Confidential Information shall not be disclosed to
anyone other than the Court and its staff, the parties hereto, their attorneys of
record in this litigation and their employees who are assisting such attorneys in

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this litigation, any in-house counsel, court reporters who record deposition or
other testimony, witnesses, deponents, consultants and/or experts;
c. If any party, attorney or individual shall disclose Confidential Information to a
consultant or expert witness, it is the obligation of the disclosing party to provide
such person with a copy of this Protective Order and obtain a signed
Confidentiality Agreement (in the form attached hereto and marked as Exhibit A)
whereby such person agrees to be bound by the terms of this Protective Order. A
copy of each executed Confidentiality Agreement shall be maintained by counsel
for the disclosing party in a secure place and, upon request, shall produce the
same to counsel for the non-disclosing party. If any party discloses Confidential
Information to an expert witness who is not expected to be called as a witness at
trial (“non-trial expert”), the disclosing party still has the obligation to provide the
non-trial expert with a copy of this Protective Order and obtain a signed
Confidentiality Agreement (in the form attached hereto and marked as Exhibit A)
whereby the non-trial expert agrees to be bound by the terms of this Protective
Order. Although a copy of each executed Confidentiality Agreement obtained
from such non-trial expert shall be maintained by counsel for the disclosing party
in a secure place, a copy of said executed Confidentiality Agreement shall be
produced to the non-disclosing party only upon court order; and
d. If any person to whom disclosure is permitted under this Protective Order is a
non-party witness or deponent who has not signed a Confidentiality Agreement in
the form attached as Exhibit A, then it is the obligation of the disclosing party to
ensure that such person is not permitted to retain or make copies of any
Confidential Information disclosed to such person, whether such Confidential
Information is contained in a deposition, brief, pleading, affidavit or other form.
5.

Use of Confidential Information in Court Proceedings.

In the event any

information designated as “Confidential Information” 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 labeled on the
applicable pages with the following legend: “Contains Confidential Information Subject To
Protective Order.” Further, such Confidential Information will not be made part of the public
record, and the Court shall not permit disclosure of any Confidential Information or any portion
thereof except as provided herein.
6.

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 Information” or by otherwise complying with the terms of this Protective Order,
such conduct shall not be deemed to:

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a. Operate as an admission by any party that any designated material contains or
reflects trade secrets, proprietary or commercially sensitive information, or any
other type of confidential information;
b. Operate as an admission by any party that the restrictions and procedures set forth
herein constitute or do not constitute adequate protection for any designated
information;
c. Prejudice in any way the rights of the Parties to object to the production of
documents they consider not subject to discovery;
d. Prejudice in any way the rights of any party to object to the authenticity or
admissibility into evidence of any document, testimony or other evidence subject
to this Protective Order;
e. Prejudice in any way the rights of any party to seek a determination by the Court,
whether any information or material should be subject to the terms of this
Protective Order, including, but not limited to, designations made by a nonparty;
f. Prejudice in any way the rights of any party to petition the Court for a further
protective order relating to any purportedly Confidential Information; or
g. Prevent the Parties from agreeing in writing or on the record during a deposition
or hearing in this action to alter or waive the provisions or protections provided
for herein with respect to any particular information or material.
7.

Objection to Designation of Confidential Information. Should a party object to

the designation of documents or materials as Confidential Information, the objecting party shall,
within 30 days, notify the opposing side’s attorneys in writing of such objection. Failure by
either side to object to the confidentiality designation within the time prescribed will serve as a
waiver of any subsequent objection. The Parties shall first try to dispose of such dispute in good
faith on an informal basis. If the dispute cannot be resolved informally, the party opposing the
confidentiality of the information may apply for appropriate relief from this Court, which may
conduct an in camera inspection of the materials. The party seeking confidentiality of this
information shall have the burden of establishing that the information is entitled to confidential
treatment. If the challenging party fails to apply for relief from the Court within 60 days from
receipt of the confidential materials, the party will be considered to have abandoned its objection
and will be estopped from any further assertion of the same.
8.

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.
9.

Obligations After Final Disposition.

Any originals or reproductions of any

documents designated as Confidential Information shall be (a) returned to the designating party

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at its expense within thirty (30) days of the designating party’s written request, after the
conclusion of this action, including appeal, by entry of a final order; or (b) held in the possession
of the receiving party, or its attorneys, pursuant to the terms of this Protective Order and
destroyed in accordance with the established document retention policy of the receiving party or
that of its attorneys.
10.

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.
11.

Inadvertent Production of Undesignated/Misdesignated Confidential Information.

If a party inadvertently produces Confidential Information without marking it as such, it may be
disclosed to others until the receiving party becomes aware of the error. 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.
12.

Agreement To Be Bound. By executing this Stipulated Protective Order, counsel

for the Parties agree that the Parties and counsel for the Parties are bound by the conditions
hereof.
13.

Court Maintenance of Confidential Information. The Parties hereby request that

the Court maintain its copies of the documents or materials containing Confidential Information
subject to the Protective Order contemplated hereby protected under RESTRICTED ACCESS,
pursuant to NECivR 5.3, and not permit them to be inspected by the public.

IT IS SO ORDERED.
Dated this 20th day of December, 2016.
BY THE COURT:
s/ Thomas D. Thalken
United States Magistrate Judge

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EXHIBIT A
CONFIDENTIALITY AGREEMENT
The undersigned hereby acknowledges that he/she has read the Stipulated Protective
Order entered by the United States District Court for the District of Nebraska in the action
entitled Charles A. Cassidy and Amy J. Cassidy v. Ditech Financial, LLC and Kozeny &
McCubbin, L.C., Case No. 8:16-cv-00373-JFB-TDT, that he/she understands the terms thereof,
and that he/she agrees to be bound by such terms.

Dated this _______ day of _________________________, 20___.

______________________________

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