Gibson v. Concrete Equipment Company, Inc.

Filing 19

ORDER granting 18 Motion for Protective Order Ordered by Magistrate Judge Cheryl R. Zwart. (Zwart, Cheryl)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA

AMANDA GIBSON,
CASE NO. 8:16cv384

Plaintiff,

PROPOSED PROTECTIVE ORDER

v.
CONCRETE EQUIPMENT COMPANY,
INC. D/B/A CON-E-CO., A NEBRASKA
CORPORATION,
Defendant.

PROTECTIVE ORDER

1. DEFINITIONS. Limitations under this Protective Order on the use or disclosure
of documents, deposition testimony or other discovery designated as "Confidential" shall
apply to (a) all information, copies, extracts and complete or partial summaries prepared or
derived from such documents or testimony; (b) portions of deposition transcripts, answers
to interrogatories, responses to requests for admissions, responses to requests for
production, initial disclosures and exhibits thereto which directly refer or directly relate to
any such information, documents, copies, extracts or summaries; and (c) portions of briefs,
memoranda or any other writing filed with the Court and exhibits thereto which directly
relate to any such information, documents, copies, extracts or summaries.
2.

CONFIDENTIAL DOCUMENTS/INFORMATION.

The parties seek to

protect from disclosure certain personal and sensitive information regarding the
employees of Defendant relating to this lawsuit and Plaintiff’s medical history and other
personal, confidential information. Before produced documents are copied or inspected,
the producing party may stamp as "Confidential" or similar notation on any document or

deposition testimony which contains such sensitive information. Documents may also be
designated as "Confidential” by written notice to opposing counsel which identifies the
documents so designated by Bates number.

Documents designated "Confidential",

deposition testimony so designated, and information derived therefrom will be retained by
counsel and will not be used for any purpose other than this litigation and will not be
disclosed except pursuant to court order entered after notice, to anyone except:
a.

Counsel who have signed this Order approving it as to form and content,
attorneys who are employed by Plaintiff, retained outside counsel, in house
counsel, law clerks, secretaries or paralegals directly involved in the conduct
of this litigation;

b.

Experts and consultants retained by a party to this action for purposes of
assisting in the preparation or presentation of claims or defenses;

c.

Any deposition or trial witness, during the course of deposition or trial
testimony, when necessary to the testimony of such witness;

d.

Any person who was involved in the preparation of the document;

e.

The Court, Court personnel, court reporters and similar personnel;

f.

The named parties to this case, excluding their agents and/or
representatives except those identified at Paragraph 2(a) above.

g.

Any other person with the prior written consent of the party producing the
document, pleading or deposition testimony.

Prior to receiving or being shown such documents or deposition testimony, persons
falling in the categories listed above in subparagraphs (b), (c), (d), (f) and (g) shall be
shown a copy of, and shall agree in writing, or on the record during trial or deposition, to
be bound by the terms of this Protective Order. During a deposition, any party asserting
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confidentiality of any of its documents shall ask the deponent on the record to accept the
terms of this Order. If the deponent refuses to assent, disclosure of the documents during
deposition shall not constitute a waiver of confidentiality. Under such circumstances, the
witness shall sign the original deposition transcript in the presence of the court reporter
and no copy of the transcript or exhibits shall be given to the deponent.
Documents may also be designated “Highly Confidential – Attorney Eyes Only” for
documents that are intended for access only by the persons listed below only until a
determination is made by the Court that said documents may be reviewed by parties to the
litigation or others.

Documents marked “Highly Confidential – Attorney Eyes Only”,

deposition testimony so designated, and information derived therefrom will be retained by
counsel and will not be used for any purpose other than this litigation and will not be
disclosed except pursuant to court order entered after notice, to anyone except:
a.

Counsel who have signed this Order approving it as to form and content,

attorneys who are employed by Plaintiff, retained outside counsel, in house counsel, law
clerks, secretaries or paralegals directly involved in the conduct of this litigation;
b.

The Court, Court personnel, court reporters and similar personnel;

c.

Any other person with the prior written consent of the party producing the

document, pleading or deposition testimony.
3.

DOCUMENTS ALREADY PRODUCED. Within ten days of the entry of this

Order, parties may inform the party to whom documents have been produced that it
considers certain documents already produced as being subject to this Order as
"Confidential" or “Highly Confidential – Attorney Eyes Only”
4.

THIRD PARTY WITNESSES.

A copy of this Protective Order shall be

served with a subpoena or Notice of Deposition on each third party deponent. A third
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party witness may designate a document as "Confidential" pursuant to this Order by
stamping it with such notice prior to production or so identifying it on the record during the
deposition of that third party. Either party may also designate documents produced by a
third party as being "Confidential" pursuant to the terms of this Order within ten (10) days
of being made aware of the content of such documents. Any document produced by a
third party shall be treated as "Confidential" pursuant to the terms of this Order for such ten
(10) day period and thereafter if designated as "Confidential" by either party or by the third
party which produces it. The "Confidential" restrictions of this Order shall no longer apply
to any document produced by a third party which has not been designated as
"Confidential" by the third party or by a party within such ten (10) day period.
5.

CHALLENGE TO DESIGNATION.

Any party may challenge the

"Confidential" or “Highly Confidential – Attorney Eyes Only” designation of any document,
by moving the Court for an Order allowing disclosure.

The party challenging the

"Confidential" or “Highly Confidential – Attorney Eyes Only” designation of any document
shall give all other parties at least ten (10) days notice before filing a motion with the Court
and the parties shall attempt to resolve any disagreement before submitting it to the Court.
If a party challenges the "Confidential" or “Highly Confidential – Attorney Eyes Only”
designation of the document(s), the documents at issue shall continue to be treated as
"Confidential" or “Highly Confidential – Attorney Eyes Only” pursuant to the terms of this
Order until such time as the Court has made a ruling with respect to the motion.
6.

RETURN OF DOCUMENTS.

Upon completion of the litigation all

documents and copies of the same designated "Confidential" or “Highly Confidential –
Attorney Eyes Only” shall be destroyed or returned to counsel for the producing party with
signed statement reflecting the disposition.
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This Order shall not terminate upon the

conclusion of this action but shall continue until the further order of the Court or until the
party claiming confidentiality has waived the same in writing.
7.

USE OF DOCUMENTS. Documents produced by any party, including, but

not limited to, "Confidential" or “Highly Confidential – Attorney Eyes Only” documents and
information from any documents acquired in discovery in this litigation shall not be used for
any purpose except in connection with the litigation pending in the United States District
Court for the District of Nebraska, Case No. 8:16cv384 styled Amanda Gibson v. Concrete
Equipment Company, Inc. d/b/a Con-E-Co., a Nebraska Corporation.

Nothing in this

Order shall limit any party or person in its use of its own documents or from disclosing its
own documents and information. This Order or production of any documents shall not
affect the admissibility of any such document or be deemed a waiver of any objection to
the admissibility of such documents.
8.

EXCEPTIONS. The restrictions embodied in this Order shall be binding on

the party to whom "Confidential" or “Highly Confidential – Attorney Eyes Only” information
is disclosed unless and until there is a showing that:
(1)

Such information was or has become public knowledge absent a
breach of this Protective Order; or

(2)

The party to whom such disclosure was made had already learned
such information from a third party who himself has not breached any
confidential relationship which may have existed or exists between
such third party and the party making the disclosure.

(3)

The Court makes the determination that said information is not the
type of information that should be protected as “Confidential” or
“Highly Confidential – Attorney Eyes Only”.
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9.

NON-EXCLUSIVITY. This Order does not affect the right of a party to seek

to compel disclosure or production of a document or to seek an order modifying or limiting
this Order in any aspect.
exclusive.

The obligations and prohibitions under this Order are not

All other ethical, legal and equitable obligations are unaffected by this

agreement.
10.

WAIVER. Any waiver under this Order must be made in writing or, if at a

deposition or in Court, on the record.
11.

ENFORCEMENT.

Any party or person subject to the obligations and

prohibitions of this Order who is determined by the Court to have violated its terms is
subject to sanctions imposed by the Court pursuant to the Federal Rules of Civil
Procedure.
June 22, 2017.

BY THE COURT:

_______________________
Cheryl R. Zwart
United States Magistrate Judge

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PREPARED AND SUBMITTED BY:

s/Kelly Brandon_______________________
Kelly Brandon, #20734
Fielder & Timmer, P.L.L.C.
20615 Highway 370
Gretna, NE 68028
[phone]
[e-mail]
Counsel for Plaintiff
and
s/Scott P. Moore_____________________________
Scott Parrish Moore, #20752
Baird Holm LLP
1500 Woodmen Tower
Omaha, Nebraska 68102
[phone]
[phone]- fax
[e-mail]
Counsel for Defendant

DOCS/1891289.2

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