Colorado Security Consultants, LLC et al v. Signal 88 Franchise Group, Inc et al

Filing 39

STIPULATED PROTECTIVE ORDER granting 38 Stipulation. Ordered by Magistrate Judge Cheryl R. Zwart. (JAB)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
COLORADO SECURITY
CONSULTANTS, LLC, a Colorado
limited liability company; TIMOTHY A.
SIMAN, individually; and JARED
IUNGERICH, individually;
Plaintiffs,
v.
SIGNAL 88 FRANCHISE GROUP,
INC., a Nebraska corporation; and
SIGNAL 88, LLC, a Delaware limited
liability company;
Defendants.

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CASE NO. 8:16-cv-00439-JMG-CRZ

STIPULATED PROTECTIVE ORDER

The Parties, through undersigned counsel, stipulate and move the Court for a Protective
Order pursuant to Rule 26(c) of the Federal Rules of Civil Procedure concerning the treatment of
Confidential Information and Settlement Information (as hereinafter defined). For good cause
shown the motion (Filing No. 38) is granted and the Court enters this Stipulated Protective Order
to govern discovery and other matters in this case:
1.

In this action, the Parties have sought, are seeking, and/or will likely seek

Confidential Information (as defined in paragraph 2 below) and intend to exchange Settlement
Information (as defined in Paragraph 9 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 the disclosure of such
information outside the scope of this litigation could result in significant injury to one or more
of the Parties’ business or privacy interests. The Parties have stipulated to the entry of this

Protective Order for the purpose of preventing the disclosure and use of Confidential
Information and Settlement Information except as set forth herein.
2.

“Confidential Information” means any document, file, portions of files,

transcribed testimony, or response to a discovery request, including any extract, abstract, chart,
summary, note, or copy made therefrom, that has been designated by one of the Parties in the
manner provided in Paragraph 3 below. The designation of a document as Confidential
Information is a certification by an attorney for the designating Party (or a Party appearing pro
se) that the designating Party has reviewed the information and believes, in good faith, that the
document contains the designating Party’s confidential information, including but not limited
to sensitive personal information, private information, trade secrets, confidential business
information, proprietary business information, or other confidential information; Confidential
Information must be in fact confidential and not publicly available or readily accessible by
legitimate means other than a discovery request or subpoena to the disclosing Party.
3.

Where Confidential Information is produced, provided, or otherwise disclosed

by a Party in response to any discovery request, it will be designated in the following manner:
a.

By imprinting the word “Confidential” on each page of any document produced;

b.

By imprinting the word “Confidential” next to or above any response to a

discovery request; and
c.

With respect to transcribed testimony, by giving written notice to opposing

counsel designating such portions as “Confidential” no later than ten calendar days after receipt
of the transcribed testimony.
4.

All Confidential Information provided by a Party in response to a discovery

request or transcribed testimony shall be subject to the following restrictions:
a.

It shall be used only for the purpose of this litigation and not for any business or

other purpose whatsoever;
b.

It shall not be communicated or disclosed by any Party’s counsel or a Party in

any manner, either directly or indirectly, to anyone except as reasonably necessary for the
conduct of this case and subject to the terms of this Order, and only to a Party’s attorney’s,
officers, directors, and employees with a need to know, the court and its staff, the persons
shown on the face of the document to have authored or received it, witnesses to whom
disclosure is reasonably necessary, court reporters retained to transcribe testimony, persons
who are not Parties to this case who are retained by a Party or its attorneys to serve as mock
jurors or to provide technical or expert services and/or to give testimony in this action, and any
other person designated by written stipulation of the Parties or by order of the court.
5.

The inadvertent production by either Party of any document without a

Confidential designation shall be without prejudice to any claim that such document is
Confidential Information. The producing Party shall not be deemed to have waived any rights
by such inadvertent production. The producing Party shall give written notice of such
inadvertent production within 20 days of discovery of the inadvertent production, together with
a copy of the subject document marked as Confidential. Upon receipt of the copy marked
Confidential, the receiving Party shall promptly destroy the inadvertently produced document
and all copies thereof, and retain only the copy marked Confidential.
6.

Individuals authorized to have Confidential Information pursuant to this

Protective Order shall hold Confidential Information in confidence and shall not divulge the

Confidential Information, either orally or in writing, to any other person, entity, or government
agency unless authorized to do so by this Protective Order, by other court order, or by
agreement of the Parties. All Confidential Information received by a Party hereunder shall be
stored and maintained at a location and in a manner that ensures that access is limited to persons
authorized under this Protective Order to have such access.
7.

The Party’s counsel who discloses Confidential Information pursuant to this

Protective Order to any individual, including consulting experts, expert witnesses, or
employees of a Party, shall require such persons to agree in writing to comply with the terms of
this Protective Order before disclosing such Confidential Information to such persons.
8.

A Party may object to the designation of particular Confidential Information or

Settlement Information (as defined below) by giving written notice to the Party designating the
disputed information. The written notice shall identify the information to which the objection
is made. If the Parties cannot resolve the objection within fourteen (14) days after the time the
notice is received, it shall be the obligation of the Party designating the information as
Confidential Information or Settlement Information to file an appropriate motion requesting
that the court determine whether the disputed information should be subject to the terms of this
Protective Order. If such a motion is filed, the disputed information shall be treated as
Confidential Information or Settlement Information under the terms of this Protective Order
until the Court rules otherwise. If the designating Party fails to file such a motion within the
prescribed time, the disputed information shall lose its designation as Confidential Information
or Settlement Information and shall not thereafter be treated as Confidential Information or
Settlement Information in accordance with this Protective Order. In connection with a motion

filed under this provision, the Party designating the information as Confidential Information or
Settlement Information shall bear the burden of establishing that good cause exists for the
disputed information to be treated as Confidential Information or Settlement Information.
9.

Use of Confidential Information in Court Proceedings:

Confidential

Information and pleadings or briefs quoting or discussing Confidential Information will not be
accepted for filing “under seal” or otherwise kept out of the public record in this action except
by court order issued upon motion of the Party seeking to file the documents under seal. Any
motion requesting leave to file documents under seal shall comply with the requirements of
Local Rule 7.5. Any Party seeking to use Confidential Information provided by an opposing
Party in court filings shall only do so under seal pursuant to Local Rule 7.5, unless otherwise
agreed by the Parties or ordered by the court.
10.

“Settlement Information” means any information exchanged by the Parties in the

course of settlement negotiations between the Parties, outside the scope of formal or informal
discovery, including a document, file, or portions of files, including any extract, abstract, chart,
summary, note, or copy made therefrom, and designated by the producing Party by marking the
document “Confidential—For Settlement Purposes Only” on the bottom of each page.
11.

Settlement Information may be disseminated only to counsel of record in this

litigation, the Court overseeing the settlement conference, and the Parties. If the case does not
settle, Settlement Information may be used only as permitted by this Order and may be admitted
at trial if such admission is allowed by the Federal Rules of Evidence.
12.

The termination of this action shall not relieve counsel or other persons obligated

hereunder from their responsibility to maintain the confidentiality of Confidential Information

and Settlement Information pursuant to this Protective Order. At the conclusion of this case,
unless other arrangements are agreed upon, each document and all copies thereof which have
been designated shall be returned to the designating Party, or the Parties may elect to destroy
designated documents. Where the Parties agree to destroy designated documents, the
destroying Party shall provide all Parties with an affidavit confirming the destruction.
13.

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.
14.

Protections under F.R.E. 502(d). Notwithstanding any other provision of this

Order, the production of documents by any Party, whether or not designated as Confidential
Information or Settlement Information, will not operate as a waiver of any common law or
statutory privilege, protection, or immunity applicable to those documents, including, but not
limited to any attorney-client privilege, work product protection, joint or common interest
doctrine, information that is subject to protection as trial preparation material, or that is protected
from discovery by any other applicable privilege, protection, immunity, law, or rules (collectively
“Privileges”). If a Party discloses, produces, or makes available for inspection and copying
information subject to any Privilege (“Disclosed Privileged Information”), such disclosure shall
not constitute or be deemed a waiver or forfeiture of any claim of such Privilege applicable to
such Confidential Information or any related subject matter, in this litigation or in any other court,
administrative action, investigation, or legal proceeding.
The production of privileged or work-product protected documents, electronically stored
information (“ESI”) or information, whether inadvertently or otherwise, is not a waiver of the
privilege or protection from discovery in this case or in any other federal or state proceeding.

This Order shall be interpreted to provide the maximum protection allowed by Federal Rule of
Evidence 502(d).
Nothing contained herein is intended to or shall serve to limit a Party’s right to conduct a
review of documents, ESI or information (including metadata) for relevance, responsiveness
and/or segregation of privileged and/or protected information before production.
15.

Disclosed Privileged Information. Any Party who realizes that it, he, or she has

produced or received Disclosed Privileged Information, as soon as practicable, shall (i) notify, in
writing, all other Parties and/or other persons producing or receiving such information that
disclosure was made, (ii) identify the document(s) disclosed, (iii) make reasonable efforts to
retrieve all copies of and prevent further disclosure of the Disclosed Privileged Information, and
(iv) refrain from using or further disclosing the Disclosed Privileged Information (including, but
not limited to, using the information in depositions or a trial). Any person or entity receiving
notice that Disclosed Privileged Information has been produced shall, within five (5) business
days, return, destroy, sequester or delete all copies of the Disclosed Privileged Information, as
well as any abstracts, charts, memoranda, notes, summaries, compilations, or indices of same, and
provide a representation of counsel that all such information has been returned, destroyed,
sequestered or deleted. To the extent the claim of Privilege is disputed, the Parties shall meet
and confer to resolve any such dispute, and in the event such dispute cannot be resolved, the Party
receiving such information may promptly present the information to the Court, under seal,
pursuant to the Local Rules of this Court, and, seek further relief from the Court regarding the
claim. The Party claiming the Privilege shall preserve the Disclosed Privileged Information
until the claim of Privilege is resolved either by agreement of the Parties or by the Court.

16.

The Protective Order shall apply to all documents and information that has been

produced or that is to be produced in this case.
17.

Nothing in this Protective Order shall preclude any Party from filing a motion

seeking further or different protection from the Court under Rule 26(c) of the Federal Rules of
Civil Procedure, or from filing a motion with respect to the manner in which Confidential
Information shall be treated at trial.
18.

Any non-party who produces documents or information in this case may designate

documents or other information as Confidential Information pursuant to this Protective Order.
19.

The Court is not bound by the terms of this Stipulation Confidentiality and

Protective Order and the Parties understand that the Court may alter the terms of this Order sua
sponte.
20.

Any Party may apply to the Court for a modification of the Protective Order,

including the need to add an additional designation of confidential information as “Attorneys
Eyes Only”, and nothing in this Protective Order shall be construed to prevent a Party from
seeking such further provisions enhancing or limiting confidentiality as may be appropriate.

IT IS SO ORDERED this 23rd day of February, 2017
BY THE COURT:

s/ Cheryl R. Zwart
United States Magistrate Judge