Taylor v. Merchants Credit Adjustors, Inc. et al

Filing 31

PROTECTIVE ORDER - This matter is before the Court on the parties' Joint Motion for Entry of Protective Order. (Filing No. 30 .) Upon consideration, the motion is granted. Ordered by Magistrate Judge Susan M. Bazis. (KLF)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
JANNETTE TAYLOR, on behalf of herself
and all others similarly situated;
8:16CV452
Plaintiff,
PROTECTIVE ORDER

vs.
MERCHANTS CREDIT ADJUSTORS, INC.,
and
PANSING, HOGAN, ERNST &
BACHMAN, L.L.P.,
Defendants.

This matter is before the Court on the parties’ Joint Motion for Entry of Protective Order.
(Filing No. 30.) Upon consideration, the motion is granted.
IT IS ORDERED, ADJUDGED and DECREED as follows:
1.

Scope. All documents and materials produced in the course of discovery of this

case, including initial disclosures, responses to discovery requests, all deposition testimony and
exhibits, and information derived directly therefrom (hereinafter collectively “documents”), are
subject to this Order concerning Confidential Information as set forth below.
2.

Definition of Confidential Information. As used in this Order, “Confidential

Information” is defined as information that the producing party designates in good faith has been
previously maintained in a confidential manner and should be protected from disclosure and use
outside the litigation because its disclosure and use is restricted by statute or could potentially
cause harm to the interests of disclosing party or nonparties. For purposes of this Order, the
parties will limit their designation of “Confidential Information” to the following categories of
information or documents:

Proprietary or commercial information relating to Defendants’ businesses, their
clients and customers; confidential financial information of Defendants; medical
records, personal or financial information regarding Plaintiff; and records whose
disclosure is restricted or prohibited by statute.
Information or documents that are available to the public may not be designated as Confidential
Information.
3.

Form and Timing of Designation.

The producing party may designate

documents as containing Confidential Information and therefore subject to protection under this
Order by marking or placing the words “CONFIDENTIAL - SUBJECT TO PROTECTIVE
ORDER” (hereinafter “the marking”) 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 will be applied prior to or at the time of the documents are produced or disclosed.
Applying the marking 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. Copies
that are made of any designated documents must also bear the marking, 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. By marking a designated document as confidential,
the designating attorney or party appearing pro se thereby certifies that the document contains
Confidential Information as defined in this Order.
4.

Inadvertent Failure to Designate.

Inadvertent failure to designate any

document or material as containing Confidential Information will not constitute a waiver of an
otherwise valid claim of confidentiality pursuant to this Order, so long as a claim of
confidentiality is asserted within 30 days after discovery of the inadvertent failure.
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5.

Depositions.

Deposition testimony will be deemed confidential only if

designated as such when the deposition is taken or within thirty days after receipt of the
deposition transcript. Such designation must be specific as to the portions of the transcript
and/or any exhibits to be protected.
6.

Protection of Confidential Material.
a.

General Protections. Designated Confidential Information must be used

or disclosed solely for purposes of prosecuting or defending this lawsuit, including any
appeals.
b.

Who May View Designated Confidential Information. Except with the

prior written consent of the designating party or prior order of the court, designated
Confidential Information may only be disclosed to the following persons:
i.

The parties to this litigation, including any employees, agents, and
representatives of the parties;1

ii.

Counsel for the parties and employees and agents of counsel;

iii.

The court and court personnel, including any special master
appointed by the court, and members of the jury;

iv.

Court reporters, recorders, and videographers engaged for
depositions;

v.

Any mediator appointed by the court or jointly selected by the
parties;

vi.

Any expert witness, outside consultant, or investigator retained
specifically in connection with this litigation, but only after such
persons have completed the certification contained in Attachment
A, Acknowledgment and Agreement to be Bound;

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If the confidential documents contain highly sensitive trade secrets or other highly sensitive competitive
or confidential information and disclosure to another party would result in demonstrable harm to the disclosing
party, then the parties may stipulate or move for the establishment of an additional category of protection, (e.g.,
Attorneys Eyes Only) that prohibits disclosure of such documents or information to category or that limits disclosure
only to specifically designated in-house counsel or party representative(s) whose assistance is reasonably necessary
to the conduct of the litigation and who agree to be bound by the terms of the Order.

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vii.

viii.

The author or recipient of the document (not including a person
who received the document in the course of the litigation);

ix.

Independent providers of document reproduction, electronic
discovery, or other litigation services retained or employed
specifically in connection with this litigation; and

x.
c.

Any potential, anticipated, or actual fact witness and his or her
counsel, but only to the extent such confidential documents or
information will assist the witness in recalling, relating, or
explaining facts or in testifying, and only after such persons have
completed the certification contained in Attachment A;

Other persons only upon consent of the producing party and on
such conditions as the parties may agree.

Control of Documents.

The parties must take reasonable efforts to

prevent unauthorized or inadvertent disclosure of documents designated as containing
Confidential Information pursuant to the terms of this Order. Counsel for the parties
must maintain a record of those persons, including employees of counsel, who have
reviewed or been given access to the documents along with the originals of the forms
signed by those persons acknowledging their obligations under this Order.
7.

Filing of Confidential Information. A party that seeks to file under seal any

Protected Material must comply with Local Rule NECivR 7.5, NEGenR 1.3(c) and the terms of
this agreement.
Nothing in this Order will be construed as a prior directive to allow any document to be
filed under seal. The parties understand that the requested documents may be filed under seal
only with the permission of the court after proper motion. If the motion is granted and the
requesting party permitted to file the requested documents under seal, only counsel of record and
unrepresented parties will have access to the sealed documents. Pro hac vice attorneys must
obtain sealed documents from local counsel.

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8.

Challenges to a Confidential Designation.

8.1 Timing of Challenges: Any party or non-party may challenge a designation of
confidentiality within 60 days from receipt of the documents designated confidential. In the
event the information designated confidential is later produced in some publicly available
format, the sixty (60) day period for challenging the designated confidential information starts
again from the date of publication.
8.2 Meet and Confer: The challenging party shall initiate the dispute resolution process
by providing written notice of each designation it is challenging and describing the basis for each
challenge. To avoid ambiguity as to whether a challenge has been made, the written notice must
recite that the challenge to confidentiality is being made in accordance with this specific
paragraph of the Protective Order. The parties shall attempt to resolve each challenge in good
faith and must begin the process by conferring directly (in voice to voice dialogue; other forms
of communication are not sufficient) within 14 days of the date of service of notice.

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 circumstances, and, if no change in designation is offered,
to explain the basis for the chosen designation. A challenging party may proceed to the next
stage of the challenge process only if it has engaged in this meet and confer process first or
establishes that the designating party is unwilling to participate in the meet and confer process in
a timely manner.
8.3 Judicial Intervention: If the parties cannot resolve a challenge without court
intervention, the designating party shall file and serve a motion to retain confidentiality under
Fed.R.Civ.P 5.2 (and in compliance with NECivR 7.5 and NEGenR 1.3(c), if applicable) within

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21 days of initial notice of challenge or within 14 days of the parties agreeing that the meet and
confer process will not resolve their dispute, whichever is earlier. Each such motion must be
accompanied by a competent declaration affirming that the movant has complied with the meet
and confer requirements imposed in the preceding paragraph. Failure by the designating party to
make such a motion including the required declaration within 21 days (or 14 days, if applicable)
shall automatically waive the confidentiality designation for each challenged designation. In
addition, the challenging party may file a motion challenging a confidentiality designation at any
time if there is good cause for doing so, including a challenge to the designation of a deposition
transcript or any portions thereof. Any motion brought pursuant to this provision must be
accompanied by a competent declaration affirming that the movant has complied with the meet
and confer requirements imposed by the preceding paragraph.
The burden of persuasion in any challenge proceeding shall be on the designating party.
Frivolous challenges, and those made for an improper purpose (e.g. to harass or impose
unnecessary expenses and burdens on other parties) may expose the challenging party to
sanctions. Unless the designating party has waived the confidentiality designation by failing to
file a motion to retain confidentiality as described above, all parties shall continue to afford the
material in question the level of protection to which it is entitled under the producing party’s
designation until the court rules on the challenge.
9.

Use of Confidential Documents or Information at Trial or Hearing. Nothing

in this Order will 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 must bring that issue to the attention of the court
and the other parties without disclosing the Confidential Information. The court may thereafter

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make such orders as are necessary to govern the use of such documents or information at the
hearing or trial.
10.

Obligations on Conclusion of Litigation.
a.

Order Remains in Effect.

Unless otherwise agreed or ordered, all

provisions of this Order will remain in effect and continue to be binding after conclusion
of the litigation.
b.

Return of Confidential Documents. Within 30 days after this litigation

concludes by settlement, final judgment, or final order, including all appeals, all
documents designated as containing Confidential Information, including copies as
defined above, must be returned to the party who previously produced the document
unless: (1) the document has been offered into evidence or filed without restriction as to
disclosure; (2) the parties agree to destruction of the document to the extent practicable in
lieu of return;2 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. Notwithstanding the above requirements to

return or destroy documents, counsel may retain attorney work product, including an
index which refers or relates to designated Confidential Information, so long as that work
product does not duplicate verbatim substantial portions of the text or images of
designated documents. This work product will continue to be confidential under this

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The parties may choose to agree that the receiving party must destroy documents containing Confidential
Information and certify the fact of destruction, and that the receiving party must not be required to locate, isolate and
return e-mails (including attachments to e-mails) that may include Confidential Information, or Confidential
Information contained in deposition transcripts or drafts or final expert reports.

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Order. An attorney may use his or her own work product in subsequent litigation
provided that its use does not disclose Confidential Information.
11.

Order Subject to Modification. This Order is subject to modification by the

court on its own motion or on motion of any party or any other person with standing concerning
the subject matter. The Order must not, however, be modified until the parties have been given
notice and an opportunity to be heard on the proposed modification.
12.

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 in this Order will be construed or presented as a judicial determination that any
document or material designated as Confidential Information by counsel or the parties is entitled
to protection under Fed. R. Civ. P. 26(c) or otherwise until such time as the court may rule on a
specific document or issue.
13.

Persons Bound by Protective Order. This Order will take effect when entered

and is binding upon all counsel of record and their law firms, the parties, and persons made
subject to this Order by its terms.
14.

Jurisdiction. The court’s jurisdiction to enforce the provisions of this Order will

terminate on the final disposition of this case. But a party may file a motion to seek leave to
reopen the case to enforce the provisions of this Order.
15.

Applicability to Parties Later Joined. If additional persons or entities become

parties to this lawsuit, they must not be given access to any Confidential Information until they
execute and file with the court their written agreement to be bound by the provisions of this
Order.

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16.

Protections Extended to Third-Party’s Confidential Information. The parties

agree to extend the provisions of this Protective Order to Confidential Information produced in
this case by third parties, if timely requested by the third party.
17.

Confidential Information Subpoenaed or Ordered Produced in Other

Litigation. 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,
immediately and in no event more than three business days after receiving the subpoena or order.
Such notification must include a copy of the subpoena or court order.
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.
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 to protect its
Confidential Information in the court from which the subpoena or order issued. The designating
party bears 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.
18.

Inadvertent Disclosure of Confidential Information Covered by Attorney-

Client Privilege or Work Product. When a producing party gives notice to receiving parties

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that certain inadvertently produced material is subject to a claim of privilege or other protection,
the obligations of the receiving parties are those set forth in Federal Rule of Civil Procedure
26(b)(5)(B). This provision is not intended to modify whatever procedure may be established in
an e-discovery order that provides for production without prior privilege review. Pursuant to
Federal Rule of Evidence 502(d) and (e), insofar as the parties reach an agreement on the effect
of disclosures of a communication or information covered by the attorney-client privilege or
work product protection, the parties may incorporate their agreement in the stipulated protective
order submitted to the court.
Dated this 10th day of March, 2017.
BY THE COURT:
s/ Susan M. Bazis
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 Protective Order dated
_______________ in the case captioned, Taylor v. Merchants Credit Adjusters, Inc., et al., No.
8:16-cv-00452-JFB-SMB, and attached hereto, 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 this Protective Order and understands
that the terms of the Protective Order obligate him/her to use materials designated as
Confidential Information in accordance with the order solely for the purposes of the abovecaptioned action, and not to disclose any such Confidential Information to any other person,
firm, or concern, except in accordance with the provisions of the Protective Order.
The undersigned acknowledges that violation of the Protective Order may result in
penalties for contempt of court.
Name:
Job Title:
Employer:
Business Address:

Date:
Signature

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