Westhoff v. DB Industries, LLC
STIPULATED PROTECTIVE ORDER - The parties' Stipulated Protective Order (Filing No. 33 ) is adopted as set forth in Order. Ordered by Magistrate Judge Michael D. Nelson. (LAC)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
JENS ERIK WESTHOFF,
CITY OF OMAHA,
DB INDUSTRIES, LLC.,
Case No. 8:16CV456
STIPULATED PROTECTIVE ORDER
IT IS ORDERED: The parties' Stipulated Protective Order (Filing No. 33) is
adopted as set forth below:
All materials produced or adduced in the course of discovery,
including initial disclosures, responses to discovery requests, deposition testimony and
“documents”), shall be subject to this Order concerning Confidential Information as
defined below. This Order is subject to the Local Rules of this District and the Federal
Rules of Civil Procedure on matters of procedure and calculation of time periods.
As used in this Order, “Confidential
Information” means information designated as “CONFIDENTIAL-SUBJECT TO
PROTECTIVE ORDER” by the producing party that falls within one or more of the
following categories: (a) information prohibited from disclosure by statute; (b)
information that is proprietary or reveals trade secrets; (c) research, technical,
commercial or financial information that the party has maintained as confidential; (d)
medical information concerning any individual; (e) personal identity information; (f)
income tax returns (including attached schedules and forms), W-2 forms and 1099
forms; or (g) personnel or employment records of a person who is not a party to the
case. Information or documents that are available to the public may not be designated
as Confidential Information.
A party may designate a document as Confidential Information for
protection under this Order by placing or affixing the words “CONFIDENTIAL SUBJECT TO PROTECTIVE ORDER” on the document and on all pages and 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 “CONFIDENTIAL - SUBJECT TO
PROTECTIVE ORDER” shall be applied prior to or at the time of the documents are
produced or disclosed. Applying the marking “CONFIDENTIAL - SUBJECT TO
PROTECTIVE ORDER” 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. Any copies that are made of any documents marked “CONFIDENTIAL SUBJECT TO PROTECTIVE ORDER” shall also be so marked, 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. Notwithstanding anything
herein to the contrary, all of the following described documents that have been
produced previously by Plaintiff or Intervenor Plaintiff to Defendant that were not
marked as “CONFIDENTIAL - SUBJECT TO PROTECTIVE ORDER” shall be deemed
to be “Confidential Information” and shall be deemed to be protected by the provisions
of this Protective Order: (1) information prohibited from disclosure by statute; (2)
financial information that the party has maintained as confidential; (3) medical
information concerning any individual; (4) personal identity information; and (5) income
tax returns (including attached schedules and forms), W-2 forms and 1099 forms.
The designation of a document as Confidential Information is a
certification by an attorney or party appearing pro se that the document contains
Confidential Information as defined in this order.
Deposition testimony is protected by this Order only if designated as
“CONFIDENTIAL – SUBJECT TO PROTECTIVE ORDER” on the record at the time the
testimony is taken. Such designation shall be specific as to the portions that contain
Confidential Information. Deposition testimony so designated shall be treated as
Confidential Information protected by this Order until fourteen days after delivery of the
transcript by the court reporter to any party or the witness. Within fourteen days after
delivery of the transcript, a designating party may serve a Notice of Designation to all
parties of record identifying the specific portions of the transcript that are designated
Confidential Information, and thereafter those portions identified in the Notice of
Designation shall be protected under the terms of this Order. The failure to serve a
timely Notice of Designation waives any designation of deposition testimony as
Confidential Information that was made on the record of the deposition, unless
otherwise ordered by the Court.
Protection of Confidential Material.
General Protections. Confidential Information shall not be used or
disclosed by the parties, counsel for the parties or any other persons identified in
subparagraph (b) for any purpose whatsoever other than in this litigation, including any
Limited Third-Party Disclosures. The parties and counsel for the
parties shall not disclose or permit the disclosure of any Confidential Information to any
third person or entity except as set forth in subparagraphs (1)-(9). Subject to these
requirements, the following categories of persons may be allowed to review Confidential
Counsel. Counsel for the parties and employees of counsel who
have responsibility for the action;
Parties. Individual parties and employees of a party but only to the
extent counsel determines in good faith that the employee’s
assistance is reasonably necessary to the conduct of the litigation
in which the information is disclosed;
The Court and its personnel;
Court Reporters and Recorders. Court reporters and recorders
engaged for depositions;
Contractors. Those persons specifically engaged for the limited
purpose of making copies of documents or organizing or
processing documents, including outside vendors hired to process
electronically stored documents;
Consultants and Experts. Consultants, investigators, or experts
employed by the parties or counsel for the parties to assist in the
preparation and trial of this action but only after such persons have
completed the certification contained in Attachment A,
Acknowledgment of Understanding and Agreement to Be Bound;
Witnesses at depositions. During their depositions, witnesses in
this action to whom disclosure is reasonably necessary. Witnesses
shall not retain a copy of documents containing Confidential
Information, except witnesses may receive a copy of all exhibits
marked at their depositions in connection with review of the
transcripts. Pages of transcribed deposition testimony or exhibits to
depositions that are designated as Confidential Information
pursuant to the process set out in this Order must be separately
bound by the court reporter and may not be disclosed to anyone
except as permitted under this Order;
Author or recipient. The author or recipient of the document (not
including a person who received the document in the course of
Others by Consent. Other persons only by written consent of the
producing party or upon order of the Court and on such conditions
as may be agreed or ordered.
Control of Documents. Counsel for the parties shall make
reasonable efforts to prevent unauthorized or inadvertent disclosure of Confidential
Information. Counsel shall maintain the originals of the forms signed by persons
acknowledging their obligations under this Order for a period of three years after the
termination of the case.
Inadvertent Failure to Designate. An inadvertent failure to designate a
document as Confidential Information does not, standing alone, waive the right to so
designate the document; provided, however, that a failure to serve a timely Notice of
Designation of deposition testimony as required by this Order, even if inadvertent,
waives any protection for deposition testimony. If a party designates a document as
Confidential Information after it was initially produced, the receiving party, on
notification of the designation, must make a reasonable effort to assure that the
document is treated in accordance with the provisions of this Order. No party shall be
found to have violated this Order for failing to maintain the confidentiality of material
during a time when that material has not been designated Confidential Information,
even where the failure to so designate was inadvertent and where the material is
subsequently designated Confidential Information.
Filing of Confidential Information. This Order does not, by itself,
authorize the filing of any document under seal. Any party wishing to file a document
designated as Confidential Information in connection with a motion, brief or other
submission to the Court must comply with LR 5.3.
No Greater Protection of Specific Documents.
Except on privilege
grounds not addressed by this Order, no party may withhold information from discovery
on the ground that it requires protection greater than that afforded by this Order unless
the party moves for an order providing such special protection.
Challenges by a Party to Designation as Confidential Information.
The designation of any material or document as Confidential Information is subject to
challenge by any party. The following procedure shall apply to any such challenge.
Meet and Confer. A party challenging the designation of
Confidential Information must do so in good faith and must begin the process by
conferring directly with counsel for the designating party. 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 designation, and, if no change in designation is offered, to
explain the basis for the designation. The designating party must respond to the
challenge within five (5) business days.
The Meet and Confer may occur
Judicial Intervention. A party that elects to challenge a
confidentiality designation may file and serve a motion that identifies the challenged
material and sets forth in detail the basis for the challenge. Each such motion must be
accompanied by a competent declaration that affirms that the movant has complied
with the meet and confer requirements of this procedure. The burden of persuasion in
any such challenge proceeding shall be on the designating party. Until the Court rules
on the challenge, all parties shall continue to treat the materials as Confidential
Information under the terms of this Order.
Action by the Court. Applications to the Court for an order relating to
materials or documents designated Confidential Information shall be by motion.
Nothing in this Order or any action or agreement of a party under this Order limits the
Court’s power to make orders concerning the disclosure of documents produced in
discovery or at trial.
Use of Confidential Documents or Information at Trial. Nothing in this
Order shall 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 shall bring that issue to the
Court’s and parties’ attention by motion or in a pretrial memorandum without disclosing
the Confidential Information. The Court may thereafter make such orders as are
necessary to govern the use of such documents or information at trial.
Confidential Information Subpoenaed or Ordered Produced in Other
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 court 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 shall bear 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.
Challenges by Members of the Public to Sealing Orders. A party or
interested member of the public has a right to challenge the sealing of particular
documents that have been filed under seal, and the party asserting confidentiality will
have the burden of demonstrating the propriety of filing under seal.
Obligations on Conclusion of Litigation.
Order Continues in Force. Unless otherwise agreed or ordered,
this Order shall remain in force after dismissal or entry of final judgment not subject to
Designated "CONFIDENTIAL – SUBJECT TO PROTECTIVE ORDER". Within sixty
(60) days after dismissal or entry of final judgment not subject to further appeal, all
documents marked “CONFIDENTIAL - SUBJECT TO PROTECTIVE ORDER” under
this Order, including copies as defined in ¶ 3(a), shall be returned to counsel for the
producing party any and all copies of confidential information and documents, or the
persons may elect to destroy confidential documents and information. In the event the
Parties agree to destroy confidential information and documents, the destroying Party
shall provide all Parties with an affidavit confirming the destruction.
Retention of Work Product and one set of Filed Documents
for Materials Designated "CONFIDENTIAL – SUBJECT TO PROTECTIVE
ORDER." Notwithstanding the above requirements to return or destroy documents,
and except as limited by paragraph 14 (e) infra, counsel may retain (1) attorney work
product, including an index that refers or relates to designated Confidential
Information so long as that work product does not duplicate verbatim substantial
portions of Confidential Information, and (2) one complete set of all documents filed
with the Court including those filed under seal. Any retained Confidential Information
shall continue to be protected under this Order. An attorney may use his or her work
product in subsequent litigation, provided that its use does not disclose or use
(d) Deletion of Documents filed under Seal from Electronic Case
Filing (ECF) System. Filings under seal shall be deleted from the ECF system only
upon order of the Court.
Order Subject to Modification. This Order shall be subject to
modification by the Court on its own initiative or on motion of a party or any other
person with standing concerning the subject matter.
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 herein shall be construed or presented as a judicial determination
that any document or material designated Confidential Information by counsel or the
parties is entitled to protection under Rule 26(c) of the Federal Rules of Civil
Procedure or otherwise until such time as the Court may rule on a specific document
Persons Bound. This Order shall take effect when entered and shall
be binding upon all counsel of record and their law firms, the parties, and persons
made subject to this Order by its terms.
DATED: February 9, 2018
s/ Michael D. Nelson
United States Magistrate Judge
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
JENS ERIK WESTHOFF,
CITY OF OMAHA,
DB INDUSTRIES, LLC.,
Case No. 8:16CV456
ACKNOWLEDGMENT OF UNDERSTANDING AND AGREEMENT TO BE BOUND
The undersigned hereby acknowledges that he/she has read the Confidentiality
Order dated ___________________________ in the above-captioned action 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 the Stipulated Protective Order and
understands that the terms of the Stipulated Protective Order obligate him/her to use
materials designated as Confidential Information in accordance with the Order solely for
the purposes of the above-captioned action, and not to disclose any such Confidential
Information to any other person, firm or concern.
The undersigned acknowledges that violation of the Confidentiality Order may
result in penalties for contempt of court.
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