Tremaine v. Goodwill Industries, Inc.

Filing 24

STIPULATED PROTECTIVE ORDER adopting 22 Joint Stipulation. Ordered by Magistrate Judge F.A. Gossett. (SMN)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA

ROSS F. TREMAINE,
Plaintiff,
v.

Case No.: 8:16cv488
STIPULATED PROTECTIVE ORDER

GOODWILL INDUSTRIES, INC., a Nebraska
nonprofit corporation
Defendant.
Plaintiff Ross F. Tremaine (“Tremaine”) and Defendant Goodwill Industries, Inc.
(“Goodwill”) (Tremaine and Goodwill are hereafter collectively referred to as the “Parties”), by
and through their respective undersigned counsel, hereby stipulate and agree to the request for,
and entry of, the following Protective Order. Accordingly, IT IS ORDERED:
1.

In this action, the Parties are seeking Confidential Information (as defined in

Paragraph 2 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 that the need for this Protective Order also applies to
any information or materials produced by a non-party as a result of discovery subpoenas or other
requests. The Parties have entered into this Stipulation and request the Court enter the Protective
Order for the purpose of preventing the disclosure and use of Confidential Information by any
Party or non-party except as set forth herein. The terms of this Protective Order shall apply to
any information or materials produced by any Party or non-party as part of discovery in this
action. Each and 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
files, transcribed testimony, or responses to discovery requests, including any extract, abstract,
chart, summary, note, or copy made therefrom – not made available to the public – and
designated by one of the Parties or a non-party (in the manner provided in Paragraph 3 below) as
containing or comprising confidential or sensitive information or other trade secrets or
proprietary business information. In connection with this Stipulation and Protective Order,
Confidential Information shall constitute be documents, information or materials the release of
which would harm one of the Parties, including but not limited to, medical information related to
Tremaine, non-public financial or business records, personnel records of non-parties, internal
personnel policies and procedures of Goodwill and any affiliate entity, and other information
which is private in nature and may have the effect, if not deemed to be confidential, of
embarrassing, humiliating or otherwise invading the privacy of a Party, and could potentially
cause significant public and private harm, humiliation and exposure to the Parties.

Such

information or materials may only be so designated if they are not otherwise publicly available.
3.

Designation of “Confidential Information.”

Where any kind of Confidential

Information is produced, provided or otherwise disclosed by a Party or a non-party 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 word “Confidential” on at least the first page or cover of
any document produced;

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b.

By imprinting the word “Confidential” next to or above any response to a
discovery request; and

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” no later than twenty
(20) calendar days after receipt of the transcribed testimony.
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”. 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.

Restrictions on Confidential Information. All Confidential Information provided

by a Party or a non-party in response to a discovery request or as transcribed testimony shall be
subject to the following restrictions:
a.

Confidential Information shall be used only for the purpose of this
litigation and not for any business or other purpose whatsoever.

b.

Confidential Information shall not be communicated or disclosed by any
Party’s counsel or a Party in any manner, either directly or indirectly, to
anyone except for purposes of this litigation.

c.

Confidential Information may only be disclosed or communicated to the
following persons:
i.

ii.
iii.

iv.
v.

The Parties’ outside counsel of record in this action and any
regular or temporary employees of such counsel to whom it
is necessary that the information or material be shown for
purposes of this litigation;
The Parties’ in-house counsel;
Graphics or design services firms retained by counsel for a
Party for purposes of preparing demonstrative or other
exhibits for deposition, trial or other proceedings;
Independent document reproduction services or document or
video recording and retrieval services;
Non-technical jury or trial consulting services retained by
counsel for a Party;

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vi.
vii.

Expert witnesses retained or consulted by the Parties in
connection with this litigation; and
The finder of fact or concluder of law.

d.

Confidential Information may be disclosed only to the persons listed in
Paragraph 4.a.iii, subparagraphs (c), (d), (e) and (f) only after such
person(s) have executed a declaration in the form attached as Exhibit A.

5.

Use of Confidential Information in Court Proceedings. In the event any material

designated “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.”
All Confidential Information filed with the Court, and all portions of pleadings, motions or other
papers filed with the Court that disclose any Confidential Information, shall be filed under seal
pursuant to any rules or orders pertaining to the filing of information and documents under seal.
6.

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. The Parties agree that
in no event shall the obligations of this Protective Order continue beyond two years from the
final disposition of this matter, by order, settlement, or otherwise.
7.

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,

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such conduct shall not be construed as an admission as to the relevance, authenticity, foundation
or admissibility of any document, material, transcript or other information.
8.

Obligations After Final Disposition. The provisions of this Protective Order shall,

absent written permission of the producing Party, or further order of the Court, continue to be
binding throughout and after the conclusion of this action, including any appeals or remands.
Upon final determination of this action, including all appeals, each party should be required to
destroy documents or materials containing Confidential Information or return it to the party or
non-party that produced it.
9.

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.
10.

Treatment of Confidential Information at Trial. In the event any Confidential

Information is to be used in any court proceeding or any appeal therefrom, counsel for the Parties
shall confer on such procedures as are necessary to protect the confidentiality of any documents,
information, and transcripts used in the course of any such proceeding, and shall move the Court
to incorporate such procedures.
11.

Examination of Witnesses Regarding “Confidential Information.” Any person

may be examined as a witness at trial or during a deposition concerning any information or
material that has been designated “Confidential Information” which that person had lawfully
received or authored prior to and apart from this action. During such examination, any such
witness may be shown information or material designated “Confidential Information” which
appears on its face or from other documents or testimony to have been received or authored by

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that witness. Whenever a person appears from the face of a document that has been designated
“Confidential Information” to have been the author or lawful recipient of that document, such
person may be shown, but not permitted to retain custody of, that specific document shown to
them despite the restrictions on access set out in Paragraph 4 of this Protective Order.
12.

Inadvertent Production of Undesignated/Misdesignated Confidential Information.

If a Party inadvertently produces Confidential Information without marking it as such, or with a
designation that is insufficient for the level of confidentiality that should be attached to the
material, it may be disclosed to others until the receiving Party becomes aware of the error,
unless it appears from the face of the material that it contains nonpublic, confidential,
proprietary, commercially sensitive, or trade secret information of the producing Party. 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.
13.

Inadvertent Production of Privileged Materials. If a Party inadvertently produces

a document that it later discovers to be a privileged document, the production of that document
shall not be deemed to constitute a waiver of any applicable privileges. In such circumstances, if
the receiving Party discovers such inadvertent disclosure, the receiving Party must immediately
notify the producing Party and return or confirm destruction of the privileged materials. Within
five (5) business days of receiving such notification, the receiving Party shall return or confirm
destruction of all such materials, including any summaries thereof. Such return or confirmation

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of destruction shall not preclude the receiving Party from seeking to compel production of the
materials for reasons other than its inadvertent production.
14.

Binding Effect of Protective Order Before Entry by Court. The Parties agree to

be bound by the terms of this Stipulation and Protective Order pending its entry by the Court, or
pending entry of an alternative thereto. Any violation of the terms of this Stipulation prior to its
entry, or prior to the entry of an alternative order, shall be subject to the same sanctions and
penalties as if this Stipulation had been entered as an order of the Court.
15.

Obligations Under Subpoena in Other Action. If a Party is (a) subpoenaed in

another action, (b) served with a demand in another action to which it is a party, or (c) served
with any other legal process by one not a Party to this action, seeking Confidential Information
which it received from the other Party, the Party so served shall give prompt, written notice to
the producing Party, by hand or electronic service, within ten (10) business days of its receipt of
such subpoena, demand, or legal process.
Dated this19th day of June, 2017.
BY THE COURT:
F.A. Gossett, III
United States Magistrate Judge

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EXHIBIT A – “Confidential Information”

DECLARATION OF _____________________

___________________ swears or affirms and states under penalty of perjury:
1.
I have read the Protective Order in this action, Ross F. Tremaine v. Goodwill
Industries, Inc., Civil Action No. 8:16-cv-00488 in the United States District Court for the
District of Nebraska, a copy of which is attached to this Declaration.
2.
I have been informed by ______________________, Esq., counsel for
___________________, that I will be given access to information, documents or other materials
that have been defined as “Confidential Information” under the Protective Order.
3.
I promise that I have not and will not divulge, or undertake to divulge, to any
person or recording device any “Confidential Information,” or any other Confidential
Information, shown or told to me except as authorized in the Protective Order. I will not use the
Confidential Information for any purpose other than this litigation. I will not use the
Confidential Information for any commercial purpose.
4.
For the purposes of enforcing the terms of the Protective Order, I hereby submit
myself to the jurisdiction of the Court in the civil action referenced above.
5.

I will abide by the terms of the Protective Order.

(Signature)

(Print or Type Name)
Address:

Telephone No.: (

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)