Meeks v. National Account Systems of Omaha, LLC et al
PROTECTIVE ORDER - This matter is before the Court on the parties' Stipulated Protective Order. (Filing No. 25 .) Having considered the matter, the Stipulation is adopted and approved as set forth. Ordered by Magistrate Judge Susan M. Bazis. (GJG)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
KIMBERLY MEEKS, on behalf of herself
and all other similarly situated;
NATIONAL ACCOUNT SYSTEMS OF
OMAHA, LLC, and THOMAS C.
This matter is before the Court on the parties’ Stipulated Protective Order. (Filing No. 25.)
Having considered the matter, the Stipulation is adopted and approved as set forth below:
PURPOSES AND LIMITATIONS
Disclosure and discovery activity in this action are likely to involve production of
confidential, proprietary, or private information for which special protection from public
disclosure and from use for any other purpose other than prosecuting this litigation may be
warranted. Accordingly, the parties have stipulated to and petitioned the Court to enter this
Protective Order. The parties acknowledge that this Order does not confer blanket
protections on all disclosures or responses to discovery and that the protection it affords
from public disclosure and use extends only to the limited information or items that are
entitled to confidential treatment under the applicable legal principles. The parties further
acknowledge, as set forth in Section 12.3, below, that this Protective Order entitles them to
file confidential information under seal; subject to the provisions of Local Rule NECivR 7.5
and General Rule NEGenR 1.3(c).
2.1 Challenging Party: a Party or Non-Party that challenges the designation of
information or items under this Order.
2.2 “CONFIDENTIAL” Information or Items: information (regardless of how it is
generated, stored or maintained) or tangible things that qualify for protection
under Fed.R.Civ.P. 26(c).
2.3 Counsel (without qualifier): Outside Counsel of Record and House Counsel (as
well as their support staff).
2.4 Designating Party: a Party or Non-Party that designates information or items that
it produces in disclosures or in responses to discovery as “CONFIDENTIAL.”
2.5 Disclosure or Discovery Material: all items or information, regardless of the
medium or manner in which it is generated, stored, or maintained (including,
among other things, testimony, transcripts, and tangible things), that are
produced or generated in disclosures or responses to discovery in this matter.
2.6 Expert: a person with specialized knowledge or experience in a matter pertinent
to the litigation who has been retained by a Party or its counsel to serve as an
expert witness or as a consultant in this action.
2.7 House Counsel: attorneys who are employees of a party to this action. House
Counsel does not include Outside Counsel of Record or any other outside
2.8 Non-Party: any natural person, partnership, corporation, association, or other
legal entity not named as a Party to this action.
2.9 Outside Counsel of Record: attorneys who are not employees of a party to this
action but are retained to represent or advise a party to this action and have
appeared in this action on behalf of that party.
Party: any party to this action, including all of its officers, directors,
employees, consultants, retained experts, and Outside Counsel of Record (and
their support staffs).
Producing Party: a Party or Non-Party that produces Disclosure or Discovery
Material in this action.
Professional Vendors: persons or entities that provide litigation support
services (e.g., photocopying, videotaping, translating, preparing exhibits or
demonstrations, and organizing, storing, or retrieving data in any form or
medium) and their employees and subcontractors.
Protected Material: any Disclosure or Discovery Material that is designated as
2.14 Receiving Party: a Party that receives Disclosure or Discovery Material from a
The protections conferred by this Order cover not only Protected Material (as defined
above), but also (1) any information copied or extracted from Protected Material; (2) all
copies, excerpts, summaries, or compilations of Protected Material; and (3) any testimony,
conversations, or presentations by Parties or their Counsel that might reveal Protected
Material. However, the protections conferred by this Order do not cover the following
information: (a) any information that is in the public domain at the time of disclosure to a
Receiving Party as a result of publication not involving a violation of this Order, including
becoming part of the public record through trial or otherwise; and (b) any information
known to the Receiving Party after the disclosure from a source who obtained the
information lawfully and under no obligation of confidentially to the Designating Party.
Any use of Protected Material at trial shall be governed by a separate agreement or order.
Even after final disposition of this litigation, the confidentiality obligations imposed
by this Order shall remain in effect until a Designating Party agrees otherwise in writing or
a court order otherwise directs. Final disposition shall be deemed to be the later of (1)
dismissal of all claims and defenses in this action, with or without prejudice; and (2) final
judgment herein after the completion and exhaustion of all appeals, rehearings, remands,
trials, or reviews of this action, including the time limits for filing any motions or
applications for extensions of time pursuant to applicable law.
DESIGNATING PROTECTED MATERIAL
5.1 Exercise of Restraint and Care in Designating Material for Protection:
Each Party or Non-Party that designates information or items for protection under
this Order must take care to limit any such designation to specific material that qualifies
under the appropriate standards. The Designating Party must designate for production only
those parts of material, documents, items, or oral or written communications that qualify –
so that other portions of the material documents, items, or communications for which
protection is not warranted are not swept unjustifiably within the ambit of this Order.
Mass, indiscriminate, or routinized designations are prohibited. Designations that are
shown to be clearly unjustified or that have been made for an improper purpose (e.g. to
unnecessarily encumber or retard the case development process, or to impose unnecessary
expenses and burdens on other parties) expose the Designating Party to sanctions.
If it comes to a Party’s or a non-party’s attention that information or items that it
designated for protection do not qualify for protection, that Designating Party must
promptly notify all other Parties that it is withdrawing the mistaken designation.
5.2 Manner and Timing of Designations: Except as otherwise provided in this Order
(see, e.g., second paragraph of section 5.2(a) below), or as otherwise stipulated or ordered,
Disclosure or Discovery Material that qualifies for protection under this Order must be
clearly so designated before the material is disclosed or produced.
Designation in conformity with this Order requires:
(a) for information in documentary form (e.g., paper or electronic documents,
but excluding transcripts of depositions or other pretrial or trial proceedings), that the
Producing Party affixes the legend “CONFIDENTIAL” to each page that contains protected
material. If only a portion or portions of the material on a page qualifies for protection, the
Producing Party also must clearly identify the protected portion(s) (e.g., by making
appropriate markings in the margins).
A Party or non-party that makes original documents or materials available for
inspection need not designate them for production until after the inspecting Party has
indicated which material it would like copied and produced. During the inspection and
before designation, all of the material made available for inspection shall be deemed
“CONFIDENTIAL.” After the inspecting Party has identified the document it wants copied
and produced, the Producing Party must determine which documents, or portions thereof,
qualify for protection under this Order. Then, before producing the specified documents, the
Producing Party must affix the “CONFIDENTIAL” legend to each page that contains
Protected Material. If only a portion or portions of the material on a page qualifies for
protection, the Producing Party also must clearly identify the protected portion(s) (e.g., by
making appropriate markings in the margins).
(b) for testimony given in deposition or in other pretrial or trial proceedings,
that the Designating Party may identify on the record, before the close of the deposition,
hearing, or other proceeding, all protected testimony. Otherwise, deposition testimony is to
be treated as confidential for thirty (30) days after receipt of the transcript by the parties, at
which time any confidential designations shall be made. Confidentiality designations of
protected testimony given in any hearing or at trial shall be identified on the record before
the close of the hearing or trial in which the testimony was given unless otherwise agreed by
(c) for information produced in some form other than documentary and for
any other tangible items, that the Producing Party affix in a prominent place on the exterior
of the container or containers in which the information or item is stored the legend
“CONFIDENTIAL.” If only a portion or portions of the information or item warrant
protection, the Producing Party, to the extent practicable, shall identify the protected
5.3 Inadvertent Failures to Designate: If timely corrected, an inadvertent failure to
designate qualified information or items does not, standing alone, waive the Designating
Party’s right to secure protection under this Order for such material. Upon timely correction
of designation, the Receiving Party must make reasonable efforts to assure that the material
is treated in accordance with the provisions of this Order.
CHALLENGING CONFIDENTIALITY DESIGNATIONS
6.1 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.
6.2 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.
6.3 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 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.
ACCESS TO AND USE OF PROTECTED MATERIAL
7.1 Basic Principles: A Receiving Party may use Protected Material that is disclosed
or produced by another Party or by a Non-party in connection with this case only for
prosecuting, defending, or attempting to settle this litigation. Such Protected Material may
be disclosed only to the categories of persons and under the conditions described in this
Order. When the litigation has been terminated, a Receiving Party must comply with the
provisions of section 13 below (FINAL DISPOSITION).
Protected Material must be stored and maintained by a Receiving Party at a location
and in a secure manner that ensures that access is limited to the persons authorized under
7.2 Disclosure of “CONFIDENTIAL” Information or Items: Unless otherwise
ordered by the Court or permitted in writing by the Designating Party, a Receiving Party
may disclose any information or item designated “CONFIDENTIAL” only to:
(a) the Receiving Party’s Outside Counsel of record in this action, as well as
employees of said Outside Counsel to whom it is reasonably necessary to disclose the
information for this litigation and who have signed the “Acknowledgment and Agreement
to be Bound” that is attached hereto as Exhibit A;
(b) the officers, directors, and employees (including House Counsel) of the
Receiving Party to whom disclosure is reasonably necessary for this litigation and who
signed the “Acknowledgment and Agreement to be Bound” (Exhibit A);
(c) Experts (as defined in this Order) of the Receiving Party to whom
disclosure is reasonably necessary for this litigation and who have signed the
“Acknowledgment and Agreement to be Bound” (Exhibit A);
(d) the Court and its personnel;
(e) court reporters and their staff, professional jury or trial consultants, mock
jurors, and Professional Vendors to whom disclosure is reasonably necessary for this
litigation and who have signed the “Acknowledgment and Agreement to be Bound”
(f) during their depositions, witnesses in the action to whom disclosure is
reasonably necessary and who have signed the “Acknowledgment and Agreement to be
Bound” (Exhibit A), unless otherwise agreed by the Designating Party or ordered by the
Court. Pages of transcribed deposition testimony or exhibits to depositions that reveal
Protected Material must be separately bound by the court reporter and may not be disclosed
to anyone except as permitted under this Protective Order;
(g) the author of the document containing the information or a custodian or
other person who otherwise possessed or knew the information.
8. PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED IN
If a Party is served with a subpoena or an order issued in other litigation that compels
disclosure of any information or items designated in this action as “CONFIDENTIAL,” that
(a) promptly notify in writing the Designating Party. Such notification shall
include a copy of the subpoena or court order;
(b) promptly notify 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 subject to this Protective Order. Such notification shall include a copy of this Protective
(c) cooperate with respect to all reasonable procedures sought to be pursued
by the Designating Party whose Protected Material may be affected.
If the Designating Party timely seeks a protective order, the Party served with the
subpoena or court order shall not produce any information designated in this action as
“CONFIDENTIAL” before a determination by the court from which the subpoena or order
is issued, unless the Party has obtained the Designating Party’s permission. The Designating
Party shall bear the burden and expense of seeking protection in the court of its confidential
material – 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
A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE PRODUCED IN
(a) The terms of this Order are applicable to information produced by a Non-Party in
this action and designated as “CONFIDENTIAL.” Such information produced by NonParties in connection with this litigation is protected by the remedies and relief provided by
this Order. Nothing in these provisions should be construed as prohibiting a Non-Party from
seeking additional protections.
(b) In the event that a Party is required, by a valid discovery request, to produce a
Non-Party’s confidential information in its possession, and the Party is subject to an
agreement with the Non-Party not to produce the Non-Party’s confidential information, the
(1) promptly notify in writing the Requesting Party and the Non-Party that
some or all of the information requested is subject to a confidentiality agreement with a
(2) promptly provide the Non-Party with a copy of the Protective Order in this
litigation, the relevant discovery request(s), and a reasonably specific description of the
information requested; and
(3) make the information requested available for inspection by the Non-Party.
(c) If the Non-Party fails to object or seek a protective order from this Court within
14 days of receiving the notice and accompanying information, the Receiving Party may
produce the Non-Party’s confidential information responsive to the discovery request. If the
Non-Party timely seeks a protective order, the Receiving Party shall not produce any
information in its possession or control that is subject to the confidentiality agreement with
the Non-Party before a determination by the Court. [The purpose of this provision is to alert
the interested parties to the existence of confidentiality rights of a Non-Party and to afford
the Non-Party an opportunity to protect its confidentiality interests in this Court.] Absent a
court order to the contrary, the Non-Party shall bear the burden and expense of seeking
protection in this Court of its Protected Material.
UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL
If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed
Protected Material to any person or in any circumstance not authorized under this Protective
Order, the Receiving Party must immediately (a) notify in writing the Designating Party of
the unauthorized disclosures, (b) use its best efforts to retrieve all unauthorized copies of the
Protected Material, (c) inform the person or persons to whom unauthorized disclosures were
made of all the terms of this Order, and (d) request such person or persons to execute the
“Acknowledgment and Agreement to be Bound” (Exhibit A).
When a Producing Party gives notice to Receiving Parties 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 ediscovery 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.
12.1 Right to Further Relief: Nothing in this Order abridges the right of any person to
seek its modification by the Court in the future.
12.2 Right to Assert Other Objections: By stipulating to the entry of this Protective
Order no Party waives any right it otherwise would have to object to disclosing or
producing any information or item on any ground not addressed in this Protective Order.
Similarly, no Party waives any right to object on any ground to use in evidence of any of the
material covered by this Protective Order.
12.3 Filing Protected Material: 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. Protected Material may only be filed under seal pursuant to court order
authorizing the sealing of the specific Protected Material at issue.
Within 60 days after the final disposition of this action, as defined in paragraph 4,
each Receiving Party must return all Protected Material to the Producing Party or destroy
such material. As used in this subdivision, “all Protected Material” includes all copies,
abstracts, compilations, summaries, and any other format reproducing or capturing any of
the Protected Material. Whether the Protected Material is returned or destroyed, the
Receiving Party must submit a written certification to the Producing Party (and, if not the
same person or entity, to the Designating Party) by the 60 day deadline that (1) identifies
(by category, where appropriate) all the Protected Material that was returned or destroyed
and (2) affirms that the Receiving Party has not retained any copies, abstracts, compilations,
summaries or any other format reproducing or capturing any of the Protected Material.
Notwithstanding this provision, Counsel are entitled to retain an archival copy of all
pleadings, motion papers, trial, deposition, and hearing transcripts, legal memoranda,
correspondence, deposition and trial exhibits, expert reports, attorney work product, and
consultant and expert work product, even if such materials contain Protected Material. Any
such archival copies that contain or constitute Protected Material remain subject to this
Protective Order as set forth in Section 4 (DURATION).
IT IS SO ORDERED.
Dated this 7th day of April 2017
BY THE COURT:
s/ Susan M. Bazis
United States Magistrate Judge
AGREEMENT TO BE BOUND
The undersigned hereby acknowledges that he/she has read the Protective Order dated
_______________ in the case captioned, Meeks v. National Account Systems of Omaha, LLC and
Thomas C. Underwood, Case No. 8:16-cv-513, 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.
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?