Crabar/GBF, Inc. v. Wright et al

Filing 352

ORDER - Plaintiff's Motion for Protective Order (Filing No. 344 ) is granted. The Court overrules Defendants' objections to Plaintiff's Highly Confidential-Attorneys' Eyes Only Information designation of Schedules 6.1, 6.2, 7.1, 10.0, and 10.1 attached to Mr. Beros Expert Report. Ordered by Magistrate Judge Michael D. Nelson. (KMM)

8:16-cv-00537-JMG-MDN Doc # 352 Filed: 02/17/22 Page 1 of 3 - Page ID # 7543

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
CRABAR/GBF, INC.,
Plaintiff,

8:16CV537

vs.
ORDER
MARK WRIGHT, WRIGHT PRINTING
CO., MARDRA SIKORA, JAMIE
FREDRICKSON, and ALEXANDRA
KOHLHAAS,
Defendants.
This matter comes before the Court on Plaintiff’s Motion for Protective Order (Filing No.
344). Defendants have objected to Plaintiff’s designation of five schedules attached to an expert
report as “Highly Confidential-Attorneys’ Eyes Only.” Pursuant to the parties’ stipulated protective
order, Plaintiff has filed the instant motion to resolve Defendants’ objection to Plaintiff’s
designation.
On March 2, 2017, Magistrate Judge Gossett granted the parties’ Joint Motion for Entry of
Protective Order (Filing No. 31) and entered the parties’ Confidentiality Agreement and Stipulated
Protective Order (“The Protective Order”). (Filing No. 32). The Protective Order contains the
following definitions:
(a) The term “Confidential Information” means any confidential or proprietary
technical, financial, commercial or business information, information that
constitutes a trade secret, or highly personal information.
(b) The term “Highly Confidential-Attorneys’ Eyes Only Information” means any
Confidential Information that is so competitively sensitive that it could cause
competitive harm to that party, or a nonparty, if disclosed to another party in this
action.
(Filing No. 32 at p. 1).

The Protective Order permits a party to designate documents as

“Confidential” or “Highly Confidential-Attorneys’ Eyes Only.” If another party disagrees with the
designation, the objecting party must notify the designating party in writing of the objections before
the parties make a good-faith effort to resolve the disagreement. If the parties do not resolve the
disagreement, the designating party must file a motion seeking relief from the Court. The Protective
Order provides that the designating party has the burden of showing that the materials or

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information are properly designated as Confidential or Highly Confidential-Attorneys’ Eyes Only.
(Filing No. 32 at pp. 3-4).
On January 7, 2022, Plaintiff served Defendant with an expert report authored by Ronald
A. Bero, Jr., CPA/ABV, CFF, containing his opinion of Plaintiff’s damages. Mr. Bero attached
several schedules to his report containing Plaintiff’s customer lists, historical customer information
and order history, and financial information including prices and revenues from specific customers
and specific products, all of which Plaintiff believes contain highly confidential information.
Plaintiff initially designated Mr. Bero’s report and all the attachments as Highly ConfidentialAttorneys’ Eyes Only. Pursuant to the Protective order, Defendants served Plaintiff with their
written objection to that designation. After reviewing the objection, Plaintiff re-designated Mr.
Bero’s report and certain schedules as “Confidential Information,” but has not withdrawn its
“Highly Confidential-Attorneys’ Eyes Only” designation for Schedules 6.1, 6.2, 7.1, 10.0, and 10.1.
Plaintiff assert these schedules contain its “highly confidential and proprietary trade secret
information that is so competitively sensitive that it would cause competitive harm to [Plaintiff] if
it was disclosed to the Defendants, who compete with [Plaintiff] in the same industry and who are
selling the same or substantially similar products to the same target market.” (Filing No. 344 at p.
3).
After review, the Court finds Plaintiff has carried its burden to show Schedules 6.1, 6.2, 7.1,
10.0, and 10.1 are properly designated as Highly Confidential-Attorneys’ Eyes Only. The Court is
persuaded that these Schedules, consisting of detailed product and historical financial information
for Plaintiff’s products and customers; Plaintiff’s incremental profit analysis utilizing Plaintiff’s
nonpublic historical financial data; detailed sales, cost of sale, and expense information; and burden
cost reporting is competitively sensitive and could cause harm to Plaintiff if disclosed to another
party in this action. The information in these Schedules is not reported in any public filing and is
not available to any person or entity other than authorized personnel at Plaintiff and its parent
company. The Court is further persuaded that the information in these Schedules could provide a
direct competitor with information needed to directly target Plaintiff’s customers, suppliers, and
contractors. Defendant, Wright Printing Co., is a direct competitor of Plaintiff. This lawsuit
involves Plaintiff’s allegations that, after Plaintiff purchased Wright Printing, Writing Printing kept
copies of confidential information it sold to Plaintiff and used that information to target Plaintiff’s
customers. Under the circumstances, Plaintiff has made an adequate showing that the information

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in these schedules is so competitively sensitive it could cause competitive harm if disclosed to
another party in this action.
The Court further finds that Plaintiff’s designation of these five schedules as Highly
Confidential-Attorneys’ Eyes Only will not prejudice Defendants’ defense. Pursuant to the terms
of the Protective Order, Highly Confidential-Attorneys’ Eyes Only Information may be disclosed
to a few categories of individuals, including outside experts that have signed a Non-Disclosure
Agreement. So long as Defendants’ outside expert signs the NDA, Defendants can disclose these
Schedules to their outside expert, if needed. Additionally, Highly Confidential-Attorneys’ Eyes
Only Information may be disclosed employees of the parties “to whom counsel deems it essential
to show a document designated Highly Confidential-Attorneys’ Eyes Only,” provided:
(a) counsel advises opposing counsel in writing what Highly ConfidentialAttorneys’ Eyes Only document will be shown to which individual employee, (b)
counsel does not transmit a copy of that document to the identified employee, but
instead shows the document to the specified employee at an in-person meeting and
takes the document away from the employee when the in-person meeting is
concluded, and (c) the employee, prior to being shown the document, signs the
Non-Disclosure Agreement attached hereto as Exhibit 1.
(Filing No. 32 at p. 6). Although it may cause some additional expense or burden if Defendants
deem it essential to disclose any of these five schedules to any of its employees, the terms of the
Protective Order provide an adequate balance of protecting Plaintiff’s competitively sensitive
information from its direct competitor, while still providing Defendants with a means to utilize the
information necessary for their defense. Upon consideration,
IT IS ORDERED: Plaintiff’s Motion for Protective Order (Filing No. 344) is granted. The
Court overrules Defendants’ objections to Plaintiff’s Highly Confidential-Attorneys’ Eyes Only
Information designation of Schedules 6.1, 6.2, 7.1, 10.0, and 10.1 attached to Mr. Bero’s Expert
Report.
Dated this 17th day of February, 2022.
BY THE COURT:
s/Michael D. Nelson
United States Magistrate Judge

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