Bassett v. Credit Management Services, Inc. et al
STIPULATED PROTECTIVE ORDER granting 26 Joint Motion and Stipulation for Protective Order. Ordered by Magistrate Judge Michael D. Nelson. (SMN)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
KELLY M. BASSETT, individually and as
heir and Personal Representative of the
Estate of James M. Bassett, on behalf of
herself and all others similarly situated;
CREDIT MANAGEMENT SERVICES,
INC., and JASON MORLEDGE,
This matter comes before the Court on the parties’ Joint Motion and Stipulation for
Protective Order (Filing No. 26). The parties agree that during the course of discovery it
may be necessary to disclose certain confidential information relating to the subject
matter of this action. They agree that certain categories of such information should be
treated as confidential, protected from disclosure outside this litigation, and used only for
purposes of prosecuting or defending this action and any appeals. The parties jointly
request entry of this Stipulated Protective Order to limit the disclosure, dissemination,
and use of certain confidential information. For good cause shown under Fed. R. Civ. P.
IT IS ORDERED: The parties’ Joint Motion and Stipulation for Protective Order
(Filing No. 26) is granted, and the Court hereby enters the following Protective Order as
jointly stipulated and agreed to by the parties:
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 hereby stipulate to and petition the court to enter
the following Stipulated 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
Stipulated 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
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
Receiving Party: a Party that receives Disclosure or Discovery Material
from a Producing Party.
The protections conferred by this Motion and 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
Stipulation and 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
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
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 the parties.
(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
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
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 this Order.
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 Stipulated 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 Party must:
(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
Stipulated Protective Order; and
(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 court.
A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE PRODUCED
IN THIS LITIGATION
(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 Party shall:
(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 Stipulated 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 NonParty.
(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
Stipulated 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”
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 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.
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 Motion and
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 STIPULATED, THROUGH COUNSEL OF RECORD.
Dated this 10th day of August, 2017.
s/ Michael D. Nelson
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, Kelly M. Bassett v. Credit Management Services, Inc.
and Jason Morledge, Case No. 8:17-CV-69, 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.
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