Rosales v. Lexington Law Firm
Filing
29
ORDER granting 28 Motion for Protective Order. Ordered by Magistrate Judge Cheryl R. Zwart. (JLA)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
EUGENE ROSALES, on behalf of
himself and all others similarly situated,;
8:17CV87
Plaintiff,
STIPULATED PROTECTIVE ORDER
vs.
JOHN C. HEATH, Attorney at Law;
Defendant.
STIPULATED PROTECTIVE ORDER
IT IS HEREBY STIPULATED by and between Plaintiff Eugene Rosales and Defendant
John C. Heath Attorney at Law, PLLC dba Lexington Law Firm, through their respective attorneys
of record, as follows:
WHEREAS, documents, testimony and information have been and may be sought,
produced or exhibited by and among the parties relating to trade secrets, proprietary systems,
confidential commercial information, confidential research and development, or other proprietary
information belonging to Defendant and/or credit and other confidential information of Plaintiff
and third parties.
THEREFORE, this Court orders as follows:
1.
This Order shall govern the use, handling, and disclosure of all documents,
testimony or information produced or given in this action which are designated to be subject to
this Order.
2.
Any documents, testimony or information submitted, either voluntarily or pursuant
to any subsequent order, which is asserted in good faith by the producing party or by any other
party to contain or constitute information protected by Federal Rule of Civil Procedure 26(c) or
other provision of law asserted by the producing party, shall be so designated in writing, or orally
at a deposition, hearing or trial and shall be segregated from other information being submitted.
Materials so designated shall be clearly marked on their face with the legend: “CONFIDENTIAL”
or “CONFIDENTIAL-ATTORNEY'S EYES ONLY.” Such documents, transcripts, or other
materials are referred herein as “CONFIDENTIAL MATERIALS” and “CONFIDENTIAL-AEO
MATERIALS,” respectively.
3. A party wishing to designate portions of a deposition transcript CONFIDENTIAL
pursuant to this Order must, within two (2) business days from the conclusion of the deposition,
order the original or a copy of the transcript of the deposition from the court reporter for regular
turnaround.
The designating
party may designate those portions
of the transcript
CONFIDENTIAL or CONFIDENTIAL-ATTORNEY'S EYES ONLY, in accordance with
paragraph 2 of this Order.
The designating party shall designate such CONFIDENTIAL
MATERIAL or CONFIDENTIAL-AEO MATERIAL either on the record or by serving upon all
counsel of record via facsimile or other electronic transmission a Notice setting forth the page, line
numbers and designation. The designating party must serve such Notice within ten (10) calendar
days after its counsel receives a copy of the deposition transcript. All transcripts ordered within
two (2) business days from the conclusion of the deposition will be treated as confidential until the
expiration of the ten (10) day period described in this paragraph. Any portions of a transcript
designated as confidential shall thereafter be treated as confidential in accordance with this Order.
The parties shall negotiate in good faith to alter the time frames set forth in this paragraph in
situations where a more expedited filing of a designated portion of the deposition transcript is
required.
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4.
All CONFIDENTIAL MATERIALS and CONFIDENTIAL-AEO MATERIALS,
and all information derived therefrom (including but not limited to all testimony, deposition or
otherwise, that refers, reflects or otherwise discusses any such materials), shall not be used, directly
or indirectly, by any person for any business, commercial or competitive purposes or for any
purpose whatsoever other than solely for the preparation and trial of this action in accordance with
this Order.
5.
In the absence of prior written permission from the designating party or an order by
the Court, CONFIDENTIAL MATERIALS shall not be disclosed to any person other than: (i) the
parties and their attorneys of record, and those attorneys’ support staff employees who perform
work tasks related to this case; (ii) qualified persons taking testimony involving such material and
necessary stenographic and clerical personnel; (iii) disclosed experts or consulting experts and
their staff employed for this litigation; (iv) present or former employees of the producing party in
connection with their depositions in this action (provided that no former employees shall be shown
documents prepared after the date of his or her departure); (v) outside photocopying and electronic
discovery vendors; and (vi) the Court, Court personnel, and members of any jury impaneled to
hear this case.
6.
CONFIDENTIAL MATERIALS and CONFIDENTIAL-AEO MATERIALS shall
not be disclosed to any person designated in paragraph 5(iii) unless he or she has executed a
written, dated declaration in the form attached as Exhibit A, acknowledging that he or she has first
read this Order, agreed to be bound by the terms thereof, agreed not to reveal such
CONFIDENTIAL MATERIALS or CONFIDENTIAL-AEO MATERIALS to anyone, and agreed
to utilize such CONFIDENTIAL MATERIALS or CONFIDENTIAL-AEO MATERIALS solely
for the purposes of this litigation.
All persons to whom CONFIDENTIAL MATERIALS or
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CONFIDENTIAL-AEO MATERIALS are disclosed are hereby enjoined from disclosing same to
any other person except as provided in this Order, and are also enjoined from using same except
in the preparation for and trial of this case between the named parties thereto. No person receiving
or reviewing CONFIDENTIAL MATERIALS or CONFIDENTIAL-AEO MATERIALS shall
disseminate or disclose them to any person other than those described above in Paragraph 5 and
for the purposes specified, and in no event shall such person make any other use of such
CONFIDENTIAL MATERIALS or CONFIDENTIAL-AEO MATERIALS.
7.
Inadvertent failure to designate any document or material as containing
Confidential Information will not constitute a waiver of an otherwise valid claim of confidentiality
pursuant to this Order, so long as a claim of confidentiality is promptly asserted after discovery of
the inadvertent failure. 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, and
upon request from the producing party certify that the designated documents have been maintained
as Confidential Information.
8.
With regard to claims of privilege or of protection as trial-preparation material
asserted after production, the parties have agreed to an order as follows: Inadvertent disclosure of
information or any documents (including electronic data) that contain information protected by the
attorney-client privilege and/or the work product doctrine shall not waive any attorney-client
privilege or work product privilege applicable to that information, document, or subject matter.
As soon as practicable, the producing party shall inform the receiving party, in writing, that the
information or document is subject to a legitimate claim of privilege and the return of the
information or document is promptly requested. As soon as practicable upon determining that
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privileged or work product information or documents have been produced, the receiving party
shall inform the producing party in writing of its receipt of work product information.
Upon receiving written notice of the producing party’s claim of privilege, or when the
receiving party receives information produced by the other party which the receiving party
recognizes as containing privileged or work product information, the receiving party shall treat the
information as privileged and either: (1) promptly return the information or document to the
producing party, (2) destroy all copies of the information or document, or (3) if the receiving party
has a good faith basis to believe the information is not privileged, may challenge the producing
party’s claim. Until an agreement is reached or a determination is made by this Court, such
information shall be treated as privileged and may not be used or disclosed in any manner. In the
event the receiving party destroys the information, the receiving party shall so inform the
producing party in writing within ten (10) days that the information has been destroyed.
9.
In the absence of an order by the Court, CONFIDENTIAL-AEO MATERIALS
shall not be disclosed to any person other than counsel of record in this case, those attorneys’
support staff employees who perform work tasks related to this case, and the in-house counsel of
a party.
10.
In the event that any party disagrees with any designation made under this Order,
the parties shall first try in good faith to resolve the disagreement informally. If the dispute cannot
be resolved and the receiving party concludes in good faith that the materials have been improperly
classified, the receiving party shall notify the designating party in writing by facsimile or by
electronic transmission of its objection, but shall continue to maintain the documents or other
information as confidential for fifteen (15) days after such notice. If, after receiving such notice,
the designating party seeks to retain the designated status of such materials, the designating party
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has an obligation to move the Court to retain the designated status of such materials. If the
designating party files such a motion within the fifteen (15) day period, the receiving party shall
continue to retain the materials as CONFIDENTIAL or CONFIDENTIAL-AEO, consistent with
the designating party’s designation, until the Court has ruled on the designating party's motion. If
the designating party fails to file such a motion within the fifteen (15) day period, the receiving
party can thereafter treat the materials as if they were not designated CONFIDENTIAL or
CONFIDENTAIL-AEO.
11.
Any party seeking to file CONFIDENTIAL MATERIALS or CONFIDENTIAL -
AEO MATERIALS with the Court shall file such material in accordance with Local Rule 7.5. The
parties shall work together in good faith to coordinate the filing of all motions and material covered
by this paragraph to permit compliance with the Local Rules.
12.
Subject to paragraph 10, within sixty (60) days after the conclusion of this case,
upon written request, the receiving party shall assemble and make available to the designating
party all materials containing information designated in accordance with paragraph 2, above (with
the exception of any attorney-work product, which the receiving party may retain but shall
continue to treat as CONFIDENTIAL MATERIAL and CONFIDENTIAL-AEO MATERIAL as
provided in this Order). The receiving party may elect to have the designated materials destroyed
or returned, and if the receiving party chooses the former, the receiving party shall provide written
verification that the materials, including any summaries, extracts, compilations, notes or other
attorney work product, have been destroyed and the manner in which such materials have been
destroyed.
13.
This Order shall remain binding after the conclusion of this case unless otherwise
ordered by the Court, and the Court shall retain jurisdiction over all parties bound hereby for the
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purposes of enforcing this Order. Each individual signing the acknowledgment attached as Exhibit
A agrees to be subject to the jurisdiction of this Court for purposes of this Order.
14.
This Order does not prevent any party from seeking to seal trial transcripts and/or
trial exhibits, including documents previously filed under seal, or from seeking any other similar
relief.
15.
Neither the entry of this Order, nor the designation of any material as
“CONFIDENTIAL” or “CONFIDENTIAL-AEO,” nor the failure to make such designation, shall
constitute evidence on any issue in this case.
The designation of any materials as
“CONFIDENTIAL” or “CONFIDENTIAL-AEO” does not waive that party’s objection to any
discovery on the ground that it seeks information protected by Federal Rule of Civil Procedure
26(c) or other provision of law.
16.
Nothing herein shall affect or restrict the rights of any party with respect to its own
documents or to the information obtained or developed independently of materials afforded
confidential treatment pursuant to this Order.
17.
Third parties who are the subject of discovery requests, subpoenas, or depositions
in this case may take advantage of the provisions of this Order by providing Plaintiff and Defendant
with written notice that they intend to comply with and be bound by the terms of this Order.
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Dated: September 21, 2018
By: /s/ Julie D. Hoffmeister
Julie D. Hoffmeister
David N. Anthony
TROUTMAN SANDERS LLP
1001 Haxall Point
Richmond, VA 23219
Telephone: (804) 697-1448
Facsimile: (804) 697-1339
julie.hoffmeister@troutmansanders.com
david.anthony@troutmansanders.com
By: /s/ Sergei Lemberg
Sergei Lemberg
LEMBERG LAW
43 Danbury Road
Wilton, CT 06897
Telephone: (203) 653-2250
Facsimile: (203) 653-3424
IT IS SO ORDERED.
Dated this 21st day of September, 2018
BY THE COURT:
s/ Cheryl R. Zwart
United States Magistrate Judge
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EXHIBIT A
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
EUGENE ROSALES,
Plaintiff,
v.
LEXINGTON LAW FIRM,
Defendant.
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Civil Action No. 8:17-cv-00087
DECLARATION OF _________________ UNDER
STIPULATED PROTECTIVE ORDER
I, ___________________ being duly sworn, declares as follows:
1.
My address is __________________________________________________.
2.
My present employer is __________________________________________.
3.
My present occupation or job description is ___________________________
__________________________________________________________________________.
4.
I hereby acknowledge that: (i) I have been given a copy of the Stipulated Protective
Order (“Protective Order”) in the above-referenced case; (ii) I carefully read the Protective Order;
and (iii) I understand and am familiar with the terms of the Protective Order.
5.
I will comply with all of the provisions of the Protective Order. I will hold all
Confidential Materials disclosed to me, including the substance and any copy, summary abstract,
excerpt, index or description, in confidence, and will not disclose such material to anyone not
qualified under the Protective Order. I will not use any Confidential Material disclosed to me for
any purposes other than this case.
6.
I will return all Confidential Material that comes into my possession and all
documents and things that I have prepared relating thereto, to counsel for the Party by who I am
retained or employed, or from whom I received such material.
7.
I hereby submit to the jurisdiction of the United States District Court for the District
of Nebraska for the purpose of enforcement of the Protective Order in this case.
I declare under the penalty of perjury that the foregoing is true and correct.
___________________________
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