Boyd Jones Construction Company v. Velinsky

Filing 32

PROTECTIVE ORDER granting parties' joint motion for protective order and order governing the disclosure of privileged information 31 . Ordered by Magistrate Judge Susan M. Bazis. (CCB)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA

BOYD JONES CONSTRUCTION
COMPANY,

Case No. 8:17-cv-154

Plaintiff,
v.

PROTECTIVE ORDER

BENJAMIN VELINSKY,
Defendant.

This matter is before the Court on the parties’ Joint Motion for Protective Order
and Order Governing the Disclosure of Privileged Information. (Filing No. 31.) The
motion is granted.
IT IS ORDERED:
This Protective Order shall govern the use and dissemination of all information,
documents, or materials produced by the parties and designated as Confidential.
A.

DEFINITIONS.

Limitations under this Protective Order on the use or

disclosure of documents, deposition testimony or other discovery designated as
“Confidential” shall apply to (a) all information, copies, extracts and complete or partial
summaries prepared or derived from such documents or testimony; (b) portions of
deposition transcripts, answers to interrogatories, responses to requests for admissions,
responses to requests for production, initial disclosures and exhibits thereto which directly
refer or directly relate to any such information, documents, copies, extracts or summaries;
and (c) portions of briefs, memoranda or any other writing filed with the Court and exhibits
thereto which directly relate to any such information, documents, copies, extracts or
summaries. Such Confidential Information shall include the following:
i.

Any and all documents referring or related to confidential and/or

proprietary human resources or business information, including Trade
Secrets;
ii.

Client/customer contact and preference information;

iii.

Documents identifying potential clients/customers or potential projects;

iv.

Any financial information pertaining to either party;

v.

Compensation of Plaintiff’s current or former personnel;

vi.

Any documents from the personnel, medical, FMLA, or workers’
compensation file of any current or former employee or contractor; and

vii.

Any portions of depositions (audio or video) where Confidential
Information is disclosed or used as exhibits.

Nothing in this Protective Order, including the list of Confidential Information above,
should be construed as a waiver of any objections to particular discovery requests or a
concession of the relevance or admissibility of any document or information.
B.

CONFIDENTIAL DOCUMENTS. Before produced documents are copied or

inspected, the producing party may stamp as “Confidential” any document or deposition
testimony it believes contains Confidential Information in order to limit disclosure as set
forth in this Paragraph B. Documents designated “Confidential,” deposition testimony so
designated, and information derived therefrom will be retained by counsel and will not be
used for any purpose other than this litigation and will not be disclosed except pursuant to
court order entered after notice, to anyone except:
i.

Counsel of record for the parties who have approving this Order as to form
and content and employees of such counsel’s law firms who are directly
involved in this litigation;

ii.

Experts and consultants retained by either of the parties for purposes of
assisting in the preparation or presentation of claims or defenses;
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iii.

Any deposition or trial witness, during the course of deposition or trial
testimony, when necessary to the testimony of such witness, or during
preparation for deposition or trial testimony;

iv.

Any person who was involved in the preparation of the document;

v.

Court, Court personnel, court reporters, and similar personnel;

vi.

The named parties to this case,

excluding their

agents and/or

representatives except those identified at Paragraph B(i) above; provided
such parties review the confidential materials with their attorney or at their
attorney’s office.

“Parties” shall mean those officers, directors, and

corporate counsel charged with decision-making authority on this lawsuit.
vii.

Any other person with the prior written consent of the party producing the
document, pleading or deposition testimony.

Prior to receiving or being shown such documents or deposition testimony, persons
falling in the categories listed above in subparagraphs (ii), (iii), and (vii) shall be shown a
copy of, and shall agree in writing, or on the record during trial or deposition, to be bound
by the terms of this Protective Order.

During a deposition, any party asserting

confidentiality of any of its documents shall ask the deponent on the record to accept the
terms of this Order. If the deponent refuses to assent, disclosure of the documents during
deposition shall not constitute a waiver of confidentiality. Under such circumstances, the
witness shall sign the original deposition transcript in the presence of the court reporter
and no copy of the transcript or exhibits shall be given to the deponent.
Documents marked “Confidential” shall be maintained at the offices of counsel and
each party shall not be permitted to keep or possess copies of any documents marked
confidential, which were produced to them by the other party. Provided that, however,
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each party may be shown confidential documents in the presence of their counsel or
documents may be provided to expert witnesses provided the expert witness is not a party
and does not provide the documents to a party.
Nothing in this Protective Order shall be construed as an agreement by the
receiving party that any designation of material as “Confidential” is appropriate and
nothing herein shall prevent a receiving party from challenging any such designation.
C.

MATERIALS FOR ATTORNEYS’ EYES ONLY. Counsel for a producing party

may further designate such “Confidential” materials as for “Attorneys’ Eyes Only” if such
counsel concludes that the material constitutes or contains non-public information that is
highly personal in nature or is competitively sensitive and proprietary to the producing
party, or from which competitively sensitive and proprietary information belonging to a
producing party could be derived. Material designated as “Attorneys’ Eyes Only” may
not be disclosed to anyone other than counsel of record for the parties, and in all other
respects shall be treated as “Confidential” material under this Protective Order. Nothing
in this Protective Order shall be construed as an agreement by the receiving party that
any designation of material as “Attorneys’ Eyes Only” is appropriate and nothing herein
shall prevent a receiving party from challenging any such designation.
D.

RE-DESIGNATION

OF

ATTORNEY’S EYES ONLY.

MATERIALS

AS

CONFIDENTIAL

OR

FOR

In the event a producing party inadvertently omits to

designate materials as “Confidential” and/or for “Attorney’s Eyes Only,” such omission
shall not be deemed a waiver of its entitlement to do so if the producing party notifies all
other parties of the omission promptly after discovering the omission and provides the
receiving party with replacement copies of the documents or things bearing the
appropriate designation. Upon receipt of the replacement copies, the receiving party
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shall retrieve and return or destroy all copies of the previously produced documents or
materials.
E.

THIRD PARTY WITNESSES.

A copy of this Protective Order may be

served with a subpoena or Notice of Deposition on each third-party deponent. A thirdparty witness may designate a document as “Confidential” or “Attorney’s Eyes Only”
pursuant to this Order by stamping it with such notice prior to production or so identifying it
on the record during the deposition of that third party. Either party may also designate
documents produced by a third party as being “Confidential” pursuant to the terms of this
Order within ten (10) days of being made aware of the content of such documents. Any
document produced by a third party shall be treated as “Confidential” pursuant to the terms
of this Order for such ten (10) day period and thereafter if designated as “Confidential” by
either party or by the third party which produces it. The “Confidential” restrictions of this
Order shall no longer apply to any document produced by a third party which has not been
designated as “Confidential” by the third party or by a party within such ten (10) day
period.
F.

CHALLENGE TO DESIGNATION. If a party or an attorney for a party

disputes the propriety of a “Confidential” or “Attorney’s Eyes Only” designation, the
parties and/or attorneys shall attempt to resolve the dispute between themselves by
written or verbal means. If they are unsuccessful, the challenging party may file an
appropriate motion. The challenging party and its attorneys shall nevertheless treat the
documents or information as “Confidential” or “Attorney’s Eyes Only,” as the case may
be, until such time as this Court rules on the motion.

Any use of a document or

information by either party in connection with this lawsuit prior to the filing of such a
motion will not be deemed a waiver of the right to request designation of the document
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as “Confidential” or “Attorney’s Eyes Only.” In addition, a party does not waive its right to
challenge a “Confidential” or “Attorney’s Eyes Only” designation by electing not to mount
a challenge at the time a designation is made and is not precluded from making a
subsequent challenge thereto during the pendency of this litigation. The burden to prove
the document should be treated as “Confidential” or “Attorney’s Eyes Only” shall be on the
non-moving party.
G.

RETURN OF DOCUMENTS.

Upon completion of the litigation, all

documents and copies of the same designated “Confidential” or “Attorney’s Eyes Only”
shall be destroyed or returned to counsel for the producing party with signed statement
reflecting the disposition.

Notwithstanding the other provisions of this paragraph,

counsel for each party may retain one (1) complete set of the pleadings, trial transcripts,
exhibits admitted in any deposition, documents filed with the court, deposition
transcripts (including deposition exhibits), and discovery responses. All persons subject
to this Protective Order shall remain bound to preserve the confidentiality of such
documents in accordance with the provisions of this Protective Order. Nothing herein
shall require counsel for any party to return or destroy correspondence, including
electronic email correspondence, which has “CONFIDENTIAL” materials attached
thereto but legal counsel shall remain bound to preserve the confidentiality of such
materials.
H.

USE OF CONFIDENTIAL DOCUMENTS. Any document or other material

marked “Confidential,” or the contents thereof, may be used by a recipient only in
connection with this action. Nothing contained in this Protective Order shall prevent the
use of any document or other material marked “Confidential,” or the contents thereof, as
evidence at trial or at any deposition taken in this action. The parties, attorneys, and
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other persons to whom disclosure is made shall take appropriate measures at trial, at
depositions, and in the filing of any documents or materials with the Court to protect the
confidentiality of any document or other material marked “Confidential” or the contents
thereof. For example, the party who received the “Confidential” material and wishes to
introduce such materials in a court filing or at trial must seek the Court’s leave to file
such documents as “Restricted.”

In addition, nothing in this Protective Order shall

preclude the receiving party from using “Confidential” material to make reports, create
simulations, etc., but such work product shall itself be designated “Confidential.”
I.

USE OF “ATTORNEY EYES ONLY” MATERIALS. Any document or other

material marked “Attorney’s Eyes Only” shall have the same limitations as those marked
“Confidential” and, in addition, shall not be disclosed to anyone other than counsel of
record for the parties. Counsel of record for the parties may discuss the content of
documents marked “Attorney’s Eyes Only” with their clients in order to prepare or defend
their case but cannot provide copies of any such documents to their clients. The parties
may not take notes regarding or otherwise record the content of documents marked
“Attorney’s Eyes Only.” Documents marked “Attorney’s Eyes Only” may be used during
depositions only with a producing party. With respect to the use at trial of documents or
information marked “Attorney’s Eyes Only,” the parties will identify on their respective
trial exhibit lists which exhibits have been so marked, and counsel for the parties will
discuss with the Court during the pretrial conference the manner in which such exhibits
will be handled during trial. In addition, nothing in this order shall preclude the receiving
party from using “Attorney’s Eyes Only” material to make reports, create simulations,
etc., but such work product itself shall be designated as “Attorney’s Eyes Only.”

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J.

USE OF CONFIDENTIAL DOCUMENTS IN BUSINESS. This Protective

Order does not affect the right of the parties to use their own “Confidential” or
“Attorney’s Eyes Only” documents or information in the ordinary course of business.
K.

LEGAL ADVICE CONCERNING CONFIDENTIAL AND ATTORNEYS-

EYES-ONLY DOCUMENTS. Nothing in this Protective Order shall bar or otherwise
restrict any counsel representing a party in this action from rendering advice to his or
her client with respect to this litigation. In the course of doing so, said attorney may
generally refer to or rely upon his or her conclusions or opinion formed upon
examination of documents marked “Confidential” or “Attorney’s Eyes Only,” but shall not
disclose the specific contents of such documents to persons not authorized to receive
such material pursuant to this Protective Order
L.

SUBPOENAS AND LEGAL PROCESS. In the event that any party is

subpoenaed or served with any other legal process by a person not a party to this
litigation and is thereby requested to produce or otherwise disclose “Confidential” or
“Attorney’s Eye’s Only” information that was so designated by another party, the party
subpoenaed or served as referred to in this paragraph shall object to the production of
the “Confidential” and “Attorney’s Eye’s Only” information by setting forth the existence
of this Protective Order and shall give prompt and immediate written notice to the party
who produced the “Confidential” or “Attorney’s Eye’s Only” information in this litigation
and its attorneys. Nothing in this Protective Order shall be construed as requiring the
party from whom “Confidential” or “Attorney’s Eye’s Only” information was requested to
challenge or appeal any order requiring production of “Confidential” or “Attorney’s Eye’s
Only” information covered by this Protective Order, to subject itself to any penalties for
noncompliance with any legal process or order, or to seek any relief from this Court.
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Notwithstanding the other provisions of this paragraph, a party from whom “Confidential”
documents or information are subpoenaed or otherwise required by a governmental
agency must notify the entity requesting the documents or information of its
“Confidential” or “Attorney’s Eye’s Only” status, and may ultimately produce the
documents or information to that agency without itself making objections, but shall
provide prompt and immediate written notice of any such subpoena to the party who
disclosed the “Confidential” or “Attorney’s Eye’s Only” information and its attorneys.
M.

EXCEPTIONS. The restrictions embodied in this Order shall be binding on

the party to whom “Confidential” or “Attorney’s Eyes Only” information is disclosed unless
and until there is a showing that:
i.

Such information was or has become public knowledge absent

a breach of this Protective Order; or
ii.

The party to whom such disclosure was made had already

learned such information from a third party who himself/herself has
not breached any confidential relationship which may have existed or
exists between such third party and the party making the disclosure.
N.

NON-EXCLUSIVITY. This Protective Order does not affect the right of a

party to seek to compel disclosure or production of a document or to seek an order
modifying or limiting this Protective Order in any aspect. The obligations and prohibitions
under this Protective Order are not exclusive. No disclosure under this Protective Order
shall constitute a waiver of any objection to admissibility of the document or applicable
privilege.

All other ethical, legal and equitable obligations are unaffected by this

agreement.

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O.

WAIVER. Any waiver under this Protective Order must be made in writing

or, if at a deposition or in Court, on the record.
P.

ENFORCEMENT.

Any party or person subject to the obligations and

prohibitions of this Protective Order who is determined by the Court to have violated its
terms is subject to sanctions imposed by the Court pursuant to the Federal Rules or other
applicable law.
Dated this 20th day of September, 2017.
BY THE COURT:
s/ Susan M. Bazis
United States Magistrate Judge

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