Gruttemeyer v. Transit Authority of the City of Omaha, et al
Filing
22
STIPULATED PROTECTIVE ORDER - The Plaintiff, John M. Gruttemeyer, and the Defendants, The Transit Authority of the City of Omaha d/b/a Metro Area Transit and Transportation Workers Union of America, Local 223 hereby stipulate and agree to and req uest the entry of this Protective Order ("Protective Order") concerning disclosure, use, and protection of confidential or proprietary documents and information, including, but not limited to, commercial and/or financial information that is not available in the public domain. The parties hereby stipulate and IT IS ORDERED. Ordered by Magistrate Judge Cheryl R. Zwart. (LKO)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
JOHN M. GRUTTEMEYER, an
individual,
Plaintiff,
vs.
THE TRANSIT AUTHORITY OF THE
CITY OF OMAHA D/B/A METRO AREA
TRANSIT, a Nebraska corporation, and
TRANSPORTATION WORKERS UNION
OF AMERICA, LOCAL 223
)
)
)
)
)
)
)
)
)
)
)
Case No. 8:18-cv-70
STIPULATED PROTECTIVE ORDER
Defendants.
The Plaintiff, John M. Gruttemeyer, and the Defendants, The Transit Authority of
the City of Omaha d/b/a Metro Area Transit and Transportation Workers Union of
America, Local 223 hereby stipulate and agree to and request the entry of this
Protective Order (“Protective Order”) concerning disclosure, use, and protection of
confidential or proprietary documents and information, including, but not limited to,
commercial and/or financial information that is not available in the public domain.
The parties hereby stipulate and IT IS ORDERED as follows:
Purpose and Scope
1.
Discovery in this action may involve disclosure of purported trade secrets
and other confidential and proprietary business, personal, technical, and financial
information. This Protective Order (the “Order”) therefore is intended to protect against
unauthorized disclosure of any such information and to ensure that such information will
be used only for the purposes of this action. This Order shall govern all information
(whether in writing, electronic, or other form), interrogatory responses, responses to
1
requests for admission, documents produced in response to requests for production or
voluntary production of documents, deposition testimony, including but not limited to all
copies, excerpts, and summaries thereof or materials derived therefrom, including all
such materials which are used in the course of pretrial discovery and other proceedings
in this action and any motions, briefs, or other filings incorporating such information
(collectively, “Discovery Material”).
Applicability
2.
Provisions of this Order shall apply to (i) the parties presently named or
later joined in this action, including, in the case of parties other than individuals, their
officers, directors, employees, and agents and (ii) any other person or entity who
produced Discovery Material in this action and who agrees to be bound by the terms of
this Order.
Designation of Materials
3.
The producing parties may designate any Discovery Materials as
“Confidential” (“Confidential Discovery Material”) when a party, third party, or their
counsel in good faith believes that such Confidential Discovery Material constitutes or
reveals a trade secret or other confidential or proprietary business, personal, technical
or financial information.
For purposes of this Order, information considered to be
Confidential Discovery Material includes, but is not limited to, all non-public materials
containing information related to the following: research; market studies; trade secrets;
proprietary technical information; submissions of information to regulatory agencies and
designated or requested for confidential treatment; proprietary policies and procedures;
proprietary business strategies and marketing plans, transactions and strategies, and
2
analysis of same; financial or tax data; proprietary contracts; customer lists and
information; competitive analyses; costs; pricing; current personnel; employment
compensation information; personnel files and documents contained in personnel files
of Defendant’s current and former employees; product and market development and
planning; financial results, plans, and projections; or the financial affairs of any
individual subject to discovery in this action;
4.
It shall be the duty of the party or a third party who seeks to invoke
protection under this Order to give notice, in the manner set forth herein, of the
Confidential Discovery Material to be covered hereby. The duty of the other parties and
of all parties bound by this Order to maintain confidentiality hereunder shall commence
with such notice.
Disclosure
5.
Except with the prior consent of the producing party or upon prior order of
a court of competent jurisdiction, Confidential Discovery Material shall not be disclosed
except in accordance with the terms, conditions, and restrictions of this Order.
A
nonproducing party shall not, except with the prior consent of the producing party or
witness or by order of this Court, use Discovery Material or Confidential Discovery
Material for any purpose, including, without limitation, any business or commercial
purpose, other than for the purpose of preparing for and conducting the litigation of this
action and any appellate proceedings in this action, and the use and disclosure of any
Confidential Discovery Material shall be limited to the extent reasonably necessary for
the prosecution, defense, and/or appeal of this action.
3
The mere designation of a
document as “Confidential” pursuant to this Order does not mean that the document is a
trade secret and the nonproducing party reserves all objections to the same.
Discovery Material Designated “Confidential”
6.
Except with the prior consent of the producing party or upon prior order of
this Court, Discovery Material designated “Confidential” shall not be disclosed directly or
indirectly by the person receiving such material to persons other than the following
persons, as to whom disclosure shall be limited to the extent reasonably necessary for
the prosecution, defense, and/or appeal of this action:
(a)
The Court, persons employed by the Court, and stenographers
transcribing the testimony or argument at a hearing, trial, or deposition in
this action or any appeal therefrom;
(b)
Counsel for the parties in this action, associates, legal assistants,
paralegals, secretarial and clerical employees, and outside copy services,
litigation consulting services, document management services, and
graphic services that are assisting counsel in the prosecution, defense,
and/or appeal of this action;
(c)
Independent and party experts, consultants and/or investigators retained,
employed, or informally consulted by counsel in connection with the
prosecution, defense, and/or appeal of this action, including their
secretarial and clerical employees who are assisting in the prosecution,
defense, and/or appeal of this action;
(d)
The parties and the officers and employees of any party solely for the
purpose of prosecuting, defending, and/or appealing this lawsuit;
(e)
Actual witnesses during the trial or any hearing in this lawsuit or actual
deponents during a deposition in this lawsuit and their respective
attorneys, subject to their signing the “Undertaking” (described below);
and
(f)
Independent auditors of a party, subject to their signing the “Undertaking.”
7.
To the extent that any party identifies documents which they believe need
more protection than provided herein, they shall seek protection from the Court.
4
Statements
8.
Any person not employed by Counsel of Record’s respective offices who
is given access to Confidential Discovery Material shall, prior to being given any such
material, be informed of the provisions of this Order, read this Order, and execute an
Undertaking, in the form annexed hereto as Exhibit A, indicating that he/she has read
this Order and will abide by its terms. The original of any such Undertaking shall be
retained by counsel for each party who intends to or does provide such persons any
such material, until the conclusion of this action, including all appeals. The parties
agree not to use these statements for any purpose other than monitoring and enforcing
compliance with this Order.
Non-Disclosure
9.
Any person receiving Confidential Discovery Material shall not disclose
such information to any person who is not entitled to receive such information under this
Order. If Confidential Discovery Material is disclosed to any person other than in the
manner authorized by this Order, the person responsible for the disclosure must
immediately bring all pertinent facts relating to such disclosure to the attention of
counsel for all parties and, without prejudice to other rights and remedies of any party,
make a reasonable good faith effort to retrieve such material and to prevent further
disclosure by it or by the person who received such information.
Designation of Written Discovery Material by Party or Witness
10.
Any producing party or witness shall designate Confidential Discovery
Material at the time of its production by marking any originals or copies of the
documents or other tangible materials with the legend “Confidential” at the time of their
5
production. If any document or other material is used as an exhibit at trial or otherwise
displayed to the Jury, all markings indicating that the document or material had
previously been designate by the party pursuant to this Order as “Confidential” shall be
removed prior to offering the document or material into evidence or displaying same,
and no mention shall be made of the previous designation of confidentiality. Such
removal shall not alter the confidential nature and treatment of the document or material
or the obligations of any party or third party under this Order.
Designation of Testimony by Party or Witness
11.
Any party or non-party witness shall have thirty (30) days from the date of
receipt of a copy of a deposition or other transcript in which to designate all or portions
of the testimony as “Confidential”. Notwithstanding paragraph 4 of this Order, from the
time the testimony is given through such 30-day period, all information disclosed in the
testimony shall be deemed Confidential Discovery Material subject to the terms of this
Order. After such thirty (30) days have expired, any testimony not designated shall no
longer be deemed Confidential Discovery Material, subject, however, to the terms of
paragraph 20 below. Such designation shall be made after transcription by sending
written notice identifying the information to be so designated by page and line numbers
to counsel of record, the reporters, and the witness within the 30-day time period. The
reporter shall stamp each page so designated as “Confidential”.
Nonconfidential Information
12.
Discovery material may not be designated Confidential Discovery Material
if the content or substance thereof:
(a)
Is already in the public domain at the time of disclosure;
6
(b)
Becomes part of the public domain at any time, unless as a result of (i)
action or failure to act, where there is a public duty to act, on the part of
the recipient; or (ii) any malefaction or breach of duty by a recipient or any
third party;
(c)
Is already in the possession of the recipient party at the time of disclosure
and was not acquired under assurance of confidentiality directly or
indirectly from the disclosing party; or
(d)
Is made available to the recipient party by a third party who obtained the
same by legal means and without any obligation of confidence to the
disclosing party.
13.
In the event any Discovery Material originally designated as “Confidential”
is later determined to not be confidential pursuant to the terms of paragraph 12, such
designation shall be honored by the parties until amended by agreement among the
parties or until otherwise ordered by this Court in accordance with the provisions of this
Order or until the conclusion of the litigation.
Disputes
14.
Any party may object to the designation of particular Discovery Material as
“Confidential” by giving written notice to the party or witness making the designation and
to all other parties. Such notice shall identify with specificity the Discovery Material to
which the objection is directed and the basis of the objection. If any party disputes the
challenge to the designation of the Discovery Material and such dispute cannot be
resolved, the party objecting to the designation to file a motion with the Court to request
an in camera review of the disputed Discovery Material and a determination by the
Court that the material be designated as “Confidential”.
The disputed Discovery
Material shall be treated as originally designated pending a ruling from the Court. In
any proceeding under this paragraph, the witness or party making the designation shall
7
have the burden of persuading the Court that the challenged Discovery Material is
entitled to the protection of the designation of “Confidential”.
Court Filing
15.
All transcripts of any nature or portions thereof, exhibits, answers to
interrogatories, responses to requests for admissions, and other documents filed or
used in hearing or trial in this action which have previous thereto been designated as
comprising or containing Confidential Discovery Material, or any pleading or
memorandum purporting to reproduce or paraphrase such information, shall be filed or
submitted to the Court via the CM/ECF system in accordance with NECivRs 5.3 and
7.5.
16.
In the event that any Confidential Discovery is used in any court
proceeding in this action or any appeal therefrom, it shall not lose its status as
Confidential Discovery Material.
Counsel shall confer on such procedures as are
necessary to protect the confidentiality of information used in the course of any court
proceedings or appeal, prior to using Confidential Discovery Materials in such
proceedings.
Return of Discovery Material
17.
All provisions of this Order restricting the use of information obtained
during discovery shall continue to be binding after the conclusion of this action,
including all appeals, until further reorder of the Court, unless the parties agree
otherwise in writing. Within sixty (60) days of settlement or final termination of this
action, including all appeals, unless otherwise agreed to in writing by an attorney of
record for the designating party, the attorneys for each party, upon request, shall
8
assemble and destroy or return to the disclosing party all documents and things
containing Confidential Discovery Material produced by that Party, and shall destroy all
copies thereof made subsequent to production which are in their possession, custody or
control, except that outside counsel of record shall be entitled to retain one (1) copy of
all litigation documents, including exhibits, transcripts of testimony, court filings, and
their own correspondence and memoranda containing Confidential Discovery Material,
but such documents shall be used only for the purpose of preserving a file on the action,
and shall not, without the written permission of the disclosing party, or an order of this
Court or another court of competent jurisdiction, be disclosed to anyone other than
those to whom such information was actually disclosed, in accordance with the terms
and conditions of this Order, during the course of this action.
No Waiver
18. Neither the taking of any action in accordance with the provisions of this
Order, nor the failure to object hereto, shall be construed as a waiver of any claim or
defense in this action. This Order shall not be construed as a waiver of any right to
object to the furnishing of information in response to discovery and, except as expressly
provided, shall not relieve any party or witness of the obligation to produce information
properly sought in the course of discovery. Nothing herein shall be construed to affect
in any way the admissibility of any document, testimony, or other evidence at trial of this
action. Nothing contained in this Order or any declaration of confidentiality or restriction
hereunder shall be used or characterized by any party as an “admission” by a party
opponent.
9
Inadvertent Failure to Designate
19.
Inadvertent failure to designate materials as Confidential Discovery
Material at the time of production may be remedied by supplemental written notice given
by the producing party. Upon receipt of such notification, all documents, materials, or
testimony so designated or re-designated shall be fully subject to this Order as if it has
been initially so designated and shall be re-marked by the receiving party; provided,
however, that the receiving party shall incur no liability for any previous treatment of
such information in conformance with its original designation. The party receiving such
notice shall make a reasonable good faith effort to ensure that any analyses,
memoranda, or notes which were internally generated based upon such information
shall immediately be treated in conformance with any such designation or redesignation.
The failure of a party to object to or to challenge a designation by another party
of Discovery Material as “Confidential” shall not constitute an admission that the
materials so designated are in fact trade secrets, or other confidential or proprietary
business, personal, technical or financial information, or are entitled to any legal
protection. The failure of a party to object or to challenge a designation by another
party of Discovery Material as “Confidential” upon initial receipt of this material shall not
constitute or be construed as a waiver of that party’s right to subsequently object to or to
challenge such designations at any later time.
Inadvertent Production
20.
The inadvertent production of any document or other information during
discovery in this action shall be without prejudice to any claim that such material is
10
privileged under the attorney-client privilege, or protected from discovery as work
product within the meaning of the Federal Rules of Civil Procedure, and no party or
entity shall be held to have waived any rights by such inadvertent production. Upon
written request by the inadvertently producing party or entity, the receiving party shall (i)
return the original and all copies of such documents within ten (10) days of receiving the
request, and (ii) shall not use such information for any purpose until further order of the
Court. Any analyses, memoranda, or notes which were internally generated based
upon such information shall be destroyed. Upon written request by the receiving party,
the advertently producing party shall make the document available for in camera
inspection by the Court in connection with any challenge to the claim of privilege or work
product protection.
21.
Noting herein will restrict the party from whom the return of the documents
is requested from filing a motion with the Court contesting the designation of the
material as privileged or protected by the work product doctrine or from referring to the
fact that the material has been produced; provided, however, the party filing the motion
cannot refer to the content of the document nor contend that any privilege has been
waived.
Inconsistent Designations
22.
In the event of a party produces two or more identical copies of a
document any such copy is designated with a lesser degree of confidentiality than any
other copy, all such identical documents shall be treated as confidential. The producing
party shall be responsible for informing the party receiving the inconsistently designated
information of the inconsistent designation; however, if any person subject to this Order
11
receives such inconsistently designated information, and has actual knowledge of the
inconsistent designation, the person shall treat all copies as Confidential.
Further Motions Not Precluded
23.
Entry of this Order shall be without prejudice to any motion for relief from
the provisions hereof or to any motion for further restriction on the production,
exchange, or use of any document or to any motion for further restriction on the
production, exchange, or use of any document or other information in the course of this
action; provided, however, that no such motion shall be made after the entry of a final
judgment or settlement.
No Restrictions on Admissibility or Use
24.
Nothing herein shall impose any restriction on the use or disclosure by a
party of its own documents or information, including the deposition testimony of its
employees or experts.
DATED this 12TH day of September, 2018.
____
So ordered.
BY THE COURT:
s/ Cheryl R. Zwart
Honorable Cheryl R. Zwart
DATED: September 12, 2018
By:/s/ Ryan M. Kunhart
Ryan M. Kunhart, #24692
Jeffrey J. Blumel, #19011
Dvorak Law Group, LLC
13625 California Street, Suite 110
rkunhart@ddlawgroup.com
jblumel@ddlawgroup.com
Telephone: (402) 934-4770
Attorneys for Defendant
12
DATED: September 12, 2018
/s/ Terry A. White
Terry A. White, NE #18282
CARLSON & BURNETT, LLP
17525 Arbor Street
Omaha, NE 68130
Telephone: (402) 934-5500
terry@carlsonburnett.com
Attorney for Plaintiff
DATED: September 12, 2018
/s/ John E. Corrigan
John E. Corrigan, #21242
DOWD HOWARD & CORRIGAN, L.L.C.
1411 Harney Street, Suite 100
Omaha, NE 68102
Telephone: (402) 341-1020
jcorrigan@dowd-law.com
13
ACKNOWLEDGEMENT AND AGREEMENT TO BE BOUND
I, _______________________, of _____________________, declare under
penalty of perjury that I have read in its entirety the Protective Order or have had the
Protective Order explained to me by Counsel for a party and understand the Protective
Order that was issued by the United States District Court for the District of Nebraska, on
______________, 2018, in the case of John M. Gruttemeyer, Plaintiff v. The Transit
Authority of the City of Omaha d/b/a Metro Area Transit and Transportation Workers
Union of America, Local 223, Defendants, Case No. 8:17-CV-70. I agree to comply with
and to be bound by all the terms of the Protective Order and I understand and
acknowledge that failure to so comply could expose me to sanctions and punishment in
the nature of contempt. I promise that I will not disclose in any manner any information
or item that is subject to the Protective Order to any person or entity except in strict
compliance with the provisions of the Protective Order.
I further agree to submit to the jurisdiction of the United States District Court for
the District of Nebraska, for the purpose of enforcing the terms of the Protective Order,
even if such enforcement proceedings occur after termination of this action.
Printed Name:
Signature:
Address:
Dated:
14
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?