FPP Sandbox, LLC, v. The Redstone Communications Group, Inc.,
Filing
47
ORDER granting 46 STIPULATED PROTECTIVE ORDER. Ordered by Magistrate Judge Cheryl R. Zwart. (JAB)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
FPP Sandbox, LLC, a Delaware Limited
Liability Company,
CASE NO: 8:18-CV-106
Plaintiff,
v.
The Redstone Communications Group,
Inc., a Nebraska Corporation dba
Redstone,
STIPULATED PROTECTIVE ORDER
Defendant/Third-Party
Plaintiff,
v.
Virool, Inc. a Delaware corporation, Turgo,
Inc., a Delaware corporation, and
Alexander Debelov,
Third-Party Defendants.
The parties’ Joint Motion for Protective Order is granted. (See Filing No. 46). The
terms, as stipulated by the parties, are as follows:
FPP Sandbox, LLC and The Redstone Communications Group, Inc. (collectively,
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 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 proposed Protective
Order to limit the disclosure, dissemination, and use of certain identified categories of
confidential information.
Protection of the identified categories of confidential information is necessary
because discovery in this action will require disclosure of documents that are relevant to
the claims and defenses asserted, and it is likely that such documents will contain
personal information, financial information and/or proprietary or trade secret information
of the parties.
For good cause shown under Fed. R. Civ. P. 26(c), the Court grants the Parties’
joint request and hereby enters the following Protective Order:
1.
Scope. All information, documents and materials produced in the course of
discovery of this case, including initial disclosures, all responses to discovery requests,
all deposition testimony and exhibits, and information derived directly therefrom
(hereinafter collectively “documents”), are subject to this Order concerning confidential
information as set forth below. The Order is also subject to the applicable rules of
procedure and local rules on matters of procedure and calculation of time periods.
2.
Form and Timing of Designation. A Party may designate documents as
confidential and restricted in use and disclosure under this Order by placing or affixing
the word “CONFIDENTIAL” on the document in a manner that will not interfere with the
legibility of the document. Documents shall be designated CONFIDENTIAL prior to or at
the time of the production or disclosure of the documents. Any document produced by
either Party prior to entry of this Order may be designated and deemed confidential
subject the terms of this Order by identifying each such document in writing within twenty
(20) days of the date this Order is entered. The designation “CONFIDENTIAL” does not
mean that the document has any status or protection by statute or otherwise except to
the extent and for the purposes of this Order.
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3.
Documents Which May be Designated CONFIDENTIAL. Any Party may
designate documents as CONFIDENTIAL upon a good faith belief that the documents
contain information protected from disclosure or that should be protected from disclosure
as confidential personal information, medical or psychiatric information, trade secrets,
personnel records, or such other sensitive commercial and/or financial information that is
not publicly available.
4.
Inadvertent Failure to Designate. Inadvertent failure to designate any
documents as “CONFIDENTIAL,” in itself, will not constitute a waiver of an otherwise valid
claim of confidentiality pursuant to this Order, so long as a claim of confidentiality is
asserted within thirty (30) days after discovery of the inadvertent failure.
5.
Depositions. Deposition testimony will be deemed confidential only if
designated as such when the deposition is taken or within thirty (30) days after receipt of
the deposition transcript, in writing. Such designation must be specific as to the portions
of the transcript and/or any exhibits to be protected.
6.
Protection of Confidential Material.
(a)
General Protections. Documents designated CONFIDENTIAL must
be used or disclosed solely for purposes of prosecuting or defending this lawsuit,
including any appeals.
(b)
Who May View Designated Confidential Information. Except with
the prior written consent of the designating Party or prior order of the Court, documents
designated CONFIDENTIAL may only be disclosed to the following persons:
(1)
The parties to this litigation, including any employees, agents,
and representatives of the parties;
(2)
Counsel for the parties and employees and agents of counsel;
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(3)
The Court and court personnel, including any special master
appointed by the Court, and members of the jury;
(4)
Court reporters, recorders, and videographers engaged for
depositions;
(5)
Any mediator appointed by the Court or jointly selected by the
parties;
(6)
Any expert witness, outside consultant, or investigator
retained specifically in connection with this litigation, but only
after such persons have completed the certification contained
in Attachment A, Acknowledgment and Agreement to be
Bound;
(7)
Any potential, anticipated, or actual fact witness and his or her
counsel, but only to the extent such confidential documents or
information will assist the witness in recalling, relating, or
explaining facts or in testifying, and only after such persons
have completed the certification contained in Attachment A,
Acknowledgement and Agreement to Be Bound;
(8)
Other persons only by written consent of the producing party
or upon order of the Court and on such conditions as may be
agreed or ordered. All such persons shall execute the
certification contained in Attachment A, Acknowledgement
and Agreement to Be Bound.
(c)
Control of Documents. Counsel for the Parties shall take
reasonable and appropriate measures to prevent unauthorized disclosure of documents
designated CONFIDENTIAL pursuant to the terms of this Order. Counsel shall maintain
copies of the forms signed by persons acknowledging their obligations under this Order
for a period of one (1) year after dismissal of the action, the entry of final judgment and/or
the conclusion of any appeals arising therefrom. No acknowledgement forms are required
for persons listed in paragraphs 6(b)(1) through (5).
(d)
Copies. Prior to production to another party, all copies, electronic
images, duplicates, extracts, summaries or descriptions (hereinafter referred to
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collectively as "copies") of documents designated CONFIDENTIAL under this Order, or
any individual portion of such a document, shall be affixed with the designation
“CONFIDENTIAL” if the word does not already appear on the copy. All such copies shall
thereafter be entitled to the protection of this Order. The term "copies" shall not include
indices, electronic databases or lists of documents provided these indices, electronic
databases or lists do not contain substantial portions or images of the text of confidential
documents or otherwise disclose the substance of the confidential information contained
in those documents.
7.
Filing of CONFIDENTIAL Documents Under Seal. In the event a Party
seeks to file any documents designated CONFIDENTIAL and subject to protection under
this Order with the Court, that party must take appropriate action to insure that the
document receives proper protection from public disclosure including: (a) filing a redacted
document with the consent of the party who designated the document as confidential; (b)
seeking permission to file the document as a "restricted access" document; or (c) where
appropriate, submitting the document solely for in camera review. Nothing in this Order
will be construed as a prior directive to allow any document to be filed under seal or under
restricted access. The Parties understand that the requested documents may be filed
under restricted access only with the permission of the Court after proper motion.
8.
Challenges to a Confidential Designation. All CONFIDENTIAL
designations are subject to challenge by any Party. Before filing any motion or objection
to a confidential designation, the objecting Party shall have an obligation to meet and
confer in good faith to resolve the objection informally without judicial intervention. If
agreement is reached confirming or waiving the designation as to any documents subject
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to the objection, the designating Party shall serve on all parties a notice specifying the
documents and the nature of the agreement.
9.
Use of Confidential Documents or Information at Trial or Hearing.
Nothing in this Order will be construed to affect the use of any document, material, or
information at any trial or hearing. A party that intends to present or that anticipates that
another party may present documents or other information designated CONFIDENTIAL
at a hearing or trial must bring that issue to the attention of the Court and the other parties
without disclosing the documents. The Court may thereafter make such orders as are
necessary to govern the use of such documents or information at the hearing or trial.
10.
Obligations on Conclusion of Litigation.
(a)
Order Remains in Effect. Unless otherwise agreed or ordered, this
Order shall remain in force after dismissal or entry of judgment not subject to further
appeal or after any applicable appeals.
(b)
Disposition of CONFIDENTIAL Documents. Within sixty (60) days
after dismissal or entry of final judgment not subject to further appeal, the producing Party
may request that all documents designated CONFIDENTIAL under this Order, including
copies as defined in paragraph 6(d), and all information derived therefrom shall be
returned to the producing party unless: (1) the document has been offered into evidence
or filed without restriction as to disclosure; OR (2) the party in possession of such
document(s) elects to destroy the documents and certifies to the producing party that it
has done so. Notwithstanding the above requirements to return or destroy documents,
counsel may retain attorney work product, including an index which refers or relates to
documents, so long as that work product does not duplicate verbatim substantial portions
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of the text or images of confidential documents. This work product shall continue to be
CONFIDENTIAL under this Order. An attorney may use his or her work product in a
subsequent litigation provided that its use does not disclose or use the documents. The
Parties further agree that the receiving party is not required to locate, isolate and return
emails (including attachments to emails) that may include designated documents, or
designated information contained in deposition transcripts or drafts or final expert reports.
(c)
Return of Filed Documents.
After dismissal or entry of final
judgment not subject to further appeal, the Clerk may elect to return to counsel for the
Parties or, after notice, destroy documents filed or offered at trial under seal or otherwise
restricted by the Court as to disclosure.
(d)
Order Subject to Modification. This Order shall be subject to
modification by the Court on its own motion or on motion of a party or any other person
with standing concerning the subject matter.
(e)
Persons Bound. This Order shall take effect when entered and
shall be binding upon all counsel and their law firms, the Parties, and persons made
subject to this Order by its terms.
11.
No Prior Judicial Determination. This Order is entered based on the
representations and agreements of the parties and for the purpose of facilitating
discovery. Nothing in this Order will be construed or presented as a judicial determination
that any documents designated CONFIDENTIAL by counsel or the Parties is entitled to
protection under Fed. R. Civ. P. 26(c) or otherwise until such time as the Court may rule
on a specific document or issue.
12.
Applicability to Parties Later Joined. If additional persons or entities
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become Parties to this lawsuit, they must not be given access to any documents
designated CONFIDENTIAL until they execute and file with the Court a written agreement
to be bound by the provisions of this Order.
13.
Protections Extended to Third-Party’s Confidential Information. The
Parties agree to extend the provisions of this Protective Order to any documents
produced in this case by third parties, if timely requested by the third party or the parties
to this litigation.
14.
Confidential Information Subpoenaed or Ordered Produced in Other
Litigation. If a receiving Party is served with a subpoena or an order issued in other
litigation that would compel disclosure of any documents designated in this action as
CONFIDENTIAL, the receiving Party must so notify the designating party, in writing,
immediately and in no event, no more than three business days after receiving the
subpoena or order. Such notification must include a copy of the subpoena or Court order.
The receiving Party also must immediately inform 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 the subject of this Order. In addition, the receiving
Party must deliver a copy of this Order promptly to the Party in the other action that
caused the subpoena to issue.
15.
Inadvertent Disclosure of Confidential Information Covered by
Attorney-Client Privilege or Work Product. The inadvertent disclosure or production of
any information or document that is subject to an objection on the basis of attorney-client
privilege or work product protection, including, but not limited to, information or documents
that may be considered confidential under the Protective Order, will be governed by Rule
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502 of the Federal Rules of Evidence.
IT IS SO ORDERED.
Dated:
April 16, 2019
____________________________________
United States Magistrate Judge
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WE SO MOVE and agree to abide by the terms of this Order
Dated this 16th day of April 2019.
FPP SANDBOX, LLC, Plaintiff,
REDSTONE COMMUNICATIONS GROUP,
INC., Defendant/Third-Party Plaintiff,
By: /s/ Michael T. Eversden
By: /s/ Kristin Krueger
Michael T. Eversden, #21941
McGrath North Mullin & Kratz, PC
LLO
First National Tower, Suite 3700
1601 Dodge Street
Omaha, NE 68102
(402) 341-3070
(402) 341-0216 (facsimile)
meversden@mcgrathnorth.com
Attorneys for Plaintiff.
Brian J. Koenig, #23807
Kristin Krueger, #23919
KOLEY JESSEN P.C., L.L.O.
One Pacific Place, Suite 800
1125 South 103rd Street
Omaha, NE 68124-1079
(402) 390-9500
(402) 390-9005 (facsimile)
Brian.Koenig@koleyjessen.com
Kristin.Krueger@koleyjessen.com
Attorneys for Defendant/Third-Party Plaintiff.
CERTIFICATE OF SERVICE
The undersigned hereby certifies that on April 16th, 2019, a true and correct copy
of the above and foregoing was filed with the Court using the CM/ECF service, which sent
notice of filing to all counsel of record.
/s/ Kristin Krueger
4817-1311-7561.1
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