Ipson v. Baxter Chrysler Jeep, Inc. et al
Filing
30
PROTECTIVE ORDER: granting 29 Motion for Protective Order. Ordered by Magistrate Judge Cheryl R. Zwart. (Zwart, Cheryl)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
RICHARD IPSON, an Individual,
CASE NO. 8:18-cv-232
Plaintiff,
vs.
STIPULATED PROTECTIVE ORDER
BAXTER CHRYSLER JEEP, INC., BAO,
INC., BAS, INC., MICHAEL BENNETT,
an Individual, and MARCIE HENRY, an
Individual,
Defendants.
Pursuant to Fed. R. Civ. P. 26(c) and the Joint Motion for Entry of Stipulated
Protective Order [Doc. No. 29] submitted jointly by Plaintiff, Richard Ipson (“Plaintiff”),
and Defendants, Baxter Chrysler Jeep, Inc., BAO, Inc., BAS, Inc., Michael Bennett,
and Marcie Henry (collectively “the Defendants”), it is hereby ORDERED as follows:
1.
Definitions. For purposes of this Order, “party” and “parties” shall mean
the named parties to this litigation.
2.
Materials Deemed Confidential. If a party or an attorney for a party (or a
third-party subject to subpoena issued by the Court in this case or an attorney for
such third-party) has a good-faith belief that certain documents or other materials or
information (including digital information), subject to disclosure pursuant to a
discovery or other request, are confidential and should not be disclosed other than in
connection with this action pursuant to Rule 26(c) of the Federal Rules of Civil
Procedure, the party or attorney shall mark each such document or other materials as
“CONFIDENTIAL.”
“CONFIDENTIAL” documents, materials, or information may
include, but are not limited to: trade secret, proprietary, or confidential business
documents or information; medical records and information; tax and financial records
and information; personnel and benefits records; and documents containing personal
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or financial information for current or former employees of Baxter Chrysler Jeep, Inc.,
BAO, Inc., and BAS, Inc. who are not parties to this action.
3.
Designation of Depositions as Confidential. Portions of depositions taken
in this action that contain trade secrets, proprietary, or confidential information may
be designated “CONFIDENTIAL” and thereby obtain the protections accorded other
“CONFIDENTIAL” documents.
Confidentiality designations for depositions shall be
made either on the record during the deposition or by written notice to the other party
within thirty (30) days of receipt of the deposition transcript. Unless otherwise agreed,
depositions shall be treated as “CONFIDENTIAL” during the thirty (30) day period
following receipt of the deposition transcript. The deposition of any witness (or any
portion of such deposition) that encompasses information or documents designated as
“CONFIDENTIAL” shall be taken only in the presence of persons who are qualified to
have access to such information.
4.
Redesignation of Materials or Depositions as Confidential. In the event a
party inadvertently produces confidential documents or materials without the
designation “CONFIDENTIAL” or inadvertently fails to designate information in a
deposition as “CONFIDENTIAL,” it shall not be deemed a waiver of the confidential
nature
of
the
information,
documents
or
materials
provided
that
the
producing/designating party notifies all other parties of the inadvertent production or
failure to designate within twenty-one (21) days after the producing party’s production
or after the party first learns of the failure to designate with respect to a deposition. In
the event the disclosing/designating party notifies the receiving party that information
or a document or thing was produced without the appropriate confidentiality
designation, the disclosing party shall provide the receiving party with replacement
copies of the documents or things bearing the appropriate “CONFIDENTIAL”
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designation and page/line designations of any deposition testimony designated as
“CONFIDENTIAL.” Upon receipt of the replacement copies, the receiving party shall
retrieve and return or destroy all copies of the previously produced documents or
things.
5.
Inadvertent Disclosure. The following procedures shall govern instances
in which a party has inadvertently produced or disclosed materials for which any
privilege or protection is claimed, including but not limited to the attorney-client
privilege or work-product protection:
a.
The disclosing party must notify the receiving party within twenty-
one (21) days, in writing or on the record, after a document has been
inadvertently produced.
Upon receiving the appropriate notice from the
disclosing party that privileged and/or work-product material has been
inadvertently produced, all such information, and all copies thereof, shall be
returned to the disclosing party within five (5) business days of receipt of such
notice and the receiving party shall not use such information for any purpose,
until further order of the Court. The receiving party shall also attempt, in good
faith, to retrieve and return or destroy all copies of the document in electronic
format, and shall provide the disclosing party with written notice that all copies
of the document have been returned or destroyed. If the receiving party intends
to file a motion under paragraph 5(b), below, it may maintain a copy of the
document for purposes of filing such a motion.
b.
If the receiving party contests the privilege or work-product
designation by the disclosing party, it shall file a motion to compel production
of the document or information.
The receiving party shall not assert as a
ground for compelling production the facts or circumstances of the inadvertent
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production, unless it is asserted that privilege or work-product protection was
knowingly and intentionally waived.
c.
The disclosing party retains the burden of establishing the
privileged or protected nature of any document or information that is claimed
as privileged or otherwise protected. Nothing in this paragraph shall limit the
right of any party to petition the Court for an in camera review of such
documents or information.
d.
Upon notification of inadvertent disclosure from the disclosing
party, the receiving party shall place any analyses, memoranda, or notes which
were internally generated based upon such inadvertently-produced information
in sealed envelopes if in hard copy form, or shall segregate such analyses,
memoranda, or notes if in electronic form.
e.
Pursuant to Rule 502 of the Federal Rules of Evidence, if the
receiving party does not contest that the information is privileged or otherwise
protected or if the Court so rules, then the inadvertent disclosure of the
information shall not be deemed a waiver or impairment of any claim of
privilege or protection, including, but not limited to, the attorney-client
privilege, the protection afforded to work-product materials or the subject
matter thereof, as to the inadvertently disclosed document or information and
any related material, and such documents and information shall be destroyed
or returned to the producing party.
6.
party
Challenging Designation of Confidentiality. If a party or an attorney for a
disputes
whether
a
document
or
other
material
should
be
marked
“CONFIDENTIAL”, the parties and/or attorneys shall attempt to resolve the dispute
between themselves. If they are unsuccessful, the party or attorney challenging the
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confidentiality designation shall do so by filing an appropriate motion. The
disclosing/designating party retains the burden of establishing the protected nature of
any document or information claimed as “CONFIDENTIAL” pursuant to Federal Rule of
Civil Procedure 26(c) and this Stipulated Protective Order.
7.
Distribution of Confidential Materials.
No party or attorney or other
person subject to this Protective Order shall distribute, transmit, disclose or otherwise
divulge any document or other material which is marked “CONFIDENTIAL”, or the
contents thereof, except in accordance with this Stipulated Protective Order.
8.
Persons Entitled to View Materials.
Any document or other material
which is marked “CONFIDENTIAL,” or the contents thereof may only be disclosed to
the following individuals:
a.
the Plaintiff and any individuals Plaintiff’s counsel determines, in
good faith, are potential witnesses in this action, provided that Plaintiff’s
counsel shall not allow any such individuals to retain a copy (in any form
whatsoever) of any document or material marked “CONFIDENTIAL”;
b.
the Defendants, including their owners, shareholders, officers, and
management employees, as well as those current and former employees and
representatives who have a need to know or review such documents or
materials in order to represent the Defendants’ interests in this matter or to
sufficiently testify during a deposition or at any trial of this case;
c.
counsel for the parties to this action who are involved in the
conduct of this action, together with the partners, associates, secretaries,
paralegals, assistants, agents and employees of such counsel;
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d.
the insurer for any named Defendant, together with the insurer’s
designated claims representatives, adjusters, employees, or representatives who
have a need to know or review such documents or materials;
e.
the Court and any court officials involved in this action (including
persons such as court reporters and persons operating video recording
equipment at depositions);
f.
any person designated by the Court in the interest of justice, upon
such terms as the Court may deem proper;
g.
persons noticed for depositions or designated as trial witnesses,
but only to the extent reasonably necessary to prepare them to testify or to
sufficiently examine their scope of knowledge on matters relevant to this case;
all such individuals must sign the undertaking attached hereto as Attachment
“A”;
h.
outside consultants or experts consulted or retained for the
purpose of assisting counsel in this action who sign the undertaking attached
hereto as Attachment “A”, but only to the extent reasonably necessary for them
to provide such services in this action; and
i.
any person or entity who created the document or previously
viewed or received the document in a lawful, legitimate manner.
9.
Use of Confidential Materials. Any document or other material which is
marked “CONFIDENTIAL”, or the contents thereof, may be used by a party, or a
party’s attorney, expert witness, consultant, or other person to whom disclosure is
made pursuant to and in compliance with the terms of this Protective Order, only for
the purpose of this action. Nothing contained in this Protective Order shall prevent
the use of any document or other material which is marked “CONFIDENTIAL”, or the
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contents thereof, as evidence at trial or on any motion, or at any deposition taken in
this action, as long as the party using the document or other material complies with
the other provisions of this Protective Order.
The parties, attorneys, and other
persons to whom disclosure is made shall take appropriate measures in court filings
and proceedings to protect the confidentiality of any document or other material which
is
marked
“CONFIDENTIAL.”
A
party
seeking
to
file
materials
marked
“CONFIDENTIAL” under seal must follow the procedures set forth in Local Rule
NECivR 7.5. In the alternative, the parties may file documents and pleadings under
restricted access pursuant to Local Rule NECivR 5.3(c). If the pleading or document is
already subject to this Protective Order, no additional formal motion to file under
restricted access is required. Any documents or pleadings to be filed with the Court
must bear the caption of this litigation and pleading or document title and such other
description as will allow the Court to readily identify the documents or information or
portions thereof so designated.
10.
Return or Destruction of Confidential Materials After Litigation. At the
conclusion of the proceedings in this action, the recipient of all documents and
materials marked “CONFIDENTIAL”, including any copies or extracts or summaries
thereof, or documents containing or derived from information taken therefrom, shall
submit a written certification that all “CONFIDENTIAL” materials have been destroyed.
Notwithstanding the other provisions of this paragraph, counsel for each party may
retain up to two (2) complete sets of the pleadings, trial transcripts, exhibits admitted
in any deposition, documents filed with the court, deposition transcripts (including
deposition exhibits), and discovery responses and shall remain bound to preserve the
confidentiality of such documents in accordance with the provisions of this Protective
Order. Nothing herein shall require legal counsel for any party to return or destroy
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correspondence,
including
electronic
email
correspondence,
which
has
“CONFIDENTIAL” materials attached thereto.
11.
Subpoenas and Legal Process. In the event that any of the parties are
subpoenaed or are served with any other legal process by a person not a party to this
litigation, and are requested to produce or otherwise disclose “CONFIDENTIAL”
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 such information
by setting forth the existence of this Protective Order and shall give prompt written
notice to the party who produced the information in this litigation. Nothing in this
Protective
Order
shall
be
construed
as
requiring
the
party
from
whom
“CONFIDENTIAL” information was requested to challenge or appeal any order
requiring production of such 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. Notwithstanding the other provisions of this paragraph, a
party from whom “CONFIDENTIAL” documents or information are subpoenaed or
otherwise required by a governmental agency may produce the documents or
information to that agency without itself making objections, but shall provide prompt
written notice of any such subpoena to the party who disclosed the “CONFIDENTIAL”
information.
12.
No Effect on Other Issues. Nothing contained in this Protective Order
and no action taken pursuant to it shall prejudice the right of any party to contest the
alleged relevancy, admissibility, or discoverability of the documents or other materials
marked “CONFIDENTIAL” and disclosed pursuant to this Protective Order.
13.
Waiver and Modification.
To be effective, any waiver under this
Protective Order must be made in writing or on the record in a deposition or court
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proceeding. Nothing herein limits the scope of discovery under the Federal Rules of
Civil Procedure or shall be construed to limit any party’s ability to file a motion
seeking any modification of this Protective Order.
December 3, 2018.
BY THE COURT:
_______________________
Cheryl R. Zwart
United States Magistrate Judge
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ATTACHMENT “A”
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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
CASE NO. 8:18-cv-232
RICHARD IPSON, an Individual,
Plaintiff,
vs.
CERTIFICATION
BAXTER CHRYSLER JEEP, INC., BAO,
INC., BAS, INC., MICHAEL BENNETT, an
Individual, and MARCIE HENRY, an
Individual,
Defendants.
I, the undersigned individual, hereby certify that I have read the attached
Stipulated Protective Order in Richard Ipson v. Baxter Chrysler Jeep, Inc., et al., Case No.
8:18 cv 232, dated December ___, 2018 (the “Order”), and I agree that I will not reveal
“CONFIDENTIAL” documents or information to, or discuss such with, any person, entity,
or party who is not entitled to receive “CONFIDENTIAL” documents and information in
accordance with the Order. I will use “CONFIDENTIAL” documents and information only
for the purposes of facilitating the prosecution or defense of the action and not for any
business or other purpose. I will keep all “CONFIDENTIAL” documents and information
confidential in accordance with this Order. I hereby agree that the Order applies to me,
that I will comply with the Order, and that I will submit to the jurisdiction of the United
States District Court for the District of Nebraska for the purposes of any proceedings
relating to the Order.
Dated: __________________________
___________________________________
Signature
___________________________________
Printed Name
___________________________________
Company
___________________________________
Address
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Dated this ___ day of _____________________, 2018.
BY THE COURT:
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Agreed to, prepared by, and jointly
submitted by counsel for the parties this
3rd day of December, 2018, by:
RICHARD IPSON,
Plaintiff
By: s/ Michael J. Merrick
Michael J. Merrick, #19855
Merrick Law Firm LLC
1823 Harney Street, Suite 300
Omaha, NE 68102
Tel. (402) 933-4256
Fax (402) 513-6504
merrick@merricklawfirm.com
Attorney for Plaintiff
AND
BAXTER CHRYSLER JEEP, INC.,
BAO, INC., BAS, INC., MICHAEL
BENNETT, and MARCIE HENRY,
Defendants.
By: s/ Tara A. Stingley
Tara A. Stingley (#23243)
Jordan R. Hasan (#25468)
CLINE WILLIAMS WRIGHT
JOHNSON & OLDFATHER, L.L.P.
Sterling Ridge
12910 Pierce Street, #200
Omaha, NE 68144
(402) 397-1700
tstingley@clinewilliams.com
jhasan@clinewilliams.com
Attorneys for Defendants
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CERTIFICATE OF SERVICE
I, Tara A. Stingley, hereby certify that on this 3rd day of December, 2018, I
electronically filed the foregoing document with the Clerk of the United States District
Court using the CM/ECF system, which sent notification of such filing to the
following:
Michael J. Merrick
merrick@merricklawfirm.com
s/ Tara A. Stingley
4817-2241-4977, v. 1
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