Summit Fire Protection Co. v. Reich
Filing
33
PROTECTIVE ORDER - Upon consideration of the parties' joint request for entry of a Protective Order, (Filing No. #21 ), the Court enters the following Protective Order governing the disclosure of confidential Discovery Material by a Producing Party to a Receiving Party in this Action. Ordered by Magistrate Judge Cheryl R. Zwart. (LKO)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
SUMMIT FIRE PROTECTION CO., a
Minnesota corporation, doing business
as SUMMIT COMPANIES;
Plaintiff,
8:19CV188
PROTECTIVE ORDER
vs.
TED REICH,
Defendant.
Upon consideration of the parties’ joint request for entry of a Protective
Order, (Filing No. 21), the Court enters the following Protective Order governing
the disclosure of confidential Discovery Material by a Producing Party to a
Receiving Party in this Action.
1)
Definitions. As used in this Order:
a.
Action refers to the above-captioned litigation.
b.
Discovery Material includes all information exchanged between the
parties, whether gathered through informal requests or
communications between the parties or their counsel, or gathered
through formal discovery conducted pursuant to Rules 30 through
36, and Rule 45. Discovery Material includes information within
documents, depositions, deposition exhibits, and other written,
recorded, computerized, electronic or graphic matter, copies, and
excerpts or summaries of documents disclosed as required under
Rule 26(a).
c.
A Producing Party is a party to this litigation, or a non-party either
acting on a party’s behalf or responding to discovery pursuant to a
Rule 45 subpoena, that produces Discovery Material in this Action.
d.
A Receiving Party is a party to this litigation that receives Discovery
Material from a Producing Party in this Action.
2)
Confidential Discovery Material. This Protective Order applies to all
confidential Discovery Material produced or obtained in this case. For the purposes of
this Protective Order, confidential Discovery Material shall include:
a.
b.
Personnel data of the parties or their employees, including but not
limited to employment application information; the identity of and
information received from employment references; wage and
income information; benefits information; employee evaluations;
medical evaluation and treatment information and records;
counseling or mental health records; educational records; and
employment counseling, discipline, or performance improvement
documentation;
c.
Information concerning settlement discussions and mediation,
including demands or offers, arising from a dispute between a party
and a non-party;
d.
Medical or mental health information;
e.
Records restricted or prohibited from disclosure by statute; and
f.
3)
Commercial information relating to any party’s business including,
but not limited to, tax data, financial information, financial or
business plans or projections, proposed strategic transactions or
other business combinations, internal audit practices, procedures,
and outcomes, trade secrets or other commercially sensitive
business or technical information, proprietary business and
marketing plans and strategies, studies or analyses by internal or
outside experts, competitive analyses, customer or prospective
customer lists and information, profit/loss information, product or
service pricing or billing agreements or guidelines, and/or
confidential project-related information;
Any information copied or extracted from the previously described
materials, including all excerpts, summaries, or compilations of this
information or testimony, and documentation of questioning,
statements, conversations, or presentations that might reveal the
information contained within the underlying confidential Discovery
Material.
Manner of Confidential Designation. A Producing Party shall affix a
“CONFIDENTIAL” designation to any confidential Discovery Material produced in this
Action.
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a.
As to documentary information (defined to include paper or
electronic documents, but not transcripts of depositions or other
pretrial or trial proceedings), the Producing Party must affix the
legend “CONFIDENTIAL” to each page that contains protected
material.
b.
If only a portion or portions of the information on a document page
qualifies for protection, the Producing Party must clearly identify the
protected portion(s) (e.g., by using highlighting, underlining, or
appropriate markings in the margins).
c.
If it is not feasible to label confidential Discovery Material as
“CONFIDENTIAL,” the Producing Party shall indicate via cover
letter or otherwise at the time of production that the material being
produced is CONFIDENTIAL.
Counsel for a disclosing party may further designate confidential
Discovery Material as CONFIDENTIAL--ATTORNEYS' EYES ONLY if such
counsel concludes in good faith that the material is or contains non-public
information that is highly sensitive proprietary information including, but not
limited to, trade secrets, privileged information, or nonpublic technical, financial,
personal
or
business
information.
Discovery
Material
designated
as
CONFIDENTIAL - FOR ATTORNEYS’ EYES ONLY means any document
which bears the legend CONFIDENTIAL - FOR ATTORNEYS’ EYES ONLY or,
if it is not feasible to label the Discovery Material, which the producing party
indicates via cover letter or otherwise at the time of production as
CONFIDENTIAL - FOR ATTORNEYS’ EYES ONLY.
4)
Timing of Confidential Designation.
a.
Except as otherwise stipulated or ordered, or where discovery is
made available for inspection before it is formally disclosed,
Discovery Material that qualifies for protection under this Order
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must be clearly so designated before the material is disclosed or
produced.
b.
5)
If the Producing Party responds to discovery by making Discovery
Material available for inspection, the Producing Party need not affix
confidential designations until after the Receiving Party has
selected the material it wants to receive. During the inspection and
before the designation, all material made available for inspection is
deemed “CONFIDENTIAL.” After the Receiving Party has identified
the Discovery Material it wants produced, the Producing Party must
determine which materials, or portions thereof, qualify for protection
under this Order, and designate the materials as “CONFIDENTIAL”
and/or CONFIDENTIAL--ATTORNEYS' EYES ONLY as required
under this order.
Qualified Recipients. For the purposes of this Protective Order, the
persons authorized to receive confidential Discovery Material (hereinafter “Qualified
Recipient”) are:
For information designated as CONFIDENTIAL:
a.
The Parties, including any members, council members, officers,
board members, directors, employees, or other legal
representatives of the parties;
b.
Legal counsel representing the parties, and members of the
paralegal, secretarial, or clerical staff who are employed by,
retained by, or assisting such counsel; including vendors who are
retained to copy documents or electronic files, provide technical,
litigation support, or mock trial services, or provide messenger or
other administrative support services;
c.
Any non-expert witness during any deposition or other proceeding
in this Action, and counsel for that witness;
d.
Potential witnesses and their counsel, but only to the extent
reasonably related to the anticipated subject matter of the potential
witness’s deposition, trial, or hearing testimony for this Action, so
long as such persons agree to maintain the confidential Discovery
Material in confidence per the terms of this Order, and provided that
such persons may only be shown copies of confidential Discovery
Material and may not retain any such material;
e.
Consulting or testifying expert witnesses who will be providing
professional opinions or assistance for this Action based upon a
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review of the CONFIDENTIAL information, and the staff and
assistants employed by the consulting or testifying experts;
f.
Any mediator or arbitrator retained by the parties to assist with
resolving and/or settling the claims of this Action and members of
the arbitrator’s or mediator’s staff and assistants;
g.
The parties’ insurers for this Action, and their staff and assistants,
members, officers, board members, directors or other legal
representatives;
h.
Court reporters for depositions taken in this Action, including
persons operating video recording equipment and persons
preparing transcripts of testimony;
i.
The court and its staff, any court reporter or typist recording or
transcribing hearings and testimony, and jurors; and
j.
Any auditor or regulator of a party entitled to review the confidential
Discovery Material due to contractual rights or obligations, or
federal or state laws, or court orders, but solely for such contractual
or legal purposes.
For information designated as “CONFIDENTIAL INFORMATION-ATTORNEYS’
EYES
ONLY”:
a.
Legal counsel representing the Receiving Parties, and members of
the paralegal, secretarial, or clerical staff who are employed by,
retained by, or assisting such counsel;
b.
Consulting or testifying experts for the Receiving Party, defined to
include only those experts retained or employed to assist the
Receiving party in preparing for trial or any other proceeding in the
Action and who need access to the CONFIDENTIAL
INFORMATION-ATTORNEYS EYES ONLY information to provide
such assistance, and who are not employed by, or an agent or
representative for, the Receiving Party, nor anticipated to become
an employee, agent or representative of the Receiving Party in the
near future;
c.
If necessary to promote alternative dispute resolution, any mediator
or arbitrator (and their assistants or staff) retained by the parties
who needs access to the CONFIDENTIAL INFORMATION-
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ATTORNEYS EYES ONLY information to assist the parties with
resolving the claims of this Action;
d.
e.
6)
Court reporters for depositions taken in this Action, including
persons operating video recording equipment and persons
preparing transcripts of testimony; and
The court and its staff, any court reporter or typist recording or
transcribing hearings and testimony, and jurors.
Dissemination by the Receiving Party. Counsel for the Receiving Party
shall:
a.
Require Qualified Recipients who are non-expert witnesses or
expert witnesses and consultants and who receive information
designated as “CONFIDENTIAL” and/or CONFIDENTIAL-ATTORNEYS' EYES ONLY to review and agree to the terms of this
Protective Order and execute a copy of the Agreement attached
hereto as Appendix A before receiving confidential Discovery
Material.
b.
Instruct witnesses, consultants, and outside counsel who assist
with case preparation or represent a witness that disclosure of the
information
designated
as
“CONFIDENTIAL”
and/or
CONFIDENTIAL--ATTORNEYS' EYES ONLY is prohibited as set
forth herein.
c.
Maintain a list of any confidential Discovery Material disclosed and
to whom, along with the executed copies of the Appendix A
Agreement.
The prohibition on disclosing information designated as “CONFIDENTIAL”
and/or CONFIDENTIAL--ATTORNEYS' EYES ONLY exists and is enforceable
by the court even if the person receiving the information fails or refuses to sign
the Appendix A Agreement.
7)
Duty as to Designations.
Each Producing Party that designates
information or items as CONFIDENTIAL and/or CONFIDENTIAL--ATTORNEYS' EYES
ONLY must exercise reasonable care to limit any such designation to specific material
that qualifies under the appropriate standards, and designate only those parts of
6
material, documents, items, or oral or written communications that qualify, so that other
portions of the material, documents, items, or communications for which protection is
not warranted are not swept unjustifiably within the ambit of this Order. Broadly
described, indiscriminate, or routinized designations are prohibited.
8)
Limitations on Use. Confidential Discovery Material shall be used by the
Receiving Party only to prepare for and conduct proceedings herein and not for any
business or other purpose whatsoever.
9)
Maintaining
Confidentiality.
Discovery
Material
designated
as
“CONFIDENTIAL” and/or CONFIDENTIAL--ATTORNEYS' EYES ONLY shall be held in
confidence by each Qualified Recipient to whom it is disclosed, shall be used only for
purposes of this action, and shall not be disclosed to any person who is not a Qualified
Recipient. Each party, each Qualified Recipient, and all counsel representing any party,
shall use their best efforts to maintain all information designated as “CONFIDENTIAL”
and/or CONFIDENTIAL--ATTORNEYS' EYES ONLY in such a manner as to prevent
access, even at a hearing or trial, by individuals who are not Qualified Recipients.
Nothing herein prevents disclosure beyond the terms of this Protective
Order if the party claiming confidentiality consents in writing to such disclosure. It
is
anticipated
Summit
will
mark
certain
documents
it
produces
as
“CONFIDENTIAL – ATTORNEYS’ EYES ONLY” which could include the
documents Summit alleges Defendant Reich copied. In the event these
documents are produced as “CONFIDENTIAL – ATTORNEYS’ EYES ONLY”
and the need arises for defense counsel to disclose certain aspects/properties of
the documents to his client, counsel for the parties will hold a meet and confer
conference call to discuss what aspects/properties of the documents can be
disclosed to Defendant. If the parties are unable to agree on the parameters of
7
disclosing certain aspects/properties of the documents, the parties agree to seek
assistance from the Magistrate in arriving at a solution.
10)
Copies. Discovery Material designated as “CONFIDENTIAL” and/or
CONFIDENTIAL--ATTORNEYS' EYES ONLY shall not be copied or otherwise
reproduced by the Receiving Party, except for transmission to Qualified Recipients,
without the written permission of the Producing Party or, in the alternative, by order of
the court. However, nothing herein shall restrict a Qualified Recipient from loading
confidential documents into document review platforms or programs for the purposes of
case or trial preparation or making working copies, abstracts, digests, and analyses of
information designated as “CONFIDENTIAL” and/or CONFIDENTIAL--ATTORNEYS'
EYES ONLY under the terms of this Protective Order.
11)
Docket Filings. All documents of any nature including, but not limited to,
briefs, motions, memoranda, transcripts, discovery responses, evidence, and the like
that are filed with the court for any purpose and that contain Discovery Material
designated as “CONFIDENTIAL” and/or CONFIDENTIAL--ATTORNEYS' EYES ONLY
shall be provisionally filed under restricted access with the filing party’s motion for leave
to file restricted access documents. A party seeking to file Discovery Material under
restricted access must comply with the court’s rules and electronic docketing
procedures for filing such motions.
12)
Depositions. The following procedures shall be followed at all depositions
to protect the integrity of all Discovery Material designated as “CONFIDENTIAL” and/or
CONFIDENTIAL--ATTORNEYS' EYES ONLY:
a.
Only Qualified Recipients may be present at a deposition in which
such information is disclosed or discussed.
8
b.
c.
13)
All deposition testimony which discloses or discusses information
designated as “CONFIDENTIAL” and/or CONFIDENTIAL-ATTORNEYS' EYES ONLY is likewise deemed designated as
“CONFIDENTIAL” and/or CONFIDENTIAL--ATTORNEYS' EYES
ONLY.
Information
designated
as
“CONFIDENTIAL”
and/or
CONFIDENTIAL-ATTORNEYS' EYES ONLY may be used at a
nonparty deposition only if necessary to the testimony of the
witness.
Challenges to Confidentiality Designations. A Receiving Party that
questions the Producing Party’s confidentiality designation will, as an initial step, contact
the Producing Party and confer in good faith to resolve the dispute. If the parties are
unable to resolve the dispute without court intervention, they shall schedule a
conference call with the magistrate judge assigned to the case before engaging in
written motion practice. If a written motion and briefing are necessary and the
information in dispute must be reviewed by the court to resolve that motion, the
confidential information shall be filed under restricted access pursuant to the court’s
electronic docketing procedures. The party that produced the information designated as
“CONFIDENTIAL” and/or CONFIDENTIAL--ATTORNEYS' EYES ONLY bears the
burden of proving it was properly designated. The party challenging a “CONFIDENTIAL”
and/or CONFIDENTIAL-ATTORNEYS' EYES ONLY designation must obtain a court
order before disseminating the information to anyone other than Qualified Recipients.
14)
Use at Court Hearings and Trial. Subject to the Federal Rules of
Evidence, Discovery Material designated as “CONFIDENTIAL” and/or CONFIDENTIALATTORNEYS' EYES ONLY may be offered and received into evidence at trial or at any
hearing or oral argument. A party agreeing to the entry of this order does not thereby
waive the right to object to the admissibility of the material in any proceeding, including
9
trial. Any party may move the court for an order that Discovery Material designated as
“CONFIDENTIAL” and/or CONFIDENTIAL--ATTORNEYS' EYES ONLY be reviewed in
camera or under other conditions to prevent unnecessary disclosure.
15)
Return or Destruction of Documents. Upon final termination of this
Action, including all appeals, each party shall make reasonable efforts to destroy all
Discovery
Material
designated
as
“CONFIDENTIAL”
and/or
CONFIDENTIAL--
ATTORNEYS' EYES ONLY. The destroying party shall notify the producing party when
destruction under this provision is complete. If a party is unable to destroy all Discovery
Material designated as “CONFIDENTIAL” and/or CONFIDENTIAL--ATTORNEYS' EYES
ONLY, that material shall be returned to the Producing Party or the Producing Party’s
counsel. This Protective Order shall survive the final termination of this action, and it
shall be binding on the parties and their legal counsel in the future.
16)
Modification. This Protective Order is entered without prejudice to the
right of any party to ask the court to order additional protective provisions, or to modify,
relax or rescind any restrictions imposed by this Protective Order when convenience or
necessity requires. Disclosure other than as provided for herein shall require the prior
written consent of the Producing Party, or a supplemental Protective Order of the court.
17)
Additional Parties to Litigation. In the event additional parties are joined
in this action, they shall not have access to Discovery Material as “CONFIDENTIAL”
and/or CONFIDENTIAL--ATTORNEYS' EYES ONLY until the newly joined party, by its
counsel, has executed and, at the request of any party, filed with the court, its
agreement to be fully bound by this Protective Order.
18)
Sanctions.
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a.
b.
19)
Any party subject to the obligations of this order who is determined
by the court to have violated its terms may be subject to sanctions
imposed by the court under Rule 37 of the Federal Rules of Civil
Procedure and the court’s inherent power.
Confidentiality designations that are shown to be clearly unjustified
or that have been made for an improper purpose (e.g., to
unnecessarily prolong or encumber the case development process
or to impose unnecessary expenses and burdens on other parties)
expose the designating party to sanctions. Upon discovering that
information was erroneously designated as CONFIDENTIAL and/or
CONFIDENTIAL--ATTORNEYS' EYES ONLY, the Producing Party
shall promptly notify all other Parties of the improper designation
Inadvertent Disclosure of Protected Discovery Material.
a.
b.
20)
A Producing Party that inadvertently fails to properly designate
Discovery Material as “CONFIDENTIAL” and/or CONFIDENTIAL-ATTORNEYS' EYES ONLY shall have 14 days from discovering
the oversight to correct that failure. Such failure shall be corrected
by providing written notice of the error to every Receiving Party.
Any Receiving Party notified that confidential Discovery Material
was received without the appropriate confidentiality designation as
authorized under this order shall make reasonable efforts to
retrieve any such documents distributed to persons who are not
Qualified Recipients under this order, and as to Qualified
Recipients, shall exchange the undesignated or improperly
designated documents with documents that include the correct
“CONFIDENTIAL” and/or CONFIDENTIAL--ATTORNEYS' EYES
ONLY designation.
Disclosure of Privileged or Work Product Discovery Material.
a.
The production of attorney-client privileged, or work-product
protected electronically stored information (“ESI”) or paper
documents, whether disclosed inadvertently or otherwise, is not a
waiver of the privilege or protection from discovery in this case or in
any other federal or state proceeding. This Protective Order shall
be interpreted to provide the maximum protection allowed by
Federal Rule of Evidence 502(d). Nothing contained herein is
intended to or shall serve to limit a party’s right to conduct a review
of documents, ESI or information (including metadata) for
relevance, responsiveness and/or segregation of privileged and/or
protected information before production.
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b.
Any party who discloses documents that are privileged or otherwise
immune from discovery shall promptly upon discovery of such
disclosure, advise the Receiving Party and request that the
documents be returned. The Receiving Party shall return such
produced documents or certify their destruction, including all
copies, within 14 days of receiving such a written request. The
party returning such produced documents may thereafter seek
reproduction of any such documents pursuant to applicable law.
Dated this 11th day of June, 2019.
BY THE COURT:
s/ Cheryl R. Zwart
United States Magistrate Judge
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WE SO MOVE and agree to abide by the terms of this Order.
Dated this ___ day of ______________ 2019.
SUMMIT FIRE PROTECTION, INC.,
d/b/a SUMMIT COMPANIES, Plaintiff,
TED REICH, Defendant,
By:
By:
John L. Lingelbach, #20429
Elizabeth A. Hoffman, #25875
Cassandra M. Langstaff, #26592
KOLEY JESSEN P.C., L.L.O. 1125
South 103 Street, Suite 800
Omaha, NE 68124
402-343-3820
402-390-9005 (fax)
john.lingelbach@koleyjessen.com
elizabeth.hoffman@koleyjessen.com
Casandra.langstaff@koleyjessen.com
Daniel J. Epstein
Goosmann Law Firm, PLC
17838 Burke Street, #250
Omaha, NE 68118
epsteind@goosmannlaw.com
Attorney for Defendant.
Attorneys for Plaintiff.
By:
John P. Passarelli
Kutak Rock LLP
1650 Farnam Street
Omaha, NE 68102
john.passarelli@kutakrock.com
Attorney for Total Fire and Security, Inc.
UNITED STATES DISTRICT COURT
DISTRICT OF NEBRASKA
SUMMIT FIRE PROTECTION CO.
d/b/a SUMMIT COMPANIES, a
Minnesota corporation,
Case No. 8:19-cv-188
Plaintiff,
EXHIBIT A
vs.
TED REICH,
Defendant,
I hereby acknowledge that I am about to receive Confidential Information
supplied in connection with the above-captioned case. I understand that such
information is being provided to me pursuant to the terms and restrictions of the
Protective Order entered in this case. I have been given a copy of the Protective
Order, have read the Protective Order, and agree to be bound by its terms. I
understand that Confidential Information as defined in the Protective Order, or
any notes or other records that may be made regarding any such materials, shall
not be disclosed to any persons except as permitted by the Protective Order.
Dated this ____ day of ________________, 2019.
Printed Name
4819-2628-1368.1
Signature
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