Brad Taylor, Inc. v. Union Pacific Railroad Company

Filing 26

PROTECTIVE ORDER - Pursuant to Rule 26 of the Federal Rules of Civil Procedure, and upon the stipulation of all Parties, the Court hereby enters this Agreed Confidentiality and Protective Order (the "Order") to govern the protection of c ertain intellectual property and confidential, personal, proprietary, financial, and/or trade secret information, which may be produced or otherwise disclosed during the course of this litigation. Ordered by Magistrate Judge Michael D. Nelson. (LKO)

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
BRAD TAYLOR, INC., an Illinois
)
Corporation,
)
8:20-cv-00297-BCB-MDN
)
Plaintiff/Counter Defendant,
)
)
vs.
)
)
UNION PACIFIC RAILROAD
)
COMPANY, a Delaware Corporation,
)
)
Defendant/Counter-Plaintiff
)

AGREED CONFIDENTIALITY AND PROTECTIVE ORDER
Pursuant to Rule 26 of the Federal Rules of Civil Procedure, and upon the stipulation
of all Parties, the Court hereby enters this Agreed Confidentiality and Protective Order (the
“Order”) to govern the protection of certain intellectual property and confidential, personal,
proprietary, financial, and/or trade secret information, which may be produced or otherwise
disclosed during the course of this litigation.
1.

Certain documents and information of the Parties may be subject to discovery in

the above-referenced action and may contain trade secrets, proprietary and/or financial and/or
private information and data, or other confidential information.
2.

These documents must be kept confidential in order to protect legitimate business

interest and privacy rights of the Parties.
3.

Good cause exists for entering this Order.

4.

This Order governs the treatment of documents, tangible things, deposition

testimony, deposition exhibits, interrogatory answers, other pre-trial testimony, responses to
requests for admission and other written or oral, recorded, computerized, electronic or graphic

AGREED CONFIDENTIALITY AND PROTECTIVE ORDER

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material designated confidential by a party in accordance with the procedures set forth in this
Order.
CONFIDENTIAL DEFINED
5.

In responding to requests for discovery in this action, the Parties may designate as

“Confidential” or “Highly Confidential” any document, testimony, answers to interrogatories,
documents produced to experts, expert reports, or other information or discovery material that
they believe in good faith contains or discloses trade secrets, internal policies, procedures and
operations, non-public customer, client or investor information, forecasts or strategies, analyses,
appraisals, valuations or other non-public sensitive commercial, financial, private, and/or
proprietary business or personal information. The designation shall be by written notice
addressed to counsel for the party seeking discovery or access to discovery, identifying said
material by reference to a “Bates Number,” range of “Bates Numbers,” or other identifying
feature of the document and/or by affixing to the document or material the legend “Confidential”
or “Highly Confidential” and identifying the specific portion of the document being designated.
If the information is provided in electronic form, the individual documents should be labeled
with electronic stamps or files containing such information may be labeled as including such
information. All documents and material so designated and all information derived therefrom
will be referred to in this Order as the “Confidential Discovery Material” and will be handled in
strict accordance with the terms of this Order. The designation “Confidential” or “Highly
Confidential” applies to all copies, excerpts, summaries or other disclosure of the substance or
contents of the material. Additionally, for ease and efficiency of production, many of the records
to be produced over the course of this litigation will be produced as they are/were kept in the

AGREED CONFIDENTIALITY AND PROTECTIVE ORDER

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ordinary course of business. By producing such records, the producing party does not waive its
right to object to the admissibility of such information.
6.

Depositions, hearings, or other pre-trial testimony, may be designated as

Confidential or Highly Confidential as follows: (i) by a statement on the record of such
testimony, by counsel, that such testimony or any portion thereof shall be treated as Confidential
or Highly Confidential or (2) by written notice, sent by counsel to all Parties, and the court
reporter(s) in attendance, within 7 business days after receiving a copy of the transcript of any
such hearing or other pre-trial testimony, and within 20 days after receiving a copy of the
transcript of any such deposition testimony, that such testimony, identified by the page(s) and
line number(s), shall be treated as Confidential or Highly Confidential. The entire transcript shall
be treated as Confidential or Highly Confidential until the applicable time period has lapsed. The
designation of Confidential or Highly Confidential shall thereafter be prominently affixed to the
original and all copies of each transcript page that contains Confidential Discovery Material. The
Parties may modify this procedure for any particular deposition through agreement on the record
or in writing prior or subsequent to the deposition without further Court order.
LIMITATIONS ON USE OF CONFIDENTIAL DISCOVERY MATERIAL
7.

The Parties agree that production of “Confidential Discovery Material” is not a

waiver of a trade secret privilege.
8.

Confidential Discovery Material received in this action shall be used solely by the

receiving party and solely for the purposes of this action. Confidential Discovery Material shall
not be used by the receiving party for any purposes outside of this action, unless agreed to in
writing by all Parties or as authorized by further order of the Court. This Order has no effect
upon, and shall not apply to (i) any producing party’s use of its own Confidential Discovery

AGREED CONFIDENTIALITY AND PROTECTIVE ORDER

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Material for any purpose or (ii) any use of documents or other information obtained or developed
independently of discovery in this action.
INADVERTENT PRODUCTION OF CONFIDENTIAL DISCOVERY MATERIAL
9.

Inadvertent production of Confidential Discovery Material not properly

designated shall not itself be deemed a waiver of a party’s claim of confidentiality. Either party
may, within 7 business days following production or within 7 business days of the discovery of
the inadvertent production (whichever period is later), designate documents produced
Confidential or Highly Confidential. Disclosure by any party of Confidential Discovery Material
prior to notice by the producing party of the confidential nature thereof shall not be deemed a
violation of this Protective Order; however, those persons to whom disclosure was made shall be
immediately notified that the material disclosed was Confidential or Highly Confidential and
must be treated in accordance with this Order thereafter, including execution of Exhibit A as
described in paragraph 10.
DISCLOSURE OF MATERIAL DESIGNATED CONFIDENTIAL
10.

Except with the prior written consent of the party who produced a confidential

document, no Confidential Discovery Material or any document marked Confidential or
otherwise properly designated as Confidential, and no information contained therein, may be
disclosed to any person other than:
a.

Attorneys, including in-house counsel, for the party or parties;

b.

Secretaries, paralegals and other employees of attorneys who are actively

engaged in the preparation of this action;
c.

Independent document reproduction services or document recording and

retrieval services, provided they execute the Confidentiality Agreement which

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appears in Exhibit A to this Order, which Agreements shall be maintained by the
party retaining them;
d.

Mediators appointed by the Court or agreed to by the Parties, provided

they execute the Confidentiality Agreement which appears in Exhibit A to this
Order. If a mediator is provided Confidential Discovery Material, the mediator
must return all copies to the party producing the same at the conclusion of the
mediation;
e.

Independent consultants and/or experts specifically retained for the

purpose of consulting in the preparation of and/or testifying in this action,
provided they execute the Confidentiality Agreement which appears in Exhibit A
to this Order, which Agreements shall be maintained by the party retaining them;
f.

Parties to this action, including directors, officers, managing agents, and

employees of any party to this action who are actively involved in the conduct of
this litigation if and to the extent reasonably necessary for the prosecution or
defense of this litigation, provided they execute the Confidentiality Agreement
which appears in Exhibit A to this Order, which Agreements shall be maintained
by the party retaining them;
g.

The Court, including the jury, at any stage in this action under such

safeguards as the Court may require;
h.

Court reporters actually recording proceedings in this action; and

i.

Individuals already privy to the Confidential Discovery Material prior to

the initiation of this lawsuit for purposes of explaining or testifying about the
information contained in the Confidential Discovery Material.

AGREED CONFIDENTIALITY AND PROTECTIVE ORDER

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DISCLOSURE OF MATERIAL DESIGNATED HIGHLY CONFIDENTIAL
11.

Highly Confidential information shall include information that the disclosing

party, in good faith, reasonably believes and contends is of so sensitive a nature that if disclosed
to persons of expertise in the area would reveal significant technical or business advantages of
the producing or designating party, and that includes as a major portion subject matter believed
to be unknown to the opposing party or parties, or any of the employees of the corporate parties,
such that disclosure to the opposing side on a confidential basis is not sufficient to protect the
information. Such information shall include, but not be limited to, trade secrets, non-public
financial, sales or marketing information, business plans and strategies, or customer information.
12.

All of the provisions set forth in the Order that apply to materials designated as

Confidential shall also apply to material designated Highly Confidential; however, access to
documents, information, and other things designated Highly Confidential shall not be given to
individuals identified in paragraph 10(f), except for the Parties’ in-house counsel and secretaries,
paralegals and other employees of the Parties’ in-house counsel who are actively engaged in the
preparation of this action, except by written agreement of all Parties in this action or by order of
the Court, such order obtained on noticed motion (or on shortened time as the Court may allow),
permitting such disclosure.
13.

Nothing shall be regarded as Highly Confidential information if it is information

that, without any restriction on its use or disclosure, either: (i) is demonstrably properly in the
public domain at the time of the disclosure; (ii) properly becomes a part of the public domain
through no fault of the other party; (iii) the receiving party can show that the information was
properly in its possession at the time of disclosure; and (iv) the receiving party properly receives

AGREED CONFIDENTIALITY AND PROTECTIVE ORDER

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such information at a later date from a third party who is not subject to nor asserts a restriction as
to disclosure.
USE OF CONFIDENTIAL DISCOVERY MATERIAL
14.

For applications and motions to the Court in which a party submits Confidential

Discovery Material:
a.

In the event a party wishes to use any documents designated Confidential

or Highly Confidential in affidavits, declarations, briefs, memoranda of law, or
other papers filed in this litigation, the party shall do one of the following: (1)
with the consent of the producing party (and consent shall not be unreasonably
withheld), file only a redacted copy of the information; (2) where appropriate
(e.g., in connection with discovery and evidentiary motions) provide the
information solely for in camera review; or (3) file such information under seal
with the Court consistent with the sealing requirements of the Court.
b.

Any document or transcript designated as Confidential or Highly

Confidential which is lodged or filed with the Court shall be maintained under
seal by the Court and shall be made available only to the Court and to counsel for
the Parties, until further order of the Court.
c.

Should it become necessary to include the Confidential or Highly

Confidential documents and/or transcripts in a record on appeal, the Parties shall
work together to effect the proper procedures to ensure all Confidential and
Highly Confidential documents and/or transcripts are included in the record, by
obtaining a court order to seal the documents. Should the Court deny the motion
to seal, however, the record will be supplemented with unsealed copies of the

AGREED CONFIDENTIALITY AND PROTECTIVE ORDER

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Confidential and Highly Confidential documents that were previously filed
pursuant to paragraph (a) of this section.
15.

Upon failure of the filing party or nonparty to designate information as

Confidential or Highly Confidential properly and file such information in accordance with this
Order, the party or nonparty affected by such disclosure may do so within 7 business days of
learning of the defective filing. Notice of such designation shall be given to all Parties and the
nonparty who produced the Confidential Discovery Material. The Parties also agree that
Confidential Discovery Material may be offered in evidence at trial or any Court hearing.
OBJECTING TO CONFIDENTIAL OR HIGHLY CONFIDENTIAL DESIGNATION
16.

The opposing party may object to a designation of Confidential Discovery

Material. The objection to such designation must be made in writing identifying the Bates
number of the documents. Once an objection to the designation of Confidential Discovery
Material is made by a party, the party making the designation has 7 business days to respond to
the objecting party including either justification for the designation or withdraw of the
designation. If the designating party does not respond or the objecting party believes the
designation is improper after the 7 business day period has expired may file a motion requesting
a judicial determination as to the confidential nature of the material. The disputed material will
remain Confidential or Highly Confidential for purposes of this Order pending an order from the
Court on the related motion for protective order.
EXCLUSION FROM DEPOSITION
17.

Whenever any documents, information or other things designated as Highly

Confidential are to be discussed or disclosed in a deposition, any party claiming such

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confidentiality may exclude from the room any person who is not entitled to receive documents,
information or other things designated as Highly Confidential.
PROCEDURE UPON FINAL DISPOSITION
18.

Upon the final disposition of this case, each person who has received Confidential

Discovery Material pursuant to this Order shall promptly return to the producing person all
information the producing person designated Confidential or Highly Confidential, all copies
made thereof, and all information derived therefrom. In lieu of returning such information, a
person may destroy the Confidential Discovery Material and certify such destruction to the
producing person by affidavit. However, the counsel of record for a party may retain a file copy
of any document filed with the Court, any expert reports containing Confidential Discovery
Material, a copy of any written discovery response, and a transcript of any deposition testimony,
together with all exhibits thereto, which shall remain subject to this Order.
19.

This Protective Order shall continue to bind the Parties and all persons who have

had access to Confidential Discovery Material unless modified by an order of the Court or by the
written stipulation of the Parties filed with the Court or made on the record at deposition or in
Court. This Order will survive and remain in full force and effect after the conclusion of the
litigation.
SIGNED this 6th day of January, 2021.

Michael D. Nelson
United States Magistrate Judge

AGREED CONFIDENTIALITY AND PROTECTIVE ORDER

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AGREED:
Respectfully submitted,

Karen M. Keeler, #25069
David M. Newman, #24549
1400 Douglas Street, STOP 1580
Omaha, NE 68179
Telephone: [phone]
Email: [e-mail]
[e-mail]
Counsel for Defendant

Joel M. Carney, #21922
William J. Hale, #26179
Goosmann Law Firm, PLC
17838 Burke Street, Suite 250
Omaha, NE 68144
Telephone: [phone]
Email: [e-mail]
[e-mail]
Counsel for Plaintiff

AGREED CONFIDENTIALITY AND PROTECTIVE ORDER

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EXHIBIT A
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
BRAD TAYLOR, INC., an Illinois
)
8:20-cv-00297-BCB-MDN
Corporation,
)
)
Plaintiff/Counter Defendant,
)
)
vs.
)
)
UNION PACIFIC RAILROAD
)
COMPANY, a Delaware Corporation,
)
)
Defendant/Counter-Plaintiff
)
ACKNOWLEDGEMENT OF PROTECTIVE ORDER
AND AGREEMENT TO BE BOUND
I hereby acknowledge that I,

, am about to receive

information that is being supplied by one or more of the Parties in the above-captioned case. I
understand that the information is subject to the terms of a Protective Order. I hereby certify my
understanding that such information is being provided to me pursuant to the terms and
restrictions of the Protective Order. I have been given a copy of said Protective Order, have read
it, and agree to be bound by its terms. I understand that information and any documentary
material covered by the Protective Order that I am provided or obtain (which includes any notes
or other record that I make of such material) must not be disclosed to others, except as provided
for by the express terms of the Protective Order and under the terms set forth therein.

Signature

Print Name

Company
Date

AGREED CONFIDENTIALITY AND PROTECTIVE ORDER

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