The Benefit Group et al v. Navigators Specialty Insurance Company
PROTECTIVE ORDER - Upon consideration of the parties' joint request for entry of a Protective Order, (Filing No. 14 ), 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
THE BENEFIT GROUP, Inc.; and LINUS
Upon consideration of the parties’ joint request for entry of a Protective Order,
(Filing No. 14), the Court enters the following Protective Order governing the disclosure
of confidential Discovery Material by a Producing Party to a Receiving Party in this
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
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.
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. 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
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. 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
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
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 must be clearly so designated
before the material is disclosed or produced.
b. 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” as required under this order.
Qualified Recipients. For the purposes of this Protective Order, the persons
authorized to receive Discovery Material designated as “CONFIDENTIAL” (hereinafter
“Qualified Recipients”) are:
a. The Parties, including any members, council members, officers, board
members, directors, employees, or other legal representatives of the
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
e. Consulting or testifying expert witnesses who will be providing professional
opinions or assistance for this Action based upon a 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
The court and its staff, any court reporter or typist recording or transcribing
hearings and testimony, and jurors; and
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.
Dissemination by the Receiving Party. Counsel for the Receiving Party
a. Require Qualified Recipients who are non-expert witnesses or expert
witnesses and consultants and who receive information designated as
“CONFIDENTIAL” 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” 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” exists
and is enforceable by the court even if the person receiving the information fails or
refuses to sign the Appendix A Agreement.
Duty as to Designations.
information or items as CONFIDENTIAL must exercise reasonable care to limit any such
designation to specific material that qualifies under the appropriate standards, and
designate only those parts of 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
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. The parties acknowledge that some of the
information produced in this case may be protected health information, or contain such
information, within the meaning of the Health Insurance Portability and Accountability
Act (HIPAA). Consistent with 45 C.F.R. § 164.512(e)(1)(iv)(v), and as to the health
information requested, counsel and the Receiving Party:
a. Shall not use or disclose the information for any purpose other than the
litigating this Action;
b. Shall return or destroy the protected health information (including all copies
made) at the end of this Action; and
c. Shall request, use and disclose only the minimum amount necessary to
conduct this Action.
“CONFIDENTIAL” 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” 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.
10) Copies. Discovery Material designated as “CONFIDENTIAL” 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” 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” 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”:
a. Only Qualified Recipients may be present at a deposition in which such
information is disclosed or discussed.
b. All deposition testimony which discloses or discusses information
designated as “CONFIDENTIAL” is likewise deemed designated as
c. Information designated as “CONFIDENTIAL” may be used at a nonparty
deposition only if necessary to the testimony of the witness.
13) 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” bears the
burden of proving it was properly designated. The party challenging a “CONFIDENTIAL”
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” 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 trial. Any party may move the court for an order that Discovery
Material designated as “CONFIDENTIAL” 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.” 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,” 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” 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.
a. 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.
b. 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, the Producing Party shall promptly notify all other
Parties of the improper designation
19) Inadvertent Disclosure of Protected Discovery Material.
a. A Producing Party that inadvertently fails to properly designate Discovery
Material as “CONFIDENTIAL” 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.
b. 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” designation.
20) 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.
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 7th day of June, 2021.
BY THE COURT:
s/ Cheryl R. Zwart
United States Magistrate Judge
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
THE BENEFIT GROUP, Inc.; and LINUS
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
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