Precourt et al v. Fairbanks Reconstruction Corp. et al

Filing 32

ORDER granting 31 Motion for Protective Order. Signed by Chief Judge Karen E. Schreier on 6/20/11. (JMM)

UNITED STATES DISTRICT COURT

DISTRICT OF SOUTH DAKOTA

SOUTHERN DIVISION

)
LORI PRECOURT, ADMINISTRATOR )

OF THE ESTATE OF CAROLYN)

BLACK, LORI PRECOURT,
)

INDIVIDUALLY AND DIANA
)
MORRISON,
)

)
)

Plaintiffs,
)

)

)
v.
)
)

FAIRBANK RECONSTRUCTION
)

CORP., d/b/a FAIRBANK FARMS, a
foreign corporation, GREATER OMAHA )

)

PACKING COMPANY, INC., a foreign
)

corporation and SHAW'S
)

SUPERMARKETS, INC., a foreign
)

corporation,
)

)

Defendants.

FILED
JUN 2 0 2011

~~
No. 1O-MC-130

PROTECTIVE ORDER

Based upon the Joint Motion for Protective Order, and for good cause shown, it is hereby
ORDERED:

1.

Scope. All documents and information produced by Beef Products, Inc. ("BPI")

in the course of discovery in the underlying matter, including all documents produced by BPI in
this matter pursuant to third-party subpoenas and the testimony and exhibits proffered at BPI's
Rule 30(b)(6) deposition (hereinafter collectively "documentsll ) , shall be subject to this Order
concerning confidential information as set forth below. This Order is subject to the Local Rules
of this District and of the Federal Rules of Civil Procedure on matters of procedure and
calculation oftime periods.

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2.

Form and Timing of Designation. BPI may designate documents as confidential

and restricted in disclosure under this Order by placing or affixing the words "CONFIDENTIAL
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SUBJECT TO PROTECTIVE ORDER" or "CONFIDENTIAL - AITORNEYS' EYES ONLY

- SUBJECT TO PROTECTIVE ORDER!! on the document in a manner that will not interfere
Documents shall be designated CONFIDENTIAL -

with the legibility of the document.

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SUBJECT TO PROTECTIVE ORDER prior to or at the time of the production or disclosure of

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the documents. The designation of a document as confidential does not mean that the document

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has any status or protection by statute or otherwise except to the extent and for the purposes of

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this Order.

3.

Documents Which May be Designated "CONFIDENTIAL - SUBJECT TO

PROTECTIVE ORDER. BPI may designate documents CONFIDENTIAL

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SUBJECT TO

PROTECTIVE ORDER but only if after review of the documents, BPI has in good faith
determined that the documents contain information protected from disclosure by statute or that
should be protected from disclosure as trade secrets, personnel records, or confidential personal,
scientific, testing, financial, or commercial information. The designation shall be made subject
to the standards of Rule 11 and the sanctions of Rule 37 of the Federal Rules of Civil Procedure.
Information or documents that are available in the public sector may not be designated as
"CONFIDENTIAL - SUBJECT TO PROTECTIVE ORDER."

4.

Documents Which May be Designated "CONFIDENTIAL - ATTORNEYS'

EYES ONLY - SUBJECT TO PROTECTIVE ORDER. tI
documents

as IICONFIDENTIAL

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BPI may designate such

ATTORNEYS' EYES ONLY - SUBJECT TO

PROTECTIVE ORDER," but only if after review of the documents, BPI has in good faith
determined that the documents contain information protected from disclosure by statute or that
should be protected from disclosure because such information relates to highly sensitive
commercial, scientific, testing, financial, personal, or marketing matters or other proprietary
information for which any disclosure would harm the commercial or business interests of BPI.
The designation shall be made subject to the standards of Rule 11 and the sanctions of Rule 37 of
the Federal Rules of Civil Procedure. Information or documents that are available in the public

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sector may not be designated as "CONFIDENTIAL - ATTORNEYS' EYES ONLY • SUBJECT
TO PROTECTIVE ORDER."

5.

Depositions. Deposition testimony from BPI shall be deemed "CONFIDENTIAL

- SUBJECT TO PROTECTIVE ORDER" or "CONFIDENTIAL - ATTORNEYS· EYES ONLY
- SUBJECT TO PROTECTIVE ORDER" only if designated as such. Such designation shall be
specific as to the portions that are so designated CONFIDENTIAL - SUBJECT TO
PROTECTIVE ORDER or CONFIDENTIAL - ATTORNEYS' EYES ONLY - SUBJECT TO
PROTECTIVE ORDER. Depositions, in whole or in part, shall be designated on the record as
CONFIDENTIAL - SUBJECT TO PROTECTIVE ORDER or CONFIDENTIAL ­
ATTORNEYS' EYES ONLY - SUBJECT TO PROTECTIVE ORDER at the time of the
deposition. Deposition testimony so designated shall remain CONFIDENTIAL - SUBJECT TO
PROTECTIVE ORDER or CONFIDENTIAL - ATTORNEYS' EYES ONLY - SUBJECT TO
PROTECTIVE ORDER until ten days after delivery of the transcript by the court reporter.
Within ten days after delivery of the transcript, BPI may serve a Notice of Designation to all
parties of record as to specific portions of the transcript to be designated "CONFIDENTIAL ­
SUBJECT TO PROTECTIVE ORDERI! or "CONFIDENTIAL - ATTORNEYS' EYES ONLY ­
SUBJECT TO PROTECTIVE ORDER." Thereafter, those portions so designated shall be
protected as CONFIDENTIAL - SUBJECT TO PROTECTIVE ORDER or CONFIDENTIAL ­
ATTORNEYS' EYES ONLY - SUBJECT TO PROTECTIVE ORDER pending objection under
the terms of this Order.

BPI's failure to serve a Notice of Designation shall waive the

CONFIDENTIAL - SUBJECT TO PROTECTIVE ORDER or CONFIDENTIAL ­
ATTORNEYS' EYES ONLY - SUBJECT TO PROTECTIVE ORDER designation made on the
record of the deposition.

6.

Protection of Designated Materials.
(a)

General Protections (Documents Designated "CONFIDENTIAL ­

SUBJECT TO PROTECTIVE ORDER).

Documents

desi~nated

by BPI as

"CONFIDENTIAL - SUBJECT TO PROTECTIVE ORDER" under this Order shall not
be used or disclosed by any parties. or counsel for any parties, or any other persons

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identified in' 6(a)(I) below, for any purpose whatsoever other than to prepare for and to
conduct discovery and trial in this action, including any appeal thereof.

(1)

Limited Tbird-Party Disclosures. The parties and counsel for

the parties shall not disclose or pennit the disclosure of any CONFIDENTIAL ­
SUBJECT TO PROTECTIVE ORDER documents to any third person or entity
except as set forth in subparagraphs (i)-(vi) below. Subject to these requirements,
the following categories of persons may be allowed to review documents that
have been designated "CONFIDENTIAL - SUBJECT TO PROTECTIVE
ORDER:"
(I)

Counsel. Counsel for the parties and employees of counsel wbo
have responsibility for the preparation and trial of the action;

(Ii)

Partles. Parties and employees of a party to this Order;

(In) Court Reporters and Recorders. Court reporters and recorders

engaged for depositions;
(Iv)

(v)

ConSUltants and Experts. Consultants, investigators, or experts
(hereinafter referred to collectively as lIexpertsll ) employed by the
parties or counsel for the parties to assist in the preparation and
trial of this action but only after such persons have completed the
certification contained in Attachment A, Acknowledgment of
Understanding and Agreement to Be Bound; and

(vi)

(b)

Contractors. Those persons specifically engaged for the limited
purpose of making copies of documents or organizing or
processing documents but only after each such person has
completed the certification contained in Attachment A,
Acknowledgment ofUnderstanding and Agreement to Be Bound;

Others by Consent. Other persons only by written consent of BPI
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, Acknowledgment of Understanding
and Agreement to Be Bound.

Additional Protections (Documents Designated "CONFIDENTIAL ­

ATTORNEYS EYES ONLY - SUBJECT TO PROTECTIVE ORDER"). Documents

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designated by BPI as "CONFIDENTIAL - ATTORNEYS' EYES ONLY - SUBJECT TO
PROTECTIVE ORDER" shall not be used for any purpose whatsoever other than to
prepare for and to conduct discovery and trial in this action, including any appeal thereof,
and shall be subject to the additional protections as set forth below:
(1)

Limited Third-Party Disclosures.

No counsel of any party

receiving documents designated subject to this Order shall disclose or permit the
disclosure of any such documents to its clientsl or their clientsl officers,
employees or directors, including any in-house counsel, either directly or
indirectly. Additionally, no counsel of any party receiving documents subject to
this Order shall disclose or permit the disclosure of any such documents to any
third person or entity except as set forth in subparagraphs (i)-(v) below:
(i)

Counsel. Counsel for the parties and employees of counsel who
have responsibility for the preparation and trial of the action;

(ll)

Court Reporters and Recorders. Court reporters and recorders
engaged for depositions;

(iii) Contractors. Those persons specifically engaged for the limited

purpose of making copies of documents or organizing or
processing documents but only after each such person has
completed the certification contained in Attachment A,
Acknowledgment of Understanding and Agreement to Be Bound.
(Iv)

(v)

(c)

Consultants and Experts. Consultants, investigators, or experts
(hereinafter referred to collectively as "experts") employed by the
parties or counsel for the parties to assist in the preparation and
trial of this action but only after such persons have completed the
certification contained in Attachment A, Acknowledgment of
Understanding and Agreement to Be Bound; and
Others by Consent. Other persons only by written consent of BPI
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, Acknowledgment of Understanding
and Agreement to Be Bound.

Control of Documents. Counsel for the parties shall make reasonable

efforts to prevent unauthorized disclosure of any documents designated as

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CONFIDENTIAL - SUBJECT TO PROTECTIVE ORDER or CONFIDENTIAL ATTORNEYS' EYES ONLY - SUBJECT TO PROTECTIVE ORDER pursuant to this
Order.

Counsel shall maintain the originals of the forms signed by persons

acknowledging their obligations under this Order for a period of three years from the date
of signing.

(d)

Copies. Prior to production to another party, all copies, electronic images,

duplicates, extracts, summaries or descriptions (hereinafter referred to collectively as
"copies") of any documents designated as CONFIDENTIAL - SUBJECT TO

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PROTECTIVE ORDER or CONFIDENTIAL - ATTORNEYS' EYES ONLY ­
SUBJECT TO PROTECTNE ORDER under this Order, or any individual portion of

such a document, shall be affixed with the designation "CONFIDENTIAL - SUBJECT

TO PROTECTIVE ORDER" or "CONFIDENTIAL - ATTORNEYS' EYES ONLY ­
SUBJECT TO PROTECTIVE ORDER" if the words do not already appear on the copy.
All such copies shall thereafter be entitled to the protection of this Order. The tenn

"copiesll 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
infonnation contained in those documents.

7.

Filing of Designated Documents Under Seal. Before any document marked as

IICONFIDENTIAL - SUBJECT TO PROTECTIVE ORDERII or "CONFIDENTIAL ­
ATTORNEYS' EYES ONLY - SUBJECT TO PROTECTIVE ORDER" is filed with this Court,
the court in the underlying action pending in New Hampshire, or any other court, the party filing
the document shall make reasonable efforts to ensure that the document is protected from public
disclosure. The filing party shall first consult with BPI's counsel Of the Court in the underlying
action pending in the District of New Hampshire, to detennine whether, with the consent of BPI,
a redacted document may be filed with the court not under seal. Where agreement is not possible
or adequate, a confidential document must be filed under seal in accordance with the local rules
of the applicable court.

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8.

No Greater Protection of Specific Documents.

BPI may not withhold

infonnation from discovery on the ground that it requires protection greater than that afforded by
this Order unless BPI moves for an order providing such special protection.

9.

Challenges by a Party to Designation as Confidential. Any CONFIDENTIAL

- SUBJECT TO PROTECTIVE ORDER or CONFIDENTIAL - ATTORNEYS' EYES ONLY"
SUBJECT TO PROTECTIVE ORDER designation is subject to challenge by any party. The
following procedure shall apply to any such challenge.
<a)

Objection to ConfidentiaUty.

Within 30 days of the receipt of any
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document designated "CONFIDENTIAL - SUBJECT TO PROTECTIVE ORDER" or
"CONFIDENTIAL - ATTORNEYS' EYES ONLY - SUBJECT TO PROTECTIVE
ORDER:' or of the refusal to produce a document on the ground of such designation, a
party may serve upon BPI an objection to the designation. The objection shall specify the
documents to which the objection is directed and shall set forth the reasons for the
objection as to each document or category of documents. CONFIDENTIAL - SUBJECT
TO PROTECTIVE ORDER or CONFIDENTIAL " ATTORNEYS' EYES ONLY -

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SUBJECT TO PROTECTIVE ORDER documents to which objection has been made
shall remain "CONFIDENTIAL - SUBJECT TO PROTECTIVE ORDER" or
"CONFIDENTIAL - ATTORNEYS' EYES ONLY - SUBJECT TO PROTECTIVE

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fifteen (IS) days from service of the objection to meet and confer in a good faith effort to

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resolve the objection by agreement. If agreement is reached confinning or waiving the

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ORDER" until designated otherwise by waiver, agreement, or order of this Court, which
retains exclusive jurisdiction over these disputes.
(b)

Obligation to Meet and Confer. The objecting party and BPI shall have

CONFIDENTIAL - SUBJECT TO PROTECTIVE ORDER or CONFIDENTIAL ATTORNEYS' EYES ONLY - SUBJECT TO PROTECTIVE ORDER designation as to
any documents subject to the objection, BPI shall serve on aU parties a notice specifying

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the documents and the nature of the agreement.

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(c)

Obligation to File Motion.

In the absence of agreement as to any

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documents designated CONFIDENTIAL - SUBJECT TO PROTECTIVE ORDER or

CONFIDENTIAL - ATTORNEYS' EYES ONLY - SUBJECT TO PROTECTIVE

ORDER, BPI shall file within 30 days of the service of the objection a motion with this

Court to retain the CONFIDENTIAL - SUBJECT TO PROTECTIVE ORDER or

CONFIDENTIAL - ATTORNEYS' EYES ONLY - SUBJECT TO PROTECTIVE
ORDER designation. BPI has the burden to show good cause for the CONFIDENTIAL ­
SUBJECT TO PROTECTIVE ORDER or CONFIDENTIAL - ATTORNEYS' EYES

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motion waives the CONFIDENTIAL - SUBJECT TO PROTECTIVE ORDER or

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CONFIDENTIAL - ATTORNEYS' EYES ONLY - SUBJECT TO PROTECTIVE

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ORDER designation of documents to which objection was made.

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ONLY - SUBJECT TO PROTECTIVE ORDER designation. The failure to file the

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10.

Action by the Court.

Applications to the Court for an order relating to

documents designated CONFIDENTIAL - SUBJECT TO PROTECTIVE ORDER or
CONFIDENTIAL - ATTORNEYS' EYES ONLY - SUBJECT TO PROTECTIVE ORDER
shall be by motion to this Court. Nothing in this Order or any action or agreement of a party
under this Order limits the Court's power to make orders concerning the disclosure of documents
produced by BPI in discovery.

11.

Use of Confidential Documents or Information at Trial.

A party which

intends to present or which anticipates that another party may present at trial infonnation
designated by BPI as CONFIDENTIAL - SUBJECT TO PROTECTIVE ORDER or
CONFIDENTIAL - ATTORNEYS' EYES ONLY - SUBJECT TO PROTECTIVE ORDER or
infonnation derived therefrom, shall identify the issue, not the infonnation, in a pretrial
submission. The trial court shall thereafter make such orders as are necessary to govern the use
of such documents or infonnation at trial.

11.

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 final judgment not subject to further
appeal.

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(b)

Return of CONFIDENTIAL· SUBJECT TO PROTECTIVE ORDER or

CONFIDENTIAL - ATTORNEYS' EYES ONLY - SUBJECT TO PROTECTIVE
ORDER. Within thirty days after dismissal or entry of fmal judgment not subject to
further appeal, all documents treated as CONFIDENTIAL - SUBJECT TO
PROTECTIVE ORDER or CONFIDENTIAL· ATTORNEYS' EYES ONLY·
SUBJECT TO PROTECTIVE ORDER under this Order, including copies as defmed in
,6(d), shall be returned to BPI unless: (1) the document has been offered into evidence
or filed without restriction as to disclosure; or (2) as to documents bearing the notations,
summations, or other mental impressions of the receiving party, that party elects to
destroy the documents and certifies to BPI 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 information designated CONFIDENTIAL ­
SUBJECT TO PROTECTIVE ORDER or CONFIDENTIAL - ATTORNEYS' EYES
ONLY - SUBJECT TO PROTECTIVE ORDER, so long as that work product does not
duplicate verbatim substantial portions of the text or images of confidential documents.
This work product shall continue to be "CONFIDENTIAL - SUBJECT TO
PROTECTIVE ORDER" or "CONFIDENTIAL - ATTORNEYS' EYES ONLY ­
SUBJECT TO PROTECTIVE ORDER" 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

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"CONFIDENTIAL - SUBJECT TO PROTECTIVE ORDER" or "CONFIDENTIAL ­
ATTORNEYS' EYES ONLY· SUBJECT TO PROTECTIVE ORDER" documents.

13.

Order Subject to Modification. This Order shall be subject to modification by

the Court on its own motion or on motion of a party, BPI, or any other person with standing
concerning the subject matter.
14.

No Prior Judicial Determination.

Nothing herein shall be construed or

presented as a judicial determination that any documents or information designated
"CONFIDENTIAL • SUBJECT TO PROTECTIVE ORDER II or "CONFIDENTIAL ­
ATTORNEYS' EYES ONLY - SUBJECT TO PROTECTIVE ORDER" by counselor the parties

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is subject to protection under Rule 26(c) of the Federal Rules of Civil Procedure or othervvise
until such time as the Court may rule on a specific document or issue.

15.

Persons Bound. This Order shall take effect when entered and shall be binding

upon all parties, their counsel, and all other persons made subject to this Order by its terms.
Dated:
BY THE COURT:

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Karen E. Schreier
Chief Judge

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ATTACHMENT A
UNITED STATES DISTRICT COURT
DISTRlCf OF SOUTH DAKOTA

SOUTHERN DIVISION

)
)

)

)

)
)

)
)
Plaintiffs,
)
)
)
v.
)
)

FAIRBANK RECONSTRUCTION
)

CORP., dlb/aFAIRBANKFARMS, a
foreign corporation, GREATER OMAHA )

)

PACKING COMPANY, INC., a foreign
)

corporation and SHAW'S
)

SUPERMARKETS, INC., a foreign
corporation,
)

)

)

Defendants.

LORI PRECOURT, ADMINISTRATOR
OF THE ESTATE OF CAROLYN
BLACK, LORI PRECOURT,
INDIVIDUALLY AND DIANA
MOruuSON,

,

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No.lO-MC-130

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ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND
The undersigned hereby acknowledges that helshe has read the Confidentiality
Order dated

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in the above-captioned action and

attached hereto, understands the terms thereof, and agrees to be bound by its terms. The
undersigned submits to the jurisdiction of the United States District Court for the District
of South Dakota in matters relating to the Confidentiality Order and understands that the

{00899059.1} 11

·.

terms of the Confidentiality Order obligate himlher to use documents designated
"CONFIDENTIAL - SUBJECT TO PROTECTIVE ORDER" or "CONFIDENTIAL ­
ATTORNEYS' EYES ONLY - SUBJECT TO PROTECTIVE ORDER" in accordance

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with the Order solely for the purposes of the above-captioned action, and not to disclose
any such documents or information derived directly therefrom to any other person, firm
orconcem.

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The undersigned acknowledges that violation of the Confidentiality Order may
result in penalties for contempt of court.

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Name:

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Job Title:

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Employer:
Business Address:

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Date:

-------

Signature

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