Holmes v. Deffenbaugh Industries, Inc. - Document 19

IN THE UNITED STATES DISTRICT COURT F O R THE DISTRICT OF NEBRASKA R O B E R T HOLMES, P l a i n t i f f, v. DEFFENBAUGH INDUSTRIES, INC., D efe n d a n t. ) ) ) ) ) ) ) ) ) C a s e No. 8:08CV392 P R O T E C T I V E ORDER P la in t if f Robert Holmes is a former employee of Defendant Deffenbaugh Industries, In c . The parties agree that certain information and documents may be disclosed during d i s c o v e r y which one or more parties claim constitute confidential information or highly c o n f id e n tia l information. In order to protect such information from disclosure, the parties a g re e as follows: Given the nature of this action, the parties are likely to exchange information in re sp o n s e to Federal Rule of Civil Procedure 26 that is confidential and proprietary in nature. S u c h protected information includes, but is not limited to, financial and other personal in f o rm a tio n regarding Plaintiff, Defendant, and third parties; information related to D e f en d a n t's business practices, procedures, and strategies; information related to insurance c o v e ra g e ; and additional proprietary information, such as procedural and operations m a te r ia ls , which may interfere with Defendant's ability to conduct business or compromise its competitiveness in the marketplace.  H a v in g considered the parties' Joint Motion for Entry of Protective Order (Doc. No. 1 8 ), and it appearing to the Court that good cause exists under Federal Rule of Civil P r o c e d u re 26(c), the Court orders the following: 1. A n y information (whether in the form of documents, interrogatory responses, d e p o sitio n testimony, or any other form) produced or exchanged by any parties to this action, th ird parties, or any of their attorneys, which a party or third party believes in good faith is o f a confidential nature, specifically: (a) confidential personal information (including, but n o t limited to, private information relating to insurance policy numbers, social security n u m b e rs , drivers' license numbers, home addresses or telephone numbers, claims made under in su ra n c e policies, or financial information); and (b) confidential business or strategic in f o rm a tio n ; including any copy thereof (hereinafter referred to collectively as "the C o n f id e n tia l Information"), shall be treated as confidential and shall not be disclosed except a s provided in this Order; PROVIDED, however, that counsel for the party designating any in f o rm a tio n as confidential may, in writing and without Court approval, agree to release any o f the Confidential Information from the requirements of this Order. 2. A ll Confidential Information produced by or obtained from any other party in th e course of this action, through discovery or otherwise, shall be used by the party to whom s u c h information is produced solely for the purpose of this litigation and for no other purpose a n d shall not otherwise be disclosed to anyone. -2-  3. A party or third party may designate written material as Confidential Information b y marking each page of such material that contains Confidential Information with the legend " C o n f id e n tia l" , or the party may designate material as confidential and subject to the p ro tec tiv e order by stating in response to a discovery request that the document is c o n f id e n tia l and subject to the Protective Order. Wherever it appears that Confidential In f o rm a tio n will be revealed in a deposition taken after the date of this Order, a party may p r o v i s io n a lly designate the material on the record at the time of its disclosure as " C o n f id e n tia l." Upon such designation, the portion of the deposition containing Confidential In f o rm a tio n shall be subject to the terms of this Order. 4. C o n f id e n tial Information shall be produced only to counsel of record in this a c tio n and to the individually named parties to this action, all of whom have agreed to be b o u n d and are bound by the terms of this Order. 5. N e ith e r the Confidential Information nor its contents shall be disclosed to any o th e r person without the agreement of the party or third party designating the information as c o n f id e n tia l, except that counsel may, without further agreement or Court order and except a s provided in the preceding paragraph, disclose the Confidential Information or its contents to the following persons for use solely in connection with this action under the following c o n d i ti o n s : -3-  (a ) A tto rn e ys and legal assistants of counsel's firm and to any other e m p l o ye e s of counsel's firm who shall handle the Confidential Information under n o rm a l office procedure; (b ) (c ) E x p e rts or consultants retained by the parties in this action; A n y person who is an officer, director, or employee of any reproduction o r litigation document handling service whom counsel specifically authorizes to work o n this case; (d ) A n y person from whom testimony is being taken, has been taken or is re a so n a b ly expected to be taken in this action (whether in deposition or at trial), at a re a s o n a b le time before such testimony or during such testimony; (e ) (f ) T h e Court before which this action is pending; and A n y court reporters present in their official capacity at any hearing, d e p o sitio n or other proceeding in this action. 6. E a c h person referred to in subparagraph 5(b) who has been shown or given a c ce ss to Confidential Information, or information derived therefrom, shall sign an u n d e rta k in g stating that he or she has read a copy of this Order and agrees to be bound by its p ro v is io n s , which undertaking shall be retained by counsel for the receiving party who p ro v id e s such material or information to such person. Upon request, a copy of the u n d e rta k in g will be delivered to the opposing counsel after the parties have designated e x p e rts , except that in the case of an expert who has not been designated or has been -4-  c o n su lte d solely in an advisory capacity, the undertaking may be submitted to the Court for in camera review. 7. C o n f id e n tia l Information shall be used solely for the purpose of prosecution or d e f e n se of this action, and such documents and information may be used, consistently with th e terms of this Order, and without limitation, in pretrial discovery and at the trial or p re p a ra tio n for trial and any appeals of this action. 8. T h i s Order has no effect upon, and its scope shall not extend to, any party's use o f its own Confidential Information. 9. P ro d u c in g or receiving materials or otherwise complying with the terms of this O rde r shall not: (a) operate as an admission by any party that any particular discovery m a ter ial contains or reflects any Confidential Information or a trade secret under applicable la w ; or (b) prejudice in any way the rights of any party to object to the production of d o c u m e n ts it considers not subject to discovery or otherwise protected from or limited in d is c o v e ry on the basis of privilege or otherwise; or (c) prejudice in any way the rights of a p a rty to seek a Court determination regarding whether particular discovery materials should b e produced; or (d) prejudice in any way the rights of a party to apply to the Court for any a d d itio n a l protection with respect to the confidentiality of information as that party may c o n sid e r appropriate. 1 0 . T h e confidentiality provisions of this Order shall survive any settlement, jud g m en t or other disposition or conclusion of this action, and all appeals, and this Court -5-  s h a ll retain continuing jurisdiction in order to enforce the terms of this Order. After final re so lu tio n of this action, including all appeals, within 30 days following a written request, a ll Confidential Information and reproductions thereof shall be: either (a) returned to counsel f o r the party or third party who provided the Confidential Information; or (b) destroyed, and c o u n se l for the party receiving the Confidential Information shall sign and provide to C o u n s e l for the party or third party producing the Confidential Information a certification a tte stin g to such destruction. 1 1 . A n y party may at any time and for any reason seek modification of this P ro te c tiv e Order. In the event either party disputes the appropriateness of the other's d e s ig n a tio n of documents as confidential pursuant to this order then the party shall first a ttem p t to resolve the issue with opposing counsel and then, if unsuccessful, may apply to th is Court for an order declaring specific documents to be removed from the protective order a n d no longer treated as confidential. This Protective Order can be modified only by written a g re e m e n t of the parties or by order of this Court. Each party reserves the right to object to an y party's motion or request to modify this Protective Order. D a te d November 19, 2008. B Y THE COURT: s / F.A. Gossett U n ite d States Magistrate Judge -6-