CHERYL R. ZWART, Magistrate Judge.
WHEREAS, discovery in the above-captioned action may involve the production of documents and information which the parties claim to be confidential and the parties desire to pursue discovery with a minimum of delay and expense.
Pursuant to Federal Rules of Civil Procedure and in the interest of efficiency and judicial economy, particularly in the interest of avoiding significant ancillary litigation of discovery issues relating to confidential commercial and/or proprietary information, the undersigned Plaintiffs, Defendant/Third-Party Plaintiff and Third-Party Defendant do hereby stipulate and agree to this protective order and the procedures set forth herein for designating and protecting confidential commercial and/or proprietary information. The Parties stipulate as follows:
1. This Stipulated Protective Order ("Order") shall apply to and govern all depositions, documents, information or things disclosed or produced in response to a party's informal request, requests for production of documents, answers to interrogatories, responses to requests for admissions and all other discovery taken under the Federal Rules of Civil Procedure, and other information which the disclosing party designates as "CONFIDENTIAL," furnished, directly or indirectly, by or on behalf of any party or any non-party in connection with the abovecaptioned litigation.
2. When used in this Order, the phrase "disclosing party" shall refer to the parties to the above-captioned litigation or to non-parties who give testimony or produce documents or other material.
3. When used in this Order, the word "document" encompasses, but is not limited to, any type of document or testimony, including all documents or things described in Federal Rule of Evidence 1001(a)-(e) and/or Rule 34(a)(1)(A) or (B).
4. The disclosing party who designates any material "CONFIDENTIAL" or "CONFIDENTIAL-ATTORNEYS' EYES ONLY" (sometimes referred to herein as a "designating party") bears the burden of establishing the "CONFIDENTIAL" status of such material in any situation in which the designation is at issue, and nothing in this Order shall be construed to alter such burden. The parties enter into and stipulate to this Order without prejudice to the rights of any party to assert or contest the "CONFIDENTIAL" status of any material as set forth below.
5. A disclosing party may designate as "CONFIDENTIAL" any trade secret or other confidential research, development, or commercial information, as such terms are used in Rule 26(c)(1)(G) and any applicable case law interpreting Rule 26(c)(1)(G). In addition, a disclosing party may designate as "CONFIDENTIAL" non-public personal information or other information for which applicable federal or state law requires or allows confidential treatment. A disclosing party may designated information as "CONFIDENTIAL-ATTORNEYS' EYES ONLY" if the designating party reasonably believes that such materials and such information are so confidential that their dissemination should be limited to those persons described in Paragraph 9 below.
6. In designating material as "CONFIDENTIAL" or "CONFIDENTIAL-ATTORNEYS' EYES ONLY," a disclosing party shall make such a designation only as to material which it in good faith believes is confidential.
7. Any party or non-party receiving any non-public material from a disclosing party, regardless of whether such material is designated as "CONFIDENTIAL" or "CONFIDENTIAL-ATTORNEYS' EYES ONLY," shall use that material solely for the purpose of conducting this litigation, pending in the United States District Court for the District of Nebraska, captioned Healthy Companion Corp., et. al v. Raymond L. Cooper v. Daniel Bolton, Case No. 14-cv-3176, and not for any other purpose whatsoever. However, the foregoing shall not limit any party who is also an officer, director, or shareholder in any of the named companies from exercising or fulfilling the legal rights, duties, and obligations attendant to those positions.
8. In the absence of written permission from the disclosing party, or an order of the Court, material designated as "CONFIDENTIAL" may be disclosed only to the following persons:
(a) The attorneys and their support staff working on the above-captioned litigation on behalf of any party;
(b) The named parties, including designated company representatives Dan Bolton and Echo Bell for Plaintiffs and individuals consulting with or advising any party to the above-captioned litigation, stenographic and clerical employees and contractors working under the direct supervision of counsel, all of which shall sign the "ACKNOWLEDGMENT" attached hereto as Exhibit "A;"
(c) Any expert or consultant who is expressly retained by any attorney described in Paragraph 8(a) to assist in the above-captioned litigation, with disclosure only to the extent reasonably necessary to perform such work, which expert or consultant shall sign the "ACKNOWLEDGMENT" attached hereto as
(d) Any fact witness, including named parties, provided, however, that the witness (i) shall be permitted to use any documents marked as "CONFIDENTIAL" only in preparation for and during depositions, hearings and trial, (ii) shall be informed, prior to being shown materials marked as "CONFIDENTIAL" that he/she is being shown such materials solely for use in this litigation and (iii) shall sign the "ACKNOWLEDGMENT" attached hereto as Exhibit "A;"
(e) Any individual who either prepared the document or is identified on the face of the document as an addressee or copy addressee;
(f) Any other person upon order of the Court or upon prior written consent of the disclosing party; and
(g) The Court, jury, court personnel, court reporters, and other persons connected with the Court.
9. In the absence of written permission from the disclosing party, or an order of the Court, material designated as "CONFIDENTIAL-ATTORNEYS' EYES ONLY" may be disclosed only to the following persons:
(a) The attorneys and their support staff working on the above-captioned litigation on behalf of any party;
(b) Any expert or consultant who is expressly retained by any attorney described in Paragraph 8(a) to assist in the above-captioned litigation, with disclosure only to the extent reasonably necessary to perform such work, which expert or consultant shall sign the "ACKNOWLEDGMENT" attached hereto as Exhibit "A;"
(c) Any other person upon order of the Court or upon prior written consent of the disclosing party; and
(d) The Court, jury, court personnel, court reporters, and other persons connected with the Court.
10. The persons described in Paragraphs 8(a)-(f) and 9(a)-(d) shall have access to "CONFIDENTIAL" and/or "CONFIDENTIAL-ATTORNEYS' EYES ONLY" material only after they have been made aware of the provisions of this Order (including, without limitation, Paragraph 7). Counsel shall retain copies of the signed "ACKNOWLEDGMENT" forms until the completion of the above-captioned litigation. Any person receiving "CONFIDENTIAL" and/or "CONFIDENTIAL-ATTORNEYS' EYES ONLY" material is enjoined from disclosing that material to any other person, except in conformance with this Order. The parties shall act in good faith to eliminate, whenever possible, the expenditure of "on the record" time to effectuate or confirm compliance with this Paragraph at any deposition.
11. A list shall be maintained by counsel for the parties hereto of the names of all persons, except for counsel and their support personnel, to whom any "CONFIDENTIAL" and/or "CONFIDENTIAL-ATTORNEYS' EYES ONLY" material is disclosed, or to whom the information contained therein is disclosed. Upon a good faith showing by a party that this Order has been violated, the Court may review such lists if necessary and appropriate to address or resolve the purported violation.
12. This Court shall retain jurisdiction over this Order, including any proceedings relating to performance under or compliance with the Order. Individuals who receive "CONFIDENTIAL" and/or "CONFIDENTIAL-ATTORNEYS' EYES ONLY" material shall be subject to this Order and to the jurisdiction of this Court concerning this Order.
13. The recipient of any "CONFIDENTIAL" and/or "CONFIDENTIAL-ATTORNEYS' EYES ONLY" material that is provided under this Order shall maintain such material in a secure and safe area and shall exercise the same standard of due and proper care with respect to the storage, custody, use and/or dissemination of such material as is exercised by the recipient with respect to its own proprietary material. "CONFIDENTIAL" material shall not be copied, reproduced, summarized, extracted or abstracted, except to the extent that such copying, reproduction, summarization, extraction or abstraction is reasonably necessary for the conduct of this lawsuit. All such copies, reproductions, summarizations, extractions, and abstractions shall be subject to the terms of the Order and labeled in the same manner as the designated material on which they are based.
14. Disclosing parties shall designate "CONFIDENTIAL" and/or "CONFIDENTIAL-ATTORNEYS' EYES ONLY" material as follows:
Nothing in this Order shall alter the burden on the disclosing party to establish the "CONFIDENTIAL" and/or "CONFIDENTIAL-ATTORNEYS' EYES ONLY" status of information it has so designated.
16. Documents containing "CONFIDENTIAL" and/or "CONFIDENTIAL-ATTORNEYS' EYES ONLY" material shall not be filed with the Court unless the filing party reasonably believes it is necessary to do so for purposes of trial, motions (including without limitation, motions for preliminary injunction or summary judgment) or other Court matters. A party seeking to file "CONFIDENTIAL" and/or "CONFIDENTIAL-ATTORNEYS' EYES ONLY" material must follow the procedures set forth in NECivR 7.5 or NECivR 5.3(c) so that they are filed under seal or with restricted access.
17. In the event that any "CONFIDENTIAL" and/or "CONFIDENTIAL-ATTORNEYS' EYES ONLY" material is used in any Court proceeding in connection with this litigation, it shall not lose its "CONFIDENTIAL" and/or "CONFIDENTIAL-ATTORNEYS' EYES ONLY" status through such use, and the parties shall take all steps reasonably required to protect its confidentiality during such use. In particular, while a motion to seal is pending and before the Court has ruled, no party shall make use in open court of any documents that are subject to that motion to seal without the consent of the designating party or the permission of the Court.
18. If "CONFIDENTIAL" and/or "CONFIDENTIAL-ATTORNEYS' EYES ONLY" material is disclosed to any person other than in the manner authorized by this Order, the person or party responsible for the disclosure must seasonably bring all pertinent facts relating to such disclosure to the attention of all attorneys of record in the above-captioned action and, without prejudice to any other rights and remedies of the parties or non-parties, make every effort to prevent further disclosure by it or by the person who was the recipient of such material.
19. Nothing in this Order shall preclude any parties or non-parties to the lawsuit or their attorneys (a) from showing a document or part of a document designated as "CONFIDENTIAL" and/or "CONFIDENTIAL-ATTORNEYS' EYES ONLY" to an individual who either prepared the document or is identified on the face of the document as an addressee or copy addressee, or (b) from disclosing or using, in any manner or for any purpose, any material or documents from the disclosing party's own files which the disclosing party itself has designated as "CONFIDENTIAL and/or "CONFIDENTIAL-ATTORNEYS' EYES ONLY"."
20. In the event any receiving party having possession, custody or control of any "CONFIDENTIAL" and/or "CONFIDENTIAL-ATTORNEYS' EYES ONLY" material receives a subpoena, request for production of documents, or other process or order to produce such material in another, unrelated legal proceeding, from a non-party to the above-captioned litigation, such receiving party shall:
The disclosing party asserting the "CONFIDENTIAL" and/or "CONFIDENTIAL-ATTORNEYS' EYES ONLY" treatment shall have the burden of defending against such subpoena, process or order. The party receiving the subpoena, request for production of documents, or other process or order shall be entitled to comply with it except to the extent the disclosing party asserting the "CONFIDENTIAL" and/or "CONFIDENTIAL-ATTORNEYS' EYES ONLY" treatment is successful in obtaining an order modifying or quashing the subpoena, request for production of documents, or other process or order, provided, however, that the party receiving the subpoena, request for production of documents, or other process shall await the disposition of any motion to quash or motion for a protective order timely filed by the disclosing party before producing any "CONFIDENTIAL" and/or "CONFIDENTIAL-ATTORNEYS' EYES ONLY" information in response to the subpoena, request for production of documents, or other process or order unless a court orders compliance with the subpoena, request for production or other process, or unless awaiting the disposition of any motion to quash or motion for protective order may subject the party receiving the discovery request to sanctions or being held in contempt of court.
21. The inadvertent production in the course of discovery in the above-captioned litigation of any documents or material (whether designated as "CONFIDENTIAL" and/or "CONFIDENTIAL-ATTORNEYS' EYES ONLY" or not) shall not be deemed to waive whatever attorney client privilege, work product protection or other privilege or immunity that would otherwise attach to those documents or material produced or to other documents or material, so long as the disclosing party notifies the other party or parties of the claim of privilege or other protection or immunity. Upon receipt of such notice, all other parties shall (regardless of whether they agree with the disclosing party's claim of privilege or protection) promptly:
22. The parties shall comply with their ethical and legal obligations concerning the actual or apparent inadvertent production of privileged or protected information, including by notifying promptly a disclosing party when appropriate.
23. Within sixty (60) days of the termination of litigation between the parties, including final appellate action or the expiration of time to appeal or seek further review, all "CONFIDENTIAL" and/or "CONFIDENTIAL-ATTORNEYS' EYES ONLY" material produced by a disclosing party, and all copies thereof, shall (at the request of the disclosing party) be returned to the disclosing party or destroyed. If destroyed, counsel shall certify the destruction and provide a copy of the certification to the disclosing party. Counsel for each disclosing party shall be entitled to retain all pleadings, motion papers, other court filings (excluding materials designated as "CONFIDENTIAL" and/or "CONFIDENTIAL-ATTORNEYS' EYES ONLY"), legal memoranda, correspondence and work product.
24. Except as specifically provided herein, the terms, conditions, and limitations of this Order shall survive the termination of the above-captioned litigation.
25. This Order is without prejudice to the right of any party or non-party to seek relief from the Court from any of the provisions contained herein.
26. This Order shall not be construed as waiving any right to assert a claim of privilege, relevance, overbreadth, burdensomeness or other grounds for not producing material called for, and access to all material (whether designated as "CONFIDENTIAL" and/or "CONFIDENTIAL-ATTORNEYS' EYES ONLY" or not) shall be only as provided by the discovery rules and other applicable law.
27. The parties will abide by all Court orders and statutory provisions (including applicable law and/or court orders concerning such provisions) concerning the eligibility of each party to receive documents or other material through discovery. Any party that is eligible to receive such documents or material shall not provide any documents or material, or information that is contained in or derived from such documents or material, to any other party unless the other party also is eligible to receive such documents or material. Nothing in this Paragraph, however, shall be read to prevent the parties from filing documents in support of or in opposition to motions in this Court.
I, _________________________, do hereby acknowledge that I have received and read a copy of the attached Stipulated Protective Order, and I agree to be bound by the terms of the Order, and to be subject to the jurisdiction of this Court for enforcement of all terms of the Order and for judicial action for any violation of the Order.
