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Aurora Cooperative Elevator Co. v. Aventine Renewable Energy-Aurora West, LLC

United States District Court, Eighth Circuit

June 26, 2013



CHERYL R. ZWART, Magistrate Judge.

Pursuant to the parties' Joint Motion for Entry of Protective Order (Filing No. 54 0208_), it is hereby ORDERED as follows:

1. Materials Deemed Confidential. If a party or an attorney for a party has a good faith belief that certain documents, transcripts, or other materials or information (including digital information) subject to disclosure pursuant to a discovery request or other request are confidential and should not be disclosed other than in connection with this action pursuant to Rule 26(c) of the Federal Rules of Civil Procedure, the party or attorney shall mark each such document or other materials as "CONFIDENTIAL." A party may designate as "CONFIDENTIAL" materials produced or disclosed by any other party or third party.

2. Materials For Attorneys' Eyes Only. Counsel for a disclosing party may further designate such "CONFIDENTIAL" materials as for "ATTORNEYS' EYES ONLY" if such counsel concludes that the material constitutes or contains non-public information that is highly personal in nature or is competitively sensitive and proprietary to the producing party, or from which competitively sensitive and proprietary information belonging to a producing party could be derived. Material designated as "ATTORNEYS' EYES ONLY" may not be disclosed to the parties, and in all other respects shall be treated as "CONFIDENTIAL" material under this Protective Order.

3. Designation by Third Parties. A copy of this Protective Order shall be served with a subpoena or Notice of Deposition on each third party. A third party may designate a document as "CONFIDENTIAL" pursuant to this Order by stamping it with such notice prior to production or so identifying it on the record during the deposition of that third party. Either party may also designate documents produced by a third party as being "Confidential" pursuant to the terms of this Order within thirty (30) days of being made aware of the content of such documents. Any document produced by a third party shall be treated as "CONFIDENTIAL" pursuant to the terms of this Order for such thirty (30) day period and thereafter if designated as "CONFIDENTIAL" by either party or by the third party who produces it. The "CONFIDENTIAL" restrictions of this Order shall no longer apply to any document produced by a third party that has not been designated as "CONFIDENTIAL" by the third party or by a party within such thirty (30) day period.

4. Redesignation of Materials as Confidential or for Attorney's Eyes Only. In the event a producing party inadvertently omits to designate materials as "CONFIDENTIAL" and/or for "ATTORNEYS' EYES ONLY, " such omission shall not be deemed a waiver of its entitlement to do so if the producing party notifies all other parties of the omission promptly after discovering the omission, and provides the receiving party with replacement copies of the documents or things bearing the appropriate designation. Upon receipt of the replacement copies, the receiving party shall retrieve and return or destroy all copies of the previously produced documents or materials.

5. Inadvertent Disclosure. The following procedures shall govern instances in which a party or third-party has inadvertently produced or disclosed materials for which any privilege or protection is claimed, including but not limited to the attorney-client privilege or work-product protection:

a. The disclosing party must notify the receiving party promptly, in writing or on the record, upon discovery that a document has been inadvertently produced. Upon receiving written notice from the disclosing party that privileged and/or work-product material has been inadvertently produced, all such information, and all copies thereof, shall be returned to the disclosing party or destroyed within five business days of receipt of such notice and the receiving party shall not use such information for any purpose, until further order of the Court. The receiving party shall also attempt, in good faith, to retrieve and return or destroy all copies of the document in electronic format, and shall provide the disclosing party with written notice that all copies of the document have been returned or destroyed. If the receiving party intends to file a motion under paragraph S(b), below, it may maintain a copy of the document for purposes of filing such a motion.
b. If the receiving party, after notice of such inadvertent disclosure as set forth above in paragraph Sa, contests the privilege or work-product designation by the disclosing party, it shall file a motion to compel production of the document or information. The receiving party shall not assert the disclosure as a ground for compelling production unless it is asserted that any such privilege was knowingly and intentionally waived.
c. The disclosing party retains the burden of establishing the privileged or protected nature of any document or information that is claimed as privileged or otherwise protected. Nothing in this paragraph shall limit the right of any party to petition the Court for an in camera review of such documents or information.
d. Upon notification of inadvertent disclosure from the disclosing party, the receiving party shall place any analyses, memoranda, or notes which were internally generated based upon such inadvertently-produced information in sealed envelopes if in hard copy form or shall segregate such analyses, memoranda, or notes if in electronic form.
e. Pursuant to Rule 502 of the Federal Rules of Evidence, absent a ruling by the Court that the disclosed information is not privileged or otherwise protected, the inadvertent disclosure of the information shall not be deemed a waiver or impairment of any claim of privilege or protection, including, but not limited to, the attorney-client privilege or the protection afforded to work-product materials or the subject matter thereof, as to the inadvertently disclosed document or information and any related material, and such documents and information shall be destroyed or returned to the producing party.

6. Challenging Designation of Confidentiality. If a party or an attorney for a party disputes the propriety of a confidentiality designation, the parties and/or attorneys shall attempt to resolve the dispute between themselves. If they are unsuccessful, the challenging party may file an appropriate motion. The challenging party and its attorneys shall nevertheless treat the documents or information as "confidential" until such time as this Court rules on the motion. Any use of a document or information by either party in connection with this lawsuit prior to the filing of such a motion will not be deemed a waiver of the right to request designation of the document as confidential. In addition, a party does not waive its right to challenge a confidentiality designation by electing not to mount a challenge at the time a designation is made and is not precluded from making a subsequent challenge thereto during the pendency of this litigation.

7. Distribution of Confidential Materials. No party or attorney or other person subject to this Protective Order shall distribute, transmit, or otherwise divulge any document or other material marked "CONFIDENTIAL, " or the ...

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