United States District Court, D. Nebraska
Terry R. Wittler (NE# 15584) Richard P. Garden (NE# 17685) Kevin J. Schneider (NE# 18898) Andre R. Barry CLINE WILLIAMS WRIGHT JOHNSON & OLDFATHER, L.L.P., Lincoln, NE, William G. Dittrick (NE# 11024) Allison D. Balus (NE# 23270) BAIRD HOLM LLP, Omaha, NE, Nancy Chung (admitted pro hac vice) Christopher M. Egleson (admitted pro hac vice) AKIN GUMP STRAUSS HAUER & FELD LLP, New York, New York, Attorneys for Defendants AVENTINE RENEWABLE ENERGY-AURORA WEST, LLC and AVENTINE RENEWABLE ENERGY HOLDINGS, INC.
JOINT STIPULATED PROTECTIVE ORDER REGARDING INSPECTION OF THE AURORA WEST ETHANOL PLANT BY PLAINTIFF'S EXPERT WITNESSES
CHERYL R. ZWART, Magistrate Judge.
Plaintiff, Aurora Cooperative Elevator Company, and Defendants, Aventine Renewable Energy Holdings, Inc., et al. ("Aventine" or "Defendants"), hereby jointly stipulate and request that the Court enter this Protective Order ("Protective Order") pursuant to Fed.R.Civ.P. 26(c), regarding the inspection by Plaintiff's expert witnesses, Mick Miller and Jason Jerke of Energetix, of the Aurora West Ethanol Plant (the "Plant"). As agreed by the parties, the inspection shall be subject to the following limitations and obligations:
1. On January 15, 2014, Plaintiff issued a notice of inspection of the Plant, and on January 16, 2014 filed its motion for leave to inspect the Plant on an expedited basis. In its motion, Plaintiff requested an inspection by their expert witnesses of the Plant on Thursday, January 23, 2014. Defendants objected to their request on timeliness and other grounds, but this Court ordered the parties to "cooperate to schedule the prompt inspection of the plant by the plaintiff...." (Filing No. 111). In accordance with this Order, the parties cooperated to schedule the inspection for Saturday, January 25, 2014. Plaintiff shall be represented during the inspection by only its experts, Mick Miller and Jason Jerke, and two attorneys representing Plaintiff. Any video camera used by Plaintiff's representatives shall be a hand-held model without external electrical power lines. Aurora Co-op's representatives will not use cameras capable of transmitting videos, during the inspection. Cameras capable of transmitting videos via wireless, such as cell phones, will not be allowed in operating areas during the inspection, per Defendants' company policy. Such inspection shall be made between 9:15 a.m. to 4:00 p.m.
2. Plaintiff's counsel and experts shall be accompanied by a representative of Aventine at all times during the inspection.
3. Plaintiff's counsel and experts shall wear any personal protective equipment that Aventine directs and shall participate in any reasonable safety training prior to the inspection. Plaintiff's counsel and experts shall also comply with any and all safety policies or practices of the plants, as directed by Aventine's representatives who will accompany Plaintiff's team.
4. Plaintiff's inspection and videotaping/photographing will not be conducted in any manner that will impede or interfere with the operations and activities of Aventine or the privacy of Aventine's employees. Only one area of the Plant will be designated for inspection at any one time. During the inspection Plaintiff's counsel and experts may not divide up and visit different areas of the Plant at different times. Plaintiff's counsel and experts shall not communicate with any of Defendants' employees or the representatives that accompany Plaintiff's team outside the presence of Defendants' counsel. All questions must be directed to Defendants' counsel, who will accompany Plaintiff's team during the inspection. The video camera shall be turned off when counsel (or parties in the presence of counsel) confer on any matter regarding the inspection.
5. Plaintiff's counsel and experts shall inspect and videotape/photograph only those portions of the Plant that are relevant to this lawsuit, i.e. those areas of the plant involved in the production of ethanol. Defendants' consent to the inspection of the following or any areas or items at the plant during the inspection does not constitute an admission as to the relevancy or admissibility of such areas or items. A walk-through of the plant for external inspection purposes is limited to the following areas or items requested by Plaintiff:
a. Grain receiving
b. Grind (hammer mills and flour conveying)
c. Cook (slurry, liquefaction, enzymes storage/application, mash coolers)
d. Yeast propagation