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Vap v. Big Iron, Inc.

United States District Court, D. Nebraska

August 25, 2016

ROY VAP and CON MUELLER, Plaintiffs,
v.
BIG IRON, INC., Defendant.

          PROTECTIVE ORDER

          Thomas D. Thalken United States Magistrate Judge

         The matter comes before the court on the defendant's Unopposed Motion for Protective Order (Filing No. 33). The parties in this action agree, and it is hereby ordered, that this Protective Order shall govern the use and dissemination of all information, documents, or materials that are produced by the parties and designated as Confidential.

         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.” Documents marked as “CONFIDENTIAL” shall mean documents which contain personal information regarding employees and ISRs other than Plaintiffs, customer information, confidential or proprietary business information and/or trade secrets. A party may designate as “CONFIDENTIAL” materials produced or disclosed by any other party or third party. Nothing in this section shall be construed as an agreement by the receiving party that any designation of material as “CONFIDENTIAL” is appropriate and nothing herein shall prevent a receiving party from challenging any such designation.

         2. Materials For Attorneys' Eyes Only.

         Counsel for a producing 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 and/or constitutes Trade Secrets (as defined by Nebraska Law) of the producing party, or from which competitively sensitive and proprietary and or Trade Secret information belonging to a producing party could be derived. Material designated as “ATTORNEYS' EYES ONLY” may not be disclosed to anyone other than counsel of record for the parties, and in all other respects shall be treated as “CONFIDENTIAL” material under this Protective Order. Nothing in this section shall be construed as an agreement by the receiving party that any designation of material as “ATTORNEYS' EYES ONLY” is appropriate and nothing herein shall prevent a receiving party from challenging any such designation.

         3. Designation by Third Parties.

         A copy of this Protective Order shall be served with any subpoena on a 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. Nothing in this section shall be construed as an agreement by the receiving party that any designation of material as “CONFIDENTIAL” is appropriate and nothing herein shall prevent a receiving party from challenging any such designation.

         4. Re-designation 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 producing 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 producing party that privileged and/or work-product material has been inadvertently produced, all such information, and all copies thereof, shall be returned to the producing 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 producing 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 5(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 5a, contests the privilege or work-product designation by the producing 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 producing 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 ...

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