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Farmers Edge Inc. v. Farmobile, LLC

United States District Court, D. Nebraska

October 24, 2016

FARMERS EDGE INC., FARMERS EDGE U.S. INC., and FARMERS EDGE U.S. LLC, Plaintiffs,
v.
FARMOBILE, LLC, JASON G. TATGE, HEATH GARRETT GERLOCK, and RANDALL THOMAS NUSS, Defendants.

          STIPULATED PROTECTIVE ORDER

          Thomas D. Thalken, United States Magistrate Judge.

         This matter is before the court on the parties' Stipulation and Joint Motion for Protective Order and ESI Protocol Governing the Disclosure and Use of Discovery Materials (Filing No. 76). The parties' stipulation is adopted as set forth herein.

         1. As used in the Protective Order, these terms have the following meanings:

a. “Action” means the instant litigation, Farmers Edge Inc. et al. v. Farmobile, LLC, et al., Case No. 8:16-CV-00191-TDT (D. Neb.);
b. “Party” means any party to this Action, including all of its officers, directors, employees, consultants, investors, trustees, authorized agents, Experts, House Counsel, and Outside Counsel (and their respective support staffs);
c. “Disclosure” or “Discovery Material” means all items or information, regardless of the medium or manner generated, stored, or maintained (including, among other things, testimony, transcripts, or tangible things) that are produced or generated in disclosures or responses to discovery under the Federal Rules of Civil Procedure in this matter;
d. “Producing Party” means any Party or non-party who discloses or produces Disclosure or Discovery Material in the Action;
e. “Designating Party” is a party or non-party that designates Disclosure or Discovery Material as “CONFIDENTIAL, ” “CONFIDENTIAL - ATTORNEYS' EYES ONLY” or “CONFIDENTIAL SOURCE CODE - ATTORNEYS' EYES ONLY” pursuant to this Protective Order;
f. “Document(s)” or “document(s)” are all materials within the scope of Fed.R.Civ.P. 34;
g. “Protected Material” means any Disclosure or Discovery Materials that is designated as “CONFIDENTIAL, ” “CONFIDENTIAL - ATTORNEYS' EYES ONLY” or “CONFIDENTIAL SOURCE CODE - ATTORNEYS' EYES ONLY” pursuant to this Protective Order;
h. “Receiving Party” is a party or person that receives documents or information designated as “CONFIDENTIAL, ” “CONFIDENTIAL - ATTORNEYS' EYES ONLY” or “CONFIDENTIAL SOURCE CODE - ATTORNEYS' EYES ONLY” pursuant to this Protective Order; and
i. “Written Assurance” means an executed document in the form attached as Exhibit A.

         2. This Order shall be applicable to and govern without limitation, all information, documents, testimony and/or things, or portions thereof, subject to discovery in this action, which contain non-public information that is, confidential and/or proprietary information and/or trade secret information designated pursuant to the terms of this Order, as well as any secondary material, such as pleadings, written discovery, expert reports, notes, summaries or any other materials that contain and/or describe with particularity such information. Such materials in this case shall be used exclusively for litigating the disputes in this action and not in any other matter.

         3. Any Producing Party may designate Disclosure or Discovery Material as “CONFIDENTIAL, ” “CONFIDENTIAL - ATTORNEYS' EYES ONLY” or “CONFIDENTIAL SOURCE CODE - ATTORNEYS' EYES ONLY” as long as it meets the requirements for the designations as described below. A Receiving Party actually accessing materials designated “CONFIDENTIAL, ” “CONFIDENTIAL - ATTORNEYS' EYES ONLY” or “CONFIDENTIAL SOURCE CODE - ATTORNEYS' EYES ONLY” shall use such materials, and all information obtained therefrom, solely for the purpose of this litigation, unless the Receiving Party independently acquires such information independently from the designated materials in this action.

         4. “The “CONFIDENTIAL” designation is reserved for information (regardless of how generated, stored, or maintained) or tangible things that may be protected under Federal Rule of Civil Procedure 26(c), including information that a Designating Party believes to be of a confidential and/or proprietary business or technical nature and not readily available to competitors, potential competitors, and/or other third parties, or otherwise subject to a condition of confidentiality.

         5. Disclosure of “CONFIDENTIAL” Information or Items. Unless otherwise ordered by the Court or permitted in writing by the Designating Party, a Receiving Party may disclose any information or item designated “CONFIDENTIAL” only to:

a. the Receiving Party's outside counsel, their staff, and their litigation support personnel and businesses including consultants and translators, commercial litigation support service vendors, provided such vendors are subject to conditions of confidentiality in connection with material designated under this Protective Order;
b. any testifying expert or non-testifying expert consultant whom the Receiving Party retains to assist in the Actions, provided that disclosure is only to the extent necessary to perform such work, and provided that: (a) such person has executed an “Written Assurance” in the form attached as Exhibit A, agreeing to be bound by the terms of this Protective Order, and (b) in the event the notice of the expert is required under this Protective Order, no unresolved objections to such disclosure exist after such notice has occurred;
c. any persons who: (a) appear on the face of the designated CONFIDENTIAL material as an author, addressee, or recipient thereof, or (b) are witnesses during a court hearing, or trial where specific documentary or testimonial evidence or other circumstances establishes that the designated CONFIDENTIAL material was authored or received by the witness or that the witness previously had authorized access to the information;
d. court reporters and their staff, as well as graphics, translation, design and/or trial consultants (“Professional Vendors”)), and/or mock jurors to whom disclosure is reasonably necessary for the Actions and who have signed the acknowledgement form attached as Exhibit A. Signature of the acknowledgement form attached as Exhibit A by an authorized representative of a Professional Vendor will be construed to encompass all employees of the Professional Vendor;
e. the Court, jury, and court personnel;
f. any other person with the prior written consent of the Producing Party; and
g. any mediator or settlement officer who is assigned to hear this matter, and his or her staff.

         6. The “CONFIDENTIAL - ATTORNEYS' EYES ONLY” designation is reserved for Protected Material that constitutes or contains trade secrets or other non-public, highly sensitive confidential research, development, technical, business operations, and/or financial information that has not become public, the disclosure of which is likely to cause harm to the competitive position of the producing party; Protected Material obtained from a non-party pursuant to a current Nondisclosure Agreement (“NDA”); and settlement agreements, the disclosure of which is likely to cause harm to the competitive position of the producing party. In determining whether information should be designated as “CONFIDENTIAL - ATTORNEYS' EYES ONLY, ” each party agrees to use such designation only in good faith.

         7. Unless otherwise ordered by the Court or permitted in writing by the Designating Party, a Receiving Party may disclose any information or item designated “CONFIDENTIAL-ATTORNEYS' EYES ONLY” only to:

a. the Receiving Party's outside counsel, their staff, and their litigation support personnel and businesses including consultants and translators, commercial litigation support service vendors, provided such vendors are subject to conditions of confidentiality in connection with material designated under this Protective Order;
b. any testifying expert or non-testifying expert consultant whom the Receiving Party retains to assist in the Actions, provided that disclosure is only to the extent necessary to perform such work, and provided that: (a) such person has executed an “Written Assurance” in the form attached as Exhibit A, agreeing to be bound by the terms of this Protective Order, and (b) in the event the notice of the expert is required under ...

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