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Affiliated Foods Midwest Cooperative, Inc. v. Supervalu Inc.

United States District Court, D. Nebraska

October 6, 2017

AFFILIATED FOODS MIDWEST COOPERATIVE, INC., a Nebraska corporation, and ASSOCIATED WHOLESALE GROCERS, INC., Plaintiffs,
v.
SUPERVALU INC., a Delaware corporation, Defendant. BOROWIAK IGA FOODLINER, INC., Plaintiff,
v.
AFFILIATED FOODS MIDWEST COOPERATIVE, INC., and ASSOCIATED WHOLESALE GROCERS, INC., Defendants, Third-party Plaintiffs, and Counter-Plaintiffs,
v.
TREVOR BOROWIAK, Third-party Defendant.

          PROTECTIVE ORDER

          MICHAEL D. NELSON UNITED STATES MAGISTRATE JUDGE.

         This matter comes before the Court upon the parties' request for the entry of a Protective Order in the above-captioned cases. The parties attempted to agree upon a Stipulated Protective Order, but could not reach an agreement about the inclusion of an “Attorney Eyes Only” (AEO) provision. (See Filing No. 76 in Case No. 8:16CV466). Upon the motion request of the Lead Plaintiff, the undersigned magistrate judge held an in chambers conference on October 6, 2017, with counsel for all parties to resolve the dispute. The Court received email submissions from the parties in advance of the hearing.

         At the hearing, counsel for Lead Plaintiff and counsel for SuperValu agreed to the entry of SuperValu's proposed Protective Order. Counsel for AFM/AWG opposes entry of SuperValu's proposed Protective Order, and requests that any Protective Order include an AEO provision. Having heard the arguments of counsel, and after review of the parties' submissions, the Court finds the entry of SuperValu's proposed Protective Order is reasonable under the circumstances. Based on the information provided to the Court, paragraph 18 of SuperValu's proposed progression order adequately addresses the concerns raised by AFM/AWG. The Court therefore adopts SuperValu's proposed Protective Order. Accordingly, IT IS HEREBY ORDERED as follows:

         1. Documents or information have been and may be requested, produced, or used as an exhibit in this matter, which contain valuable trade secrets, confidential materials, and other proprietary information (hereafter, “Confidential Information”).

         2. To protect such Confidential Information, the parties may designate as “Confidential” any document(s) produced, or information provided, in response to a discovery request. The designation shall be completed in one of the following manners:

a. By imprinting the word “Confidential” on the front of the document or on the label or cover for any compact disc or flash drive containing Confidential Information;
b. By imprinting the word “Confidential” next to or above any answer to any written discovery response; or
c. With respect to deposition transcripts and videos, by making arrangements with the attending court reporter to label such transcripts and videos as “Confidential.”

         3. All documents and information designated as “Confidential” shall be used only for the purpose of this litigation and not for any other purposes whatsoever. In addition, such documents and information shall be furnished and handled solely in accordance with this Protective Order or subsequent order of the Court.

         4. All documents and information designated as “Confidential” (including, but not limited to, any information or testimony discussing, derived from, or referring to such documents or information), shall not be communicated, disclosed, or produced in any manner, either directly or indirectly, to anyone other than:

a. The attorneys of record in this case and their office employees;
b. The parties in this case, including their officers and employees, who have a need to know for purposes of reviewing the specific documents and/or information for the purpose of providing input and who are actively engaging in the prosecution or the defense of this litigation and who has, prior to the disclosure of such documents or information marked as “Confidential, ” agreed to be bound by the terms of this Protective Order by executing the Nondisclosure Agreement attached hereto as Exhibit “A”;
c. Outside consulting and retained experts who have, prior to the disclosure of any documents or information marked as “Confidential, ” agreed to be bound by the terms of this Protective Order by executing the Nondisclosure Agreement attached hereto as Exhibit “A”;
d. Any fact witness who is reasonably deemed by counsel to have a need to review the specific documents and/or information for the purpose of proving input and who is actively engaging in the prosecution or the defense of this litigation and who has, prior to the disclosure of such documents or information marked as “Confidential, ” agreed to be bound by the terms of this ...

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