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Jacobs v. Fareportal, Inc.

United States District Court, D. Nebraska

December 13, 2017

IAN V. JACOBS, Plaintiff,
v.
FAREPORTAL, INC., Defendant.

          John P. Passarelli Nebraska State Bar No. 16018 Carol A. Svolos Nebraska State Bar No. 24731 KUTAK ROCK, LLP and m Jacob B. Kring (Pro Hac Vice Pending) Texas State Bar No. 24062831 Britton D. McClung (Pro Hac Vice Pending) Texas State Bar No. 24060248 Laura M. Fontaine (Pro Hac Vice Pending) Texas State Bar No. 24065239 HEDRICK KRING, PLLC ATTORNEYS FOR PLAINTIFF

          Michael T. Hilgers Nebraska State Bar No: 24483 HILGERS GRABEN PLLC Eleanor M. Lackman (Pro Hac Vice Pending) New York State Bar No. 4219598 COWAN, DEBAETS, ABRAHAMS & SHEPPARD LLP ATTORNEYS FOR DEFENDANT

          STIPULATED PROTECTIVE ORDER

          Cheryl R. Zwart, United States Magistrate Judge.

         The parties, through their undersigned counsel, stipulate and agree that an order is necessary to protect the confidentiality of information and items obtained in the course of discovery in this Action. The following Stipulated Protective Order (“Protective Order”) is entered:

         I.

         Definitions

         (a) “Party” or “Parties” means any or all parties to this Action, and any Party's parents, subsidiaries, divisions, branches, affiliates, predecessors or successors-in-interest, marital or domestic partner (if any), heirs, and permitted assigns.

         (b) “Non-Party” means any entity or person that is not a Party.

         (c) “Disclosing Party” means a Party or Non-Party producing or disclosing any Protected Information during the course of this Action.

         (d) “Receiving Party” means any Party to which Protected Information is produced or disclosed, whether voluntarily or in response to formal or informal discovery requests, subpoenas, deposition notices, or court orders by any Disclosing Party in this Action.

         (e) “Consultant” or “Consultants” means any or all persons retained by a Party in connection with this Action, including experts, trial preparation consultants, and jury consultants, but not employed by that Party. Consultants shall be limited to such persons as, in the judgment of that Party's counsel, are reasonably necessary for the development and/or presentation of that Party's case.

         (f) “CONFIDENTIAL INFORMATION” means documents, materials and information which contain confidential, proprietary, personal, or sensitive information that is not generally known, and which the Disclosing Party would not normally reveal to third parties or would cause third parties to maintain in confidence, or documents or information that, if released publicly, would cause embarrassment or damage to reputation.

         (g) “ATTORNEYS' EYES ONLY INFORMATION” or “HIGHLY CONFIDENTIAL INFORMATION” means any information or item, regardless of the medium or manner in which it is generated, stored, or maintained, that the Disclosing Party or Non-Party believes in good faith to be so commercially sensitive or confidential that disclosure to persons other than those authorized by this Protective Order would have the effect of causing harm to the competitive commercial position of the Disclosing Party or Non-Party making the designation. By way of example and not limitation, the following categories of information meet the definition of ATTORNEYS' EYES ONLY INFORMATION or HIGHLY CONFIDENTIAL INFORMATION: (1) documents containing confidential customer information; (2) confidential business records, plans and information, including, marketing and pricing strategies; (3) tax, sales, and/or other financial records, plans and information; (4) trade secrets; (5) software codes.

         (h) “Protected Information” means any CONFIDENTIAL INFORMATION or ATTORNEYS' EYES ONLY/HIGHLY CONFIDENTIAL INFORMATION designated by a Party or Non-Party in accordance with this Protective Order.

         (i) “Documents” shall have the broadest meaning permissible under the Federal Rules of Civil Procedure and shall include, without limitation, all “writings, ” “records, ” and “photographs” as defined in Rule 1001 of the Federal Rules of Evidence, and any electronically stored information.

         (j) “Action” shall mean the instant case captioned Ian V. Jacobs v. Fareportal, Inc., Civil Action No. 8:17-CV-00362, in the United States District Court for the District of Nebraska.

         II.

         Scope of Protective Order

         This Protective Order governs the handling of all Protected Information produced or disclosed by a Disclosing Party or Non-Party to a Receiving Party, regardless of the medium or manner in which the information is generated, stored, or maintained (including, among other things, documents, transcripts, interrogatory responses, responses to requests for admissions, declarations, exhibits, and briefs, or portions of such materials). This Protective Order also applies to any Receiving Party generated note, index, chart or spreadsheet made with regard to Protected Information.

         This Protective Order does not cover the following information or items: (a) any information or items that are in the public domain at the time of disclosure or that become part of the public domain after their disclosure as a result of publication not involving a violation of this Protective Order, including information or items that become part of the public record through trial and (b) any information or items known to the Receiving Party prior to disclosure or obtained by the Receiving Party after disclosure from a source who obtained the information lawfully, not in violation of this Protective Order, and under no other obligation of confidentiality to the Disclosing Party.

         III.

         Use of Protected Information

         All Protected Information will be used solely for the purposes of preparation, trial, and appeal of this Action ONLY, or any settlement negotiations relating to this Action ONLY, and for no other purpose. Protected Information may not be used by the Receiving Party in any other legal or administrative proceeding or disclosed to any governmental office absent further order of the Court or written consent of the Disclosing Party.

         IV.

         Designation of Protected Information

         Any Party or Non-Party may, in good faith, designate any non-public information or items as Protected Information in the following manner:

         (a) Documents. Documents will be designated as Protected Information by stamping them as “CONFIDENTIAL, ” “ATTORNEYS' EYES ONLY” or “HIGHLY CONFIDENTIAL” legend on each page containing Protected Information; where it is not feasible to place a legend on each page (which the Parties recognize may be the case with certain documents, such as certain electronically stored information, including, but not limited to, data produced in native format such as Excel documents), by specifying in writing, by Bates number or otherwise, which information is to be designated as Protected Information and physically affixing the appropriate legend on the hard drive, DVD, CD, or other media on which such information is produced, if applicable, or by clearly designating documents as Protected Information in a separate statement.

         (b) Transcripts. Information disclosed or documents referred to at the deposition or other pretrial testimony of any witnesses, including a Party or Non-Party or one of its present or former officers, directors, employees, agents, or independent experts, may be designated by any Party or Non-Party as “CONFIDENTIAL” or “ATTORNEYS' EYES ONLY, ” by indicating on the record to the other Party which pages, page or portions of a page of a deposition transcript contain such information, as applicable (including exhibits). The Party or Non-Party wishing to designate such material as “CONFIDENTIAL” or “ATTORNEYS' EYES ONLY” may also do so pursuant to a written letter served within thirty (30) days after receipt of the final (not draft) transcript. Until such time as that designation is made or the thirty (30) days expires, the whole transcript (including any drafts) and all documents and exhibits referred to therein, and/or attached thereto, shall be deemed “ATTORNEYS' EYES ONLY.” At the expiration of the 30-day period, any designations made on the record or by letter shall control, subject to a Party's right to contest them as provided in paragraph XII, below. In addition, the applicable legend shall be placed on the front of the original deposition transcript and each copy of the transcript containing Protected Information, together with a legend stating, “Designated parts not to be used, copied or disclosed except as authorized by Court Order.” The applicable legend shall also be placed on each page of the transcript that contains such Protected Information. If all or part of a videotaped deposition is designated as Protected Information, the videocassette, other videotape container, or DVD shall be labeled with the applicable legend(s). The Parties may modify this procedure for any particular deposition or proceeding through agreement on the record at such deposition or proceeding or otherwise by written stipulation, without approval of the Court.

         (c) Things. Things will be designated as Protected Information by affixing a label to the exterior of the thing bearing the legend “CONFIDENTIAL” or “ATTORNEYS' EYES ONLY”/“HIGHLY CONFIDENTIAL” as applicable. The legend will be placed directly above, below, or next to the Disclosing Party's production numbers to the extent possible. If it is not feasible to affix a label to the exterior of the thing, the Disclosing Party may clearly designate things as constituting Protected Information in a separate statement.

         (d) If any Party produces documents by making original documents available for inspection and copying (the “Producing Party”), then at the time of inspection all such documents shall be deemed “ATTORNEYS' EYES ONLY” within the meaning of this Order. The inspecting Party shall then designate the original documents for copying, and the Producing Party shall designate on the copies those documents which the Producing Party deems to be “CONFIDENTIAL” or “ATTORNEYS' EYES ONLY” within the meaning of this Protective Order. Any copies not so designated by the Producing Party shall not be deemed “CONFIDENTIAL” or “ATTORNEYS' EYES ONLY” within the meaning of this Protective Order.

         (e) Any copies or reproductions, excerpts, summaries, or other documents or media that paraphrase, excerpt, or contain Protected Information shall be treated as Protected Information pursuant to this Protective Order.

         (f) Information produced by a Disclosing Party may be designated as Protected Information within the meaning of this Protective Order, at the time such information is produced or as soon thereafter as the Producing Party becomes aware of the sensitive or proprietary nature of the information sought to be protected hereunder.

         V.

         Disclosure of Confidential Information

         CONFIDENTIAL INFORMATION will not be made available, nor will the contents of such information be disclosed, to persons other than the following Qualified Persons:

         (a) The Parties, their in-house counsel and members of their legal department, and no more than 4 employees or independent contractors whose workplace is physically located on premises owned or leased the by the Parties.

         (b) The Receiving Party's counsel for this Action and their regularly employed support personnel (such as paralegals, secretaries, and administrative staff).

         (c) Personnel at document duplication, electronic discovery, graphics, and other vendors and their regularly employed support personnel acting under the supervision and control of the Receiving Party's counsel for this Action.

         (d) Consultants and their regularly employed support personnel to whom disclosure is reasonably necessary and who have signed the Agreement to Be Bound By Protective Order ...


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