Santee Sioux Nation v. United States Indian Health Service et al

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
SANTEE SIOUX NATION,
Plaintiff,
v.
P. BENJAMIN SMITH, in his official capacity
as Acting Director of the Indian Health
Service, et al.,
Defendants.
No. 8:23-cv-530
AMENDED STIPULATED
PROTECTIVE ORDER
REGARDING CONFIDENTIAL
INFORMATION
With the agreement of the parties by the submission of an Amended Joint Motion for Entry
of Protective Order (Filing No. 71), the Court having determined that there is good cause for
issuance of a protective order pursuant to Federal Rule of Civil Procedure 26(c) to govern the
disclosure, use, and handling by the parties and their respective agents, successors, personal
representatives and assignees of certain information and items produced and received in discovery
in the above-captioned action, IT IS HEREBY ORDERED as follows:
A. Definitions
1. “Action” shall mean the case Santee Sioux Nation v. P. Benjamin Smith, et al., No.
8:23-cv-00530-BCB-MDN (D. Neb.).
2. “Confidential Information” shall mean information that, at the time of its
production in discovery in the action, or thereafter, is designated confidential by the Producing
Party because of a good faith belief that the information: is not in the public domain, or if in the
public domain, is improperly in the public domain; and (a) is a trade secret or other confidential
research, development, or commercial information as such terms are used in Federal Rule of Civil
Procedure 26(c)(1)(G); (b) is confidential commercial and/or proprietary information under federal
law and/or regulations; (c) is personal financial, medical or other private information relating to
an individual that would properly be redacted from any public court filing pursuant to Federal Rule
of Civil Procedure 5.2.; or (d) is information protected by the provisions of the Privacy Act of
1974, 5 U.S.C § 552a, or the Trade Secrets Act (or “act of 1948”), 18 U.S.C. § 1905.
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3. “Disclose” (or forms thereof) shall mean to distribute, provide, or otherwise make
available for access, viewing, or copying. “Disclose” shall include the actual covered document or
item as well as the contents or information contained therein, such that disclosing a copy, summary,
paraphrasing, or characterization would be considered a disclosure of the document itself for
purposes of this Protective Order.
4. “Document” shall mean all items listed in Federal Rule of Civil Procedure
34(a)(1)(A) & (B).
5. “Challenging Party” shall mean any party who challenges the designation of
information as Confidential Information under this Protective Order.
6. “Designating Party” shall mean the party or other person producing in discovery in
the Action any information that the Producing Party seeks to designate and have treated as
Confidential Information pursuant to this Protective Order.
7. “Producing Party” shall mean the person or party producing in discovery in the
Action.
8. “Receiving Party” shall mean any party who receives information that has been
designated as Confidential Information.
B. Purpose, Scope, and Limitations of Protective Order
1. This Protective Order applies to discovery, pre-trial and (to the extent approved by
the Court) trial and post-trial proceedings in this action, whether the Documents are produced by
a party or a person or entity who is not a party to this action (a “non-party”). This Order binds the
Parties and their respective attorneys, agents, successors, personal representatives, and assignees.
2. Nothing in this Protective Order supersedes existing independent statutory, law
enforcement, national security, or regulatory obligations imposed on a Party, and this Protective
Order does not prohibit or absolve the Parties from complying with such other obligations.
3. This Protective Order shall not prejudice in any way any party’s ability to challenge
the use or disclosure of information other than information designated as Confidential Information
under this Protective Order in this Action. A Party’s compliance with the terms of this Protective
Order shall not operate as an admission that any particular material is or is not (a) confidential, (b)
privileged, or (c) admissible as evidence at trial.
4. The protections conferred by this Protective Order do not cover any information (i)
properly in the public domain; (ii) that becomes part of the public domain after its disclosure to a
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Receiving Party as a result of publication not involving a violation of this Protective Order,
including becoming part of the public record in this Action through trial or otherwise; or (iii) that
is known to the Receiving Party prior to the disclosure or obtained by the Receiving Party after
the disclosure from a source who obtained the information lawfully and under no obligation of
confidentiality to the Producing Party.
5. This Protective Order does not govern the use by the Parties of Confidential
Information in open court at any hearing or trial, but the Parties reserve the right to seek relief from
the Court in connection with the intended use of Confidential Information in any such hearing or
trial.
6. This Protective Order governs the disclosure, use, and handling of all Confidential
Information, regardless of the format or medium in which such Confidential Information is
generated, stored, or maintained.
7. Any Confidential Information referenced in any pleading or contained in any
Document filed with the Court in this Action by the Producing Party shall at the time of filing
cease to be Confidential Information unless the Producing Party files the unredacted pleading or
Document under restricted access.
8. Nothing in this Protective Order shall restrict the right of any Producing Party to
use its own Confidential Information for any purpose whatsoever, but if any such use results in a
disclosure that causes the Confidential Information to lose its designation as Confidential
Information, then it shall no longer be subject to any protection under this Protective Order.
9. This Protective Order applies only to disclosures, uses, and handling of
Confidential Information occurring after the entry of this Protective Order.
10. Neither the termination of this Action nor the termination of employment of any
person who has had access to any Confidential Information shall relieve such person of his or her
obligations under this Protective Order, which shall survive.
11. Any party may at any time seek modification of this Order by agreement or, failing
agreement, by motion to the Court.
C. Method for Designating Confidential Information
1. Designations of Confidential Information shall be made by the Producing Party,
prior to or at the time of production, except as otherwise provided by this Protective Order.
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2. The Designation of Confidential Information should be limited only to those
Documents or portions of Documents that qualify under the appropriate standards or under the
definition of “Confidential Information” in Section A(2) of this Protective Order.
3. Documents produced in discovery in this Action shall be designated as containing
“Confidential Information.” For documents produced in paper or an electronic form that allows
endorsements or similar designation on the image, the designation shall appear by the inclusion of
the marking of “Confidential Subject to Protective Order” on each page of the document asserted
to contain Confidential Information. For electronic information that is provided in native form or
a format that is not amenable to visible endorsement on the image, the file name(s) shall begin
with “Confidential Subject to Protective Order,”1 any accompanying image file shall be endorsed
with “Confidential Subject to Protective Order,” or notice should otherwise be provided to the
Receiving Party at the time of production that identifies the document as confidential and subject
to the Protective Order. The media on which the Confidential Information is provided (e.g., CD,
DVD, external hard drive) also must be and remain plainly labeled with “Santee Sioux Nation v.
Smith, Information may be Confidential Subject to Protective Order” unless and until the
protection of the data within the media is removed. Any copying or transferring of electronic files
that are designated as Confidential Information must be done in a manner that maintains the
protection for all copies, including, but not limited to, in the filename(s) and the location where
the copies are stored and users’ access thereto.
4. For interrogatory answers and responses to requests for admissions, designation of
Confidential Information shall be made by placing within each interrogatory answer or response
to requests for admission asserted to contain Confidential Information the following: “The
following response is CONFIDENTIAL Subject to Protective Order.”
5. For depositions, designation of Confidential Information shall be made during the
deposition on the record that should include reasons for the assertion, or by letter from counsel
within thirty (30) days of receipt of the official deposition transcript or copy thereof (or written
notification that the transcript is available), listing the specific pages and lines of the transcript
and/or any exhibits that should be treated as Confidential Information. The entire deposition
transcript (including any exhibits not previously produced in discovery in this Action) shall be
1 The original metadata of the native files should be retained pursuant to the parties’
agreement.
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treated as Confidential Information under this Protective Order until the expiration of the above-
referenced 30-day period for designation, except that the deponent (and his or her counsel, if any)
may review the transcript of his or her own deposition during the 30-day period subject to this
Protective Order and the requirement of executing the certification attached as Exhibit A. After
designation of Confidential Information is made, the following shall be placed on the front of the
original and each copy of a deposition transcript containing Confidential Information: “Contains
CONFIDENTIAL information subject to Protective Order.” If the deposition was filmed, both the
recording storage medium (i.e., CD or DVD) and its container shall be labeled: “Contains
CONFIDENTIAL information subject to Protective Order.”
6. For any other Document or item produced in discovery in this Action not falling
within subparagraphs C(3), (4) or (5) above, designation of Confidential Information shall be made
by labeling the item or the item’s container with “Confidential Subject to Protective Order.” If
only a portion or portions of the information contained in the item warrant protection as
Confidential Information, it shall be accompanied by a cover letter identifying the specific portion
or portions so designated.
7. If it comes to a Producing Party’s attention that information designated as
Confidential Information does not qualify or no longer qualifies for protection, the Producing Party
must promptly notify all Parties that it is withdrawing the designation for the applicable
information.
8. Any media, electronically stored information, written notes, dictation tapes, or
work product of any kind that contain references to or portions of the contents of documents
designed as containing Confidential Information shall bear the Confidential Information
endorsement and shall be subject to the same requirements of this Order as copies or images of the
Confidential Information.
D. Challenging Confidential Designations
1. A Challenging Party shall not be obliged to challenge the propriety of a
Confidential Information designation at the time made, and a failure to do so shall not preclude a
subsequent challenge thereto.
2. The Challenging Party shall initiate a challenge to the designation of any
Confidential Information under this Protective Order by providing to the Designating Party (a)
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written notice of each designation it is challenging and (b) a description of the basis of each
challenge.
3. The Challenging Party and the Designating Party shall attempt to resolve each
challenge in good faith and must begin a meet and confer process within fourteen (14) calendar
days after the Designating Party receives notice from the Challenging Party. During the conferring
process, the Challenging Party must convey its basis for the challenge and the Designating Party
must have an opportunity to review the applicable documents and either keep or change the
designation. The Designating Party must communicate its decision(s) to the Receiving Party within
twenty-one (21) calendar days after receipt of notice of the challenge, or within a reasonable time
agreed to by the Parties, unless the Receiving Party identified more than 100 pages. If the
Challenging Party identified 100 pages or more, the Parties, acting in good faith, shall agree on a
reasonable time for the Designating Party to advise the Challenging Party of its decision.
4. If the Designating Party decides to withdraw its designation, it shall give notice of
this change to the other Party.
5. If the Challenging and Designating Parties cannot come to a resolution within the
time set forth in paragraph 3 above, or as otherwise agreed, either Party may file a motion seeking
a determination from the Court.
6. Any information designated as Confidential Information pursuant to and after the
entry by the Court of this Protective Order shall be treated as Confidential Information until such
time as (a) the Designating Party agrees that it shall no longer be treated as Confidential
Information or (b) the Court rules that such information should not be treated as Confidential
Information.
7. After a designation as Confidential Information is removed or withdrawn by the
Designating Party or by the Court, the Designating Party must provide to the Receiving Party
replacement documents, files, or information that is free from any markings or designations as
Confidential Information. The replacement versions shall be provided in the same format as the
information that is to be replaced, unless otherwise agreed to by the Parties. The presumptive time
for providing the replacement information shall be twenty-one (21) days, but the Designating Party
must in good faith provide the information in a reasonable time, considering any agreements with
the Receiving Party, the volume of information to be re-produced, and the nature or format of the
information.
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E. Disclosure, Use and Handling of Confidential Information
1. A Receiving Party may use Confidential Information in connection with this Action
only for prosecuting, defending, or attempting to settle this Action, and shall disclose such
Confidential Information only in accordance with the terms of this Protective Order.
2. Counsel of record are responsible for employing reasonable measures, consistent
with this Protective Order, to control access to and secure distribution of Confidential Information.
3. Confidential Information shall only be disclosed, summarized, described,
characterized, or otherwise communicated or made available in whole or in part to the following
persons:
a. Counsel for the Parties, including associated personnel necessary to assist
counsel in this Action, such as litigation assistants, paralegals, and litigation support,
information technology, information or records management, investigative, secretarial, or
clerical personnel;
b. Current employees (including Defendants’ agency counsel) of the Parties
who are assisting with respect to this Action;
c. Any person with prior authorized access to the Confidential Information;
d. Current employees of the Producing Party;
e. Witnesses, potential witnesses, and deponents, including their counsel;
f. Court reporters and other persons not employed by this Court, retained to
record or transcribe testimony or argument at interviews or depositions in connection with
this Action;
g. Photocopying, data processing, and other support services that are
reasonably necessary to litigation in this Action;
h. Retained expert witnesses and consultants;
i. Mediators or arbitrators; and
j. This Court (including any judicial officer to whom this Court may refer this
matter for settlement purposes), jurors, and Court personnel, including persons recording
or transcribing testimony or argument at a conference, hearing, trial, or appeal in this
Action.
4. Disclosure to the persons referenced in subsections (E)(3)(b)-(i) above may only
occur after the person to whom the disclosure is being made has been given a copy of this
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Protective Order and has signed a declaration in the form attached hereto as “Exhibit A.” The
Parties’ counsel of record shall maintain the executed declarations in their respective files and in
accordance with the requirements of this Order.
5. Persons receiving Confidential Information pursuant to the terms of this Protective
Order are prohibited from disclosing it to any person except in conformance with this Protective
Order.
6. Unless the Designating Party gives written permission, all Confidential Information
that is filed with the Court must be (1) filed under restricted access or in camera in accordance
with the Court’s Local Rules and procedures, and/or (2) redacted from any filing that is publicly
available. No Party shall file with the Court at any time any motion, application, memorandum or
brief, or any other pleading or document that quotes from or paraphrases Confidential Information
or that contains information obtained solely from Confidential Information, unless the confidential
portion of any such motion, application, memorandum or brief, pleading or other document has
been filed under restricted access with the Clerk of Court.
7. If a Receiving Party or anyone subject to this Protective Order receives a subpoena
under Fed. R. Civ. P. 45 (or an equivalent mechanism under state law) seeking Confidential
Information as designated in this Action, the Receiving Party or such individual shall promptly
notify the Designating Party and shall not disclose any Confidential Information until the
Designating Party has had a reasonable opportunity to inform the subpoenaed person either (a) the
Designating Party does not object to the production of the Confidential Information or (b) that that
the Designating Party will seek appropriate relief or protection from the proper Court to prevent
the production. The Designating Party shall bear the burden and expense of seeking protection of
its designated Confidential Information, and nothing in this Protective Order should be construed
as authorizing or encouraging a subpoenaed person to disobey a lawful directive from this or
another court.
8. If the need arises for any Party to disclose Confidential Information in a proceeding
in open Court or in support of a dispositive motion, it may do so only after giving fourteen (14)
days’ notice to the Producing Party who, after a good faith effort to meet-and-confer, may seek
additional relief from the Court.
F. Inadvertent Production of Confidential Information
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1. Nothing herein shall be deemed or construed as a waiver of any applicable
privilege, right of privacy, or proprietary interest with respect to any information or item. The
Parties agree to follow Fed. R. Civ. P. 26(b)(5)(B) with respect to any inadvertently or
unintentionally produced or disclosed Confidential Information that was not appropriately
designated in accordance with Section C, above.
2. If a Receiving Party learns that, by inadvertence or otherwise, it, or a person to
whom it has disclosed Confidential Information in accordance with this Protective Order, has
disclosed Confidential Information to any person or in any circumstance not authorized under this
Protective Order, the Receiving Party shall, upon learning of the unauthorized disclosure: (a)
promptly notify the person(s) to whom the unauthorized disclosure was made that the unauthorized
disclosure contains Confidential Information subject to this Protective Order; (b) promptly make
all reasonable efforts to obtain the return of the Confidential Information and to prevent further
unauthorized disclosures of the Confidential Information, including requesting the person who
received the unauthorized disclosure to agree to be bound by the terms of this Protective Order by
executing a declaration in the form attached as “Exhibit A”; and (c) within five (5) calendar days
notify the Producing Party and all other Parties of the identity of the person(s) to whom the
unauthorized disclosure was made, the circumstances surrounding the disclosure, and the steps
taken to prevent any use or further disclosure of the Confidential Information that was the subject
of the unauthorized disclosure.
G. Disposition of Documents Containing Confidential Information
1. Except as provided in this Protective Order, within 90 days of the final termination
of this Action, whether by settlement, judgment, or other disposition or conclusion and all appeals
or opportunities to appeal therefrom, a Receiving Party shall take reasonable steps either to (a)
destroy or delete all items designated as Confidential Information or (b) return them to the
Designating Party, depending upon the Designating Party’s stated reasonable preference, except
materials that exist on back-up tapes or similar systems. Materials that exist on back-up tapes,
systems, or similar storage need not be immediately deleted or destroyed, and, instead, such
materials overwritten and destroyed in the normal course of business. Until they are overwritten
in the normal course of business, the Receiving Party will take reasonable steps to limit access, if
any, to the persons necessary to conduct routine IT and cybersecurity functions. In the course of
disposing of information in its possession under this paragraph, Receiving Party also will take
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reasonable steps to notify persons to whom it distributed Confidential Information pursuant to this
Order that such information should be returned to Receiving Party or destroyed by the person
possessing the information with written confirmation to Receiving Party.
a. For material that contains or reflects Confidential Information, but that
constitutes or reflects counsel’s work product, or that of retained consultants and experts,
counsel of record for the Parties shall be entitled to retain such work product in their files
in accordance with the provisions of this Protective Order, so long as it is and remains
clearly marked to reflect that it contains Confidential Information subject to this Protective
Order.
b. Counsel of record for the Parties shall also be entitled to retain an archival
copy of all pleadings; affidavits; motion papers; trial, deposition, and hearing transcripts;
legal memoranda; correspondence; deposition and trial exhibits; expert reports; briefs;
other papers filed with the Court; and any other parts of the trial record, even if such
material contains Confidential Information, so long as such material is and remains clearly
marked to reflect that it contains Confidential Information. Even after the final disposition
of this Action, the terms of this Protective Order shall continue to govern the disclosure,
use, and handling of any Confidential Information unless and until its Designating Party
agrees otherwise in writing or a court order directs.
c. In particular, attorneys for the United States may maintain copies of any
documents designated as Confidential Information in their case file for this case, and may
maintain copies of any notes or summaries containing such Confidential Information in
their case file for this case, subject to 44 U.S.C. § 3101, et seq., and 5 U.S.C. § 552, et seq.
H. Authorization to Produce Documents and Information Covered by Privacy Act and the Trade
Secrets Act
1. Defendants are authorized, but not required, to produce documents and information
covered by the Privacy Act that are relevant to the subject matter involved in the pending action
as set forth in this Protective Order without obtaining the prior written consent of the applicable
individuals.
2. Upon the entry of this Protective Order under the authority of the Court pursuant to
Rule 26(c) of the Federal Rules of Civil Procedure, and the Privacy Act, 5 U.S.C. § 552a(b)(11),
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the production of documents and information in this case will be pursuant to an order from a court
of competent jurisdiction as those terms are defined under the Privacy Act.
3. Defendants reserve the right to make “reasonable efforts,” as set forth in the Privacy
Act, 5 U.S.C. § 552a(e)(8), to serve notice on any individuals whom Defendants believe will be
affected by the disclosure of documents or information because the individuals’ personally
identifiable information is contained therein. Defendants do not waive this right by marking
documents or information “Confidential Subject to Protective Order” or producing them in
redacted form. Nothing in this Protective Order, however, should be construed as requiring
Defendants to serve notice on the individuals.
4. Upon the entry of this Protective Order under the authority of the court pursuant to
Rule 26(c) of the Federal Rules of Civil Procedure, Defendants are authorized, but not required,
to produce documents and information covered by the Trade Secrets Act (or “act of 1948”), 18
U.S.C. § 1905.
IT IS SO ORDERED.
Dated this 16th day of December, 2025
BY THE COURT:
________________________________
MICHAEL D. NELSON
United States Magistrate Judge
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