Peterson v. Dakota County, Nebraska et al

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
ALEXANDER PETERSON,
Plaintiff,
vs.
DAKOTA COUNTY, NEBRASKA, a
Political Subdivision; and LEONARDO
DAVALOS, in his individual capacity,
Defendants.
8:25CV680
PROTECTIVE ORDER
Upon consideration of the parties’ joint request for entry of a Protective
Order, Filing No. 9, the Court enters the following Protective Order governing the
disclosure of confidential Discovery Material by a Producing Party to a Receiving
Party in this Action.
1) Definitions. As used in this Order:
a. Action refers to the above-captioned litigation.
b. Discovery Material includes all information exchanged between the
parties, whether gathered through informal requests or
communications between the parties or their counsel, or gathered
through formal discovery conducted pursuant to Rules 30 through 36,
and Rule 45. Discovery Material includes information within
documents, depositions, deposition exhibits, and other written,
recorded, computerized, electronic or graphic matter, copies, and
excerpts or summaries of documents disclosed as required under
Rule 26(a).
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c. A Producing Party is a party to this litigation, or a non-party either
acting on a party’s behalf or responding to discovery pursuant to a
Rule 45 subpoena, that produces Discovery Material in this Action.
d. A Receiving Party is a party to this litigation that receives Discovery
Material from a Producing Party in this Action.
2) Confidential Discovery Material. This Protective Order applies to all
confidential Discovery Material produced or obtained in this case. For the
purposes of this Protective Order, confidential Discovery Material shall include:
a. Commercial information relating to any party’s business including, but
not limited to, tax data, financial information, financial or business
plans or projections, proposed strategic transactions or other
business combinations, internal audit practices, procedures, and
outcomes, trade secrets or other commercially sensitive business or
technical information, proprietary business and marketing plans and
strategies, studies or analyses by internal or outside experts,
competitive analyses, customer or prospective customer lists and
information, profit/loss information, product or service pricing or billing
agreements or guidelines, and/or confidential project-related
information;
b. Personnel data of the parties or their employees, including but not
limited to employment application information; the identity of and
information received from employment references; wage and income
information; benefits information; employee evaluations; medical
evaluation and treatment information and records; counseling or
mental health records; educational records; and employment
counseling, discipline, or performance improvement documentation;
c. Information concerning settlement discussions and mediation,
including demands or offers, arising from a dispute between a party
and a non-party;
d. Medical or mental health information;
e. Records restricted or prohibited from disclosure by statute; and
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f. Any information copied or extracted from the previously described
materials, including all excerpts, summaries, or compilations of this
information or testimony, and documentation of questioning,
statements, conversations, or presentations that might reveal the
information contained within the underlying confidential Discovery
Material.
3) Manner of Confidential Designation. A Producing Party shall affix a
“CONFIDENTIAL” designation to any confidential Discovery Material produced in
this Action.
a. As to documentary information (defined to include paper or electronic
documents, but not transcripts of depositions or other pretrial or trial
proceedings), the Producing Party must affix the legend
“CONFIDENTIAL” to each page that contains protected material.
b. If only a portion or portions of the information on a document page
qualifies for protection, the Producing Party must clearly identify the
protected portion(s) (e.g., by using highlighting, underlining, or
appropriate markings in the margins).
c. If it is not feasible to label confidential Discovery Material as
“CONFIDENTIAL,” the Producing Party shall indicate via cover letter
or otherwise at the time of production that the material being produced
is CONFIDENTIAL.
4) Timing of Confidential Designation.
a. Except as otherwise stipulated or ordered, or where discovery is made
available for inspection before it is formally disclosed, Discovery
Material that qualifies for protection under this Order must be clearly
so designated before the material is disclosed or produced.
b. If the Producing Party responds to discovery by making Discovery
Material available for inspection, the Producing Party need not affix
confidential designations until after the Receiving Party has selected
the material it wants to receive. During the inspection and before the
designation, all material made available for inspection is deemed
“CONFIDENTIAL.” After the Receiving Party has identified the
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Discovery Material it wants produced, the Producing Party must
determine which materials, or portions thereof, qualify for protection
under this Order, and designate the materials as “CONFIDENTIAL”
as required under this order.
5) Qualified Recipients. For the purposes of this Protective Order, the
persons authorized to receive Discovery Material designated as
“CONFIDENTIAL” (hereinafter “Qualified Recipients”) are:
a. The Parties, including any members, council members, officers, board
members, directors, employees, or other legal representatives of the
parties;
b. Legal counsel representing the parties, and members of the paralegal,
secretarial, or clerical staff who are employed by, retained by, or
assisting such counsel; including vendors who are retained to copy
documents or electronic files, provide technical, litigation support, or
mock trial services, or provide messenger or other administrative
support services;
c. Any non-expert witness during any deposition or other proceeding in
this Action, and counsel for that witness;
d. Potential witnesses and their counsel, but only to the extent
reasonably related to the anticipated subject matter of the potential
witness’s deposition, trial, or hearing testimony for this Action, so long
as such persons agree to maintain the confidential Discovery Material
in confidence per the terms of this Order, and provided that such
persons may only be shown copies of confidential Discovery Material
and may not retain any such material;
e. Consulting or testifying expert witnesses who will be providing
professional opinions or assistance for this Action based upon a
review of the CONFIDENTIAL information, and the staff and
assistants employed by the consulting or testifying experts;
f. Any mediator or arbitrator retained by the parties to assist with
resolving and/or settling the claims of this Action and members of the
arbitrator’s or mediator’s staff and assistants;
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g. The parties’ insurers for this Action, and their staff and assistants,
members, officers, board members, directors or other legal
representatives;
h. Court reporters for depositions taken in this Action, including persons
operating video recording equipment and persons preparing
transcripts of testimony;
i. The court and its staff, any court reporter or typist recording or
transcribing hearings and testimony, and jurors; and
j. Any auditor or regulator of a party entitled to review the confidential
Discovery Material due to contractual rights or obligations, or federal
or state laws, or court orders, but solely for such contractual or legal
purposes.
6) Dissemination by the Receiving Party. Counsel for the Receiving
Party shall:
a. Require Qualified Recipients who are non-expert witnesses or expert
witnesses and consultants and who receive information designated
as “CONFIDENTIAL” to review and agree to the terms of this
Protective Order and execute a copy of the Agreement attached
hereto as Appendix A before receiving confidential Discovery Material.
b. Instruct witnesses, consultants, and outside counsel who assist with
case preparation or represent a witness that disclosure of the
information designated as “CONFIDENTIAL” is prohibited as set forth
herein.
c. Maintain a list of any confidential Discovery Material disclosed and to
whom, along with the executed copies of the Appendix A Agreement.
The prohibition on disclosing information designated as “CONFIDENTIAL”
exists and is enforceable by the court even if the person receiving the information
fails or refuses to sign the Appendix A Agreement.
7) Duty as to Designations. Each Producing Party that designates
information or items as CONFIDENTIAL must exercise reasonable care to limit
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any such designation to specific material that qualifies under the appropriate
standards, and designate only those parts of material, documents, items, or oral
or written communications that qualify, so that other portions of the material,
documents, items, or communications for which protection is not warranted are
not swept unjustifiably within the ambit of this Order. Broadly described,
indiscriminate, or routinized designations are prohibited.
8) Limitations on Use. Confidential Discovery Material shall be used by
the Receiving Party only to prepare for and conduct proceedings herein and not
for any business or other purpose whatsoever. The parties acknowledge that
some of the information produced in this case may be protected health
information, or contain such information, within the meaning of the Health
Insurance Portability and Accountability Act (HIPAA). Consistent with 45 C.F.R. §
164.512(e)(1)(iv)(v), and as to the health information requested, counsel and the
Receiving Party:
a. Shall not use or disclose the information for any purpose other than
the litigating this Action;
b. Shall return or destroy the protected health information (including all
copies made) at the end of this Action; and
c. Shall request, use and disclose only the minimum amount necessary
to conduct this Action.
9) Maintaining Confidentiality. Discovery Material designated as
“CONFIDENTIAL” shall be held in confidence by each Qualified Recipient to
whom it is disclosed, shall be used only for purposes of this action, and shall not
be disclosed to any person who is not a Qualified Recipient. Each party, each
Qualified Recipient, and all counsel representing any party, shall use their best
efforts to maintain all information designated as “CONFIDENTIAL” in such a
manner as to prevent access, even at a hearing or trial, by individuals who are
not Qualified Recipients. Nothing herein prevents disclosure beyond the terms of
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this Protective Order if the party claiming confidentiality consents in writing to such
disclosure.
10) Copies. Discovery Material designated as “CONFIDENTIAL” shall not
be copied or otherwise reproduced by the Receiving Party, except for
transmission to Qualified Recipients, without the written permission of the
Producing Party or, in the alternative, by order of the court. However, nothing
herein shall restrict a Qualified Recipient from loading confidential documents into
document review platforms or programs for the purposes of case or trial
preparation or making working copies, abstracts, digests, and analyses of
information designated as “CONFIDENTIAL” under the terms of this Protective
Order.
11) Docket Filings. All documents of any nature including, but not limited
to, briefs, motions, memoranda, transcripts, discovery responses, evidence, and
the like that are filed with the court for any purpose and that contain Discovery
Material designated as “CONFIDENTIAL” shall be provisionally filed under
restricted access with the filing party’s motion for leave to file restricted access
documents. A party seeking to file Discovery Material under restricted access
must comply with the court’s rules and electronic docketing procedures for filing
such motions.
12) Depositions. The following procedures shall be followed at all
depositions to protect the integrity of all Discovery Material designated as
“CONFIDENTIAL”:
a. Only Qualified Recipients may be present at a deposition in which
such information is disclosed or discussed.
b. All deposition testimony which discloses or discusses information
designated as “CONFIDENTIAL” is likewise deemed designated as
“CONFIDENTIAL”.
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c. Information designated as “CONFIDENTIAL” may be used at a
nonparty deposition only if necessary to the testimony of the witness.
13) Challenges to Confidentiality Designations. A Receiving Party that
questions the Producing Party’s confidentiality designation will, as an initial step,
contact the Producing Party and confer in good faith to resolve the dispute. If the
parties are unable to resolve the dispute without court intervention, they shall
schedule a conference call with the magistrate judge assigned to the case before
engaging in written motion practice. If a written motion and briefing are necessary
and the information in dispute must be reviewed by the court to resolve that
motion, the confidential information shall be filed under restricted access pursuant
to the court’s electronic docketing procedures. The party that produced the
information designated as “CONFIDENTIAL” bears the burden of proving it was
properly designated. The party challenging a “CONFIDENTIAL” designation must
obtain a court order before disseminating the information to anyone other than
Qualified Recipients.
14) Use at Court Hearings and Trial. Subject to the Federal Rules of
Evidence, Discovery Material designated as “CONFIDENTIAL” may be offered
and received into evidence at trial or at any hearing or oral argument. A party
agreeing to the entry of this order does not thereby waive the right to object to the
admissibility of the material in any proceeding, including trial. Any party may move
the court for an order that Discovery Material designated as “CONFIDENTIAL” be
reviewed in camera or under other conditions to prevent unnecessary disclosure.
15) Return or Destruction of Documents. Upon final termination of this
Action, including all appeals, each party shall make reasonable efforts to destroy
all Discovery Material designated as “CONFIDENTIAL.” The destroying party
shall notify the producing party when destruction under this provision is complete.
If a party is unable to destroy all Discovery Material designated as
“CONFIDENTIAL,” that material shall be returned to the Producing Party or the
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Producing Party’s counsel. This Protective Order shall survive the final
termination of this action, and it shall be binding on the parties and their legal
counsel in the future.
16) Modification. This Protective Order is entered without prejudice to the
right of any party to ask the court to order additional protective provisions, or to
modify, relax or rescind any restrictions imposed by this Protective Order when
convenience or necessity requires. Disclosure other than as provided for herein
shall require the prior written consent of the Producing Party, or a supplemental
Protective Order of the court.
17) Additional Parties to Litigation. In the event additional parties are
joined in this action, they shall not have access to Discovery Material as
“CONFIDENTIAL” until the newly joined party, by its counsel, has executed and,
at the request of any party, filed with the court, its agreement to be fully bound by
this Protective Order.
18) Sanctions.
a. Any party subject to the obligations of this order who is determined
by the court to have violated its terms may be subject to sanctions
imposed by the court under Rule 37 of the Federal Rules of Civil
Procedure and the court’s inherent power.
b. Confidentiality designations that are shown to be clearly unjustified
or that have been made for an improper purpose (e.g., to
unnecessarily prolong or encumber the case development process
or to impose unnecessary expenses and burdens on other parties)
expose the designating party to sanctions. Upon discovering that
information was erroneously designated as CONFIDENTIAL, the
Producing Party shall promptly notify all other Parties of the improper
designation
19) Inadvertent Disclosure of Protected Discovery Material.
a. A Producing Party that inadvertently fails to properly designate
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Discovery Material as “CONFIDENTIAL” shall have 14 days from
discovering the oversight to correct that failure. Such failure shall be
corrected by providing written notice of the error to every Receiving
Party.
b. Any Receiving Party notified that confidential Discovery Material was
received without the appropriate confidentiality designation as
authorized under this order shall make reasonable efforts to retrieve
any such documents distributed to persons who are not Qualified
Recipients under this order, and as to Qualified Recipients, shall
exchange the undesignated or improperly designated documents
with documents that include the correct “CONFIDENTIAL”
designation.
20) Disclosure of Privileged or Work Product Discovery Material.
a. The production of attorney-client privileged, or work-product protected
electronically stored information (“ESI”) or paper documents, whether
disclosed inadvertently or otherwise, is not a waiver of the privilege or
protection from discovery in this case or in any other federal or state
proceeding. This Protective Order shall be interpreted to provide the
maximum protection allowed by Federal Rule of Evidence 502(d).
Nothing contained herein is intended to or shall serve to limit a party’s
right to conduct a review of documents, ESI or information (including
metadata) for relevance, responsiveness and/or segregation of
privileged and/or protected information before production.
b. Any party who discloses documents that are privileged or otherwise
immune from discovery shall promptly upon discovery of such
disclosure, advise the Receiving Party and request that the
documents be returned. The Receiving Party shall return such
produced documents or certify their destruction, including all copies,
within 14 days of receiving such a written request. The party returning
such produced documents may thereafter seek re-production of any
such documents pursuant to applicable law.
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Dated this 13th day of January, 2026.
BY THE COURT:
s/ Jacqueline M. DeLuca
United States Magistrate Judge
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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
ALEXANDER PETERSON,
Plaintiff,
vs.
DAKOTA COUNTY, NEBRASKA, a
Political Subdivision; and LEONARDO
DAVALOS, in his individual capacity,
Defendants.
EXHIBIT A
I hereby acknowledge that I am about to receive Confidential Information
supplied in connection with the above-captioned case. I understand that such
information is being provided to me pursuant to the terms and restrictions of the
Protective Order entered in this case. I have been given a copy of the Protective
Order, have read the Protective Order, and agree to be bound by its terms. I
understand that Confidential Information as defined in the Protective Order, or any
notes or other records that may be made regarding any such materials, shall not
be disclosed to any persons except as permitted by the Protective Order.
Printed Name Signature
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