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IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEBRASKA

JAMES HOWER,

Plaintiff, 

vs. 

UNION PACIFIC RAILROAD CO.,

Defendant.

8:23CV206

PROTECTIVE ORDER

Upon consideration of the parties’ joint request for entry of a Protective Order in their Rule 

26(f) Report, (Filing No. 21), 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).

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:

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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 

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).

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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 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 

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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;

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.

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7) Duty as to Designations. Each Producing Party that designates information or items 

as CONFIDENTIAL must exercise reasonable care to limit 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 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. 

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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”.

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.

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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 

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 

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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 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.

Dated this 13th day of November, 2023. 

BY THE COURT:

s/Michael D. Nelson

United States Magistrate Judge

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IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEBRASKA

JAMES HOWER,

Plaintiff, 

vs. 

UNION PACIFIC RAILROAD CO.,

Defendant.

8:23CV206

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. 

Dated this __ day of _______________, 20__. 

Printed Name Signature

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