IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEBRASKA

RICHARD MAYER,

Plaintiff, 

vs. 

UNION PACIFIC RAILROAD CO.,

Defendant.

8:23CV225

PROTECTIVE ORDER

Upon consideration of the parties’ joint request for entry of a Protective Order, 

(Filing No. 12), 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.

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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 

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 

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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 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;

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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;

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: 

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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 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;

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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. 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”:

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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.

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 

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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 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 

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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 reproduction of any such documents pursuant to applicable law.

Dated this 24th day of July, 2023.

BY THE COURT:

s/ Cheryl R. Zwart

United States Magistrate Judge

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IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEBRASKA

RICHARD MAYER,

Plaintiff, 

vs. 

UNION PACIFIC RAILROAD CO.,

Defendant.

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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