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IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEBRASKA

ARTHUR HOVEL,

Plaintiff, 

vs. 

UNION PACIFIC RAILROAD CO.,

Defendant.

8:23CV222

PROTECTIVE ORDER

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

Order, (Filing No. 24), 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 15th day of March, 2024.

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

ARTHUR HOVEL

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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