Riederer v. Anchor General Insurance Company et al

Filing 60

STIPULATED PROTECTIVE ORDER. The court finds good cause to enter the protective order submitted by the parties, but with modifications to paragraphs 2, 8, and 12 to conform to the Guidelines for Agreed Protective Orders, District of Kansas. Signed by Magistrate Judge James P. O'Hara on 4/26/2012. (ah)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
KANSAS CITY DIVISION
In Re:
BROOKE CORPORATION, et al.,
Debtors.
___________________________________
CHRISTOPHER J. REDMOND,
Chapter 7 Trustee of Brooke
Corporation, Brooke Capital
Corporation and Brooke Investments,
Inc.,
Plaintiff,
vs.
THE PROGRESSIVE CORPORATION,
d/b/a Progressive Insurance,
Defendant.

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Case No. 08-22786-DLS
(Jointly Administered)
Chapter 7

Case No. 11-2380-JWL
(Adv. Case No. 10-06193)

STIPULATED PROTECTIVE ORDER REGARDING
CONFIDENTIALITY AND PRIVILEGE ISSUES
The parties have requested that this Court, Pursuant to Fed. R. Civ. P. 26(c), Fed. R. Evid.
502(d) and 11 U.S.C. § 105, enter an Order Regarding Confidentiality and Privilege Issues. The
Plaintiff is the Chapter 7 Trustee of Brooke Corporation, et al. Prior to the bankruptcy filing,
Brooke operated as an insurance franchisor. Defendant is an insurance company whose
product(s) was/were sold to insured by Brooke agents. Given that the there was a significant
amount of insurance and other financial information, and customers’ personal identification
information exchanged and/or possessed by the parties which is relevant to this matter, the Court
finds that there is good cause for entry of an appropriate protective order. As such, for good
cause shown, the Court enters this Protective Order Regarding Confidentiality and Privilege
Issues (the "Protective Order"). Accordingly,

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IT IS HEREBY ORDERED AS FOLLOWS:
1.
Purpose and Applicability to All Adversary Proceedings and Contested Matters.
In order to meaningfully facilitate the exchange of Confidential Information (as defined below),
any information, thing or document (or any portion thereof) subject to discovery or otherwise
provided in the course of this litigation shall be governed by the terms of this Protective Order.
2.
“Confidential Information” Defined: Any document or electronically stored
information of any party or third party which is received by a party for the first time in the
applicable adversary proceedings(s) or contested matter(s) shall be deemed to constitute
“Confidential Information” if it contains any of the following: Any social security numbers, birth
dates, account numbers, insured names, insured lists, customer lists, pricing information, sales
and commission data for identified franchise and Allstate agents, credit files for designated
agents, tax returns, financial statements and credit reports contained in those files or any other
document or electronically stored information containing similar information. Any other party
or third party may also designate its own documents as “Confidential” to the extent such
document contains proprietary or confidential information not otherwise encompassed by the
definition of “Confidential Information.”
3.
Designation of “Confidential Information” by any Party: Any document
produced by any party containing any “Confidential Information” shall be subject to the
provisions of this Protective Order. At the time of the production of paper or electronic records
for examination and review while in the custody of the party producing the documents, it is not
necessary to have marked them confidential. However, at the time of delivery of copies of paper
or electronic documents to the party requesting production, the Parties shall designate any
document containing Confidential Information by marking it “Confidential” or may redact the
Confidential Information so as to minimize the risk that such information is not inadvertently
disclosed to some third party. Certain documents to be produced in Excel, native, or other
similar format, are not subject to being marked or redacted, and the Parties agree that they shall
be treated as confidential despite the lack of marking, but this only shall apply to specific
categories of documents that, by agreement of the parties, are not subject to such marking. At
this time, it is agreed that the Parties will treat the following as “Confidential” notwithstanding
the lack of marking: (a) Franchise Agent Statements, and (b) the Brooke Capital SQL/accounting
database (including extractions from such database into Microsoft Access or other format). To
the extent to which any Party believes that the cost of such marking or redaction becomes
excessive, they may seek relief from the Court after conferring and being unable to come to an
agreement on cost sharing with other Parties or other resolution of the cost issue. To the extent
that any Party produces documentation which it reasonably believes is confidential but which is
not included in the definition of Confidential Information set forth above, then such Party may
designate such documents or electronically stored information as being confidential and it shall
be automatically deemed to be Confidential Information for purposes of this Protective Order
(including all other adversary proceedings initiated by the Trustee or contested matters in
connection with the Debtors’ bankruptcies).
4.
Challenges to Confidential Information: A party may challenge the confidential
designation of any document or electronically stored information by motion filed with the Court
(“Challenge Motion”). Documents for which a challenge to Confidential Information contained
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therein shall maintain their confidential designation until any Challenge Motion is resolved by
this Court. The burden of establishing the confidentiality of any document shall be on the party
claiming confidentiality thereof.
5.
Limited Use of Confidential Information: No party shall use any Confidential
Information for any purpose other than in connection with litigating the rights, claims and
defenses in any “Contested Matter” (as defined below). Any party desiring to use any
Confidential Information other than as provided herein shall file a motion with this Court
requesting such relief. The moving party must demonstrate that adequate safeguards exist to
protect the confidential nature of the information. Notwithstanding anything to the contrary,
however, nothing in this Protective Order shall be construed as prohibiting any party from using
its own Confidential Information in any way.
6.
Sharing of Confidential Information Produced by the Trustee from the Books and
Records of Debtors or Any of their Subsidiaries and Affiliates: Any party to whom Confidential
Information is produced by the Trustee, subject to any further restrictions made by agreement or
order in any individual adversary case, may freely share those documents with any other party to
(a) any other adversary proceeding now pending or later filed by the Trustee; (b) any contested
matter now pending or later initiated within the main Brooke bankruptcy case; and (c) in Orr v.
Riederer (D. Kan. No. 10-01303) (collectively “Contested Matter”) any Confidential Information
produced by that party or the Trustee or from the books and records of the Debtors’ or any of
their direct or indirect subsidiaries or affiliates (including, but not limited to, Aleritas Capital
Corporation and Brooke Agency Services Company, LLC) provided that such sharing is done in
conjunction with a Contested Matter. The restrictions contained herein shall not apply to
documents produced by the Trustee which are not marked or otherwise designated as
Confidential as provided in this Order and all such other documents may be freely shared as set
forth above for Confidential Information and also in any other litigation now pending or
hereafter filed in any state or federal court where the subject matter is related to the Brooke
bankruptcy cases.
7.
Sharing of Confidential Information Produced by Other Parties to the Adversary
Proceedings or Contested Matters: Confidential Information produced by any party to the
Trustee or any other party may not be shared with any other party unless written consent is
granted by the party producing the Confidential Information, or such party has turned over such
information voluntarily to the other parties permitting such use. Absent such voluntary
disclosure by a party or an order of this Court, no party to any contested matter shall be allowed
to use Confidential Information of any other party in any matter. To the extent that a particular
party from any adversary proceeding or contested matter desires to review any Confidential
Information that another party from any adversary proceeding or contested matter has produced
to the Trustee, then the party desiring to see and review such Confidential Information must first
contact the producing party to see if appropriate protections may be put in place and, if not, it
must then file a motion with the Court demonstrating why cause exists to allow it to use such
Confidential Information. The Trustee shall not be required to produce any such Confidential
Information until there has been an order resolving the issue as contemplated in the preceding
sentence. The restrictions contained herein shall not apply to documents produced by any party
to the Trustee or another party other than the trustee which are not marked or otherwise
designated as Confidential as provided in this Order and all such other documents may be freely
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shared in any Contested Matter and also in any other litigation now pending or hereafter filed in
any state or federal court where the subject matter is related to the Brooke bankruptcy cases.
8.
Persons who May See and Use Confidential Information: No party shall reveal or
discuss the Confidential Information or information contained therein with any person except
with the following: (a) attorneys (including in-house counsel, and paralegals, assistants,
stenographic and clerical employees working under the supervision of such counsel) involved in
the prosecution or defense of any matter where the information is permitted to be used; (b) any
parties' employees, representatives and advisors who need to know such information to permit
the party to review and evaluate the information; (c) any person not an employee of a party who
is expressly retained or sought to be retained as an independent expert or consultant by counsel
for a party to assist in the prosecution or defense of any matter where the information is
permitted to be used, with disclosure only to the extent necessary to perform such work; (d) any
prospective witness or person who is a deponent or whose deposition has actually been noticed
or otherwise scheduled to be taken or any person subpoenaed to testify at trial, provided that
such disclosure occurs during the preparation for or at the deposition or trial and is reasonably
necessary to the prosecution or defense of the litigation; (e) any court reporter who is retained to
transcribe any proceeding in any adversary proceeding or contested matter where the information
is appropriately used; (f) any regulatory body during a routine or other lawful examination of the
party’s records; (g) pursuant to any court order or subpoena; (h) any mediator who mediates any
adversary proceeding or contested matter; and (i) with regard to the cases involving securitized
loans: the note holders, their attorneys (including in-house counsel, and paralegals, assistants,
stenographic and clerical employees working under the supervision of such counsel) and
employees, representatives and advisors who need to know such information to permit the note
holder to review and evaluate the information. Any party who discloses Confidential
Information to those persons identified in subparagraph (c) or (i) above, shall first require a
signed agreement that such parties receiving such disclosures shall be bound by the provisions of
this Protective Order. Any party who discloses Confidential Information to those persons
identified in subparagraph (d) above, shall use their best efforts to require such persons to sign an
acknowledgment that such persons receiving such disclosures are bound by the provisions of this
Protective Order.
9.
Use of Confidential Information in Pleadings: To the extent that any Confidential
Information cannot be reasonably redacted from a particular document which is intended to be
used as an exhibit in a pleading or at trial, then any party wishing to reference or use such
Confidential Information shall first contact the party that produced the Confidential Information
prior to the filing in order to work out reasonable precautions that can be taken to maintain the
confidentiality of the Confidential Information. If the parties are unable to agree to reasonable
precautions to protect the confidentiality of the Confidential Information, then the party shall file
the Confidential Information and/or the pleading referencing information contained in the
Confidential Information under seal. Notwithstanding the foregoing, nothing in this paragraph
shall prohibit any party from including any Confidential Information in any pleading filed with
the Court if the party making the filing is the party that originally produced the Confidential
Information.
10.
Use of Confidential Information in Depositions: If any of the Confidential
Information, or information contained therein, is used or referenced in a deposition, the party that
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produced the Confidential Information used or referenced may request that the portion of the
Deposition transcript in which the Confidential Information is used or referenced be designated
as “Confidential.” Any portion of any deposition transcript so designated shall be treated as a
Confidential document pursuant to this agreement. A party may have up to and including
fourteen (14) days following its receipt of a final deposition transcript to designate any portions
of the transcript as being "Confidential." Failure to make such designation by the fourteen (14)
day deadline shall mean the party is deemed to have waived any assertion that such information
it produced is confidential.
11.
Disclosure of Confidential Information Pursuant to Subpoena or Other Legal
Process: If any party is compelled by a subpoena or other legal process to disclose any
Confidential Information covered by this Protective Order, such party shall immediately provide
written notice of such legal process to the party that originally produced the information such
that the original producing party may appear and contest disclosure. Notwithstanding the
foregoing, if a party is, in the opinion of its counsel, compelled to disclose any portion of the
information upon pain of liability for contempt or other censure or penalty, or the court, or other
governmental or regulatory body prohibits or otherwise bars notice of disclosure, then the party
may disclose such portion of the information to the relevant court, or other tribunal without
liability hereunder and no notice of disclosure shall be given to the original producing party
provided that applicable law prohibits disclosure.
12.
Irreparable Harm due to Unauthorized Disclosure of Confidential Information:
There is a high degree of likelihood that any unauthorized dissemination or use of the
Confidential Information would cause irreparable damage to the party that originally produced
such Confidential Information. Therefore, in the event of any breach of these provisions, the
party that originally produced the Confidential Information shall have the right, without limiting
any other rights or remedies at law or in equity, to seek an immediate injunction enjoining such
breach.
13.
Destruction of Confidential Information: Parties shall make reasonable and good
faith efforts to ensure that all Confidential Information and copies thereof are destroyed or
returned to the party that originally produced the information within sixty (60) days of a final,
non-appealable conclusion of the litigation in which it is used unless applicable law, regulation
or other court order requires retention of such documents for a longer period of time. If a party is
required to maintain such records for a longer period of time, then such party shall make
reasonable and good faith efforts to ensure that records shall be immediately destroyed by such
party and at its expense at the conclusion of such period. Notwithstanding the foregoing, if a
party reasonably believes it is necessary to maintain all or part of the Confidential Information
for purposes of a Contested Matter, the party may retain such Confidential Information but shall
continue to be bound by the terms of this Protective Order for so long as that party maintains
possession thereof.
14.
Inapplicability of Confidentiality Provisions: These confidentiality provisions
shall not be read to restrict in any way any producing party’s treatment of its own documents or
information.

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15.
Non-waiver of Privilege as to Other Non-Produced Documents: The production
(whether intentional or inadvertent) by any party of any Confidential Information which is also
protected by any applicable privilege (including, but not limited to, the attorney-client privilege,
the attorney-work product privilege, and/or the accountant-client privilege) shall not be deemed
to be a waiver of that privilege with respect to any other document or other information that is
protected by that privilege and that is not produced by such party.
16.
Non-Waiver of Privilege for Any Documents Produced: The Trustee has
previously waived the attorney-client privilege with respect to any communications of the
Debtors prior to September 17, 2008. Except for such communications for which the privilege is
waived in accordance with Fed. R. Evid. 502(d) and Fed. R. Civ. Proc. 26(b)(5)(B), if any party,
whether inadvertent or otherwise, produces any materials which that party claims contains
privileged or protected information (including, but not limited to, the attorney-client privilege,
the attorney work product privilege, and/or the accountant-client privilege), then the party
making the production shall immediately notify the recipient of the information of the claim and
the basis for the claim. After being notified, a party must promptly return, sequester, or destroy
the specified information and any copies it has; must not use or disclose the information until the
claim is resolved; must take reasonable steps to retrieve the information if it was disclosed before
the party received notification; and may present the information to the court under seal for a
determination of the claim. The producing party must preserve the information until the claim is
resolved. Any disclosure made by the recipient of the materials before notice is received from
the producing party of the claim that the materials produced are privilege or protected, shall not
constitute a waiver of any privilege and protection that may apply to any portion of the
privileged information on or after the original date of production. A party’s return of the alleged
privileged discovery material shall not be construed as an acknowledgement or admission that
the material is, in fact, privileged or that the disclosures was, in fact, inadvertent Pending
resolution of such a dispute by the Court, the discovery shall be treated as privileged.
17.
Applicability of these Confidentiality Provisions to Parties Reviewing Documents
on the Brooke Management System ("BMS") or Any Other Brooke Data or Documents
Produced by the Trustee to Any Party. Pursuant to the Bankruptcy Court’s Order (Docket No.
721), the Brooke Management System (“BMS”) was sold to DocStar LLC. Any party desiring
to access and view documents contained on BMS or any other data or documents of the Debtors
(including their subsidiaries and affiliates) produced by the Trustee to any party shall be subject
to all of the foregoing confidentiality provisions which are applicable to the Debtors’ books and
records.
18.
No Admission. Nothing in this Protective Order nor the designation of any item
or document shall be construed as an admission by any party with regard to any issue of fact or
law, except as such admission may relate to the parties’ obligations under this Protective Order,
and neither this Protective Order nor any designation pursuant to it shall be admissible in any
adversary proceeding or contested matter except to enforce the terms of this Protective Order.
19.
Violation. Any party found in violation of this Protective Order may be held in
contempt of Court and may be liable for all damages caused by or resulting from such violation.

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20.
Amendment. Any paragraph, provision or procedure set forth in this Protective
Order may be amended or modified by the Court upon motion by any party and appropriate
notice to parties.
IT IS SO ORDERED this 26th day of April, 2012.

_/s James P. O’Hara____
James P. O’Hara
United States Magistrate Judge

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Submitted by:

s/ Michael D. Fielding
Douglas Schmidt
Benjamin F. Mann
John J. Cruciani (#16883)
Michael D. Fielding (#20562)
HUSCH BLACKWELL LLP
4801 Main Street, Suite 1000
Kansas City, Missouri 64112
[phone]; FAX [phone]
[e-mail]
[e-mail]
[e-mail]
[e-mail]
Attorneys for Trustee
s/ Mark A. Shaiken
Mark A. Shaiken (KS #11011)
STINSON MORRISON HECKER LLP
1201 Walnut Street, Suite 2900
Kansas City, Missouri 64106
Tel: [phone]
Fax: [phone]
Email: [e-mail]
-andULMER & BERNE LLP
Joseph A. Castrodale (Ohio #0018494)
Richard G. Hardy (Ohio #0021920)
John M. Alten (Ohio #0071580)
Todd A. Atkinson (Ohio #0077374)
ULMER & BERNE LLP
1660 West 2nd Street, Suite 1100
Cleveland, Ohio 44114
Tel: [phone]
Fax: [phone] (fax)
Email: [e-mail]
[e-mail]
[e-mail]
Attorneys for Progressive Casualty Insurance Company

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