Phoenix Building Group, Inc. et al v. Hanover Insurance Company et al

Filing 20

STIPULATED PROTECTIVE ORDER. In accordance with the Guidelines for Agreed Protective Orders, District of Kansas, modifications have been made to paragraphs 5 and 11 of the order submitted by the parties. Signed by Magistrate Judge James P. O'Hara on 5/10/2012. (ah)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
UNITED STATES OF AMERICA
for the use and benefit of
PHOENIX BUILDING GROUP INC.
through itself and its assignee
CAPITAL CITY BANK
Plaintiff,
vs.
HANOVER INSURANCE COMPANY, et al.
Defendants.

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Case No. 12-2053-EFM-JPO

STIPULATED PROTECTIVE ORDER
The parties to this action, by and through their counsel of record, hereby stipulate to the
following provisions for the protection of confidential information and/or proprietary
information produced in discovery. Pursuant to Fed.R.Civ.Pro. 26(c)(1)(B), (E), (F) and (G), the
parties seek an order mandating adherence to the following:
WHEREUPON, the parties advise the Court that they will exchange information and
requests for information (through formats that include depositions, requests for admission,
interrogatories and requests for production) that include proprietary, trade secret and otherwise
confidential information concerning customers and projects at issue in the litigation. The parties
submit that there should be limited disclosure of such information and that the Court should
issue a Protective Order prohibiting disclosure of certain information with such information not
to be disclosed to any person not specifically authorized by this Protective Order. After receiving
the statements of counsel and determining that the information to be exchanged contains
confidential information, the Court finds that a Protective Order should issue.
IT IS HEREBY STIPULATED AND ORDERED THAT:

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1.

The purpose of this Order is to facilitate the production and exchange among the

parties of documents and other information concerning this lawsuit while protecting the trade
secrets and confidential information of the parties to this lawsuit. All documents and
information produced in this action and marked pursuant to this Order, including but not limited
to initial disclosures, responses to requests for production of documents, responses to requests
for admissions, answers to interrogatories, deposition testimony, or any other proceeding
undertaken in the course of this litigation, shall be subject to the provisions of this Order, subject
to any subsequent Order of the Court.

2.

This Order shall be without prejudice to the right of any Party:

a.

b.

3.

to have determined by motion, at any time, whether any information has
been improperly designated as either “CONFIDENTIAL,”
“CONFIDENTIAL TRADE SECRET” (hereinafter “TRADE SECRET”),
or “CONFIDENTIAL - ATTORNEY’S EYES ONLY” (hereinafter
“ATTORNEY'S EYES ONLY”) as those terms are used herein. In any
such motion, the party challenging the assertion of confidentiality, trade
secret or attorney’s-eyes only status shall have the burden of establishing
the inapplicability of same; and
to apply to the Court for relief from any requirements hereof, for good
cause.

Designations.

Designations shall be made by the producing party with the

appropriate legend on the produced documents, under the appropriate category, or through a
verbal or written designation in the responsive answer or response. Electronic documents and
information may also be designated by separately imaging them onto a CD or DVD and labeling
the CD or DVD containing those documents or other information with the appropriate legend.
a.

Information supplied without any designation shall be deemed to be
outside of the protections of this Order and available for general use,
except as modified or subsequently designated. Subsequent designations

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shall only serve to cause the information to have protections under this
Order first beginning no earlier than the date of designation.
b.

c.

To be designated “CONFIDENTIAL TRADE SECRET” (also referred to
as “TRADE SECRET”), the information sought to be protected by this
designation must be information that derives some independent economic
value, actual or potential, from not being generally known to, and not
being readily ascertainable by proper means by, other persons who can
obtain economic value from its disclosure and use, and is the subject of
efforts that are reasonable under the circumstances to maintain its secrecy.
“TRADE SECRET” information shall be available only to “qualified
persons” as defined in Paragraph 4.

d.

4.

To be designated “CONFIDENTIAL,” the information sought to be
protected by this designation must be such that a party to the litigation
would not desire the general public to have access to or general
knowledge of the contents of the information, whether individually or in
combination with other information. “CONFIDENTIAL” information
shall be available only to “qualified persons” as defined in Paragraph 4.

To be designated “CONFIDENTIAL - ATTORNEY’S EYES ONLY”
(also referred to as “ATTORNEY'S EYES ONLY”) the information
sought to be protected by this designation must have such sensitivity to the
designating party, that revealing it to the opposing party may cause
substantial harm to the party so designating by revelation of protected
work product, trade secrets, or confidential information. The designating
party must specify the subset of documents or other information within
larger groupings of documents or information that are attorney’s eyes
only, and may not blanket designate documents or information as
attorney’s eyes only unless each document or separate piece of
information so identified is, in good faith, considered to be actually
worthy of the attorney’s eyes only designation. The designating party will
provide a good-faith statement of the reasons for designation of
documents as “ATTORNEY’S EYES ONLY” rather than being
designated in a less restrictive category. When necessary, a party shall
designate as attorney’s eyes only such parts of documents or such
information that are so sensitive they may harm the party if disclosed, and
redact only such portion as may fit within this designation, leaving the rest
of such documents or information redacted and designated as
“confidential” or “trade secret.” “ATTORNEY’S EYES ONLY”
information shall be available only to “qualified attorneys and staff” as
defined in Paragraph 4.

Availability of information.
a.

Except for use by the producing party in the course of their business,

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“CONFIDENTIAL,” “TRADE SECRET,” or “ATTORNEY'S EYES
ONLY” information shall be used only in the preparation for trial and trial
of this action, or appeal therefrom, and shall not be used for any other
purpose.
b.

“Qualified person” shall mean:
i)

The parties;

ii)

The Court and court personnel, including stenographic reporters
engaged in such proceedings as are necessarily incident to the
preparation for trial and/or trial of this action, including deposition
reporters and their transcribers. In the instance of deposition
reporters and their transcribers, the party issuing the notice for
deposition shall obtain a Written Assurance from said person in the
form attached hereto as Exhibit “A” prior to disclosing
confidential information in the presence of such person. The
designated portions of the deposition shall not be disclosed by such
reporter except to the attorneys for the parties and any other person
who is present while such testimony is being given and shall
further agree that copies of that portion of any transcript, reporter’s
notes, or any other transcription record of such testimony shall be
subject to this Order and not delivered to anyone other than the
attorneys for the parties, or to the Court for filing under seal;

iii)

Outside counsel for the parties, including all partners, members
and associate attorneys of such counsel's law firms, all clerks,
paralegal assistants, stenographic, clerical and other employees
thereof when operating under the direct or indirect supervision of
such partners, members, or associate attorneys, and firms they may
have retained to provide litigation support services and employees
of said firms;

iv)

Independent experts or consultants retained solely in connection
with the trial preparation and/or presentation of this case. For such
an expert or consultant to be qualified to receive
“CONFIDENTIAL” or “TRADE SECRET” information, counsel
for the party retaining such person shall obtain a Written
Assurance from said person in the form attached hereto as Exhibit
“A” prior to disclosing confidential information to such person or
within ten (10) days of the entry of this Order, whichever is later;

v)

Nonparty witnesses at depositions or hearings, provided counsel
issuing the notice or deposition or calling the witness at the
hearing and/or trial shall obtain a Written Assurance from said

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person in the form attached hereto as Exhibit “A” prior to
disclosing confidential information to such person.
c.

“Qualified attorneys and staff” shall mean:
i)

ii)

iii)

iv)

d.

The Court and Court personnel, including stenographic reporters
engaged in such proceedings as are necessarily incident to the
preparation for trial and/or trial of this action, including deposition
reporters and their transcribers. In the instance of deposition
reporters and their transcribers, the party issuing the notice for
deposition shall obtain a Written Assurance from said person in the
form attached hereto as Exhibit “A” prior to disclosing
confidential information in the presence of such person. The
designated portions of the deposition shall not be disclosed by such
reporter except to the attorneys for the parties and any other person
who is present while such testimony is being given and shall
further agree that copies of that portion of any transcript, reporter’s
notes, or any other transcription record of such testimony shall be
subject to this Order and not delivered to anyone other than the
attorneys for the parties, or to the Court for filing under seal;
Outside counsel for the parties, including all partners, members
and associate attorneys of such counsel's law firms, all clerks,
paralegal assistants, stenographic, clerical and other employees
thereof when operating under the direct or indirect supervision of
such partners, members, or associate attorneys, and firms they may
have retained to provide litigation support services and employees
of said firms;
Independent experts or consultants who are retained solely in
connection with the trial preparation and/or presentation of this
case. Counsel for the party retaining such expert or consultant
shall obtain a Written Assurance from said person in the form
attached hereto as Exhibit A prior to disclosing “ATTORNEY'S
EYES ONLY” information to such person or within ten (10) days
of the entry of this Order, whichever is later.
Under no circumstances shall documents marked “ATTORNEY’S
EYES ONLY” be provided to opposing parties or competitors of
the party producing the material without the prior written consent
of the parties producing said documents. Counsel may discuss
with their clients in general terms the significance of such
documents without disclosing particular numbers, calculations, or
detailed information.

Except as otherwise specified in this Paragraph, any information
designated under this Order shall not be disclosed to other persons without
advance notice to the other parties of the intent to make such disclosure.
Any notice of the intent to disclose such information shall include the

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identity of the document or information involved and the identity of the
person to whom the disclosure will be made. The parties shall have
fourteen (14) days from the date of that notice to object to the disclosure
and submit the issue to this Court for review. If a party objects to the
disclosure, no disclosure shall be made until authorized by this Court.
5.

Additional rules regarding depositions.

If a “CONFIDENTIAL,” “TRADE

SECRET,” or “ATTORNEY'S EYES ONLY” document or information is used in a deposition,
the party who has designated the document or information as “CONFIDENTIAL,” “TRADE
SECRET,” or “ATTORNEY’S EYES ONLY” may identify any discussion of the document or
such information in the deposition transcript as “CONFIDENTIAL,” “TRADE SECRET,” or
“ATTORNEY’S EYES ONLY” within ten (10) days of receipt of the deposition transcript.
6.

Under no circumstances does the use of a “CONFIDENTIAL,” “TRADE

SECRET,” or “ATTORNEY’S EYES ONLY” document or information, in a deposition or any
other proceeding or filing with the Court, waive the document’s or information’s confidentiality,
trade secret or attorney’s eyes only designation or substance. Whenever any document or
information designated as “CONFIDENTIAL,” “TRADE SECRET,” or “ATTORNEY’S EYES
ONLY” or any filing containing “CONFIDENTIAL,” “TRADE SECRET,” or “ATTORNEY’S
EYES ONLY” information is filed with the Court, the party seeking to file such confidential
information must first file a motion with the Court and be granted leave to file the particular
document under seal. The party seeking to file any document or information under seal shall
comply with the administrative requirements for the filing of such motions electronically.
Whenever any documents or information designated as “CONFIDENTIAL,” “TRADE
SECRET,” or “ATTORNEY’S EYES ONLY” are to be used in any court proceeding, the party
intending to use such documents or information shall advise the Court to allow the Court to take
appropriate steps to preserve the level of confidentiality of such documents or information, such

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as sealing them in an envelope and keeping them apart from all other evidence and file materials
following the proceeding at which they are offered.
7.

Disclosure of documents or information under the terms of this Order shall not

constitute a waiver of any other privilege claimed by the party producing the confidential
information.
8.

This Order governs only pretrial discovery in this case. Upon conclusion of

discovery and prior to trial of this matter, the Parties hereto shall review all documents and
information under the terms of this Order and shall seek to identify those items which will be
used as evidence at trial. The Parties shall also seek to determine whether any information
designated under this Order is to retain such designation during the trial of the case. If agreement
cannot be reached as to any particular item, then any Party may move the Court for an order
lifting the designation of that item for purposes of disclosure during trial. This Court may enter a
separate order related to confidentiality of information received in evidence at trial in the form of
either testimony or exhibits. Nothing herein should be interpreted as a waiver of any objection to
the admissibility at trial of any document produced hereunder. The parties agree that the
production of a document in discovery does not render that document admissible at trial, and the
determination of trial admissibility must be made according to the applicable rules of evidence.
9.

The Parties will do nothing to cause the confidential, trade secret or attorney’s

eyes only documents or any of the protected information contained therein to become entered
into the public domain.
10.

Upon final termination of this litigation, each party, attorney, expert, or other

person subject to the terms of this Order, with the exception of the Clerk of the Court, shall be
under obligation to return to the producing party all documents and information designated as

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“CONFIDENTIAL,” “TRADE SECRET,” or “ATTORNEY’S EYES ONLY” and all copies
thereof within ninety (90) days after such final termination, or in the alternative, to certify in
writing that all documents and information designated “CONFIDENTIAL,” “TRADE
SECRET,” or “ATTORNEY’S EYES ONLY” have been destroyed.
11.

The terms of this Order shall survive the conclusion of this case and shall remain

in full force and effect. Violation by any person of any terms of this Protective Order may be
punishable as contempt of Court and all persons who have signed the Affidavit referred to herein
agree to submit to the jurisdiction of the Federal District Court for the District of Kansas for all
hearings relative to enforcement of this Order.
12.

The parties stipulate to entry of this Protective Order without hearing or

argument.

Dated May 10, 2012, at Kansas City, Kansas.
s/ James P. O’Hara
James P. O’Hara
U.S. Magistrate Judge

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IT IS HEREBY STIPULATED:
STEVENS & BRAND, LLP

By

/s/ Christopher F. Burger
Christopher F. Burger
KS #16056
900 Massachusetts, Suite 500
Lawrence, Kansas 66044
[phone]
Fax: [phone]
[e-mail]
Attorney for Plaintiffs Capital City Bank and
Phoenix Building Group, Inc.
and

LEVY CRAIG LAW FIRM
A PROFESSIONAL C ORPORATION

By

/s/ Ryan C. Westhoff
Lawrence Lerner
KS #24376
Ryan C. Westhoff
KS #23952
1301 Oak Street
Kansas City, Missouri 64106
[phone]
Fax: [phone]
[e-mail]
[e-mail]
Attorneys for Defendant Hanover Insurance Company

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
UNITED STATES OF AMERICA
for the use and benefit of
PHOENIX BUILDING GROUP INC.
through itself and its assignee
CAPITAL CITY BANK
Plaintiff,

)
)
)
)
)
)
)
)

vs.

)
)
HANOVER INSURANCE COMPANY, et al. )
)
Defendants.

Case No. 12-2053-EFM-JPO

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I, ______________________, currently employed by __________________________
(Full name)
(Current Employer)
as an _____________________________, have been retained as an expert or consultant on
(Occupation or position)
behalf of _________________________. I have reviewed the Protective Order
(Party)
entered in this case. I understand its terms and agree to fully abide by the limitations as set out
therein. I hereby swear or affirm that I am not a competitor, nor am I employed by a competitor,
of any party whose confidential information may be disclosed to me in this matter.
By______________________________________
(Signature)

________________________________________
Name (Printed)
Subscribed and sworn to before me, a Notary Public, this ______ day of _____________,
2011.

________________________________________
Notary Public
My Commission Expires:
____________________

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