Trustees of the Plumbing and Pipefitting Industry Health and Welfare Fund of Kansas et al v. American Mechanical, Inc.

Filing 11

AGREED PROTECTIVE ORDER. The court finds good cause to enter the proposed order submitted by the parties. Signed by Magistrate Judge James P. O'Hara on 5/5/2014. (ah)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
TRUSTEES OF THE PLUMBING AND
PIPEFITTING INDUSTRY HEALTH AND
WELFARE PLAN OF KANSAS, et al.
Plaintiffs,
v.

Case No. 14-CV-02023-KHV-JPO

AMERICAN MECHANICAL, INC.
Defendant.
AGREED PROTECTIVE ORDER
1.

This Protective Order is being entered for good cause shown. Specifically, some

of the documents which may be produced in this case may contain confidential employment,
personal, and/or financial information regarding employees and/or former employees of
defendant American Mechanical, Inc. Moreover, some of the documents may contain trade
secrets and/or confidential commercial information of Plaintiffs or Defendant;
2.

This Protective Order shall govern all documents and information produced by

the parties and designated by the producing party as confidential and subject to this Order. The
parties shall act in good faith to designate only such documents as they believe are subject to
protection. The parties shall designate material as confidential and subject to this Order by
placing the following marking on the document in a manner which will not interfere with its
legibility:
CONFIDENTIAL
Subject to Protective Order
3.

This Protective Order shall apply to and govern all documents and information

designated by the parties as confidential whether or not such documents or information are
informally produced or produced in response to a formal discovery request in this case. The
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parties may designate their responses to other discovery requests and deposition testimony as
confidential and protected by this Order. With respect to deposition testimony, the designation
of confidentiality may be made on the record at the time of the deposition, at which time the
testimony so identified shall be subject to the full protection of this Order. In the case of
testimony not so designated during the course of a deposition, counsel has ten business days after
receiving the transcript of the deposition to notify the parties that the deposition testimony
contains confidential material, in which case the testimony shall be subject to the full protections
of this Order. All parties shall treat the transcript as covered by this Order during that 10-day
designation period.
4.

Should any party want to file with the Court confidential documents and

information produced or presented by any other party, the parties will consult and submit a
motion and order permitting such confidential documents and information to be filed under seal.
If the parties cannot come to an agreement, the party wanting to file confidential documents and
information shall move the Court to allow confidential documents and information to be filed
under seal, or, in the alternative, to strike the confidential designation.
5.

In the event that a party has not moved to file a document under seal before a

filing deadline, the party shall file the motion to seal electronically and separately submit the
document or pleading it seeks to seal to the Court and the opposing counsel. If the Court grants
the motion, the documents or pleading shall be filed with the Clerk in accordance with the
Court’s order. The document or pleading will be deemed filed as of the date the motion to seal
was filed. Any party filing a motion or exhibits under seal must comply with the local rules for
filing documents under seal. See D. Kan. R. 5.4.6.

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6.

No portion of the documents marked confidential and filed with this Court shall

otherwise be released except upon Court Order for good cause shown or upon the written
authorization of the party to whom said documents belong.
7.

Except as otherwise directed by this Court, the documents and information

produced by the parties and protected by this Order shall be revealed only to: (a) parties in this
action, including officers and employees of any party; (b) counsel of record, including law firm
employees, for the parties in this action; (c) in-house counsel for a party and their associates,
paralegals, and office staff; (d) outside experts, consultants, and analysts retained or consulted
for the purpose of assisting a party in the preparation and trial of this case provided that the
expert, consultant, or analyst, before he or she reviews and/or has access to such information,
signs the attached Acknowledgment agreeing to be bound by the terms and conditions of this
Protective Order; (e) non-party witnesses in the case, provided that he or she, before reviewing
and/or receiving access to such information, signs the attached Acknowledgment agreeing to be
bound by the terms and conditions of this Protective Order; (f) the Court and Court personnel for
any purpose the Court finds necessary; (g) witnesses being deposed to the extent a reasonable
basis exists for disclosing the confidential material to the witness; provided, however, the
witness will not be given a copy of such Confidential Discovery Material except if it is in
conjunction with the witness’ review of that witness’ deposition; (h) the court reporter(s) or his
or her agents assigned to this case; and (i) jurors and Court personnel at trial of plaintiff’s action,
as necessary for trial purposes. No person entitled to access protected documents or information
shall discuss the contents of any such materials with any other individual, except those
individuals who are also permitted to view, inspect, or examine the materials protected herein.

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8.

Each person who reviews or inspects confidential documents or materials subject

to this Order shall be brought within the personal jurisdiction of this Court, including its
contempt power by, where required, signing an acknowledgment in the form attached hereto,
signifying agreement to the provisions of this Order and consenting to the jurisdiction of this
Court over his or her person for any proceedings involving alleged improper disclosure of said
protected documents or materials.
9.

The documents and information produced pursuant to the terms of this Order shall

be used by the party to which said documents are produced for the sole and limited purpose of
preparation for trial and appeal of the above-entitled action and shall not be used for any other
purpose unless ordered by this Court, or another Court with jurisdiction, or any administrative
agency with jurisdiction.
10.

Following termination of this litigation, the provisions of this Order relating to the

confidentiality of protected documents and information shall continue to be binding, except with
respect to documents or information that are no longer confidential. The jurisdiction of the
United States District Court for the District of Kansas to enforce the Protective Order shall
terminate upon the final disposition of this case, but a party may seek leave to reopen the case
after termination of this litigation to enforce the provision of the Protective Order.
11.

Nothing in this Order shall be deemed to preclude any party from seeking or

obtaining, on the appropriate showing, additional protection with respect to the confidentiality of
documents or information, nor shall any provision of this Order be deemed to preclude any party
from challenging the validity of the confidentiality of any materials so designated. If any party
elects to challenge the designation of confidentiality of any document or information pursuant to
this Order, that party shall, in writing, notify the party to which the challenged document or

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information belongs of its challenge. Within ten (10) days of the receipt of such written notice,
the party to which the challenged document belongs will either voluntarily remove the
confidential designation or inform the challenging party that it will not remove the confidential
designation. Thereafter, the challenging party may move the Court for an order removing the
protections established by this Order.

The burden of establishing confidentiality, once

challenged by the above procedure, is upon the party producing the document or providing the
information.

All documents, testimony, or other materials designated by the party as

confidential, however, shall retain their confidential status until such time as the parties’
contentions regarding the confidentiality of documents so designated are fully and finally
adjudicated, including appeal.
12.

By entering into this Protective Order, the parties are not precluded from

objecting to the production of any confidential documents or information protected by this Order,
nor is a party precluded from compelling the other to produce the same. Nothing herein is meant
to waive any privilege that the parties may assert in regard to any confidential documents or
information protected by this Order.
13.

Inadvertent production of documents, things, or information subject to

confidentiality restrictions, the attorney-client privilege, or the work-product doctrine (despite
the producing parties’ reasonable efforts to pre-screen such documents and information prior to
production) does not waive the confidentiality restriction, attorney-client privilege, or work
product doctrine. Any attorney-client privileged communications or work product materials that
are inadvertently produced shall be promptly returned to counsel for the producing party without
review or copying and shall not be used in discovery or at trial for any purpose.

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14.

Should any information designated “Confidential,” any copies or summaries

thereof, or the contents of the information be disclosed in any manner, through inadvertence or
otherwise, to any persons not authorized to receive them under this Protective Order, then the
party responsible for the unauthorized disclosure shall use its best efforts to obtain the return of
such information and bind such person to the terms of this Protective Order and shall (a)
promptly provide such person a copy of this Protective Order, (b) use its best efforts to cause
such person to acknowledge in a written statement, in the form attached hereto as Exhibit A, that
he or she has read the Protective Order and agrees to be bound by the terms thereof, and provide
such written statement to the producing party, and (c) identify such person immediately to the
producing party.
15.

Violation of any provision of this Protective Order may be punishable as

contempt of Court. Further, the parties may pursue any and all civil remedies available to them
for breach of the terms of this Order.
16.

Any notice to a Party required by this Order may be given by notifying that

Party’s counsel of record in this case or the Party directly if the Party is not represented by
counsel. Any act by a Party required by this Order may be performed by that Party’s counsel of
record or the Party directly if the Party is not represented by counsel.
The parties have stipulated to the propriety of such a Protective Order, and the court finds
good cause to enter it.
IT IS, THEREFORE, BY THE COURT CONSIDERED, ORDERED, ADJUDGED,
AND DECREED that relevant business and financial documents of Plaintiffs, and the personnel
records and other confidential information regarding employees and/or former employees, trade
secrets, or confidential commercial information of American Mechanical, Inc., shall be made

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accessible to the parties and the attorneys for the parties. The parties and their attorneys shall not
jointly or severally disclose to or share with any other person the documents and/or information
contained in said records, except as provided for herein, without further order by this Court.

IT IS BY THE COURT SO ORDERED.
Dated May 5, 2014

s/ James P. O’Hara
James P. O’Hara
U.S. Magistrate Judge

Submitted by:
SPENCER FANE BRITT & BROWNE LLP
1000 Walnut St., Suite 1400
Kansas City, Missouri 64106-2140
Telephone: [phone]
Facsimile: [phone]

FOULSTON SIEFKIN LLP
1551 N. Waterfront Pkwy, Suite 100
Wichita, KS 67206
Telephone: [phone]
Facsimile: [phone]

/s/ Lucinda H. Luetkemeyer
Douglas M. Weems, KS #14771
Lucinda H. Luetkemeyer, KS #25326
Attorneys for Plaintiffs

/s/ Forrest T. Rhodes, Jr.
Forrest T. Rhodes, Jr., KS #19567
Jason P. Lacey, KS #19957
Attorneys for Defendant

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
TRUSTEES OF THE PLUMBING AND
PIPEFITTING INDUSTRY HEALTH AND
WELFARE PLAN OF KANSAS, et al.
Plaintiffs,
v.

Case No. 14-CV-02023-KHV-JPO

AMERICAN MECHANICAL, INC.
Defendant.
ACKNOWLEDGMENT OF PROTECTIVE ORDER
1.

I have been requested to inspect certain material which is confidential within the

terms of the Protective Order (“Order”) issued by the Court for the purpose of assisting in the
preparation for trial or appeal of the above captioned matter.
2.

I have read the aforesaid Order and I understand the terms therein. I hereby agree

to be bound by that Order, and by such other orders as may be made by the Court regarding
discovery of confidential material, in the same way that the parties to the action are bound.
3.

I hereby agree to submit to the jurisdiction of the United States District Court,

District of Kansas, for purposes of any proceedings concerning my receipt of confidential
material.
____________________________________
Signature

____________________________________
Name (printed)

____________________________________
Dated

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