United States of America v. Bowman et al
Filing
22
PROTECTIVE ORDER. Signed by Magistrate Judge James P. O'Hara on 6/24/2015. (ah)
(Rev. 9/16/13)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
UNITED STATES OF AMERICA,
Plaintiff,
v.
Case No. 15-2618-DDC
MARCOS BOWMAN, et al.,
Defendants.
PROTECTIVE ORDER
As discussed and agreed during the June 24, 2015, scheduling conference, this
protective order will govern certain confidential information relating to the subject matter of
this action. The parties agree that these categories of information should be treated as
confidential, protected from disclosure outside this litigation, and used only for purposes of
prosecuting or defending this action and any appeals. For good cause shown under Fed. R.
Civ. P. 26(c), the court enters the following Protective Order:
1.
Scope. All documents and materials produced in the course of discovery of
this case, including initial disclosures, responses to discovery requests, all deposition
testimony and exhibits, and information derived directly therefrom (hereinafter collectively
“documents”), are subject to this Order concerning Confidential Information as set forth
below. As there is a presumption in favor of open and public judicial proceedings in the
federal courts, this Order will be strictly construed in favor of public disclosure and open
proceedings wherever possible.
2.
Definition of Confidential Information. As used in this Order, “Confidential
Information” is defined as information that the producing party designates in good faith has
been previously maintained in a confidential manner and should be protected from disclosure
and use outside the litigation because its disclosure and use is restricted by statute or could
potentially cause harm to the interests of disclosing party or nonparties. For purposes of this
Order, the parties will limit their designation of “Confidential Information” to the following
categories of information or documents:
Photographs of minor children, health information, health records, Ms. Felitz’s
banking documents and her financial information.
Information or documents that are available to the public may not be designated as
Confidential Information.
3.
Form and Timing of Designation. The producing party may designate
documents as containing Confidential Information and therefore subject to protection under
this Order by marking or placing the words “CONFIDENTIAL - SUBJECT TO
PROTECTIVE ORDER” (hereinafter “the marking”) on the document and on all copies in
a manner that will not interfere with the legibility of the document. As used in this Order,
“copies” includes electronic images, duplicates, extracts, summaries or descriptions that
contain the Confidential Information. The marking will be applied prior to or at the time of
the documents are produced or disclosed. Applying the marking to a document does not
mean that the document has any status or protection by statute or otherwise except to the
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extent and for the purposes of this Order. Copies that are made of any designated documents
must also bear the marking, except that indices, electronic databases, or lists of documents
that do not contain substantial portions or images of the text of marked documents and do not
otherwise disclose the substance of the Confidential Information are not required to be
marked. By marking a designated document as confidential, the designating attorney or
party appearing pro se thereby certifies that the document contains Confidential Information
as defined in this Order.
4.
Inadvertent Failure to Designate. Inadvertent failure to designate any
document or material as containing Confidential Information will not constitute a waiver of
an otherwise valid claim of confidentiality pursuant to this Order, so long as a claim of
confidentiality is asserted within fourteen days after discovery of the inadvertent failure.
5.
Depositions. Deposition testimony will be deemed confidential only if
designated as such when the deposition is taken or within a reasonable time period after
receipt of the deposition transcript. Such designation must be specific as to the portions of
the transcript and/or any exhibits to be protected.
6.
Protection of Confidential Material.
(a)
General Protections. Designated Confidential Information must be
used or disclosed solely for purposes of prosecuting or defending this lawsuit, including any
appeals, or any other related legal proceeding brought by one of the parties to this litigation.
(b)
Who May View Designated Confidential Information. Except with
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the prior written consent of the designating party or prior order of the court, designated
Confidential Information may only be disclosed to the following persons:
(1)
The parties to this litigation, including any employees, agents,
and representatives of the parties;
(2)
Counsel for the parties and employees and agents of counsel;
(3)
The court and court personnel, including any special master
appointed by the court, and members of the jury;
(4)
Court reporters, recorders, and videographers engaged for
depositions;
(5)
Any mediator appointed by the court or jointly selected by the
parties;
(6)
Any expert witness, outside consultant, or investigator retained
specifically in connection with this litigation, but only after such
persons have completed the certification contained in
Attachment A, Acknowledgment and Agreement to be Bound;
(7)
Any potential, anticipated, or actual fact witness and his or her
counsel, but only to the extent such confidential documents or
information will assist the witness in recalling, relating, or
explaining facts or in testifying, and only after such persons
have completed the certification contained in Attachment A;
(8)
The author or recipient of the document (not including a person
who received the document in the course of the litigation);
(9)
Independent providers of document reproduction, electronic
discovery, or other litigation services retained or employed
specifically in connection with this litigation; and
(10)
Other persons only upon consent of the producing party and on
such conditions as the parties may agree.
(c)
Control of Documents. The parties must take reasonable efforts to
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prevent unauthorized or inadvertent disclosure of documents designated as containing
Confidential Information pursuant to the terms of this Order. Counsel for the parties must
maintain a record of those persons, including employees of counsel, who have reviewed or
been given access to the documents along with the originals of the forms signed by those
persons acknowledging their obligations under this Order.
7.
Filing of Confidential Information. In the event a party seeks to file any
document containing Confidential Information subject to protection under this Order with
the court, that party must take appropriate action to insure that the document receives proper
protection from public disclosure including: (a) filing a redacted document with the consent
of the party who designated the document as confidential; (b) where appropriate (e.g., in
relation to discovery and evidentiary motions), submitting the document solely for in camera
review; or (c) when the preceding measures are inadequate, seeking permission to file the
document under seal by filing a motion for leave to file under seal in accordance with D.
Kan. Rule 5.4.6.
Nothing in this Order will be construed as a prior directive to allow any document to
be filed under seal. The parties understand that the requested documents may be filed under
seal only with the permission of the court after proper motion. If the motion is granted and
the requesting party permitted to file the requested documents under seal, only counsel of
record and unrepresented parties will have access to the sealed documents. Pro hac vice
attorneys must obtain sealed documents from local counsel.
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8.
Challenges to a Confidential Designation. The designation of any material
or document as Confidential Information is subject to challenge by any party. Before filing
any motion or objection to a confidential designation, the objecting party must meet and
confer in good faith to resolve the objection informally without judicial intervention. A party
that elects to challenge a confidentiality designation may file and serve a motion that
identifies the challenged material and sets forth in detail the basis for the challenge. The
burden of proving the necessity of a confidentiality designation remains with the party
asserting confidentiality. Until the court rules on the challenge, all parties must continue to
treat the materials as Confidential Information under the terms of this Order.
9.
Use of Confidential Documents or Information at Trial or Hearing.
Nothing in this Order will be construed to affect the use of any document, material, or
information at any trial or hearing. A party that intends to present or that anticipates that
another party may present Confidential Information at a hearing or trial must bring that issue
to the attention of the court and the other parties without disclosing the Confidential
Information. The court may thereafter make such orders as are necessary to govern the use
of such documents or information at the hearing or trial.
10.
Obligations on Conclusion of Litigation.
(a)
Order Remains in Effect. Unless otherwise agreed or ordered, all
provisions of this Order will remain in effect and continue to be binding after conclusion of
the litigation.
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(b)
Return of Confidential Documents. Within fourteen days after this
litigation concludes by settlement, final judgment, or final order, including all appeals, all
documents designated as containing Confidential Information, including copies as defined
above, must be returned to the party who previously produced the document unless: (1) the
document has been offered into evidence or filed without restriction as to disclosure; (2) the
parties agree to destruction of the document to the extent practicable in lieu of return; or (3)
as to documents bearing the notations, summations, or other mental impressions of the
receiving party, that party elects to destroy the documents and certifies to the producing party
that it has done so.
(c)
Retention of Work Product. Notwithstanding the above requirements
to return or destroy documents, counsel may retain attorney work product, including an index
which refers or relates to designated Confidential Information, so long as that work product
does not duplicate verbatim substantial portions of the text or images of designated
documents. This work product will continue to be confidential under this Order. An attorney
may use his or her own work product in subsequent litigation provided that its use does not
disclose Confidential Information.
11.
Order Subject to Modification. This Order is subject to modification by the
court on its own motion or on motion of any party or any other person with standing
concerning the subject matter. The Order must not, however, be modified until the parties
have been given notice and an opportunity to be heard on the proposed modification.
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12.
No Prior Judicial Determination. This Order is entered based on the
representations and agreements of the parties and for the purpose of facilitating discovery.
Nothing in this Order will be construed or presented as a judicial determination that any
document or material designated as Confidential Information by counsel or the parties is
entitled to protection under Fed. R. Civ. P. 26(c) or otherwise until such time as the court
may rule on a specific document or issue.
13.
Persons Bound by Protective Order. This Order will take effect when
entered and is binding upon all counsel of record and their law firms, the parties, and persons
made subject to this Order by its terms.
14.
Jurisdiction. The court’s jurisdiction to enforce the provisions of this Order
will terminate on the final disposition of this case. But a party may file a motion to seek
leave to reopen the case to enforce the provisions of this Order.
15.
Applicability to Parties Later Joined. If additional persons or entities
become parties to this lawsuit, they must not be given access to any Confidential Information
until they execute and file with the court their written agreement to be bound by the
provisions of this Order.
16.
Protections Extended to Third-Party’s Confidential Information. The
parties agree to extend the provisions of this Protective Order to Confidential Information
produced in this case by third parties, if timely requested by the third party.
17.
Confidential Information Subpoenaed or Ordered Produced in Other
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Litigation. If a receiving party is served with a subpoena or an order issued in other
litigation that would compel disclosure of any material or document designated in this action
as Confidential Information, the receiving party must so notify the designating party, in
writing, immediately and in no event more than three business days after receiving the
subpoena or order. Such notification must include a copy of the subpoena or court order.
The receiving party also must immediately inform in writing the party who caused the
subpoena or order to issue in the other litigation that some or all of the material covered by
the subpoena or order is the subject of this Order. In addition, the receiving party must
deliver a copy of this Order promptly to the party in the other action that caused the subpoena
to issue.
The purpose of imposing these duties is to alert the interested persons to the existence
of this Order and to afford the designating party in this case an opportunity to try to protect
its Confidential Information in the court from which the subpoena or order issued. The
designating party bears the burden and the expense of seeking protection in that court of its
Confidential Information, and nothing in these provisions should be construed as authorizing
or encouraging a receiving party in this action to disobey a lawful directive from another
court. The obligations set forth in this paragraph remain in effect while the party has in its
possession, custody, or control Confidential Information by the other party to this case.
18.
Inadvertent Disclosure of Confidential Information Covered by Attorney-
Client Privilege or Work Product. The inadvertent disclosure or production of any
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information or document that is subject to an objection on the basis of attorney-client
privilege or work-product protection, including, but not limited, to information or documents
that may be considered Confidential Information under the Protective Order, will not be
deemed to waive a party’s claim to its privileged or protected nature or estop that party or the
privilege holder from designating the information or document as attorney-client privileged
or subject to the work product doctrine at a later date. Any party receiving any such
information or document must return it upon request to the producing party. Upon receiving
such a request as to specific information or documents, the receiving party must return the
information or documents to the producing party within fourteen days, regardless of whether
the receiving party agrees with the claim of privilege and/or work-product protection.
Disclosure of the information or document by the other party prior to such later designation
will not be deemed a violation of the provisions of this Order. The provisions of this section
constitute an order pursuant to Rules 502(d) and(e) of the Federal Rules of Evidence.
IT IS SO ORDERED.
Dated: June 24, 2015
s/ James P. O’Hara
U.S. Magistrate Judge
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ATTACHMENT A
ACKNOWLEDGMENT
AND
AGREEMENT TO BE BOUND
The undersigned hereby acknowledges that he/she has read the Protective Order dated
_______________ in the case captioned, _________________________________, and
attached hereto, understands the terms thereof, and agrees to be bound by its terms. The
undersigned submits to the jurisdiction of the United States District Court for the District of
Kansas in matters relating to this Protective Order and understands that the terms of the
Protective Order obligate him/her to use materials designated as Confidential Information
in accordance with the order solely for the purposes of the above-captioned action, and not
to disclose any such Confidential Information to any other person, firm, or concern, except
in accordance with the provisions of the Protective Order.
The undersigned acknowledges that violation of the Protective Order may result in
penalties for contempt of court.
Name:
______________________________________
Job Title:
______________________________________
Employer:
______________________________________
Business Address: ___________________________
___________________________
Date: _________________
___________________________
Signature
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