Qualls v. The CBE Group, Inc.

Filing 12

AGREED PROTECTIVE ORDER. The court finds good cause to enter the proposed protective order submitted by the parties. Signed by Magistrate Judge James P. O'Hara on 5/18/2015. (ah)

IN THE UNITED STATES DISTRICT COURT
DISTRICT OF KANSAS
EBONY QUALLS,
Plaintiff,
v.
THE CBE GROUP, INC.,
Defendant.

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Case No. 2:15-cv-02635-JWL-JPO

PROTECTIVE ORDER
The parties agree that during the course of discovery it may be necessary to disclose certain
confidential information relating to the subject matter of this action. They agree that certain categories of such 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.
The parties jointly request entry of this proposed Protective Order to limit the disclosure,
dissemination, and use of certain identified categories of confidential information.
The parties assert, in support of their request, that protection of the identified categories of
confidential information is necessary because plaintiff, Ebony Qualls (“Plaintiff”), has alleged
claims of harassment and/or retaliation under Title VII of the Civil Rights Act of 1964, as
amended, against defendant, CBE Group, Inc. (“Defendant”). Given the nature of Plaintiff’s
claims, confidential personnel and employment records, medical records and information,
confidential business records, and/or other proprietary information is likely to be sought by the
parties. Disclosure of such information may violate the privacy of third parties and employees
who have not authorized public disclosure of such information, and/or may include disclosure of
confidential or proprietary information of the parties.
For good cause shown under Fed. R. Civ. P. 26(c), the Court grants the parties’ joint

request and hereby 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 Protective 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
Protective Order will be strictly construed in favor of public disclosure and open proceedings
wherever possible.
2.

Definition of Confidential Information.

As used in this Protective 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 the disclosing party or nonparties.
For purposes of this Protective Order, the parties will limit their designation of
“Confidential Information” to the following categories of information or documents:

(1)

non-public confidential information relating to Defendant’s business, financials, marketing, sales,
policies and procedures; (2) personal and financial information regarding Plaintiff, Defendant,
and/or third parties; (3) Defendant’s personnel records, including the personnel files of
Defendant’s employees who are not, and are not expected to be, parties to this action;
(4) Defendant’s confidential, proprietary information and trade secrets; and (5) Plaintiff’s medical
records. Information or documents that are available to the public may not be designated as
Confidential Information.
By listing these particular categories of information, no party waives its right to object to
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the production of such information/documents or to designate other documents as confidential.
The parties have the right to designate as “Confidential” any documents they believe, in good faith,
include the information as described in the paragraph above.
3.

Form and Timing of Designation.

The producing party may designate

documents as containing Confidential Information, and therefore subject to protection under this
Protective Order, by marking or placing the words “CONFIDENTIAL” and/or “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
Protective 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 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 extent
and for the purposes of this Protective 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 the party appearing pro se,
thereby certifies that the document contains Confidential Information as defined in this Protective
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 Protective Order, so long as a claim of
confidentiality is asserted within fourteen (14) days after discovery of the inadvertent failure.
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5.

Depositions. Deposition testimony will be deemed confidential only if designated

as such when the deposition is taken or within fourteen (14) days 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. There shall be no need to re-designate documents or exhibits which have
been previously designated as Confidential Information.
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
arising therefrom.
(b)

Who May View Designated Confidential Information. Except with 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)

Parties, and counsel for the parties, who are actively engaged in the
conduct of this litigation, and the partners, associates, secretaries,
legal assistants and employees or agents of such counsel, to the
extent reasonably necessary to render professional services to the
litigation;

(2)

The court and court personnel, including any special master
appointed by the court, and members of the jury;

(3)

Court reporters, recorders, and videographers engaged for depositions;

(4)

Any mediator appointed by the court or jointly selected by the
parties;

(5)

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;

(6)

Any potential, anticipated, or actual fact witness and his or her
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counsel, but only to the extent such confidential documents or
information will assist the witness in recalling, relating, or
explaining facts or in testifying, but only after such persons have
completed the certification contained in Attachment A,
Acknowledgment and Agreement to be Bound;
(7)

The author or recipient of the document (not including a person who
received the document in the course of the litigation);

(8)

Independent providers of document reproduction, electronic
discovery, or other litigation services retained or employed
specifically in connection with this litigation; and

(9)

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

prevent unauthorized or inadvertent disclosure of documents designated as containing
Confidential Information pursuant to the terms of this Protective Order. Counsel for the parties,
or the party appearing pro se, must maintain the originals of the forms signed by those persons
acknowledging their obligations under this Protective Order.
7.

Filing of Confidential Information. In the event a party seeks to file any

document containing Confidential Information subject to protection under this Protective 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 Protective 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
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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. Attorneys appearing
pro hac vice must obtain sealed documents from local counsel.
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 Protective Order.
9.

Use of Confidential Documents or Information at Trial or Hearing. Nothing

in this Protective 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 Protective Order will remain in effect and continue to be binding after
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conclusion of the litigation.
(b)

Return of Confidential Documents. Within thirty (30) 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;1 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 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 Protective 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 Protective 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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The parties may choose to agree that the receiving party must destroy documents containing Confidential Information and certify the fact of destruction, and that the receiving party must not be required to
locate, isolate and return e-mails (including attachments to e-mails) that may include Confidential
Information, or Confidential Information contained in deposition transcripts or drafts or final expert reports.

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12.

No Prior Judicial Determination. This Protective Order is entered based on the

representations and agreements of the parties and for the purpose of facilitating discovery.
Nothing in this Protective 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 Protective 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 Protective Order by its terms.
14.

Jurisdiction. The court’s jurisdiction to enforce the provisions of this Protective

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 Protective Order.
15.

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.
16.

Confidential Information Subpoenaed or Ordered Produced in Other

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
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subpoena or order is the subject of this Protective Order. In addition, the receiving party must
deliver a copy of this Protective 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 Protective 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.
17.

Inadvertent Disclosure of Confidential Information Covered by Attorney-

Client Privilege or Work Product. The inadvertent disclosure or production of any 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 this Protective Order, will not be deemed to waive a party’s claim
to its privileged or protected nature or to 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 seven (7)
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
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such later designation will not be deemed a violation of the provisions of this Protective 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 May 18, 2015, at Kansas City, Kansas.

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

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WE SO MOVE
and agree to abide by the terms of this Protective Order

/s/ Thomas F. Ralston
Kirk D. Holman
Thomas F. Ralston
Kenneth D. Kinney
HOLMAN & SCHIAVONE, LLC
4600 Madison Ave., Suite 810
Kansas City, MO 64112
TEL: [phone]
FAX: [phone]
Email: [e-mail]
Email: [e-mail]
Email: [e-mail]

/s/ Melody L. Rayl
J. Randall Coffey
D. Kan. No. 70141
Melody L. Rayl
Kan. No. 23730
FISHER & PHILLIPS LLP
4900 Main Street, Suite 650
Kansas City, MO 64112
TEL: [phone]
FAX: [phone]
Email: [e-mail]
Email: [e-mail]
ATTORNEYS FOR DEFENDANT
CBE GROUP, INC.

ATTORNEYS FOR PLAINTIFF
EBONY QUALLS
Dated: May 18, 2015
Dated: May 18, 2015

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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
__________________, 2014, in the case captioned Ebony Qualls v. The CBE Group, Inc. (Case
No. 2:15-cv-02635-JWL-JPO) 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