Prudential Insurance Company of America v. Hawker Beechcraft Global Customer Support
ORDER granting 45 joint motion for protective order. The court finds good cause to enter the proposed order submitted by the parties, but with modification to paragraph 2 to conform to the district's guidelines for agreed protective order (wh ich state, "Language such as 'this protective order shall apply to all documents the party designates as confidential'... would be deemed too vague and overbroad"). Signed by Magistrate Judge James P. O'Hara on 4/7/2017. (amh)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
THE PRUDENTIAL INSURANCE
COMPANY OF AMERICA,
HAWKER BEECHCRAFT GLOBAL
CUSTOMER SUPPORT, LLC, f/k/a
HAWKER BEECHCRAFT SERVICES, )
CASE NO: 2:16-cv-0238-DDC
AGREED 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. Defendant also desires to depose
in-house counsel for Plaintiff, and a Protective Order is required to limit the scope of
such discovery to factual matters and not privileged information. As a result, 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 there is a need to maintain the
proprietary and confidential nature of documents and information, the disclosure of
which would prejudice the legitimate interests of Plaintiff and Defendant. Plaintiff and
Defendant believe they will be required to produce confidential documents, documents
containing trade secrets, and/or proprietary information and there is a need for such an
order. Plaintiff also believes that a Protective Order will be necessary to limit the scope of
Defendant’s examination of in-house counsel to factual matters and not privileged
For good cause shown under Fed. R. Civ. P. 26(c), the court grants the parties’
Joint Motion for Protective Order (ECF No. 45) and hereby enters the following
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.
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
For purposes of this Order, the parties will limit their designation of
“Confidential Information” to the following categories of information or documents:
documents containing trade secrets;
documents containing proprietary information;
documents containing financial information; and
documents containing attorney client communications.
Information or documents that are available to the public may not be designated as
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 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 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.
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 ten (10) days after discovery of the inadvertent failure.
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.
Protection of Confidential Material.
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
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:
The parties to this litigation, including any employees, agents,
and representatives of the parties;1
If the confidential documents contain highly sensitive trade secrets or other highly sensitive
competitive or confidential information and disclosure to another party would result in
demonstrable harm to the disclosing party, then the parties may stipulate or move for the
establishment of an additional category of protection, (e.g., Attorneys’ Eyes Only) that prohibits
disclosure of such documents or information to that category or that limits disclosure only to
specifically designated in-house counsel or party representative(s) whose assistance is reasonably
necessary to the conduct of the litigation and who agree to be bound by the terms of the Order.
Counsel for the parties and employees and agents of counsel;
The court and court personnel, including any special master
appointed by the court, and members of the jury;
Court reporters, recorders, and videographers engaged for
Any mediator appointed by the court or jointly selected by the
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;
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
The author or recipient of the document (not including a
person who received the document in the course of the
Independent providers of document reproduction, electronic
discovery, or other litigation services retained or employed
specifically in connection with this litigation; and
Other persons only upon consent of the producing party and
on such conditions as the parties may agree.
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 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.
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.
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
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.
Testimony of In-House Counsel.
Plaintiff has agreed to produce its in-house counsel solely to discuss the facts and
circumstances of the sale of the subject airplane, and does not waive the protections
afforded by the attorney client privilege or work product with respect to said testimony.
Obligations on Conclusion of Litigation.
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.
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; 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.
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.
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
No Prior Judicial Determination. This Order is entered based on the
representations and agreements of the parties and for the purpose of facilitating
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.
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.
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.
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.
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 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
designated by the other party to this case.
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 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 ten (10) 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: April 7, 2017
s/ James P. O’Hara
U.S. Magistrate Judge
WE SO MOVE
and agree to abide by the
terms of this Order
WE SO MOVE
and agree to abide by the
terms of this Order
/s/ Carla Fields Johnson
/s/ William R. Griffin
Carla Fields Johnson
William R. Griffin
Prudential Insurance Company
Hawker Beechcraft Global
Customer Support, LLC
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