Larimer v. U.S. Bank National Association

Filing 12

AGREED PROTECTIVE ORDER. The court finds good cause to enter the order submitted by the parties. Signed by Magistrate Judge James P. O'Hara on 7/24/2017. (amh)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
AMY LARIMER,

)
)
Plaintiff,
)
)
v.
)
)
U.S. BANK NATIONAL ASSOCIATION, )
)
Defendant.
)

Case No. 2:17-cv-02110-JWL

AGREED PROTECTIVE ORDER
Amy Larimer ("Plaintiff") and U.S. Bank National Association ("Defendant")
(collectively the "Parties"), by and through their undersigned counsel, agree that this is a lawsuit
pursuant to the Family and Medical Leave Act, 29 U.S.C. § 2601 et. seq. ("FMLA") and the
Americans with Disabilities Act, as amended in 2008, 42 U.S.C. § 12101 et. seq. ("the ADA"),
and many documents exchanged in discovery will contain information that is sensitive and
confidential, including, but not limited to initial disclosures, responses to discovery requests, all
deposition testimony and exhibits, and any information derived directly therefrom. This case
involves allegations by Plaintiff that she was discriminated against on the basis of an alleged
disability. In particular, among her allegations, Plaintiff alleges that Defendant terminated her on
the basis of her medical history and/or purported medical condition. She further alleges that she
was retaliated against. The parties will exchange documents containing confidential medical
information related to Plaintiff and possibly other employees. Such documents will be covered
by the Health Insurance Portability and Accountability Act ("HIPAA"). Additionally, the parties
anticipate that they may exchange personnel information related to other employees who are not
parties to this litigation and whose confidential information should not be subject to public

CORE/0501501.0503/134167263.2

disclosure. They jointly request entry of this Protective Order (also referred to herein as the
"Order").
For good cause shown under Fed. R. Civ. P. 26(c), the court grants the parties’ joint
request and 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.

Definitions: The following terms, as used herein, shall, without limiting the

generality of the meaning of those terms, be construed as follows:
(a)

"Parties" shall mean Plaintiff and Defendant.

(b)

"Counsel" shall mean the attorneys representing the Parties in this action.

(c)

"Confidential Information" shall be limited to documents or information that a
party in good faith believes, consistent with Fed. R. Civ. P. 26(c) and relevant
case law, contains non-public, personal, intimate or commercially sensitive
information such as (and not by way of limitation) personnel information, medical
information, proprietary business records, trade secrets, records whose disclosure
is restricted or prohibited by law, and confidential financial information, that
require the protections provided in this Order. Additionally, counsel and parties to
the above-captioned case may be given access to confidential medical records
protected by HIPAA that require the protections provided in this Order.

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(d)

In no event shall a party designate as "Confidential" any document or information
that is or has been available to the general public. To the extent any document
marked "Confidential" under the Order is lawfully acquired by the nondesignating party from a third party having the right to disclose such information
or material or becomes available to the general public by means other than a
violation of this Protective Order, the document shall no longer be deemed
"Confidential" under the terms of this Order.

(e)

"Producing Party" means a party or non-party that produces disclosure or
discovery material in this action.

(f)

"Designating Party" means a party that designates information or items that it
produces in disclosures or in response to discovery as "Confidential."

(g)

"Challenging Party" means a party that challenges the designation of information
or documents as "Confidential" under this Order

3.

Limitation on Use: Except as otherwise provided herein, any Confidential

Information produced in this action shall be used or disclosed solely for the purpose of this
litigation, including appeals and attempts to resolve this case through mediation or any other
settlement process, unless ordered or requested by this Court, or another Court or administrative
agency with jurisdiction. Additionally, the Parties agree that upon written notice to the producing
party, Confidential Information may be used to defend ethical or other complaints arising after
the final resolution of this matter and directly related to this matter so long as the confidential
status and use of such documents is subject to protections substantially the same as those set
forth in this Order.

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4.

Disclosure of Confidential Information: Except as otherwise provided in this

Order, material designated as Confidential Information may be examined only by the following
persons:
(a)

Parties, including any employees, agents, and representatives of the parties;

(b)

Counsel for the Parties, as well as legal assistants, clerical assistants or other
assistants employed by Counsel;

(c)

To the extent necessary for the prosecution or defense of this matter, independent
consultants (e.g., professional jury or trial consultants, including mock juries) or
experts retained in connection with the instant action by the Parties’ counsel so
long as they sign the attached Agreement to be Bound and Stipulation of
Confidentiality;

(d)

Stenographers or court reporters only to the extent necessary to prepare records of
sworn testimony in the instant action;

(e)

Professional vendors (e.g., photocopying, document management, and other
litigation support services) only to the extent necessary to provide litigation
support services;

(f)

Mediators that the Parties engage or that the Court appoints in this matter;

(g)

Judges, clerks, other personnel of any court of competent jurisdiction or jurors in
any proceedings related to this action;

(h)

The author or direct or indirect recipients of a document that is designated
Confidential (not including a person who received the document in the course of
the litigation);

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(i)

Any fact witnesses actually testifying at deposition or trial, and his or her counsel,
to the extent such document or testimony designated Confidential contains
sensitive information not otherwise known to the witness, but may assist the
witness in recalling, relating or explaining facts or in testifying, so long as they
sign the attached Agreement to be Bound and Stipulation of Confidentiality; and

(j)

Other persons only upon written consent of the producing party and on such
conditions as the parties may agree.

5.

Designating Confidential Information:

(a)

Each party that designates information or items for protection pursuant to this
Order must take care to limit any such designation to specific material that
qualifies under the appropriate standards, including Fed. R. Civ. P. 26(c) case law.
No information shall be deemed Confidential unless so designated pursuant to this
Order.

(b)

The Producing Party shall designate information or documents as "Confidential
Information" by placing or affixing on such material (in such manner as will not
interfere with the legibility thereof) a "Confidential" stamp or the equivalent on
each page that contains protected information.

(c)

For testimony given in a deposition or in other pretrial or trial proceedings, the
Designating Party shall invoke on the record (before the deposition, hearing or
other proceeding is concluded) a right to have up to twenty-one (21) days from
receipt of the transcript to identify the specific portions of testimony as to which
protection is sought and to specify the level of protection being asserted. Only
those portions of testimony that are designated for protection within the 21 days

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shall be covered by the provisions of this Order. Until the 21-day period has
expired or the Designating Party has made its designation, whichever is sooner,
the transcript shall be treated as Confidential Information. After the 21-day period
has expired or the Designating Party has made its designation, the transcript shall
be treated only as actually designated.
(d)

A party may also designate as Confidential Information appropriate documents or
information received from non-parties pursuant to a subpoena. A party seeking to
designate such documents or information shall do so in accordance with the
procedures outlined in the preceding paragraphs. The Designating Party shall
have up to 21 days from receipt of the documents to designate the specific
portions of documents as to which protection is sought. Until the 21-day period
has expired or the Designating Party has made its designation, whichever is
sooner, the documents shall be treated as Confidential Information. After the 21day period has expired or the Designating Party has made its designation, the
documents shall be treated only as actually designated.

(e)

Inadvertent failure by a party to designate any information as Confidential shall
not constitute a waiver of the party’s right to designate such information, so long
as a claim of Confidentiality is asserted within a reasonable time after discovery
of the inadvertent failure. Any such designation shall be prospective in effect and
shall not have the effect of deeming any prior disclosure of such information a
breach of this Order or any order entered hereon.

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(f)

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.

(g)

Nothing contained in this Protective Order shall preclude any party from using its
own Confidential Information in any manner it sees fit, without the prior consent
of any other person or the Court.

6.

Challenging Confidentiality Designations:

(a)

The Parties shall have the right to challenge any designation of documents as
"Confidential Information." The Parties agree that before seeking any relief from
the Court they will make a good faith effort to resolve any disputes concerning the
confidential treatment of any information. The party shall initiate the dispute
resolution process by providing written notice of the designation(s) it is
challenging and describing the basis for the challenge. The Parties shall attempt to
resolve each challenge in good faith and must begin the process by conferring
directly within seven (7) days of the date of service of notice.

(b)

If the Parties cannot resolve a challenge without Court intervention, they shall
submit a joint letter to the Court requesting an informal conference with the
Court. The Designating Party may prepare and circulate a draft of the joint letter
to the Challenging Party within fourteen (14) days of impasse. The Challenging
Party shall have fourteen (14) days from service of the draft letter to insert its
position. The Designating Party shall thereafter have fourteen (14) days to insert
its reply. The Parties may request and agree to reasonable extensions of these
deadlines. However, if one party does not complete their respective section of the

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joint letter within the applicable deadline, and there is no agreement for an
extension, the other party may submit the letter to the Court for determination.
(c)

The burden of persuasion in any challenge proceeding shall be on the Designating
Party.

(d)

All Parties will treat all materials or information designated as protected in
accordance with the requirements of this Order during the pendency of any
motion brought in accordance with the procedures outlined in the preceding
paragraph.

7.

Return of Confidential Information.

(a)

Within ninety (90) days after the conclusion of this action by final judgment not
subject to appeal or by settlement, any party other than the Producing Party who
possesses documents or other items constituting or containing Confidential
Information (except for attorney notes, pleadings, transcripts, and other court
submissions and exhibits thereto) shall, at the option and written request of the
Producing Party, either (a) return such material in its custody or control, including
in the possession of consultants and experts of that party, to the extent they may
be located through a reasonable search; or (b) certify that the party has taken
reasonable and practical actions to locate and destroy any paper copies of such
materials in its custody or control, including in the possession of consultants of
that party, and has taken reasonable and practical actions to locate and delete
electronic copies of such materials from live or active databases and servers it
maintains.

Notwithstanding the foregoing, parties are required to return or

destroy protected health information of any individual in their possession within

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ninety (90) days after the conclusion of this action by final judgment not subject
to appeal or settlement regardless of whether a written or oral request is made by
the Producing Party. However, counsel in this lawsuit may maintain a copy of all
Confidential Information as a part of counsel’s case files, except protected health
information. Nothing in this section requires a party, its counsel, or consultants to
delete discovery material which may reside on one or more backup tapes or other
media maintained for purposes of disaster recovery, business continuity, or other
reasons, except that a party, its counsel, and consultants must destroy all protected
health information in its possession; nor shall this section require counsel to delete
work product material.
8.

Waiver of Confidential Designation. The Producing Party may not waive the

confidentiality provisions of this Order as to any information designated as Confidential or any
portion thereof, except by explicit written waiver. Any such waiver shall not result in a waiver of
the confidential status of any other information deemed Confidential pursuant to this Order. Use
of information acquired through independent search or investigation (other than discovery from
the parties to this action) or which is in the public domain shall not be restricted by the terms of
this Order.
9.

Filing Protected Materials:

(a)

Any Confidential Information may be filed with the Court, introduced into
evidence, or produced at a deposition if agreed to in writing by the parties or
otherwise ordered by the Court.

(b)

Absent such written agreement or an Order from the Court, in the event a party
seeks to file any document containing Confidential Information subject to

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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.
(c)

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 is 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.

10.

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.

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11.

Order Subject to Modification.

(a)

Any party that desires relief from the provisions of this Order or desires further
protection with respect to discovery may, if agreement cannot be negotiated
between the Plaintiff and Defendant, seek appropriate relief from the Court upon
no less than 3 days' notice to counsel for the other party.

(b)

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.

12.

Protective Order Remains in Effect. This Order shall remain in full force and

effect indefinitely until modified, superseded, or terminated by agreement of the Parties hereto or
by Court order. Unless agreed or ordered, the provisions herein will remain in effect and
continue to be binding after conclusion of the litigation.
13.

Inadvertent Disclosure of Confidential Information Covered by Attorney-

Client Privilege or Work Product. The protections afforded by the attorney-client privilege and
work product doctrine shall not be waived by a party’s disclosure of otherwise protected
communications or documents in connection with the within litigation, unless such disclosure
was made with the specific intention by the party to waive such protections as to the
communications or documents in question. A party who produces any privileged documents or
communications, without the specific intention to waive such protections as to the document or
communication in question, may, within fourteen (14) days after the producing party actually
discovers, through any source, that such inadvertent production occurred, notify the other party
that such document or communication was inadvertently produced and should have been

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withheld as protected by the attorney-client privilege or work product doctrine. If such notice
occurs, the production will not constitute a waiver of the protections afforded by the attorneyclient privilege and work product doctrine. Once the producing party provides such notice to the
requesting party, the requesting party must promptly return the specified document or
communication and any copies thereof and destroy any notes relating to same.
14.

No Admission of Relevance or Admissibility. Nothing in this Order constitutes

an admission or agreement that any document or information is subject to discovery or is
admissible as evidence in this case.
15.

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.
16.

Jurisdiction. The Court’s jurisdiction to enforce the provisions of this Stipulation

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.
IT IS SO ORDERED.
Dated: July 24, 2017.

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

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WE SO MOVE and agree to abide by the terms of this Order
CORNERSTONE LAW FIRM

STINSON LEONARD STREET LLP

By:

By:

/s/ Joshua P. Wunderlich
Joshua P. Wunderlich D Kan 78506
[e-mail]
8350 N. St. Clair Ave., Ste. 225
Kansas City, Missouri 64151
Telephone: [phone]
Facsimile: [phone]
ATTORNEY FOR PLAINTIFF

/s/ Sara E. Welch
Sara E. Welch KS BAR# 16350
[e-mail]
Erin M. Naeger D Kan #78683
[e-mail]
1201 Walnut, Suite 2900
Kansas City, MO 64106
Telephone: [phone]
Facsimile: [phone]
ATTORNEYS FOR DEFENDANT

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
AMY LARIMER,

)
)
Plaintiff,
)
)
v.
)
)
U.S. BANK NATIONAL ASSOCIATION, )
)
Defendant.
)

Case No. 2:17-cv-02110-JWL

AGREEMENT TO BE BOUND AND
STIPULATION OF CONFIDENTIALITY

I, __________________________________________________, declare as follows:
1.

I have read and am familiar with the terms of the Protective Order ("Order") in the

above-captioned case governing disclosure of information designated as confidential.
2.

I have been instructed by counsel that any information designated as

"Confidential Information" shall be kept confidential and used only in the preparation of this
matter for trial and any other pre-trial proceedings in this case, including attempts to resolve the
case through mediation or any other settlement process, and that I may not disclose, convey,
publish, or duplicate any Confidential Information other than under the limited conditions
permitted in the Order.
3.

I agree to abide by all the terms of the Order and will not reveal or otherwise

communicate to anyone any Confidential Information disclosed to me pursuant thereto except in
accordance with the terms of the Order I agree not to use any Confidential Information for any
purpose other than the litigation of the above-captioned matter.

CORE/0501501.0503/134167263.2

4.

1 agree to return to producing counsel any and all documentation delivered to me

under the terms of the Order and all copies thereof and to destroy any notes in my possession
containing any Confidential Information covered by the terms of this Order.
I declare under penalty of perjury that the foregoing is true and correct.
Executed this _______ day of _______________, 201__, at ____________________.

Signature
Printed Name
Address

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