Pierce v. PrimeRevenue, Inc. et al
AGREED PROTECTIVE ORDER and ORDER granting 28 joint motion for entry of protective order. Signed by Magistrate Judge James P. O'Hara on 7/19/2017. (amh)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
DAVID QUILLIAN, and
Case No.: 2:17-cv-2233-JTM
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. The parties jointly request entry of this Protective Order to
limit the disclosure, dissemination, and use of certain identified categories of confidential
The parties assert in support of their request that protection of the identified
categories of confidential information is necessary because propriety and confidential
information relating to PrimeRevenue, Inc.’s (“PrimeRevenue” or Defendant”) finances,
employees and/or business operations may be disclosed through the course of discovery.
Likewise, the parties assert that this order is necessary to protect the private and
confidential information of Plaintiff and Defendants P.J. Bain (“Bain”) and David Quillian
(“Qullian”), including but not limited to information relating to their employment histories,
education, income, and financial holdings.
For good cause shown under Fed. R. Civ. P. 26(c), the court grants the parties’ Joint
Motion for Protective Order (ECF No. 28) and hereby enters the following Protective
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:
The personnel and/or human resources files regarding PrimeRevenue, Inc.’s
current and former employees as maintained by PrimeRevenue or other
prospective and former employers; information regarding Plaintiff’s alleged
damages, and the financial, education, military, employment and other
personal information of Plaintiff and Defendants Bain and Quillian; the
personnel, payroll, medical and/or human resources files of current and/or
former employees of PrimeRevenue, to the extent that they are subject to
discovery; documents and information related to PrimeRevenue’s personnel
decisions; and confidential and proprietary information regarding
PrimeRevenue’s business operations, financial transactions, stock options,
stock offerings, and commission structure and payments, including policies,
procedures, to the extent they are subject to discovery. All of the foregoing
information, as well as any documents, designated portions of deposition
testimony, responses to interrogatories, requests for admissions, or requests
for production of documents concerning the above-captioned information
may be designated as “Confidential Information.”
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 twenty-one (21) days after discovery of the inadvertent
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
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 Attachment A;
The author or recipient of the document (not including a
person who received the document in the course of the
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.
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.
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
Return of Confidential Documents.
Within 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; 2 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.
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.
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 modification.
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.
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.
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.
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
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 five (5) 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: July 19, 2017, at Kansas City, Kansas.
s/ James P. O’Hara
U.S. Magistrate Judge James P. O'Hara
WE SO MOVE and agree to abide by the terms of this Order
/s/ Brian J. Christensen
Brian J. Christensen, KS #16528
Kyle B. Russell, KS #20457
Janelle L. Williams, KS #25343
JACKSON LEWIS P.C.
7101 College Blvd, Suite 1150
Overland Park, KS 66210
Telephone: (913) 981-1018
Facsimile: (913) 981-1019
ATTORNEYS FOR DEFENDANTS
PRIME REVENUE, INC., DAVID QUILLIAN AND P.J. BAIN.
/s/ Christopher F. Pickering
Christopher F. Pickering, KS #14272
130 N. Cherry St., Suite 100
Olathe, KS 66061
ATTORNEY FOR PLAINTIFF TERRY PIERCE
AGREEMENT TO BE BOUND
The undersigned hereby acknowledges that he/she has read the Protective Order
dated _______________ in the case captioned, Pierce v. PrimeRevenue, Inc., Case No.
2:17-cv-2233, 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.
Business Address: ___________________________
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?