ANB Bank v. JMK Properties, L.L.C. et al

Filing 26

PROTECTIVE ORDER. The parties shall abide by the terms of the order. Signed by Magistrate Judge K. Gary Sebelius on 9/11/2017.(wh)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
ANB BANK,

Plaintiff,
v.
JMK PROPERTIES, L.L.C., et al.,
Defendants.

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Case No. 17-2234-JAR

PROTECTIVE ORDER
The parties agree that confidentiality of the financial information of Defendants is
appropriate in this case because two of the Defendants and their law firm actively
practice before this Court. In order to protect from public access said financial
information, the parties agree that documents already produced in Rule 26 disclosures
and documents that may be produced in the future that contain Confidential Information
(defined below) during the course of discovery should be treated as confidential and
subject to this order. The parties jointly request entry of this proposed Protective Order to
limit the disclosure, dissemination, and use of certain identified categories of confidential
information.
Defendant JMK Properties, LLC (“JMK” or “Borrower”) is a Missouri limited
liability company that owns the real estate at issue (“Property”), a professional office
building located in Kansas City, Missouri. Defendants Brian McCallister, Cynthia Short,

and the McCallister Law Firm have each executed and delivered Guaranties for the
JMK’s obligations under the loan.
Defendants McCallister Law Firm, P.C., Brian McCallister, and Cynthia Short are
actively engaged in the practice of law, and public dissemination of their financial
dealings and information without a protective order may adversely interfere and harm the
interests of their clients and themselves in matters pending before the any court.
For good cause shown under Fed. R. Civ. P. 26(c), the court grants the parties’
Joint Motion for Protective Order (ECF No. 25)] 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 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. Further, northing herein shall
prohibit Plaintiff ANB Bank and/or Defendant United States Small Business
Administration from using said Confidential Information as part of their business in
accordance with all applicable privacy regulations.
2. Definition of Confidential Information. As used in this Order, “Confidential
Information” is defined as any document produced by any party in their Rule 26
Disclosures except for those documents attached as Exhibits to Plaintiff’s Petition,
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Defendant’s Counterclaim and the Answer of any Defendant, as amended. The parties
also agree the following categories of documents will be deemed confidential with
respect to any documents produced in discovery from the date of this order forward:
a) Financial Statements and Records of Defendants;

b) Loan applications of Defendants;

c) Financial projections and other proprietary business records of Defendants;

d) Real estate appraisals of the subject property;

e) Credit Reports of Defendants; and

f) any other banking documentation relating to Defendants;

Information or documents that are available to the public may not be designated as
Confidential Information.

3. Form and Timing of Designation. For any documents previously produced by
the parties in their Rule 26 Disclosures, any party wishing to use such documents in any
deposition or court filing or proceeding shall place the words “Confidential – Subject to
Protective Order” on the document and all copies. For any additional documents
produced by any party after the date of this Protective Order, 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 3

SUBJECT TO PROTECTIVE ORDER” (hereinafter “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.

4. Inadvertent Failure to Designate. The parties do not believe there will be any
issue of an inadvertent failure to designate. However, in the unlikely event any document
is inadvertently filed with this Court without any designation, said filing shall 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 sixty (60) 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

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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 may be used or
disclosed for purposes of prosecuting or defending this lawsuit, including any appeals.
Nothing herein prevents the Plaintiff ANB Bank, or Defendant United States Small
Business Administration, from using Confidential Information for business purposes in
accordance with the federal privacy rules and regulations.
(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)

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;
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(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 prevent
unauthorized or inadvertent disclosure of documents designated as containing
Confidential Information pursuant to the terms of 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.
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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.
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
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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.
(b) Return of Confidential Documents. The parties agree there will be no need
to return confidential documents at the conclusion of the case because Plaintiff ANB
Bank and Defendant United States Small Business Administration need to keep said
confidential information in their records for business purposes.
(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

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parties have been given notice and an opportunity to be heard on the proposed
modification.
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. Inadvertent Disclosure of Confidential Information Covered by AttorneyClient 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
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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) business 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: September 11, 2017

s/ K. Gary Sebelius
K. Gary Sebelius
U.S. Magistrate Judge

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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

VINCENT F. O’FLAHERTY,

LATHROP GAGE LLP ATTORNEY, LLC

s/Vincent F. O’Flaherty
Vincent F. O’Flaherty
KS #16954
2 Emanuel Cleaver II Blvd., #445
Kansas City, MO 64112
816-931-4800 – Telephone
Email: [e-mail]
Attorney for Defendant JMK
Properties, LLC

s/Carrie Josserand
Carrie Josserand KS#18893
1 0 8 51 Mastin, Suite 1000
Overland Park, KS 66210
913-451-5100 – Telephone
Email: [e-mail]

Dated:

9/8/17

John T. Coghlan KS #14438
2345 Grand Blvd., Suite 2200
Kansas City, MO 64108
816-292-2000 – Telephone
Email: [e-mail]
Attorneys for Plaintiff ANB Bank
Dated:

WE SO MOVE
and agree to abide by the terms of
this Order
THOMAS E. BEALL, US Attorney
s/Christopher Allman
Christopher Allman
KS #14225 500
State Street, #360
Kansas City, KS 66101 913551-6730 – Telephone
Email: [e-mail]
Attorneys for SBA
Dated:

9/8/17

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9/8/17