Mall v. BNSF Railway Company

Filing 15

JOINT PROTECTIVE ORDER and ORDER granting 14 joint motion for protective order. The court finds good cause to enter the order submitted by the parties. Signed by Magistrate Judge James P. O'Hara on 8/3/2017. (amh)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
JILL MALL,
Plaintiff,
Case No. 2:17-cv-02257-JAR
vs.
BNSF RAILWAY COMPANY,
Defendant.

JOINT 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 to protect both the parties and other persons from annoyance
and embarrassment. Discovery in this case may seek private information concerning both parties
and nonparties, including, but not limited to, plaintiff’s confidential financial and tax information
and other private documents regarding plaintiff’s income; plaintiff’s medical records; confidential
matters concerning Defendant BNSF Railway Company’s (“BNSF”) trade secrets and any other
proprietary and confidential business information; and the personnel files of current and/or former
employees of Defendant BNSF.

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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 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.

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 nonparties. For purposes of this Order, the
parties will limit their designation of “Confidential Information” to the following categories of
information or documents: plaintiff’s financial and income records, including tax returns;
plaintiff’s medical records; personnel and/or human resources files regarding current and former
employees of Defendant BNSF; BNSF’s proprietary and financial information; documents
related to the operation of BNSF’s business, including policies, practices, or procedures; and
such other similar information the parties deem to be confidential and/or proprietary.
Information or documents that are available to the public may not be designated as Confidential
Information.
3.

Form and Timing of Designation.

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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 of 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. 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 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 receipt of the
deposition transcript. Such designation must be specific as to the portions of the transcript and/or
any exhibits to be protected.

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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, or
any other related legal proceeding brought by one of the parties to this litigation.
(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;

(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
been advised of the terms of this Order and such persons
understand that they are bound by the terms of this Order;

(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
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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. 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.
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.
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.
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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 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. Within thirty (30) days after this

litigation concludes by settlement, final judgment, or final order, including all appeals, all

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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.
(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 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

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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.

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.
16.

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.
17.

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 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 by the other party to this case.
18.

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 thirty (30) 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

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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: August 3, 2017
James P. O’Hara
U.S. Magistrate Judge James P. O’Hara

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

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

/s/ Michael Stipetich
Michael Stipetich, KS Bar No. 21453
Smith Mohlman Injury Law, LLC
4600 Madison Ave., Suite 711
Kansas City, MO 64112
[e-mail]
Telephone: [phone]
Facsimile: [phone]

/s/ David C. Vogel
David C. Vogel, KS Bar No. 18129
Constangy, Brooks, Smith & Prophete, LLP
2600 Grand Boulevard, Suite 750
Kansas City, Missouri 64108-4600
Telephone: [phone]
Facsimile: [phone]
[e-mail]

Attorneys for Plaintiff

Attorneys for Defendant

Dated: August 3, 2017

Dated: August 3, 2017

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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
_______________ in the case captioned, Jill Mall v. BNSF Railway Company, Case No.
2:17-cv-02257-JAR, 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

4682091v.1