Kincaid Coach Lines, Inc. v. TransArtic of North Carolina, Inc. et al
PROTECTIVE ORDER. The parties shall abide by the terms of the order. Signed by Magistrate Judge K. Gary Sebelius on 12/6/2017. (wh)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
KINCAID COACH LINES, INC.,
TRANSARCTIC OF NORTH
CAROLINA, INC., et al.
Case No.: 17-2388-DDC
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 because documents produced in this
case are likely to include confidential, proprietary, or trade secret information such as
product formulas, proprietary business methods, and pricing information that, if
publically disclosed, could harm each party’s position in the marketplace and the value of
their intellectual property.
For good cause shown under Fed.R.Civ.P. 26(c), the court grants the parties’ joint
request for a protective order and hereby enters the following Protective Order:
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:
proprietary business records, financial statements, trade secrets, and records whose
disclosure is restricted or prohibited by statute or regulation.
Information or documents that are available to the public may not be designated
as Confidential Information.
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 30 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 litigation.
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
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
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
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.
contained in Attachment A;
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;
Insurance carriers (and their representatives) for the parties
to this litigation who are providing insurance coverage in
this matter; 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 the litigation.
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.
Retention by Counsel. Notwithstanding the above requirements to
return or destroy documents, counsel may retain confidential information produced in
discovery as part of its legal file in accordance with counsel’s file retention policies.
The retained records will continue to be confidential under this Order. An attorney may
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.
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.
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 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 15 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: December 6, 2017
s/ K. Gary Sebelius
K. Gary Sebelius
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
YERETSKY & MAHER, L.L.C.
/s/ Lauren E. Nuffort
Peter E. Goss, KS #22458
The Gross Law Firm, P.C.
4510 Belleview Ave., Suite 201
Kansas City, MO 64111
Telephone: (816) 527-8658
Facsimile: (816) 336-1310
Lauren E. Nuffort, pro hac vice
Lommen Abdo Law Firm
1000 International Centre
920 Second Avenue South
Minneapolis, MN 55402
ATTORNEYS FOR PLAINTIFF
KINCAID COACH LINES, INC.
/s/Jacob B. Harris
Jordan B. Burns KS #25789
Williams Venker & Sanders LLC
800 East 101st Terrace, Suite 350
Kansas City, MO 64131
By:_/s/Brian M. Bartlett
Christopher C. Confer, KS#21419
Brian M. Bartlett, KS#23524
7200 West 132nd Street, Suite #330
Overland Park, Kansas 66213
Telephone: (913) 897-5813
Facsimile: (913) 897-6468
ATTORNEYS FOR DEFENDANT SPAL USA,
Stephanie Warmund, KS #12792
Law Offices of Stephanie Warmund
9001 State Line Road, Suite 130
Kansas City, MO 64114
ATTORNEY FOR DEFENDANT
TRANSARCTIC OF NORTH CAROLINA, INC.
Jacob B. Harris
David E. Kawala
Swanson, Martin & Bell, LLP
330 North Wabash, Suite 3300
Chicago, IL 60611
ATTORNEYS FOR DEFENDANT
SPHEROS NORTH AMERICA, INC.
ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND
The undersigned hereby acknowledges that he/she has read the Protective Order
dated _______________ in the case captioned, _________________________________,
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: ______________________________________
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