Equal Employment Opportunity Commission v. SMX, LLC
Filing
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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 6/12/2018. (amh)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
EQUAL EMPLOYMENT
OPPORTUNITY COMMISSION,
Plaintiff,
v.
SMX, LLC, d/b/a STAFF
MANAGEMENT | SMX,
Defendant.
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Civil Action No. 2:18-CV-02058-JWL
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 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 this case involves
allegations of employment discrimination which may require the production of
confidential information such as the Charging Party’s financial and medical
information, personnel files of Defendant’s employees, Defendant’s proprietary and
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confidential business and financial information, as well as sensitive information
regarding alleged sexual misconduct.
For good cause shown under Fed. R. Civ. P. 26(c), the court hereby grants the
parties’ joint request and enters the following Agreed 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: medical records, personnel files, tax returns, financial
statements and records, proprietary business records, policies and procedures, trade
secrets, records whose disclosure is restricted or prohibited by federal statute, or
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testimony regarding the foregoing categories. Information or documents that are
available to the public may not be designated as Confidential Information.
3.
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.
4.
Inadvertent Failure to Designate. Inadvertent failure to designate
any document or material as containing Confidential Information will not constitute
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a waiver of an otherwise valid claim of confidentiality pursuant to this Order, so
long as a claim of confidentiality is asserted within thirty 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.
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,
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.
Outside and in-house counsel for the parties, as well as
members and employees of their firms including but not
limited to their paralegals, investigative, secretarial, and
clerical personnel who are employed by and engaged in
assisting such counsel in this lawsuit;
2.
The court and court personnel, including any special
master appointed by the court, and members of the jury;
3.
Court reporters, recorders, and videographers engaged for
depositions;
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4.
Any mediator appointed by the court or jointly selected
by the parties;
5.
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;
6.
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;
7.
The author or recipient of the document (not including a
person who received the document in the course of the
litigation);
8.
Independent providers of document reproduction,
electronic discovery, or other litigation services retained
or employed specifically in connection with this
litigation;
9.
To the most limited extent possible, those current and
former directors, officers, employees, or other current or
former representatives or agents, of a party or its
corporate parent whose review of the specific
Confidential Information is reasonably necessary to
assist in the prosecution or defense of this lawsuit. But,
Confidential Information concerning medical or
financial information relating to charging party or any
other allegedly aggrieved individual on whose behalf the
EEOC seeks relief may not be disclosed to Abbas
Mohammed. However, a party that originally designated
information as “CONFIDENTIAL” may reveal such
information to any of its own directors, officers,
employees, or other representatives;
10.
The charging party and any allegedly aggrieved
individuals on whose behalf EEOC seeks relief; and
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11.
c.
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.
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
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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 Confidential Information. The court may thereafter
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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. Return or destruction of
confidential information possessed by EEOC, an agency of the federal government,
shall conform to agency regulations and applicable law governing the retention and
destruction of case files. Within sixty 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, possessed by all other parties besides the EEOC 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
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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 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.
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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
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,
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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.
18.
Inadvertent Disclosure of Confidential Information Covered by
Attorney-Client Privilege, Work Product Protection, or Governmental
Deliberative Process Privilege. The inadvertent disclosure or production of any
information or document that is subject to an objection on the basis of
attorney-client privilege, work-product protection, or deliberative process privilege
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 privileged or protected 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 seven days, regardless of whether the
receiving party agrees with the claim of privilege and/or 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: June 12, 2018
s/ James P. O’Hara
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
/s/Emily A. Keatley
Signature
/s/Kim Seten
Signature
Emily A. Keatley
Printed Name
Counsel for Plaintiff EEOC
Dated: June 11, 2018
Kim Seten
Printed Name
Counsel for Defendant SMX
Dated: June 11, 2018
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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, _________________________________,
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:
__________________________________________
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