Moore v. Advance America, Cash Advance Centers of Kansas, Inc.
Filing
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JOINT PROTECTIVE ORDER and ORDER granting 12 joint motion for entry of proposed protective order. The court finds good cause to enter the order submitted by the parties. Signed by Magistrate Judge James P. O'Hara on 5/23/2018. (amh)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
ROBIN MOORE,
Plaintiff,
v.
ADVANCE AMERICA,
CASH ADVANCE CENTERS OF
KANSAS, INC.
Defendant.
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Case No. 2:18-CV-02097-JAR
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 the purpose 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 the use of certain identified categories of confidential information.
The parties assert that protection of the identified categories of confidential information is
necessary to protect Plaintiff’s personal, financial, and employment information. In addition,
Defendant’s proprietary information, trade secrets, financial information, and employment records
of current and former employees need to be confidential because of the potential harm that could
be caused if competitors and the general public were given access to such information.
The
privacy interests in such information substantially outweigh the public’s right of access to these
records. Good cause exists for the issuance of a protective order under Federal Rule of Civil
Procedure 26(c).
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 the 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:
•
non-public, confidential financial information of Defendant;
•
the non-public proprietary or confidential information
relating to Defendant’s business, marketing, sales, policies
and procedures, and/or employment practices;
•
the non-public, confidential personnel and/or human
resources files, or other employment records, of any of the
Defendant’s current or former employees;
•
pursuant to Paragraph 16, any confidential, proprietary, or
trade secret information of any third party;
•
employment records, medical records, financial and/or tax
records relating to Plaintiff; and
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•
documents containing Plaintiff’s home address, phone
numbers, social security number, and date of birth.
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” or “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 a waiver of an otherwise
valid claim of confidentiality pursuant to this Order, so long as a claim of confidentiality is asserted
within a reasonable time after discovery of the inadvertent failure.
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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 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)
Plaintiff and any current management employees of Defendant
who provides actual assistance in this litigation and only to the
extent necessary to allow him/her to provide such assistance;
(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
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persons have completed the certification contained in Attachment
A, Acknowledgment and Agreement to be Bound;
(7)
Any person from whom testimony is taken (whether in a deposition
or at trial), but only to the extent it is necessary to share the
confidential information when taking his or her testimony;
(8)
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;
(9)
The author or recipient of the document (not including a person who
received the document in the course of the litigation);
(10)
Independent providers of document reproduction, electronic
discovery or other litigation services retained or employed
specifically in connection with this litigation; and
(11)
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.
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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.
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.
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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.
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. Upon request and within thirty (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; 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.
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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.
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.
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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
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
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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 this 23rd day of May, 2018.
s/ James P. O’Hara
JAMES P. O’HARA
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
/s/ Kathryn S. Rickley
Signature
/s/ Elizabeth E. Tobin
Signature
Kathryn S. Rickley
Printed Name
Elizabeth E. Tobin
Printed Name
Counsel for: Plaintiff
Counsel for: Defendant
Dated: May 23, 2018
Dated: May 23, 2018
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ATTACHMENT A
ACKNOWLEDGMENT
AND
AGREEMENT TO BE BOUND
The undersigned hereby acknowledges that he/she has read the attached Protective Order
dated _______________, in the United States District Court for the District of Kansas, in the case
captioned, Robin Moore v. Advance America, Cash Advance Centers of Kansas, Inc., bearing case
number 2:18-CV-02097-JAR-JPO, and 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
34195375.1
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