National Interstate Insurance Company v. Foust Fleet Services, LLC et al
Filing
38
JOINT PROTECTIVE ORDER. The court finds good cause to enter the order submitted by the parties. Signed by Magistrate Judge James P. O'Hara on 8/27/2018. (amh)
UNITED STATES DISTRICT COURT
DISTRICT OF KANSAS
NATIONAL INTERSTATE INSURANCE
COMPANY
)
)
)
Plaintiff,
)
)
vs.
)
)
FOUST FLEET SERVICES, LLC, et al.,
)
)
Defendants.
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______________________________________ )
)
)
FOUST FLEET SERVICES, LLC
)
)
Counter-claimant
)
vs.
)
)
CORPORTATE CLAIMS SERVICE, INC., et )
al.,
)
)
Counterclaim Defendants.
)
Case No. 18-2103-JAR
JOINT PROTECTIVE ORDER
Plaintiff believes that during the course of discovery it may be necessary to disclose
certain confidential information relating to the subject matter of this action. Plaintiff
believes 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. Plaintiff seeks the entry of this proposed
Protective Order, and Defendants do not object, to limit the disclosure, dissemination, and
use of certain identified categories of confidential information.
Plaintiff asserts in support of this request that protection of the identified categories
of confidential information is necessary because it anticipates that parties will request
information in the course of litigation that Plaintiff consider confidential, private,
proprietary or trade secrets. Defendants do not object.
For good cause shown under Fed. R. Civ. P. 26(c), the court grants Plaintiff’s
unopposed 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 information they reasonably believe is confidential,
including company policies and procedures, employment/personnel records, financial
statements and records, claims handling materials, proprietary business records, trade
secrets, internal memorandum, communications concerning regulatory matters, and
company contracts. 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 each page of 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
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of an otherwise valid claim of confidentiality pursuant to this Order, so long as a claim of
confidentiality is asserted within 10 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) The parties to this litigation, including any employees, agents, and
representatives of the parties;
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If the confidential documents contain highly sensitive trade secrets or other highly sensitive com-
petitive 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
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(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;
(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.
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.
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(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
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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. If the need arises during trial or at any hearing before
the court for any party to disclose Confidential Information, a party shall strive to give the
other parties notice so that they may protect their interests. A party listing a confidential
document on an exhibit list or referencing or using it in a pre-trial motion constitutes notice
to the court and other parties that the party may present Confidential Information at a
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hearing or trial. The party seeking continued confidentiality of the document has the
burden to ask the court to 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 to whom
Confidential Material is disclosed agree that their respective attorneys of record will store
and destroy the client’s file in accordance with rules of professional responsibility and their
firm’s retention and file destruction policies.
(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
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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.
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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 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
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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 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 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 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
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Federal Rules of Evidence.
IT IS SO ORDERED.
Dated: August 27, 2018
s/ James P. O’Hara
U.S. Magistrate Judge
WE SO MOVE AND ABIDE BY THE TERMS OF THIS ORDER:
ARMSTRONG TEASDALE LLP
/s/ Patrick J. Kenny
Patrick J. Kenny #18414
7700 Forsyth Blvd., Ste. 1800
St. Louis, MO 63105
314-552-6613
314-612-2262 (fax)
pkenny@armstrongteasdale.com
Lauren Haley Navarro #27114
2345 Grand Blvd., Suite 1500
Kansas City, MO 64108
816-221-3420
816-221-0786 (fax)
lnavarro@armstrongteasdale.com
ATTORNEYS FOR PLAINTIFF NATIONAL
INTERSTATE INSURANCE COMPANY
DOLLAR, BURNS & BECKER, L.C.
/s/ Thomas J. Hershewe
Thomas J. Hershewe # 23236
Tim Dollar (Admitted Pro Hac Vice)
1100 Main Street, Suite 2600
Kansas City, MO 64105
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816-876-2600
816-221-8763 (fax)
tom@dollar-law.com
timd@dollar-law.com
ATTORNEYS FOR DEFENDANT/COUNTER
CLAIMANT FOUST FLEET SERVICES, LLC
HOLTSCLAW FIRM
/s/ Rick D. Holtsclaw
Rick D. Holtsclaw # 23733
23A East 3rd Street
Kansas City, MO 64106
816-221-2555
816 221-2508 (fax)
rick@holtsclawfirm.com
TYLER & DAS
Micky N. Das (Admitted Pro Hac Vice)
2000 Bering Dr., Suite 401
Houston, TX 77057
713-739-1900
713-739-8347 (fax)
mdas@tylerdaslaw.com
ATTORNEYS FOR DEFENDANTS
TEMPA WHITE AND BRANDY BURDA
MORROW WILLNAUER CHURCH, L.L.C.
/s/ James C. Morrow
James C. Morrow #13509
Hillary Hyde #26733
8330 Ward Parkway, Suite 300
Kansas City, MO 64114
816-382-1382
816-382-1383 (fax)
jmorrow@mwcattorneys.com
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hhyde@mwcattorneys.com
ATTORNEYS FOR COUNTERCLAIM DEFENDANT
CORPORATE CLAIMS SERVICE, INC.
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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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