Snapp v. Genesis Healthcare LLC et al

Filing 21

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 9/6/2018. (amh)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
DEBRA SNAPP,

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Plaintiff,
vs.
GENESIS HEALTHCARE, LLC, et al.,
Defendants.

Case No. 18-2161-DDC

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 Plaintiff alleges violations of
the Americans with Disabilities Act and the Family and Medical Leave Act. The parties
anticipate that certain documents and information will be requested in discovery to
support Plaintiff’s claims including medical records, personnel records, and other
confidential personnel and business documents.
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For instance, Plaintiff anticipates

requesting documents and information regarding Defendants’ operations, financial
conditions, customers, employment applicants, and employees that are likely to be
proprietary and confidential in nature. Defendants deny they treated Plaintiff unlawfully
and deny all of Plaintiff’s claims. In support of their defenses, Defendants anticipate
requesting documents and information regarding Plaintiff’s personal, financial, medical
and educational condition and her treatment, as well as Plaintiff’s FMLA records. The
parties consider the information that may be requested to be private and confidential.
The purpose of this Protective Order is to prevent and/or limit the disclosure of
documents and information the parties appropriately deem private and/or confidential.
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
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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 records regarding Plaintiff, as well as personnel information
of other employees and former employees of Defendants; proprietary and confidential
economic and financial information; financial statements and records; proprietary
business documents of Defendants; and other such similar information the parties deem
to be confidential and/or proprietary. Information or documents that are available to the
public or which have been subject to general distribution 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” (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
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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
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 after discovery of the inadvertent failure to designate.
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:
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(1)
The parties to this litigation, including any employees, agents,
and representatives of the parties; however, such disclosure to
employees, agents, and representatives will occur only to the extent
such confidential documents or information will assist the employee,
agent and/or representative in recalling, relating, or explaining facts
or in testifying, and only after such persons have been advised that
the information is confidential;
(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 that the information is confidential;
(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.

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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.
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 ensure that the document
receives proper protection from public disclosure including: (a) filing a redacted
document in a manner that preserves the confidential nature of the document; (b)
receiving the consent of the party who designated the document as confidential; (c) where
appropriate (e.g., in relation to discovery and evidentiary motions), submitting the
document solely for in camera review; or (d) 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.
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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 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 in the record. 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 sixty days after this

litigation concludes by settlement, final judgment, or final order, including all appeals,
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and upon a request within that time period, 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.
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.

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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.
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
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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 ten days, regardless of whether the receiving party agrees
with the claim of privilege and/or work-product protection. This, however, does not
foreclose that if there is a dispute, either party may seek appropriate assistance from the
Court. 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: September 6, 2018
s/ James P. O’Hara
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
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/s/ Kevin C. Koc
Patrick G. Reavey, KS# 17291
Kevin C. Koc, KS# 24953
REAVEY LAW LLC
The Livestock Exchange Building
1600 Genessee, Suite 303
Kansas City, MO 64102
[e-mail]
[e-mail]

ATTORNEYS FOR PLAINTIFF

/s/ Daniel B. Boatright
Daniel B. Boatright, KS#15298
LITTLER MENDELSON, P.C.
1201 Walnut Street, Suite 1450
Kansas City, MO 64106
Telephone: [phone]
Facsimile: [phone]
[e-mail]
ATTORNEYS FOR DEFENDANTS
GENESIS HEALTHCARE, LLC,
WATHENA HEALTHCARE AND
REHABILITATION CENTER LLC,
GHC PAYROLL LLC,
BECKY WILSON, and
DAVID HANEKE

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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
the ____ day of September, 2018 in the case captioned, Debra Snapp v. Genesis Healthcare,
LLC, Wathena Healthcare and Rehabilitation Center LLC, GHC Payroll LLC, Becky Wilson, and
David Haneke, 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