McGee v. Nazdar
Filing
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PROTECTIVE ORDER and ORDER granting 22 motion for entry of a protective order. Signed by Magistrate Judge James P. O'Hara on 10/16/2018. (amh)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
NAKENIA N. MCGEE,
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) Case No. 18-2253-CM
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Plaintiff,
v.
NAZDAR COMPANY,
Defendant.
PROTECTIVE ORDER
Defendant has filed a motion for entry of a protective order (ECF No. 22), stating that
during the course of discovery, it may be necessary to disclose certain confidential information
relating to the subject matter of this action. Defendant asserts 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. Defendant requests
entry of this Protective Order to limit the disclosure, dissemination, and use of certain identified
categories of confidential information.
Defendant asserts that protection of the identified categories of confidential information is
necessary because this is a disability discrimination and retaliation action brought under Title VII,
42 U.S.C. § 2000e et seq. Some of the documents which may be produced in this case may contain
confidential employment, personal, medical, and/or financial information regarding plaintiff,
and/or confidential employment or financial information regarding current and/or former
employees, clients, or vendors of defendant. Moreover, some of the documents may contain trade
secrets, confidential financial, proprietary, or commercial information of defendant.
For good cause shown under Fed. R. Civ. P. 26(c), the court grants defendant’s motion 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.
Definition of Confidential Information. As used in this Order, “Confidential
2.
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,
“Confidential Information” may include, but is not limited to, the following categories of
information or documents:
Personnel files and other employment files relating to Defendant’s employees’
performance, discipline, or other matters where the employee may have an
expectation of privacy;
Personally Identifiable Information, including social security numbers, bank or
other financial account information, and date of birth of Plaintiff and current or
former employees of Defendant;
Documents submitted to the EEOC which are not publicly available;
Proprietary business records, including records created by Defendant, relating to
or from customers or clients of Defendant;
Financial records of Plaintiff and Defendant;
Proprietary documents or any documents related to any of Defendant’s trade
secrets;
Records whose disclosure are restricted or prohibited by statute, agreement, or
otherwise;
Information or documents that are available to the public may not be designated as
Confidential Information.
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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 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.
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.
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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) The parties to this litigation, including any employees, agents, and
representatives of the parties;1
(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 completed the certification contained in Attachment
A, and provided that such witnesses will not retain copies of confidential
documents;
(8) The author or recipient of the document (not including a person who
received the document in the course of the litigation);
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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 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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(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.
(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 Defendant or the pro se Plaintiff
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 the requested documents under seal, only counsel of record and
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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 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.
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(b)
Return of Confidential Documents. Within 90 days after this litigation
concludes by settlement, final judgment, or final order, including all appeals, if requested by the
producing party, all original 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. Nothing in this section requires a party, its counsel, or consultants to
delete discovery material which may reside on one or more backup tapes or other media maintained
for purposes of disaster recovery, business continuity, or other reasons, except that all such
Confidential Information will continue to be confidential under this Order.
(c)
Retention of Work Product. Notwithstanding the above requirements to
return or destroy documents, counsel for the parties may retain a copy of Confidential Information
as part of counsels’ case files. Confidential Information retained in the receiving attorney’s case
file 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.
In addition, the receiving attorney or pro se plaintiff may not use Confidential Information in any
separate subsequent or concurrent litigation against the producing party.
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
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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.
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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 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 pro se Plaintiff, 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
provisions of this Protective Order are extended 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
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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
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
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receiving party must return the information or documents to the producing party within five 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: October 16, 2018
s/ James P. O’Hara
U.S. Magistrate Judge
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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, Nakenia N. McGee v. Nazdar, 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
4849-7689-6888, v. 2
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