Aspen Square, Inc. v. American Automobile Insurance Company
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 8/6/2018. (amh)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
ASPEN SQUARE, INC.,
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Plaintiff,
v.
AMERICAN AUTOMOBILE
INSURANCE COMPANY
Defendant.
Case No. 2:18-cv-02255-JAR
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 to protect proprietary, confidential commercial information
relating to the parties’ and third-parties’ business practices, financial records, competitive business
strategies, and other non-public and sensitive information.
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:
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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, the parties
will limit their designation of “Confidential Information” to the following categories of
information or documents:
•
Proprietary business records and trade secrets, including but not limited to claims
manuals, guidelines, policies and procedures, and proprietary portions of the claim
file and underwriting file;
•
Tax returns;
•
Financial statements and records.
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
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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 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.
6.
Protection of Confidential Material.
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(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;
(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;
(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 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. A party may challenge
a confidential designation at any time by notifying the designating party of the reasons for the
challenge in writing. If the challenged party does not agree to de-designate the document then
within seven (7) days of receipt of the challenge the parties must meet and confer in good faith to
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resolve the objection informally without judicial intervention. If following the meeting the
designating party elects to maintain the confidentiality designation then within seven (7) days of
the meeting that party must file and serve a motion that identifies the challenged material and sets
forth in detail the basis for the confidentiality designation and requests a protective order
maintaining the confidentiality of the disputed document. 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.
(b)
Return of Confidential Documents. Within 60 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
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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.
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.
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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.
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 14 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:
August 6, 2018
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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
SANDBERG PHOENIX & von GONTARD P.C.
By:
/s/ Meghan E. Lewis
Aaron D. French, #78708
Meghan E. Lewis, #24453
4600 Madison Avenue, Suite 1000
Kansas City, MO 64112
816-627-5332
816-627-5532 (Fax)
afrench@sandbergphoenix.com
mlewis@sandbergphoenix.com
Attorneys for Defendant
American Automobile Insurance Company
and
By:
/s/ William J. Skepnek
William J. Skepnek
The Skepnek Law Firm, PA
1 Westwood Rd.
Lawrence, KS 66044
785-856-3100
785-856-3099(Fax)
bskepnek@skepneklaw.com
Attorney for Plaintiff
Aspen Square, 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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