Crabb v. Walmart Inc.
AGREED PROTECTIVE ORDER granting 10 joint motion for protective order. The court finds good cause to enter the order submitted by the parties. Signed by Magistrate Judge James P. O'Hara on 11/18/2021. (amh)
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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
Case No.: 2:21-cv-2490-JWL
AGREED PROTECTIVE ORDER
The parties agree during the course of discovery it may be necessary to disclose certain
confidential information relating to the subject matter of this action. They agree 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 a 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 Defendant is expected to seek documents and
information regarding the Plaintiff’s personal financial and medical information, and Defendant
considers their confidential information, proprietary information, trade secrets, and employment
records to be confidential, and the Plaintiff considers her personal financial and medical
information to be confidential.
For good cause shown under Fed. R. Civ. P. 26(c), the court grants the parties’ Joint Motion
for Protective Order (ECF No. 10) and hereby enters the following Protective Order:
Scope. All documents and materials produced in the course of discovery of this
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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
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 are 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: (a) information prohibited from disclosure by statute; (b) information
revealing trade secrets; (c) research, technical, commercial, or financial information a party has
maintained as confidential; (d) personal identity information; (e) income tax returns; and (f) a
person’s medical information; and (g) personnel employment records of a non-party. Information
or documents that are available to the public may not be designated as Confidential Information.
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 word “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
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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.
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
promptly asserted after discovery of the inadvertent failure.
Depositions. Deposition testimony will be deemed confidential only if designated
as such when the deposition is taken or within a reasonable time 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.
Protection of Confidential Material.
General Protections. Designated Confidential Information must be used or
disclosed solely for purposes of prosecuting or defending this lawsuit, including any appeals.
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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The parties to this litigation, including any employees, agents, and
representatives of the parties;1
Counsel for the parties and employees and agents of counsel;
The court and court personnel, including any special master
appointed by the court, and members of the jury;
Court reporters, recorders, and videographers engaged for depositions;
Any mediator appointed by the court or jointly selected by the
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;
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;
The author or recipient of the document (not including a person who
received the document in the course of the litigation);
Independent providers of document reproduction, electronic discovery, or other litigation services retained or employed specifically in
connection with this litigation; and
Other persons only upon consent of the producing party and on such
conditions as the parties may agree.
Control of Documents. The parties must take reasonable efforts to prevent
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,
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 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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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.
Filing of Confidential Information. If a party seeks to file any document
containing Confidential Information subject to protection under this Order, that party must take
appropriate action to ensure that the document receives proper protection from public disclosure,
such as: (a) filing a redacted document with the consent of the party who designated the document
as confidential; or (b) 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 mere designation
of information as confidential pursuant to this Order is insufficient to satisfy the court’s
requirements for filing under seal in light of the public’s qualified right of access to court dockets.
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.
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, though, the objecting party must meet and confer
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in good faith to resolve the objection informally without judicial intervention. A party that elects
to challenge a confidentiality designation may file a motion that identifies the challenged material
and sets forth in detail the basis for the challenge; the parties are strongly encouraged to consider
arranging a telephone conference with the undersigned magistrate judge before filing such a
motion, but such a conference is not mandatory. 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.
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 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.
Obligations on Conclusion of Litigation.
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
Return of Confidential Documents. After this matter concludes by
settlement, final judgment, or final order, including all appeals, and only upon request of the
producing party, any document containing Confidential Information, including copies, shall be
returned to the producing party unless: (1) the document has been offered into evidence or filed
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without restriction as to disclosure; (2) the parties agree to destruction of the document to the extent
practicable in lieu of return; or (3) the document bears notations, summations, or other mental
impressions of the receiving party.
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.
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.
Enforcement of Protective Order. Even after the final disposition of this case, a
party or any other person with standing concerning the subject matter may file a motion to seek
leave to reopen the case for the limited purpose of enforcing or modifying the provisions of this
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
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document or issue.
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.
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 their written agreement to be bound by the provisions of this Order.
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.
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 and 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
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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 designated by the other party to this case.
Disclosure of Confidential Information Covered by Attorney-Client Privilege
or Work Product. Whether inadvertent or otherwise, the 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 workproduct 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 60 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. Although the
provisions of this section constitute an order pursuant to Rule 502(d) and (e) of the Federal Rules
of Evidence and will be construed in a manner consistent with the maximum protection provided
by said rule, nothing in this Order is intended or will be construed to limit a party’s right to conduct
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a review of documents, including electronically stored information, for relevance, responsiveness,
or segregation of privileged or protected information before production.
IT IS SO ORDERED.
Dated: November 18, 2021, at Kansas City, Kansas.
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
/s/ David L. Johnson _______
David L. Johnson (KS #26685)
DiPasquale Moore, LLC
4050 Pennsylvania Ave., Suite 121
Kansas City, MO 64111
TEL: (816) 888-7501
FAX: (816) 888-7519
ATTORNEY FOR PLAINTIFF
WE SO MOVE
and agree to abide by the
terms of this Order
/s/ Lindsay P. Windham
Lindsay P. Windham
Daniel P. Meany
HALBROOK WOOD, PC
3500 West 75th Street, Suite 300
Prairie Village, Kansas 66208
TEL: (913) 529-1188
FAX: (913) 529-1199
ATTORNEYS FOR DEFENDANT
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ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND
The undersigned hereby acknowledges that he/she has read the Protective Order dated
_______________ in the case captioned, Kelly Crabb v. Walmart Inc., 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
The undersigned acknowledges that violation of the Protective Order may result in
penalties for contempt of court.
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