Consumer Financial Protection Bureau v. Integrity Advance, LLC et al
Filing
41
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 3/1/2022. (amh)
Case 2:21-mc-00206-JWL-JPO Document 41 Filed 03/01/22 Page 1 of 12
UNITED STATES DISTRICT COURT
DISTRICT OF KANSAS
CONSUMER FINANCIAL
PROTECTION BUREAU,
Plaintiff,
Case No. 2:21-mc-00206-JWL
v.
INTEGRITY ADVANCE, LLC, et al.
Defendants.
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 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, any related
collections proceedings, and any appeals except that the Parties also acknowledge the statutory
obligations and regulatory permission of the Consumer Financial Protection Bureau (Bureau) to
share confidential information under this Order with other federal and state agencies. The parties
jointly request entry of a protective order to limit the disclosure, dissemination, and use of certain
identified categories of confidential information.
Judgment Debtor James R. Carnes (Carnes) asserts in support of this request that protection
of the confidentiality of clients for which he and/or his consulting business performs or has
performed services is necessary to protect him, his business, and his clients because it contains
sensitive business and competitive 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 post-judgment
discovery of this case, including 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 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 identities of the clients for which Carnes and/or Carnes’
consulting business performs or has performed services. 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 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
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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 a reasonable time 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 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 or any related collections
proceedings, including any appeals, subject to the other terms and conditions of this Order.
(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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(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 their 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;
(10)
Federal or state agencies by the Bureau where the disclosure is
required or permitted by statute or regulation; and
(11)
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. 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. 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, including pro hac
vice attorneys representing the Bureau, and unrepresented parties will have access to the sealed
documents.
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
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motion or objection to a confidential designation, though, 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 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.
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 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 sixty (60) days after this
litigation concludes by settlement, final judgment, or final order, including any related collections
proceedings and all appeals, all documents designated as containing Confidential Information,
including copies as defined above,
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must be returned to the party who previously produced the document or destroyed and the
destruction be certified to the producing party or retained as required by federal recordkeeping
requirements in a manner that ensures the confidentiality of the material unless the document has
been offered into evidence or filed without restriction as to disclosure.
(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.
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
Order.
13.
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
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under Fed. R. Civ. P. 26(c) or otherwise until such time as the court may rule on a specific
document or issue.
14.
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.
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 their written agreement to be bound by the provisions of this Order.
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, 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 Confidential
Information in the court from which the subpoena or order issued. The designating party bears the
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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.
18.
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 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 (10) 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 a review of documents, including electronically-stored information, for relevance,
responsiveness, or segregation of privileged or protected information before production.
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IT IS SO ORDERED.
Dated: March 1, 2022
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/ Jacob N. Reinig_____________________
Mark T. Benedict (KS # 16418)
Jacob N. Reinig (D. KS # 78888)
Husch Blackwell LLP
4801 Main Street, Suite 1000
Kansas City, Missouri 64112
(816) 983-8000 (Phone)
(816) 983-8080 (FAX)
mark.benedict@huschblackwell.com
jake.reinig@huscblackwell.com
ATTORNEYS FOR JAMES R. CARNES
/s/_Bradley H. Cohen___________________
BRADLEY H. COHEN (D.C. 495145)
STEPHEN C. JACQUES (D.C. 464413)
BENJAMIN J. CLARK (Ill. 6316861)
Senior Litigation Counsel
Consumer Financial Protection Bureau
1700 G Street, N.W.
Washington, D.C. 20552
Phone: 202-435-9280
Email: bradley.cohen@cfpb.gov
CHRISTOPHER ALLMAN
WENDY A. LYNN
KS S. Ct. No. 14225
KS S. Ct. No. 296768
Assistant U.S. Attorneys
500 State Avenue, Suite 360
Kansas City, KS 66101
Tel. 913-551-7630
Fax 913-551-6541
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Chris.Allman@usdoj.gov
ATTORNEYS FOR THE CONSUMER
FINANCIAL PROTECTION BUREAU
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ATTACHMENT A
ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND
The undersigned hereby acknowledges that they have read the Protective Order dated
March 1, 2022 in the case captioned, Consumer Financial Protection Bureau v. Integrity Advance,
LLC, et al, Case No. 2:21-mc-00206, 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 them 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:
_________________________________
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