Beerman v. Honeywell International, Inc. et al

Filing 52

PROTECTIVE ORDER granting 50 Joint Motion for Entry of Agreed Protective Order. The court finds good cause to enter the order submitted by the parties, but with minor, non-substantive changes. Signed by Magistrate Judge Angel D. Mitchell on 5/9/2024. (amh)

THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
KARLYNN BEERMAN, individually
and for and on behalf of all other surviving
heirs-at-law of MR. MARTIN BEERMAN, deceased;

)
)
)
)
and
)
)
MIKE BURGIN as Executor of the Estate
)
of MR. MARTIN BEERMAN, deceased,
)
)
Plaintiffs,
)
v.
)
)
HONEYWELL INTERNATIONAL, INC., and
)
CAPITAL AVIONICS, INC.,
)
)
Defendants.
)
________________________________________________)

Case No. 23-2427-TC-ADM

AGREED TO PROTECTIVE ORDER
The Parties agree that it may be necessary during discovery 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 a protective order to limit the disclosure, dissemination, and use of certain
identified categories of confidential information.
In support of the Parties’ request, they assert that protection of the identified categories of
confidential information is necessary because discovery in this case may involve certain trade
secret, proprietary, or confidential documents, materials, or information that may be produced by
the Parties or by third persons or entities. These documents include:
a. Trade secrets – Honeywell designed the autopilot system at issue in this case. In doing
so, Honeywell generated design, specification, testing and certification documents that

1

contain Honeywell’s specific design for the operation of its KFC 325 autopilot system
and its Honeywell brand autopilot systems. Those designs are subject to trade secrets
and patents relating to the specific manner in which its computer, servos, and related
equipment work. Honeywell has many competitors in the flight control and autopilot
business, and if Honeywell’s designs and trade secrets are not protected from disclosure
outside of this litigation, and should Honeywell’s competitors obtain these confidential
materials, it could put Honeywell at a competitive disadvantage and result in the loss
of highly valuable designs and trade secrets.
b. Proprietary product design, testing, and certification records – Similar to trade secrets,
Honeywell generated design, testing, and certification documents in designing, testing,
and submitting its autopilot design to the FAA for certification. As noted above,
Honeywell’s design and testing protocols for its autopilot system are proprietary
intellectual property owned by Honeywell, and dissemination of these materials to its
competitors would result in a competitive disadvantage and result in the loss of highly
valuable designs and trade secrets. Additionally, when Honeywell submits its designs
and testing and specification documents to the FAA for certification, it expects that the
FAA will keep these materials confidential.
c. Confidential customer records – In the course of discovery, defendants may be required
to produce data regarding other customers who have an expectation of privacy in
submitting their personal or proprietary business information to defendants.
Dissemination of such information would violate the trust and expectation of privacy
of defendants’ customers.
d. Other sensitive information that, if not restricted as set forth in this order, may subject
the producing or disclosing person to competitive or financial injury or potential
liability to third parties;
For good cause shown under Fed. R. Civ. P. 26(c), the Court grants the parties’ request and
enters the following Protective Order:
1.

Scope. All documents and materials produced in discovery, including initial

disclosures, discovery responses, deposition testimony and exhibits, and information derived
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

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 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. Trade secrets;
b. Proprietary product design, testing, and certification records;
c. Confidential customer records;
d. Confidential financial information and records;
e. Operational data, including business plans, competitive analyses, and personnel
files; and
f. Other sensitive information that, if not restricted as set forth in this order, may
subject the producing or disclosing person to competitive or financial injury or
potential liability to third parties.
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 document’s legibility. 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

3

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 certifies that the document contains Confidential Information.
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 discovering the inadvertent failure.
5.

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 based on attorney-client privilege or
work-product protection, including but not limited to information or documents that may be
considered Confidential Information, 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 7 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

4

not be deemed a violation of this Order. Although the provisions of this section constitute an order
pursuant to Federal Rules of Evidence 502(d) and (e), and will be construed in a manner consistent
with the maximum protection provided by said rule, nothing in this Order limits a party’s right to
review documents, including ESI, for relevance, responsiveness, or segregation of privileged or
protected information before production.
6.

Depositions. Deposition testimony will be deemed confidential only if designated

as such when the deposition is taken or within thirty (30) days 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.
7.
(a)

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.

(b)

Who May View Designated Confidential Information. Except with the designating
party’s prior written consent or prior court order, Confidential Information may only
be disclosed to the following persons:
1.

The Parties to this litigation and their insurers;

2.

Counsel for the Parties and members of their legal or support staff;

3.

Individuals who may be deposed in this action;

4.

Court reporters, recorders, and videographers engaged for depositions;

5.

The Court and Court personnel, including any appointed special master, jury
members, and stenographic reporters engaged in any court or judicial proceedings
as are necessarily incidental to the preparation or trial of this litigation;

6.

Any mediator appointed by the Court or jointly selected by the Parties;

7.

Any expert witness, outside consultant , or investigator retained specifically in
connection with this litigation, but only after such persons have completed the

5

certification contained in Attachment A, Acknowledgement and Agreement to be
Bound; and
8.
(c)

Any other persons as the Parties to this litigation agree to in writing or as the Court
determines.
Control of Documents.

The Parties must take reasonable efforts to prevent

unauthorized or inadvertent disclosure of documents designated as containing
Confidential Information. Counsel for the Parties must maintain a record of those
persons 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.
8.

Filing Confidential Information.

A party that seeks to file any document

containing Confidential Information 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) complying with the
Court’s under-seal filing procedure set forth in D. Kan. 5.4.2. Nothing in this Order will be
construed as a prior directive to allow any document to be filed under seal. Merely designating
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 Court’s permission
after proper motion. If the motion is granted and the requesting party is 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.
9.

Challenging a Confidential Designation.

Any party may challenge the

designation of any material or document as Confidential Information. Before filing any motion or

6

objection to a confidential designation, though, the objecting party must meet and confer in good
faith to resolve the objection informally without judicial intervention. If the parties do not agree
on a challenge to a confidentiality designation, the Designating Party has the burden to file a
motion that identifies the challenged material and sets forth in detail the basis for the challenge,
but must first arrange for a telephone conference with the undersigned magistrate judge as required
by D. Kan. Rule 37.1(a) before filing such a motion. 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.
10.

Using 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.
11.
(a)

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 litigation.

(b)

Returning Confidential Documents. Upon request of the Designating Party within
30 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 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

7

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.
Nothing in this Order shall preclude counsel of record from retaining one copy of all
Confidential Information for a period of two (2) years in order to comply with all
applicable Procedural Rules and Ethical Requirements.
(c)

Retaining Work Product. Notwithstanding the above requirements to return or
destroy documents, counsel may retain attorney work product, including an index that
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.
12.

Modification. This Order may be modified 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.
13.

Enforcement. 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.
14.

No Prior Judicial Determination. This Order is entered based on the Parties’

representations and agreements 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

8

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.
15.

Persons Bound. 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.
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.

Jurisdiction. The Court’s jurisdiction to enforce the provisions of this Agreed

Protective 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 Agreed Protective Order.
IT IS SO ORDERED.
Dated May 9, 2024, at Kansas City, Kansas.
s/ Angel D. Mitchell
Angel D. Mitchell
U.S. Magistrate Judge

9

THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
KARLYNN BEERMAN, individually
and for and on behalf of all other surviving
heirs-at-law of MR. MARTIN BEERMAN, deceased;

)
)
)
)
and
)
)
MIKE BURGIN as Executor of the Estate
)
of MR. MARTIN BEERMAN, deceased,
)
)
Plaintiffs,
)
v.
)
)
HONEYWELL INTERNATIONAL, INC., and
)
CAPITAL AVIONICS, INC.,
)
)
Defendants.
)
________________________________________________)

Case No. 23-2427-TC-ADM

ATTACHMENT A
ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND
The undersigned hereby acknowledges that he/she/they has read the Protective Order
attached hereto and dated May 9, 2024, in the case captioned Karlynn Beerman, et.al. v. Honeywell
International, Inc. et. al, and 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.
10

Name:

______________________________________

Job Title:

______________________________________

Employer:

______________________________________

Business Address:

______________________________________
______________________________________

Date: _____________

______________________________________
Signature

11