Pipeline Productions, Inc. v. The Madison Companies, LLC, et al

Filing 101

PROTECTIVE ORDER. The parties shall abide by the terms of the order. Signed by Magistrate Judge K. Gary Sebelius on 2/22/2018. (wh)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
PIPELINE PRODUCTIONS, INC.,
BACKWOOD ENTERPRISES, LLC,
OK PRODUCTIONS, INC., and
BRETT MOSIMAN,

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Plaintiffs,
v.
THE MADISON COMPANIES, LLC,
and HORSEPOWER ENTERTAINMENT,
LLC,

Defendants.

Case No. 15-4890-KHV

PROTECTIVE ORDER
Plaintiffs/Counterclaim Defendants Pipeline Productions, Inc., Backwood Enterprises,
LLC,

OK

Productions,

Defendants/Counterclaim

Inc.,
Plaintiffs

and
The

Brett

Mosiman

Madison

(collectively

Companies,

LLC

“Pipeline”)
and

and

Horsepower

Entertainment, LLC (collectively “Horsepower”) (individually, a “party,” and collectively, “the
parties”) agree that during the course of discovery it may be necessary to disclose, disseminate,
and/or use confidential information. The Court agrees that certain information should be treated
as confidential, protected from disclosure outside this action and/or related litigation between the
parties, and/or used only to the extent necessary for purposes of preparing for, prosecuting,
and/or defending this action, related litigation, and/or any appeals. After reviewing and
considering the parties’ proposed protective orders and briefing, the Court enters this Protective
Order to limit the disclosure, dissemination, and/or use of Confidential Information.
Confidential Information is necessary because the parties anticipate disclosure of
proprietary, sensitive, confidential business information, and/or trade secrets they do not want to

share outside this action and/or related litigation between the parties as more fully defined below.
For good cause shown under Fed. R. Civ. P. 26(c), the Court hereby enters the following
Protective Order:
1. Scope. All documents and materials produced in the course of discovery of this case,
including without limitation, initial disclosures, documents and/or communications produced,
answers to interrogatories, responses to requests for production, responses to requests for
admission, deposition testimony and exhibits, and/or other information disclosed pursuant to
disclosure or discovery duties (regardless of how it is generated, stored, or maintained), and
information derived directly therefrom 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 and/or the parties’ related 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, materials, and/or documents:
(a) research, development, or sensitive commercial information including
sales, profits, and profit margins;
(b) sensitive corporate strategy;
(c) pricing or cost data, sales, and/or profits data;

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(d) competitively sensitive information, including information regarding currently
pending competitive projects being pursued by a party which have not been subject to any
disclosure beyond that party and which is maintained in secrecy;
(e) personnel files;
(f) private personal information concerning any party and non-party such as tax returns
and social security numbers;
(g) information containing any party’s trade secret information;
(h) any party’s proprietary business information;
(i) information relating to any party’s pending confidential, internal
investigations;
(j) information relating to any party’s confidential and proprietary business and
operational strategies and plans, economic and market analyses, financial projections, non-public
financial statements, valuations, appraisals, and cost information.
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” (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 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

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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. Pursuant to Fed. R. Evid. 502(d), a party’s
disclosure or production of any documents or information in this litigation and/or the parties’
related litigation shall not, for the purposes of this proceeding or any other proceeding in any
other court, constitute a waiver by that party of any privilege or protection applicable to those
documents, including the attorney-client privilege, work product protection, and any other
privilege or protection recognized by law. The provisions of Fed. R. Evid. 502(b) are
inapplicable to the production of documents or information in litigation between the parties.
Specifically, there has been no waiver if a party discloses privileged or protected information
inadvertently or otherwise, regardless of whether the party took reasonable steps to prevent the
disclosure or to rectify the error. Such inadvertently produced documents or information shall be
considered Confidential Information under this Protective Order. Anyone receiving any such
privileged or protected documents or information shall return them to the producing party, upon
request, within three (3) business days of receiving such request, delete any versions of the
documents it maintains, and make no use of the information contained therein regardless of
whether the receiving party agrees with the claim of privilege and/or work product protection
other than to challenge their designation using the same procedure as specified in Paragraph 8.

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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
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 preparing for, prosecuting, and/or defending this action, the parties’ related
litigation, and/or 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 their employees, agents, and
representatives;
(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 a jury;
(4) Court reporters, stenographic recorders, and videographers engaged
for depositions;
(5) Any mediator appointed by the court or agreed upon by the parties;
(6) Any expert witness, outside consultants, investigators, appraisers, accountants,
and/or representatives 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,
Acknowledgment and Agreement to be Bound;

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(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 written 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 parties must maintain a record of
those persons who have reviewed or been given access to the documents along with 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, protected by the attorney-client privilege, and or subject
to the attorney work-product doctrine is subject to challenge by any party. Before filing any
motion or objection to a confidential designation, the objecting party must notify the producing
party within a reasonable amount of time after receipt of the material that the receiving party
does not concur in the designation of a document or other material and thereafter meet and
confer in good faith to resolve the objection informally without judicial intervention. A party that
elects to challenge a designation may, within ten (10) business days after the parties have met
and conferred, file and serve a motion that identifies the challenged material and sets forth in
detail the basis for the challenge. If no such motion is timely filed, such documents or materials
so designated shall continue to be treated as Confidential Information or protected by the
attorney-client privilege or work product doctrine. If such motion is filed, the burden of proving
the necessity of a designation remains with the party asserting it. Until the court rules on the
challenge, all parties must continue to treat the materials as designated 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

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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 and/or the
parties’ related 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 or destroyed
in lieu of return unless the document has been offered into evidence or filed without restriction as
to disclosure. In the event that any party chooses to destroy physical objects and documents, such
party shall certify in writing within 60 days after this litigation concludes by settlement, final
judgment, or final order, including all appeals that such physical objects and documents have
been destroyed to the best of its knowledge.
(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.
Counsel also may retain a copy of pleadings, motion papers, discovery responses,
deposition transcripts, and deposition and trial exhibits.

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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.
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. 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 parties
agree to extend the provisions of this Protective Order to Confidential Information produced in

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this case and/or the parties’ related litigation 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. 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 designated 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

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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 work product 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) business 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: February 22, 2018
s/ K. Gary Sebelius
U.S. Magistrate Judge

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ATTACHMENT “A”
Acknowledgment of Stipulated Protective Order
Concerning the Production and Exchange of Confidential Information
I, the undersigned, hereby acknowledge:
1. My present employer is ____________________________________________________ .
2. My present occupation or job description is_____________________________________ .
3. I have received a copy of the Stipulated Protective Order Concerning the Production and
Exchange of Confidential Information (“Protective Order”) entered in Pipeline Productions, Inc.
et al. v. The Madison Companies, LLC, Case No. 5:15-cv-04890-KHV-KGS, United States
District Court for the District of Kansas (the “Action”).
4. I have carefully read and understand the provisions of the Protective Order, and I agree I will
comply with, and be bound by, the provisions of the Protective Order.
5. I will hold in confidence, will not disclose to anyone not qualified to receive such information
under the terms and conditions cited in the Protective Order, and will use only for purposes of
advancing or defending a party’s claims or defenses in the Action any Confidential Information
that is disclosed to me, and not other purposes (whether litigation, commercial, or otherwise)
whatsoever.
6. I will return all Confidential Information that comes into my possession, and documents or
things that I have prepared relating thereto, to counsel for the party by whom I am employed
or retained, or to counsel from whom I received the Confidential Information.
7. I hereby submit myself to the jurisdiction of the United States District Court for the District of
Kansas for the purpose of enforcement of the Protective Order.

____________________________________________
Full Name and Title
___________________________
Signature

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Date