Ratley v. United States of America
AGREED PROTECTIVE ORDER. The court finds good cause to enter the protective order submitted by the parties. Signed by Magistrate Judge James P. O'Hara on 10/2/2017. (amh)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
Case No. 17-4024-DDC
UNITED STATES OF AMERICA,
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
The parties assert in support of their request that protection of the identified
categories of confidential information is necessary because the information may be
encompassed by the Privacy Act of 1974, 5 U.S.C. § 552(a), or otherwise contain personal,
private, or confidential information, including personal information, personal identifying
information, and information from an employee’s personnel file. In order to permit the
parties to discover and use throughout this proceeding all information relevant to the
subject matter of this case without making this information public and thus undermining
the legislative purpose of the Privacy Act, to allow the defendant to disclose information
contained in personnel records, and for good cause shown, the court, pursuant to 5 U.S.C.
§ 552(b)(6), and subject to protection under Fed. R. Civ. P. 26(c), the court hereby enters
the following Protective Order:
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 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
For purposes of this Order, the parties will limit their designation of
“Confidential Information” to the following categories of information or documents:
Documentation contained in Connie Harzman’s personnel file or
credentialing file and provided in response to discovery requests.
Information or documents that are available to the public may not be designated as
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 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 document as confidential, the designating attorney 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 asserted within fifteen (15) days after discovery of the inadvertent failure.
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, or any other related legal proceeding brought by one of the parties to this
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:
The parties to this litigation, including any employees, agents,
and representatives of the parties;
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
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
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 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. 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.
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, 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 and
serve a motion that identifies the challenged material and sets forth in detail the basis for
the challenge. 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
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.
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
Return of Confidential Documents.
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 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. Notwithstanding the above, counsel for the
parties may retain copies of Confidential Information solely for the purpose of defending
malpractice claims or ethical complaints.
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.
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.
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.
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.
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
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.
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 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. 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: October 2, 2017
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
WE SO MOVE
and agree to abide by the
terms of this Order
s/ Larry G. Michel
s/ Michelle A. Jacobs
Larry G. Michel
Counsel for Plaintiff, Mark Ratley
Michelle A. Jacobs
Counsel for the United States
Dated: October 2, 2017
Dated: October 2, 2017
AGREEMENT TO BE BOUND
The undersigned hereby acknowledges that he/she has read the Protective Order
dated October 2, 2017 in the case captioned Mark Ratley v. United States, case number
17-4024, 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.
Business Address: ___________________________
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