Garcia v. Tyson Foods, Inc. et al

Filing 17

STIPULATED PROTECTIVE ORDER. Signed by Magistrate Judge James P. O'Hara on 2/24/2012. (ah)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
ANTONIO GARCIA,
Plaintiff,
vs.
TYSON FOODS, INC., et al.,
Defendants.

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Case No. 6:11 CV 01141-JTM-JPO

STIPULATED PROTECTIVE ORDER
IT IS HEREBY STIPULATED AND AGREED BY THE PARTIES, and APPROVED
BY THE COURT, as follows:
WHEREAS, counsel and parties to the above captioned case will be given access to
confidential business records and other confidential information, including information from
personnel and company records; and
WHEREAS, confidential business records and other confidential, personal and sensitive
information should be given the protection of an Order of this Court to prevent injury through
use not in connection with the prosecution of this pending litigation and disclosure to persons
other than those persons involved in the prosecution of this litigation;
IT IS HEREBY ORDERED THAT:
1.

Confidential treatment as provided below may be claimed by the parties for

documents and information and any portion or summary thereof relating to the subject matter of
the following types:
(a)

personal information concerning Tyson’s current and
former employees who are not parties to this litigation;

(b)

confidential, non-public security, trade secret or proprietary
information;

(c)
(d)
2.

documents concerning financial and employment matters;
and
documents of a personal and sensitive nature such as
Plaintiff’s medical records.

Upon the production of documents in response to a request for production, and in

the event that counsel should desire to copy all or any portion of a document designated as
confidential, such

document

shall

be appropriately marked

“CONFIDENTIAL”

or

“CONFIDENTIAL—ATTORNEYS’ EYES ONLY.” Counsel may also notify the receiving
party in writing which material is designated CONFIDENTIAL or CONFIDENTIAL—
ATTORNEYS’ EYES ONLY using bates numbers or other means to signify the materials so
designated.
3.

Documents or materials designated as CONFIDENTIAL may be shown or

disclosed only to the following persons:
(a)

counsel of record in this action and the parties in this
action: Antonio Garcia, and a designated representative of
Tyson;

(b)

employees of counsel of record assigned to and assisting
such counsel in Antonio Garcia v. Tyson Foods, Inc., et al.,
Case No. 6:11-cv-01141-JTM-JPO;

(c)

experts and consultants provided, however, that the
following procedures and restrictions are applied:
(1)

No expert or consultant to whom CONFIDENTIAL
information has been disclosed pursuant to this
paragraph shall use such information except for the
prosecution or defense of Antonio Garcia v. Tyson
Foods, Inc., et al., Case No. 6:11-cv-01141-JTMJPO; and

(2)

Counsel desiring to disclose CONFIDENTIAL
information to experts or consultants must first
obtain a signed agreement to abide by Protective
Order in the form of Exhibit A attached hereto from
each such expert or consultant and each of his

clerical personnel who would require access to
CONFIDENTIAL information, and counsel shall
retain in his file the original of each signed
agreement to abide by Protective Order.
(d)

(e)
4.

A witness on behalf of, or current or former employees of,
the disclosing party; or such other witness who has
previously had access to the CONFIDENTIAL information
or whose testimony is otherwise relevant to the claims or
defenses in Antonio Garcia v. Tyson Foods, Inc., et al.,
Case No. 6:11-cv-01141-JTM-JPO; provided that, at the
request of the disclosing party, such witness shall first
agree on the record to abide by the terms of this Protective
Order and shall sign the agreement attached as Exhibit A;
and
The Court and court personnel, including court reporters at
proceedings in this action.

CONFIDENTIAL—ATTORNEYS’ EYES ONLY documents or testimony may

be disclosed only to counsel and not to any party or non-party except for experts and consultants
as stated in paragraph 3(c) and with the protective measures required in 3(c).
5.

Persons having knowledge of CONFIDENTIAL or CONFIDENTIAL—

ATTORNEYS’ EYES ONLY information by virtue of their participation in the conduct of this
litigation shall use the information for that purpose only, and shall not disclose such information
to any person or persons not involved in the conduct of this litigation.
6.

Information revealed during a deposition upon oral examination may be

designated CONFIDENTIAL or CONFIDENTIAL—ATTORNEYS’ EYES ONLY subject to
this Protective Order if the disclosing party has: (a)(1) indicated on the record or in writing at the
time the deposition was taken or prior to preparation of the transcript, that portions of the
deposition contain CONFIDENTIAL or CONFIDENTIAL—ATTORNEYS’ EYES ONLY
information; (a)(2) has instructed the court reporter prior to preparation of the transcript to
indicate on the face page of the deposition that it contains CONFIDENTIAL or

CONFIDENTIAL—ATTORNEYS’ EYES ONLY information; or (b) has notified opposing
counsel in writing within five (5) business days after receipt of the transcript that the transcript
contains CONFIDENTIAL or CONFIDENTIAL—ATTORNEYS’ EYES ONLY information.
All depositions, regardless of whether a designation of confidentiality was made on the record,
shall be treated as containing both CONFIDENTIAL and CONFIDENTIAL—ATTORNEYS’
EYES ONLY information and subject to this Protective Order until five (5) business days have
passed following receipt of the transcript or ten (10) days after the entry of this order, whichever
is longer. Where testimony is designated at or before a deposition as “CONFIDENTIAL—
ATTORNEYS’ EYES ONLY,” the Designating Party may exclude from the deposition all
persons other than the court reporter, witness, Counsel for the Parties, and experts.
7.

A party seeking to file CONFIDENTIAL or CONFIDENTIAL—ATTORNEYS’

EYES ONLY information with the Court must first file a motion with the Court requesting leave
to file the documents or information under seal. No CONFIDENTIAL or CONFIDENTIAL—
ATTORNEYS’ EYES ONLY information may be filed under seal unless and until leave has
been granted to file. Any such information will not be used by any person (except the disclosing
party or parties) for any purpose other than for discovery in this civil action, proceedings before
this Court in this civil action, preparation for trial and trial of this civil action and any appeals.
8.

Subject to the terms of this order, CONFIDENTIAL or CONFIDENTIAL—

ATTORNEYS’ EYES ONLY information may be used in testimony at trial, at any motion
hearing, and at depositions, and may be offered in evidence at trial or in any motion hearing,
provided that such information has been previously designated as an exhibit before such use to
provide any opposing party an opportunity to obtain appropriate protection from the court. If the
disclosing party seeks to bar the access to any proceeding of any person who is not permitted

access to CONFIDENTIAL or CONFIDENTIAL—ATTORNEYS’ EYES ONLY information,
the disclosing party may seek a court order to bar such person—other than a party—from
attending any portion of trial, any motion hearing, other hearing or deposition at which the
information is revealed. Subject to the terms of this protective order, confidential documents
may be offered in evidence at any deposition, trial or hearing provided the disclosing party may
designate portions of the deposition testimony as CONFIDENTIAL or CONFIDENTIAL—
ATTORNEYS’ EYES ONLY and may seek an appropriate order of the court to protect the
confidentiality of the documents and their contents at trial.
9.

The parties agree that the identities and CONFIDENTIAL or CONFIDENTIAL—

ATTORNEYS’ EYES ONLY information relating to nonparties will not be used for any purpose
other than the prosecution and defense of Antonio Garcia v. Tyson Foods, Inc., et al., Case No.
6:11-cv-01141-JTM-JPO. No CONFIDENTIAL or CONFIDENTIAL—ATTORNEYS’ EYES
ONLY information may be used in other lawsuits or for any other purpose than the prosecution
and defense of Antonio Garcia v. Tyson Foods, Inc., et al., Case No. 6:11-cv-01141-JTM-JPO.
10.

Nothing contained in this Protective Order shall preclude any party from using its

own CONFIDENTIAL or CONFIDENTIAL—ATTORNEYS’ EYES ONLY information in any
manner it sees fit, without the prior consent of any other person or the Court.
11.

If it is determined by the Court during trial that the documents identified as

CONFIDENTIAL or CONFIDENTIAL—ATTORNEYS’ EYES ONLY information are
irrelevant to this case and are inadmissible, then all original and copies of materials designated as
CONFIDENTIAL or CONFIDENTIAL—ATTORNEYS’ EYES ONLY information must be
returned to the disclosing party unless they have been included in a proffer of evidence to the
Court.

12.

In

the

event

the

disclosing

party

determines

CONFIDENTIAL

or

CONFIDENTIAL—ATTORNEYS’ EYES ONLY information has been disclosed not in
conformity with the Protective Order, the disclosing party must identify said material within ten
(10) days of discovering such materials have been produced. In the event material has been
disclosed prior to the entry of this order, but is CONFIDENTIAL or CONFIDENTIAL—
ATTORNEYS’ EYES ONLY information, the disclosing party has ten (10) days from entry of
this order to notify the non-disclosing party in writing of the documents/materials previously
produced that are CONFIDENTIAL or CONFIDENTIAL—ATTORNEYS’ EYES ONLY. This
Protective Order will govern the use of said materials.
13.

If information subject to a claim of attorney-client privilege or work product

immunity is inadvertently or mistakenly disclosed, such disclosure shall in no way prejudice or
otherwise constitute a waiver of, or estoppel as to, any claim of privilege or work-product
immunity for such information. If a party has inadvertently or mistakenly disclosed information
subject to a claim of immunity or privilege, upon request made by the disclosing party within ten
(10) business days of discovery of such inadvertent or mistaken disclosure, the information for
which a claim of inadvertent disclosure is made shall be returned within three (3) business days
of such request and, all copies of inadvertently or mistakenly disclosed documents shall be
destroyed. Nothing in this Protective Order is intended to operate as a waiver of any claim of
privilege or immunity.
14.

A party receiving information marked CONFIDENTIAL or CONFIDENTIAL—

ATTORNEYS’ EYES ONLY may, within thirty (30) days of receiving such information,
provide written notice to the providing party that the receiving party in good faith denies that
certain documents or other materials marked as Confidential or Confidential—Attorneys’ Eyes

Only are entitled to such status and protection. To maintain Confidential / Confidential—
Attorneys’ Eyes Only status, the proponent of confidentiality shall, within fifteen (15) days of
receiving such written notice, apply to the Court for protection. Unless the receiving party
provides written notice challenging Confidential / Confidential—Attorneys’ Eyes Only status, as
set forth above, all such information so marked shall be deemed to be Confidential or
Confidential—Attorneys’ Eyes Only.
15.

This Court’s jurisdiction, including jurisdiction to enforce the provisions of this

Order, is terminated upon final disposition of this case. A party may, however, seek leave to
reopen the case to enforce the provisions of this Order.
16.

Upon final termination of this action, whether by trial, settlement, dismissal or

otherwise, counsel for the receiving party must return any and all copies of CONFIDENTIAL or
CONFIDENTIAL—ATTORNEYS’ EYES ONLY information, including but not limited to that
disclosed in discovery, material submitted to the court including exhibits, but not deposition
transcripts and transcripts of court proceedings, in their possession, custody or control or in the
custody of their authorized agents, outside experts and consultants, to counsel for the party who
provided such CONFIDENTIAL or CONFIDENTIAL—ATTORNEYS’ EYES ONLY
information or confirm the destruction of such documents.

As to CONFIDENTIAL or

CONFIDENTIAL—ATTORNEYS’ EYES ONLY information reflected in computer databases
or backup tapes, the receiving party shall delete all such information and certify the deletion to
the party who provided the information upon termination of the action. The non-disclosing party
shall be permitted to retain deposition, but must stamp such transcripts “Under Seal” and must
continue to abide by all terms of this Protective Order with regard to said transcripts.

17.

Counsel for the parties shall exercise all reasonable care not to needlessly disclose

such confidential information in the public record of this proceeding.
IT IS SO ORDERED:
Dated February 24, 2012, at Kansas City, Kansas.
s/ James P. O’Hara
HONORABLE JAMES P. O’HARA
United States Magistrate Judge

This order agreed to by:
GARCIA & ANTOSH, LLP

s/ Peter J. Antosh
Peter J. Antosh
KS #21334
1401 Central
Dodge City, KS 67801
Telephone [phone]
Facsimile [phone]
ATTORNEY FOR PLAINTIFF

BRYAN CAVE LLP

s/ Ashley N. Gillard
Robert J. Hoffman
Ashley N. Gillard
3500 One Kansas City Place
1200 Main Street
Kansas City, MO 64105
[phone] Telephone
[phone] Facsimile

KS #16453
KS #24869

ATTORNEYS FOR DEFENDANTS

EXHIBIT “A”
DECLARATION OF
_______________________
STATE OF ______________)
)ss.
COUNTY OF ____________)
1.
My name is ________________. I live at ______________. I am employed as
_____________________ by _______________________.
2.
I am aware that a protective order has been entered in Antonio Garcia v. Tyson
Foods, Inc., et al., Case No. 6:11-cv-01141-JTM-JPO in the United States District Court for the
District of Kansas, and a copy thereof has been given to me.
3.
I promise the documents and information given confidential treatment under the
protective order entered in this case will be used by me only in connection with assisting counsel
in preparing for litigation in the above referenced matters.
4.
I promise that I will not disclose or discuss such confidential documents or
information with any person other than the parties and counsel for the parties or members of their
staff.
5.
I understand that any use of information obtained by me for material stamped
“CONFIDENTIAL” or any portions or summaries thereof, in any manner contrary to the
provisions of the protective order may subject me to summary sanctions for contempt in the
United States District Court for the District of Kansas.

Dated: