Great Plains Ventures, Inc. v. Liberty Mutual Fire Insurance Company

Filing 21

AGREED PROTECTIVE ORDER. The court finds good cause to enter the protective order submitted by the parties, but with deletion of proposed paragraph 7(a). Signed by Magistrate Judge James P. O'Hara on 9/4/2014. (ah)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
WICHITA DIVISION
GREAT PLAINS VENTURES, INC.,

)
)
Plaintiff,
)
vs.
)
)
LIBERTY MUTUAL FIRE INSURANCE )
COMPANY,
)
Defendant.
)

Case No. 14-cv-01136-JAR

JOINT PROTECTIVE ORDER
The parties and their counsel have submitted their proposed protective order stipulating
that the terms and conditions of this Protective Order shall be applicable to, and govern,
documents and information specifically identified below. For good cause shown, the Court enters
the following Order:
In accordance with this Order, the parties recognize that, during the course of discovery,
it may be necessary to disclose materials that a party or non-party asserts to contain certain
confidential and proprietary information, and that each wishes to ensure that such information
shall not be used for any purpose other than this action, and shall not be made public or be
otherwise used or disseminated beyond the extent required for purposes of this action. In
addition, the parties contemplate that confidential information may be produced by a non-party
or non-parties. The parties hereto therefore seek to facilitate the production and protection of
such information. Documents that are to be protected under this Protective Order contain
confidential information including: research and development; non-public financial information,
personnel and pricing information; third-party business practices, contracts and proprietary
pricing, margin and costs. In accordance with FED. R. CIV. P. 26(c), “good cause” exists for
keeping these documents confidential in that there is certain non-public, commercial information

on behalf of Plaintiff, Defendant and certain non-party witnesses that if third parties outside this
action were to gain access the businesses could suffer specific prejudice or harm or be subjected
to annoyance, embarrassment or oppression.
NOW, THEREFORE, to facilitate discovery during the course of this proceeding,
particularly the exchange of documents, things, information, testimony, and other evidence that
the parties may consider confidential business information or that may be subject to a claim of
privilege, pursuant to Federal Rule of Civil Procedure 26 and Federal Rule of Evidence 502, the
following procedures shall be employed in this matter:
DESIGNATION OF DISCOVERY MATERIALS AS “CONFIDENTIAL”
1. This Protective Order provides for the confidential treatment of documents in this
matter (hereinafter the “Litigation”) which the parties and/or non-party witnesses contend
contain confidential information. Such documents shall be referred to as “CONFIDENTIAL” as
set forth more fully below.
2. Material which may be designated as “CONFIDENTIAL” includes all documents,
tangible things, electronic information, testimony, or other information produced or made
available in the course of discovery in the Litigation, including: (a) documents produced in
response to requests for the production of documents or subpoenas; (b) responses to requests for
admissions, (c) responses to interrogatories; (d) transcripts of depositions, trial testimony, and
excerpts thereof, including exhibits thereto; and (e) other responses or affidavits in connection
with discovery requests, motions, or other filings in this Litigation.
3. Designating “CONFIDENTIAL” Material. Any party, or non-party witness
responding to a document subpoena, may designate material as being “CONFIDENTIAL” by
placing or affixing on each page of the materials, in a manner which will not interfere with their

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legibility, the word “CONFIDENTIAL.” Only documents or other materials as described in
Paragraph 2 above which contain information that is recognized as private, proprietary,
confidential, or privileged pursuant to the laws of the United States or the state of Kansas —
including statutory and common law — may be designated as “CONFIDENTIAL” by either
party and/or a non-party witness. Examples of such documents include, but are not limited to
personnel files, employee information, or other confidential business documents.
3(a).

Except for documents produced for inspection at a party’s facilities, the
parties and non-party witnesses shall make reasonable efforts to designate
“CONFIDENTIAL” materials prior to, or contemporaneously with, the
production or disclosure of that information. In the event that documents are
produced for inspection at a party’s facilities, such documents may be
produced for inspection before being marked “CONFIDENTIAL.” Once
specific documents have been designated for copying, any documents
containing confidential information will then be marked “CONFIDENTIAL”
after copying before delivery to the party who inspected and designated the
documents. There will be no waiver of confidentiality by the inspection of
confidential

documents

before

they

are

copied

and

marked

“CONFIDENTIAL” pursuant to the procedure outlined in this Paragraph 3.
3(b).

A party may also designate as “CONFIDENTIAL” documents that have been
produced in discovery by third parties pursuant to a subpoena. Upon service
of any documents or other materials by a third party pursuant to a subpoena,
the subpoenaing party shall notify the non-subpoenaing party of service of the
documents and shall have fourteen (14) days after receipt of the subpoenaed

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materials to examine them and determine what parts, if any, of the materials
are “CONFIDENTIAL” as defined in Paragraphs 2 and 3 of this Protective
Order. The other party may, for the purpose of determining whether any
materials produced pursuant to a subpoena are “CONFIDENTIAL,” demand
that the subpoenaing party provide them with a copy of the materials received
pursuant to the subpoena. The party requesting subpoenaed materials from the
subpoenaing party shall have fourteen (14) days after receipt of the
subpoenaed materials to examine them and determine what parts, if any, of the
materials are “CONFIDENTIAL” as defined in Paragraphs 2 and 3 of this
Protective Order. A party wishing to designate materials produced by a third
party pursuant to subpoena as “CONFIDENTIAL” must, within the
fourteen (14) day period provided by this Paragraph serve upon the other party
a copy of those materials which they believe are “CONFIDENTIAL,” which
have been identified as required by Paragraph 3. The parties, by written
agreement, may extend the time allowed to examine and designate as
“CONFIDENTIAL” any materials produced by a third party without the
authorization of the Court. With respect to any documents produced pursuant
to subpoena prior to the entry of this Protective Order, the parties shall have
fourteen (14) days after the entry of this Order to designate any such
subpoenaed documents as “CONFIDENTIAL” using the procedures described
above in this Paragraph 3(b).
3(c).

Portions of any deposition taken in connection with this Litigation, or of any
transcript of any trial or hearing conducted in connection with this Litigation,

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shall be deemed “CONFIDENTIAL” only if they are designated as such when
the deposition is taken, or within fourteen (14) days after receipt of the
transcript of any such deposition, trial, or hearing. Any testimony which
describes a document which has been designated as “CONFIDENTIAL” as
described above shall be deemed to be designated as “CONFIDENTIAL,”
only if that testimony is designated as “CONFIDENTIAL” using the
procedure set forth in this Paragraph 3(c). The parties, by written agreement,
may extend the time allowed to examine and designate as “CONFIDENTIAL”
portions of any deposition or transcript without the authorization of the Court.
DISCLOSURE OF MATERIALS DESIGNATED “CONFIDENTIAL”
4. Materials, information, or documents designated as “CONFIDENTIAL” pursuant to
the terms of this Protective Order shall not be used or disclosed by the parties or counsel for the
parties or any persons identified in Paragraph 5 below for any purposes whatsoever other than
preparing for and conducting this Litigation, including preparing for or conducting any
deposition connected with this Litigation or any appeals.
5. Disclosure of Material Designated “CONFIDENTIAL.” The parties, and counsel for
the parties, shall not disclose or permit the disclosure of any materials, information, or
documents designated “CONFIDENTIAL” under this Protective Order to any other person or
entity, except that disclosures of “CONFIDENTIAL” material may be made to the following
persons or entities for the purpose of preparing or conducting this Litigation:
5(a).

Disclosure of “CONFIDENTIAL” information may be made to counsel and
employees of counsel for the parties who have direct functional responsibility
for the preparation and trial of this Litigation. Any such employee to whom

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counsel for the parties makes a disclosure shall be provided with a copy of,
and become subject to, the provisions of this Protective Order requiring that
the documents and information be held in confidence.
5(b).

Disclosure of “CONFIDENTIAL” information may be made to a party’s
employee(s), officer(s) or director(s) who have direct functional responsibility
for the preparation and trial of this Litigation.

5(c).

Disclosure of “CONFIDENTIAL” information may be made to the Court,
Court Clerks, and personnel, and court reporters engaged for depositions and
to those persons, if any, specifically engaged for the limited purpose of
making photocopies of documents. When “CONFIDENTIAL” information is
disclosed to the Court, Court Clerks, and personnel, the procedures outlined in
the section of this Protective Order entitled “Use of Materials Designated
‘Confidential’ in Court” shall be followed.

5(d).

Disclosure of “CONFIDENTIAL” information may be made to consultants,
investigators, or experts (hereinafter referred to collectively as “Experts”)
employed by the parties or counsel for the parties to assist in the preparation
and trial of this Litigation. Prior to disclosure to any Expert, the Expert shall
be provided with a copy of, and become subject to, the provisions of this
Protective Order requiring that documents and information be held in
confidence.

6. If counsel for any party wishes to disclose “CONFIDENTIAL” materials, documents,
or information other than as outlined by Paragraph 5 of this Protective Order, they may do so if
consent for the additional disclosure is received, in writing, from the party originally designating

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the materials as “CONFIDENTIAL.” If the party desiring to make a disclosure of
“CONFIDENTIAL” material to persons other than as provided by Paragraph 5 of this Protective
Order does not obtain written consent for the disclosure, counsel for that party must move the
Court for an additional order (i) indicating the person or persons for whom the exception is being
claimed, (ii) setting forth the grounds for the request, and (iii) giving other counsel an
opportunity to oppose such request.
USE OF MATERIALS DESIGNATED “CONFIDENTIAL” IN COURT
7. Materials,

information,

or

documents

designated

by

the

parties

as

“CONFIDENTIAL” contain highly sensitive information. It is the intention of the parties that
such information designated “CONFIDENTIAL” not be available to, or disclosed to, members of
the general public. For this reason, the parties, and counsel for any of the parties, may use any
materials, information, or documents (or any part thereof) designated as “CONFIDENTIAL” in
support of, or as a part of, any pleadings, motions, or other papers filed with the Court (including
as exhibits attached to any such pleadings, motions, or other papers) only if they file a motion
with the Court asking that such document be filed under seal and that even if the Court deems
that such document may be filed under seal, the remaining protections of this Order, including
prohibitions of disclosure of documents marked “CONFIDENTIAL” shall continue.
CHALLENGING A “CONFIDENTIAL” DESIGNATION
AND MISCELLANEOUS PROVISIONS
8. A party who believes that materials, information, or documents have been improperly
designated as “CONFIDENTIAL” under the terms of this Protective Order may challenge that
designation by filing a motion with the Court.
8(a).

Duty to Meet and Confer. Prior to filing any motion with the Court
challenging any designation of materials as “CONFIDENTIAL” counsel for
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the parties shall first meet and confer in person or via telephonic conference in
an attempt to resolve the dispute concerning the designation. During the meet
and confer required by this Paragraph 8(a), the party opposing the
“CONFIDENTIAL” designation shall explain to the opposing party why they
do not believe that the materials in question meet the definitions of those
defined designations as set forth in this Protective Order. The party who
contends that the materials in question have been properly designated as
“CONFIDENTIAL” shall similarly explain their position with respect to why
the materials in question are properly designated. That explanation shall
include a citation to the statute, rule, case law, or other provision that justifies
the designation of the materials as “CONFIDENTIAL” as those designations
are defined as set forth in this Protective Order. The meet and confer
requirement outlined in this Paragraph 8(a) is not required prior to the filing of
a motion if the movant certifies that, despite having sent to the opposing
counsel or party, at least five (5) days before the motion was filed, a letter or
email proposing a time and place for such a meeting, and despite having made
two (2) telephone calls to the office of the opposing counsel or party, the
movant has been unable to convene a meeting to resolve the dispute.
8(b).

Burden on the Party Designating the Materials Confidential. In the event that
a motion is filed with the Court seeking to challenge the designation of
materials, information, or documents as “CONFIDENTIAL” the burden of
demonstrating that the materials were properly designated shall remain on the
party who originally designated the materials as “CONFIDENTIAL.” To

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prevail on such a motion, the party originally designating the materials as
“CONFIDENTIAL” shall prove to the satisfaction of the Court both that good
cause exists to subject the materials in question to the terms of this Protective
Order and that the designation of “CONFIDENTIAL” is appropriate for the
materials in question given the meaning of those terms as defined by this
Protective Order.
9. Inadvertent Production of Confidential Information. The inadvertent production of
any material, information, or document that does not contain a “CONFIDENTIAL” designation
shall not be deemed to be a waiver, in whole or in part, of that person’s or entity’s claim that
such material is private, proprietary and/or confidential entitled to protection pursuant to the
terms of this Protective Order. Any party who inadvertently fails to designate such documents as
“CONFIDENTIAL” shall, promptly upon discovery of its oversight, provide notice of the error
to all parties receiving such information, and shall substitute appropriately-designated
documents. Any party receiving such notice shall immediately return, expunge or destroy the
improperly-designated documents and treat all information contained in or derived from such
documents as “CONFIDENTIAL” pursuant to this Order. In the event that the receiving party
had previously disclosed improperly-designated documents to any other person or entity, it shall
undertake reasonable efforts to retrieve such documents and destroy them or return them to the
producing party.
10. Materials Covered By an Evidentiary Privilege. No term of this Protective Order shall
be construed so as to require the production of any materials, documents, or information that is
protected by an evidentiary privilege recognized by the laws of the state of Kansas. Such
evidentiary privileges include, but are not necessarily limited to: the attorney-client privilege, the

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attorney work-product privilege, and the privileges provided pursuant to the Fifth Amendment of
the United States Constitution.
11. No Waiver of Objections. No action taken in accordance with this Protective Order
shall be construed as a waiver of any claim or defense in the action, or of any position as to
discoverability, authenticity, materiality, relevance or admissibility of evidence, or any other
objection which may be asserted during the course of this litigation.
EFFECT AND DURATION OF ORDER
12. Upon the termination of this Litigation and the expiration of any and all appeals
therefrom, all persons or entities that have received “CONFIDENTIAL” materials shall, within
thirty (30) days of the conclusions of this Litigation destroy all copies of any materials
designated “CONFIDENTIAL” or return all copies of such designated materials to the producing
party. As an alternative to returning or destroying all or part of such “CONFIDENTIAL”
materials, counsel of record shall have the right to maintain one (1) set of correspondence,
pleadings, depositions, and trial transcripts and exhibits so long as such materials are kept in
conformity with this Protective Order. If a party or attorney, as the case may be, has provided
materials designated “CONFIDENTIAL” to any other individual as permitted by this Order, it
shall be the responsibility of that party to ensure that the provided materials are either returned or
destroyed as required by this Paragraph. This Paragraph does not apply to copies of any materials
designated “CONFIDENTIAL” that have been submitted to, and are in the possession of, the
Court.
13. In the event that disclosure of any materials designated “CONFIDENTIAL” is sought
from anyone subject to this Protective Order by a lawful subpoena issued to that person by a
third party, Court Order, demand by governmental authority, demand from bar counsel, or other

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legal process, such person or entity subject to this Protective Order shall, at least seven (7)
business days prior to disclosing the requested information, notify the party who originally
disclosed the materials by overnight mail or facsimile and telephone of the request for disclosure.
14. Except as otherwise provided herein, this Protective Order may not be modified or
amended unless all parties agree to the modification and amendment and it is approved by the
Court. The Protective Order may also be modified or amended by an order of the Court for good
cause shown.
15. This Protective Order shall not act as a shield for any person, party, or entity to refuse
to disclose any information that it is, by law or rule, obligated to disclose.
16. The provisions of this Protective Order extend to confidential information produced
in this case by third-parties if timely requested by the third-party.
17. Nothing in this Protective Order, or any designation or declaration pursuant to this
Protective Order, shall constitute, or be used by any party as an “admission by party opponent.”
18. Successor Parties. This Protective Order shall apply to all parties and counsel that
presently are part of, or may become part of, this action (including any appeal), and their
respective successors or assigns.
19. The parties agree that, upon execution of this Protective Order, they will treat
materials, information, and documents designated “CONFIDENTIAL” as called for in this Order
pending the acceptance of this Order by the Court. In the event the Court does not accept this
Protective Order, the parties shall have seven (7) days to submit a modified Protective Order to
the Court. During the seven (7) day period provided by this Paragraph and the period during
which any modified protective order (as described in this Paragraph) is pending before the Court,
the parties shall continue to conduct themselves according to the terms of this Protective Order

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with respect to documents designated “CONFIDENTIAL.” In the event that the Court
determines to issue a protective order different in terms from those provided in this Protective
Order, the parties shall conduct themselves pursuant to any such order of the Court without
regard to the contents of this Protective Order. In the event that the Court determines that no
Protective Order shall issue for this Litigation, the parties, having produced documents in
reliance on the terms of this Protective Order, shall be bound contractually by their stipulation to
its terms.
IT IS SO ORDERED.
Dated: September 4, 2014
s/ James P. O’Hara
James P. O’Hara
United States Magistrate Judge

SUBMITTED AND APPROVED BY:
s/Phillip W. Pemberton
Wyatt A. Hoch
David E. Rogers
Phillip W. Pemberton
FOULSTON SIEFKIN LLP
1551 N. Waterfront Parkway, Suite 100
Wichita, Kansas 67206
[e-mail]
[e-mail]
[e-mail]
Attorneys for Great Plains Ventures, Inc.

s/Jefferson D. Patten
Peter E. Kanaris
Jefferson D. Patten
C. Zachary Ransel
FISHER KANARIS, P.C.
200 South Wacker Drive, 22nd Floor
Chicago, Illinois 60606
312.474.1400
312.474.1410 (fax)
[e-mail]
[e-mail]
[e-mail]
s/Jerry D. Hawkins
Jerry Hawkins
HITE, FANNING & HONEYMAN L.L.P.
100 N. Broadway Street, Suite 950
Wichita, Kansas 67202
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316.265.7741
316.267.7803 (fax)
[e-mail]
Attorneys for Liberty Mutual Fire
Insurance Company

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UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
WICHITA DIVISION
GREAT PLAINS VENTURES, INC.,
Plaintiff,

vs.

LIBERTY MUTUAL FIRE INSURANCE
COMPANY,
Defendant.

)
)
)
)
)
)
)
)

Case No. 14-cv-01136-JAR-JPO

ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND TO PROTECTIVE ORDER
I, _________________________________, hereby acknowledge that I have been given a copy of
the Protective Order dated ________ and entered by the Court in the above-captions case. I have read and
understand the Protective Order and agree to abide by its terms.
I hereby submit to the jurisdiction of the United States District Court for the District of Kansas in
matters relating to this Protective Order and understand that the terms of the Protective Order obligate me
to use materials designated as “Confidential” in accordance with the Order solely for the purposes of the
above-captioned action, and not to disclose any such information to any other person, firm, or concern,
except in accordance with the provisions of the Protective Order. I further acknowledge that violation of the
Protective Order may result in penalties for contempt of court.
Name:
Job Title:
Employer:
Business Address:
Date:
___________________________
Signature

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