Holick v. Burkhart
PROTECTIVE ORDER. Signed by Magistrate Judge Kenneth G. Gale on 8/9/17. (df)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
JULIE A. BURKHART,
Case No. 16-1188-JTM-KGG
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.
However, the parties disagree concerning the scope and mechanics of an appropriate
Defendant asserts in support of her request that protection of the identified
categories of confidential information is necessary to avoid the invasion of her privacy
and risk of harassment and harm to her and others that could result from public
disclosure of materials in this litigation. The Court find this – along with the
protections afforded to Plaintiff – provide sufficient good cause for the entry of this
Protective Order. Plaintiff urges the entry of a more limited Order. However, because
the parties obviously have differing views concerning information which requires
protection, the Court finds that the following Order is appropriate.
For good cause shown under Fed. R. Civ. P. 26(c), the court GRANTS in part
Defendant’s Motion for Protective Order (ECF Doc. 44) and 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 nonparties. For purposes of this Order, the parties will
limit their designation of “Confidential Information” to the following categories of
information or documents:
private information, including but not limited to
personal information not currently available to the
public, non-public financial records or information,
and non-public personnel or employee information;
information that could jeopardize the safety of the
parties or other individuals, or expose them to an
increased risk of harm;
any information about minor children.
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 - SUBJECT TO
PROTECTIVE ORDER” (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
designated document as confidential, the designating attorney or party appearing pro
se thereby certifies that the document contains Confidential Information as defined in
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 ten (10) days after discovery of the
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 deposition transcript. Such designation must be specific as to the
portions of the transcript and/or any exhibits to be protected.
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.
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
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 depositions;
any mediator appointed by the court or jointly
selected by the parties;
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
If the confidential documents contain highly sensitive trade secrets or other highly sensitive
competitive or confidential information and disclosure to another party would result in
demonstrable harm to the disclosing party, then the parties may stipulate or move for the
establishment of an additional category of protection, (e.g., Attorneys’ Eyes Only) that
prohibits disclosure of such documents or information to that category or that limits
disclosure only to specifically designated in-house counsel or party representative(s) whose
assistance is reasonably necessary to the conduct of the litigation and who agree to be bound
by the terms of the Order.
in testifying, and only after such persons have
completed the certification contained in Attachment
the author or recipient of the document (not
including a person who received the document in the
course of the litigation);
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 consent of the producing
party and on such conditions as the parties may
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. Pro hac vice attorneys must obtain sealed documents
from local counsel.
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 this Order.
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
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.
Return of Confidential Documents. Within ninety (90) 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;2 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
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
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
The parties may choose to agree that the receiving party must destroy documents
containing Confidential Information and certify the fact of destruction, and that the receiving
party must not be required to locate, isolate and return e-mails (including attachments to
e-mails) that may include Confidential Information, or Confidential Information contained
in deposition transcripts or drafts or final expert reports.
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
No Prior Judicial Determination. This Order is entered based on the
representations 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.
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.
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
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.
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 ten (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 this 9th day of August, 2017, at Wichita, Kansas.
S/ KENNETH G. GALE
HON. KENNETH G. GALE
U.S. MAGISTRATE JUDGE
AGREEMENT TO BE BOUND
The undersigned hereby acknowledges that he/she has read the Protective Order
dated _______ in the case captioned, _____________________________, 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
The undersigned acknowledges that violation of the Protective Order may result
in penalties for contempt of court.
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