Robotic Hair Associates, Inc. v. Carter

Filing 29

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 7/24/2017. (amh)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
ROBOTIC HAIR ASSOCIATES, INC.,

Plaintiff,
v.

Case No. 17-1083-JTM

VICKI CARTER,
Defendant.

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 confidential information.
The Court finds that certain information, documents, and things to be produced in
discovery in this litigation should be kept confidential in order to protect the parties'
legitimate business interests and the privacy rights of plaintiff and defendant. Further,
the Court finds that such information, documents and things are likely to include
defendant's personnel, income, and tax information, and information regarding
defendant's proprietary and trade secret information, its procedures and policies,
financial information, and client information, and confidential information regarding non-

party employees and contractors of plaintiff. Because the public disclosure of such
information, documents and things might cause discomfiture to the parties and to
interested third parties, the Court finds that “good cause” – pursuant to Fed. R. Civ. P.
26(c) – has been established and the following Protective Order should be entered
pursuant to the Health Insurance Portability and Accountability Act of 1996 (‘HIPAA”),
Rule 26(c) of the Fed. R. Civ. P. and 45 C.F.R. § 164.512(e)(1):
ORDERED, ADJUDGED AND DECREED THAT:
1.

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.
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 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:
a.

"Confidential Information" shall mean any personnel, financial,

proprietary, trade secret, client information, and other business record, as defined

2

herein, of plaintiff or defendant. “Business record” shall include any of defendant's
income and tax information, personnel documents pertaining to defendant or plaintiff's
employees or contractors, or other material relating to proprietary information which has
been designated as "confidential" by plaintiff or defendant or their attorneys, whether
such disclosure be made voluntarily, informally or pursuant to formal discovery
procedures. The designation may be made in writing or on the record such as at a
deposition or hearing. 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 - 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 of 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

3

document as confidential, the designating attorney or party appearing pro se thereby
certifies that the document contains Confidential Information as defined in this Order.
4.

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 thirty (30) days after discovery of the inadvertent failure.
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 deposition 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 prosecuting or defending this lawsuit,
including 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;

(2)

counsel of record for the parties to this litigation, including

office associates, paralegals, stenographic and clerical employees who have signed the
Confidentiality Agreement;
(3)

experts consulted for the purpose of this litigation who have

signed the Confidentiality Agreement;

4

(4)

experts retained for the purpose of this litigation who have

signed the Confidentiality Agreement;
(5)

court personnel, including stenographic reporters and

videographers engaged in such proceedings as are necessarily incident to this litigation,
and members of the jury;
(6)

any mediator appointed by the Court or jointly selected by

(7)

Any potential, anticipated, or actual fact witness and his or

the parties;

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;
(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;
(10)

Other persons only upon consent of the producing party and

on such conditions as the parties may agree; and
(11)
(c)

Deposition witnesses.

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

5

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.
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
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 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

6

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.
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 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 forty-five (45) 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;1

or (3) as to documents bearing the notations,

1 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

7

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.
(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.
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.

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.

8

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 this case 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

9

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
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 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 fourteen days, regardless of whether the receiving party agrees with the claim of

10

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.
19. HIPAA Provisions.
(a)

The parties in this case and their attorneys are hereby authorized to

receive, subpoena and transmit “protected health information” pertaining to patients of
any party in this case to the extent and subject to the conditions outlined herein.
(b)

For the purposes of this qualified protective order, “protected health

information” shall have the same scope and definition as set forth in 45 C.F.R. §
160.103 and 164.501. Protected health information includes, but is not limited to, health
information, including demographic information, relating to either (a) the past, present,
or future physical or mental condition of an individual, (b) the provision of care to an
individual, or (c) the payment for care provided to an individual, which identifies the
individual or which reasonably could be expected to identify the individual.
(c)

All “covered entities” (as defined by 45 C.F.R. § 160.103) are

hereby authorized to disclose protected health information pertaining to patients of any
party to attorneys representing the Plaintiff and Defendant in the above-captioned
litigation.
(d)

The parties and their attorneys shall be permitted to use or disclose

the protected health information for purposes of prosecuting or defending this action
including any appeals of this case. This includes, but is not necessarily limited to,
disclosure to their attorneys, experts, consultants, court personnel, court reporters, copy

11

services, trial consultants, and other entities or persons involved in the litigation
process.
(e)

Prior to disclosing protected health information to persons involved

in this litigation, counsel shall inform each such person that protected health information
may not be used or disclosed for any purpose other than this litigation. Counsel shall
take all other reasonable steps to ensure that persons receiving protected health
information do not use or disclose such information for any purpose other than this
litigation.
(f)

This Order does not control or limit the use of protected health

information pertaining to any patient that comes into the possession of the parties or
their attorneys from a source other than a “covered entity,” as that term is defined in 45
C.F.R. § 160.103.
(g)

Nothing in this Order authorizes the parties in this case or their

counsel to obtain medical records or information through means other than formal
discovery requests, subpoenas, depositions, pursuant to a patient authorization, or
other lawful process.
IT IS SO ORDERED.

Dated: July 24, 2017

s/ James P. O’Hara
Hon. James P. O'Hara
U.S. Magistrate Judge

12

SUBMITTED and APPROVED by:

s/ Terry L. Mann
Terry L. Mann (12840)
Ashlyn B. Lindskog (26838)
MARTIN, PRINGLE, OLIVER,
WALLACE & BAUER, L.L.P.
100 N. Broadway, Suite 500
Wichita, KS 67202
[phone] (office)
[phone] (fax)
[e-mail]
[e-mail]
Attorneys for Plaintiff

s/ Michael Haeberle
Thomas Patterson
Jeffrey Katz
Michael Haeberle
PATTERSON LAW FIRM
One North LaSalle Street, Suite 2100
Chicago, IL 60602
312-223-2699 (office)
312-223-8549 (fax)

[e-mail]
[e-mail]
[e-mail]
s/ Lee Thompson
Lee Thompson
THOMPSON LAW FIRM, LLC
106 E. 2nd Street
Wichita, KS 67202
316-267-3933 (office)
316-267-3901 (fax)

[e-mail]
Attorneys for Defendant

13

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
ROBOTIC HAIR ASSOCIATES, INC.,

Plaintiff,
v.

Case No. 17-1083-JTM

VICKI CARTER,
Defendant.

CONFIDENTIALITY AGREEMENT
The undersigned hereby states as follows:
1.
I have received a copy of and have read the Protective Order
entered by the Court in the above-captioned case.
2.
I understand that material I am reviewing or otherwise have access
to is included within the definition of Confidential Information in that Protective
Order.
3.
I agree that I will abide by the terms of the Protective Order entered
by the Court, in all respects.

Name:
Date:

14