Arredondo v. Woodspring Hotels Property Management, LLC
Filing
10
AGREED PROTECTIVE ORDER. The court finds good cause to enter the agreed protective order submitted by the parties. Signed by Magistrate Judge James P. O'Hara on 1/5/2018. (amh)
IN THE UNITED STATES DISTRICT COURT
DISTRICT OF KANSAS
OFELIA ARREDONDO,
Plaintiff,
v.
Case No. 17-1305-EFM
WOODSPRING HOTELS PROPERTY
MANAGEMENT LLC,
Defendant.
PROTECTIVE ORDER
The parties agree that during the course of discovery and informal settlement discussions 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 parties assert in support of their request that protection of the identified categories of
confidential information is necessary because confidential personnel information is anticipated to be
the subject of discovery. The privacy interests associated with such information substantially
outweigh the public’s right of access to judicial records. This Order will facilitate the exchange of
information between the parties.
For good cause shown under Fed. R. Civ. P. 26(c), the court grants the parties’ joint request
and hereby enters the following Protective Order:
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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)
Personnel Information regarding current and former employees of Defendant.
For purposes of this Order, “Personnel Information” includes, but is not limited to information
typically retained in personnel files, job application materials, any performance ratings, employee
compensation and payroll information, supervisor notes, medical records, documents related to
discipline and/or termination, documents regarding attendance, and information relating to
employment policies.
(b)
Personnel Information regarding current and former job applicants of
Defendant WoodSpring Hotels Property Management, LLC.
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(c)
Non-public financial information and other information of Defendant
WoodSpring Hotels Property Management LLC that contains trade secrets, future business plans,
market analysis, confidential research, development, commercial or other proprietary information.
(d)
Health care information, personnel records, tax records, or other financial
information related to Plaintiff.
(e)
Any testimony regarding Confidential Information as defined in Paragraphs
(f)
Extracts and summaries prepared from such materials set forth in Paragraphs
(g)
Those portions of briefs, affidavits, memoranda, depositions, or other
2(a)-(d) above.
2(a)-(e) above.
writings, including exhibits thereto, which contain or refer to the Confidential Information.
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
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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
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
ten (10) 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, or any
other related legal proceeding brought by one of the parties to this litigation.
(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, including any employees, agents, and
representatives of the parties;1
1
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
(footnote continued)
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(2)
Attorneys and staff for WoodSpring Hotels Property Management
LLC, in evaluating or making decisions with respect to plaintiff’s
claims;
(3)
Counsel for the parties and employees and agents of counsel;
(4)
The court and court personnel, including any special master
appointed by the court, and members of the jury;
(5)
Court reporters, recorders, and videographers engaged for depositions;
(6)
Any mediator appointed by the court or jointly selected by the
parties;
(7)
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;
(8)
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;
(9)
The author or recipient of the document (not including a person who
received the document in the course of the litigation);
(10)
Independent providers of document reproduction, electronic
discovery, or other litigation services retained or employed
specifically in connection with this litigation; and
(11)
Other persons only upon consent of the producing party and on such
conditions as the parties may agree.
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 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.
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(c)
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.
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
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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.
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 thirty (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
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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 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.
2
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.
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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 party must deliver a copy of
this Order promptly to the party in the other action that caused the subpoena to issue.
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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 fifteen (15)
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.
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Dated January 5, 2018, at Kansas City, Kansas.
s/ James P. O’Hara
JAMES P. O’HARA
U.S. MAGISTRATE JUDGE
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WE SO MOVE
and agree to abide by the
terms of this Order
/s/ Sean M. McGivern
Signature
Sean M. McGivern
Printed Name
Counsel for Plaintiff Ofelia Arredondo
/s/ Jason D. Stitt
Signature
Jason D. Stitt
Printed Name
Counsel for WoodSpring Hotels Property Management LLC
Dated: January 5, 2018.
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ATTACHMENT A
ACKNOWLEDGMENT
AND
AGREEMENT TO BE BOUND
The undersigned hereby acknowledges that he/she has read the Protective Order entered in
the case captioned, Ofelia Arredondo v. WoodSpring Hotels Property Management, LLC, United
States District Court for the District of Kansas, Case No. 6:17-cv-01305, 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.
Name:
______________________________________
Job Title:
______________________________________
Employer:
______________________________________
Business Address:
___________________________
___________________________
___________________________
Date: ______________
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______________________________________
Signature
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