Schmidt et al v. Impresa Aerospace, LLC et al
AGREED PROTECTIVE ORDER. The court finds good cause to enter the order submitted by the parties. Signed by Magistrate Judge James P. O'Hara on 05/07/2019. (jc)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
DAVID SCHMIDT, et al.
IMPRESA AEROSPACE, LLC, et al.,
Case No.: 6:18-cv-1072-JWB
AGREED PROTECTIVE ORDER
The parties agree during the course of discovery it may be necessary to disclose
certain confidential information relating to the subject matter of this action. They agree
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 a protective order to limit
the disclosure, dissemination, and use of certain identified categories of confidential
The parties assert in support of their request that protection of the identified
categories of confidential information is necessary because this case centers around (a)
confidential financial and business information of Defendants Impresa and DBI, including
health insurance and employee information; and (b) medical information of Plaintiff Teresa
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:
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 are
restricted by statute or could potentially cause harm to the interests of the 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: (1)
nonpublic financial records; (2) nonpublic contracts; (3) nonpublic policies, practices, and
procedures; (3) nonpublic communications between/among the parties underlying this
dispute; (4) medical records; and (5) insurance claim file. Information or documents that
are available to the public may not be designated as Confidential Information.
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 this Order.
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 14 days after discovery of the inadvertent failure.
Depositions. Deposition testimony will be deemed confidential only if
designated as such when the deposition is taken or within a reasonable time 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 or any other related legal proceeding brought by one of the parties to this
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 parties;
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
Any mediator appointed by the court or jointly selected by the
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 in testifying, and only after such persons
have completed the certification contained in Attachment A;
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
Other persons only upon consent of the producing party and on
such conditions as the parties may agree.
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. If a party seeks to file any document
containing Confidential Information subject to protection under this Order, that party must
take appropriate action to ensure that the document receives proper protection from public
disclosure, such as: (a) filing a redacted document with the consent of the party who
designated the document as confidential; or (b) 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 mere designation of information as confidential pursuant to
this Order is insufficient to satisfy the court’s requirements for filing under seal in light of
the public’s qualified right of access to court dockets. 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, though, 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 a motion that identifies the challenged material and sets forth in detail the basis for the
challenge; the parties are strongly encouraged to consider arranging a telephone conference
with the undersigned magistrate judge before filing such a motion, but such a conference
is not mandatory. 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
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 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.
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 14 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, 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.
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.
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.
Enforcement of Protective Order. Even after the final disposition of this
case, a party or any other person with standing concerning the subject matter may file a
motion to seek leave to reopen the case for the limited purpose of enforcing or modifying
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 is not
required to locate, isolate, and return e-mails (including attachments to e-mails) that may include
Confidential Information, Confidential Information contained in deposition transcripts, or
Confidential Information contained in draft or final expert reports.
the provisions of this Order.
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.
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.
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 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 party.
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, and 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.
Disclosure of Confidential Information Covered by Attorney-Client
Privilege or Work Product.
Whether inadvertent or otherwise, the 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 seven 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. Although the provisions of this section constitute an order
pursuant to Rule 502(d) and (e) of the Federal Rules of Evidence, and will be construed in
a manner consistent with the maximum protection provided by said rule, nothing in this
Order is intended or will be construed to limit a party’s right to conduct a review of
documents, including electronically-stored information, for relevance, responsiveness, or
segregation of privileged or protected information before production.
IT IS SO ORDERED.
Dated May 7, 2019, at Kansas City, Kansas.
s/ James P. O=Hara
James P. O=Hara
U.S. Magistrate Judge
WE SO MOVE
and agree to abide by the
terms of this Order
/s/ Nathan Elliott
Sean M. McGivern, #22932
Nathan R. Elliott, #24657
Graybill & Hazlewood, LLC
Attorneys for Plaintiffs
/s/ Lauren E. Tucker McCubbin
Lauren E. Tucker McCubbin
Tim J. Sear
Attorneys for Defendant Impresa Aerospace, LLC
/s/ Christopher R. Staley
John E. Bordeau (913) 234-6115
Christopher R. Staley (913) 234-6143
Sanders Warren Russell & Scheer LLP
Attorneys for Defendant Discovery Benefits, Inc.
/s/ Paige McCreary
Dan Ryan, 6196616
James Brodzik, 06311003
Paige McCreary, KS #27154
Hinshaw & Culbertson LLP
Attorneys for Defendant Cigna Health and Life Insurance Company
ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND
The undersigned hereby acknowledges that he/she has read the Protective Order
dated _______________ in the case captioned, David & Teresa Schmidt v. Impresa
Aerospace, LLC et al., 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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