Lake v. CNH Industrial America, LLC
Filing
15
PROTECTIVE ORDER. The parties shall abide by the terms of the order. Signed by Magistrate Judge K. Gary Sebelius on 9/19/2018. (wh)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
MARVIN LAKE,
)
)
)
Plaintiff,
)
v.
CNH INDUSTRIAL AMERICA, LLC,
Defendant.
)
)
)
)
)
No. 18-1160-DDC
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 parties assert in support of their request that protection of the identified
categories of confidential information is necessary because confidential personnel,
commercial, financial, tax, proprietary, trade secret, business-related, and/or other
confidential information may be produced during discovery in this case.
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:
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:
● Personnel files and records;
● Medical records;
● Financial and/or tax information and records;
2
● Commercial and/or business records;
● Trade secrets and other proprietary information;
● Confidential information related to New Holland or CNH headers that is
not publicly available;
● Records for which disclosure is restricted or prohibited by statute;
● Emails or other communication that includes information identified above.
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
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
3
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 five (5) 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, or unless a
document is marked "Attorneys' Eyes Only" in which case disclosure of the document is
limited to the parties' counsel of record in this litigation, designated Confidential
4
Information may only be disclosed to the following persons:
(1)
The parties to this litigation, including any employees, agents,
and representatives of the parties;
(2)
Counsel for the parties and employees and agents of counsel;
(3)
The court and court personnel, including any special master
appointed by the court, and members of the jury;
(4)
Court reporters, recorders, and videographers engaged for
depositions;
(5)
Any mediator appointed by the court or jointly selected by the
parties;
(6)
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;
(7)
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;
(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; and
(10)
Other persons only upon consent of the producing party and on
such conditions as the parties may agree.
(c)
Control of Documents. The parties must take reasonable efforts to
5
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.
6
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 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.
7
(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 of the document to the extent practicable in
lieu of return; 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.
8
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.
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.
IT IS SO ORDERED.
9
Dated: September 19, 2018
s/ K. Gary Sebelius
K. Gary Sebelius
U.S. Magistrate Judge
10
ATTACHMENT A
ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND
The undersigned hereby acknowledges that he/she has read the Protective Order
dated September , 2018 in the case captioned, Marvin Lake v. CNH Industrial America,
LLC, D. Kan. Case No. 6:18-cv-01160, 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:
Phone Number:
Job Title:
Employer:
Business Address:
Email Address:
Date:
Signature:
11
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?