Hernandez v. Combs et al
AGREED PROTECTIVE ORDER. The court finds good cause to enter the order proposed by the parties. Signed by Magistrate Judge James P. O'Hara on 4/27/2021. (amh)
IN THE UNITED STATES DISTRICT COURT
DISTRICT OF KANSAS
SONIA E. HERNANDEZ,
TRAVIS COMBS, individually and as former Dean
of Industrial Technology & Continuing Education
of Seward County Community College,
Case No. 21-1033-TC
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 the parties may be provided
with information in the form of grant applications, attendance rosters, letters referencing
specific students and/or personnel files of individuals who are not parties to this litigation.
These categories of documents will include personally identifiable information which
should be protected against public disclosure. While redactions may be able to be made
so as to protect against the disclosure of personally identifiable information, there may be
information which cannot be redacted, in which case a Protective Order is appropriate.
Documents which may be disclosed in discovery may contain personally
identifiable information pertaining to individuals who are not parties to this
litigation, such as names, addresses, class attendance, income, need for
benefits, etc. The parties have agreed that a Protective Order is the best
means of protecting this information until it can be decided whether the
information should be used at trial.
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:
Personnel Files of parties and non-parties
Applications for benefits provided by the Salvation Army
Attendance Rosters for classes offered by Seward County Community
Letters from Seward County Community College referencing specific
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 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 fourteen (14) days after discovery of the inadvertent
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;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, 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
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
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
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
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.
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 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 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 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;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.
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.
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.
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 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 promptly but, in no event, later than three (3) 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
IT IS SO ORDERED.
Dated: April 27, 2021, 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
WE SO MOVE
and agree to abide by the
terms of this Order
/s/ Shirla R. McQueen___________
/s/ Randall K. Rathbun___________
Shirla R. McQueen #13079_______
Randall K. Rathbun #09765 ______
Counsel for: Defendant__________
Counsel for: Plaintiff ____________
ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND
The undersigned hereby acknowledges that he/she has read the Protective
Order dated _______________ in the case captioned, Sonia E. Hernandez, Plaintiff, vs.
Travis Combs, Defendant, Case No. 21-CV-01033-TC-JPO, 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.
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