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Bjorn v. Jerry Erwin Associates, Inc.

United States District Court, Tenth Circuit

November 26, 2013

RENEE BJORN and WILLIAM GRAF, individually and on behalf of all others similarly situated, Plaintiffs,
JERRY ERWIN ASSOCIATES, INC., d/b/a JEA Senior Living, and CYPRESS KANSAS CITY OPERATIONS, LLC, d/b/a Cypress Springs - Kansas City, Defendants.

Tracey F. George Rowdy B. Meeks, Bar Number 16068 Tracey F. George, Bar Number 77967 Rowdy Meeks Legal Group LLC Attorneys for Plaintiffs

Joshua C. Dickinson, Bar Number 20732 Bryant T. Lamer, Bar Number 22722 Spencer Fane Britt & Browne LLP Brenda K. Baumgart (admitted pro hac vice) Todd A. Hanchett (admitted pro hac vice) Andrea H. Thompson (admitted pro hac vice) Stoel Rives LLP Attorneys for Defendants


James P. O’Hara U.S. Magistrate Judge

Upon stipulation by Plaintiffs Renee Bjorn (“Bjorn”) and William Graf (“Graf”) (collectively “Plaintiffs”) and Defendants Jerry Erwin Associates, Inc. (“JEA”) and Cypress Kansas City Operations, LLC (“Cypress”) (collectively “Defendants”) (jointly “the Parties”), pursuant to Rule 26(c) of the Federal Rules of Civil Procedure, request entry of a protective order to ensure and maintain the confidentiality or privileged nature of certain documents to be produced by the Parties.

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, private, personnel information related to non-party current and former employees may be exchanged, along with Defendants’ confidential financial and proprietary information.

For good cause shown under Fed.R.Civ.P. 26(c), the court grants the parties’ joint request and it is hereby ORDERED:

1. Confidential Information.

As used in this Order, the term “Confidential Information” shall be applicable to any document[1] designated as such when produced by the Parties, and limited to:

A. “Financial Records” of the parties, which term shall refer to: (1) tax returns; (2) financial statements; (3) salary or payroll information, records or schedules; (4) records pertaining to bank accounts; and (5) any other records or statements containing financial information of the parties and/or employees. Information readily available to the public is excluded from this definition.
B. “Personnel Records, ” which term shall refer to files or records relating to Defendants’ employees and personnel or employment matters of current or former employees, including the following: (1) personnel files; (2) personal or employment history information; (3) performance evaluations; (4) disciplinary records; (5) information relating to pay and/or fringe benefits; and (6) any other information containing personal identifiers, medical information, and/or financial information pertaining to Defendants’ current or former employees.
C. The internal policies and practices of Defendants and all affiliated entities which are not currently available to the public, excluding Defendants’ employee handbook and other widely disseminated policies which have not previously been treated as confidential.
D. Documents disclosing the identities of Defendants’ residents or disclosing information about Defendants’ residents not generally known to the public.

The producing party shall designate such information as protected under this Order by marking the documents as “CONFIDENTIAL” or through term(s) conveying substantially the same meaning.

2. Clawback Agreement: Privileged Material.

The Parties recognize that some documents and ESI[2] produced in this litigation may inadvertently contain information not subject to discovery under the Federal Rules of Civil Procedure, including (i) attorney-client privileged communications and other information protected as “privileged” under the Federal Rules of Evidence (“Privileged Material”); or (ii) attorney work-product material prepared or compiled in anticipation of litigation (“Work-Product Material”) (collectively “Protected Material”). The Parties acknowledge that some Protected Material may be inadvertently disclosed to the other Party during the course of this litigation. Therefore, the Parties agree that the inadvertent disclosure of any document or ESI which is subject to a legitimate claim that the document or ESI should have been withheld from disclosure as “Protected Material” shall NOT waive any privilege or other applicable protective doctrine for that document or ESI, nor for the subject matter of the inadvertently disclosed document or ESI, if the Party which made the production, upon becoming aware of the disclosure, promptly requests its return and takes reasonable precautions to avoid such inadvertent disclosure. The following procedures shall apply:

a. Prompt Return. Except in the event that the Party that received (“Receiving Party”) the Protected Material disputes the claim pursuant to Paragraph 2(c), any documents which the producing Party (“Producing Party”) deems to contain inadvertently disclosed Protected Material shall be, upon written request, promptly returned to the Producing Party at the Producing Party’s option. For this Paragraph 2(a), “prompt return” means within five (5) days of receiving the notification. This includes all copies, electronic or otherwise, of any such documents.
b. Property Rights. Any Protected Material inadvertently disclosed by the Producing Party to the Receiving Party pursuant to this Agreement shall be and remain the property of the Producing Party.
c. Dispute. In the event that the Receiving Party disputes, in writing, the Producing Party’s claim as to the protected nature of the inadvertently disclosed material, a single set of copies may be sequestered and retained by and under the control of the Receiving Party’s Attorney for the sole purpose of seeking court determination of the issue pursuant to Rule 26(b)(5)(B) of the Federal Rules of Civil Procedure. If the Receiving Party does not seek a court determination within thirty (30) business ...

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