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Hathaway v. Mental Health Center of East Central Kansas

United States District Court, D. Kansas

April 17, 2017


          Alan v. Johnson, Stephen D. Lanterman, Sloan, Eisenbarth, Glassman, Attorneys for Plaintiff.

          Lawrence J. Logback, Megan L. Moseley, Ryan C. H. McCarty, Simpson, Logback, Lynch, Norris, P.A., Attorneys for Defendants.



         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 to: (1) prevent the disclosure of matters deemed confidential under the terms of this Order to persons or entities other than those involved in the prosecution or defense of this case; and (2) prevent any disclosure of the confidential matters by those involved in the prosecution or defense of this case for any purpose other than that which is necessary to fully litigate the issues. In addition, the Order is necessary to protect both the parties and other persons from annoyance and embarrassment.

         For good cause shown under Fed. R. Civ. P. 26(c), the Court grants the parties’ joint request and 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:

(a) Employment/Personnel Records and Information. Any and all information contained in the employment/personnel record of any party or witness in this case that would otherwise be considered confidential and protected from public disclosure shall remain so during and after the course of this present litigation. Such information shall include, but is not limited to: applications, personal identifying information, progress reports, performance evaluations, statements regarding the nature of separations, disciplinary documentation and confidential agreements.
(b) Financial Information. Any and all information that reveals the past, present or future state of the finances of any party or witness in this case, including, but not limited to: donor information, financial statements, financial records, and tax returns.
(c) Medical Information and Records. Any and all protected health information that is otherwise protected by HIPAA shall be deemed confidential and protected during and after the course of this present litigation. Such information includes, but is not limited to: charts, graphs, images, notes, physical exams, psychological exams, x-rays, or any other document or information that is in any way protected by statute or regulation in any other context.
(d) Proprietary Business Records. Any and all information that reveals how Defendant Mental Health Center of East-Central Kansas (d/b/a “CrossWinds”) conducts its operations, including, but not limited to: board minutes, business operations and processes, fundraising initiatives and human resources plans and protocols.
(e) Materials Otherwise Prohibited or Restricted by Statute. Any and all information that is otherwise prohibited or restricted from disclosure by statute shall be given the added layer of protection as afforded by and through this Order. 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” (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 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 three business 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 ...

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