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Larimer v. U.S. Bank National Association

United States District Court, D. Kansas

July 24, 2017

AMY LARIMER, Plaintiff,
v.
U.S. BANK NATIONAL ASSOCIATION, Defendant.

          AGREED PROTECTIVE ORDER

          James P. O'Hara U.S. Magistrate Judge

         Amy Larimer ("Plaintiff") and U.S. Bank National Association ("Defendant") (collectively the "Parties"), by and through their undersigned counsel, agree that this is a lawsuit pursuant to the Family and Medical Leave Act, 29 U.S.C. § 2601 et. seq. ("FMLA") and the Americans with Disabilities Act, as amended in 2008, 42 U.S.C. § 12101 et. seq. ("the ADA"), and many documents exchanged in discovery will contain information that is sensitive and confidential, including, but not limited to initial disclosures, responses to discovery requests, all deposition testimony and exhibits, and any information derived directly therefrom. This case involves allegations by Plaintiff that she was discriminated against on the basis of an alleged disability. In particular, among her allegations, Plaintiff alleges that Defendant terminated her on the basis of her medical history and/or purported medical condition. She further alleges that she was retaliated against. The parties will exchange documents containing confidential medical information related to Plaintiff and possibly other employees. Such documents will be covered by the Health Insurance Portability and Accountability Act ("HIPAA"). Additionally, the parties anticipate that they may exchange personnel information related to other employees who are not parties to this litigation and whose confidential information should not be subject to public disclosure. They jointly request entry of this Protective Order (also referred to herein as the "Order").

         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. Definitions:

         The following terms, as used herein, shall, without limiting the generality of the meaning of those terms, be construed as follows:

(a) "Parties" shall mean Plaintiff and Defendant.
(b) "Counsel" shall mean the attorneys representing the Parties in this action.
(c) "Confidential Information" shall be limited to documents or information that a party in good faith believes, consistent with Fed.R.Civ.P. 26(c) and relevant case law, contains non-public, personal, intimate or commercially sensitive information such as (and not by way of limitation) personnel information, medical information, proprietary business records, trade secrets, records whose disclosure is restricted or prohibited by law, and confidential financial information, that require the protections provided in this Order. Additionally, counsel and parties to the above-captioned case may be given access to confidential medical records protected by HIPAA that require the protections provided in this Order.
(d) In no event shall a party designate as "Confidential" any document or information that is or has been available to the general public. To the extent any document marked "Confidential" under the Order is lawfully acquired by the non-designating party from a third party having the right to disclose such information or material or becomes available to the general public by means other than a violation of this Protective Order, the document shall no longer be deemed "Confidential" under the terms of this Order.
(e) "Producing Party" means a party or non-party that produces disclosure or discovery material in this action.
(f) "Designating Party" means a party that designates information or items that it produces in disclosures or in response to discovery as "Confidential."
(g) "Challenging Party" means a party that challenges the designation of information or documents as "Confidential" under this Order

         3. Limitation on Use:

         Except as otherwise provided herein, any Confidential Information produced in this action shall be used or disclosed solely for the purpose of this litigation, including appeals and attempts to resolve this case through mediation or any other settlement process, unless ordered or requested by this Court, or another Court or administrative agency with jurisdiction. Additionally, the Parties agree that upon written notice to the producing party, Confidential Information may be used to defend ethical or other complaints arising after the final resolution of this matter and directly related to this matter so long as the confidential status and use of such documents is subject to protections substantially the same as those set forth in this Order.

         4. Disclosure of Confidential Information:

         Except as otherwise provided in this Order, material designated as Confidential Information may be examined only by the following persons:

         (a) Parties, including any employees, agents, and representatives of the parties;

         (b) Counsel for the Parties, as well as legal assistants, clerical assistants or other assistants employed by Counsel;

         (c) To the extent necessary for the prosecution or defense of this matter, independent consultants (e.g., professional jury or trial consultants, including mock juries) or experts retained in connection with the instant action by the Parties' counsel so long as they sign the attached Agreement to be Bound and Stipulation of Confidentiality;

         (d) Stenographers or court reporters only to the extent necessary to prepare records of ...


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