United States District Court, D. Kansas
Michael Stipetich, Smith Mohlman Injury Law, LLC, Attorneys
C. Vogel, Constangy, Brooks, Smith & Prophete, LLP.,
Attorneys for Defendant.
JOINT PROTECTIVE ORDER
P. O'HARA U.S. MAGISTRATE JUDGE.
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.
parties assert in support of their request that protection of
the identified categories of confidential information is
necessary to protect both the parties and other persons from
annoyance and embarrassment. Discovery in this case may seek
private information concerning both parties and nonparties,
including, but not limited to, plaintiff's confidential
financial and tax information and other private documents
regarding plaintiff's income; plaintiff's medical
records; confidential matters concerning Defendant BNSF
Railway Company's (“BNSF”) trade secrets and
any other proprietary and confidential business information;
and the personnel files of current and/or former employees of
good cause shown under Fed.R.Civ.P. 26(c), the court grants
the parties' joint request and hereby enters the
following Protective Order:
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
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: plaintiff's
financial and income records, including tax returns;
plaintiff's medical records; personnel and/or human
resources files regarding current and former employees of
Defendant BNSF; BNSF's proprietary and financial
information; documents related to the operation of BNSF's
business, including policies, practices, or procedures; and
such other similar information the parties deem to be
confidential and/or proprietary. 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 of 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
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 sixty (60) days after discovery of the
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
of Confidential Material.
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 litigation.
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 ...