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Middleton-Thomas v. Piat, Inc.

United States District Court, D. Kansas

August 16, 2017



          DYSART TAYLOR COTTER McMONIGLE & MONTEMORE, P.C. Patrick K. McMonigle, KsFed #70115 Amanda Pennington Ketchum, KS #20559 Anne E. Baggott, KS #23629 ATTORNEYS FOR DEFENDANT


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

         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 Plaintiffs allege that Defendant has discriminated against them on the basis of their race and age. The parties anticipate that certain documents and information will be requested in discovery to support Plaintiff's claims, including medical records, personnel records, and other confidential personnel and business documents. For example, Plaintiffs may request documents and information regarding Defendant's operations that are proprietary in nature. Plaintiffs may also request information and records regarding Defendant's employees who are not, and are not expected to be, parties to this action. Defendant considers its proprietary information and employment records to be private and/or confidential.

         In support of its defenses, Defendant anticipates requesting or has requested documents and information regarding Plaintiffs' finances, medical issues, educational background, and mental condition. Plaintiffs consider their personal information to be private and/or confidential. The purpose of this Protective Order is to prevent and/or limit the disclosure of documents and information the parties appropriately deem private and/or confidential.

         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:

         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 as having been previously maintained in a confidential manner and requiring protection 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: healthcare records, personnel records regarding Plaintiffs and non-parties, proprietary and confidential economic and financial information, financial statements and records, 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 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 before 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. If the non-producing party believes the producing party has produced documents containing Confidential Information, the non-producing party may notify the producing party in writing, and all parties agree to maintain the confidentiality of the documents as if they were originally marked “CONFIDENTIAL.”

         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 as soon as possible 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 ...

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