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Raymond v. Spirit Aerosystems Holdings, Inc.

United States District Court, D. Kansas

November 7, 2017

DONETTA RAYMOND, FREDERICK HESTON, JILUN SHA, RANDY WILLIAMS, WILLIAM SCOTT DENNY, DEBRA HATCHER, BRIAN MARKS, RUSSELL BALLARD, GREGORY BUCCHIN, BRUCE ENSOR, FORREST FARIS, CHERYL RENEE GARDNER, CLARK T. HARBAUGH, CRAIG HOOBLER, BRIAN SCOTT JACKSON, WILLIAM KOCH, FRED LONGAN, DAVID B. MILLER, KENNETH L. POOLE, JR., BAHRAM RAHBAR, RUSSELL SPRAGUE, CRAIG TOLSON, ROBERT TROILO and CURTIS J. VINES, on behalf of themselves and all others similarly situated, Plaintiffs,
v.
SPIRIT AEROSYSTEMS HOLDINGS, INC. and SPIRIT AEROSYSTEMS, INC., Defendants.

          AMENDED PHASE I PROTECTIVE ORDER

          Gwynne E. Birzer, United States Magistrate Judge

         The parties agree that during Phase I 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 also agree to treat certain information alleged by defendants to be Highly Confidential as such for Phase I only and to revisit this issue in Phase II. Until further Order of the Court in Phase II, documents designated as Highly Confidential in Phase I shall retain that designation and shall be subject to the protections of this Order. 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 this is an employment law action brought under the Age Discrimination in Employment Act, the Americans With Disabilities Act, and the Family and Medical Leave Act. Some of the documents and electronically stored information (ESI) which may be produced in this case may contain confidential employment, personal (e.g., date of birth), medical, and/or financial information regarding plaintiffs, and/or confidential employment, personal, medical and/or financial information regarding current and/or former employees of Spirit AeroSystems, Inc.

         The parties also agree to treat certain categories of information that defendants allege to be highly confidential information as such for Phase I only. In particular, defendants allege that such information involves “proprietary” and/or “commercially sensitive” and/or “highly confidential strategic” information. The parties also acknowledge that in the course of discovery, Plaintiffs may inadvertently seek to discover non-public information that is considered protected by trade secret law. Defendants assert that dissemination of information in the categories described above (and in the categories listed below in section 3) to anyone other than those involved in prosecuting or defending this action is likely to cause commercial harm and competitive disadvantage to the party producing such information. Plaintiffs do not challenge for now, but rather reserve until Phase II of this litigation, their right to challenge this assertion. The terms of this Order do not have presumptive validity for Phase II, but Spirit reserves the right to argue that the Phase I Order has worked well and should be largely carried over to Phase II.

         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 through Phase I of this litigation, including initial disclosures, responses to discovery requests, all deposition testimony and exhibits, and information derived directly therefrom (hereinafter collectively “documents”), are subject to this Protective Order for Phase I of this litigation, as set forth below. Defendants have represented that there are approximately 100-150 documents being produced in Phase I of this litigation containing Highly Confidential information. 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:

● Personally Identifiable Information consisting of social security numbers, bank or other financial account information, and date of birth; .Other personally identifiable information contained in the following documents:
● Personnel files and other employment files relating to defendants' employees' performance, discipline, or other matters where the employee may have an expectation of privacy;
o Medical records and/or health-care cost records;
o Investigation documents;
o Tax returns and other financial records;
o Work restriction or reasonable accommodation records;
o FMLA or leave of absence records; and
o Confidential human resources and business records, including communications;
● Documents submitted to the EEOC and designated as confidential; and
● Records whose disclosure is restricted or prohibited by statute.

         The parties agree that Social Security numbers and financial or other bank account information contained in documents or ESI to be produced will be redacted or masked.[1]

         Information or documents that are available to the public may not be designated as Confidential Information.

         3. Highly Confidential Information.

         As a subset of Confidential Information, a party shall have the right to designate information that it produces as “Highly Confidential” if it reasonably and in good faith believes that such information could be especially detrimental or harmful to the producing party if disclosed to non-counsel (with the exceptions to this exclusion enumerated below). For purposes of this Order, the parties will limit their designation of “Highly Confidential - For Attorneys' Eyes Only” to the following categories[2] of information that Defendants assert to be:

● highly confidential, proprietary business information, including but not limited to, sensitive competitive information, non-public financial information, confidential research and development information, Defendants' product programs, customer information, and other confidential information relating to Defendants' scope of work;
● highly confidential information relating to Defendants' facilities in Prestwick, UK, Saint-Nazaiire, France, and Subang, Malaysia; discovery (the enforceability of the ADEA release), the parties are not going to ask the Court to decide those issues now, but reserve the right to do so at any time when these issues actually present themselves in the case. Thus, when this case moves into Phase II discovery, or if it turns out that such documents are responsive to legitimate document production requests within the scope of Phase I, the parties will revisit these issues, and, if they still cannot agree, file their reply briefs and ask the court to rule on any unresolved issues at that time.
● highly confidential sensitive information relating to collective bargaining negotiations or internal discussions relating to Defendants' relationship with the Unions; and
● information or documents that are available to the public may not be designated as Highly Confidential Information.

         4. 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” on the document. The producing party may designate documents as containing Highly Confidential Information by marking or placing the words “HIGHLY CONFIDENTIAL - FOR ATTORNEYS' EYES ONLY” on the document. Collectively, such designations will be referred to as “the marking.” The marking will be placed on the document and on all copies in a manner that will not interfere with the legibility of the document. The parties agree to treat any text files associated with a document marked CONFIDENTIAL or HIGHLY CONFIDENTIAL in the same manner as the image of the text files. In the event a party produces a file in native format, the parties will produce an image of the document or a slip sheet with the CONFIDENTIAL or HIGHLY CONFIDENTIAL marking or mark it in another manner agreed to by the parties. As used in this Order, “copies” includes electronic images, duplicates, extracts, summaries or descriptions that contain the Confidential or Highly 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 or Highly Confidential, the designating attorney or party appearing pro se thereby certifies that the document contains Confidential or Highly Confidential Information as defined in this Order.

         5. Inadvertent Failure to Designate.

         Inadvertent failure to designate any document or material as containing Confidential or Highly 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 60 days after discovery of the inadvertent failure.

         6. ...


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