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Pipeline Productions, Inc. v. The Madison Companies, LLC

United States District Court, D. Kansas

February 22, 2018



          K. Gary Sebelius U.S. Magistrate Judge

         Plaintiffs/Counterclaim Defendants Pipeline Productions, Inc., Backwood Enterprises, LLC, OK Productions, Inc., and Brett Mosiman (collectively “Pipeline”) and Defendants/Counterclaim Plaintiffs The Madison Companies, LLC and Horsepower Entertainment, LLC (collectively “Horsepower”) (individually, a “party, ” and collectively, “the parties”) agree that during the course of discovery it may be necessary to disclose, disseminate, and/or use confidential information. The Court agrees that certain information should be treated as confidential, protected from disclosure outside this action and/or related litigation between the parties, and/or used only to the extent necessary for purposes of preparing for, prosecuting, and/or defending this action, related litigation, and/or any appeals. After reviewing and considering the parties' proposed protective orders and briefing, the Court enters this Protective Order to limit the disclosure, dissemination, and/or use of Confidential Information.

         Confidential Information is necessary because the parties anticipate disclosure of proprietary, sensitive, confidential business information, and/or trade secrets they do not want to share outside this action and/or related litigation between the parties as more fully defined below.

         For good cause shown under Fed.R.Civ.P. 26(c), the Court hereby enters the following Protective Order:

         1. Scope. All documents and materials produced in the course of discovery of this case, including without limitation, initial disclosures, documents and/or communications produced, answers to interrogatories, responses to requests for production, responses to requests for admission, deposition testimony and exhibits, and/or other information disclosed pursuant to disclosure or discovery duties (regardless of how it is generated, stored, or maintained), and information derived directly therefrom 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 and/or the parties' related 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, materials, and/or documents:

(a) research, development, or sensitive commercial information including sales, profits, and profit margins;
(b) sensitive corporate strategy;
(c) pricing or cost data, sales, and/or profits data;
(d) competitively sensitive information, including information regarding currently pending competitive projects being pursued by a party which have not been subject to any disclosure beyond that party and which is maintained in secrecy;
(e) personnel files;
(f) private personal information concerning any party and non-party such as tax returns and social security numbers;
(g) information containing any party's trade secret information; (h) any party's proprietary business information;
(i) information relating to any party's pending confidential, internal investigations;
(j) information relating to any party's confidential and proprietary business and operational strategies and plans, economic and market analyses, financial projections, non-public financial statements, valuations, appraisals, and cost information.

         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 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. Pursuant to Fed.R.Evid. 502(d), a party's disclosure or production of any documents or information in this litigation and/or the parties' related litigation shall not, for the purposes of this proceeding or any other proceeding in any other court, constitute a waiver by that party of any privilege or protection applicable to those documents, including the attorney-client privilege, work product protection, and any other privilege or protection recognized by law. The provisions of Fed.R.Evid. 502(b) are inapplicable to the production of documents or information in litigation between the parties. Specifically, there has been no waiver if a party discloses privileged or protected information inadvertently or otherwise, regardless of whether the party took reasonable steps to prevent the disclosure or to rectify the error. Such inadvertently produced documents or information shall be considered Confidential Information under this Protective Order. Anyone receiving any such privileged or protected documents or information shall return them to the producing party, upon request, within three (3) business days of receiving such request, delete any versions of the documents it maintains, and make no use of the information contained therein regardless of whether the receiving party agrees with the claim of privilege and/or work product protection other than to challenge their designation using the same procedure as specified in Paragraph 8.

         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 transcript. Such designation must be specific as to the ...

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