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Huerter v. State

United States District Court, D. Kansas

November 26, 2018

JOSEPH P. HUERTER, Administrator of the Estate of P.N.D., deceased, and STEPHANIE RHOADS, Individually and for and on behalf of all of the surviving heirs-at-law of P.N.D., a minor, deceased, Plaintiffs,
v.
THE STATE OF KANSAS, DEPARTMENT for CHILDREN and FAMILIES, GINA MEIER-HUMMEL, in her Official Capacity as Secretary; KVC BEHAVIORAL HEALTHCARE, INC.; and JOHN/JANE DOES, Individually and in their personal capacities, Defendants.

          JOHN G. SCHULTZ, DEREK JOHANNSEN, HEATHER R. HATLEY FRANKE SCHULTZ & MULLEN, P.C. Attorneys For Defendant KVC Behavioral Heathcare, Inc.

          Gregory A. Lee, Esq. Danielle N. Davey, Esq. SLOAN, EISENBARTH, GLASSMAN, MCENTIRE & JARBOE, L.L.C. Attorneys for Gina Meier-Hummel in her Capacity as Secretary of the Kansas Department of Children and Families

          Ronald P. Pope, Esq., Thomas B. Diehl, Esq., Gregory S. Diehl, Esq. RALSTON, POPE & DIEHL, LLC Attorneys for Plaintiffs

          Corliss Scroggins Lawson, Esq. OFFICE OF GENERAL COUNSEL KANSAS DEPARTMENT FOR CHILDREN AND FAMILIES Defendants The State of Kansas Department of Children and Families

          AGREED PROTECTIVE ORDER

          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:

The services provided by DCF and KVC for children whom Kansas state courts have found to be “children in need of care” are to be kept confidential under K.S.A. 38-2209(a), the disclosure of which is punishable by criminal prosecution. The children whose records are being sought are children determined to be “in need of care” under K.S.A. chapter 38, and thus the records relating to said children are confidential under state law. Additionally, this action encompasses private corporations who have the right to confidentiality of corporate records which will be disclosed during litigation and may include personal and confidential information of non-parties and non-party minors.

         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.

         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:

(a) Records of children whose disclosure is restricted or prohibited by statute;
(b) Non-public, confidential information regarding other children placed in DCF custody referred by DCF to KVC for services;
(c) KVC records including documentation regarding KVC foster parents and foster children, records of non-party foster children, personnel files or other employee related records, financial statements and corporate financial documentation, board and/or committee minutes, internal audits or results of review processes, internal communications regarding foster children or cases;
(d) Sealed Court records;
(e) Medical records of plaintiffs or decedent;

         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 - 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 Order.

         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 within 30 days 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.

         6. Protection of ...


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