United States District Court, D. Kansas
ERVIN J. MARSHALL, JR., Plaintiff,
BNSF RAILWAY COMPANY, Defendant.
AGREED 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 (ECF No. 11) entry of this 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, plaintiffs confidential
financial and tax information and other private documents
regarding plaintiffs income; plaintiffs 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:
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.
Definition of Confidential Information.
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: plaintiffs financial
and income records, including tax returns and records
regarding retirement benefits such as pension or annuity
payments; plaintiffs medical records; personnel and/or human
resources files and information 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 Confidential Information.
Form and Timing of Designation.
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 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.
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 inadvertent
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 protected.
of Confidential Material.
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.
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 disclosed to the following persons:
(1) The parties to this litigation, including any employees,
agents, and ...