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Hardridge v. Southeast Kansas Independent Living Resource Center, Inc.

United States District Court, D. Kansas

February 20, 2019

ROBERT HARDRIDGE, et al., Plaintiffs,
v.
SOUTHEAST KANSAS INDEPENDENT LIVING RESOURCE CENTER, INC., et al., Defendants.

          TIMOTHY J. BECKER (MN BAR NO. 0256663; JENNELL K. SHANNON (MN BAR NO. 0398672; JOHNSON BECKER, PLLC, J. BRETT MILBOURN KS BAR # 17243, THOMAS V. BENDER KS BAR # 22860, HORN AYLWARD & BANDY LLC ATTORNEYS FOR PLAINTIFFS

          PATRICIA A. KONOPKA, KS # 45477, ASHLEY E. DILLON, KS # 26292, ATTORNEYS FOR DEFENDANTS SOUTHEAST KANSAS INDEPENDENT LIVING RESOURCE CENTER, INC. & SKIL FISCAL AGENT INC.

          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 to protect both the parties and other persons from annoyance and embarrassment. Due to the nature of Plaintiffs' allegations in this case, discovery may seek private information concerning both parties and nonparties, including, for example, but not limited to: confidential financial and tax information and other private documents regarding Plaintiffs' income; confidential matters concerning the personnel records and information of putative class members or any other current or former employee of Defendant Southeast Kansas Independent Living Resource Center, Inc.; and personal, health, and/or financial information concerning current and former consumer clients of Defendants. Discovery may also involve medical records and other "protected health information," as that term is defined in the regulations implementing the Health Insurance Portability and Accountability Act of 1996 ("HIPAA"). See 45 C.F.R. § 160.103. HIPAA requires that such "protected health information" be safeguarded and kept confidential. See, e.g., 45 C.F.R. § 164.512. The privacy interests in such information substantially outweigh the public's right of access to these records.

         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 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:

the confidential business, financial, and proprietary information of Defendants; the non-public, confidential personnel and human resources files of any of the putative class members or any other current or former employee of Defendant Southeast Kansas Independent Living Resource Center, Inc.; salary and/or benefits information relating to any of the putative class members; financial, and/or tax records relating to the putative class members, as well as documents containing any putative class member's complete social security number and date of birth; medical, personal, or financial records or proprietary information of third parties, including the customers or clients or former customers or clients of either Defendant; documents containing any protected health 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 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 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 a reasonable time 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 the portions of the transcript and/or any exhibits to be protected.

         6. Protection of Confidential Material.

         (a) General Protections.

         Designated Confidential Information must be used or disclosed solely for purposes of prosecuting or defending this lawsuit, including any appeals.

         (b) Who May View Designated ...


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