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Norwood v. United Parcel Service, Inc.

United States District Court, D. Kansas

December 23, 2019

SUSAN NORWOOD, Plaintiff,
v.
UNITED PARCEL SERVICE, INC., Defendant.

          Luther Oneal Sutter (admitted pro hac vice) SUTTER & GILLHAM, P.L.L.C. P.O. Box 2012

          Dustin L. Van Dyk KS #23313 PALMER LAW GROUP, LLP ATTORNEYS FOR PLAINTIFF

          Shelley I. Ericsson KS #19098 Anne L. Hershewe KS #26321 OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C. ATTORNEYS FOR DEFENDANT

          AGREED PROTECTIVE ORDER

          JAMES P. O'HARA U.S. MAGISTRATE JUDGE

         This is an employment case involving alleged violations of the Americans with Disabilities Act, 42 U.S.C. § 12101, et seq.; Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq.; 42 U.S.C. § 1981; the Kansas Act Against Discrimination; and the Family Medical Leave Act, by Plaintiff Susan Norwood (“Plaintiff”) against Defendant UPS (“Defendant”) and together with Plaintiff (“the Parties”). For the reasons set forth below, the Parties jointly request entry of this proposed Agreed Protective Order to limit the disclosure, dissemination, and use of certain identified categories of confidential information in discovery (hereinafter, the “Order”).

         The parties recognize and agree that, during the course of discovery in the above-captioned matter, it may be necessary to disclose or produce certain confidential, proprietary, or private information for which special protection from public disclosure and from use for any purpose other than prosecuting this litigation may be warranted, including but not limited to (a) information prohibited or protected from disclosure by statute or other law, (b) non-public, confidential financial, proprietary, or trade secret information; (c) non- public, confidential personnel and/or human resources files, or other employment records; (d) medical records, financial and/or tax records relating to Plaintiff. The Parties 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 further agree and do hereby jointly request entry of this 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” (which is further defined below) is necessary because confidential information is anticipated to be the subject of discovery-including but not limited to Plaintiff's financial and other personally identifying information, and Defendant's proprietary information, trade secrets, and/or financial information-the disclosure of which could harm Plaintiff and Defendant if the general public or Defendant's competitors were given access to such information. The privacy interests associated with such information substantially outweigh the public's right of access to judicial records. This Order will facilitate the exchange of information between the Parties. In addition, good cause exists for the issuance of a protective order under Federal Rule of Civil Procedure 26(c).

         Therefore, IT IS HEREBY AGREED AND STIPULATED by and between the Parties, by and through their respective undersigned counsel, and for good cause shown under Fed.R.Civ.P. 26(c) by the Parties IT IS HEREBY ORDERED by the Court, that the following procedure shall govern the production, use, and exchange of confidential documents or information in the discovery and pretrial stage of this action:

         1. Scope and Limitations.

         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. Confidential Information.

         As used in this Order, “Confidential Information” means information designated 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 are restricted by statute or could potentially cause harm to the interests of the disclosing party or nonparties. Confidential Information shall be designated as “CONFIDENTIAL - SUBJECT TO PROTECTIVE ORDER” by the producing party that falls within one or more of the following categories: (a) information prohibited from disclosure by statute or other law; (b) the non-public, confidential financial, proprietary, or trade secret information of Defendant; (c) the non-public proprietary or confidential information relating to Defendant's business, marketing, sales, policies and procedures, and/or employment practices; (d) the non-public, confidential personnel and/or human resources files, or other employment records, of any of the Defendant's current or former employees; (e) any confidential, proprietary, or trade secret information of any third party; and (f) employment records, educational records, medical records, financial and/or tax records relating to Plaintiff, as well as documents containing Plaintiff's complete social security number and date of birth. “Confidential Information” shall also include any testimony regarding or discuss the foregoing materials, extracts, or summaries prepared from such materials, or portions of briefs, affidavits, memoranda, depositions, or other writings, including exhibits thereto, regarding or referencing such materials. Information or Documents that are available to the public may not be designated as Confidential Information.

         3. Designation.

         (a) Any of the Parties may designate a document as Confidential Information for protection under this Order by placing or affixing the words “CONFIDENTIAL - SUBJECT TO PROTECTIVE ORDER” 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 “CONFIDENTIAL - SUBJECT TO PROTECTIVE ORDER” shall be applied prior to or at the time of the Documents are produced or disclosed. Applying the marking of “CONFIDENTIAL - SUBJECT TO PROTECTIVE ORDER” 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. Any copies that are made of any Documents marked “CONFIDENTIAL - SUBJECT TO PROTECTIVE ORDER” shall also be so marked, 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.

         (b) The designation of a document as Confidential Information is a certification by an attorney or a party appearing pro se 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 14 days after discovery of the inadvertent failure.

         5. Depositions.

         Unless all Parties agree on the record at the time the deposition testimony is taken, all deposition testimony taken in this case shall be treated as Confidential Information until no later than the fourteenth day after the transcript is delivered to any party or the witness and within the 14 day time period, any of the Parties may serve a Notice of Designation to all Parties of record as to specific portions of the testimony and/or any exhibits that are designated Confidential Information, and thereafter only those portions identified in the Notice of Designation shall be protected by the terms of this Order. The failure to serve a timely Notice of Designation shall waive any designation of testimony taken in that deposition as Confidential Information, unless otherwise ordered by the Court.

         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 Confidential Information.

         Except with the prior written consent of the designating party or prior order of the court, designated Confidential Information ...


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