United States District Court, D. Kansas
P. O'Hara U.S. Magistrate Judge
parties agree during the course of discovery it may be
necessary to disclose certain confidential information
relating to the subject matter of this action. They agree
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 a protective order to limit the disclosure,
dissemination, and use of certain identified categories of
parties assert in support of their request that protection of
the identified categories of confidential information is
necessary because it may contain (1) confidential and
commercially sensitive documentation relating to the design,
development, engineering, testing, marketing, pricing and/or
sale of safety components or safety systems on commercial
motor vehicles, distribution of which outside the confines of
this litigation would cause competitive or business harm to
Daimler Trucks North America LLC; (2) medical or
psychological records of the Plaintiffs and/or Decedents (or
other records that may contain information protected by
HIPAA); (3) documents that contain private personal
identifiers or information, including information expected to
be contained in accident reports and other documentation; (4)
documents or photographs that contain descriptions or
depictions of the subject accident and/or Decedents which,
out of respect for Plaintiffs and Decedents, should not be
made public and be maintained solely for use in this
litigation; and (5) documentation and information relating to
the criminal proceedings against Kenny Ford, Kansas v.
Ford, No. 2019-CR-000118, pending in Leavenworth County
good cause shown under Fed.R.Civ.P. 26(c), and in accordance
with the court's order granting the parties joint motion
for entry of a protective order (ECF No. 38), the court
hereby enters the following Protective Order:
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 are
restricted by statute or could potentially cause harm to the
interests of the 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. Documents or other materials relating to the design,
development, engineering, testing, evaluation, benchmarking,
marketing, pricing and/or sale of components or systems on
commercial motor vehicles, including forward collision
warning systems, automatic emergency braking systems, and/or
collision mitigation systems;
b. Medical or psychological records of the Plaintiffs or
c. Records that contain information protected by HIPPA;
d. Tax, financial, or business documentation of Plaintiffs
e. Any documents that contain personal identifiers such as
name, social security number, date of birth, residence
address, telephone number, etc.
d. Accident reports, accident photographs, or other
investigative materials pertaining to the subject accident;
e. All case files, investigative materials, or other
documents relating to the criminal proceedings against Kenny
Ford, Kansas v. Ford, No. 2019-CR-000118, pending in
Leavenworth County District Court.
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 14 days after discovery of the inadvertent failure.
testimony will be deemed confidential only if designated as
such when the deposition is taken or within a reasonable time
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.
Protection of ...