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RX Savings v. Besch

United States District Court, D. Kansas

January 13, 2020

RX SAVINGS, et al., Plaintiffs,
DOUGLAS BESCH, et al., Defendants,
MICHAEL REA, Counterclaim Defendant.

          Melissa Hoag Sherman Douglas M. Weems, KS #14771 Melissa Hoag Sherman, KS #20278 ATTORNEYS FOR PLAINTIFFS AND COUNTERCLAIM DEFENDANT

          Michael L. Blumenthal SEYFERTH BLUMENTHAL & HARRIS LLC Kenneth M. Bello (admitted pro hac vice) Justin L. Engel (admitted pro hac vice) BELLO WELSH LLP ATTORNEYS FOR DEFENDANTS



         Plaintiffs' claims in this case generally allege that Defendants Douglas Besch (“Besch”) and Besch Holdings, LLC breached a non-compete agreement entered into in connection with Besch's sale of his equity interest in Plaintiff Rx Savings, LLC (“Rx Savings”) and that Defendant Laxman Degala misappropriated confidential information from Rx Savings when he left the company and shared it with Besch and his new employer Defendant DR/Decision Resources, LLC (“DRG”). Defendants have asserted counterclaims against Plaintiffs and Counterclaim Defendant Michael Rea, Chief Executive Officer and a Director of Rx Savings, for securities fraud, common law fraud, breach of fiduciary duty, unjust enrichment, and defamation. The parties agree that given the nature of the claims in the pending litigation, which implicate the parties' respective sensitive commercial and proprietary information, it may be necessary to disclose Confidential Information during the course of discovery. The parties further agree that certain categories of such information should be treated as confidential, protected from disclosure outside this case, and used only for purposes of prosecuting or defending this action and any subsequent litigation or appeals. The parties jointly request that this Agreed Protective Order be entered to limit the disclosure, dissemination, and use of certain identified categories of Confidential Information.

         In support of their request, the parties assert that protection of the identified categories of Confidential Information is necessary to guard against the disclosure of sensitive and proprietary business, financial, and tax information, which could be harmful to the parties, as well as nonparties.

         For good cause shown under Fed.R.Civ.P. 26(c), the Court herby enters the following Agreed Protective Order:

         1. Scope.

         All documents and materials produced in the course of discovery in this litigation, including any documents produced by third parties or non-parties in response to subpoenas, responses to discovery requests, all deposition testimony and exhibits, and information derived directly therefrom (collectively, “documents”) are subject to this Order as set forth below.

         2. Definition of Confidential Information.

         As used in this Order, “Confidential Information” is defined as information that the producing party, in good faith, designates as having been previously maintained in a confidential manner and indicates should be protected from disclosure and use outside the case because any such disclosure and use is restricted by applicable law 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 containing intellectual property, non-public insider information, trade secrets, confidential commercial information, including, without limitation, income and profits, and other proprietary or sensitive business information; and (b) documents covered by contractual confidentiality provisions with third parties. If it later becomes apparent that other categories of documents and information should be subject to a protective order, the parties will confer and seek an amendment to this Order as appropriate.

         None of the parties agrees to produce anything in response to this Order that is not otherwise already discoverable in this litigation, and nothing in this Order shall be used by the parties to argue that any matter is discoverable that would not otherwise already be discoverable in the absence of the Order.

         Information and documents that have been produced, disclosed, or made available to the public in the past, and not through a violation of this or any other Order, may not be designated as Confidential Information absent a showing of good cause.

         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, ” or “CONFIDENTIAL - ATTORNEYS' EYES ONLY” 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, although indices, electronic databases, or lists of records 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 thereby certifies that the document contains Confidential Information as defined in this Order.

         Where a producing party designates previously produced documents as containing Confidential Information, it will provide additional copies of the previously produced documents with the required markings. Upon receipt of the additional copies that comply with the procedures set forth above, the receiving party will immediately return to the producing party the previously produced documents, or alternatively, will destroy all such documents.

         4. Inadvertent Failure to Designate.

         An 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, provided that any such claim is asserted within fourteen business 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 thirty days after receipt of the deposition transcript. Such designation must be specific as to the portions of the transcript and any exhibits to be protected.

         When documents or information disclosed during a deposition are designated as Confidential Information at the time testimony is given, the reporter shall separately transcribe those portions of the testimony so designated, shall mark the face of the transcript as set forth above, and shall maintain that portion of the transcript or exhibits in separate files marked to designate the confidentiality of their contents. For convenience, if a deposition transcript or exhibit contains repeated references to Confidential Information that cannot conveniently be segregated ...

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