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`IN THE UNITED STATES DISTRICT COURT
`DISTRICT OF KANSAS
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`NO. 18-2302-CM
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`STEPHANIE ANTHONY,
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` Plaintiff,
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`vs.
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`HOME DEPOT U.S.A., INC.,
`HOME DEPOT INC. d/b/a HOME DEPOT,
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` Defendants.
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`PROTECTIVE ORDER
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`The parties agree that during the course of discovery it may be necessary to disclose
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`certain confidential information relating to the subject matter of this action. They agree
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`that certain categories of such information should be treated as confidential, protected from
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`disclosure outside this litigation, and used only for purposes of prosecuting or defending
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`this action and any appeals. The parties jointly request entry of this proposed Protective
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`Order to limit the disclosure, dissemination, and use of certain identified categories of
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`confidential information.
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`The parties assert in support of their request that protection of the identified
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`categories of confidential information is necessary because Plaintiff has requested that
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`Home Depot’s produce “all versions of Home Depot policies, procedures, by-laws, rules
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`and regulations in effect in June 2016 which relate to preventing or avoiding shopper’s
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`injuries.” Home Depot’s responsive documents are internal, non-public, and sensitive
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`Case 2:18-cv-02302-CM-KGS Document 13 Filed 08/28/18 Page 2 of 13
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`commercial information, which describe in detail Home Depot’s policies and procedures.
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`The policies and procedures are proprietary to Home Depot and used by Home Depot to
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`conduct an industry-leading retail home improvement business. Home Depot has a
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`commercial and competitive interest in protecting such policies and procedures from public
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`disclosure.
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`For good cause shown under Fed. R. Civ. P. 26(c), the court grants the parties’ joint
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`request and hereby enters the following Protective Order:
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`1.
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`Scope. All documents and materials produced in the course of discovery of
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`this case, including initial disclosures, responses to discovery requests, all deposition
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`testimony and exhibits, and information derived directly therefrom (hereinafter collectively
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`“documents”), are subject to this Order concerning Confidential Information as set forth
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`below. As there is a presumption in favor of open and public judicial proceedings in the
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`federal courts, this Order will be strictly construed in favor of public disclosure and open
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`proceedings wherever possible.
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`2.
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`Definition of Confidential Information.
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` As used in this Order,
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`“Confidential Information” is defined as information that the producing party designates
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`in good faith has been previously maintained in a confidential manner and should be
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`protected from disclosure and use outside the litigation because its disclosure and use is
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`restricted by statute or could potentially cause harm to the interests of disclosing party or
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`nonparties. For purposes of this Order, the parties will limit their designation of
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`“Confidential Information” to the following categories of information or documents:
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`Case 2:18-cv-02302-CM-KGS Document 13 Filed 08/28/18 Page 3 of 13
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`Home Depot’s policies, procedures, by-laws, rules, and/or regulations; Home Depot’s
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`investigative materials; Plaintiff’s medical records; and Plaintiff’s employment/personnel
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`records.
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`Information or documents that are available to the public may not be designated as
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`Confidential Information.
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`3.
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`Form and Timing of Designation. The producing party may designate
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`documents as containing Confidential Information and therefore subject to protection
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`under this Order by marking or placing the word “CONFIDENTIAL” (hereinafter “the
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`marking”) on the document and on all copies in a manner that will not interfere with the
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`legibility of the document. As used in this Order, “copies” includes electronic images,
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`duplicates, extracts, summaries or descriptions that contain the Confidential Information.
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`The marking will be applied prior to or at the time the documents are produced or disclosed.
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`Applying the marking to a document does not mean that the document has any status or
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`protection by statute or otherwise except to the extent and for the purposes of this Order.
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`Copies that are made of any designated documents must also bear the marking, except that
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`indices, electronic databases, or lists of documents that do not contain substantial portions
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`or images of the text of marked documents and do not otherwise disclose the substance of
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`the Confidential Information are not required to be marked. By marking a designated
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`document as confidential, the designating attorney thereby certifies that the document
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`contains Confidential Information as defined in this Order.
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`4.
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`Inadvertent Failure to Designate. Inadvertent failure to designate any
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`document or material as containing Confidential Information will not constitute a waiver
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`of an otherwise valid claim of confidentiality pursuant to this Order, so long as a claim of
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`confidentiality is asserted within 30 days after discovery of the inadvertent failure.
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`5.
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`Depositions. Deposition testimony will be deemed confidential only if
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`designated as such when the deposition is taken or within a reasonable time period after
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`receipt of the deposition transcript. Such designation must be specific as to the portions of
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`the transcript and/or any exhibits to be protected.
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`6.
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`Protection of Confidential Material.
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`(a) General Protections. Designated Confidential Information must be
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`used or disclosed solely for purposes of prosecuting or defending this lawsuit, including
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`any appeals.
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`(b) Who May View Designated Confidential Information. Except
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`with the prior written consent of the designating party or prior order of the court, designated
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`Confidential Information may only be disclosed to the following persons:
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`(1) The parties to this litigation, including any employees, agents,
`and representatives of the parties;1
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`1If the confidential documents contain highly sensitive trade secrets or other highly sensitive com-
`petitive or confidential information and disclosure to another party would result in demonstrable
`harm to the disclosing party, then the parties may stipulate or move for the establishment of an
`additional category of protection, (e.g., Attorneys’ Eyes Only) that prohibits disclosure of such
`documents or information to that category or that limits disclosure only to specifically designated
`in-house counsel or party representative(s) whose assistance is reasonably necessary to the conduct
`of the litigation and who agree to be bound by the terms of the Order.
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`(2)
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`Counsel for the parties and employees and agents of counsel;
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`(3) The court and court personnel, including any special master
`appointed by the court, and members of the jury;
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`(4)
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`Court reporters, recorders, and videographers engaged for
`depositions;
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`(5) Any mediator appointed by the court or jointly selected by the
`parties;
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`(6) Any expert witness, outside consultant, or investigator retained
`specifically in connection with this litigation, but only after
`such persons have completed the certification contained in
`Attachment A, Acknowledgment and Agreement to be Bound;
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`(7) Any potential, anticipated, or actual fact witness and his or her
`counsel, but only to the extent such confidential documents or
`information will assist the witness in recalling, relating, or
`explaining facts or in testifying, and only after such persons
`have completed the certification contained in Attachment A;
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`(8)
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`(9)
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`The author or recipient of the document (not including a person
`who received the document in the course of the litigation);
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`Independent providers of document reproduction, electronic
`discovery, or other litigation services retained or employed
`specifically in connection with this litigation; and
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`(10) Other persons only upon consent of the producing party and on
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`such conditions as the parties may agree.
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`(c) Control of Documents. The parties must take reasonable efforts to
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`prevent unauthorized or inadvertent disclosure of documents designated as containing
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`Confidential Information pursuant to the terms of this Order. Counsel for the parties must
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`maintain a record of those persons, including employees of counsel, who have reviewed or
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`been given access to the documents along with the originals of the forms signed by those
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`persons acknowledging their obligations under this Order.
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`7.
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`Filing of Confidential Information. In the event a party seeks to file any
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`document containing Confidential Information subject to protection under this Order with
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`the court, that party must take appropriate action to insure that the document receives
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`proper protection from public disclosure including: (a) filing a redacted document with the
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`consent of the party who designated the document as confidential; (b) where appropriate
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`(e.g., in relation to discovery and evidentiary motions), submitting the document solely for
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`in camera review; or (c) when the preceding measures are inadequate, seeking permission
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`to file the document under seal by filing a motion for leave to file under seal in accordance
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`with D. Kan. Rule 5.4.6.
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`Nothing in this Order will be construed as a prior directive to allow any document
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`to be filed under seal. The parties understand that the requested documents may be filed
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`under seal only with the permission of the court after proper motion. If the motion is
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`granted and the requesting party permitted to file the requested documents under seal, only
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`counsel of record and unrepresented parties will have access to the sealed documents. Pro
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`hac vice attorneys must obtain sealed documents from local counsel.
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`8.
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`Challenges to a Confidential Designation. The designation of any material
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`or document as Confidential Information is subject to challenge by any party. Before filing
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`any motion or objection to a confidential designation, the objecting party must meet and
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`confer in good faith to resolve the objection informally without judicial intervention. A
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`party that elects to challenge a confidentiality designation may file and serve a motion that
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`identifies the challenged material and sets forth in detail the basis for the challenge. The
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`burden of proving the necessity of a confidentiality designation remains with the party
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`asserting confidentiality. Until the court rules on the challenge, all parties must continue
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`to treat the materials as Confidential Information under the terms of this Order.
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`9.
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`Use of Confidential Documents or Information at Trial or Hearing.
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`Nothing in this Order will be construed to affect the use of any document, material, or
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`information at any trial or hearing. A party that intends to present or that anticipates that
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`another party may present Confidential Information at a hearing or trial must bring that
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`issue to the attention of the court and the other parties without disclosing the Confidential
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`Information. The court may thereafter make such orders as are necessary to govern the use
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`of such documents or information at the hearing or trial.
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`10. Obligations on Conclusion of Litigation.
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`(a) Order Remains in Effect. Unless otherwise agreed or ordered, all
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`provisions of this Order will remain in effect and continue to be binding after conclusion
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`of the litigation.
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`(b) Return of Confidential Documents. Within 30 days after this
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`litigation concludes by settlement, final judgment, or final order, including all appeals, all
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`documents designated as containing Confidential Information, including copies as defined
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`above, must be returned to the party who previously produced the document unless: (1)
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`the document has been offered into evidence or filed without restriction as to disclosure;
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`(2) the parties agree to destruction of the document to the extent practicable in lieu of
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`return;2 or (3) as to documents bearing the notations, summations, or other mental
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`impressions of the receiving party, that party elects to destroy the documents and certifies
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`to the producing party that it has done so.
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`(c) Retention of Work Product. Notwithstanding
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`the above
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`requirements to return or destroy documents, counsel may retain attorney work product,
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`including an index which refers or relates to designated Confidential Information, so long
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`as that work product does not duplicate verbatim substantial portions of the text or images
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`of designated documents. This work product will continue to be confidential under this
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`Order. An attorney may use his or her own work product in subsequent litigation provided
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`that its use does not disclose Confidential Information.
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`11. Order Subject to Modification. This Order is subject to modification by
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`the court on its own motion or on motion of any party or any other person with standing
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`concerning the subject matter. The Order must not, however, be modified until the parties
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`have been given notice and an opportunity to be heard on the proposed modification.
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`12. No Prior Judicial Determination. This Order is entered based on the
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`representations and agreements of the parties and for the purpose of facilitating discovery.
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`2The parties may choose to agree that the receiving party must destroy documents containing
`Confidential Information and certify the fact of destruction, and that the receiving party must not
`be required to locate, isolate and return e-mails (including attachments to e-mails) that may include
`Confidential Information, or Confidential Information contained in deposition transcripts or drafts
`or final expert reports.
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`Case 2:18-cv-02302-CM-KGS Document 13 Filed 08/28/18 Page 9 of 13
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`Nothing in this Order will be construed or presented as a judicial determination that any
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`document or material designated as Confidential Information by counsel or the parties is
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`entitled to protection under Fed. R. Civ. P. 26(c) or otherwise until such time as the court
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`may rule on a specific document or issue.
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`13.
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`Persons Bound by Protective Order. This Order will take effect when
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`entered and is binding upon all counsel of record and their law firms, the parties, and
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`persons made subject to this Order by its terms.
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`14.
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`Jurisdiction. The court’s jurisdiction to enforce the provisions of this Order
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`will terminate on the final disposition of this case. But a party may file a motion to seek
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`leave to reopen the case to enforce the provisions of this Order.
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`15. Applicability to Parties Later Joined. If additional persons or entities
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`become parties to this lawsuit, they must not be given access to any Confidential
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`Information until they execute and file with the court their written agreement to be bound
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`by the provisions of this Order.
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`16.
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`Protections Extended to Third-Party’s Confidential Information. The
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`parties agree to extend the provisions of this Protective Order to Confidential Information
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`produced in this case by third parties, if timely requested by the third party.
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`17. Confidential Information Subpoenaed or Ordered Produced in Other
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`Litigation. If a receiving party is served with a subpoena or an order issued in other
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`litigation that would compel disclosure of any material or document designated in this
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`action as Confidential Information, the receiving party must so notify the designating party,
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`in writing, immediately and in no event more than three business days after receiving the
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`subpoena or order. Such notification must include a copy of the subpoena or court order.
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`The receiving party also must immediately inform in writing the party who caused
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`the subpoena or order to issue in the other litigation that some or all of the material covered
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`by the subpoena or order is the subject of this Order. In addition, the receiving party must
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`deliver a copy of this Order promptly to the party in the other action that caused the
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`subpoena to issue.
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`The purpose of imposing these duties is to alert the interested persons to the
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`existence of this Order and to afford the designating party in this case an opportunity to try
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`to protect its Confidential Information in the court from which the subpoena or order
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`issued. The designating party bears the burden and the expense of seeking protection in
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`that court of its Confidential Information, and nothing in these provisions should be
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`construed as authorizing or encouraging a receiving party in this action to disobey a lawful
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`directive from another court. The obligations set forth in this paragraph remain in effect
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`while the party has in its possession, custody, or control Confidential Information
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`designated by the other party to this case.
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`18.
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`Inadvertent Disclosure of Confidential Information Covered by
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`Attorney-Client Privilege or Work Product. The inadvertent disclosure or production
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`of any information or document that is subject to an objection on the basis of attorney-client
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`privilege or work-product protection, including, but not limited, to information or
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`documents that may be considered Confidential Information under the Protective Order,
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`will not be deemed to waive a party’s claim to its privileged or protected nature or estop
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`that party or the privilege holder from designating the information or document as
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`attorney-client privileged or subject to the work product doctrine at a later date. Any party
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`receiving any such information or document must return it upon request to the producing
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`party. Upon receiving such a request as to specific information or documents, the receiving
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`party must return the information or documents to the producing party within 30 days,
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`regardless of whether the receiving party agrees with the claim of privilege and/or
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`work-product protection. Disclosure of the information or document by the other party
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`prior to such later designation will not be deemed a violation of the provisions of this Order.
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`The provisions of this section constitute an order pursuant to Rules 502(d) and(e) of the
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`Federal Rules of Evidence.
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`Case 2:18-cv-02302-CM-KGS Document 13 Filed 08/28/18 Page 12 of 13
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`IT IS SO ORDERED.
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`Dated: August 28, 2018
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`WE SO MOVE
`and agree to abide by the
`terms of this Order
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`s/ K. Gary Sebelius
`U.S. Magistrate Judge
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`WE SO MOVE
`and agree to abide by the
`terms of this Order
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`/s/James R. Shetlar
`James R. Shetlar, Esq.
`LAW OFFICES OF JAMES R. SHETLAR, PA
`8000 Foster
`Overland Park, KS 66204-3699
`Phone: (913) 648-3220
`Fax: (913) 648-3357
`E-mail: james@shetlarlawfirm.com
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`Attorney for Plaintiff
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`/s/Marcos A. Barbosa
`Marcos A. Barbosa, Esq.
`KUTAK ROCK LLP
`2300 Main Street, Suite 800
`Kansas City, MO 64108
`Phone: (816) 960-0090
`Fax: (816) 960-0041
`E-mail: Marcos.barbosa@kutakrock.com
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`and
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`Benjamin M. Weston (Admitted Pro Hac Vice)
`LEDERER WESTON CRAIG PLC
`4401 Westown Parkway, Suite 212
`West Des Moines, IA 50266
`Phone: (515) 224-3911
`Fax: (515) 224-2698
`E-mail: bweston@lwclawyers.com
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`Attorneys for Defendants
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`ATTACHMENT A
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`ACKNOWLEDGMENT
`AND
`AGREEMENT TO BE BOUND
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`The undersigned hereby acknowledges that he/she has read the Protective Order
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`dated _______________ in the case captioned, Stephanie Anthony v. Home Depot U.S.A.,
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`Inc. and Home Depot Inc., and attached hereto, understands the terms thereof, and agrees
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`to be bound by its terms. The undersigned submits to the jurisdiction of the United States
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`District Court for the District of Kansas in matters relating to this Protective Order and
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`understands that the terms of the Protective Order obligate him/her to use materials
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`designated as Confidential Information in accordance with the order solely for the purposes
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`of the above-captioned action, and not to disclose any such Confidential Information to
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`any other person, firm, or concern, except in accordance with the provisions of the
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`Protective Order.
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`The undersigned acknowledges that violation of the Protective Order may result in
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`penalties for contempt of court.
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`Name:
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`Job Title:
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`Employer:
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`______________________________________
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`______________________________________
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`______________________________________
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`Business Address:
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`___________________________
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`___________________________
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`Date: _________________
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`___________________________
`Signature
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`13
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