Opinion
Case No. 03-2300-JWL
October 23, 2003
MEMORANDUM AND ORDER
Pending before the Court is Defendants' unopposed Motion for Protective Order (doc. 19). More specifically, Defendants seek
(1) to have deemed as confidential and proprietary — and to limit use of such confidential and proprietary — information produced in this litigation; and
(2) to file under seal all copies of any part of confidential and proprietary materials lodged in the Court files as hearing or trial exhibits or exhibits to any deposition or motion.
In support of this Motion, Defendant states "the discovery in this case will involve production of certain competitively sensitive information concerning pricing, business planning, etc."
Whether to enter a protective order is within the sound discretion of the court. Fed.R.Civ.P. 26(c) provides that the court, upon a showing of good cause, "may make any order which justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense." The party seeking a protective order has the burden to show good cause for it. To establish good cause, that party must submit "a particular and specific demonstration of fact, as distinguished from stereotyped and conclusory statements."
Thomas v. IBM, 48 F.3d 478, 482 (10th Cir. 1995).
Sentry Ins. v. Shivers, 164 F.R.D. 255, 256 (D.Kan. 1996)
GulfOil Co. v. Bernard, 452 U.S. 89, 102 n. 16 (1981).
Upon review of the Motion and the proposed Protective Order submitted, the Court finds Defendant has shown good cause to keep the referenced discovery materials confidential between the parties. Notwithstanding the agreement of the parties, the Court finds Defendant has failed to demonstrate good cause to file these discovery materials under seal. That the parties all agree to the requested protective order does not dispense with the requirement to show good cause. If a party desires to file under seal a document deemed confidential between the parties, the party shall file a specific motion demonstrating good cause for each document requested.
Based on this discussion, upon review of the unopposed motion and for good cause shown, it is hereby ordered
1. That all documents and information relating to the following matters: the parties' customer lists; business plans or forecasts; financial plans and forecasts, operational plan and forecasts; pricing and sales information; technical information; information contained in contracts; any sensitive or proprietary commercial, financial, personal or personnel information; and/or any other matter that party designates as confidential, produced or discovered in the course of discovery in this case shall be treated by all parties to this litigation as confidential and/or proprietary matters which shall not be disclosed, given, shown, made available, discussed or otherwise communicated in any way to anyone other than:
a. The parties, the attorneys for the parties in this litigation and their employees, management personnel of any party responsible for this litigation and counsel regularly employed by any party assisting in the preparation of this litigation for trial;
b. Persons retained or consulted by a party or its attorneys as expert witnesses in this litigation;
c. Any person of whom testimony is taken or to be taken in this litigation; however, such person may only be shown confidential matter during his or her testimony and in preparation therefore and only to the extent necessary for such preparation or testimony; and
d. Court personnel, including stenographic reporters engaged in such proceedings as are necessarily incident to the preparation and/or trial of this litigation.
2. If the parties wish to give, show or make available such confidential matter to persons other than those referred to in paragraph 1, such party shall submit to counsel for the opposing party, a written statement identifying the name, title and business relationship of the person or persons to whom disclosure is requested. The attorneys for the opposing party shall have ten (10) days from the date of receipt of such request to object to such disclosure. If the parties are unable to formally resolve any objection, the requesting party may submit such dispute to the Court for resolution.
3. Counsel shall not furnish any portion of the materials produced pursuant to this Order to any expert witness until such expert shall have first signed the affidavit attached hereto as Exhibit A, a copy of which shall immediately be forwarded to opposing counsel when that individual is identified as an expert. If the individual is never identified as an expert by a party, the affidavit shall be furnished to the opposing party at the conclusion of the case by settlement, judgment or appeal.
4. No person to whom any of these materials are disclosed, including experts retained by either party, shall disclose to any other person either (a) any information whatsoever about any material produced pursuant to this Order or (b) the original or any copy or description of any material produced pursuant to this Order except that nothing in this paragraph shall prohibit any expert retained by either party from consulting with counsel for either party or the party or testifying at any deposition, hearing or trial in this action only.
6. Such confidential and proprietary matter shall be used only for the purpose of litigation in this action.
7. Upon the final determination of this action all originals and copies of said confidential matter produced by any party shall be returned to the producing party upon request. Such request shall designate with reasonable particularity the materials to be returned.
8. Jurisdiction of this action is to be retained by this Court after final determination for purposes of enabling any party or persons affected by this Order or further order as maybe necessary or appropriate herewith, the punishment of any violation hereto or for such additional relief as may become necessary to realize the purposes of the order.
9. In the event of a dispute between the parties concerning whether any documents are properly subject to this Order, the parties shall submit the dispute to the Court.
IT IS SO ORDERED.
AFFIDAVIT
STATE OF MISSOURI
COUNTY OF JACKSON
The undersigned hereby acknowledge that (s)he has read the foregoing Protective Order dated the ___ day of ___, 20 ___, executed by the attorneys of record for the parties in the above-identified litigation presently pending in the United States District Court for the District of Kansas, understands the terms thereof, and agrees, upon threat of penalty of contempt of Court, to be bound by such terms.