Rev. 3/2019 GUIDELINES FOR AGREED PROTECTIVE ORDERS FOR THE DISTRICT OF KANSAS Procedure for Requesting Entry of a Protective Order Agreed Protective Orders In certain cases, the parties may agree discovery should be governed by a protective order limiting the disclosure, use, and dissemination of confidential information. If the parties agree about the need for a protective order and its scope and form, their counsel should confer and either (1) e-mail a copy of their jointly-proposed protective order (in MS Word format) to KSDchambers@ksd.uscourts.gov, or (2) file a joint motion for protective order with the parties222 proposed protective order attached as an exhibit to the motion. If the parties choose to file a joint motion for protective order, they must also e-mail a copy of their jointly-proposed protective order (in MS Word format) to KSDchambers@ksd.uscourts.gov. If satisfactory, the court will sign and enter the proposed protective order. If not satisfactory, the court will deny the motion, notify counsel of any objectionable language or provisions, or modify and enter a revised protective order. Counsel and all unrepresented parties submitting an agreed protective order must affix their signatures in accordance with section II(C) of the court222s civil administrative procedures. The court222s administrative procedures, as well as a model form protective order, are available on the court222s website at: http://www.ksd.uscourts.gov . Disputed Protective Orders If the parties disagree about the need for a protective order and/or its scope or language, the party or parties seeking such an order must file an appropriate motion (with the proposed protective order attached) and supporting memorandum by the date provided in the Scheduling American LegalNet, Inc. www.FormsWorkFlow.com Rev. 3/2019 Order. Where there is an objection based upon the scope or form of a proposed order, the party or parties opposing the motion must, as part of their written response to the motion, provide the court with proposed language they believe would resolve their specific objections to the proposed order. Guidelines for Proposed Protective Orders The following guidelines have been developed to assist the parties in drafting stipulated or agreed protective orders: 1. Recitation of Facts Showing Good Cause Under Fed. R. Civ. P. 26(c) As indicated in the Scheduling Order, any jointly-proposed protective order must include a concise but sufficiently specific recitation of the particular facts in the case that would provide the court with an adequate basis upon which to make the required finding of good cause pursuant to Fed. R. Civ. P. 26(c). 2. Scope of the Protective Order The protective order must be narrowly tailored and not overbroad. It must include a sufficiently narrow identification of the categories of documents, information, items, or materials (which may include electronically created or stored information) that are subject to the protective order. Some examples are medical records, personnel files, and tax returns. Language such as 223this protective order shall apply to all documents the party designates as confidential224 or 223this protective order shall apply to all business records224 is too vague and overbroad. The protective order must clearly reflect that its provisions only apply to the named categories of documents, information, items, or materials specifically set forth in the protective order. The protective order must not cover information or documents that are available to the public or that have not been American LegalNet, Inc. www.FormsWorkFlow.com Rev. 3/2019 previously maintained in a confidential manner. 3. Provisions for Filing Documents Containing Confidential Information Under Seal The protective order must not contain a blanket 223filing under seal224 provision that requires or allows the parties to file documents containing confidential information under seal without the court222s permission. If the parties wish to include a provision for filing confidential materials under seal, then the protective order must state that the party seeking to file confidential information must first file a motion with the court and be granted leave to file the particular document under seal. See D. Kan. Rule 5.4.6(a) (setting forth the procedure for requesting leave to file a document under seal). The mere designation of information as confidential pursuant to the parties222 protective order is insufficient to satisfy the court222s requirements for filing it under seal in light of the public222s qualified right of access to court dockets. See Williams v. FedEx Corp. Servs., 849 F.3d 889, 905 (10th Cir. 2017). Before filing a motion for leave to file under seal, the parties must consider other steps to prevent the unnecessary disclosure of confidential information in court filings, such as filing a redacted document or other means short of filing under seal. 4. Application to Non-Parties The protective order must not state that it is binding on non-parties or that the court has jurisdiction over non-parties to enforce the provisions of the protective order. The court cannot order a non-party to abide by the terms of a protective order or to consent to jurisdiction. Although the protective order itself must not order a non-party to abide by the terms of the protective order, the parties may attach a form agreement to the proposed protective order. By signing the agreement, the non-party may agree to be bound by the terms of the protective order. The protective order may include provisions that protect confidential information, documents, and materials produced by a non-party or parties who are later added to the action. Any new party to American LegalNet, Inc. www.FormsWorkFlow.com Rev. 3/2019 the lawsuit must be given the opportunity to review the protective order and decide whether to join it. 5. Jurisdiction The protective order may state that its provisions continue in force after termination of the litigation. The parties may also include a provision in the protective order that a party or any person with standing concerning the subject matter may seek leave to reopen the case to enforce or modify the provisions of the protective order. See United Nuclear Corp. v. Cranford Ins. Co., 905 F.2d 1424, 1427-28 (10th Cir. 1990). 6. Instructions to the Clerk of the Court The protective order must not direct the clerk of the court to return or destroy confidential documents that are filed in the case. Such language conflicts with the policy of the clerk222s office not to remove or destroy any documents filed in a case. 7. Court Personnel and Jury Members The protective order must not state that it is binding on court personnel or members of the jury. American LegalNet, Inc. www.FormsWorkFlow.com Rev. 3/2019 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS INSTRUCTIONS FOR USE OF FORM PROTECTIVE ORDER The following model form agreed Protective Order is provided for the convenience of counsel, the parties, and the court. It is not intended to create a presumption in favor of its provisions or against any alternative provisions or language proposed by the parties. The model order may be modified as appropriate for each specific case. Any additions, deletions, and modifications to the model order, though, must comply with the written guidelines for agreed protective orders that are available on the court222s website at: http://www.ksd.uscourts.gov/guidelines-for-agreed-protective-orders-district-of-kansas/. The court will make the final decision on the terms of any protective order submitted, notwithstanding the agreement of the parties. Counsel and all unrepresented parties submitting an agreed protective order must affix their signatures in accordance with section II(C) of the court222s administrative procedures that are available at the court222s website at: http://www.ksd.uscourts.gov/wp-content/uploads/2018/11/CvAdminProc-10-1-18.docx. The parties must use the following procedures to request an agreed protective order. If the parties agree on the scope and form of a protective order, they mus