Mobley v. Skyline Arkansas Holdings LLC et al

Filing 13

PROTECTIVE ORDER. Signed by Judge D. P. Marshall Jr. on 10/10/2017. (jak)

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
NORTHERN DIVISION
OPAL MOBLEY, As Special Personal
Representative of the Estate of Rebecca
Louise Duke, Deceased, and on behalf
of the Wrongful Death Beneficiaries
of Rebecca Louise Duke, Deceased

v.

PLAINTIFF

1:17-cv-49-DPM

SKYLINE ARKANSAS HOLDINGS, LLC;
SKYLINE CHP HOLDINGS, LLC;
BATESVILLE HOLDINGS, LLC;
BATESVILLE HEALTH AND REHAB, LLC;
ARKANSAS NURSING HOME
ACQUISITION, LLC; CAPITAL FUNDING
GROUP, INC.; CSCV HOLDINGS II, LLC;
ARKANSAS SNF OPERATIONS
ACQUISITION III, LLC; JOSEPH
SCHWARTZ; JOHN W. DWYER; ALAN
ZUCCARI; and BRIAN REYNOLDS

DEFENDANTS

PROTECTIVE ORDER
With the parties' agreement, and pursuant to Federal Rule of Civil Procedure 26(c), the
Court orders:

1.

Definition of Confidential Information

"Confidential information" includes: (a) Personnel documents pertaining to current and
former employees of Defendants, including but not limited to employee compensation
information, tax information, supervisory notes, and discipline reports; (b) Non-public financial
information of Defendants; (c) Proprietary documents and information of Defendants, including
trade secrets, business plans, and procedure manuals created by Defendants, and (d) as required
by 45 C.F.R. § 164.512(e)(l)(v), confidential patient information, protected health information, or

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other identifiable health information as defined by the Health Insurance Portability and
Accountability Act ("HIP AA").

2.

Designation of Confidential Information

"Confidential information" shall not be disclosed except as set forth in this Order. Any
deposition transcript page, interrogatory answer, produced document, item produced or examined,
and each answer to request for admission, which in good faith is deemed by counsel for a party to
disclose confidential information of that party, shall be identified and marked "CONFIDENTIAL"
by that party's counsel. The identification and marking shall be made: (a) in the case of an answer
to an interrogatory or a response to a request for admission, at the time when the answer or response
is served by the requested party; (b) in the case of another document, when a copy of the document
is provided to another party. In the case of transcript pages, the designating party shall advise
opposing counsel of the specific pages to be maintained in confidence within 20 calendar days
after receipt of the transcript of the deposition. Pending notification from opposing counsel during
the 20 calendar-day period, all transcript pages shall be treated as "CONFIDENTIAL" and may
be used only in accordance with this Order.

3.

Treatment of Confidential Information and Persons Entitled to Access

Until and unless the Court rules that any information, document, or thing designated as
confidential is not confidential information, or may be disclosed beyond the limits permitted by
this Order, access, copying, and dissemination of that information, document, or thing is limited
to the following persons: (a) Attorneys of record in this litigation, along with their employees and
agents actively engaged in the conduct of this litigation; (b) Named parties to this case; (c)
Representatives of parties to this case; (d) Witnesses in this litigation who will be deposed or who
will testify at trial; (e) The Court, stenographers, court clerks, and other court personnel employed
by the Court; and (f) Any expert retained for the purpose of assisting counsel in trial preparation.

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Any person who accesses confidential information shall be provided a copy of this Order and shall
be advised of this Order prior to disclosure.

4.

Restrictions on Use and Dissemination of Designated Information

All information produced by a party in the course of this litigation and designated as
CONFIDENTIAL shall be used by the receiving party solely for the purpose of this litigation.
Any person receiving information designated as CONFIDENTIAL pursuant to the provisions of
this Order shall be advised of this Order. Nothing in this paragraph shall have any impact on
Plaintiffs right to retain and to utilize the medical records of Rebecca Louise Duke.

5.

Certain Information Not Subject to Scope of Order

The restrictions of this Order shall not apply to information that: (a) was, is, or becomes
public knowledge, not in violation of this Order; (b) was or is acquired from a third party having
no obligation of confidentiality to the designating party; or (c) the receiving party establishes was
in its lawful possession at the time of disclosure or is developed by the receiving party
independently of Confidential Information. The receiving party has the burden to prove that
information falls within this paragraph.

6.

Exceptions by Order or by Agreement of the Parties

Nothing shall prevent disclosure beyond the terms of this Order if the party designating the
information consents in writing to the disclosure, or if the Court, after notice to the other party and
the opportunity to be heard, orders disclosure.

7.

Inadvertent or Unintentional Disclosure

The inadvertent or unintentional disclosure by the supplying party of information
designated confidential under this Order-regardless of whether the information was designated
at the time of disclosure-shall not be deemed a waiver in whole or in part of a party's claim of
confidentiality, either as to the specific information disclosed or as to any other information

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relating to the disclosure or on the same or related subject matter. Counsel for the parties shall in
any event, to the extent possible, upon discovery of inadvertent error, cooperate to restore the
confidentiality of the designated information. Upon receipt of written notification and
identification of inadvertent disclosure of confidential information, the receiving party shall either
mark the materials with the appropriate designation or return them to the producing party for
marking.

8.

Challenges to Designations

A party shall not be obligated to challenge the propriety of a designation under this Order
at the time made, and failure to do so shall not preclude a subsequent challenge. In the event that
either party disagrees at any point with the designation by the supplying party of any information,
the parties shall first attempt to resolve the dispute in good faith on an informal basis. If the dispute
cannot be resolved, the objecting party may seek appropriate relief from this Court in accordance
with the procedures required by the Final Scheduling Order (Doc. 12), and the party asserting
confidentiality shall have the burden of proving the proper designation.

9.

Documents Under Seal

Material designated as "Confidential" shall not be filed on the public docket. If practicable,
it shall be redacted. FED. R. Civ. P. 5.2. If redaction is impractical, a party must move for
permission to file under seal any "Confidential" material and any related motion, brief, or paper
containing that material. The moving party must justify sealing with specifics and solid reasons.

10.

Continuing Effect

The provisions of this Order shall remain in effect for one year after the litigation ends.
Thereafter, the obligations imposed shall be solely a matter of contract between the parties.

11.

Return or Destruction of Confidential Information by Receiving Party

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Within 120 days after final conclusion of all aspects of this litigation, and upon request
from opposing counsel, all documents designated as "Confidential" and all copi es of the same shall
be returned to the supplying party or destroyed. The receiving party shall generate a certificate
indicating the return or destruction in compliance with this Order and deliver it to the supplying
party. Plaintiff need not destroy Rebecca Louise Duke' s medical records, or any other documents
containing Rebecca Louise Duke' s protected health information, in connection with Plaintiff s
obligations under this paragraph.
So Ordered.
D .P. Marshall Jr. (/
United States District Judge

PREPARED BY:

Isl Samantha B. Leflar
Mark W. Dossett (AR 95174)
Samantha B. Leflar (AR 2010190)
Maggie Benson (AR 2015077)
KUTAKROCKLLP
Attorneys for Separate Defendants, Skyline Arkansas Holdings, LLC, Skyline CHP Holdings, LLC,
Batesville Holdings, LLC, Batesville Health and Rehab, LLC, and Joseph Schwartz

APPROVED:

Isl Scott Davidson
Scott Davidson (AR 88090)
DAVIDSON LAW FIRM
Attorneys for Plaintiff

Isl Carson Tucker
Jerry J. Sallings (AR 84134)
Carson Tucker (AR 2006090)
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WRIGHT, LINDSEY & JENNINGS LLP
Attorneys for Separate Defendants, Arkansas Nursing Home Acquisition, LLC, Capital Funding
Group, Inc., CSCV Holdings II, LLC, Arkansas SNF Operations Acquisition III, LLC, John W
Dwyer, Alan Zuccari, and Brian Reynolds

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