Capson Physicians Insurance Company v. MMIC Insurance Inc

Filing 52

ORDER granting 51 Joint MOTION for Protective Order. Signed by Judge D. P. Marshall Jr. on 6/13/2014. (Attachments: # 1 Exhibit A)(jak)

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
JONESBORO DIVISION

CAPSON PHYSICIANS
INSURANCE COMPANY

v.

PLAINTIFF

No. 3:13-cv-157-DPM

MMIC INSURANCE INC.

DEFENDANT

MMIC INSURANCE INC.

CROSS-CLAIMANT

v.
DR. KARL J. HASIK; LILLIAN WILSON,
Individually and as Special Administratrix
for the Estate of J.A.W., deceased; SAMANTHA
RAY, Individually and as next friend and
guardian of A.L.R., a minor; DERECK RAY,
Individually and as next friend and guardian
of A.L.R.; and DOE, A.L.R., a minor
CROSS-DEFENDANTS

ORDER
The parties' joint motion for a protective order, NQ 51, is granted. The
parties stipulate and the Court orders:
1. For purposes of this Order, "Confidential Documents" shall include
any documents that a party or its counsel designates as confidential based

upon a good-faith belief that the designation is appropriate because the
documents contain proprietary or confidential business or financial
information, trade secrets, or non-public information of a commercially
sensitive, personal, or private nature. Any documents produced by a nonparty in this action, pursuant to subpoena or otherwise, may be designated
by the non-party, any party, or counsel for any party as "Confidential
Documents" under the terms of this Order. Confidential Documents may
include information of whatever kind, including, but not limited to, written
information and information otherwise recorded on any medium, including,
without limitation, paper, photographs, recordings, and electronic, optical,
and magnetic disks and files.
2. For purposes of this Order, "Confidential Information" shall include
any information provided in disclosures, in response to a written discovery
request, or in response to a deposition question that a party or its counsel, or
a deponent or its counsel, designates as confidential based upon a good-faith
belief that the designation is appropriate because of the proprietary or
confidential business or financial nature of the information, trade secrets

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contained in the information, or the non-public, sensitive, personal, or private
nature of the information.
3. At the time a party or non-party produces documents in this action,
the producing party may designate documents as Confidential Documents by
stamping on each page of the documents the word "Confidential."
4. At the time a party makes a disclosure or responds to a written
discovery request, the producing party may designate information as
Confidential Information by stating in writing in the disclosure or in response
to the written discovery request that the information is Confidential
Information and by indicating on the first page of the disclosure or written
discovery responses that the document contains Confidential Information.
5. During any deposition, a deponent or counsel for a deponent, or a
party or counsel for a party, may designate testimony being provided in
response to a deposition question as Confidential Information. In addition,
a deponent or counsel for a deponent, or a party or counsel for a party, may
designate additional Confidential Information by indicating to all parties, in
writing, twenty-one days following receipt of a deposition transcript the
specific line numbers and page numbers of the transcript that contain
Confidential Information.
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6. If any party receiving Confidential Documents or Confidential
Information believes that the documents or information is not entitled to the
protections set forth in this Order, the receiving party shall, within thirty days
of receiving the documents or information, indicate to the producing party,
in writing, copying all parties to this action, the specific documents or
information that the receiving party believes fall outside the protections set
forth in this Order, and shall state in writing the rationale for the removal of
the documents or information from the protections set forth in this Order.
7. If the producing party or any party to this action objects in writing
to the receiving party's written notice that the identified documents or
information falls outside the protections set forth in this Order, the objection
shall be made in writing within twenty-one days of receiving the written
notice, or the claim of confidentiality shall be waived. If an objection is made
in writing, it shall state the rationale for maintaining the identified documents
or information under the protections set forth in this Order. If the receiving
party desires to challenge the claim of confidentiality, the receiving party shall
move the Court for an order on the issue. In any dispute among the parties as
to whether a particular document, a particular set of documents, or specific

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information has been properly designated as Confidential Documents or
Confidential Information, the burden of establishing the confidentiality of the
disputed material pursuant to the definitions in ,-r,-r 1 & 2 of this Order remains
with the party that designated the material as confidential in the first instance.
8. Neither the service of the written notice described in,-r 6, nor the
service of the written objection or filing of a motion described in ,-r 7, shall
remove the identified documents or information from the protections set forth
in this Order. Until the parties resolve the dispute among themselves, the
producing party or the party claiming confidentiality waives the claim of
confidentiality, or the Court resolves the dispute the identified documents or
information shall retain the protections set forth in this Order.
9. The parties agree that Confidential Documents and Confidential
Information shall not be disclosed, directly or indirectly, to anyone other than
the parties, attorneys for the parties, witnesses and potential witnesses,
consultants, and expert witnesses specially retained or specially employed for
purposes of the action.

To the extent any Confidential Documents or

Confidential Information is provided to non-party witnesses or potential
witnesses,consultants,orexpertwitnesses,eachnon-partywitnessorpotential

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witness, consultant, or expert witness shall agree in writing, in the form
attached to this Order as Exhibit A, prior to receiving any Confidential
Documents or Confidential Information, that he or she shall be bound by the
terms of this Order and shall return all Confidential Documents and
Confidential Information upon conclusion of the action. Each party shall keep
its Exhibit A(s) containing original or electronic signatures until such time as
each person or entity receiving Confidential Documents and Confidential
Information pursuant to Exhibit A has returned or destroyed all Confidential
Documents and Confidential Information. Nothing in this Order prevents
any party from disclosing Confidential Documents and Confidential
Information to the Court, its staff, and court reporters at deposition or trial,
subject to any protections the Court may order with respect to the treatment
of Confidential Documents and Confidential Information at trial. Nothing in
this Order restricts what a producing party may do with the Confidential
Documents or Confidential Information it produces.
10. The inadvertent, unintentional, or in camera disclosure of
Confidential Documents and Confidential Information shall not, under any
circumstances, be deemed a waiver, in whole or in part, of any claims of

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confidentiality. If Confidential Documents or Confidential Information is
inadvertently

produced

without

the

appropriate

designation

of

confidentiality, the receiving party shall, upon notice of the confidential status
of the documents or information, treat the documents or information as if it
had been appropriately designated confidential at the moment it was
produced.
11. The parties and all persons subject to the provisions of this Order
agree to use Confidential Documents and Confidential Information solely and
exclusively for purposes of preparing for, conducting, and participating in the
action, and not for any other litigation or any other purpose. The parties'
agreement to produce Confidential Documents and Confidential Information
pursuant to this Order shall not be deemed an agreement that such
information and documents (1) constitute or contain confidential information
or trade secrets or other confidential research, development, financial,
commercial, or personal information or (2) are relevant to any matter at issue
in the action. Each party reserves the right to object to, and to seek an
appropriate order limiting, any use that any other party may seek to make of
Confidential Documents or Confidential Information either in discovery or at
the trial of the action.
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12. The parties agree that no copies of Confidential Documents or
Confidential Information will be made except as necessary for the purposes
of this action. If it becomes necessary to include information obtained from
Confidential Documents or Confidential Information or to use Confidential
Documents or Confidential Information in any court filing, then any
Confidential Documents and Confidential Information, and any information
obtained from those sources, shall be filed under seal, if not prohibited by
law.
13. The parties agree to comply with the requirements of FED. R. CIV. P.
5.2, to the extent they apply, and, if practicable, redact Confidential
Information and Confidential Documents to avoid filing documents under
seal.
14. Upon the conclusion of the action, all Confidential Documents and
Confidential Information, all copies, extracts, summaries, and facsimiles
thereof, and all electronically, optically, or magnetically stored information
of any kind, including, without limitation, diskettes, compact disks, computer
files, and similar storage media containing Confidential Documents or
Confidential Information shall be destroyed or deleted, uninstalled, or
otherwise removed from each computer, diskette, compact disk, computer
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file, and any other storage media by the receiving party. Notwithstanding the
foregoing, no documents subject to the attorney-client privilege or the workproduct doctrine and summarizing or otherwise containing Confidential
Documents and Confidential Information must be destroyed, but instead shall
be maintained pursuant to this Order until destroyed in accordance with any
standard destruction procedures.

Additionally, upon request, a sworn

certificate attesting to the destruction and electronic file deletion of nonprivileged material and indicating that no non-privileged electronic
information has been retained shall be executed by each party and by counsel
for each party and delivered to all parties within 120 days after the conclusion
of the action, including any appeals.
15. This Order expires thirty days after conclusion of whichever of the
following matters concludes last: (a) this Action, (b) Lillian Wilson, Individually
and as Special Administratrix for the Estate of ].A.W., Deceased v. Paragould
Obstetrics and Gynecology, PLLC; and Karl]. Hasik, M.D., Case No. CV2012-217,

or (c) Samantha Ray and Dereck Ray, Individually and As Next Friend of A.L.R.,
a Minor v. Arkansas Methodist Hospital Corporation; Paragould Obstetrics &
Gynecology, PLLC; Dr. Karl Hasik, M.D.; Dr. Kristina Wegner, M.D.; Paragould

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Pediatrics, PLLC; Joe Doe Insurance Companies 1-10;and John Does 1-10, Case No.
CV2012-177, Index No. 30328/11.
16. The Parties agree that nothing in this Order is intended to alter or

diminish the protections of the attorney-client privilege or the work-product
doctrine.
17. Because a violation of this Order by a receiving party could cause

irreparable injury to the producing party, and there is no adequate remedy at
law for such violation, the parties shall have the right, in addition to any other
remedies available to them at law or in equity, to seek to enjoin a receiving
party in this Court from any violation of this Order.
18. This Order shall inure to the benefit of, and be binding upon, the

parties and their respective successors, heirs, agents, personal representatives,
and assigns.
19. Any individual or entity that becomes a party to this action and has

not subscribed to this Order as of the time it is presented to the Court for
approval and entry may thereafter become a party to this Order by having its
counsel sign and date a copy of this Order and filing it with the Court and
serving the signed copy upon the other parties to this Order.

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20. This Order is applicable to the parties for the sole purpose of

facilitating discovery in the action.

This Order and the confidentiality

designations made pursuant to this Order may not be used in any manner,
directly or indirectly, as evidence at trial or any hearing or referred to at trial
or any hearing in this action, except for a hearing that involves issues related
to the enforcement of any provision of this Order.
21. Any time limit contemplated by this Order may be extended by an

agreement in writing signed by counsel of record for each party.
22. This Order is the entire agreement between the parties. It may not
be amended in any manner whatsoever except by an agreement in writing
signed by counsel of record for each party and adopted by Order of this
Court.
So Ordered.

D.P. Marshall Jr.?
United States District Judge

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