Access Mediquip LLC v. St Vincent Infirmary Medical Center

Filing 7

PROTECTIVE ORDER regarding confidential information. Signed by Chief Judge J. Leon Holmes on 3/2/12. (vjt)

FILED

U.S. DISTRICT CC>URT
EASTERN DISTHICT ARKANSAS

MAR 0 2 2012
IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
JA~ES W. McCORMAq<~ERK
WESTERN DIVISION
By.
~BmLERK
ACCESS MEDIQUIP, LLC

vs.

PLAINTIFF

CASE NO. 4:11CV00695 JLH

ST. VINCENT INFIRMARY MEDICAL CENTER
a/1</a ST. VINCENT HEALTH SYSTEM

DEFENDANT

PROTECTIVE ORDER
This Protective Order governs the parties to this action and their lawyers, as follows:
1.

All materials and copies, transcriptions, or othet reproductions of materials

(hereinafter "Materials") produced in this action by any party or non-party (hereinafter
"producing patty") that contain, describe, identify or refer to trade secrets, medical records or
protected health information (as referenced in paragraph 3 below), or other information the
confidentiality or privacy of which is protected by statute may be stamped "CONFIDENTIAL"
by the producing pmty and, if so stamped, will be subject to the provisions of this Protective
Order.
2.

All materials produced in this action by any patty or non-party that contain,

describe, identify or refer to competitively sensitive information, the disclosure of which is
prohibited by statute and/or may cause significant competitive harm to the producing party may
be stamped "HIGHLY CONFIDENTIAL" by the producing pa1ty and, if so stamped, will be
subject to the provisions of this Protective Order. With the exception of the restrictions on
access to "HIGHLY CONFIDENTIAL INFORMATION," set forth in paragraph 7 below, the

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provisions ofthe Protective Order referring to "CONFIDENTIAL INFORMATION" shall apply
with equal effect to and include "HIGHLY CONFIDENTIAL INFORMATION."
3.

To the extent that information is sought that may qualify as "protected health

information" under Health Insurance Portability and Accounting Act of 1996 ("HIP AA") or the
regulations implementing HIP AA, this Protective Order constitutes a "qualified protective order"
as defined in 45 C.P.R. § 164.512 (e)(1)(v), and disclosure of such information is thereby
permitted under 45 C.F.R § 164.512 (e)(1)(ii)(B) by all "Covered Entities" as defined by 45
C.P.R. § 160.103. "Protected Health Information" shall have the same scope and definition as set
f01ih in 45 C.P.R. 160.103 and 164.501 and includes, but is not limited to, health inf01mation,
Including demographic information, relating to either, (a) the past, present or future physical or
mental condition of an individual, (b) the provision of care to an individual, or (c) the past,
present or future payment for care provided to an individual, in all cases, which identifies the
individual or with respect to which there is a reasonable basis to believe the information could be
used to identify the individual.
4.

The inadvertent production, without designation as Confidential Information, of a

document, thing, information or deposition testimony intended to be designated or that should
have been designated Confidential Information shall not waive the right to so designate such
document, thing, information or deposition testimony. Any Confidential Information that is
inadvertently not designated Confidential Information when produced shall, upon written request
of the producing party, thereafter be treated as Confidential Information under this Protective
Order.
5.

A lawyer who wishes to challenge the "CONFIDENTIAL" designation made

by the producing pmiy of any Materials must first attempt in good faith to confer with
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lawyers for the producing party in an effort to resolve the issue amicably. If agreement
cannot be reached, the challenging party may file a motion asking the Court to remove the
designation. The motion should describe with specificity the particular Materials for which
the designation is being challenged and set forth with specificity why the Materials are not
properly designated as "CONFIDENTIAL." The party seeking to maintain Materials as
"CONFIDENTIAL" generally will bear the burden of proving that the designation is proper.
Materials designated as "CONFIDENTIAL" will continue to be treated as such and subject to the
provisions of this Protective Order pending determination by the Comi of the merits of any
such challenge.
6.

Materials designated as "CONFIDENTIAL" may be used only for this action

and for no other action or purpose. Materials designated as "CONFIDENTIAL" may not,
without leave of this Comi, be disclosed to any person or entity other than this Comi (under
seal) except as stated in this Protective Order.
7.

The disclosure by a lawyer of Materials designated as "CONFIDENTIAL" to

that lawyer's client, to paralegals and clerical staff employed or contracted with by that
lawyer's office, or to experts retained by that lawyer, will not constitute a violation of or a
waiver of the protections afforded by this Protective Order so long as the person to whom
disclosure is made has executed an Affidavit in the form attached hereto as Exhibit A. A
lawyer who discloses Materials designated as "CONFIDENTIAL" pursuant to this paragraph
must maintain each Affidavit executed by persons to whom that lawyer has disclosed Materials
designated as "CONFIDENTIAL." Materials designed as "HIGHLY CONFIDENTIAL"
may only be disclosed to those persons identified in this paragraph, other than the disclosing
lawyer's client.
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8.

Nothing in this Protective Order shall restrict any use by producing party of its

own "CONFIDENTIAL" Materials.
9.

If Materials designated as "CONFIDENTIAL" are to be identified, discussed, or

disclosed during a deposition taken in this action of any person or entity other than those
persons or entities described in paragraphs 6 and 7 above, the deponent must be required to
acknowledge on the record, before any identification, discussion or disclosure of Materials
occurs, that he or she has been advised of and has agreed to be bound by the terms of this
Protective Order.
10.

A party designate as "CONFIDENTIAL" portions of any deposition

transcript wherein Materials designated as "CONFIDENTIAL" are identified, discussed, or
disclosed. Portions of a deposition transcript so designated will be subject to the terms of this
Protective Order. The designation must be made on the record during the deposition or by Letter
sent by facsimile to opposing counsel within five business days after receipt of the transcript.
The portions of a deposition transcript that mention or discuss Materials Designated as
"CONFIDENTIAL" must be treated as "CONFIDENTIAL" and therefore subject to this
Protective Order until 5:00 p.m. Central Time on the fifth day after receipt of the transcript. All
portions of the deposition transcript not designated as "CONFIDENTIAL" by 5:00 p.m. Central
Time on the fifth business day after receipt of the transcript arc excluded from the protections of
this Protective Order.
11.

If, during the course of pre-trial or trial proceedings, a lawyer for a party

intends to identify, discuss, or disclose Materials produced by the opposing party and designated
as "CONFIDENTIAL," that lawyer must give prior notice to opposing counsel so that the
producing party may seek appropriate protection.
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12.

If Materials designated as "CONFIDENTIAL" are filed with the Clerk ofthis

Com1, they must be filed in a sealed envelope in compliance with Section IV.B of this Court's
CM/ECF Administrative Policies and Procedures Manual for Civil Filings. The Scaled envelope
also must contain the following statement:
"CONFIDENTIAL: THE CONTENTS OF THIS ENVELOPE ARE NOT TO BE
SCANNED AND ARE SUBJECT TO A PROTECTIVE ORDER OF THIS
COURT AND SHALL NOT BE SHOWN TO ANY PERSONS OTHER THAN A
JUDGE OF THIS COURT OR AN ATTORNEY IN THIS CASE."

13.

No lawyer for party may comment in the presence of the jury on the reasons

or motivation for designating Materials as "CONFIDENTIAL" without first having obtained
permission of the Court to do so.
14.

This Protective Order will be binding until this action is finally concluded and

thereafter for so long as the confidentiality or privacy of Materials designated as
"CONFIDENTIAL" would be protected by statute.
15.

Within sixty ( 60) days after final adjudication of this action, all lawyers then

having possession, custody or control of Materials designated as "CONFIDENTIAL" by the
opposing party must destroy or return those items and must, upon request by the opposing party,
verify that all such items have been destroyed or returned to the producing party.

The

verification must be made by Affidavit in the form of Exhibit B to this Protective Order. A
pmty may also file a motion asking the Court to return Materials that were designated as
"CONFIDENTIAL" and provided to the Com1. If such a motion is filed, the Court will rule on
it thereafter. The Court cannot promise in advance how it will rule on any such motion.

16.

Nothing in this Protective Order will preclude a party from seeking additional

protection for Materials designated as "CONFIDENTIAL" or from otherwise seeking a

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modification of this Protective Order.
17.

Nothing in this Protective Order will prevent this Court from disclosing any

facts relied upon by it in making or rendering any finding, tuling, order, judgment or decree of
whatever description.
IT IS SO ORDERED this

'lAJ

day of

j)~

, 2012.

APPROVED AS TO FORM AND CONTENT:

ROSE LAW FIRM
a Professional Association
120 East Fourth Street
Little Rock, Arkansas 72201
Phone: [phone]
Fax: [phone]
rdonovan@roselawfirm. com
[e-mail]

FRIDAY, ELDREDGE & CLARK, LLP
400 West Capitol Ave., Suite 2000
Little Rock, Arkansas 72201
Phone: [phone]
Fax: [phone]
[e-mail]

Attorneys for Plaintiff

Attorney for Defendant

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EXHIBIT A
AFFIDAVIT OF _ _ _ _ _ __
STATE OF _ _ _ _ _

_J

) ss:
COUNTY OF _ _ _ _._../
Before me, the undersigned Notary Public, in and for said County and State, personally
appeared
1.

, who after first being sworn, states as follows:
My name is

of

County,

. I am over the age of 18 years and resident
. I make this Affidavit based upon my

personal knowledge, and I am competent to testify to the matters stated herein.
2.

I am aware that a Protective Order has been entered in Access Mediquip, LLC v.

St. Vincent Injirmmy Medical Center aka St. Vincent Health System, CASE NO. 4:11-CV-0695

JLH, which is pending in the United States District Court for the Eastern District of Arkansas,
Western Division. A copy of that Protective Order has been shown to me, and I have read and
understand its contents.
3.

By signing this Affidavit, I promise that I will use the materials and contents of

the materials designated "confidential: or "highly confidential" pursuant to the above described
civil action in the adjudication of that action and for no other purpose.
4.

By signing this Affidavit, I also promise that I will not communicate, disclose,

discuss, identify, or otherwise use materials or the contents of materials designated
"confidential" pursuant to the above-described Protective Order with, to , or for any person or
entity other than the Court, a party to the above-described civil action, counsel for a party to the
above-described civil action, including other counsel, paralegals, and clerical staff

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employed in his or her office, persons permitted by the above-described Protective Order to
attend depositions taken in the above-described civil action, and persons or entities assisting such
counsel who have executed an affidavit in the same form as this Affidavit. I also promise to
disclose "highly confidential" information only to the above-referenced persons, with the
exception of any party to the above-described civil action.
5.

By signing this Affidavit, I also promise that I will not copy, transcribe, or

Otherwise reproduce, or cause to be copied, transcribed, or otherwise reproduced, by any
Means whatsoever, any materials or the contents of any materials designated "confidential" or
"highly confidential" pursuant to the above-described Protective Order except to the extent to
which I am directed to do so by counsel for a party to the above-described civil action, in which
case all such copies, transcriptions, or reproductions shall be made solely for my own use in
connection with my work in the above matter. I further promise at the conclusion of this case to
deliver upon request all materials (originals and copies) designated "confidential" to the counsel
Who originally directed that said materials be provided to me.
6.

I understand' that, by signing this agreement, I am agreeing to subject myself to

the jurisdiction of this Court.
7.

I understand that any use or distribution of the materials or contents of the

materials designated "confidential" pursuant to the above-described Protective Order in any
manner contrary to the provisions of the Protective Order will subject me, among other things, to
the summary sanctions of this Comt for contempt.
FURTHER AFFIANT SAYETH NOT.

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Signature of Affiant

Subscribed and sworn to before me, this _ _ day of _ _ _ _ _ _ _ _, 2012.

Notary Public

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EXHIBITB
AFFIDAVIT OF _ _ _ _ _ __
STATE OF _ _ _ ____)
) ss:
COUNTY OF _ _ _ _~
Before me, the undersigned Notary Public, in and for said County and State, personally
appeared _ _ _ _ _ _ _ _ _ _ , who after first being sworn, states as follows:
1.
of

My name is
County,

I am over the age of 18 years and resident
. I make this Affidavit based upon my

personal knowledge, and I am competent to testify to the matters stated herein.
2.

I have requested and received from

all of the materials, transcripts,

And other things described in Access Mediquip, LLC v. St. Vincent Infirmary Medical Center aka
St. Vincent Health System, CASE NO. 4:11-CV-0695 JLH, which is pending in the United States

District Court for the Eastern District of Arkansas,. I have either destroyed or have attached
hereto all of the materials, transcripts, and other things, including those materials which were
returned to me by in accordance with the preceding paragraph, described in the Protective Order
which was entered by the County in Access Mediquip, LLC v. St. Vincent Infirmary Medical
Center aka St. Vincent Health System, CASE NO. 4: 11-CV -0695 JLH.

FURTHER AFFIANT SA YETH NOT.

Signature of Affiant

Subscribed and sworn to before me, this _ _ day of _ _ _ _ _ _ _ _ , 20_.

Notary Public
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