Clymore, et al v. Federal Railroad Administration et al

Filing 31

Protective Order, signed by Magistrate Judge Sandra M. Snyder on 5/8/2015. (Rosales, O)

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1 2 3 4 BENJAMIN B. WAGNER United States Attorney JEFFREY J. LODGE Assistant United States Attorney 2500 Tulare Street, Suite 4401 Fresno, California 93721 Telephone: (559) 497-4000 Facsimile: (559) 497-4099 5 6 Attorneys for the United States 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 18 RICHARD CLYMORE, an individual; DEBRA ) Case No. 1:14-CV-00101 AWI SMS HARBIN-CLYMORE, an individual, ) ) ) Plaintiffs, ) ) v. ) ) FEDERAL RAILROAD ADMINISTRATION, ) ET. AL, ) ) ) Defendants. ) ) ) 19 PROTECTIVE ORDER GOVERNING PERSONAL INFORMATION 20 OF CHARLES MARK HAGOOD 12 13 14 15 16 17 21 Plaintiffs Richard Clymore and Debra Harbin-Clymore (“Plaintiffs”), and Defendant United 22 States (“United States”), stipulate, by and through the undersigned counsel, that to expedite the flow 23 of information in this action and to protect Charles Mark Hagood’s personally identifiable 24 information, including but not limited to information regarding his social security number, health and 25 financial information, addresses, and date of birth, which information shall be kept confidential, and 26 to ensure that protection is afforded only to material so entitled, it is, pursuant to the court's authority 27 and with the consent of the parties, ORDERED: 28 /// PROTECTIVE ORDER GOVERNING PERSONAL INFORMATION OF CHARLES MARK HAGOOD 1 1 2 (1) Production of Information By The United States That May Be Subject To The Privacy Act, 5 U.S.C. § 552a, 45 C.F.R. § 164.102-164.534, 42 U.S.C. § 1306, HIPPA or Other Privacy Protections. 3 The United States as defendant in this Action on behalf of the Federal Railroad 4 Administration (“FRA”) (collectively the “United States”) may produce certain personally 5 identifiable information (health and/or financial information that is connected to Charles Mark 6 Hagood, including his date of birth, addresses, Social Security number or other identifying number) 7 to the plaintiffs. The information produced may be subject to the provisions of the Privacy Act, 5 8 U.S.C. § 552a, 45 C.F.R. §§ 164.102-164.534, or 42 U.S.C. § 1306. The information produced may 9 also be protected by the Health Insurance Portability and Accountability Act of 1996 and 10 implementing regulations at 45 C.F.R. Parts 160 and 164 (collectively “HIPPA”). The United States 11 shall produce these personally identifiable documents regarding Charles Mark Hagood unredacted to 12 the plaintiffs’ counsel. Upon producing these documents to the plaintiffs, the United States shall 13 designate them as "confidential" on the documents themselves or on any disk or other electronic 14 media containing the confidential information. The United States is not required to place a 15 designation on each document produced on a disk or other electronic media. 16 The parties in this Action, including plaintiffs’ counsel and his personnel, may use these 17 documents only for purposes of the Action, and may disclose them to non-parties to the litigation 18 only as needed for the Action, and only if the nonparty, including but not limited to experts retained 19 by the parties to the Action, sign the form of acknowledgment attached to this Order. The parties to 20 the Action shall not file these documents or submit them in any court filing unless all reasonable 21 efforts have been made to conceal personally identifiable information regarding Charles Mark 22 Hagood. The parties will comply with Local Rule 140 et. seq. when filing any documents or 23 presenting the documents at a hearing or trial in connection with this Action. 24 Within ninety (90) days of the final conclusion of the Action, counsel for the parties to the 25 Action shall return the documents designated confidential and all copies, as well as all notes, 26 memoranda, summaries, or other documents containing information from the designated confidential 27 documents, to counsel for the United States, or shall destroy them and certify in writing to the 28 PROTECTIVE ORDER GOVERNING PERSONAL INFORMATION OF CHARLES MARK HAGOOD 2 1 Assistant United States Attorney representing the United States that the documents have been 2 destroyed. 3 (2) 4 To designate "confidential" material covered by this Protective Order, the United States shall Designation of Material Subject to this Protective Order. 5 so designate, on the material itself, in an accompanying cover letter or on a disk label or disk 6 container, by using the following designation: "CONFIDENTIAL INFORMATION- SUBJECT TO 7 PROTECTIVE ORDER." Material cover by this Protective Order shall include, without further 8 designation, any medical records of Charles Mark Hagood obtained by the Plaintiffs through 9 subpoena or otherwise in the course of discovery. 10 (3) Confidential Information in Depositions. 11 The parties in this Action may show deponents designated confidential documents. However, 12 efforts should first be made, if practicable, to conceal the personally identifiable information of 13 Charles Mark Hagood. The parties in the Action may, within 30 business days after receiving a 14 deposition transcript, designate pages of the transcript (and exhibits thereto) as confidential. 15 Confidential information within the deposition transcript may be designated by underlining the 16 portions of the pages that are confidential and marking such pages with the following legend: 17 "CONFIDENTIAL INFORMATION - SUBJECT TO PROTECTIVE ORDER." Until expiration of 18 the thirty (30) day period, the entire deposition will be treated as subject to protection against 19 disclosure under this Protective Order. If no party timely designates confidential information in a 20 deposition, then none of the transcript or its exhibits will be treated as confidential; if a timely 21 designation is made, the confidential portions and exhibits shall be filed separate from the portions 22 and exhibits not so marked in any court filing in accordance with Local Rule 140 et seq. The 23 provisions in paragraph (3) do not apply to expert witness depositions provided that the expert(s) 24 execute the attachment identified as Exhibit “A”. Access to information designated “CONFIDENTIAL” pursuant to this Order shall be limited 25 26 to the following persons: 27 /// 28 /// PROTECTIVE ORDER GOVERNING PERSONAL INFORMATION OF CHARLES MARK HAGOOD 3 1 a. Counsel for the parties, including outside and agency counsel, as well as 2 members and employees of their firms including but not limited to their 3 paralegals, investigative, secretarial and clerical personnel who are employed 4 by and engaged in assisting such counsel in this Action. 5 b. employed by the parties or their counsel to assist in this Action. 6 7 Outside photocopying, data processing or graphic production services c. Any outside expert or consultant (or any employee of such outside expert or 8 consultant) who is retained, or sought to be retained, by counsel for a party in 9 this Action, for purposes of consulting, and/or testifying in this Action, and to 10 whom 11 “CONFIDENTIAL” material is reasonably necessary in order to assist in the 12 preparation or the conduct of this Action. This paragraph shall not relieve, 13 change or otherwise affect any obligations or limitations imposed on any 14 person by contract or law regarding the disclosure or use of private medical 15 information relating to Charles Mark Hagood. 16 d. counsel in good faith has deemed disclosure of such Any fact witness, at the witness’ deposition in this Action, but only if counsel 17 who discloses “CONFIDENTIAL” information to the witness determines, in 18 good faith, that such disclosure is reasonably necessary and appropriate to 19 assist in the conduct of this Action. 20 e. Any person (a) who was involved in the preparation of the document or other 21 tangible medium containing the Confidential Information and/or who is 22 shown on the face of “CONFIDENTIAL” material to have authored or 23 received the “CONFIDENTIAL” material sought to be disclosed to that 24 person, or (b) who is specifically referenced by name and substantively 25 discussed in the “CONFIDENTIAL” material, but only as to the specific 26 material the person authored or received, or in which such person is 27 referenced and discussed. 28 PROTECTIVE ORDER GOVERNING PERSONAL INFORMATION OF CHARLES MARK HAGOOD 4 f. 1 This Court or any other Court exercising jurisdiction with respect to this 2 litigation, including Court and clerical personnel recording, taking or 3 transcribing testimony or argument at any deposition, hearing, trial or appeal 4 in this litigation. 5 The plaintiffs shall not have access to information designated “CONFIDENTIAL” pursuant to this 6 Order. 7 (4) 8 The procedures for use of designated confidential documents during any hearing or the trial of 9 Confidential Information in Open Court. the Action shall be determined by the parties in advance of the hearing or trial. The parties shall 10 consider redacting confidential documents to remove personally identifiable information regarding 11 Charles Mark Hagood, request to submit such documents in accordance with the Local Rules, or 12 introduce summary evidence where practicable. The parties will follow Local Rule 140 et seq. No 13 party shall disclose designated confidential documents in open Court without prior consideration by 14 the parties and the Court in the Action. 15 (5) 16 The Clerk in the Action may accept for filing this order any documents or filings consistent 17 Filing of documents. with the requirements of Eastern District Local Rule 140 et seq. 18 (6) 19 Nothing in this Order shall prevent any party to this Action from seeking modification of this 20 Modification Permitted. Protective Order or from objecting to discovery that it believes to be otherwise improper. 21 (7) 22 The failure to designate any materials as provided in paragraph 2 shall not constitute a waiver 23 No Waiver. of a party's assertion that the materials are covered by this Protective Order. 24 (8) 25 This Protective Order does not constitute a ruling on the question of whether any particular No Ruling on Discoverability Nor Admissibility. 26 material is properly discoverable or admissible and does not constitute a ruling on any potential 27 objection to the discoverability of any material in the Action. 28 PROTECTIVE ORDER GOVERNING PERSONAL INFORMATION OF CHARLES MARK HAGOOD 5 1 (9) 2 Should any confidential information regarding Charles Mark Hagood be disclosed in a 3 manner not authorized by this Protective Order, through inadvertence or otherwise, by a party or non- 4 party, then the party or non-party that made the unauthorized disclosure shall use his/her best efforts 5 to obtain the return of any such protected information and to bind the recipient of protected 6 information to the terms of this Order and shall, within seven (7) business days of the discovery of 7 such disclosure, inform the recipient of protected information of all provisions of this Order and 8 identify such recipient to the party who designated the relevant protected health information. 9 Nothing in his paragraph limits the remedies that the party who designated the relevant protected 10 Unauthorized Disclosure. information may pursue in this Court for breach of this Protective Order. 11 (10) 12 Nothing contained in this Protective Order shall prevent or in any way limit or impair the Disclosure to Agencies or Departments of the United States. 13 right of the United States to disclose to any organization within any such agency or department of the 14 FRA, or any division of any such agency or department, designated confidential documents relating 15 to any potential violation of law or regulation, or relating to any matter within that agency's 16 jurisdiction, nor shall anything contained in this Protective Order prevent or in any way limit or 17 impair the use of any such designated confidential documents by an agency in any proceeding 18 relating to any potential violation of law or regulation, or relating to any matter within that agency's 19 jurisdiction; provided, however, that the agency shall maintain the confidentiality of the designated 20 confidential documents consistent with the terms of this Protective Order. 21 (11) 22 Nothing contained in this Protective Order shall prevent or in any way limit or impair the Disclosures to Congress. 23 right of the United States to provide designated confidential documents to a Congressional entity; 24 provided, however, that the United States shall notify the Congressional entity requesting the 25 documents that the designated confidential documents have been produced pursuant to this Protective 26 Order and shall, if there are no objections interposed by the Congressional entity requesting the 27 documents, use reasonable efforts to notify the producing party or nonparty of the Congressional 28 entity's request and the United States’ response thereto. PROTECTIVE ORDER GOVERNING PERSONAL INFORMATION OF CHARLES MARK HAGOOD 6 1 SO STIPULATED: 2 3 Respectfully submitted, Dated: May 8, 2015 4 5 BENJAMIN B. WAGNER UNITED STATES ATTORNEY By: 6 7 8 Dated: May 8, 2015 /s/Jeffrey J. Lodge JEFFREY J. LODGE Assistant U.S. Attorney Attorneys for Defendant United States PANISH SHEA & BOYLE LLP 9 By: 10 11 /s/ Brian Panish BRIAN PANISH DAVID RUDORFER Attorneys for Plaintiffs 12 13 14 IT IS SO ORDERED. 15 16 Dated: May 8, 2015 17 /s/ SANDRA M. SNYDER UNITED STATES MAGISTRATE JUDGE 18 19 20 21 22 23 24 25 26 27 28 PROTECTIVE ORDER GOVERNING PERSONAL INFORMATION OF CHARLES MARK HAGOOD 7 EXHIBIT A 1 2 3 4 I, __________________ have read the Protective Order in the action entitled Richard Clymore and 5 Debra Harbin-Clymore v. Federal Railroad administration (United States of America), United States District 6 Court Eastern District of California, Case No. 1:14-cv-00101, and a copy of it has been given to me. I 7 understand the provisions of this Order, and agree to comply with and to be bound by its provisions. 8 I declare under penalty of perjury that the foregoing is true and correct. 9 10 Executed this _________ day of _______________, 2015 at, ____________________. 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PROTECTIVE ORDER GOVERNING PERSONAL INFORMATION OF CHARLES MARK HAGOOD 8

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