Zheng v. Nexion Health, Inc. et al

Filing 27

PROTECTIVE ORDER, by Magistrate Judge Michael E. Hegarty on 5/21/2014. (trlee, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 1:14-cv-00409-REB-MEH
BIXUAN ZHENG,
Plaintiff,
v.
NEXION HEALTH, INC., a Delaware Corporation, and
NEXION HEALTH AT CHERRY CREEK, INC., a Delaware
Corporation, d/b/a/ CHERRY CREEK NURSING CENTER,
Defendants.

PROTECTIVE ORDER

Plaintiff, Bixuan Zheng, and Defendants, Nexion Health, Inc. and Nexion Health
at Cherry Creek, Inc., d/b/a Cherry Creek Nursing Center, (collectively, “Parties” or
“Party”), by their respective counsel, having shown good cause in support of the entry of
this Protective Order to protect against the dissemination of the confidential information
set forth herein, and recognizing the Parties to this case have stipulated hereto, IT IS
ORDERED:
1.
information,

This Protective Order shall apply to all documents, materials, and
including

without

limitation,

documents

produced,

answers

to

interrogatories, responses to requests for admission, deposition testimony, and other
information disclosed pursuant to the disclosures or discovery duties created by the
Federal Rules of Civil Procedure which have been marked as “CONFIDENTIAL” in
accordance with this Order.

2.

As used in this Protective Order, “document” is defined as provided in

Fed. R. Civ. P. 34(a). A draft or non-identical copy is a separate document within the
meaning of this term.
3.

For purposes of this Protective Order, “CONFIDENTIAL” information shall

be limited to the following:
a.

personnel records of current or former employees of Defendants

containing work history, disciplinary records, or other documents containing
sensitive personal information that is not available to the general public;
b.

confidential customer and client information pertaining to Plaintiff’s

work as a Registered Nurse, including medical information protected under
HIPAA;
c.

business records and communications that contain confidential

business information, such as client names, security information, proprietary
information, intellectual property, technology and customer data, sales figures,
employee performance summaries, employee training manuals, and other
documents discussing business operations or business strategy; and
d.

other documents that implicate a common law or statutory privacy

interest such as personal identifying information, including social security
information and tax returns, or any other information that is otherwise entitled to
protection under Fed. R. Civ. P. 26(c)(1)(G).
4.

A Party designating any document or information, including any portion of

a document, any interrogatory response, other discovery response, and/or transcript of
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a discovery response, as “CONFIDENTIAL” represents in good faith that it contends,
constitutes, or contains information that is entitled to protection under Fed. R. Civ. P.
26(c)(1)(G) and this Protective Order. Parties and attorneys designating documents as
“CONFIDENTIAL” will be representing that such documents contain information the
disclosure of which would implicate an important interest to be protected which
outweighs the presumption of public access and that they will be able to identify to the
Court a clearly defined and serious injury that would result if access is not restricted, as
required by D.C.COLO.LCivR 7.2(B)(2) & (3).
5.

This CONFIDENTIAL information shall not be disclosed or used for any

purpose except for the preparation and trial of this case. CONFIDENTIAL information
filed with the Court shall be accessible to the public unless and until this Court grants a
motion to file the information under restriction.
6.

The CONFIDENTIAL information shall not, without the consent of the

Party producing it or further Order of the Court, be disclosed except that such
information may be disclosed to:
a.

attorneys actively working on this case;

b.

persons regularly employed or associated with the attorneys

actively working on the case whose assistance is required by said attorneys in
the preparation for trial, or at trial, or at other proceedings in this case;
c.

the Parties;

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d.

expert witnesses and consultants retained in connection with this

proceeding, to the extent such disclosure is necessary for preparation, trial or
other proceedings in this case;
e.

the Court and its employees (“Court Personnel”);

f.

stenographic

reporters

who

are

engaged

in

proceedings

necessarily incident to the conduct of this action;
g.
h.
7.

deponents or witnesses; and
other persons by written agreement of the Parties.

Prior to disclosing any CONFIDENTIAL information to any person listed

above (other than counsel, persons employed by counsel, Court Personnel, and
stenographic reporters), counsel shall provide such person with a copy of this Protective
Order and obtain from such person a written acknowledgement, in the form attached
hereto as Exhibit A, stating that he or she has read this Protective Order and agrees to
be bound by its provisions. All such acknowledgments shall be retained by counsel and
shall be subject to in camera review by the Court if good cause for review is
demonstrated by opposing counsel.
8.

Documents are designated as CONFIDENTIAL by placing or affixing on

them (in a manner that will not interfere with their legibility) the following or other
appropriate notice: “CONFIDENTIAL”.
9.

Whenever a deposition involves the disclosure of said CONFIDENTIAL

information, the deposition or portions thereof shall, at the election of counsel, be
designated as CONFIDENTIAL and shall be subject to the provisions of this Protective
4

Order. Such designation shall be made on the record during the deposition whenever
possible, but a Party may designate portions of depositions as CONFIDENTIAL after
transcription, provided written notice of the designation is promptly given to all counsel
of record within fourteen (14) days after notice by the court reporter of the completion of
the transcript.
10.

A Party may object to the designation of particular CONFIDENTIAL

information by giving written notice to the Party designating the disputed information.
The written notice shall identify the information to which the objection is made. If the
Parties cannot resolve the objection within ten (10) business days after the time the
notice is received, it shall be the obligation of the Party designating the information as
CONFIDENTIAL to file an appropriate motion requesting that the Court determine
whether the disputed information should be subject to the terms of this Protective Order.
If such a motion is timely filed, the disputed information shall be treated as
CONFIDENTIAL under the terms of this Protective Order until the Court rules on the
motion. If the designating Party fails to file such a motion within the prescribed time, the
disputed information shall lose its designation as CONFIDENTIAL and shall not
thereafter be treated as CONFIDENTIAL in accordance with this Protective Order. In
connection with a motion filed under this provision, the Party designating the information
as CONFIDENTIAL shall bear the burden of establishing that good cause exists for the
disputed information to be treated as CONFIDENTIAL.
11.

At the conclusion of this case, unless other arrangements are agreed

upon, each document and all copies thereof which have been designated as
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CONFIDENTIAL shall be returned to the Party that designated it as CONFIDENTIAL, or
the Parties may elect to destroy CONFIDENTIAL documents. Where documents are
returned to the Party that designated them as CONFIDENTIAL, the party to which they
are returned shall retain them for the period of time required by any provision of the
Colorado Rules of Professional Conduct, Federal Rules of Civil Procedure, or any other
applicable rule governing attorney conduct.

Where the Parties agree to destroy

CONFIDENTIAL documents, the destroying Party shall provide all Parties with an
affidavit confirming destruction.
12.

This Protective Order may be modified by the Court at any time for good

cause shown following notice to all Parties and an opportunity for them to be heard.

ORDERED this 21st day of May, 2014, in Denver, Colorado.
BY THE COURT:

Michael E. Hegarty
United States Magistrate Judge

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EXHIBIT A
WRITTEN ASSURANCE
_________________________________________ declares that:
I reside at _______________________________________ in the City of
__________________, County of
, State of
_____________. My telephone number is __________________________________.
I am currently employed by ___________________________________, located
at _____________________________________________________, and my current
job title is ____________________________________________________.
I have read and I understand the terms of the Protective Order dated
___________________, filed in Bixuan Zheng v. Nexion Health Inc. and Nexion Health
at Cherry Creek, Inc. d/b/a Cherry Creek Nursing Center, pending in the United States
District Court for the District of Colorado, Civil Action No. 1:14-cv-00409-REB-MEH. I
agree to comply with and be bound by the provisions of the Protective Order. I
understand that any violation of the Protective Order may subject me to sanctions by
the Court.
I shall not divulge any documents, or copies of documents, designated
“CONFIDENTIAL” obtained pursuant to such Protective Order, or the contents of such
documents, to any person other than those specifically authorized by the Protective
Order. I shall not copy or use such documents except for the purposes of this action
and pursuant to the terms of the Protective Order.
As soon as practical, but no later than 30 days after final termination of this
action, I shall return to the attorney from whom I have received them, any documents in
my possession designated “CONFIDENTIAL,” and all copies, excerpts, summaries,
notes, digests, abstracts, and indices relating to such documents.
I submit myself to the jurisdiction of the United States District Court for the
District of Colorado for the purpose of enforcing or otherwise providing relief relating to
the Protective Order.
I declare under penalty of perjury that the foregoing is true and correct.

Executed on ______________________
(Date)

___________________________
(Signature)

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