Burkhart v. American Family Mutual Insurance Company

Filing 31

STIPULATED CONFIDENTIALITY AND PROTECTIVE ORDER by Magistrate Judge Michael E. Hegarty on 6/25/2015. (mdave, )

FOR THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No.: 15-cv-00187-WJM-MEH
MONICA BURKHART,
Plaintiff,
v.
AMERICAN FAMILY MUTUAL INSURANCE GROUP,
Defendant.

STIPULATED CONFIDENTIALITY AND PROTECTIVE ORDER

THE COURT ISSUES THE FOLLOWING PROTECTIVE ORDER:
The parties stipulate that this Order shall apply to the Plaintiff’s medical records,
education records, employment records, social security records, workers’ compensation records
and tax records that may be produced from the date of this order forward that are private,
confidential, and/or privileged, and that are disclosed by the Plaintiff for purposes of this
litigation, to the Defendant and Defendant’s attorneys and staff, expert witnesses, insurance
representatives, and others, such as mediators and arbitrators.
1. The Plaintiff’s records and information shall remain confidential. The Defendant and all
persons or entities obtaining this information through the Defendant may use the
Plaintiff’s records and the information contained therein only to prepare and present the
Defendant’s case in this litigation or for settlement evaluation purposes in this litigation,
and for no other purpose. These individuals and entities shall maintain the Plaintiff’s

records in a secure manner that complies with applicable privacy laws and regulations,
and shall not disclose or release any medical records or information to any other entity,
person, claims bureau or data base (excepting circumstances in compliance with
Colorado and federal law), to the extent such information has not already been released
prior to the execution of this order, during the pendency of this litigation, or any other
time, except as consistent with this or other Court Orders or upon request by an
authorized party in possession of an authorized release for the information.
2. For this purpose, the term “medical records” shall include all records from a provider
dealing with medical, dental, psychiatric, psychological, mental health, sexual history, or
substance abuse issues in which the Plaintiff has a reasonable expectation of privacy.
3. It is further ordered that all such materials including copies shall be maintained in a
secure manner and destroyed as follows:
a. By defense counsel, following a seven-year retention period in accordance with
Rules of Professional Conduct, 1:15(a), or such other period as a Court may
order;
b. Records and documents retained by the Defendant and the Defendant’s
representatives shall be destroyed within one year of the earliest date allowed by
American Family’s procedures , hold orders issued by a Court and statutory
requirements;
c. While the Plaintiff’s records and documents are maintained by defense counsel
and the Defendant’s representatives, they shall not be disclosed except as
authorized in this Order, by Colorado law or Court Order, insurance department
regulations or statutory requirements;

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d. Any other individual, including experts to whom the records are disclosed, shall
maintain the records as confidential and shall not disclose the records except as
authorized by this Order, or as authorized under Colorado law; and
e. Any expert witness who receives possession of the Plaintiff’s confidential and/or
privileged records or documents shall sign an acknowledgement they have
received a copy of this Order and agree to abide by its terms.
4. The records and information may be utilized by the Defendant and its representatives to
evaluate the Plaintiff’s claims and to prepare a defense in this litigation. For these
purposes, the records and information may be disclosed without the Plaintiff’s prior
authorization or approval to the following third parties:
a. Attorneys actively working on or supervising work on this case, including their
employees and associates;
b. Expert consultants retained in connection with this litigation;
c. Mediators and other alternative dispute professionals for purposes of mediation
d. The Court and its employees;
e. Stenographic reporters;
f. Deponents and witnesses; and
g. Other persons by written agreement of the parties.
5. Whenever a deposition involves the disclosure of confidential and/or privileged
information, the deposition or portions thereof shall be designated as confidential and
shall be subject to the provisions of this Stipulated Protective Order. Such designation
shall be made on the record during the deposition whenever possible, but a party may
designated portions of depositions as confidential after transcription, provided written

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notice of the designation is promptly given to all counsel of record within thirty (30) days
after receipt of the transcript.
6. 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
specifically 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 the Court determine whether the disputed information
should be subject to the terms of this Order. If such motion is timely filed, the disputed
information shall be treated as confidential under the terms of this 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 Order.

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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.
7. Any motion to file confidential documents, materials, and/or information under seal shall
comply with D.C.COLO.L.CivR. 7.2 and 7.3.
8. At the conclusion of this case, unless other arrangements are agreed upon, each document
and all copies thereof which have been designated as confidential shall be returned to the
party that designated it as confidential, or the parties may elect to destroy confidential
documents. Each party’s counsel and their insurers shall be permitted to keep work
product that may contain or reference confidential documents. However, such copies and

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any electronically stored copies of the documents which cannot be readily destroyed shall
be kept in a confidential manner and the confidential documents shall retain their
confidential status until it is destroyed as part of the regular file retention and destruction
process.
9. By agreeing to the entry of this Order, the parties adopt no position as to the authenticity
or admissibility of documents produced subject to it.
10. This 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.
Nothing in this Order shall prohibit, restrict, or require an authorization for the retention,
use, or disclosure of nonpublic medical information and records as authorized or as reasonably
required by federal or state law or regulation, or court order or rule.
Dated this 25th day of June, 2015, in Denver, Colorado.
BY THE COURT:

Michael E. Hegarty
United States Magistrate Judge
APPROVED AS TO FORM:
ATTORNEY FOR DEFENDANT:
AMERICAN FAMILY MUT. INS. GROUP

ATTORNEY FOR THE PLAINTIFF:
MONICA BURKHART

s/ Robyn B. Averbach

s/ Kenneth J. Shakeshaft

________________________________
Robyn Averbach, Esq.,
Colin Campbell, Esq.
CAMPBELL, LATIOLAIS & AVERBACH, LLC
825 Logan Street
Denver, CO 80203
[phone]

_______________________________
Kenneth J. Shakeshaft, Esq., #12618
Jill M. Tranel, Esq., #40725
SHAKESHAFT LAW FIRM
1935 Jamboree Drive, Suite 202
Colorado Springs, CO 80920
[phone]

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