Franco v. Banner Health
Filing
19
Stipulation and PROTECTIVE ORDER. Signed by Judge John L. Kane on 09/29/15. (jhawk, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge John L. Kane
Civil Action No. 1:15-cv-01219-JLK-NYW
JONATHAN E. FRANCO, M.D.,
Plaintiff,
v.
BANNER HEALTH, an Arizona nonprofit corporation d/b/a/ Big Thompson Medical
Group, Inc., a wholly owned subsidiary of Banner Health,
Defendants.
STIPULATION AND PROTECTIVE ORDER
Kane, J.
Each Party and each Counsel of Record stipulate and move the Court for a Protective
Order pursuant to Rule 26(c) of the Federal Rules of Civil Procedure concerning the
treatment of Confidential Information (as hereinafter defined), and, as grounds therefor,
state as follows:
1.
In this action, at least one of the Parties has sought and/or is seeking
Confidential Information (as defined in paragraph 2 below). The Parties also anticipate
seeking additional Confidential Information during discovery and that there will be
questioning concerning Confidential Information in the course of depositions. The Parties
assert the disclosure of such information outside the scope of this litigation could result in
significant injury to one or more of the Parties’ business or privacy interests. The Parties
have entered into this Stipulation and request the Court enter the within Protective Order for
the purpose of preventing the disclosure and use of Confidential Information except as set
forth herein.
2.
“Confidential Information” means any document, file, portions of files,
transcribed testimony, or response to a discovery request, including any extract, abstract,
chart, summary, note, or copy made therefrom - not made available to the public - and
designated by one of the Parties in the manner provided in paragraph 3 below as containing:
private personnel information for the Plaintiff and any other employee or former employee
of Defendant, financial and/or medical information of Plaintiff, information that pertains to
patient identifying information or patient care information including statistics or other such
information, or financial, business proprietary, or trade secret information of Defendant.
3.
Where Confidential Information is produced, provided or otherwise disclosed
by a Party in response to any discovery request, it will be designated in the following
manner:
a.
By imprinting the word “Confidential” on the first page or cover of
any document produced;
b.
By imprinting the word “Confidential” next to or above any
response to a discovery request; and
c.
With respect to transcribed testimony, by giving written notice to
opposing counsel designating such portions as “Confidential” no later
than ten calendar days after receipt of the transcribed testimony.
4.
All Confidential Information provided by a Party in response to a discovery
request or transcribed testimony shall be subject to the following restrictions:
a.
It shall be used only for the purpose of this litigation and not for any
business or other purpose whatsoever;
b.
It shall not be communicated or disclosed by any Party’s counsel or a
Party in any manner, either directly or indirectly, to anyone except for
purposes of this case and unless an affidavit in the form of Exhibit A
has been signed.
5.
Individuals authorized to review Confidential Information pursuant to this
Protective Order shall hold Confidential Information in confidence and shall not divulge the
Confidential Information, either verbally or in writing, to any other person, entity or
government agency unless authorized to do so by court order.
6.
The Party’s counsel who discloses Confidential Information shall be
responsible for assuring compliance with the terms of this Protective Order with respect to
persons to whom such Confidential Information is disclosed and shall obtain and retain the
original affidavits signed by qualified recipients of Confidential Information, and shall
maintain a list of all persons to whom any Confidential Information is disclosed.
7.
During the pendency of this action, opposing counsel may upon court order or
agreement of the parties inspect the list maintained by counsel pursuant to paragraph 6
above upon a showing of substantial need in order to establish the source of an
unauthorized disclosure of Confidential Information and that opposing counsel are unable
otherwise to identify the source of the disclosure. If counsel disagrees with opposing
counsel’s showing of substantial need, then counsel may seek a court order requiring
inspection under terms and conditions deemed appropriate by the Court.
8.
No copies of Confidential Information shall be made except by or on behalf
of counsel in this litigation and such copies shall be made and used solely for purposes of
this litigation.
9.
During the pendency of this litigation, counsel shall retain custody of
Confidential Information, and copies made therefrom pursuant to paragraph 8 above.
10.
If opposing counsel objects to the designation of certain information as
Confidential Information, he or she shall promptly inform the other parties’ counsel in
writing of the specific grounds of objection to the designation. All counsel shall then, in
good faith and on an informal basis, attempt to resolve such dispute. If after such good faith
attempt, all counsel are unable to resolve their dispute, opposing counsel may move for a
disclosure order consistent with this order. Any motion for disclosure shall be filed within
14 days of receipt by counsel of notice of opposing counsel's objection, and the information
shall continue to have Confidential Information status from the time it is produced until the
ruling by the Court on the motion.
11.
Use of
Confidential Information in Court Proceedings: In the event
Confidential Information is used in any court filing or proceeding in this action, including
but not limited to its use at trial, it shall not lose its confidential status as between the parties
through such use. Confidential Information and pleadings or briefs quoting or discussing
Confidential Information will not be accepted for filing “under seal” or otherwise kept out
of the public record in this action, however, except by court order issued upon motion of the
party seeking to file the documents under seal. Any motion requesting leave to file
documents under seal shall comply with the requirements of D.C.COLO.LCivR 7.2 and
demonstrate that the Confidential Information at issue is entitled to protection under the
standards articulated in Nixon v. Warner Communications, Inc., 435 U.S. 589, 598-602
(1978) (applied in United States v. Hickey, 767 F.2d 705, 708 (10th Cir. 1985) and Crystal
Grower’s Corp. v. Dobbins, 616 F.2d 458, 461 (10th Cir. 1980)).
12.
The termination of this action shall not relieve counsel or other persons
obligated hereunder from their responsibility to maintain the confidentiality of Confidential
Information pursuant to this Protective Order, and the Court shall retain continuing
jurisdiction to enforce the terms of this Protective Order.
13.
By agreeing to the entry of this Protective Order, the Parties adopt no position
as to the authenticity or admissibility of documents produced subject to it.
14.
Upon termination of this litigation, including any appeals, each Party’s
counsel shall immediately return to the producing party all Confidential Information
provided subject to this Protective Order, and all extracts, abstracts, charts, summaries,
notes or copies made therefrom. At that time, counsel shall also file under seal with this
Court the list of individuals who have received Confidential Information which counsel
shall have maintained pursuant to paragraph 6 herein, and counsel shall provide the Court
with verification that any of counsel's work product referencing Confidential Information
has been destroyed.
15.
Nothing in this Protective Order shall preclude any Party from filing a motion
seeking further or different protection from the Court under Rule 26(c) of the Federal Rules
of Civil Procedure, or from filing a motion with respect to the manner in which
Confidential Information shall be treated at trial.
Dated at Denver, Colorado, this 29th day of September, 2015.
BY THE COURT:
______________________________________________
JOHN L. KANE
SENIOR U.S. DISTRICT COURT JUDGE
STIPULATED AND AGREED TO:
Plaintiff:
Counsel for Plaintiff:
s/ Jonathan E. Franco with permission
Jonathan E. Franco, M.D.
s/ David M. Herrera, with permission
David M. Herrera
Defendant:
Counsel for Defendant:
BANNER HEALTH
By s/ Kim Ohman, with permission
Kim Ohman, Regional Claims Director
s/ Lindsay Fiore
Frank Visciano
Stephanie J. Quincy
Lindsay J. Fiore
EXHIBIT A
to
STIPULATION AND PROTECTIVE ORDER
AFFIDAVIT
STATE OF COLORADO
COUNTY OF
)
)
)
ss.
, swears or affirms and states under penalty of perjury:
1.
I have read the Protective Order in Franco v. Banner Health, a copy of which
is attached to this Affidavit.
2.
I have been informed by
, Esq., counsel
for
, that the materials described in the list attached to this Affidavit are
Confidential Information as defined in the Protective Order.
3.
I promise that I have not and will not divulge, or undertake to divulge to any
person or recording device any Confidential Information shown or told to me except as
authorized in the Protective Order. I will not use the Confidential Information for any
purpose other than this litigation.
4.
For the purposes of enforcing the terms of the Protective Order, I hereby
submit myself to the jurisdiction of the court in the civil action referenced above.
5.
I will abide by the terms of the Protective Order.
(Signature)
Print Name:
Address:
Telephone No.: (
20
SUBSCRIBED AND SWORN to before me this
, by
WITNESS my hand and official seal.
[S E A L]
Notary Public
My Commission Expires:
)
day of
.
,
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