LANE v. Philbin et al

Filing 92

AMENDED ORDER re 91 Order on Motion for Protective Order. Ordered by US DISTRICT JUDGE HUGH LAWSON on 12/8/17. (sbd)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF GEORGIA
VALDOSTA DIVISION
RODNEY M. LANE,
Plaintiff,
v.
TED PHILBIN, et al.,
Defendants.

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Civil Action No:
7:13-cv-36-HL

STIPULATED PROTECTIVE ORDER
THE COURT ALERTS THE PARTIES THAT IT HAS ADDED A
FINAL PARAGRAPH TO THIS PROTECTIVE ORDER THAT WAS NOT
INCLUDED IN THE STIPULATED ORDER SUBMITTED TO THE
COURT.
WHEREAS any discovery material (defined below) in this lawsuit may
involve the production or disclosure of confidential institutional or medical records
or private health-related information (“Confidential Information”); and
WHEREAS counsel for the parties have consented to entry of this Order; IT
IS HEREBY ORDERED:
1.

As used in this Protective Order (the “Order”), the term “discovery

material” shall encompass all information contained in documents, computer data
and reports, deposition testimony and exhibits, interrogatory answers, responses to
requests for admission, pleadings, motions, briefs, affidavits, and any other written,

recorded, computerized, electronic, transcribed or graphic matter produced by any
party or obtained by any party during discovery in this suit, and any copies thereof.
Plaintiff and Defendants are referred to herein as “the Parties.” “Producing party”
and “designating party” may include any person, whether or not a party, who
provides discovery material. “Receiving party” may include any person, whether or
not a party, who received discovery material. “Suit” means the above-styled lawsuit
pending in the Middle District of Georgia, Valdosta Division.
2.

This Order is binding upon the Parties to the Suit, their respective

attorneys, agents, representatives, officers and employees and others as set forth in
this Order.
3.

The Parties shall have the right, in good faith, to designate material

that has been or will be made available in this suit as Confidential Information by
affixing in a conspicuous place on the discovery material the label
“CONFIDENTIAL.” A party shall make such designation only with respect to
discovery materials revealing non-public, confidential information not known to the
general public.
4.

The Parties, their attorneys, or anyone else acting on their behalf shall

take such precautions with the Confidential Information as are necessary to strictly
maintain its confidentiality and comply with the terms of this Order. Discovery
material designated “CONFIDENTIAL” may be inspected and disclosed only to the

following persons:
a)

The parties, including the directors, officers and employees of the

parties to the Suit and their affiliates, and counsel for the parties to this Suit,
including inside counsel of any party who is assisting in the preparation of
that party’s case;
b)

Employees of such counsel engaged in assisting counsel in the

preparation of this Suit including secretaries and paralegal assistants;
c)

Court officials involved in the Suit, including court reporters and

persons operating video recording equipment at depositions;
d)

Witnesses, provided that (1) discovery material is used in connection

with the examination of the witness; (2) counsel using such documents or
information believes in good faith that such use is necessary or appropriate;
and (3) the witness is first provided with a copy of this Order and executes
Exhibit A, or is the author, recipient or a copyee of such discovery material;
e)

Independent contractors, outside consultants, and experts, and their

staff, consulted or retained by a party for the purpose of assisting in the
prosecution or defense of the Suit, provided that such persons shall be given
a copy of this Order, advised that they are bound by it, and sign Exhibit A;
and
f)

Any other person who is designated as an authorized person by an

Order of this Court, after notice to the parties, or by agreement with the
designating party.
5.

Nothing set forth herein prohibits the use at trial of any Confidential

Information or affects the admissibility of any evidence. The procedures to govern
the use and disclosure of Confidential Information may be the subject of further
agreement of the Parties or order of the Court.
a)

Discovery Materials designated as Confidential may be filed under seal

with the Court in accordance with the Federal Rules of Civil Procedure and
this Court’s local rules.
b)

When any Discovery Material is filed with the Court under this

paragraph, the filing Party shall the same day email a copy of all materials so
filed to counsel of record for the opposing party.
c)

Discovery Materials designated as Confidential may be used in a filing

before any special discovery master or magistrate judge in accordance with
the preferences of that special discovery master or magistrate judge.
d)

Discovery Materials designated as Confidential may be offered into

evidence at trial or hearing on preliminary injunction without having to be
placed under seal. The Parties agree to jointly petition the Court to establish
procedures to protect such Discovery Materials at trial or hearing before any
such trial or hearing is begun.

6.

Nothing herein shall be construed as limiting a party’s use of its own

Confidential Information and such use shall not constitute a waiver of the terms of
this Order or the status of such information as Confidential Information. Any of the
Parties can remove their designation of Confidential Information from any
information it has previously so designated.
7.

The Parties specifically agree that Plaintiff’s medical file, if produced

and designated as CONFIDENTIAL by a Party other than Plaintiff, constitutes
Plaintiff’s “Confidential Information,” and agree that Plaintiff may retain and use a
copy of his medical file for his own purposes, which copy will not be subject to or
limited by this Order.
8.

If a Producing Party inadvertently fails to stamp or mark certain

documents as “CONFIDENTIAL” upon production, it may later designate such
documents as “CONFIDENTIAL” material by giving written notice to all Parties
that the material is to be so designated, describing the document(s) by Bates-number
if possible. Likewise, a Producing Party may designate any other documents that it
has already produced as “CONFIDENTIAL” material by giving written notice to all
Parties that the material is to be designated, describing the document(s) by Batesnumber if possible. Upon such notice, all parties who received the designated
material shall then stamp or otherwise mark their copies of the designated material
as “CONFIDENTIAL” as referenced herein.

9.

The parties incorporate by reference Federal Rule of Evidence 502

herein and agree that the inadvertent production of any discovery material by any
party shall be without prejudice to any subsequent claim by the producing party that
such discovery material is privileged or attorney work product and shall not
necessarily be deemed a waiver of any such privilege or protection.
10.

If, after production, a Producing Party claims that privileged material

was inadvertently produced to a Receiving Party, the Receiving Party shall promptly
return the information and all copies thereof to the Producing Party and certify to the
Producing Party that it has done so. The Receiving Party shall not use any such
inadvertently disclosed information for any purpose.

A receiving Party may

promptly present the issue to the Court for determination of the Producing Party’s
claim that the Discovery Material is privileged or entitled to protection. Nothing in
this Stipulated Protective Order will modify any obligation a Receiving or Producing
Party otherwise has with respect to inadvertent production under the law or ethical
rules.
11.

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 21 days after the time the
notice is received, it shall be the obligation of the party objecting to the designation

to file an appropriate motion requesting that the Court determine whether the
disputed information should be subject to the terms of this Protective Order. The
disputed information shall be treated as confidential under the terms of this Order
until the Court rules on the motion. The party designating the information as
confidential shall bear the burden of establishing that the disputed information
should be treated as confidential.
12.

Within 60 days after this litigation concludes by settlement, final

judgment, or final order, including all appeals, all documents designated as
containing Confidential Information, including copies thereof, must be returned to
the Producing Party unless: (1) the parties agree to destruction of the document to
the extent practicable in lieu of return; or (2) as to documents bearing the notations,
summations, or other mental impressions of the Receiving Party, that party elects to
destroy the documents and certifies to the producing Party that it has done so.
13.

The confidentiality provisions of this Order shall survive any

settlement, judgment, or other disposition or conclusion of this action, and all
appeals therefrom. This Court shall retain continuing jurisdiction in order to enforce
the terms of this Order.
14.

ADDED BY THE COURT: The Court finds that good cause exists

for the entry of this order with the following condition. Notwithstanding anything
to the contrary in the foregoing order, the Court finds that it shall not apply to exclude

evidence from public disclosure when that evidence is relied upon in support of or
opposition to any motion or during any hearing or trial. If a party seeks to rely upon
any evidence covered by this protective order in support of or in opposition to any
motion or during any hearing or trial, that party shall notify the opposing party at
least 14 days prior to filing the motion and/or 14 days prior to the hearing or trial.
The opposing party shall have 7 days to respond objecting to the public disclosure
of the information, and the opposing party shall also file a motion to allow the
materials to be filed under seal, which shall state a compelling reason in support of
that motion. The Court will closely scrutinize any such requests at that time, with
the presumption that any evidence relied upon in a filed motion or in opposition to
any such motion or to be used in a hearing or trial shall be a public record.
Accordingly, when materials are to be used in the foregoing manner, a party will not
be allowed to file the materials under seal just because they are covered by this
discovery protective order.
SO ORDERED this 8th day of December, 2017.
s/ Hugh Lawson_________________
HUGH LAWSON, SENIOR JUDGE

EXHIBIT A
DECLARATION OF COMPLIANCE
The undersigned has read and understands the terms of the Stipulated
Protective Order (“Order”) effective in this case, Rodney Manyon Lane v. Ted
Philbin, et. al., Civil Case No. 7:13-cv-0036-HL, which is currently pending in the
United States District Court for the Middle District of Georgia. The undersigned
agrees (i) to abide by the terms of the Order; (ii) not to use or divulge, under
penalty of law, any documents, materials or other information covered by the
Order, including Confidential Information, except as permitted by the terms of
the Order; and (iii) to submit to the jurisdiction of the United States District
Court for the Middle District of Georgia for resolution of any issues arising
under the Order.
Executed this

day of

, 2017 at

.