Lipsey v. United States of America et al

Filing 74

ORDER granting 72 Defendant's Motion With Plaintiff's Consent for Entry of a Privacy Act Protective Order. Entered by Magistrate Judge David G. Bernthal on 11/30/12. (TC, ilcd)

E-FILED

Friday, 30 November, 2012 10:43:03 AM
Clerk, U.S. District Court, ILCD
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
URBANA DIVISION
JOHN LIPSEY, Individually, and as father
and next friend of JOHNAY LIPSEY, a
disabled minor,

)
)
)
)
Plaintiff,
)
)
v.
)
)
UNITED STATES OF AMERICA, KANKAKEE
)
COUNTY, a body politic; THE SHERIFF OF
)
KANKAKEE COUNTY; TIMOTHY F. BUKOWSKI; )
MICHAEL DOWNEY; HEATHER GILL, R.N.;
)
TIMOTHY MENARD, P.A.; CLYDE DAYHOFF, D.O.;)
IVETTE CHAREE SANGSTER, L.P.N., and
)
MJS ADVANTAGE, INC., a corporation;
)
)
Defendants.
)

Case No. 12-CV-2100

PRIVACY ACT PROTECTIVE ORDER
Upon the stipulated and agreed motion of the defendant, the UNITED STATES
OF AMERICA, and pursuant to the provisions of Section 3(b)(11) of the Privacy Act of
1974, 5 U.S.C. § 552a(b)(11) and the Health Insurance Portability and Accountability Act
of 1996 (HIPAA), Public Law 104-191, the Court finds that entry of a Protective Order is
appropriate.
IT IS HEREBY ORDERED that Defendant’s Motion with Plaintiff’s Consent for
Entry of a Privacy Act Protection Order (#72) is GRANTED.
IT IS FURTHER ORDERED that Defendant, UNITED STATES OF AMERICA, is
authorized to release without redaction to the Plaintiff, JOHN LIPSEY, Individually,
and as father and next friend of JOHNAY LIPSEY, a disabled minor, and to the other

Defendants, KANKAKEE COUNTY, a body politic; THE KANKAKEE COUNTY
SHERIFF; TIMOTHY F. BUKOWSKI; MICHAEL DOWNEY; HEATHER GILL, R.N.;
TIMOTHY MENARD, P.A.; CLYDE DAYHOFF, D.O.; IVETTE CHAREE SANGSTER,
L.P.N.; AND MJS ADVANTAGE, INC., a corporation, through their counsel, and to the
persons and entities described herein below for purposes of obtaining and conducting
discovery in the present matter, records and documents pertaining in paper or
electronically stored format to plaintiff’s administrative activity record against
defendant, UNITED STATES OF AMERICA, and including but not limited to all
investigative reports, affidavits, interviews/depositions, correspondence, agreements
and related materials therein; pertaining to issues based on the present litigation and
that may include medical records and notes and other records of non-party third
persons relevant to the issues in this case without obtaining prior written consent of the
individuals to whom such records pertain. Disclosure is defined as release of the
records and materials listed above and oral or written testimony made about such
information.
Disclosure of these records is subject to the following conditions:
1.

The parties in this case are prohibited from disclosing the foregoing

information to the public in any form, written or oral, except as may be necessary for
purposes of discovery and/or preparation for trial in this action in compliance with the
terms of this Order.

2

2.

This Court will consider at a later time the issue of how protected

materials will be handled in the course of any hearing or trial. A supplemental order
shall be obtained from this Court governing use and disclosure of the materials for
motions for summary judgment and for any trial conducted in this case prior to the
parties disclosing this information in such proceedings.
3.

Records, which identify the specific individuals, produced pursuant to

this order shall be labeled “PRODUCED SUBJECT TO PROTECTIVE ORDER,” and
may be used only for the purposes of this litigation and the litigation captioned White v.
Bukowski, et al., No. 11-CV-2221 (C.D.Ill.). These records and all copies thereof must be
returned to Defendants or destroyed within 60 days after the termination of this
litigation, including any appeals. Any documents created by Plaintiff or counsel for
Plaintiff containing Privacy Act information must be destroyed when this litigation is
concluded. Should Plaintiff elect to destroy the documents, Plaintiff will certify to the
Defendants that the documents have been destroyed.
4.

Records disclosed pursuant to this order may be disclosed only to the

parties to this litigation, the attorneys for the parties to this litigation, and the following
persons subject to the terms set forth herein, for parties who have need of this
information in the performance of their duties, and persons regularly in the employ of
such attorneys or who work under the direction of such attorneys and who have a need
for the information in the performance of their duties.

3

a.

Paralegals, associates or other persons regularly employed by

counsel or their law firms, and who are working on this case. These persons may
disclose protected materials only to the extent that counsel may disclose them,
and subject to the same restrictions. These persons are subject to this protective
order, and counsel shall so inform them.
b.

Expert Witnesses or other persons specially employed by counsel

for the purpose of this litigation. Except in the course of testifying in this case,
persons in this category may disclose protected materials only to counsel and the
persons in category 4a. At the conclusion of this litigation, any person in this
category will return to counsel all copies of protected materials in his or her
possession.
c.

Parties and any person whom the parties intend to call or are

contemplating calling as a witness in this matter, and to whom disclosure of
protected materials is necessary for said parties or its counsel to prepare the
person to testify. The parties may disclose protected materials to a person in this
category only upon the person’s agreement to be bound by terms of this
protective order. Persons in this category may be permitted to review protected
materials, to the extent necessary, but will not be given a copy of any protected
materials. Persons in this category may not disclose protected materials to any
other person except in the course of testifying in this case.

4

d.

Persons being deposed by either party in this case with said

disclosures being governed by the terms of this Order.
5.

If any deposition transcript, deposition exhibit, or motion or other

pleading that reveals protected materials is filed with the Court, it will be filed under
seal with a notation on the sealed envelope that the envelope contains material subject
to this protective order.
6.

Should the Plaintiff wish to disclose the records which are subject to this

order to any additional persons except those indicated here, he will first inform the
Defendants, and the parties will seek modification of this order from the Court.
7.

The Court will retain jurisdiction to modify this protective order upon a

showing that it is unreasonably restrictive or that it is inadequately protective of privacy
concerns.
8.

This Order does not constitute any ruling on the question of whether any

particular record is properly discoverable, and does not constitute any ruling on any
potential objection to the discoverability or admissibility of any record, other than
objections based on the Privacy Act.
SO ORDERED.
ENTERED this 30th day of November, 2012.

s/DAVID G. BERNTHAL
UNITED STATES MAGISTRATE JUDGE

5

Approved as to form and substance:
s/Dennis T. Schoen
Date signed: 11/27/12
Dennis T. Schoen
SCHOEN BROWNE, P.C.
221 North LaSalle Street
Suite 663
Chicago, IL 60601
312-558-9143; Fax: [phone]
Email: [e-mail]
ATTORNEY FOR Plaintiff, JOHN LIPSEY,
Individually, and as father and next
friend of JOHNAY LIPSEY, a disabled minor
JAMES A. LEWIS
United States Attorney
s/David H. Hoff
Date signed: 11/27/12
David H. Hoff, AUSA
UNITED STATES ATTORNEY’S OFFICE
201 South Vine Street, Suite 226
Urbana, IL 61802-3369
217-373-5875; Fax: [phone]
Email: [e-mail]
ATTORNEY FOR DEFENDANT
UNITED STATES OF AMERICA

Date signed: 11/27/12
s/Michael W. Condon
Michael W. Condon
HERVAS CONDON & BERSANI, P.C.
333 Pierce Road
Suite 195
Itasca, IL 60143-3156
630-860-4342; Fax: [phone]
Email: [e-mail]
ATTORNEY FOR DEFENDANTS KANKAKEE COUNTY,
a body politic; THE SHERIFF OF KANKAKEE COUNTY;
TIMOTHY F. BUTKOWSKI; MICHAEL DOWNEY;
HEATHER GILL, R.N.; TIMOTHY MENARD, P.A.;
CLYDE DAYHOFF, D.O.; AND IVETTE CHAREE SANGSTER, L.P.N.

6

s/Christopher Bohlen
Christopher Bohlen
BARMANN BOHLEN JACOBI &
CIESLIK PC
200 E. Court Street
Suite 602
Kankakee, IL 60901
815-939-1133; Fax: [phone]
Email: [e-mail]
ATTORNEY FOR DEFENDANT
MJS ADVANTAGE, INC., a corporation

Date signed: 11/28/12

7