Robert L. Meinders, D.C., LTD v. Unitedhealthcare, Inc. et al

Filing 53

PROTECTIVE ORDER. Parties will note changes to paragraphs 11(b), 12, and 13. Signed by Magistrate Judge Donald G. Wilkerson on 1/8/16. (sgp)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF ILLINOIS
DR. ROBERT L. MEINDERS, D.C., LTD.,
individually and as the representative of a
class of similarly-situated persons,
Plaintiff,

No. 3:14-cv-00548-DRH-DGW

v.
UNITED HEALTHCARE, INC.,
UNITED HEALTHCARE OF ILLINOIS,
INC., and JOHN DOES 1-12,
Defendants.

AGREED CONFIDENTIALITY ORDER
The parties to this Agreed Confidentiality Order have agreed to the terms of this Order;
accordingly, it is ORDERED:
1.

Scope. All materials produced or adduced in the course of discovery, including

initial disclosures, responses to discovery requests, deposition testimony and exhibits, and
information derived directly therefrom (hereinafter collectively “documents”), shall be subject to
this Order concerning Confidential Information as defined below. This Order is subject to the
Local Rules of this District and the Federal Rules of Civil Procedure on matters of procedure and
calculation of time periods.
2.

Confidential Information. As used in this Order, “Confidential Information”

means information designated as “CONFIDENTIAL-SUBJECT TO PROTECTIVE ORDER” by
the producing party that falls within one or more of the following categories: (a) information
prohibited from disclosure by statute; (b) information that reveals trade secrets; (c) research,
technical, commercial or financial information that the party has maintained as confidential; (d)

other non-public or proprietary information, (e) medical information concerning any individual;
(f) personal identity information; (g) income tax returns (including attached schedules and
forms), W-2 forms and 1099 forms; or (h) personnel or employment records of a person who is
not a party to the case. Information or documents that are available to the public may not be
designated as Confidential Information.
3.

Designation.
(a)

A party may designate a document as Confidential Information for

protection under this Order by placing or affixing the words “CONFIDENTIAL -SUBJECT TO
PROTECTIVE ORDER” on the document and on all copies in a manner that will not interfere
with the legibility of the document. As used in this Order, “copies” includes electronic images,
duplicates, extracts, summaries or descriptions that contain the Confidential Information. The
marking “CONFIDENTIAL - SUBJECT TO PROTECTIVE ORDER” shall be applied prior to
or at the time of the documents are produced or disclosed. Applying the marking
“CONFIDENTIAL - SUBJECT TO PROTECTIVE ORDER” to a document does not mean that
the document has any status or protection by statute or otherwise except to the extent and for the
purposes of this Order. Any copies that are made of any documents marked “CONFIDENTIAL
- SUBJECT TO PROTECTIVE ORDER” shall also be so marked, except that indices, electronic
databases or lists of documents that do not contain substantial portions or images of the text of
marked documents and do not otherwise disclose the substance of the Confidential Information
are not required to be marked.
(b)

The designation of a document as Confidential Information is a

certification by an attorney or a party appearing pro se that the document contains Confidential
Information as defined in this order.

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4.

Depositions. Unless all parties agree on the record at the time the deposition

testimony is taken, all deposition testimony taken in this case shall be treated as Confidential
Information until the expiration of the following: No later than the fourteenth day after the
transcript is delivered to any party or the witness. Within this time period, a party may serve a
Notice of Designation to all parties of record as to specific portions of the testimony that are
designated Confidential Information, and thereafter only those portions identified in the Notice
of Designation shall be protected by the terms of this Order. The failure to serve a timely Notice
of Designation shall waive any designation of testimony taken in that deposition as Confidential
Information, unless otherwise agreed to by the parties or ordered by the Court.
5.

Protection of Confidential Material.
(a)

General Protections. Confidential Information, or the substance or

content thereof, including but not limited to any attorney work product or any notes or
memoranda, shall not be used or disclosed by the parties, counsel for the parties, or any other
persons identified in subparagraph (b) for any purpose whatsoever other than in this litigation,
including any appeal thereof. In a putative class action, Confidential Information may be
disclosed only to the named plaintiff(s) and not to any other member of the putative class unless
and until a class including the putative member has been certified.
(b)

Limited Third-Party Disclosures. The parties and counsel for the parties

shall not disclose or permit the disclosure of any Confidential Information to any third person or
entity except as set forth in subparagraphs (1)-(9). Subject to these requirements, the following
categories of persons may be allowed to review Confidential Information:
(1)

Counsel. Counsel for the parties in this action and employees of counsel
to whom it is necessary that the information be shown for the purposes of
this litigation;

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(2)

Parties. Individual parties and employees of a party but only to the extent
counsel determines in good faith that the employee’s assistance is
reasonably necessary to the conduct of the litigation in which the
information is disclosed.

(3)

The Court and its personnel;

(4)

Court Reporters and Recorders. Court reporters and recorders engaged
for depositions.

(5)

Contractors. Those persons specifically engaged for the limited purpose
of making copies of documents or organizing or processing documents,
including outside vendors hired to process electronically stored
documents, but only after such persons have completed the certification
contained in Attachment A, Acknowledgment of Understanding and
Agreement to Be Bound;

(6)

Consultants and Experts. Consultants, investigators, or experts
employed by the parties or counsel for the parties to assist in the
preparation and trial of this action but only after such persons have
completed the certification contained in Attachment A, Acknowledgment
of Understanding and Agreement to Be Bound;

(7)

Witnesses at depositions. During their depositions, witnesses in this
action to whom disclosure is reasonably necessary. When Confidential
Information is discussed, quoted, or referred to in any deposition, the
disclosing party shall ensure that only persons permitted by this Protective
Order to have access to such Confidential Information are present.
Witnesses shall not retain a copy of documents containing Confidential
Information, except witnesses may receive a copy of all exhibits marked at
their depositions in connection with review of the transcripts. Pages of
transcribed deposition testimony or exhibits to depositions that are
designated as Confidential Information pursuant to the process set out in
this Order must be separately bound by the court reporter and may not be
disclosed to anyone except as permitted under this Order;

(8)

Author or recipient. The author or recipient of the document (not
including a person who received the document in the course of litigation);
and

(9)

Others by consent. Other persons only by written consent of the
producing party or upon order of the Court and on such conditions as may
be agreed or ordered.

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(c)

Control of Documents. Any person in possession of Confidential

Information shall exercise reasonably appropriate care with regard to the storage, custody, or use
of such Confidential Information in order to ensure that the confidential nature of the same is
maintained. Counsel shall maintain the originals of the forms signed by persons acknowledging
their obligations under this Order for a period of three years after the termination of the case.
6.

Inadvertent Failure to Designate. An inadvertent failure to designate a

document as Confidential Information does not, standing alone, waive the right to so designate
the document; provided, however, that a failure to serve a timely Notice of Designation of
deposition testimony as required by this Order, even if inadvertent, waives any protection for
deposition testimony, unless otherwise agreed to by the parties or ordered by the Court. If a
party designates a document as Confidential Information after it was initially produced, the
receiving party, on notification of the designation, must make reasonable efforts to assure that
the document is treated in accordance with the provisions of this Order. No party shall be found
to have violated this Order for failing to maintain the confidentiality of material during a time
when that material has not been designated Confidential Information, even where the failure to
so designate was inadvertent and where the material is subsequently designated Confidential
Information.
7.

Inadvertent Production of Privileged or Otherwise Protected Information.

The inadvertent production of any privileged or otherwise protected or exempted information
shall not be deemed a waiver or impairment of any claim of privilege or protection, including,
but not limited to, the attorney-client privilege, the protection afforded to work-product
materials, or the subject matter thereof. Promptly after discovering an inadvertent production of
privileged information, the discovering party shall notify the other party, in writing, of the

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inadvertent production. Within five business days thereafter, the receiving party must certify the
following: (a) it has returned or destroyed the specified information and any copies that it has
(provided, however, that if the receiving party intends to raise the privilege issue with the court,
it may retain and use one copy of the information solely for this purpose); (b) it has taken
reasonable steps to retrieve any specified information that already has been disclosed, including
without limitation consenting to a motion to seal court files containing the information if so
requested; and (c) it will not use or disclose the information unless the Court subsequently
determines that the claim of privilege is invalid. By providing this certification, the receiving
party does not waive any right it has to challenge the assertion of privilege and to move for an
order of the court denying such privilege; provided, however, that (i) the receiving party may not
assert as a ground for such motion the fact or circumstances of the inadvertent production, and
(ii) the receiving party must move to file the document(s) at issue under seal or present them in
camera if it chooses to present the document(s) to the court. The provisions of this paragraph
apply to all information or materials produced in the litigation, whether designated Confidential
or not.
8.

Unauthorized Disclosure of Confidential Information. If Confidential

Information is disclosed to anyone other than in a manner authorized by this Order, the party
responsible for such disclosure must immediately bring all pertinent facts relating to such
disclosure to the attention of the other party, and make every reasonable effort to retrieve such
Confidential Information and to prevent further disclosure.
9.

Filing of Confidential Information. If either party desires to file anything with

the Court that previously has been designated as Confidential Information, that party must move to

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file the Confidential Information under seal, unless the producing party provides written consent
in advance that filing the Confidential Information under seal is unnecessary.
10.

No Greater Protection of Specific Documents. Except on privilege grounds not

addressed by this Order, no party may withhold information from discovery on the ground that it
requires protection greater than that afforded by this Order unless the party moves for an order
providing such special protection.
11.

Challenges by a Party to Designation as Confidential Information. The

designation of any material or document as Confidential Information is subject to challenge by
any party. The following procedure shall apply to any such challenge.
(a)

Meet and Confer. A party challenging the designation of Confidential

Information must do so in good faith and must begin the process by conferring directly with
counsel for the designating party. In conferring, the challenging party must explain the basis for
its belief that the confidentiality designation was not proper and must give the designating party
an opportunity to review the designated material, to reconsider the designation, and, if no change
in designation is offered, to explain the basis for the designation. The designating party must
respond to the challenge within five (5) business days.
(b)

Judicial Intervention. A party that elects to challenge a confidentiality

designation may seek a telephonic conference as outlined in the Court’s Order Regarding
Discovery. No motions shall be filed unless ordered by the Court. Until the Court rules on the
challenge, all parties shall continue to treat the materials as Confidential Information under the
terms of this Order.

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12.

Action by the Court. Nothing in this Order or any action or agreement of a party

under this Order limits the Court’s power to make orders concerning the disclosure of documents
produced in discovery or at trial.
13.

Use of Confidential Documents or Information at Trial. Nothing in this Order

shall be construed to affect the use of any document, material, or information at any trial or
hearing. A party that intends to present or that anticipates that another party may present
Confidential Information at a hearing or trial shall bring that issue to the Court’s and parties’
attention by motion, or in a pretrial memorandum without disclosing the Confidential
Information, or in any other manner directed by the Court. The Court may thereafter make such
orders as are necessary to govern the use of such documents or information at trial.
14.

Preservation of Certain Rights. Entering into, agreeing to, and/or producing or

receiving Confidential Information or otherwise complying with the terms of this Order shall
not:
(a)

Operate as an admission by any party that any Discovery Material

designated as Confidential Information contains or reflects trade secrets or any other type of
confidential or proprietary information entitled to protection under applicable law;
(b)

Prejudice in any way the rights of any party to object to the production of

documents it considers not subject to discovery, or operate as an admission by any party that the
restrictions and procedures set forth herein constitute adequate protection for any particular
information deemed by any party to be Confidential Information;
(c)

Prejudice in any way the rights of any party to object to the authenticity or

admissibility into evidence of any document, testimony or the evidence subject to this Protective
Order;
(d)

Prejudice in any way the rights of any party to seek a determination by the

Court whether any Discovery Material or Confidential Information should be subject to the terms
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of this Protective Order;
(e)

Prejudice in any way the rights of any party to petition the Court for a

further protective order relating to any purportedly Confidential Information; or
(f)

Prevent any party from agreeing to alter or waive the provisions or

protections provided for herein with respect to any particular Discovery Material.

15.

Confidential Information Subpoenaed or Ordered Produced in Other

Litigation.
(a)

If a receiving party is served with a subpoena, court order, regulatory

request, or other demand in other litigation that would compel disclosure of any material or
document designated in this action as Confidential Information (“Protected Materials Request”),
the receiving party must so notify the designating party, in writing, immediately and in no event
more than three court days after receiving the Protected Materials Request. Such notification
must include a copy of the Protected Materials Request.
(b)

The receiving party also must immediately inform in writing the party

who caused the Protected Materials Request to issue in the other litigation that some or all of the
material covered by the Protected Materials Request is the subject of this Order. In addition, the
receiving party must deliver a copy of this Order promptly to the party in the other action that
caused the Protected Materials Request to issue.
(c)

The purpose of imposing these duties is to alert the interested persons to

the existence of this Order and to afford the designating party in this case an opportunity to try to
protect its Confidential Information in the court from which the Protected Materials Request
issued. If the designating party timely seeks a protective order, the party served with the
Protected Materials Request shall not produce any information designated in this action as
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“CONFIDENTIAL - SUBJECT TO PROTECTIVE ORDER” before a determination by the
court or body from which the Protected Materials Request issued, unless the party has obtained
the designating party’s permission or the court or body so directs. The designating party shall
bear the burden and the expense of seeking protection in that court of its Confidential
Information, and nothing in these provisions should be construed as authorizing or encouraging a
receiving party in this action to disobey a lawful directive from another court. The obligations
set forth in this paragraph remain in effect while the party has in its possession, custody, or
control Confidential Information by the other party to this case.
16.

Challenges by Members of the Public to Sealing Orders. A party or interested

member of the public has a right to challenge the sealing of particular documents that have been
filed under seal, and the party asserting confidentiality will have the burden of demonstrating the
propriety of filing under seal.
17.

Obligations on Conclusion of Litigation.
(a)

Order Continues in Force. Unless otherwise agreed or ordered, this

Order shall remain in force after the dismissal or entry of final judgment not subject to further
appeal.
(b)

Obligations at Conclusion of Litigation. Within sixty days after

dismissal or entry of final judgment not subject to further appeal, all Confidential Information
and documents marked “CONFIDENTIAL - SUBJECT TO PROTECTIVE ORDER” under this
Order, including copies as defined in ¶ 3(a), shall be returned to the producing party unless: (1)
the document has been offered into evidence or filed without restriction as to disclosure; (2) the
parties agree to destruction to the extent practicable in lieu of return; or (3) as to documents

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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.
(c)

Retention of Work Product and One Set of Filed Documents.

Notwithstanding the above requirements to return or destroy documents, counsel may retain (1)
attorney work product, including an index that refers or relates to designated Confidential
Information so long as that work product does not duplicate verbatim substantial portions of
Confidential Information, and (2) one complete set of all documents filed with the Court
including those filed under seal. Any retained Confidential Information shall continue to be
protected under this Order. In the event that outside counsel maintains such documents, it shall
not disclose material containing any type of Confidential Information to any third parties absent
a court order.
(d)

Deletion of Documents Filed Under Seal from ECF System. Filings

under seal shall be deleted from the ECF system only upon order of the Court.
18.

Third Parties. Third parties who produce information in this action may avail

themselves of the provisions of this Order after providing a signed copy of Attachment A to
counsel of record, and discovery material produced by third parties shall be treated by the parties
in conformance with this Order.
19.

Order Subject to Modification. This Order shall be subject to modification by

the Court on its own initiative or on motion of a party or any other person with standing
concerning the subject matter.
20.

No Prior Judicial Determination. This Order is entered based on the

representations and agreements of the parties and for the purpose of facilitating discovery.
Nothing herein shall be construed or presented as a judicial determination that any document or

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material designated Confidential Information by counsel or the parties is entitled to protection
under Rule 26(c) of the Federal Rules of Civil Procedure or otherwise until such time as the
Court may rule on a specific document or issue.
21.

Persons Bound. This Order shall take effect when entered and shall be binding

upon all counsel of record and their law firms, the parties, and persons made subject to this Order
by its terms.
IT IS SO ORDERED.
DATED: January 8, 2016

DONALD G. WILKERSON
United States Magistrate Judge

WE SO MOVE
and agree to abide by the
terms of this Order

WE SO MOVE
and agree to abide by the
terms of this Order

/s/ Adam K. Levin
Signature

/s/ Phillip A. Bock
Signature

Adam K. Levin
Printed Name

Phillip A. Bock
Printed Name

Counsel for: United Healthcare, Inc. and
United Healthcare of Illinois, Inc.

Counsel for:
D.C., LTD.

Dated: December 18, 2015

Dated: December 18, 2015

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Dr. Robert L. Meinders,

ATTACHMENT A
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF ILLINOIS
DR. ROBERT L. MEINDERS, D.C., LTD.,
individually and as the representative of a
class of similarly-situated persons,
Plaintiff,

No. 3:14-cv-00548-DRH-DGW

v.
UNITED HEALTHCARE, INC.,
UNITED HEALTHCARE OF ILLINOIS,
INC., and JOHN DOES 1-12,
Defendants.

ACKNOWLEDGEMENT AND AGREEMENT TO BE BOUND
The undersigned hereby acknowledges that he/she has read the Confidentiality Order
dated ____________________________ in the above-captioned action and attached hereto,
understands the terms thereof, and agrees to be bound by its terms. The undersigned submits to
the jurisdiction of the United States District Court for the Southern District of Illinois in matters
relating to the Confidentiality Order and understands that the terms of the Confidentiality Order
obligate him/her to use materials designated as Confidential Information (or allow him/her to
designate materials as Confidential Information) in accordance with the Order solely for the
purposes of the above-captioned action, and not to disclose any such Confidential Information to
any other person, firm or concern.

The undersigned acknowledges that violation of the Confidentiality Order may result in
penalties for contempt of court.

Name:
Job Title:
Employer:
Business Address:

Date:
Signature