Concovich v. Air Evac EMS Inc

Filing 39

PROTECTIVE ORDER. Parties will note changes to paragraphs 8 and 15. Signed by Magistrate Judge Donald G. Wilkerson on 8/18/15. (sgp)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
JOAN CONCOVICH, individually, and
on behalf of all others similarly situated,
Plaintiff,
vs.
AIR EVAC EMS, INC.,
Defendant.

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No. 3:15-cv-00294-MJR-DGW

PROTECTIVE ORDER
This matter comes before the Court on Defendant Air Evac EMS Inc.’s Unopposed
Motion for Entry of a Protective Order (“Motion”). The Court finds that good cause exists to
protect the confidentiality of trade secret or other confidential research, development, or
commercial information within the meaning of Fed. R. Civ. P. 26(c). The primary purpose of
this Protective Order is to facilitate the flow of information during the pretrial phase of this
litigation.
This Protective Order is limited to the following materials and topics enumerated in the
Motion and is further limited in duration to the pre-trial disclosure period of this suit.
(a)

Plaintiff’s injuries suffered on April 12, 2014 and the air ambulance
services and medical treatment received by Plaintiff as a result thereof;

(b)

Air Evac’s Federal and State of Illinois tax returns; and

(c)

Air Evac’s documents relating to the operation of the AirMedCare
Network, including, but not necessarily limited to, business plans,
financial statements, actuarial studies, prices charged to Illinois citizens
for membership fees, air ambulance services provided to Illinois citizens,
amounts paid to Air Evac by those Illinois citizens’ insurance companies
or health plans, and amounts collected by Air Evac from other responsible
third parties for said services.

The Court has considered the Motion and finds that good cause exists for protection of
such materials and information, and that such protection is in the interest of the parties and
public, and the interest of justice. Accordingly, it is hereby ORDERED that the terms of this
Protective Order shall control the use, dissemination, and disposition of all documents provided,
answers to interrogatories, other discovery responses, transcripts of depositions, responses to
requests for admissions, any other papers filed or to be filed with the Court, and other
information which is produced or disclosed and designated as confidential by a party or third
party during the pretrial phase of this matter (hereinafter referred to as “Confidential
Information”).
1.

Designation of Confidential Information must be made by placing or affixing on

the document in a manner which will not interfere with its legibility, the word
“CONFIDENTIAL.” One who provides material may designate it as confidential only when the
party producing it believes, in good faith, that it contains trade secrets or nonpublic technical,
commercial, financial, personal, health, or business information. Except for documents produced
for inspection at the party’s facilities, the designation of Confidential Information must be made
prior to, or contemporaneously with, the production or disclosure of that information. In the
event that documents are produced for inspection at the party’s facilities, such documents may be
produced for inspection before being marked confidential. Once specific documents have been
designated for copying, any documents containing confidential information will then be marked
confidential after copying but before delivery to the party who inspected and designated the
documents.

There will be no waiver of confidentiality by the inspection of Confidential

Information before it is copied and marked confidential pursuant to this procedure.

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2.

Portions of depositions of a party’s present and former officers, directors,

employees, agents, experts, representatives, and any third parties shall be deemed confidential if
designated as such when the deposition is taken or within 5 business days after the deposition
transcript is made available. If any portion of a videotaped deposition is designated pursuant to
this paragraph, the videocassette or other videotape or CD-ROM container shall be labeled with
the appropriate legend.
3.

Information or documents designated as confidential under this Protective Order

shall not be used or disclosed by the parties or counsel for the parties or any persons identified in
paragraph 4 for any purposes whatsoever other than preparing for and conducting the litigation in
which the information or documents were disclosed (including appeals).
4.

The parties and counsel for the parties must not disclose or permit the disclosure

of any documents or information designated by the other party as confidential under this
Protective Order to any other person or entity, except that disclosures may be made in the
following circumstances to the following individuals (“Qualified Recipients”):
a.

Counsel of record for the parties and employees of said counsel who have
direct functional responsibility for the preparation and trial of the lawsuit.
Any such employee to whom counsel for the parties makes a disclosure
must be advised of, and become subject to, the provisions of this
Protective Order requiring that the documents and information be held in
confidence.

b.

Employees of a party required in good faith to provide assistance in the
conduct of the litigation in which the information was disclosed who are
identified as such in writing to counsel for the other parties in advance of

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the disclosure of the confidential information. To that end, Air Evac
hereby designates Thomas A.A. Cook, Esq. (Air Evac’s General Counsel)
and Jessica Metz, (Air Evac’s in-house litigation paralegal).
c.

Clerical or ministerial service providers, including outside copying
services and court reporters, retained by a party’s counsel to assist such
counsel with this litigation. Before disclosure to any such court reporter
or person engaged in making photocopies of documents, such reporter or
person must agree to be bound by the terms of this Protective Order.

d.

The author of the information and anyone shown by the information to
have previously received it in the ordinary course of business.

e.

Outside consultants, investigators, or experts (hereinafter referred to
collectively as “experts”) employed by the parties or counsel for the
parties to assist in the preparation and trial of the lawsuit.

Prior to

disclosure to any expert, the expert must be informed of and agree to be
subject to the provisions of this Protective Order requiring that the
documents and information be held in confidence.
f.

Persons who are or may be witnesses necessary in the preparation of this
case for trial. Prior to disclosure to any such witness or potential witness,
the individual must be informed of and agree to be subject to the
provisions of this Protective Order requiring that the documents and
information be held in confidence.

g.

The Court and its support staff.

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h.

Others specifically identified and authorized in writing by the disclosing
party.

5.

Prior to the disclosure of any confidential information to any Qualified Recipient

authorized to receive it pursuant to paragraphs 4(b), 4(c), 4(d), and 4(e) above, counsel shall
have the person to whom disclosure is proposed execute an affidavit in the form attached hereto
as Exhibit A. Counsel receiving confidential information shall maintain a complete and current
file of said affidavits executed pursuant to this paragraph, which file shall be retained following
the final termination of the litigation.
6.

Except as provided in paragraph 4, counsel for the parties must keep all

documents designated as confidential that are received under this Protective Order secure within
their exclusive possession and must place such documents in a secure area.
7.

All copies, duplicates, extracts, summaries, or descriptions (hereinafter referred to

collectively as “copies”) of documents or information designated as confidential under this
Protective Order or any portion thereof, must be immediately affixed with the word
“CONFIDENTIAL” if that word does not already appear.
8.

If any party believes that a document or discovery response is confidential

pursuant to this Order, they must seek prior approval from the Court before filing the document
under seal. The filing party must make a showing of good cause to exclude each item from the
public record. See Citizens First Nat. Bank of Princeton v. Cincinnati Ins. Co., 178 F.3d 943
(7th Cir. 1999).

See also, Magistrate Judge Donald G. Wilkerson’s Case Management

Procedures (May 2014) (“Protective Orders” – “A particularized showing of good cause must be
made for protecting specific materials and information.”). Counsel for the party filing any

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motion for leave to file under seal shall contemporaneously provide copies of said documents to
opposing counsel via e-mail.
9.

A party or interested member of the public may challenge the confidentiality

designation of particular documents by motion. Citizens, 178 F.3d at 946. The movant must
accompany such a motion with the certification that the movant has in good faith conferred or
attempted to confer with opposing counsel in an effort to resolve the dispute without court
action, as required by Fed.R.Civ.P. 26(c)(1) .
10.

At the conclusion of the litigation, including all appeals therefrom, all material not

received in evidence and treated as confidential under this Protective Order must be returned to
the originating party.

If the parties so stipulated, the material may be destroyed.

Notwithstanding the foregoing, counsel of record for each party shall be entitled to retain
pleadings, deposition transcripts and videotapes, written discovery responses, memoranda,
declarations or affidavits which attach, contain or refer to confidential information for purposes
of maintaining a complete and accurate file of this action.
11.

Nothing contained herein shall constitute a waiver of any ground for objecting to

requests for discovery, nor shall the consent of the parties to the terms of this Protective Order be
deemed an admission or acknowledgment with respect to the relevance, competence, or
admissibility in evidence of any confidential information as to any issue in this action.
12.

Notwithstanding the foregoing, the inadvertent or unintentional disclosure of

confidential material that should have been designated as such, regardless of whether the
information, document or thing was so designated at the time of disclosure, shall not be deemed
a waiver (either explicit or implicit) of a party’s claim of confidentiality either with respect to the
particular information, document or thing or the subject matter implicated therein.

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Such

inadvertent or unintentional disclosure may be rectified by notifying in writing counsel for all
parties to whom the material was disclosed that the material should have been designated
“CONFIDENTIAL” within a reasonable time after disclosure. Such notice shall constitute a
designation of the information, document or thing as “CONFIDENTIAL” under this Protective
Order.
13.

Nothing in this Order shall prevent a party from using or disclosing its own

confidential information as it deems appropriate.
14.

Any non-party that receives a subpoena for production or disclosure of

information that they believe in good faith constitutes Confidential Information may produce
documents or provide information (e.g., deposition testimony) in accordance with the provisions
of this Order.
15.

Any document governed by a privilege shall be subject to applicable rules and

law.
IT IS SO ORDERED.
DATED: August 18, 2015

DONALD G. WILKERSON
United States Magistrate Judge

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EXHIBIT A
ACKNOWLEDGMENT OF COMPLIANCE WITH PROTECTIVE ORDER
I have read the Protective Order (the “Order”) that has been entered in this case, and a
copy of it has been given to me. I understand the provisions of the Order and agree to comply
with it and to be bound by its provisions. I hereby agree to subject myself to the jurisdiction of
this Court for purposes of enforcement of the terms and restrictions of the Order. I agree that I
will use any Confidential Information solely for the purposes of facilitating the prosecution or
defense of this action and not for any business or other purpose.
I further agree that I shall not disclose any Confidential Information to anyone other than
persons permitted to have access to such information pursuant to the terms of the Order. I
further agree that, upon termination of this proceeding, or sooner if requested, I shall return all
Confidential Information provided to me, including all copies and excerpts thereof, pursuant to
the terms of the Order.
I declare under penalty of perjury that the foregoing is true and correct.

Dated:______________, 201__.

___________________________
Signature
___________________________
Print Name
___________________________
Company
___________________________
Address and Phone Number

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