Rees v. Harden Healthcare Holdings, LLC
PROTECTIVE ORDER. The parties shall abide by the terms of the order. Signed by Magistrate Judge K. Gary Sebelius on 7/31/2017. (wh)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
HARDEN HEALTHCARE HOLDINGS,
Case No. 17-1096-JTM
The parties agree that during the course of discovery it may be necessary to disclose
certain confidential information relating to the subject matter of this action. They agree that
certain categories of such information should be treated as confidential, protected from
disclosure outside this litigation, and used only for purposes of prosecuting or defending this
action and any appeals. The parties jointly request entry of this proposed Protective Order to
limit the disclosure, dissemination, and use of certain identified categories of confidential
The parties assert in support of their request that protection of the identified categories of
confidential information is necessary because litigation of this matter may seek discovery of
private information concerning parties and non-parties, including but not limited to: financial
information regarding the parties; medical records; personnel information regarding Plaintiff as
well as other employees and former employees of Faith Home Health and Hospice, LLC d/b/a
Kindred at Home (“Defendant”), additional information regarding Plaintiff, and confidential or
proprietary information related to the business and operation of Defendant.
For good cause shown under Fed. R. Civ. P. 26(c), the court grants the parties’ joint
request and hereby enters the following Protective Order:
Scope. All documents and materials produced in the course of discovery of this
case, including initial disclosures, responses to discovery requests, all deposition testimony and
exhibits, and information derived directly therefrom (hereinafter collectively “documents”), are
subject to this Order concerning Confidential Information as set forth below. As there is a
presumption in favor of open and public judicial proceedings in the federal courts, this Order will
be strictly construed in favor of public disclosure and open proceedings wherever possible.
Definition of Confidential Information. As used in this Order, “Confidential
Information” is defined as information that the producing party designates in good faith has been
previously maintained in a confidential manner and should be protected from disclosure and use
outside the litigation because its disclosure and use is restricted by statute or could potentially
cause harm to the interests of disclosing party or nonparties. For purposes of this Order, the
parties will limit their designation of “Confidential Information” to the following categories of
information or documents: financial information regarding the parties; personnel information
regarding Plaintiff as well as other employees and former employees of Faith Home Health and
Hospice, LLC d/b/a Kindred at Home (“Defendant”), medical records, additional information
regarding Plaintiff, and confidential or proprietary information related to the business and
operation of Defendant.
Information or documents that are available to the public may not be
designated as Confidential Information.
Form and Timing of Designation.
The producing party may designate
documents as containing Confidential Information and therefore subject to protection under this
Order by marking or placing the words “CONFIDENTIAL” (hereinafter “the marking”) 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 will be applied prior to or at
the time the documents are produced or disclosed. Applying the marking 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. Copies that are made of any designated documents must also
bear the marking, 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. By
marking a designated document as confidential, the designating attorney or party appearing pro
se thereby certifies that the document contains Confidential Information as defined in this Order.
Inadvertent Failure to Designate.
Inadvertent failure to designate any
document or material as containing Confidential Information will not constitute a waiver of an
otherwise valid claim of confidentiality pursuant to this Order, so long as a claim of
confidentiality is asserted within fourteen (14) days after discovery of the inadvertent failure.
Depositions. Deposition testimony will be deemed confidential only if designated
as such when the deposition is taken or within a reasonable time period after receipt of the
deposition transcript. Such designation must be specific as to the portions of the transcript
and/or any exhibits to be protected.
Protection of Confidential Material.
General Protections. Designated Confidential Information must be used
or disclosed solely for purposes of prosecuting or defending this lawsuit, including any appeals.
Who May View Designated Confidential Information. Except with the
prior written consent of the designating party or prior order of the court, designated Confidential
Information may only be disclosed to the following persons:
The parties to this litigation, including any employees, agents, and
representatives of the parties;
Counsel for the parties and employees and agents of counsel;
The court and court personnel, including any special master appointed by
the court, and members of the jury;
Court reporters, recorders, and videographers engaged for depositions;
Any mediator appointed by the court or jointly selected by the parties;
Any expert witness, outside consultant, or investigator retained specifically in connection with this litigation, but only after such persons have
been informed of the Protective Order and have agreed to abide thereby;
Any potential, anticipated, or actual fact witness and his or her counsel,
but only to the extent such confidential documents or information will
assist the witness in recalling, relating, or explaining facts or in testifying,
and only after such persons have been informed of the Protective Order
and have agreed to abide thereby;
The author or recipient of the document (not including a person who
received the document in the course of the litigation);
Independent providers of document reproduction, electronic discovery, or
other litigation services retained or employed specifically in connection
with this litigation; and
Other persons only upon consent of the producing party and on such
conditions as the parties may agree.
Control of Documents.
The parties must take reasonable efforts to
prevent unauthorized or inadvertent disclosure of documents designated as containing
Confidential Information pursuant to the terms of this Order.
Filing of Confidential Information. In the event a party seeks to file any
document containing Confidential Information subject to protection under this Order with the
court, that party must take appropriate action to ensure that the document receives proper
protection from public disclosure including: (a) filing a redacted document with the consent of
the party who designated the document as confidential; (b) where appropriate (e.g., in relation to
discovery and evidentiary motions), submitting the document solely for in camera review; or (c)
when the preceding measures are inadequate, seeking permission to file the document under seal
by filing a motion for leave to file under seal in accordance with D. Kan. Rule 5.4.6.
Nothing in this Order will be construed as a prior directive to allow any document to be
filed under seal. The parties understand that the requested documents may be filed under seal
only with the permission of the court after proper motion. If the motion is granted and the
requesting party permitted to file the requested documents under seal, only counsel of record and
unrepresented parties will have access to the sealed documents. Pro hac vice attorneys must
obtain sealed documents from local counsel.
Challenges to a Confidential Designation. The designation of any material or
document as Confidential Information is subject to challenge by any party. Before filing any
motion or objection to a confidential designation, the objecting party must meet and confer in
good faith to resolve the objection informally without judicial intervention. A party that elects to
challenge a confidentiality designation may file and serve a motion that identifies the challenged
material and sets forth in detail the basis for the challenge. The burden of proving the necessity
of a confidentiality designation remains with the party asserting confidentiality. Until the court
rules on the challenge, all parties must continue to treat the materials as Confidential Information
under the terms of this Order.
Use of Confidential Documents or Information at Trial or Hearing. Nothing
in this Order will 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 must bring that issue to the attention of the court
and the other parties without disclosing the Confidential Information. The court may thereafter
make such orders as are necessary to govern the use of such documents or information at the
hearing or trial.
Obligations on Conclusion of Litigation.
Order Remains in Effect.
Unless otherwise agreed or ordered, all
provisions of this Order will remain in effect and continue to be binding after conclusion of the
Return of Confidential Documents. Within sixty (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 as defined above,
must be returned to the party who previously produced the document unless: (1) the document
has been offered into evidence or filed without restriction as to disclosure; (2) the parties agree to
destruction of the document to the extent practicable in lieu of return; or (3) 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.
Retention of Work Product. Notwithstanding the above requirements to
return or destroy documents, counsel may retain attorney work product, including an index
which refers or relates to designated Confidential Information, so long as that work product does
not duplicate verbatim substantial portions of the text or images of designated documents. This
work product will continue to be confidential under this Order. An attorney may use his or her
own work product in subsequent litigation provided that its use does not disclose Confidential
Order Subject to Modification. This Order is subject to modification by the
court on its own motion or on motion of any party or any other person with standing concerning
the subject matter. The Order must not, however, be modified until the parties have been given
notice and an opportunity to be heard on the proposed modification.
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 in this Order will be construed or presented as a judicial determination that any
document or material designated as Confidential Information by counsel or the parties is entitled
to protection under Fed. R. Civ. P. 26(c) or otherwise until such time as the court may rule on a
specific document or issue.
Persons Bound by Protective Order. This Order will take effect when entered
and is binding upon all counsel of record and their law firms, the parties, and persons made
subject to this Order by its terms.
Jurisdiction. The court’s jurisdiction to enforce the provisions of this Order will
terminate on the final disposition of this case. But a party may file a motion to seek leave to
reopen the case to enforce the provisions of this Order.
Applicability to Parties Later Joined. If additional persons or entities become
parties to this lawsuit, they must not be given access to any Confidential Information until they
execute and file with the court their written agreement to be bound by the provisions of this
Protections Extended to Third-Party’s Confidential Information. The parties
agree to extend the provisions of this Protective Order to Confidential Information produced in
this case by third parties, if timely requested by the third party.
Inadvertent Disclosure of Confidential Information Covered by Attorney-
Client Privilege or Work Product.
The inadvertent disclosure or production of any
information or document that is subject to an objection on the basis of attorney-client privilege or
work-product protection, including, but not limited, to information or documents that may be
considered Confidential Information under the Protective Order, will not be deemed to waive a
party’s claim to its privileged or protected nature or estop that party or the privilege holder from
designating the information or document as attorney-client privileged or subject to the work
product doctrine at a later date. Any party receiving any such information or document must
return it upon request to the producing party. Upon receiving such a request as to specific
information or documents, the receiving party must return the information or documents to the
producing party within fourteen (14) days, regardless of whether the receiving party agrees with
the claim of privilege and/or work-product protection.
Disclosure of the information or
document by the other party prior to such later designation will not be deemed a violation of the
provisions of this Order. The provisions of this section constitute an order pursuant to Rules
502(d) and (e) of the Federal Rules of Evidence.
The parties in this case and their attorneys are hereby authorized to
receive, subpoena and transmit “protected health information” pertaining to patients of any party
in this case to the extent and subject to the conditions outlined herein.
For the purposes of this qualified protective order, “protected health
information” shall have the same scope and definition as set forth in 45 C.F.R. § 160.103 and
164.501. Protected health information includes, but is not limited to, health information,
including demographic information, relating to either (a) the past, present, or future physical or
mental condition of an individual, (b) the provision of care to an individual, or (c) the payment
for care provided to an individual, which identifies the individual or which reasonably could be
expected to identify the individual.
All “covered entities” (as defined by 45 C.F.R. § 160.103) are hereby authorized
to disclose protected health information pertaining to patients of any party to attorneys
representing the Plaintiff and Defendant in the above-captioned litigation.
The parties and their attorneys shall be permitted to use or disclose the protected
health information for purposes of prosecuting or defending this action including any appeals of
this case. This includes, but is not necessarily limited to, disclosure to their attorneys, experts,
consultants, court personnel, court reporters, copy services, trial consultants, and other entities or
persons involved in the litigation process.
Prior to disclosing protected health information to persons involved in this
litigation, counsel shall inform each such person that protected health information may not be
used or disclosed for any purpose other than this litigation. Counsel shall take all other
reasonable steps to ensure that persons receiving protected health information do not use or
disclose such information for any purpose other than this litigation.
This Order does not control or limit the use of protected health information
pertaining to any patient that comes into the possession of the parties or their attorneys from a
source other than a “covered entity,” as that term is defined in 45 C.F.R. § 160.103.
Nothing in this Order authorizes the parties in this case or their counsel to obtain
medical records or information through means other than formal discovery requests, subpoenas,
depositions, pursuant to a patient authorization, or other lawful process.
IT IS SO ORDERED.
Dated: July 31, 2017
s/ K. Gary Sebelius
Honorable K. Gary Sebelius
U.S. 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
GRAYBILL & HAZLEWOOD, LLC
LITTLER MENDELSON, P.C.
/s/ Sean M. McGivern
Sean M. McGivern, #22932
Nathan R. Elliott, #24657
218 N. Mosley St.
Wichita, KS 67202
Telephone: (316) 266-4058
Fax: (316) 462-5566
/s/ Uzo N. Nwonwu
Karen K. Cain, KS #17256
Uzo N. Nwonwu, KS #23492
1201 Walnut, Suite 1450
Kansas City, MO 64106
Telephone: (816) 627-4400
Fax: (816) 627-4444
ATTORNEYS FOR DEFENDANT
MCDONALD TINKER PA
/s/ Katy E. Tompkins
Katy E. Tompkins, #25581
300 W. Douglas Ave., Ste. 500
Wichita, KS 67202-4909
Telephone: (316) 263-5851
Fax: (316) 263-4677
ATTORNEYS FOR PLAINTIFF
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