Kent v. Winchester Hospital
Filing
22
Judge Richard G. Stearns: ORDER entered granting 21 Motion for Protective Order pursuant to the parties' joint motion. (RGS, int2)
Case 1:17-cv-10547-RGS Document 21-1 Filed 12/11/17 Page 1 of 10
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
DEBRA KENT,
Plaintiff,
v.
Civil Action No. 1:17-cv-10547-RGS
WINCHESTER HOSPITAL,
Defendant.
CONFIDENTIALITY STIPULATION
AND PROTECTIVE ORDER
Pursuant to Fed. R. Civ. P. 26(c), IT IS HEREBY STIPULATED AND AGREED TO by
the undersigned counsel for Plaintiff and Defendant that the following provisions shall govern
the disclosure and use of all documents, testimony, and other information designated as
“Confidential” or “Confidential – Attorneys’ Eyes Only” that is produced or given by any Party
in the course of discovery in this action.
ACCORDINGLY, IT IS HEREBY STIPULATED AND AGREED TO that:
1.
“Party” or “Parties,” as used herein, means Plaintiff Debra Kent and Defendant
Winchester Hospital, as represented by their respective counsel.
2.
The term “Information,” as used herein, shall include any document, testimony,
electronic data, interrogatory response, response to requests for admissions, or other information
disclosed or produced by or on behalf of a Party (or any of his or its attorneys or other agents) or
by or on behalf of a third party from whom discovery is sought, and all documents incorporating
such information.
Case 1:17-cv-10547-RGS Document 21-1 Filed 12/11/17 Page 2 of 10
3.
“Confidential Information,” as used herein, means all personal, medical,
personnel, employee, proprietary, financial, business or other commercially sensitive
information, whether documentary or otherwise, designated as “Confidential” and delivered or
produced by any Party or third-party witness in response to a request for production of
documents, subpoena, or otherwise. The designation of Information as “Confidential
Information” shall be applied only to Information that the Party or third party producing or
providing the Information (a) has a good faith interest in preserving as confidential, or (b) has a
legal responsibility to another person or entity to preserve the private, confidential, or proprietary
nature of the Information. Any Information that is readily available or generally known to the
public shall not be considered or designated as “Confidential Information.”
4.
“Confidential – Attorney’s Eyes Only,” as used herein, means all highly
confidential, proprietary, or personal Information that may require special handling in addition to
the procedures required for handling “Confidential Information.” It is the intent of the Parties
that the “Confidential –Attorney Eyes Only” designation shall be reserved for Information that is
highly personal or highly proprietary, technical or business information relating to present or
planned activities of the designating Party or third party that has been and is being maintained in
confidence by the designating Party or third party. If only a portion of a document, an
interrogatory response, or deposition testimony contains information that is properly designated
as “Confidential – Attorneys’ Eyes Only,” then the designating Party shall clearly designate
which portion(s) of the document, interrogatory response, or deposition testimony contains
information that is to be treated as “Confidential – Attorneys’ Eyes Only.”
5.
To the extent that documents are designated “Confidential – Attorneys’ Eyes
Only,” counsel may nonetheless disclose the documents to the Parties with the “Confidential –
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Case 1:17-cv-10547-RGS Document 21-1 Filed 12/11/17 Page 3 of 10
Attorneys’ Eyes Only” portion(s) of the document redacted. In the event that counsel intend to
disclose such redacted documents to the Parties, they shall provide the proposed redacted
documents to the designating Party for its review. The designating Party shall, within five (5)
business days of the actual receipt of the proposed redacted document, communicate its
agreement that the redacted version of the document may be disclosed to the Parties, or it may
provide an alternate redacted version of the document that it agrees may be disclosed to the
Parties.
6.
All Information produced in this action, whether or not designated as
“Confidential” or “Confidential – Attorneys’ Eyes Only,” shall be used by the Party receiving
such information solely in connection with this litigation.
7.
Except with the prior consent of the designating Party or upon prior order of the
Court, Information designated as “Confidential” shall not be disclosed by any Party to any
person other than the following:
(a)
counsel of record for the Parties in this litigation, the Parties’ in-house attorneys,
and the paralegals, secretaries, legal assistants, and other similar support personnel of the Parties
or their counsel of record, as reasonably necessary to assist the Parties’ counsel of record and inhouse attorneys in this litigation;
(b)
outside experts, consultants, and litigation support vendors who are not employees
of any Party and who are expressly retained to assist counsel of record for the Parties and the
employees of such persons;
(c)
the Court, Court personnel, and jurors;
(d)
court reporters and videographers who are retained to transcribe or videotape
testimony in this action;
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Case 1:17-cv-10547-RGS Document 21-1 Filed 12/11/17 Page 4 of 10
(e)
the Parties and their officers, solely for the purpose of prosecuting, defending, or
appealing the action;
(f)
any deponent in this action;
(g)
actual or potential witnesses in this action;
(h)
the Parties’ insurers and the insurers’ counsel; and
(i)
mediators or other persons engaged in alternative dispute resolution who shall be
advised of, and shall agree to, the confidentiality requirements hereof in advance of being
provided with any Information designated as “Confidential.”
8.
Except with the prior consent of the designating Party or upon prior order of this
Court, Information designated as “Confidential – Attorneys’ Eyes Only” shall be disclosed solely
to the following persons:
(a)
the Court, Court personnel, and jurors;
(b)
counsel of record for the Parties in this litigation, the Parties’ in-house
attorneys, and the paralegals, secretaries, legal assistants, and other similar support
personnel of the Parties or their counsel of record, as reasonably necessary to assist the
Parties’ counsel of record and in-house attorneys in this litigation;
(c)
outside experts, consultants, and/or litigation support vendors who are not
employees of any Party and who are expressly retained to assist counsel of record for the
Parties and the employees of such persons;
(d)
court reporters and videographers who are retained to transcribe or
videotape testimony in this action;
(e)
a deponent in this action (provided that the deponent is not a Party or the
employee of a Party to the action);
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Case 1:17-cv-10547-RGS Document 21-1 Filed 12/11/17 Page 5 of 10
(f)
actual or potential witnesses (provided that the witness is not a Party or the
employee of a Party to the action); and
(g)
mediators or other persons engaged in alternative dispute resolution who
shall be advised of and shall agree to the confidentiality requirements hereof in advance
of being provided with any Information designated as “Confidential – Attorneys’ Eyes
Only.”
9.
Any person entitled to receive Information designated as “Confidential” or
“Confidential – Attorneys’ Eyes Only” pursuant to Paragraph 7, subpart (b) and paragraph 8
subpart (c), shall, prior to receiving such Information, read this Protective Order, and shall
execute the Acknowledgement and Agreement in the form annexed hereto as Exhibit A,
indicating that he or she has read this Protective Order and will abide by its terms. Such sworn
statement(s) shall be retained by counsel disclosing the Information designated as “Confidential”
or “Confidential – Attorneys’ Eyes Only.” The Court and the opposing counsel may, upon
request, inspect the Acknowledgements and Agreements.
10.
If Information designated as “Confidential” or “Confidential – Attorneys’ Eyes
Only” is disclosed to any person other than in the manner authorized by this Order, the person
responsible for the disclosure must immediately bring all pertinent facts relating to such
disclosure to the attention of counsel for all Parties and, without prejudice to other rights and
remedies of any Party, shall make a reasonable, good-faith effort to retrieve such material and to
prevent further disclosure by it or by the person who received such Information.
11.
Any Party may designate the appropriate portions of any deposition transcript or
videotaped deposition transcript (including exhibits) as containing Information designated as
“Confidential” or “Confidential – Attorneys’ Eyes Only” by so advising the deposition reporter
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Case 1:17-cv-10547-RGS Document 21-1 Filed 12/11/17 Page 6 of 10
in the course of the deposition and indicating in the deposition transcript and on the videotape
what portions of the testimony (or exhibits thereto) were so designated, or by so advising all
other parties of the pages which are designated as “Confidential” or “Confidential – Attorneys’
Eyes Only” within thirty (30) days after receipt of the transcript by the designating Party. Until
thirty (30) days have passed after the receipt of any transcript, the entire transcript and videotape
shall be deemed to contain “Confidential Information”
12.
Receipt without objection by a Party of Information designated as “Confidential”
or “Confidential – Attorneys’ Eyes Only” shall not constitute an admission or agreement that
such Information has been appropriately designated as such. If a Party elects to object to a
designation of Information as “Confidential” or “Confidential – Attorneys’ Eyes Only”, or to
dispute the limitations on access to be accorded such Information under this Protective Order,
such Party shall provide to the designating Party written notice of its disagreement and shall
specifically identify the Information in dispute. If, despite a good-faith effort, the dispute cannot
be resolved informally by the Parties, the Party contesting the designation or restriction on access
may seek relief from the Court in accordance with the Federal Rules of Civil Procedure and the
Local Rules of the United States District Court for the District of Massachusetts. The Party
asserting the designation of the Information as “Confidential” or “Confidential – Attorneys’ Eyes
Only” shall bear the burden of demonstrating that the Information is entitled to protection from
disclosure under applicable law. Pending the Court’s ruling, the Party contesting the designation
shall continue to treat the Information in the manner required by Protective Order. A Party’s
failure to object to the designation of any Information as “Confidential” or “Confidential –
Attorneys’ Eyes Only” shall not constitute an admission or agreement that the Information is, or
in fact contains, “Confidential Information.” Any objection to the designation of Information as
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Case 1:17-cv-10547-RGS Document 21-1 Filed 12/11/17 Page 7 of 10
“Confidential” or “Confidential – Attorneys’ Eyes Only” shall be deemed waived if the nondesignating party makes use of the Information in the litigation but then does not object to the
designation in accordance with the above procedure within ten (10) business days of such use,
provided, however, that any such waiver shall not affect the designating Party’s burden of
establishing that the Information is confidential and entitled to protection from disclosure under
applicable law.
13.
Inadvertent failure to designate Information as “Confidential” or “Confidential –
Attorneys’ Eyes Only” at the time of production pursuant to this Order may be remedied by
supplemental written notice given by the designating Party. Upon receipt of such notification, all
documents, materials, or testimony so designated or re-designated shall be fully subject to this
Order as if they had been initially so designated; provided, however, that the receiving Party
shall incur no liability for any previous treatment of such Information in conformance with its
original designation.
14.
If counsel for any Party files or submits to the Court any Information designated
“Confidential” or “Confidential – Attorneys’ Eyes Only,” the filing shall be accompanied by a
motion to impound under Local Rule 7.2.
15.
All provisions of this Order restricting the use of Information obtained during
discovery shall continue to be binding after the conclusion of this action, including all appeals,
until further order of the Court, unless the Parties agree otherwise in writing. Any and all
originals and copies of documents or other Information produced by the Parties to this
Stipulation shall, at the request of the designating Party, be returned to the designating Party or
destroyed at the designating Party's expense, within one (1) month after a final judgment has
been entered in this action and the time for appeals has expired, except that counsel for each
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Case 1:17-cv-10547-RGS Document 21-1 Filed 12/11/17 Page 9 of 10
THE ABOVE TERMS AND CONDITIONS ARE HEREBY STIPULATED AND
AGREED TO by the respective undersigned counsel for the parties in the above-captioned
action, subject to the approval of the Court:
DEBRA KENT,
WINCHESTER HOSPITAL,
By her attorney,
By its attorneys,
/s/ Suzanne L. Herold
Suzanne L. Herold (BBO #675808)
HEROLD LAW GROUP, P.C.
50 Terminal Street
Building 2, Suite 716
Charlestown, MA 02129
Tel: 617.944.1325
Fax: 617.398.2730
suzie@heroldlawgroup.com
/s/ Francesco A. DeLuca
Rachel Reingold Mandel (BBO #660495)
Francesco A. DeLuca (BBO #692138)
OGLETREE, DEAKINS, NASH,
SMOAK & STEWART, P.C.
One Boston Place, Suite 3500
Boston, MA 02108
Tel: 617.994.5700
Fax: 617.994.5701
rachel.mandel@ogletreedeakins.com
francesco.deluca@ogletreedeakins.com
Dated: December 11, 2017
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Case 1:17-cv-10547-RGS Document 21-1 Filed 12/11/17 Page 10 of 10
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
DEBRA KENT,
Plaintiff,
v.
Civil Action No. 1:17-cv-10547-RGS
WINCHESTER HOSPITAL,
Defendant.
EXHIBIT A TO CONFIDENTIALITY STIPULATION AND PROTECTIVE ORDER ACKNOWLEDGEMENT AND AGREEMENT TO BE BOUND
I, __________________________, hereby acknowledge receipt of a copy of the
Confidentiality Stipulation and [Proposed] Protective Order (the “Protective Order”) entered in
the action known as Debra Kent v. Winchester Hospital, Civil Action No. 1:17-cv-10547-RGS
(United States District Court for the District of Massachusetts (the “Court”)), and further
acknowledge that I have read and understand the terms of the Protective Order, that I agree to be
bound by the Protective Order (including, but not limited to, the confidentiality provisions and
the provisions regarding the return of Confidential Information), and that I consent to the
jurisdiction of the Court for enforcement of the same. I further acknowledge and understand that
any unauthorized disclosure of Confidential Information or refusal to return materials designated
as Confidential may subject me to contempt of Court.
By:
Name [Printed]:
Date:
31810151.1
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