Montaigu v. United States of America

Filing 10

STIPULATED PROTECTIVE ORDER Regarding Disclosure of Records Subject to the Privacy Act and 45 C.F.R. § 164.512(e). Signed by District Judge Terrence G. Berg. (AChu)

Case 2:22-cv-11136-TGB-DRG ECF No. 10, PageID.43 Filed 11/17/22 Page 1 of 8

United States District Court
Eastern District of Michigan
Southern Division
ANA MARIA MONTAIGU,
Plaintiff,
v.

Civil No. 22-11136
Honorable Terrence G. Berg
Mag. Judge David R. Grand

UNITED STATES OF AMERICA,
Defendant.

Stipulated Protective Order Regarding Disclosure of Records
Subject to the Privacy Act and 45 C.F.R. § 164.512(e)
Plaintiff, Ana Maria Montaigu, and Defendant, United States of America,
through their undersigned attorneys, have stipulated to entry of a protective order
to permit the United States to produce documents in this action that are deemed
private and confidential under the Privacy Act, 5 U.S.C. § 552a, and Federal Rule
of Civil Procedure 5.2, and to protect information obtained by either party from the
other party and/or third parties as required by 45 C.F.R. § 164.512(e). The
documents at issue in this case are likely to include medical records and reports
that identify, by name and other identifying information, several individuals who
are not parties to this litigation and contain private medical information about
Plaintiff. Under the Privacy Act, the United States is prohibited from disclosing
documents that include the names or other identifying information of individuals

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who are not currently parties to this case unless such disclosure is permitted by the
order of a Court of competent jurisdiction. 5 U.S.C. § 552a(b)(11). Similarly,
under 45 C.F.R. § 164.502, a covered entity, such as the United States or other
medical care provider, may not disclose protected health information unless such
disclosure is permitted by the order of a Court of competent jurisdiction or if other
criteria are met, as described in 45 C.F.R. § 164.512. This Stipulated Protective
Order permits the United States to produce to Plaintiff relevant documents
containing information protected by the Privacy Act, 5 U.S.C. § 552a, and ensures
that any sensitive or private information obtained by any party from any source is
obtained and disclosed only to the extent necessary to resolve this litigation, as
required by 45 C.F.R. § 164.501, et seq. Accordingly, Plaintiff and Defendant,
through their undersigned attorneys, have stipulated to entry of a protective order
providing as follows:
1. Protected Information.
The United States of America and/or Plaintiff may designate as “protected
information” records produced in response to a party’s discovery requests or
documents obtained by either party pursuant to subpoena or records request from
third parties. All records that the United States or the Department of Veterans
Affairs designate as protected information shall be stamped “protected
information” on each page and/or shall be appended with a cover sheet stamped

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“protected information.” All such records designated as “protected information”
shall be subject to the provisions below. United States of America and Plaintiff
shall treat all records and information obtained from third parties regarding the
medical treatment of Plaintiff as “protected information.” For the purposes of this
qualified protective order, “protected information” includes “protected health
information” as set forth in 45 C.F.R. § 160.103 and 164.501, 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.
2. Authorization to Disclose.
Upon entry of this stipulated protective order under the authority of the
Court pursuant to Rule 26(c) of the Federal Rules of Civil Procedure, 5 U.S.C.
§ 552a(b)(11), and 45 C.F.R. § 164.512(e)(1), the Court permits the production of
protected information even though the records contain the names and other
identifying information and/or actions regarding persons who are not currently
parties to this case and/or protected health information. The parties agree that
“protected information” may be relevant to the subject matter involved in the
pending action and the parties’ need for such records or information outweigh the
concerns against disclosure so long as the parties comply with the measures

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required by this Protective Order.
This stipulated order does not apply to those records or portions of records
that include privileged information, if any, or that are otherwise objectionable.
3. Non-Disclosure of Protected Information.
Except with the prior written consent of producing party, or as otherwise
provided under this order or by prior approval of this Court, no “protected
information” may be disclosed to any individual or entity, in any form whatsoever,
except to those persons, and for those purposes, delineated in paragraphs 4 and 5
below. Under no circumstances may protected information be used by any party or
their attorneys or agents for any purpose other than for those purposes necessary to
this litigation.
4. Permissible Disclosures.
(A)

Notwithstanding paragraph 3, protected information may be disclosed

i.

An individual party;

to:

ii.
Counsel for the parties in this action who are actively engaged in the
conduct of this litigation;
iii. The partners, associates, secretaries, paralegal assistants, and
employees of such counsel to the extent reasonably necessary to render
professional services in the litigation;
iv.
Retained consultants or experts (testimonial and non-testimonial) and
employees of said persons directly involved in the prosecution or defense of
this litigation;
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v.
Persons giving testimony, including testimony during depositions, in
this litigation;
vi.
Witnesses or individuals who may have information relevant to the
events at issue in this litigation;
vii. Court officials involved in this litigation (including court reporters,
persons operating video recording equipment at depositions, and any special
master appointed by the Court); and
viii. Persons designated by the Court in the interest of justice, upon such
terms as the Court may deem proper after hearing of the parties.
(B)

Prior to disclosing protected information to the persons described in

Paragraph 4(A), counsel shall inform each such person that protected 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
information do not use or disclose such information for any purpose other than this
litigation.
5. Use of Protected Information in Litigation.
The provisions of this stipulated order shall not apply to restrict the use of
protected information in connection with a deposition, proceeding, hearing, trial, or
appeal in this action provided any person receiving the protected information is
subject to the provisions of this order. However, any documents designated as
“protected information” must be redacted to remove personally identifying
information before they are disclosed to the public by, for instance, filing them as

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exhibits to motions on the public docket.
6. Custody and Safekeeping of Protected Information.
Counsel for a party to whom protected information has been produced shall
be responsible for taking appropriate precautions to preserve the confidentiality of
the protected information. The duplication of protected information shall be
limited to what is reasonably necessary for the conduct of this litigation.
7. Filing of Documents Containing Protected Information with the Court.
Documents containing protected information may be filed with the Court to
the extent reasonably necessary to support motions or other matters relating to the
litigation provided that such documents are redacted to remove all personally
identifying information prior to filing. The filing party is responsible for
completing the redactions necessary to comply with this section.
8. Non-Termination.
The provisions of this stipulated order shall not terminate at the conclusion
of this litigation. Within 120 days after the final conclusion of all aspects of this
litigation, including all appeals, protected documents and all copies of same (other
than exhibits of record) shall be returned to the United States or its counsel or
destroyed. All counsel of record shall make certification of compliance herewith
and shall deliver the same to counsel for the United States not more than 150 days
after final termination of this litigation.

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9. Declassification.
In the event that a reviewing party wishes to disclose protected material to
any person to whom disclosure is not authorized by this protective order, such
reviewing party may apply to this Court for modification of this order. During the
pendency of any such application, this protective order shall remain in full effect.
The party who produced the information as protected shall have the burden to
prove that there is good cause for the information to have such protection. Failure
of a party to promptly challenge any designation of confidentiality shall not
constitute acquiescence in such designation nor preclude the filing of an
application under this paragraph at any time prior to trial. Nothing herein shall
impose any restriction on the use or disclosure by a party of information obtained
by such party independently of discovery proceedings herein.
10. Modification Permitted.
Nothing in this order shall prevent any party from seeking modification of
this order or from objecting to discovery that it believes to be otherwise improper.
11. Filing Under Seal.
This order does not authorize the filing of any documents under seal.
Documents may be sealed only if authorized by statute, rule, or order of the Court.
A party seeking to file under seal any paper or other matter in any civil case
pursuant to this section shall comply with Local Rule 5.3.

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IT IS SO ORDERED.
/s/Terrence G. Berg
Terrence G. Berg
United States District Judge
Dated: November 17, 2022
SO STIPULATED AND AGREED TO BY:
Dawn N. Ison
United States Attorney
s/Thomas G. Krall (w/permission)
Thomas G. Krall (P75303)
Krall Law Offices, PLLC
26640 Harper Ave.
St. Clair Shores, Michigan 48080
[phone]
[e-mail]
Attorney for Plaintiff

s/Priya Khangura
Priya Khangura (CA319527)
Zak Toomey (MO61618)
Assistant United States Attorneys
211 W. Fort Street, Suite 2001
Detroit, Michigan 48226
[phone]/[phone]
[e-mail]
[e-mail]
Attorneys for Defendant

Dated: 11/15/2022

Dated: 11/15/2022

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