Tolliver-McGregor v. Blue Cross and Blue Shield of Montana, Inc.
AGREED PROTECTIVE ORDER Signed by Judge Sam E Haddon on 3/3/2017. (Attachments: # 1 Exhibit A) (ELL)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
MAR 0 j 2017
Clerk, U.S. District Court
District Of Montana
Case No. 2:16-cv-00058
HEALTH CARE SERVICE
CORPORATION, an Illinois Mutual
Legal Reserve Company d/b/a BLUE
CROSS AND BLUE SHIELD OF
WHEREFORE, the parties having agreed to entry of the following
Protective Order, and good cause appearing,
IT IS HEREBY ORDERED that the following Protective Order (the
"Order") shall be in effect and govern the designation and handling of documents
and information designated as confidential by a party in this case:
By and through their counsel of record, the parties hereby agree as follows:
Certain documents (and related information, materials, documents,
and/or records) produced in the course of this action (the "Litigation") may contain
sensitive, confidential, proprietary, or secret commercial information not designed
or meant for public disclosure or barred from disclosure by law (the "Protected
Information"). Such documents or information produced by Plaintiffs or
Defendants may be classified as "Confidential" by the producing party (the
"Designating Party"). This Order shall govern the use and dissemination of all
information, documents, or materials that are produced in this action and
"Confidential" documents shall include all documents
and copies of such documents which the Designating Party has
designated as "Confidential" by marking each page of each document
"Confidential." The Designating Party may also designate other
material, including but not limited to, interrogatory responses to
requests for admission, deposition transcripts, deposition videos,
information or other written, recorded, or graphic material produced
or disclosed in this Litigation as "Confidential" and thus bring them
within the scope of this Order. In lieu of marking the originals of
such documents, any party may mark the copies of such documents
that are produced or exchanged.
Any summary, compilation, notes, copy, electronic
image, or database containing Protected Information shall be subject
to the terms of this Order to the same extent as the material or
information from which the summary, compilation, notes, copy
electronic image, or database is made or derived.
Protected Information used in this Litigation may be disclosed only to
"Qualified Persons." "Qualified Persons" as used in this Order means:
This Court and its personnel;
Any third party appointed by the Court or retained by the
parties for settlement purposes or resolution of discovery or other
disputes and their staff;
Counsel of record for any party, including partners and
associate attorneys assigned to this litigation, and all paralegal
assistants, stenographic and clerical employees when working under
the direct supervision of each such attorney to whom it is necessary
that "Confidential" information be shown for purposes of the
Experts, disclosed witnesses, and mock jurors employed,
retained, or consulted by any party for the purpose of assisting in the
preparation for trial or trial of this Litigation;
The named parties, or a designated representative of a
party, who may be assisted by stenographic and clerical employees
under the direct supervision of other Qualified Persons as herein
Court reporters and stenographic reporters engaged in
activities necessarily incident to the preparation for trial of the
HIPAA Information. The Parties desire to ensure the privacy of
information, and other
information that the Parties have determined might
contain sensitive personal information, including Protected Health Information,
Individually Identifiable Information, and any other protected information, as
defined by the Standards for Privacy of Individually Identifiable Health
Information, 45 C.F .R. parts 160 and 164, and agree that any such information
may be designated as "Confidential."
a. "Protected Health Information," as used herein, shall have the
same scope and definition as set forth in 45 C.F.R. § 160.103.
"Individually Identifiable Information," as used herein,
means information referred to
and identified in 45
Additionally, the Parties and their attorneys and any
future parties and their attorneys in this Proceeding, and any
"covered entities," as that term is defined in 45 C.F.R. § 160.103,
are hereby authorized to receive, subpoena, disclose, and transmit
Confidential Material to the extent and subject to the conditions
Any documents or information designated "Confidential" information
during a deposition, which designations shall be made on the record at the time of
the deposition, or which are marked as exhibits or shown to the deponent or
otherwise employed during a deposition shall be considered "Confidential"
information and subject to this Order.
Unless deemed admissible and subject to public disclosure by the
Court at the time of trial, any information designated as "Confidential" shall not be
made available to any persons other than the Court (under seal) and those Qualified
Persons listed in Subparagraphs 2.a. through 2.f. above. Qualified Persons who
receive "Confidential" information shall use it solely for the purpose of this
Litigation, and for no other purpose whatsoever.
The limitations of this Order shall not apply to any information or
document or thing which, at or prior to disclosure thereof in this action, is or was
publicly available, or which after disclosure thereof, becomes publicly available
other than by act or omission of the Receiving Party or its agents.
If the Court orders, or if the Designating Party agrees in writing,
access to, or dissemination of, information submitted by the Designating Party as
"Confidential" information may be made to persons other than those included in
Paragraph 2, but such matter shall only be accessible to, or disseminated to, such
person in conformity with the written consent and agreement of the Designating
Party or, if pursuant to a court order, based upon the conditions pertaining to, and
obligations arising from this Order, and such persons shall be considered subject to
it, unless the Court first finds that the information is not "Confidential" information
as defined in Paragraph 1 hereof.
In the event the party rece1vmg information designated as
"Confidential" disputes whether the information is properly designated as such, the
Receiving Party shall, within thirty (30) days, notify the designating party . The
parties shall meet and confer in good faith to resolve the dispute. If resolution
cannot be reached, within ten (10) days of the meet and confer conference, the
designating party may move for an order upholding its "Confidential" designation.
During the time any such motion is pending, the Receiving Party shall continue to
treat the designated information as "Confidential."
The parties shall not be precluded by this Order from timely
complying with the demand or subpoena of any authority having jurisdiction. The
parties, shall, however, use reasonable, diligent efforts to obtain confidential
treatment of any Protected Information disclosed pursuant to this paragraph (or any
other applicable provision hereof), and shall promptly notify the other party of
such demand or subpoena, and provide copies of the demand or subpoena received.
No "Confidential" documents shall be filed with the Court except
under seal, or unless deemed non-Confidential in accordance with the procedure
set forth in Paragraph 8 above.
Filing of documents under seal shall be conducted in compliance with
L.R. 5.l(d). No document filed under seal shall be considered by the Court or
relied upon by any party absent an order of Court so permitting.
All parties understand that all documents relied upon by the Court in
resolving any issue before the Court, including documents filed under seal, will be
made public contemporaneously with the Court's ruling on the issue.
None of the terms or conditions of this agreement shall apply to any
information or documentation which hereafter becomes subject to public disclosure
by order of Court or agreement of the parties.
No date or deadline established by separate order of Court shall be
modified or extended unless authorized by Court order for good cause shown.
With sole exception of counsel and their employees, the Court and its
personnel, each person to whom disclosure of "Confidential" information is to be
made shall be advised of this Protective Order and shall execute an agreement (the
form of which is Exhibit "A" hereto) (the "Confidential Agreement") signed
pursuant to the terms of this Protective Order. Each such writing shall be retained
by counsel and shall be made available to the other party upon request following
settlement or judgment. This paragraph shall not apply to Plaintiffs medical
records disclosed to Plaintiffs treating medical providers.
At the conclusion of the litigation, any originals or reproductions of
any Confidential documents produced by a party, not previously in possession of
the opposing party, shall be returned to the Designating Party or destroyed within
30 days upon request. Other than attorney work product, any and all copies,
analyses, compilations, summaries and extracts in the possession or control of one
party and "Qualified Persons" associated therewith which reflect or include
information derived from documents or testimony designated as "Confidential" by
the other party shall be destroyed. "Confidential" information contained in attorney
work product shall not be disseminated by the attorney, except in compliance with
the procedures set forth in this Order.
If "Confidential" information submitted in accordance with this Order
is disclosed to any person other than in the manner authorized by this Order, the
party responsible for the disclosure must immediately notify the Designating Party
and make every reasonable effort to prevent further disclosure by it or by the
person who was the recipient of such information.
Any Party may seek a modification of this Order at any time by filing
an appropriate motion with the Court. Nothing in this Order shall abridge the right
of any person to seek further judicial review or to pursue other appropriate judicial
action with respect to any ruling made by the Court concerning the issue of the
status of "Confidential" information. Nothing contained herein shall be construed
as a waiver of any objections which might be raised as to the admissibility of any
evidentiary material at any time during the Litigation.
The provisions of this Order shall continue to be binding after the
conclusion of the litigation, except that a party may seek the written permission of
the Designating Party or further order of the Court with respect to dissolution or
modifications of the Order which may also be made by any party at any time
during the pendency of this litigation.
.J ~ay ofMarch, 2017.
United States District Judge
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