Kreifels et al v. Coventry Health Care of Nebraska, Inc. et al
Filing
19
PROTECTIVE ORDER - Ordered by Magistrate Judge Cheryl R. Zwart. (AOA)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
MICHELLE KREIFELS and DOUGLAS
KREIFELS,
Case No.: 4:13-CV-03067
Plaintiffs,
v.
PROTECTIVE ORDER
COVENTRY HEALTH CARE OF
NEBRASKA, INC., and COVENTRY
HEALTH CARE INC.
Defendants.
Pursuant Federal Rule of Civil Procedure 26(c) and 45 C.F.R. § 164.512(e), Plaintiffs
Michelle Kreifels and Douglas Kreifels and Defendants Coventry Health Care of Nebraska, Inc.
and Coventry Health Care, Inc., by and through their undersigned counsel, hereby stipulate and
agree to the following Protective Order.
WHEREAS, Plaintiffs and/or Defendants have produced and may be producing
documents containing personal, private, confidential or proprietary information (“Confidential
Information”) as more fully defined below; and
WHEREAS, counsel for the parties are willing to stipulate to the entry of a Protective
Order as a condition to the disclosure and use of any such Confidential Information and/or
inspection and copying of any such Confidential Information; and
WHEREAS, counsel for the parties agree that a Protective Order containing the terms set
forth herein may be entered by the Court without further notice in order to set forth guidelines
for the use of Confidential Information.
THE COURT, THEREFORE, ORDERS AS FOLLOWS:
1.
The terms and conditions of this Protective Order shall govern initial disclosures,
the production and handling of documents, answers to interrogatories, responses to requests for
admissions, depositions, pleadings, exhibits, other discovery taken pursuant to the Federal Rules
of Civil Procedure, and all other information exchanged by the parties or by any third party in
response to discovery requests or subpoenas.
2.
“Confidential
Information”
under this Protective
Order is defined
as:
(a) documents, information and things produced during discovery, or produced pursuant to a
subpoena duces tecum or otherwise, (b) evidence adduced before or during trial and portions of
testimony to be taken (whether at deposition, hearing or trial), (c) pleadings, affidavits, briefs,
motions, transcripts and other writings that may be filed, and (d) various other matters that
include data or information, which any party may designate confidential, to contain information
sensitive to the parties’ business or affairs, to contain trade secrets, to contain confidential or
proprietary financial and other information, to contain information relating to non-parties
(including personnel records, financial records, medical records, and other confidential personal
or business information), or to include confidential patient information, protected health
information, or any other identifiable health information as defined by Health Insurance
Portability and Accountability Act (“HIPAA”).
3.
For purposes of this Protective Order, “protected health information” or “PHI”
shall have the same scope and definition as set forth in 45 C.F.R. § 160.103. Without limiting
the generality of the foregoing, patient health information or “PHI” 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.
4.
All “covered entities” (as defined by 45 C.F.R. § 160.103) are hereby authorized
to disclose PHI pertaining to Michelle Kreifels to all attorneys now of record in this matter or
who may become of record in the future of this litigation, pursuant to the terms of this Protective
Order.
5.
If a party determines that a document or thing which has been or will be
furnished, produced or made a part of any pleadings or other papers to be filed, or any briefs,
testimony, affidavits or evidence to be offered contains or may contain Confidential Information,
the party requesting protection shall designate such document, information, evidence, pleadings,
testimony or affidavit as Confidential Information in the following manner:
a.
In the case of documents and written materials, the party seeking protection shall
stamp or identify as “CONFIDENTIAL” the documents or written materials that
will be covered by this Protective Order, except that the parties need not
separately stamp or declare PHI as “CONFIDENTIAL” for it to qualify and be
treated as Confidential Information.
b.
In the case of transcribed hearings, transcribed files, deposition testimony,
affidavits, pleadings and other papers or writings to be filed with the Court, by
advising the other parties in writing of the portions deemed to be Confidential
Information.
For testimony taken during a deposition, hearing or other
proceeding, testimony that may contain Confidential Information also may be
designated as such at the time of the deposition, hearing or proceeding, or
promptly afterwards. This section shall not apply to PHI, which the parties need
not separately designate or identify “CONFIDENTIAL” for it to qualify and be
treated as Confidential Information.
c.
In the case of information retained or maintained in a computerized or other
machine readable form that has not been transcribed into a printed form, the party
seeking protection shall notify the other party of the type or category of such
information that is Confidential Information.
6.
This Protective Order shall be without prejudice to the right of any party (a) to
bring before the Court at any time the question of whether any particular information is or is not
relevant to any issue of this case or whether any information constitutes Confidential
Information; (b) to seek a further protective order; (c) to exercise any right or raise any objection
otherwise available under the rules of discovery or evidence; or (d) by application and notice, to
seek relief from any provision of this Protective Order on any ground. During the pendency of
any challenge to the applicability of this Protective Order to any document, information or thing,
however, such document, information or thing shall remain subject to the provisions of this
Protective Order.
7.
If a party realizes that some portion(s) of material or information that the party
previously produced without limitation should be designated as Confidential Information, it may
so designate by promptly so apprising all parties in writing, and such designated portions(s) of
the material or information shall be treated as Confidential Information under the terms of this
Protective Order.
8.
Documents, materials, things, testimony, pleadings, various matters and
information designated as Confidential Information:
a.
Except as provided herein, the parties shall not use or disclose Confidential
Information, including but not limited to HIPAA protected health information, for
any purpose other than the litigation or the proceeding for which such information
was requested;
b.
The parties shall not disclose Confidential Information to anyone other than the
Court and its staff, the parties hereto, their attorneys of record in this litigation and
their employees who are assisting such attorneys in this litigation, any in-house
counsel, court reporters who record deposition or other testimony, witnesses,
deponents, consultants and/or experts;
c.
If any party, attorney or individual shall disclose Confidential Information to a
consultant or expert witness, it is the obligation of the disclosing party to provide
such person with a copy of this Protective Order and obtain a signed
Confidentiality Agreement (in the form attached hereto as Exhibit A) whereby
such person agrees to be bound by the terms of this Protective Order. A copy of
each executed Confidentiality Agreement shall be maintained by counsel for the
disclosing party in a secure place and, upon request, shall produce the same to
counsel for the non-disclosing party.
If any party discloses Confidential
Information to an expert witness who is not expected to be called as a witness at
trial (“non-trial expert”), the disclosing party nevertheless must provide the
non-trial expert with a copy of this Protective Order and obtain a signed
Confidentiality Agreement (in the form attached hereto as Exhibit A) whereby the
non-trial expert agrees to be bound by the terms of this Protective Order.
Although a copy of each executed Confidentiality Agreement obtained from such
non-trial expert shall be maintained by counsel for the disclosing party in a secure
place, a copy of said executed Confidentiality Agreement shall be produced to the
non-disclosing party only upon Court order; and
d.
If any person to whom disclosure is permitted under this Protective Order is a
nonparty witness or deponent who has not signed a Confidentiality Agreement (in
the form attached hereto as Exhibit A), then it is the obligation of the disclosing
party to ensure that such person is not permitted to retain or make copies of any
Confidential Information disclosed to such person. It is the intent of the parties
hereto that Confidential Information, including HIPAA protected
health
information, not be used for any purpose outside the reasonable conduct of this
case.
9.
All Confidential Information filed with the Court, and all portions of pleadings,
motions or other papers filed with the Court that disclose any Confidential Information, shall be
filed under restricted access pursuant to any rules or orders pertaining to the filing of information
and documents under restricted access.
10.
This Protective Order may be modified by the Court at any time on its own
motion. The Court may also impose sanctions or find in contempt any party or persons bound by
this Protective Order found in violation of the terms of this Protective Order.
11.
Within a reasonable time after the final determination of this action, each party to
this litigation shall either assemble and return to the producing party or parties the originals of
Confidential Information, or shall destroy such Confidential Information, at the request of the
producing party. All copies, in whatever form, shall also be returned or destroyed. In the event
Confidential Information is not returned or destroyed as required herein, the Confidential
Information shall be identified by counsel and continued to be held subject to the terms of this
Protective Order. The parties may retain PHI and all copies thereof that were generated by them.
12.
This Protective Order shall not control or limit the use of protected health
information that comes into the possession of any party or any party’s attorney from a source
other than a “covered entity,” as that term is defined in 45 C.F.R. § 160.103.
13.
Nothing in this Protective Order authorizes the parties to obtain medical records
or information through means other than formal discovery requests, subpoena, depositions,
pursuant to a patient authorization or through attorney-client communications.
14.
This Protective Order shall be binding upon the parties, their counsel,
predecessors, successors, parents, subsidiaries, affiliates, employees, agents, representatives, and
assigns.
June 11, 2013.
BY THE COURT:
s/ Cheryl R. Zwart
United States Magistrate Judge
Exhibit A
CONFIDENTIALITY AGREEMENT
The undersigned hereby acknowledges that he/she has read the Protective Order entered
by the United States District Court for the District of Nebraska in the action entitled Michelle
Kreifels and Douglas Kreifels v. Coventry Health Care of Nebraska, Inc., and Coventry Health
Care, Inc., Case No. 4:13-CV-03067, that he/she understands the terms thereof, and that he/she
agrees to be bound by such terms.
Dated this
day of
, 2013.
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