Spessard v. Mutual of Omaha Insurance Company, Inc.

Filing 19

PROTECTIVE ORDER that the Joint Stipulation for Protective Order is granted. IT IS FURTHER ORDERED that the Parties are limited in their disclosure and use of confidential and proprietary information. Ordered by Magistrate Judge Cheryl R. Zwart. (LAC)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
SANDRA L. SPESSARD,

Case No. 8:16-cv-00080-JMG-CR

Plaintiff,
PROTECTIVE ORDER

v.
MUTUAL OF OMAHA INSURANCE
COMPANY, INC., a Nebraska corporation,
Defendant.

This matter came before the Court upon the Joint Stipulation for Protective Order
filed by the parties in the above-captioned matter. The Court, being fully advised in the
premises, hereby finds as follows:
IT IS HEREBY ORDERED that the Joint Stipulation for Protective Order is
granted.
IT IS FURTHER ORDERED that the Parties are limited in their disclosure and
use of confidential and proprietary information as follows:
1.

The parties to this Agreement, Plaintiff, and Defendant have agreed that

certain documents and information to be produced in the above-referenced litigation (the
“Lawsuit”) should be treated as “Confidential Information” and shall be used only for
purposes of the Lawsuit.

The parties agree that such Confidential Information, as

described in Paragraph 2, should be given the protection of an Order of this Court to
prevent injury to the parties or others through disclosures to persons other than those
persons involved in the prosecution of the Lawsuit. The parties agree that the public’s
right of access to such information is outweighed by the potentially significant public and
private harm to the parties and such information should be protected.

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While the

information may be produced in connection with the Lawsuit, the use and dissemination
of such information should be limited by the terms of this Protective Order to prevent the
possibility of subjecting the producing or disclosing party to competitive or financial
injury or potential legal liability to third parties.

Moreover, by delineating particular

information as “Confidential” herein, the parties are not conceding that such information
or documents should be produced during the Lawsuit or otherwise, and reserve any and
all objections they may have to such production.
2.

Confidential Information:

Information and documents that may be

designated as “Confidential” include, but are not limited to, trade secrets, confidential or
proprietary

non-public

financial

information,

operational

data,

business

plans,

competitive analyses, personal information that is protected by law, confidential patient
information, protected health information, or any other identifiable health information as
defined by the Health Insurance Protection and Accountability Act (“HIPAA”), and other
sensitive information that, if not restricted as set forth in this order, may subject the
producing or disclosing person to competitive or financial injury or potential legal
liability to third parties.

A party shall designate as Confidential Information only such

information that the party in good faith believes in fact is confidential. Information that is
generally available to the public, such as public filings, catalogues, advertising materials,
and the like, shall not be designated as Confidential.
3.

For purposes of this Stipulated 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, protected health information
or “PHI” includes, but is not limited to, health information, including demographic

4815-3747-4360.1

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 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 Stipulated
Protective Order.
5.

Disclosure of Confidential Information:

All information or documents

produced in this case and designated as Confidential, including, but not limited to,
HIPAA-protected health information, may only be disclosed to the following persons:
a.

the parties, employees of the parties whose assistance is needed by

counsel for purposes of this litigation, and the parties’ attorneys of record in this
action;
b.

the members or employees of the law firms of the attorneys of

record who are involved with the prosecution or defense of the litigation;
c.

Court personnel and stenographic reporters, engaging in such

proceedings as are necessarily incident to the preparation for trial (e.g.,
depositions) and/or trial of this action;
d.

any witnesses in trial or deposition;

e.

any arbitrator, mediator, or other alternative dispute resolution

facilitator in front of whom the parties agree to appear or are ordered to appear;

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f.

actual or potential independent experts or consultants (and their

administrative or clerical staff) engaged in connection with this Lawsuit; and
g.

Graphics or design services firms retained by counsel for a party

for purposes of preparing demonstrative or other exhibits for deposition, trial or
other proceedings;
h.

Independent document reproduction services or document or video

recording and retrieval services;
i.

Non-technical jury or trial consulting services retained by counsel

for a party;
j.
k.
6.

The finder of fact or concluder of law; and
such other person as the parties may agree on.

Use of Confidential Information:

All Confidential Information provided

by any party or nonparty in the course of the Lawsuit shall be used solely for the purpose
of preparation, trial, and appeal of this litigation and for no other purpose, and shall not
be disclosed except in accordance with the terms hereof. Persons obtaining access to
information or data designated as “Confidential” shall use the information or data only in
conjunction with the Lawsuit and shall not use such information or data for any other
purpose.
7.

Marking of Confidential Documents: Documents provided in the Lawsuit

may be designated by the producing party or by any party as Confidential Information by
marking each page of the documents so designated with a stamp indicating that the
information is “Confidential”, except that the parties need not separately stamp or declare
PHI as “Confidential” for it to qualify and be treated as Confidential Information.

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8.

Marking of Confidential Deposition Testimony: Information disclosed at

(a) the deposition of a party or one of its present or former officers, directors, employees,
agents, consultants, representatives, or independent experts retained by counsel for the
purpose of this litigation, or (b) the deposition of a nonparty may be designated by any
party as Confidential Information by indicating on the record at the deposition that the
testimony is “Confidential” and is subject to the provisions of this Order. Any party also
may designate information disclosed at a deposition as “Confidential” by notifying all
parties in writing not later than 30 days of receipt of the transcript of the specific pages
and lines of the transcript that should be treated as “Confidential” thereafter. Each party
shall attach a copy of each such written notice to the face of the transcript and each copy
thereof in that party’s possession, custody, or control. All deposition transcripts shall be
treated as “Confidential” for a period of 30 days after initial receipt of the transcript. To
the extent possible, the court reporter shall segregate into separate transcripts information
designated as Confidential Information with blank, consecutively numbered pages being
provided in a non-designated main transcript. The separate transcript containing
Confidential Information shall have page numbers that correspond to the blank pages in
the main transcript. Counsel for a party or a nonparty witness shall have the right to
exclude from depositions any person who is not authorized to receive Confidential
Information pursuant to this Order, but such right of exclusion shall be applicable only
during periods of examination or testimony during which Confidential Information is
being used or discussed. This section shall not apply to PHI, which the parties need not
separately designate or identify as “CONFIDENTIAL” for it to qualify and be treated as
Confidential Information.

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9.

Filing Under as Restricted Access or Under Seal: The party wishing to

file any Confidential Information, including HIPAA-protected health information, will
file such information as restricted access or under seal on the CM/ECF electronic filing
system in a manner consistent with the local rules and procedures of the court.

The

producing party will bear the burden of obtaining an order sealing such information.
Alternatively, the parties may agree to, with the consent of the producing party, file only
a redacted copy of the information. This paragraph, however, shall not prevent the use of
any information or data designated as Confidential in connection with mediation,
motions,

or

other

Court-ordered

proceedings, provided that the

use

of

the

documents/information is in accordance with this Order.
10.

Manner of Use in Proceedings: Nothing in this Order shall prohibit a

party from showing a witness during a deposition, trial, or hearing any document
designated as containing information or data deemed Confidential so long as that witness
is entitled to see the document in a manner that does not violate the terms of this Order or
is authorized to view that document pursuant to Paragraphs 4 above. If a witness is
entitled to view documents or information designated as Confidential, or provide
testimony about such documents or information, the designating party shall have the right
to have all persons, except the witness, counsel for the witness, and all individuals
identified above in Paragraphs 4 excluded before the taking of testimony about the
documents or information designated as Confidential.
11.

No Bar to Seeking Further Relief. Nothing in this Protective Order shall

preclude any party from filing a motion seeking further or different protection from the

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Court or from filing a motion with respect to the manner in which Confidential
Information shall be treated at trial.
12.

Challenges:
a. Designation of Confidential Information. A party shall not be
obligated to challenge the propriety of a designation of Confidential or
Information at the time such designation is made, and a failure to do so shall
not preclude a subsequent challenge to the designation. In the event that any
party to this Lawsuit disagrees at any stage of these proceedings with the
designation of any information as Confidential, the parties shall first try to
resolve the dispute in good faith on an informal basis, such as by production
of redacted copies. If the dispute cannot be resolved, the objecting party may
invoke this Order by objecting in writing to the party who designated the
document or information as Confidential. The designating party shall then
have 14 days to move the Court for an order preserving the designated status
of

the

disputed information.

The

disputed information shall remain

Confidential Information unless and until the Court orders otherwise. Failure
to move for an order shall constitute a termination of the status of such item as
Confidential Information.
b. Persons to Whom Confidential Information May be Disclosed: In
the event that any party in good faith disagrees with the disclosure of
Confidential Information to a particular person, the parties shall first try to
resolve the dispute in good faith on an informal basis. If the dispute cannot be
resolved, the objecting party may move the Court for an order denying the

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person access to particular Confidential Information. The objecting person
shall have the burden of demonstrating that disclosure to the disputed person
would expose the objecting party to the risk of serious harm. Upon the timely
filing of such a motion, no disclosure of Confidential Information shall be
made to the disputed person unless and until the Court enters an order
preserving the designation.
13.

Obligations After Final Disposition.

The provisions of this Protective

Order shall, absent written permission of the producing party or further order of the
Court, continue to be binding throughout and after the conclusion of this action, including
any appeals or remands. After the entry of an order, judgment or decree finally disposing
of this action, including any appeals therefrom, and upon thirty (30) days’ notice by the
producing party, all persons having received Confidential Information shall return such
materials and all copies thereof (including summaries and excerpts) to counsel for the
producing party or shall certify destruction thereof. The outside counsel for each party
shall be entitled to retain court papers, deposition transcripts, and attorney work product
that contains, reflects or summarizes Confidential Information, provided that such
counsel, and employees of such counsel, shall not disclose any such Confidential
Information to any person or entity except pursuant to a written agreement with the
producing party.

All materials returned to the parties or their counsel by the Court

likewise shall be disposed of in accordance with this Paragraph.
14.

Protective Order Not Admission.

By agreeing to the entry of this

Protective Order, the Parties adopt no position as to the authenticity or admissibility of
documents produced subject to it. Furthermore, by producing or receiving information or

4815-3747-4360.1

material designated “Confidential” Material or by otherwise complying with the terms of
this Protective Order, such conduct shall not be construed as an admission as to the
relevance, authenticity, foundation or admissibility of any document, material, transcript
or other information.
15.
Information.

Inadvertent

Production

of

Undesignated/Misdesignated

Confidential

As soon as the receiving party becomes aware of any inadvertent

production of misdesignated Confidential Information, the information must be treated as
if it had been timely and correctly designated under this Protective Order, and the
receiving party must endeavor in good faith to obtain all copies of the document which it
distributed or disclosed to persons not authorized to have access to such information, as
well as any copies made by such persons.
16.

Modifications and Exceptions:

The parties may, by stipulation, provide

for exceptions to this Order, and any party may seek an order of this Court modifying this
Order.
17.

Binding Effect of Protective Order Before Entry by Court. The Parties

agree to be bound by the terms of this Order pending its entry by the Court, or pending
entry of an alternative thereto. Any violation of the terms of this Stipulation prior to its
entry, or prior to the entry of an alternative order, shall be subject to the same sanctions
and penalties as if this Stipulation had been entered as an order of the Court.
18.

Obligations Under Subpoena in Other Action. If a party is (a) subpoenaed

in another action, (b) served with a demand in another action to which it is a party, or (c)
served with any other legal process by one not a party to this action, seeking Confidential
Information which it received from the other party, the Party so served shall give prompt,

4815-3747-4360.1

written notice to the producing party, by hand or electronic service, within ten (10)
business days of its receipt of such subpoena, demand, or legal process. The party so
served shall also object to the production of the requested Confidential Information to the
extent permitted by law. Should the person seeking access to the information or material
take action against the party, or anyone else covered by this Protective Order to enforce
such a subpoena, demand or other legal process, the party shall respond by setting forth
the existence of this Protective Order. Nothing herein shall be construed as requiring the
party, or anyone else covered by this Protective Order, to challenge or appeal any order
requiring production of information or material covered by this Protective Order, or to
subject itself to any penalties for noncompliance with any legal process or order, or to
seek any relief from this Court.
IT IS SO ORDERED.
Dated this 16th day of September, 2016.
BY THE COURT:
s/Cheryl R. Zwart
Cheryl R. Zwart
United States Magistrate Judge

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