Stailey v. Gila Regional Medical Center et al

Filing 37

STIPULATED PROTECTIVE ORDER by Magistrate Judge Gregory J. Fouratt. (kdj)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW MEXICO
MARIE STAILEY,
Plaintiff,
v.

Civ. No. 16-485 JCH/GJF

GILA REGIONAL MEDICAL CENTER,
et al.,
Defendants.
STIPULATED CONFIDENTIALITY AND PROTECTIVE ORDER
1.

PURPOSES AND LIMITATIONS

Disclosure and discovery activity in this action are likely to involve production of
confidential, proprietary, or private information for which special protection from public
disclosure and from use for any purpose other than prosecuting this arbitration may be
warranted. Accordingly, the parties hereby stipulate to the entry of the following Stipulated
Confidentiality and Protective Order.
2.

DEFINITIONS

2.1

Challenging Party:

a Party or Non-Party that challenges the designation of

information or items under this Order.
2.2

“CONFIDENTIAL” Information or Items: information (regardless of how it is

generated, stored or maintained) or tangible things that a Party reasonably believes qualify for
protection under Federal Rule of Civil Procedure 26(c).
2.3

“CONFIDENTIAL—ATTORNEYS’ EYES ONLY” Information or Items:

information (regardless of how it is generated, stored or maintained) or tangible things that a
Party (1) reasonably believes qualify for protection under Federal Rule of Civil Procedure 26(c)
and (2) considers in good faith to contain highly sensitive confidential information or proprietary
business information.
2.4

Counsel (without qualifier): Outside Counsel of Record and House Counsel (as

well as their support staff).
2.5

Designating Party: a Party or Non-Party that designates information or items that

it produces in disclosures or in responses to discovery as “CONFIDENTIAL” or
“CONFIDENTIAL—ATTORNEYS’ EYES ONLY.”
2.6

Disclosure or Discovery Material: all items or information, regardless of the

medium or manner in which it is generated, stored, or maintained (including, among other things,
testimony, transcripts, and tangible things), that are produced or generated in disclosures or
responses to discovery in this matter.
2.7

Expert: a person with specialized knowledge or experience in a matter pertinent

to the litigation who has been retained by a Party or its counsel to serve as an expert witness or as
a consultant in this action.
2.8

House Counsel: attorneys who are employees of a party to this action. House

Counsel does not include Outside Counsel of Record or any other outside counsel.
2.9

Non-Party: any natural person, partnership, corporation, association, or other

legal entity not named as a Party to this action.
2.10

Outside Counsel of Record: attorneys who are not employees of a party to this

action but are retained to represent or advise a party to this action and have appeared in this
action on behalf of that party or are affiliated with a law firm which has appeared on behalf of
that party.
2.11

Party: any party to this action, including all of its officers, directors, employees,

consultants, retained experts, and Outside Counsel of Record (and their support staffs).
2.12

Producing Party: a Party or Non-Party that produces Disclosure or Discovery

Material in this action.
2.13

Professional Vendors: persons or entities that provide litigation support services

(e.g., photocopying, videotaping, translating, preparing exhibits or demonstrations, and
organizing, storing, or retrieving data in any form or medium) and their employees and
subcontractors.
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2.14

Protected Material: any Disclosure or Discovery Material that is designated as

“CONFIDENTIAL” or “CONFIDENTIAL—ATTORNEYS’ EYES ONLY.”
2.15

Receiving Party: a Party that receives Disclosure or Discovery Material from a

Producing Party.
3.

SCOPE

The protections conferred by this Stipulation and Order cover not only Protected Material
(as defined above), but also (1) any information copied or extracted from Protected Material; (2)
all copies, excerpts, summaries, or compilations of Protected Material; and (3) any testimony,
conversations, or presentations by Parties or their Counsel that might reveal Protected Material.
4.

DURATION

Even after final disposition of this litigation, the confidentiality obligations imposed by
this Order shall remain in effect until a Designating Party agrees otherwise in writing or an order
by the Court otherwise directs. Final disposition shall be deemed to be the later of (1) dismissal
of all claims and defenses in this action, with or without prejudice; and (2) final judgment herein
after the completion and exhaustion of all appeals, rehearing’s, remands, trials, or reviews of this
action, including the time limits for filing any motions or applications for extension of time
pursuant to applicable law.
5.

DESIGNATING PROTECTED MATERIAL

5.1

Manner and Timing of Designations. Except as otherwise provided in this Order

or as otherwise stipulated or ordered, Disclosure or Discovery Material that qualifies for
protection under this Order must be clearly so designated before the material is disclosed or
produced.
Designation in conformity with this Order requires:
(a)

for information in documentary form (e.g., paper or electronic documents,

but excluding transcripts of depositions or other pretrial or trial proceedings), that the Producing
Party affix the legend “CONFIDENTIAL” or “CONFIDENTIAL—ATTORNEYS’ EYES
ONLY” to each page that contains protected material. If only a portion or portions of the
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material on a page qualifies for protection, the Producing Party also must clearly identify the
protected portion(s) (e.g., by making appropriate markings in the margins).
A Party or Non-Party that makes original documents or materials available for
inspection need not designate them for protection until after the inspecting Party has indicated
which material it would like copied and produced. During the inspection and before the
designation, all of the material made available for inspection shall be deemed
“CONFIDENTIAL.” After the inspecting Party has identified the documents it wants copied and
produced, the Producing Party must determine which documents, or portions thereof, qualify for
protection under this Order. Then, before producing the specified documents, the Producing
Party must affix the “CONFIDENTIAL” or “CONFIDENTIAL—ATTORNEYS’ EYES ONLY”
legend to each page that contains Protected Material. If only a portion or portions of the material
on a page qualifies for protection, the Producing Party also must clearly identify the protected
portion(s) (e.g., by making appropriate markings in the margins).
(b)

for testimony given in deposition or in other proceedings, that the

Designating Party identify on the record, before the close of the deposition, hearing, or other
proceeding, all protected testimony.
(c)

for information produced in some form other than documentary and for

any other tangible items, that the Producing Party affix in a prominent place on the exterior of
the container or containers in which the information or item is stored the legend
“CONFIDENTIAL” or “CONFIDENTIAL—ATTORNEYS’ EYES ONLY.” If only a portion
or portions of the information or item warrant protection, the Producing Party, to the extent
practicable, shall identify the protected portion(s).
5.2

Inadvertent Failures to Designate. If timely corrected, an inadvertent failure to

designate qualified information or items does not, standing alone, waive the Designating Party’s
right to secure protection under this Order for such material. Upon timely correction of a
designation, the Receiving Party must make reasonable efforts to assure that the material is
treated in accordance with the provisions of this Order.
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6.

CHALLENGING CONFIDENTIALITY DESIGNATIONS

6.1

Timing of Challenges. Any Party or Non-Party may challenge a designation of

confidentiality at any time. Unless a prompt challenge to a Designating Party’s confidentiality
designation is necessary to avoid foreseeable, substantial unfairness, unnecessary economic
burdens, or a significant disruption or delay of the arbitration, a Party does not waive its right to
challenge a confidentiality designation by electing not to mount a challenge promptly after the
original designation is disclosed.
6.2

Meet and Confer. The Challenging Party shall initiate the dispute resolution

process by providing written notice of each designation it is challenging and describing the basis
for each challenge. To avoid ambiguity as to whether a challenge has been made, the written
notice must recite that the challenge to confidentiality is being made in accordance with this
specific paragraph of the Protective Order. The parties shall attempt to resolve each challenge in
good faith and must begin the process by conferring directly (in voice to voice dialogue; other
forms of communication are not sufficient) within 14 days of the date of service of notice. In
conferring, the Challenging Party must explain the basis for its belief that the confidentiality
designation was not proper and must give the Designating Party an opportunity to review the
designated material, to reconsider the circumstances, and, if no change in designation is offered,
to explain the basis for the chosen designation. A Challenging Party may proceed to the next
stage of the challenge process by seeking relief from the Court only if it has engaged in this meet
and confer process first or establishes that the Designating Party is unwilling to participate in the
meet and confer process in a timely manner.
7.

ACCESS TO AND USE OF PROTECTED MATERIAL

7.1

Basic Principles. A Receiving Party may use Protected Material that is disclosed

or produced by another Party or by a Non-Party in connection with this case only for
prosecuting, defending, or attempting to settle this arbitration. Such Protected Material may be
disclosed only to the categories of persons and under the conditions described in this Order.
When the action has been terminated, a Receiving Party must comply with the provisions of
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section 12 below (FINAL DISPOSITION). Protected Material must be stored and maintained by
a Receiving Party at a location and in a secure manner that ensures that access is limited to the
persons authorized under this Order.
7.2

Disclosure of Information or Items designated as “CONFIDENTIAL”. Unless

otherwise ordered by the Court or permitted in writing by the Designating Party, a Receiving
Party may disclose any information or item designated “CONFIDENTIAL” only to:
(a)

the Receiving Party;

(b)

the officers, directors, and employees (including House Counsel) of the

Receiving Party to whom disclosure is reasonably necessary for this litigation;
(c)

the Receiving Party’s Outside Counsel of Record in this action, as well as

employees of said Outside Counsel of Record to whom it is reasonably necessary to disclose the
information for this litigation;
(d)

Experts (as defined in this Order) of the Receiving Party to whom

disclosure is reasonably necessary for this litigation and who have signed the “Acknowledgment
and Agreement to Be Bound” (Exhibit A);
(e)

the Court and related personnel;

(f)

court reporters and their staff;

(g)

during their depositions, witnesses in the action to whom disclosure is

reasonably necessary and who have signed the “Acknowledgment and Agreement to Be Bound”
(Exhibit A), unless otherwise agreed by the Designating Party or ordered by the Court; Pages of
transcribed deposition testimony or exhibits to depositions that reveal Protected Material must be
separately bound by the court reporter and may not be disclosed to anyone except as permitted
under this Stipulated Protective Order; and
(h)

the author or recipient of a document containing the information or a

custodian or other person who otherwise possessed or knew the information and who have
signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A).
7.3

Disclosure of Information or Items designated as “CONFIDENTIAL—
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ATTORNEYS’ EYES ONLY”. Unless otherwise ordered by the Court or permitted in writing
by the Designating Party, a Receiving Party may disclose information or items designated
“CONFIDENTIAL—ATTORNEYS’ EYES ONLY” only to the categories of persons set forth
in Paragraph 7.2(c)-(h).
8.

PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED IN

OTHER LITIGATION
If a Party is served with a subpoena or a court order issued in other litigation that compels
disclosure of any information or items designated in this action as “CONFIDENTIAL,” that
Party must:
(a)

promptly notify in writing the Designating Party. Such notification shall

include a copy of the subpoena or court order;
(b)

promptly notify in writing the party who caused the subpoena or order to

issue in the other litigation that some or all of the material covered by the subpoena or order is
subject to this Protective Order. Such notification shall include a copy of this Stipulated
Protective Order; and
(c)

cooperate with respect to all reasonable procedures sought to be pursued

by the Designating Party, whose Protected Material may be affected.
If the Designating Party timely seeks a protective order, the Party served with the
subpoena or court order shall not produce any information designated in this action as
“CONFIDENTIAL”

or

“CONFIDENTIAL—ATTORNEYS’

EYES

ONLY”

before

a

determination by the court from which the subpoena or order issued, unless the Party has
obtained the Designating Party’s permission. The Designating Party shall bear the burden and
expense of seeking protection in that court of its confidential material – and nothing in these
provisions should be construed as authorizing or encouraging a Receiving Party in this action to
disobey a lawful directive from another court.
9.

UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL

If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed Protected
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Material to any person or in any circumstance not authorized under this Stipulated Protective
Order, the Receiving Party must immediately (a) notify in writing the Designating Party of the
unauthorized disclosures, (b) use its best efforts to retrieve all unauthorized copies of the
Protected Material, (c) inform the person or persons to whom unauthorized disclosures were
made of all the terms of this Order, and (d) request such person or persons to execute the
“Acknowledgment and Agreement to Be Bound” that is attached hereto as Exhibit A.
10.

INADVERTENT

PRODUCTION

OF

PRIVILEGED

OR

OTHERWISE

PROTECTED MATERIAL
When a Producing Party gives notice to Receiving Parties that certain inadvertently
produced material is subject to a claim of privilege or other protection, the obligations of the
Receiving Parties are those set forth in Federal Rule of Civil Procedure 26(b)(5)(B). Pursuant to
Federal Rule of Evidence 502(d) and (e), insofar as the parties reach an agreement on the effect
of disclosure of a communication or information covered by the attorney-client privilege or work
product protection, the parties may incorporate their agreement in the stipulated protective order
submitted to the Court.
11.

MISCELLANEOUS

11.1

Right to Further Relief. Nothing in this Order abridges the right of any person to

seek its modification by the Court in the future.
11.2

Right to Assert Other Objections. By stipulating to the entry of this Protective

Order no Party waives any right it otherwise would have to object to disclosing or producing any
information or item on any ground not addressed in this Stipulated Protective Order. Similarly,
no Party waives any right to object on any ground to use in evidence of any of the material
covered by this Protective Order.
11.3

Filing Protected Material. Without written permission from the Designating Party

or a court order secured after appropriate notice to all interested persons, a Party may not file in
the public record in any action any Protected Material.
12.

FINAL DISPOSITION
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Within 60 days after the final disposition of this action, as defined in paragraph 4, each
Receiving Party must return all Protected Material to the Producing Party or destroy such
material. As used in this subdivision, “all Protected Material” includes all copies, abstracts,
compilations, summaries, and any other format reproducing or capturing any of the Protected
Material. Whether the Protected Material is returned or destroyed, the Receiving Party must
submit a written certification to the Producing Party (and, if not the same person or entity, to the
Designating Party) by the 60 day deadline that (1) identifies (by category, where appropriate) all
the Protected Material that was returned or destroyed and (2) affirms that the Receiving Party has
not retained any copies, abstracts, compilations, summaries or any other format reproducing or
capturing any of the Protected Material. Notwithstanding this provision, Counsel are entitled to
retain an archival copy of all pleadings, motion papers, trial, deposition, and hearing transcripts,
legal memoranda, correspondence, deposition and trial exhibits, expert reports, attorney work
product, and consultant and expert work product, even if such materials contain Protected
Material. Any such archival copies that contain or constitute Protected Material remain subject to
this Protective Order as set forth in Section 4 (DURATION).
IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD.
DATED: December 22, 2016 – approved

/s/ Thomas L. Johnson
THOMAS L. JOHNSON
Attorney for Plaintiff

DATED: December 22, 2016 – submitted

/s/ Christopher M. Moody
CHRISTOPHER M. MOODY
Attorney for Defendant

PURSUANT TO STIPULATION, IT IS SO ORDERED.

____________________________________
THE HONORABLE GREGORY J. FOURATT
UNITED STATES MAGISTRATE JUDGE

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EXHIBIT A
ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND
I, _____________________________ [print or type full name], of _________________ [print or
type full address], declare under penalty of perjury that I have read in its entirety and understand
the Stipulation and Protective Order that was issued by the Court on ______ in the case of Marie
Stailey v. Gila Regional Medical Center, Dan Otero and Brian Cunningham; No. 2-16-CV00485-JCH-GRF. I agree to comply with and to be bound by all the terms of this Stipulation and
Protective Order and I understand and acknowledge that failure to so comply could expose me to
sanctions and punishment in the nature of contempt. I solemnly promise that I will not disclose
in any manner any information or item that is subject to this Stipulation and Protective Order to
any person or entity except in strict compliance with the provisions of this Order.
I further agree to submit to the jurisdiction of any appropriate court for the purpose of enforcing
the terms of this Stipulation and Protective Order, even if such enforcement proceedings occur
after termination of this action.
Date: ______________________________________
City and State where sworn and signed: _________________________________
Printed name: _______________________________
Signature: __________________________________

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