Margaret McGuinn v. J.L Gray Company, Inc.
Filing
52
ORDER by Magistrate Judge Kevin R. Sweazea granting 51 Joint Motion for Protective Order. (atc)
UNITED STATES DISTRICT COURT
DISTRICT OF NEW MEXICO
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Plaintiff-Relator,
)
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v.
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THE J.L. GRAY COMPANY; LOGAN
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ESTATES 2017, LLLP; PARKSIDE
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MANOR LIMITED PARTNERSHIP; AND )
JLG PROPERTIES LLC,
)
UNITED STATES OF AMERICA, ex rel.
MARGARET McGUINN,
Case No. 2:20-cv-00031 KG-KRS
Defendants.
PROTECTIVE ORDER
The Parties agree that during the course of discovery it may be necessary to disclose
certain confidential information relating to the subject matter of this action. They agree that
certain categories of such information should be treated as confidential, protected from
disclosure outside this litigation, and used only for purposes of prosecuting or defending this
action and any appeals. The Parties jointly request entry of this proposed Protective Order to
limit the disclosure, dissemination, and use of certain identified categories of confidential
information.
The Parties assert in support of their request that protection of the identified categories
of confidential information is necessary to protect both the Parties and other persons from
annoyance and embarrassment. Discovery in this case may seek private information concerning
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both Parties and nonparties, including, for example, but not limited to, private documents
regarding Plaintiff-Relator’s employment, Defendants’ financial information, architectural
blueprints, confidential matters concerning Defendants’ trade secrets and any other proprietary
and confidential business information, and other documents and records held by the federal
government/USDA that are deemed confidential.
For good cause shown under Fed. R. Civ. P. 26(c), the Court grants the Parties’ joint
request and hereby enters the following Protective Order:
1.
Scope. All documents and materials produced in the course of discovery of this
case, including initial disclosures, responses to discovery requests, all deposition testimony and
exhibits, information received in response to third-party subpoenas, and information derived
directly therefrom (hereinafter collectively “documents”), are subject to this Order concerning
Confidential Information as set forth below. As there is a presumption in favor of open and
public judicial proceedings in the federal courts, this Order will be strictly construed in favor of
public disclosure and open proceedings wherever possible.
2.
Definition of Confidential Information. As used in this Order, “Confidential
Information” is defined as information that the producing party designates in good faith has been
previously maintained in a confidential manner and should be protected from disclosure and use
outside the litigation because its disclosure and use is restricted by statute or could potentially
cause harm to the interests of disclosing party or nonparties. For purposes of this Order, the
Parties will limit their designation of “Confidential Information” to the following categories of
information or documents:
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The non-public, confidential information of Defendants,
including: financial and/or tax records and architectural
blueprints. Confidential personnel and/or human resource files of
Plaintiff-Relator. Any health-related documents protected by
HIPAA. Documents designated as confidential by the federal
government/USDA.
Information or documents that are available to the public may not be designated as Confidential
Information.
3.
Form and Timing of Designation. The producing party may designate
documents as containing Confidential Information and therefore subject to protection under this
Order by marking or placing the words “CONFIDENTIAL - SUBJECT TO PROTECTIVE
ORDER” (hereinafter “the marking”) on the document and on all copies in a manner that will
not interfere with the legibility of the document. As used in this Order, “copies” include
electronic images, duplicates, extracts, summaries, or descriptions that contain the Confidential
Information. The marking will be applied prior to or at the time the documents are produced or
disclosed. Applying the marking to a document does not mean that the document has any status
or protection by statute or otherwise except to the extent and for the purposes of this Order.
Copies that are made of any designated documents must also bear the marking, except that
indices, electronic databases, or lists of documents that do not contain substantial portions or
images of the text of marked documents and do not otherwise disclose the substance of the
Confidential Information are not required to be marked. By marking a designated document as
confidential, the designating attorney or party appearing pro se thereby certifies that the
document contains Confidential Information as defined in this Order.
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4.
Inadvertent Failure to Designate. Inadvertent failure to designate any
document or material as containing Confidential Information will not constitute a waiver of an
otherwise valid claim of confidentiality pursuant to this Order, so long as a claim of
confidentiality is asserted within fourteen (14) calendar days after discovery of the inadvertent
failure.
5.
Depositions. Deposition testimony will be deemed confidential only if
designated as such when the deposition is taken or within a reasonable time period after receipt
of the deposition transcript. Such designation must be specific as to the portions of the transcript
and/or any exhibits to be protected.
6.
Protection of Confidential Material.
(a)
General Protections. Designated Confidential Information must be used
or disclosed solely for purposes of prosecuting or defending this lawsuit, including any appeals
or any other related legal proceeding brought by one of the Parties to this litigation.
(b)
Who May View Designated Confidential Information. Except with the
prior written consent of the designating party or prior order of the Court, designated Confidential
Information may only be disclosed to the following persons:
(1)
The Parties to this litigation, including any employees, agents, and
representatives of the Parties;
(2)
Counsel for the Parties and employees and agents of counsel;
(3)
The Court and court personnel, including any special master
appointed by the Court, and members of the jury;
(4)
Court reporters, recorders, and videographers engaged for
depositions;
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(5)
Any mediator appointed by the Court or jointly selected by the
Parties;
(6)
Any expert witness, outside consultant, or investigator retained
specifically in connection with this litigation, but only after such
persons have completed the certification contained in Appendix
A, Acknowledgment and Agreement to be Bound;
(7)
Any potential, anticipated, or actual fact witness and his or her
counsel, but only to the extent such confidential documents or
information will assist the witness in recalling, relating, or
explaining facts or in testifying, and only after such persons have
completed the certification contained in Appendix A;
(8)
The author or recipient of the document (not including a person
who received the document in the course of the litigation);
(9)
Independent providers of document reproduction, electronic
discovery, or other litigation services retained or employed
specifically in connection with this litigation; and
(10)
Other persons only upon consent of the producing party and on
such conditions as the Parties may agree.
(c)
Control of Documents. The Parties must take reasonable efforts to
prevent unauthorized or inadvertent disclosure of documents designated as containing
Confidential Information pursuant to the terms of this Order. Counsel for the Parties must
maintain a record of those persons, including employees of counsel, who have reviewed or been
given access to the documents along with the originals of the forms signed by those persons
acknowledging their obligations under this Order.
7.
Filing of Confidential Information. In the event a party seeks to file any
document containing Confidential Information subject to protection under this Order with the
Court, that party must take appropriate action to ensure that the document receives proper
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protection from public disclosure including: (a) filing a redacted document with the consent of
the party who designated the document as confidential; (b) where appropriate (e.g., in relation
to discovery and evidentiary motions), submitting the document solely for in camera review; or
(c) when the preceding measures are inadequate, seeking permission to file the document under
seal by filing a motion for leave to file under seal.
Nothing in this Order will be construed as a prior directive to allow any document to be
filed under seal. The Parties understand that the requested documents may be filed under seal
only with the permission of the Court after proper motion. If the motion is granted and the
requesting party is permitted to file the requested documents under seal, only counsel of record
and unrepresented parties will have access to the sealed documents. Pro hac vice attorneys must
obtain sealed documents from local counsel.
8.
Challenges to a Confidential Designation. The designation of any material or
document as Confidential Information is subject to challenge by any party. Before filing any
motion or objection to a confidential designation, the objecting party must meet and confer in
good faith to resolve the objection informally without judicial intervention. A party that elects
to challenge a confidentiality designation may file and serve a motion that identifies the
challenged material and sets forth in detail the basis for the challenge. The burden of proving the
necessity of a confidentiality designation remains with the party asserting confidentiality. Until
the Court rules on the challenge, all parties must continue to treat the materials as Confidential
Information under the terms of this Order.
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9.
Use of Confidential Documents or Information at Trial or Hearing. Nothing
in this Order will be construed to affect the use of any document, material, or information at any
trial or hearing. A party that intends to present or that anticipates that another party may present
Confidential Information at a hearing or trial must bring that issue to the attention of the Court
and the other parties without disclosing the Confidential Information. The Court may thereafter
make such orders as are necessary to govern the use of such documents or information at the
hearing or trial.
10.
Obligations on Conclusion of Litigation.
(a)
Order Remains in Effect. Unless otherwise agreed or ordered, all
provisions of this Order will remain in effect and continue to be binding after conclusion of the
litigation.
(b)
Return of Confidential Documents. Within thirty (30) calendar days
after this litigation concludes by settlement, final judgment, or final order, including all appeals,
all documents designated as containing Confidential Information, including copies as defined
above, must be returned to the party who previously produced the document unless: (1) the
document has been offered into evidence or filed without restriction as to disclosure; (2) the
Parties agree to destruction of the document to the extent practicable in lieu of return; or (3) as
to documents bearing the notations, summations, or other mental impressions of the receiving
party, that party elects to destroy the documents and certifies to the producing party that it has
done so.
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(c)
Retention of Work Product. Notwithstanding the above requirements
to return or destroy documents, counsel may retain attorney work product, including an index
which refers or relates to designated Confidential Information, so long as that work product does
not duplicate verbatim substantial portions of the text or images of designated documents. This
work product will continue to be confidential under this Order. An attorney may use his or her
own work product in subsequent litigation provided that its use does not disclose Confidential
Information.
11.
Order Subject to Modification. This Order is subject to modification by the
Court on its own motion or on motion of any party or any other person with standing concerning
the subject matter. The Order must not, however, be modified until the Parties have been given
notice and an opportunity to be heard on the proposed modification.
12.
No Prior Judicial Determination. This Order is entered based on the
representations and agreements of the Parties and for the purpose of facilitating discovery.
Nothing in this Order will be construed or presented as a judicial determination that any
document or material designated as Confidential Information by counsel or the Parties is entitled
to protection under Fed. R. Civ. P. 26(c) or otherwise until such time as the Court may rule on
a specific document or issue.
13.
Persons Bound by Protective Order. This Order will take effect when entered
and is binding upon all counsel of record and their law firms, the Parties, and persons made
subject to this Order by its terms.
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14.
Jurisdiction. The Court’s jurisdiction to enforce the provisions of this Order will
terminate on the final disposition of this case. But a party may file a motion to seek leave to
reopen the case to enforce the provisions of this Order.
15.
Applicability to Parties Later Joined. If additional persons or entities become
parties to this lawsuit, they must not be given access to any Confidential Information until they
execute and file with the Court their written agreement to be bound by the provisions of this
Order.
16.
Protections Extended to Third-Parties’ Confidential Information. The
Parties agree to extend the provisions of this Protective Order to Confidential Information
produced in this case by third parties, if timely requested by the third party.
17.
Confidential Information Subpoenaed or Ordered Produced in Other
Litigation. If a receiving party is served with a subpoena or an order issued in other litigation that
would compel disclosure of any material or document designated in this action as Confidential
Information, the receiving party must so notify the designating party, in writing, immediately
and in no event more than three business days after receiving the subpoena or order. Such
notification must include a copy of the subpoena or court order.
The receiving party also must immediately inform, 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 the subject of this Order. In addition, the receiving party must deliver a copy
of this Order promptly to the party in the other action that caused the subpoena to issue.
The purpose of imposing these duties is to alert the interested persons to the existence
of this Order and to afford the designating party in this case an opportunity to try to protect its
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Confidential Information in the court from which the subpoena or order issued. The designating
party bears the burden and the expense of seeking protection in that court of its Confidential
Information, 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. The obligations
set forth in this paragraph remain in effect while the party has in its possession, custody, or
control Confidential Information by the other party to this case.
18.
Inadvertent Disclosure of Confidential Information Covered by Attorney-
Client Privilege or Work Product. The inadvertent disclosure or production of any
information or document that is subject to an objection on the basis of attorney-client privilege
or work-product protection, including, but not limited, to information or documents that may be
considered Confidential Information under the Protective Order, will not be deemed to waive a
party’s claim to its privileged or protected nature or estop that party or the privilege holder from
designating the information or document as attorney-client privileged or subject to the work
product doctrine at a later date. Any party receiving any such information or document must
return it upon request to the producing party. Upon receiving such a request as to specific
information or documents, the receiving party must return the information or documents to the
producing party as soon as possible, but no later than within seven (7) calendar days, regardless
of whether the receiving party agrees with the claim of privilege and/or work-product protection.
Disclosure of the information or document by either party prior to such later designation will
not be deemed a violation of the provisions of this Order. The provisions of this section
constitute an order pursuant to Rules 502(d) and (e) of the Federal Rules of Evidence.
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IT IS SO ORDERED.
__________________________________
KEVIN R. SWEAZEA
UNITED STAGES MAGISTRATE JUDGE
APPENDIX A
ACKNOWLEDGMENT AND
AGREEMENT TO BE BOUND
The undersigned hereby acknowledges that he/she has read the Protective Order dated
July 14, 2021, in the case captioned, United States of America, ex. rel. Margaret McGuinn v.
J.L. Gray Company, Inc., et al., Case No. 2:20-CV-00031-KG-KRS, and attached hereto,
understands the terms thereof, and agrees to be bound by its terms. The undersigned submits to
the jurisdiction of the United States District Court for the District of New Mexico in matters
relating to this Protective Order and understands that the terms of the Protective Order obligate
him/her to use materials designated as Confidential Information in accordance with the Order
solely for the purposes of the above-captioned action and not to disclose any such Confidential
Information to any other person, firm, or concern, except in accordance with the provisions of
the Protective Order.
The undersigned acknowledges that violation of the Protective Order may result in
penalties for contempt of court.
Name:
___________________________________
Job Title:
___________________________________
Employer:
___________________________________
Business Address:
___________________________________
___________________________________
Date: ________________
___________________________________
Signature
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