Howard v. College of the Albemarle et al

Filing 45

Qualified PROTECTIVE ORDER governing Plaintiff's Medical Records. Signed by Magistrate Judge Robert T. Numbers, II on 8/16/2016. Sent to Robert Howard at 309 N Estes Drive Chapel Hill, NC 27514 via US Mail. (Briggeman, N.)

UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
NORTHERN DIVISION
No. 2:15-CV-00039-D
Robert Howard,
Plaintiff,
v.

Qualified Protective Order Governing
Plaintiff’s Medical Records

College of the Albemarle & Kandi
Deitemeyer,
Defendants.

The Parties expect to produce, either during discovery or through agreement, certain
documents or information considered to be protected health information. Defendants desire to
protect the confidential nature of these documents or information through a qualified protective
order governing Plaintiff’s medical records. Entering this Order will facilitate and expedite the
discovery process (to include information discovery and production of documents by agreement)
and to prevent the Court from having to conduct hearings on each document or category of
documents sought to be protected.
The Court finds good cause for a qualified protective order to protect protected health
information pursuant to Rule 26(c) of the Federal Rules of Civil Procedure. THEREFORE, IT IS
ORDERED that the Parties and any other third-parties involved in discovery in this matter abide
by the following terms in handling the production and disclosure of confidential information:
1.

Disclosure of Protected Health Information.
a.

The current parties (and their attorneys) and any future parties (and their

attorneys) to the above-captioned matter are hereby authorized to receive, subpoena, and

transmit “protected health information” (“PHI”) to the extent and subject to the
conditions outlined herein.
b.

For the purposes of this Protective Order Governing Plaintiff’s Medical

Records, “protected health information” or “PHI” shall have the same scope and
definition as set forth in 45 C.F.R. 160.103 and 160.501. Without limiting the generality
of the foregoing, “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.
c.

All “covered entities” (as defined by 45 C.F.R. 160.103) are hereby

authorized to disclose PHI pertaining to Plaintiff to all attorneys now of record in this
matter or who may become of record in the future of this litigation.
d.

To the extent that any of Plaintiff’s protected health information in the

possession of a covered entity concern or deal with treatment rendered to Plaintiff for
alcohol abuse (42 C.F.R. § 2.2) or drug abuse (42 C.F.R. § 2.1), then pursuant to 42
C.F.R. § 2.61, those covered entities are required to produce any such record only upon
the proper service of a valid subpoena on them compelling production of such records,
consistent with the terms of this Order in addition to the service of this Order. If such
records exist, the covered entities must inform Defendants’ counsel of such within 5 days
of the covered entity’s actual receipt of a copy of this Order.

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e.

The information revealed pursuant to this Order shall be used by the

parties solely to prepare their prosecution or defense of this case and for no other
purpose.
f.

This Order shall apply to all of Plaintiff’s protected health information

produced in this case and the provisions regarding the disclosure or use of Plaintiff’s
protected health information shall remain in effect after this action has been concluded.
g.

The parties and their attorneys shall be permitted to use or disclose the

PHI of Plaintiff to the parties; their attorneys of record; the attorneys’ employees or
agents (i.e., attorneys, support staff, agents, and consultants) specifically assigned to
assist the attorneys in this case; the parties’ insurers, experts and consultants; Plaintiff’s
treating healthcare providers; court personnel; court reporters; copy services; trial
consultants; jurors; venire members; and other entities involved in the litigation process.
However, the parties are not permitted to disclose the PHI of Plaintiff to lay witnesses.
h.

Prior to disclosing Plaintiff’s protected health information to a person

involved in this litigation, counsel shall inform each such person that Plaintiff’s protected
health information may not be used or disclosed for any purposes other than this
litigation. Counsel shall obtain the express agreement of each such person to abide by the
terms of this Order and shall, if requested by Plaintiff, provide proof of such agreement
using Exhibit A, attached hereto. Counsel shall also take all other reasonable steps to
ensure that persons receiving Plaintiff’s protected health information do not use or
disclose such information for any purpose other than this litigation.

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i.

The admissibility of Plaintiff’s protected health information at trial shall

be determined by the Court.
j.

At the conclusion of this action as to any Defendants (which shall be

defined as the point at which final orders disposing of the entire case as to any
Defendants have been entered, or the time at which all trial and appellate proceedings
have been exhausted as to any Defendants), that Defendant and any person or entity in
possession of PHI received from that Defendant pursuant to paragraph 1.e of this Order
shall either return to the covered entity any and all copies of PHI pertaining to Plaintiff’s
medical records or destroy any and all copies of PHI pertaining to Plaintiff’s medical
records except that counsel are not required to secure the return or destruction of
protected health information submitted to the court.
h.

Nothing in this Order authorizes Plaintiff’s or Defendants’ counsel to obtain

medical records or information through means other than formal discovery requests,
subpoenas, and depositions, pursuant to a patient authorization or through attorney-client
communications. Likewise, nothing in this Order relieves any party from complying with
the requirements of the North Carolina General Statutes governing the release of
privileged patient medical information, including N.C. Gen. Stat. § 130A, et seq. and
N.C. Gen. Stat. § 8-53 or state and federal law that protects certain drug and alcohol or
AIDS treatment records.

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2.

Designation of Protected Health Information.
a. If Plaintiff’s protected health information is in deposition, hearing, or trial, such
exhibits shall be marked as “CONFIDENTIAL – Protective Order, 2:15-CVB00039-D.
b. Before filing any information that has been designated as Confidential Information
with the Court, or any pleadings, motions, or other papers that disclose any such
information, the parties shall confer with the other, through counsel, if applicable, for
the party that produced the information designated “CONFIDENTIAL” about how it
should be filed. If the party that produced the information designated as Confidential
Information desires that the materials be filed under seal, then the filing party,
whether pro se or represented, shall file the materials in accordance with Local Civil
Rule 79.2, E.D.N.C. A copy of the Local Civil Rules may be found at
http://www.nced.uscourts.gov/rules/Default.aspx.

c. If a party to this Order who is to be a recipient of any information designated as
confidential and submitted in accordance with paragraph 2 disagrees with respect to
such a designation, in full or in part, it shall notify the designating party in writing,
and they will thereupon confer as to the status of the subject information proffered
within the context of this Order. If prior to, or at the time of such a conference, the
designating party withdraws its designation of such information as being subject to
this Order, but nonetheless submits such information for purposes of this litigation,
such party shall express the withdrawal, in writing, and serve such withdrawal upon
all parties and the Court. If the recipient and designator are unable to concur upon the
status of the subject information submitted as confidential personnel information with

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ten days from the date of notification of such disagreement, any party to this Order
may raise the issue of the designation of such status to the Court, which shall
consider the issue.

3.

Modification Permitted. Nothing in this Order shall prevent any party from

seeking modification of this Order or from objecting to discovery that it believes to be otherwise
improper. If parties agree to a modification, they must file a joint motion to modify within five
days of the agreement. Any motion for modification will be deemed immediately pending.

Dated: August 16, 2016
ROBERT T. NUMBERS, II
UNITED STATES MAGISTRATE JUDGE

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EXHIBIT A

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UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
NORTHERN DIVISION
No. 2:15-CV-00039-D
Robert Howard,
Plaintiff,
v.

Qualified Protective Order Governing
Plaintiff’s Medical Records

College of the Albemarle & Kandi
Deitemeyer,
Defendants.

The undersigned hereby acknowledges that he/she has read the Qualified Protective
Order Governing Plaintiff’s Medical Records entered in this action (a copy of which is attached
hereto) and that he/she agrees to be bound by the terms of the Qualified Protective Order
Governing Plaintiff’s Medical Records and submits to the jurisdiction of the United States
District Court for the Eastern District of North Carolina for all matters related to the
interpretation and enforcement of the terms of this agreement.
The undersigned understands the Order obligates him/her to use documents designated
Confidential Information solely for purposes related to the above-captioned action and not to
disclose any such Confidential Information to any other person, firm or concern.

Signature

Date

Printed Name, Job Title and Address

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