Estate of Mustafa R. Holley v. United States of America

Filing 17

CONSENT PROTECTIVE ORDER - Signed by United States Magistrate Judge Robert T. Numbers, II on 3/20/2017. (Briggeman, N.)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
WESTERN DIVISION
NO. 2:16-cv-00066-D

ESTATE OF MUSTAFA R. HOLLEY,
Plaintiff,
v.
UNITED STATES OF AMERICA,
Defendant.

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CONSENT PROTECTIVE ORDER

This is a Federal Tort Claims Act (“FTCA”) action arising out of a motor vehicle accident
between a moped on which Mustafa Holley was a passenger and a postal worker’s vehicle on or
about August 20, 2014. The plaintiff has requested Latrendra D. Hunter’s personnel file in
discovery, and Defendant has agreed to produce, in a redacted format in compliance with Fed. R.
Civ. P., Rule 5.2(a), medical records and documents of prior incidents and observations of
Latrendra D. Hunter, subject to a consent protective order, the disclosure of which is governed by
5 U.S.C. § 552a(b)(11).
As specifically provided by 5 U.S.C. § 552a(b)(11), the disclosure of medical records and
of Latrendra D. Hunter’s documents of prior incidents and observations, can be made pursuant to
the order of a court of competent jurisdiction. To facilitate the production and receipt of medical
records and of Latrendra D. Hunter’s documents of prior incidents and observations in this
proceeding, the parties have consented, through their respective counsel, to the entry of a Consent
Protective Order for the protection of said files once the plaintiff obtains a protective order from
this Court.

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It is hereby ORDERED that:
1. Pursuant to 5 U.S.C. § 552a(b)(11), the defendant shall produce medical records and the
documents of prior incidents and observations of Latrendra D. Hunter in this matter. The
documents to be produced shall be redacted in a format in compliance with Fed. R. Civ. P., Rule
5.2(a).
2. The medical records as well as documents of prior incidents and observations of
Latrendra D. Hunter produced pursuant to this Consent Protective Order shall not be publicly
disclosed, discussed, or disseminated directly or indirectly by any person or entity with knowledge
of this Consent Protective Order except in accordance with the terms of this Consent Protective
Order. The medical records as well as documents of prior incidents and observations of Latrendra
D. Hunter and the information contained therein may be used only for the prosecution or defense
of the above-captioned proceeding and not for any other pending or threatened proceeding, or any
other business or other purpose whatsoever. Except as expressly permitted herein or by further
order of the Court, the medical records as well as documents of prior incidents and observations
of Latrendra D. Hunter and the information contained therein shall be maintained and kept by the
parties and all other person(s) permitted to receive copies of files, or portions thereof, as set out in
paragraph 3 below (“Qualified Persons”), in a fully confidential manner, and shall not be given,
shown, disclosed, disseminated, discussed or described, directly or indirectly, to or with any
person(s) other than those set forth in paragraph 3 hereof (“Qualified Persons”).
3. The following persons (hereinafter called “Qualified Persons”) shall be the only persons
who will be permitted to have access to medical records as well as documents of prior incidents
and observations of Latrendra D. Hunter, and such access shall be permitted subject to the
limitations set forth below:

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(a) Each counsel of record for a party in this case, including outside and in-house
lawyers, and such lawyers’ staff to whom it is necessary that materials be disclosed for
purposes of this proceeding.
(b) Each party, and any current or former partner, member, director, officer,
employee or agent of a party who is requested by that party or any of its attorneys to assist
in the prosecution of the claim or the preparation of the defense or to testify at a hearing in
or trial of this proceeding;
(c) Independent experts or consultants retained by counsel for the purpose of
assisting in this proceeding, including their staff to whom it is necessary that materials be
disclosed for purposes of this proceeding, but only to the extent necessary for such expert
or consultant to perform his assigned tasks in connection with this proceeding;
(d) Mediators and their staffs enlisted by all parties to assist in the resolution of this
matter; and
(e) The Court and its personnel.
4. The parties shall notify all Qualified Persons who receive a copy of the medical records
and documents of prior incidents and observations of Latrendra D. Hunter, or any portion thereof,
in accordance with the foregoing paragraphs of this Consent Protective Order of the obligation to
keep such information confidential. These Qualified Persons shall acknowledge their commitment
to preserve the confidentiality of all information so designated before each of the medical records
as well as documents of prior incidents and observations of Latrendra D. Hunter (“Confidential
Information”) is provided to each Qualified Person. Qualified Persons may not retain copies of
confidential documents or the information therefrom, and such persons must return all copies,
including portions thereof, of the documents subject to this Consent Protective Order to counsel

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of record who provided such documents or information to them when their participation has ended
or their need to have such documents and information ends, whichever comes first.
5. Nothing in this Order waives any objection to discovery or use at hearing or trial.
Nothing herein shall be construed to affect in any way the admissibility of any document,
testimony or other evidence at trial. In the event that any “confidential” document or information
is used in any court proceeding, it shall not lose its confidential status under this Consent Protective
Order through such use, its use shall continue to be subject to the provisions of the Consent
Protective Order that are not inconsistent with other orders by the court regarding use at trial, and
the parties shall take all steps reasonably required to protect the confidentiality of the files subject
to this Consent Protective Order, and all portions thereof, during such use.
6. Nothing herein shall limit a party’s or her/its counsel’s use of its own documents.
7. Before filing any information that has been designated "Confidential Information" with
the Court, or any pleadings, motions or other papers that disclose any such information, counsel
shall confer with counsel for the party that produced the information so designated about how it
should be filed. If the party that produced the information so designated desires that the materials
be filed under seal, then the filing party shall file the materials in accordance with Local Civil Rule
79.2, EDNC, with notice served upon the producing party. The filing of the materials under seal
shall not be binding on the Court, however. Within 10 days of service of such notice, the party
desiring that the materials be maintained under seal shall file with the Court a Motion to Seal and
supporting memorandum of law specifying the interests which would be served by restricting
public access to the information. The party that initially filed the materials need not file any such
Motion to Seal or otherwise defend another party's desire that the materials remain sealed. The
Court will grant the Motion to Seal only after providing adequate notice to the public and

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opportunity for interested parties to object, after carefully weighing the interests advanced by the
movant and those interests favoring public access to judicial documents and records, and upon
finding that the interests advanced by the movant override any common law or constitutional right
of public access which may attach to the information. Documents submitted under seal in
accordance with this paragraph will remain under seal pending the Court's ruling. If the party
desiring that the information be maintained under seal does not timely file a Motion to Seal, then
the materials will be deemed unsealed, without need for order of the Court.
8. Upon the final conclusion of this proceeding, including all appeals:
a. The provisions hereof relating to the access to and use of the documents subject
to the Consent Protective Order and all confidential information therefrom shall continue
to be binding on all persons entitled to access under the terms of this Consent Protective
Order;
b. Plaintiff shall either return to the defendant all originals and copies of medical
records as well as documents of prior incidents and observations of Latrendra D. Hunter,
including hearing exhibits, (including both paper and electronic versions); or destroy all
originals and copies of medical records as well as documents of prior incidents and
observations of Latrendra D. Hunter.

It is so ORDERED this _____ day of _____________, 2017.
Dated: March 20, 2017
______________________________________
Robert T. Numbers, II
__________________________________
United States Magistrate Judge
JAMES C. DEVER, III
Chief United States District Judge

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