C.H., a minor, et al v. UNITED STATES OF AMERICA

Filing 12

SCHEDULING ORDER AND PROTECTIVE ORDER: Discovery due by 7/30/2012 - Motions due by 8/31/2012 - Bench Trial set for the 1/2/2013 term at 10:00 AM in Wilmington - Courtroom 1 before Senior Judge James C. Fox. Signed by US Magistrate Judge James E. Gates on 2/2/2012. (Attachments: # 1 Consent to US Magistrate Judge Form) (Edwards, S.)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
WESTERN DIVISION
5:11-CV-364-F
C.H., a minor, LINDA A. HUGHES and
ROBERT W. HUGHES,
Plaintiffs,
v.
UNITED STATES OF AMERICA
Defendant.

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SCHEDULING ORDER
AND
PROTECTIVE ORDER

The court has considered the parties’ Joint Proposed Discovery Plan (D.E. 11)
(“Discovery Plan”) filed 28 December 2011 and annexed hereto. The Discovery Plan contains
both a proposed scheduling order and a proposed protective order. Each will be addressed in
turn.
SCHEDULING ORDER
(pp. 1-8, 12-14)
The proposed scheduling order is APPROVED, subject to the changes reflected herein.
Critical deadlines are as follows:
1.

All discovery shall be commenced in time to be completed by 30 July 2012.

2.

Reports from retained experts shall be served by plaintiffs no later than 30 March

2012 and by defendant no later than 18 May 2012. Plaintiffs’ rebuttal expert reports, if any, shall
be served within 30 days after service of defendant’s expert reports. Defendant’s rebuttal
reports, if any, shall be served no later than 18 May 2012.
3.

Any potentially dispositive motions shall be filed by 31 August 2012.

4.

This action will be calendared for trial before Senior U.S. District Judge James C.

Fox at his 2 January 2013 civil term in Wilmington, North Carolina. A trial calendar indicating
the order in which cases will be called for trial at that term will be distributed two months
beforehand. At the same time, a final pre-trial conference will be scheduled approximately two
weeks before the trial.
The remaining portions of the proposed scheduling order not modified herein are
ADOPTED as the court’s Order.
Supplementation under Fed. R. Civ. P. Rule 26(e) must be made promptly after receipt of
the information by the supplementing party, but in no event later than 1 May 2012. In addition,
motions to join additional parties and to amend pleadings must be filed by plaintiffs no later than
17 February 2012 and by defendant no later than 2 March 2012. Nothing in this Order shall
relieve any party of any requirement to obtain court approval prior to joining a party or amending
its pleadings. Any motion to amend filed after the deadlines set in this Order must meet the
standards of Fed. R. Civ. P. 15 and 16.
Counsel are cautioned not to be dilatory in pursuing discovery. Motions for extension of
discovery deadlines are not favored if they would require a continuance of the trial.
Any party that makes an appearance after this Order has been entered shall be required to
confer with opposing counsel and make disclosures pursuant to Fed. R. Civ. P. 26(a)(1) within
21 days after the party’s appearance. Such party shall be bound by the terms of this Order unless
the party moves for and obtains amendment of this Order by the court.
This case is not subject to mandatory mediation, pursuant to Local Civil Rule 101.1a(b),
E.D.N.C.

The parties are reminded that on request the court will assist with settlement

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IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF NORTH CAROLINA

WESTERN DIVISION

5:11-MJ-01359-JG-l

negotiations or other alternative dispute resolution, such as a court-hosted settlement conference
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possibilities. In their Discovery Plan, the parties indicate their intention to participate in a
v.
) ORDER DENYING APPOINTMENT
UNITED STATES OF AMERICA,

or summary jury trial, by making available a judge other than the trial judge to explore these

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OF COUNSEL
private mediation with Donald Beskind, Esq. and if this does not resolve the case, to request a
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(SEALED)
CHRISTOPHER YORK MAKEPEACE,
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court-hosted settlement conference prior to the close of discovery. If that is their intention, they

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Defendant.
shall timely file an appropriate motion for such relief.

This case comes before the court on the issue ofappointment ofcounsel for Christopher York
PROTECTIVE ORDER

(pp. 8 -11)
Makepeace ("defendant"). Defendant has submitted a Financial Affidavit for purposes of such

The court hereby APPROVES and ADOPTS the terms of the parties’ proposed protective
appointment (CJA Form 23). Defendant has failed to complete the "Obligations and Debts" section

order. It further reminds the parties that the provisions of Local Civil Rule 79.2, E.D.N.C.
of the form and has failed to enter the date on which he executed the form. Without a complete

control filing of sealed documents. Any person submitting documents under seal pursuant to this
application, the court is not able to determine whether defendant is entitled to appointment of

Protective Order shall submit with them a motion to seal and shall otherwise comply with Local
counsel. The appointment of counsel is therefore DENIED without prejudice to reconsideration of

Civil Rule 79.2. The motion shall be accompanied by a supporting memorandum showing that
such appointment after the filing of a new Financial Affidavit which contains the missing

the documents may properly be sealed. See, e.g., Stone v. University of Maryland Medical
information.

System Corp., 855 F.2d 178, 180-81 (4th Cir. 1988).
This order shall be filed under seal.

SO ORDERED, this the 2nd day of February 2012.
SO ORDERED, this 23rd day of May 2011.

_________________________
James E. Gates
United States Magistrate Judge

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UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
WESTERN DIVISION
NO. 5:11-cv-364-F
C.H., a minor, LINDA A. HUGHES
and ROBERT W. HUGHES,
Plaintiffs,
v.
UNITED STATES OF AMERICA,
Defendant.

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JOINT PROPOSED DISCOVERY
PLAN

Pursuant to Federal Rule of Civil Procedure, Rule 26(f), a
meeting was held on December 16, 2011, by telephone and was
attended by:
For Plaintiffs: William W. Plyler and Jason A. Miller; work
hours: 8:30 a.m. to 5:00 p.m.; contact information in signature
block.
For Defendant: Edward D. Gray, Assistant United States
Attorney; work hours: 8:30 a.m. to 5:00 p.m.; contact information
in signature block.
This claim alleges an injury to a minor as a result of the
negligence of agents of the United States under the Federal Tort
Claims Act (FTCA).
During the Rule 26(f) meeting, the parties agreed to and
thereby propose to the Court the following parameters for
discovery in this case:

I.

RULE 26(a)(1) - MANDATORY INITIAL DISCLOSURES
The parties agree that the Rule 26(a)(1) mandatory initial

disclosures will be served on or before January 30, 2012.
A.

Scope of Discovery

Discovery will be needed by both parties on liability and
damages.
B.

Discovery Deadlines

Discovery will close on July 30, 2012.
All discovery which requires a response by opposing counsel
shall be served by June 29, 2012 so as to allow the respondent
sufficient time to answer prior to the time when discovery is
scheduled to be completed.
C.

Local Civil Rule 26.1(b).

Expert Witnesses

Reports from retained experts pursuant to Rule 26(a)(2) are
due from:
1.

Plaintiffs: by March 30, 2012; and

2.

Defendant: by May 18, 2012.

3.

Rebuttal: Rebuttal expert witnesses to Rule 26(a)(2)(B)
witnesses shall be served within thirty (30) days after
the opposing party’s disclosure.

However, Defendant's

rebuttal to Plaintiffs' experts shall not be due until
the later of thirty (30) days after Plaintiffs' service
of expert reports or Defendant's deadline for service
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of expert reports.
D.

Interrogatories

Interrogatories shall be limited to a maximum of 50 (fifty)
interrogatories by each party to any other party.
due thirty (30) days after service.

Responses are

Per Local Civil Rule 33.1,

at the time of service of the discovery request or as soon
thereafter as is practicable, the parties will serve a copy of
the interrogatories in a form that is electronically fillable,
either Word or WordPerfect, to facilitate responses in addition
to placing the discovery requests in the mail.
E.

Requests for Production

In accord with the Federal Rules of Civil Procedure, the
parties do not limit the number of requests for production of
documents.

Per Local Civil Rule 34.1, at the time of service of

the discovery request or as soon thereafter as is practicable,
the parties will serve a copy of the requests for production of
documents in a form that is electronically fillable, either Word
or WordPerfect, to facilitate responses, in addition to placing
the discovery requests in the mail.
F.

Requests for Admissions

Requests for Admissions shall not be served by Plaintiffs
until after January 31, 2012 and by Defendant until after January
15, 2012. Per Local Civil Rule 36.1, at the time of service of
the discovery request or as soon thereafter as is practicable,
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the parties will serve a copy of the requests for admissions in a
form that is electronically fillable, either Word or WordPerfect,
to facilitate responses, in addition to placing the discovery
requests in the mail.
G.

Depositions

Maximum of 10 depositions by Plaintiffs and 10 by Defendant.
Each deposition is limited to a maximum of 7 hours unless
extended by agreement of the parties or by order of the Court.
Absent unforeseen circumstances, all deponents shall read
and sign the deposition transcript within forty-five (45) days
after receiving a copy of the deposition transcript unless
otherwise agreed by the parties.
With prior consultation with opposing counsel to accommodate
the deponent’s schedule, pursuant to Rule 31, the parties may
serve written deposition questions to Rule 26(a)(2) designated
expert(s) and/or to treating medical provider(s) who have not
been deposed previously in this case, not to exceed fifty (50)
questions, to be served at least thirty (30) days prior to the
close of discovery.

Responses are due thirty-three days after

service.
The party serving such questions shall bear the cost of the
deponent's time in responding to said questions, including
medical providers no longer employed by the United States.
The deponent may draft his/her responses without being

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administered an oath to tell the truth and does not have to draft
his/her responses in the presence of an officer capable of
administering an oath as long as the deponent executes and serves
with his responses an affidavit certifying that he or she was the
sole author of the responses; that he or she drafted the
responses without consultation with anyone, including counsel in
the case;1 the deponent executes the affidavit under penalty of
perjury pursuant to 28 U.S.C. § 1746, and the deponent certifies
that he or she is placing the responses in a sealed envelope
which is addressed to and is mailed directly to the counsel for
the party which served the Rule 31 deposition questions.
The parties agree that opposing counsel will not assist in
any way the deponent in drafting his/her responses and opposing
counsel will not edit the deponent’s responses, either while in
the process of being drafted or afterwards.
H.

Supplementation

Supplementations under Rule 26(e) due within 30 days of
receipt, but in no event after May 1, 2012.
I.

Electronically Stored Information (ESI)

Disclosure or discovery of electronically stored information
should be handled as follows:
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The deponent may refer to medical texts, scientific
literature, studies, the medical records, his/her notes, and all
materials produced in the case, including initial disclosures,
pleadings, discovery responses, deposition transcripts and all
expert reports.
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The parties agree that disclosure or discovery of
electronically stored information will be minimal in
this case. But, the parties agree they will take
appropriate steps to preserve electronic data and will
notify all other individuals who may have
electronically stored information relevant to the
matters set forth in the Complaint and Answer of their
obligation to preserve electronic data.
In the event that disclosure or discovery of electronically
stored information is necessary, the disclosure or discovery will
be limited as follows:
The parties agree that the scope of relevant electronic
material will be limited to the claims set forth in the
Answer and Complaint and that any production will
extend only to presently existing electronic data. The
parties agree to produce any and all electronically
stored information relevant to the discovery requests
to the extent the information is not privileged or
subject to other objection. Any electronically stored
information should be produced in native file format
and/or read-only media such as CD-ROMs.
J.

Privilege and Confidential Information

The parties have not yet agreed to an order regarding claims
of privilege or of protection as trial preparation material
asserted after production.

The parties agree to be reasonable

and comply with 26(b)(5) of the Federal Rules of Civil Procedure
should the issues of privilege and/or protection as trial
preparation material arise.
Should the need arise, at the appropriate time, the parties
may submit to the Court a proposed protective order for the
protection of confidential information.
K.

HIPAA Compliance

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The above-captioned action is filed pursuant to the Federal
Tort Claims Act (FTCA) and alleges injuries to the Plaintiffs.
See Docket Entry # 1.

Plaintiffs, therefore, have placed in

issue Plaintiffs’ mental, physical,

and emotional health both

prior to and after the period of alleged negligence to through
the date of trial.

In order for Plaintiffs to support and

Defendant to defend against Plaintiffs’ claims, discovery will be
necessary by both partes regarding all aspects of Plaintiffs’
past and present medical and mental health conditions.
the health care providers are not known at this time.

All of
The

identity of health care providers will be developed during
discovery in this case.
Therefore, the parties agree to the release by all medical
and mental health care providers of all medical records,
including treatment for mental health and substance abuse, and
all HIPAA protected health care information in their possession
for the care and treatment of Plaintiffs for the time period from
January 2009 through November 2012.

42 U.S.C. § 290dd-2(b)(1);

42 C.F.R. §§ 2.32; 2.64 (e)(2).
Some or all of the medical records will be given to expert
witnesses for their review and the formation of their opinions.
Accordingly, Plaintiffs and Defendant consent to the full release
and utilization of any and all medical records in this
litigation, including utilization by expert witnesses, fact

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witnesses and consultants.
§§ 2.32; 2.64 (e)(2).

42 U.S.C. § 290dd-2(b)(1); 42 C.F.R.

This consent for release of medical

records shall terminate upon the resolution of this case or by
subsequent stipulation or Court Order.

42 C.F.R. §§ 2.31(a)(9);

2.64(e)(3).
PROTECTIVE ORDER
The parties agree to abide by the protective order
provisions of HIPAA sections 164.512(e)(1)(v)(A) and
164.512(e)(1)(v)(B) and the regulations regarding disclosure of
mental health and substance abuse records sections 2.31(a) and
2.64(e).

The parties agree not to use or disclose the medical

records (protected health information), including mental health
and substance abuse treatment records, for any purpose other than
prosecuting or defending the above-captioned suit.

45 C.F.R.

§164.512(e)(1)(v)(A); 42 C.F.R. §§ 2.31(a); 2.32;2.63(a)(3);
2.64(e0.

The parties agree to return the records to the health

care provider who/which disclosed the records or to destroy the
records (protected health information), including all copies, at
the end of litigation.

45 C.F.R. § 164.512(e)(1)(v)(B); 42

C.F.R. §§ 2.31(1)(8) and (9).
Should the Court not include in the Court's Scheduling Order
the language requested in paragraph II (L), below, or not enter a
separate Order for release of medical records pursuant to 45
C.F.R. § 164.512(e)(1)(i) and 42 C.F.R. §§ 2.64 and 2.63, the

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parties hereby agree that this Joint Proposed Discovery Plan
filed with the Court satisfies all of the written notice to the
patient and time for objection requirements of 45 C.F.R. §
164.512(e)(1)(ii)(A) and (e)(1)(iii) and 42 C.F.R. § 2.64(b)
sufficient to provide all medical and mental health providers
with satisfactory assurances necessary prior to producing medical
and/or mental health records, including mental health and
substance abuse treatment records, in response to a subpoena
duces tecum.

Plaintiffs and counsel for Plaintiffs do not object

to the production/disclosure of medical and mental health
records, including mental health and substance abuse treatment
records, for the time period January 2009 through November 2012
to Plaintiffs’ counsel William W. Plyler and/or Jason A. Miller,
and to the United States Attorney's Office for the Eastern
District of North Carolina pursuant to 45 C.F.R. §
164.512(e)(1)(ii)(A).
Furthermore, pursuant to 42 U.S.C. § 290dd-2, Plaintiffs
hereby specifically consent, through signature below of counsel
retained to represent Plaintiffs in the above-captioned suit,
William W. Plyler and/or Jason A. Miller, to the release of any
and all medical and mental health records, including mental
health and substance abuse treatment, for the time period January
2009 to through November 2012, in the health care providers'
possession to William W. Plyler and/or Jason A. Miller and to the

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United States Attorney's Office for the Eastern District of North
Carolina, which medical and mental health records may contain
confidential information and/or protected health care information
regarding the diagnosis and/ or treatment of 1) mental health, 2)
substance abuse (drug and alcohol abuse), 3) communicable
disease(s) (including HIV/AIDS) and 4) genetic testing.
Plaintiffs understand and acknowledges that disclosure of
the medical, mental health and substance abuse records are for
the use and purpose of both parties to litigation, to support and
defend against the above-captioned case. 42 U.S.C. § 290dd2(b)(1); 42 C.F.R. §§ 2.31(a) and 2.64.
Plaintiffs understand that all records produced by
healthcare providers will be used only for litigation of the
above-captioned case and will be destroyed at the end of
litigation.

42 U.S.C. § 290dd-2(b)(1); 42 C.F.R. §§ 2.31(a) and

2.64.
Plaintiffs understand that the consent to release of records
protected by §290dd-2 can be revoked in writing at any time and,
the parties agree, will automatically expire at the end of
litigation.

42 C.F.R. §§ 2.31 (8) and (9).

Plaintiffs understand that written revocation does not apply
to information already released in response to this consent. 42
C.F.R. § 2.31 (8).
L.

HIPAA - Parties Request for Entry of Consent Order

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The parties request that the Court specifically include in
its Scheduling Order the following language:
This Order is entered pursuant to 45 C.F.R. §
164.512(e)(1)(i) 42 U.S.C. § 290dd-2, 42 C.F.R. §§ 2.64 and 2.63,
and the consent of the parties.

The identities of the health

care providers who treated Plaintiffs for medical, mental health
and substance abuse will be identified during discovery.

Any and

all medical and mental health providers of Plaintiffs are
authorized and instructed to disclose all of Plaintiffs’ medical
and mental health records, including mental health and substance
abuse records for the time period January 2009 through November
2012 to the counsel for both the parties (Plaintiffs and
Defendant) in this matter, for use in this litigation for
whatever purposes are deemed necessary, including disclosure to
and use by expert witnesses, fact witnesses and/or consultants.
Notwithstanding, pursuant to 45 C.F.R. § 164.512(e)(1)(v)(A)
and (B) and 42 C.F.R. §2.64(e), the parties are directed not to
use or disclose the medical, mental health and substance abuse
treatment records (protected health information) for any purpose
other than prosecuting or defending the above-captioned suit and
are directed to either to return the records to the health care
providers which disclosed the records or to destroy the records
(protected health information), including all copies, at the end
of litigation.

Id.

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M.

Notice of Service of Subpoena and Copies of Records

The parties shall serve opposing counsel with copies of all
subpoenas and subpoenas duces tecum served, no matter on whom
served, and shall serve opposing counsel with copies of the
records received pursuant to said subpoenas when the party has
the capability to copy the media of the records received.

F.R.

Civ. P., Rules 30(b)(1) and 45.
N.

Reasonableness

The parties agree to be reasonable throughout discovery and
to consult with each other throughout the discovery period should
any issues arise.
O.

Other Items

1.

Pre-Scheduling Order Conference

The parties do not request a conference with the Court
before entry of the scheduling order.
2.

Pre-Trial Conference

The parties request a pretrial conference in October 2012.
3.

Joining Additional Parties and Amending Pleadings

Plaintiffs should be allowed until January 15, 2012, to join
additional parties and until January 15, 2012, to amend the
pleadings.
Defendant should be allowed until February 1, 2012, to join
additional parties and until February 1, 2012, to amend the
pleadings.
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4.

Dispositive Motions

All potentially dispositive motions should be filed by
August 31, 2012.

5.

Mediation

The parties will arrange for private mediation with Mr. Don
Beskind after service of Plaintiffs’ Rule 26(a)(2)(B) and (C)
expert designations and summaries.

Should private mediation

fail, the parties agree that Court-hosted mediation should not be
held prior to the close of discovery on July 31, 2012.
6.

Trial

The case shall be ready for trial by November 2012 and
should take approximately two and a half (2.5) to three (3.0)
days.
7.

Late Developments in Case

Counsel shall immediately inform the Court, opposing counsel
and counsel in the next succeeding two (2) cases on the trial
calendar of any settlement or of any development of an emergency
which may necessitate a motion for continuance of the trial.
Local Civil Rule 39.2.
8.

Judicial Intervention

This case does not need early judicial intervention due to
complexity or other factors.

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Respectfully submitted this 28th day of December, 2011.
THOMAS G. WALKER
UNITED STATES ATTORNEY

BY: /s/ William W. Plyler
WILLIAM B. PLYLER
Attorney for Plaintiffs
3201 Glenwood Avenue
Suite 100
Raleigh, NC 27612
Telephone: [phone]
Facsimile: [phone]
email: [e-mail]
NC Bar No. 10475

BY: /s/ Edward D. Gray
EDWARD D. GRAY
Attorney for Defendant
Assistant United States Attorney
Civil Division
310 New Bern Avenue
Suite 800, Federal Building
Raleigh, NC 27601-1461
Telephone:[phone]
Facsimile: [phone]
email: [e-mail]
NC Bar No. 37539

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