Medical Mutual Insurance Company of North Carolina v. Indian Harbor Insurance Company

Filing 23

CONSENT PROTECTIVE ORDER - Signed by United States Magistrate Judge Robert T. Numbers, II on 3/13/2017. (Briggeman, N.)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
WESTERN DIVISION-RALEIGH
Case No. 5:16-cv-930-D
MEDICAL MUTUAL INSURANCE
COMPANY OF NORTH CAROLINA,
Plaintiff,
v.

CONSENT PROTECTIVE ORDER

INDIAN HARBOR INSURANCE
COMPANY,
Defendant.

Plaintiff Medical Mutual Insurance Company of North Carolina (“Medical Mutual”) and
Defendant Indian Harbor Insurance Company (“Indian Harbor”) (each individually a “Party” and
collectively “the Parties”), by and through their respective counsel, have jointly stipulated to the
terms of the following Protective Order:
SCOPE
1.

This Protective Order applies to all disclosures, affidavits and declarations and

exhibits thereto, deposition testimony and exhibits, discovery responses, documents,
electronically stored information, tangible objects, information, and other things produced,
provided or disclosed in the course of this action by any Party (the “Producing Party”) to any
Party (the “Receiving Party”) which may be subject to restrictions on disclosure under this
Protective Order, and information derived directly therefrom (all such information hereinafter
referred to as “Material”). This Protective Order also applies to all information, documents, and
things derived from the Material, including, without limitation, copies, summaries, or abstracts.

This Protective Order is subject to the Local Civil Rules and the Federal Rules of Civil
Procedure on matters of procedure and calculation of time periods.
2.

This Protective Order has no effect upon, and does not apply to, a Party’s use of

its own confidential information for any purpose.
3.

All Material designated in the course of the above-captioned litigation

(“Litigation”) as “Confidential,” as that term is defined in Paragraph 6, is to be used only for the
purpose of preparation and trial of this Litigation, and any appeal therefrom, and shall not be
used, directly or indirectly, for any other purpose whatsoever, and shall not be disclosed to any
person, corporation, partnership, joint venture, association, joint stock company, limited liability
company, trust, unincorporated organization, government body or other entity (collectively
“Person”) except in accordance with the terms hereof.
4.

Notwithstanding anything to the contrary, nothing in this Protective Order

prevents the disclosure of any confidential information to lawyers, accountants, auditors,
insurance brokers, insurers/reinsurers (if any), together with such insurers/reinsurers’ third-party
service providers, actuaries or intermediaries or regulators (collectively “Recipients”), provided
the disclosure is reasonably necessary to effectuate the terms of this Protective Order or is
required for tax, financial reporting, or governmental compliance purposes, or to transact the
business of insurance. Prior to disclosure, the Recipients are to be informed of the confidential
nature of the information and agree to keep such information confidential.
5.

The attorney-client privilege, work product protection, or any other applicable

privilege or doctrine is not waived by disclosure of Material in the Litigation, and any such
disclosure shall also not constitute a waiver in any other federal or state proceeding.

DEFINITIONS
6.

“Confidential” means Material that the Producing Party has treated as confidential

in the ordinary course of business, which must not have been disclosed publicly, and with respect
to which the Producing Party has made a good faith determination that the Material contains
information protected from disclosure by statute or that should be protected from disclosure as
confidential business or personal information, medical or psychiatric information, trade secrets,
personnel records, or such other sensitive commercial information that is not publicly available.
Such information may be disclosed to only Qualified Persons as defined in Paragraph 7 below.
7.

With respect to Confidential Material, “Qualified Persons” means:
(a)

Judges and court personnel of this Court; judges and personnel of any

other court where disclosure is necessary in connection with a motion or other matter
relating to the Litigation (including any appeal); and certified court reporters acting as
such (along with videographers);
(b)

Counsel of record for the Parties in the Litigation and employees in those

law firms whose functions require access to Materials produced pursuant to this
Protective Order;
(c)

Any current director, officer, trustee, principal, manager or employee of

either Party, who is not otherwise prohibited by this Protective Order from seeing
Confidential Material;
(d)

Any former director, officer, trustee, principal, manager or employee of

either Party, who is not otherwise prohibited by this Protective Order from seeing
Confidential Material, subject to the execution by each such former director, officer,

trustee, principal, manager or employee of the Confidentiality Agreement to be bound by
the terms of this Protective Order attached hereto as Exhibit A;
(e)

Any independent expert or consultant engaged by a Party or any attorney

described in Paragraph 7(b) solely to assist in the Litigation, including the expert or
consultant’s administrative and clerical personnel, subject to the execution by each
independent expert or consultant of the Confidentiality Agreement to be bound by the
terms of this Protective Order attached hereto as Exhibit A;
(f)

Any Person who authored and/or was an identified original recipient of the

Confidential Material sought to be disclosed to that Person; or
(g)

Any other Person whom the Producing Party agrees in writing may be

provided with Material protected by this Protective Order.
DESIGNATION AS “CONFIDENTIAL”
8.

The designation as “Confidential” for purposes of this Protective Order is to be

made in the following manner by the Producing Party:
(a)

Paper Documents and Physical Exhibits:

Affixing the legend

“Confidential” to each page containing confidential information.
(b)

Magnetic or Optical-Media Documents:

Including the designation on

each image.
(c)

Depositions:

By indicating on the record at the deposition that the

testimony is Confidential and to be treated in accordance with this Protective Order. In
that case, the reporter is to mark the cover page of the transcript “Confidential” (or,
where appropriate, particular page numbers and lines). If a designation is not marked on
the record, all Parties are to treat the transcript as having been designated Confidential for

a period of thirty (30) days following receipt of the transcript. During that thirty (30) day
period, any Party may designate testimony as Confidential by notifying all other Parties
and the court reporter in writing of the specific pages and lines to be designated.
(d)

Responses to Written Discovery: Responses to Interrogatories under

Federal Rule 33 and Requests for Admission under Federal Rule 36 containing
Confidential Material shall be labeled Confidential.
9.

Other than court personnel, the recipient of any Confidential Material is to

maintain such Material in a secure and safe area to which access is limited, or otherwise use
available methods to restrict access to Qualified Persons only. Confidential Material shall not be
copied, reproduced, summarized or extracted, except to the extent that such copying,
reproduction, summarization or extraction is reasonably necessary for the conduct of the
Litigation. All such copies, reproductions, summaries and extractions are subject to the terms of
this Protective Order, and must be labeled Confidential.
10.

Before a Party files any

Confidential Material (or any pleading, motion or

memorandum referring to such Material) so designated by the Producing Party, counsel for the
filing Party shall confer with counsel for Producing Party about how the Confidential Material
should be filed. If the Producing Party desires that the Confidential Material be filed under seal,
then the filing Party shall file the Confidential Materials in accordance with Local Rule 79.2,
with notice served on 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 Producing Party
shall file a motion to seal and supporting memorandum of law specifying the interests which
would be served by restricting public access to the Confidential Information. The Party that filed
the Confidential Material under seal need not file any such motion to seal or otherwise defend

the Producing Party’s desire that the Confidential Materials remain sealed. The Court will grant
the motion to seal only after providing adequate notice to the public and 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. Confidential Information submitted under seal in
accordance with this paragraph will remain under seal pending the Court’s ruling. If the Party
desiring that the Confidential Information be maintained under seal does not timely file a motion
to seal, then the Confidential Information will be deemed unsealed, without need for an order of
the Court
CHALLENGES TO DESIGNATIONS
11.

At any time after the receipt of any Material designated “Confidential,” counsel

for a Receiving Party may challenge the designation by providing written notice of such
challenge to counsel for the Producing Party. Such notice must identify the Material that the
challenging Party claims should not be afforded the specified confidential treatment and the
reasons supporting the challenge. After notice of the challenge, the Parties are to confer and in
good faith attempt to resolve the challenge. If the Parties are unable to resolve the challenge, the
Receiving Party may move the Court for appropriate relief. The Party seeking a designation as
Confidential bears the burden of establishing that any Material in dispute is entitled to protection
from unrestricted disclosure and to such designation. All Material that a Party designates as
Confidential is to be accorded such status pursuant to the terms of this Protective Order unless
and until the Parties agree in writing to the contrary or a determination is made by the Court as to
the confidential status.

12.

If a Receiving Party receives a subpoena, discovery request (other than a request

propounded in this Litigation), an administrative or regulatory demand or court order requiring
the disclosure of Confidential Material produced pursuant to this Protective Order, the Receiving
Party shall provide notice to the Producing Party within five (5) business days, and in any event
prior to the Receiving Party’s disclosure of Confidential Material.
INADVERTENT PRODUCTION AND DISCLOSURE
13.

The Parties are to make a good faith effort to designate Material properly at the

time of production. However, inadvertent or unintentional disclosure by any Party of Material
without any designation will not be deemed a waiver of a Party’s claim of confidentiality,
privilege, or any other protection, either as to the specific document or information contained
therein, and the Parties, upon notice thereafter, are to treat such Material as Confidential. A
Receiving Party is to make a good faith effort to locate and mark appropriately any Material
upon receipt of such notice. If, between the time of production and notification, the subject
Material was provided by a Receiving Party to persons other than Qualified Persons as defined
herein, the Receiving Party shall promptly notify all non-Qualified Persons to whom the subject
Material had been disclosed of such material’s Confidential designation and request that all such
non-Qualified Persons return such Material to the Receiving Party or execute the Confidentiality
Agreement to be bound by the terms of this Protective Order attached hereto as Exhibit A. In the
event that any non-Qualified Person to whom such Material had been disclosed fails or declines
to return the Confidential Material or execute Exhibit A, the Receiving Party shall promptly
notify the Producing Party and not oppose any reasonable efforts by the Producing Party to
retrieve the Confidential Material from the non-Qualified Person or obtain the non-Qualified
Person’s agreement to abide by the terms of this Protective Order.

CONFIDENTAL MATERIAL AFTER TERMINATION OF LITIGATION
14.

After termination of the Litigation, including any appeals, the provisions of this

Protective Order will continue to be binding, except with respect to those documents and
information that become a matter of public record. This Court retains jurisdiction over the
Parties and recipients of the Confidential Material for enforcement of the provisions of this
Protective Order following termination of this Litigation.
DUTY TO COMPLY WITH THE PROTECTIVE ORDER
15.

Any Party designating any person as a Qualified Person has a duty to reasonably

insure that such Person observes the terms of this Protective Order and, upon a judicial finding of
good cause, may be held responsible upon breach of such duty for the failure of any Person to
observe the terms of this Protective Order.
16.

By stipulation, the Parties may provide for exceptions to this Protective Order,

and any Party may seek an order of this Court modifying the Protective Order.
NO PRIOR JUDICIAL DETERMINATION
17.

This Protective Order is entered based on the representations and agreements of

the Parties and for the purpose of facilitating discovery. Nothing herein shall be construed or
presented as a judicial determination that any Confidential Material so designated for protection
under this Protective Order is entitled to protection under Rule 26(c) of the Federal Rules of
Civil Procedure or otherwise until such time as the Court may rule on a specific document or
issue.

PERSONS BOUND
18.

This Protective Order shall take effect when entered and shall be binding upon all

counsel and their law firms, the Parties, and persons made subject to this Protective Order by its
terms.
THE PARTIES SO STIPULATE and agree to abide by the terms of this Protective
Order.
Dated: February___, 2017.

/s/ R. Steven DeGeorge
R. Steven DeGeorge

/s/ Gary P. Seligman
GARY P. SELIGMAN

ROBINSON BRADSHAW & HINSON
101 North Tryon Street, Suite 1900
Charlotte, NC 28246
Phone: [phone]
Fax:
[phone]
Email: [e-mail]

WILEY REIN, LLP
1776 K Street NW
Washington, DC 20006
Phone: [phone]
Fax: [phone]
Email: [e-mail]

Attorney for Plaintiff
Medical Mutual Insurance Company of North
Carolina

Attorney for Defendant
Indian Harbor Insurance Company (Special
Appearance per L. Civ. R. 83.1(e))

SO ORDERED:
Dated: March 13, 2017
Chief United States District Judge James C. Dever III
______________________________________
Robert T. Numbers, II
United States Magistrate Judge

EXHIBIT A
CONFIDENTIALITY AGREEMENT
I, the undersigned, hereby acknowledge that I have received and read a copy of the
Consent Protective Order (“Order”) entered in Medical Mutual Insurance Company of North
Carolina v. Indian Harbor Insurance Company, United States District Court, Eastern District of
North Carolina, Case No. 5:16-cv-930-D (hereinafter the “Action”), and understand the terms
thereof and agree to be bound thereby.
I further acknowledge and understand that any documents and other information
produced in the Action (i.e., documents, testimony, written discovery responses and other
information provided in the course of pretrial discovery and any information contained therein or
derived therefrom) and designated or marked “Confidential” pursuant to the Order may not be
disclosed to anyone, except as authorized by the Order, and may not be used for any purpose
other than the purposes of the Action.

I agree to return (or, upon request, destroy) any

Confidential Material at the conclusion of the Action.
Dated: _________________, 2017.
Print Name

Signature