Martin v. Murray et al

Filing 28

CONSENT PROTECTIVE ORDER granting parties 26 Joint Consent Order for the Production of Medical Records & PHI as set forth in this Order. See Order for further details and instructions. Signed by Chief Judge Frank D. Whitney on 7/31/2018. (Pro se litigant served by US Mail.)(kby)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
ASHEVILLE DIVISION
1:17-cv-329-FDW
MITCHELL JOSEPH MARTIN,

)
)
Plaintiff,
)
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vs.
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CHAD MURRAY, et al.,
)
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Defendants.
)
____________________________________ )

CONSENT PROTECTIVE ORDER

THIS MATTER is before the Court on the parties’ Joint Consent Order for the Production
of Medical Records & PHI, (Doc. No. 26). The Motion is granted as follows.
Plaintiff’s allegations against Defendants include claims that Det. Chad Murray arrested
plaintiff on July 19, 2017, that Det. Murray ignored plaintiff's plea for medical treatment or to be
taken to a hospital when the plaintiff informed him that his left hand was fractured and took him
to the detention center for booking; that Sergeant Patterson ignored plaintiff's request for medical
treatment when the plaintiff informed him that his left hand was fractured and booked and assigned
plaintiff to a regular population cell; that Jail Administrator Lydia Waddell did not respond to
either of plaintiff's grievances concerning the defendants; and that Rachel Ruppe treated plaintif
four days after his arrest for a left hand injury sustained just prior to his arrest, ordered an x-ray,
applied an Ace bandage, provided him with several packets of ibuprofen but never informed the
plaintiff of the results of the x-ray. Plaintiff alleges that as a result of this failure to treat the fracture
to his left hand that the bones healed improperly causing him to require surgery in February 2018.
The plaintiff was held at the Rutherford County Detention Center from July 19, 2017, to October

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27, 2017, at which time he was transferred to the custody of the NC Department of Corrections.
Murray, Patterson, and Waddell are being represented by Sean Perrin. Ruppe is being represented
by Ginger Hunsucker.
Certain additional confidential documents, material, and information (hereinafter,
“Confidential Information”) in the possession, custody or control of the North Carolina
Department of Public Safety, Division of Adult Correction (hereinafter, “the DAC”) is necessary
for Defendants Murray, Patterson, Waddell & Ruppe (hereinafter “Defendants”), to obtain in order
to defend against Plaintiff's allegations in the above named suit and it may be necessary that
additional Confidential Information will need to be disclosed during the course of this litigation.
It is anticipated that some portion of the Confidential Information relates to Plaintiff, an inmate
currently or formerly in the custody of the DAC, or relates to current or former employees, contract
employees or independent contractors of the DAC. The Confidential Information is expected to
include inmate records deemed confidential pursuant to N.C.G.S. §§ 148-74 and -76. In addition,
the information may also be confidential under 42 CFR 2.1 et seq., N.C.G.S. § 122C-52, and
HIPAA. In light of the confidentiality of this material, and in an effort to protect that
confidentiality, the DAC requires the entry of a consent order to order the release of additional
Confidential Information and to ensure that the additional Confidential Information is not
disclosed or used for any purpose except in connection with this litigation. In the interests of justice
and to further the legitimate causes of this litigation, the DAC agrees to disclose the additional
Confidential Information in its custody and possession to Womble Bond Dickinson (US) LLP and
Cranfill, Sumner & Hartzog, Counsel for Defendants, subject to the conditions set forth herein and
adopted by the Court. Accordingly, upon the agreement of counsel, it is hereby ORDERED that:

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1. Scope of the Order. This Order requires DAC to disclose Confidential Information, as
defined and designated in accordance with this Order, to Counsel for Defendants. This
Order governs the handling and disclosure of all documents, materials and information
identified, produced, given, exchanged, obtained, or filed herein and which are designated
by DAC as “confidential information.”
2. Agreement on Use of Confidential Information. All Confidential Information, as defined
and designated in accordance with this Order, shall be used solely in the prosecution or
defense of this action including, but not limited to, mediation, other alternative dispute
resolution processes, any other settlement process, and all other pretrial, trial and post-trial
proceedings in this action and shall not be used or disclosed by any person for any other
purpose.
3. “Disclosure.” When used in this Order, the term “Disclosure” shall mean to provide,
impart, transmit, transfer, convey, publish, or otherwise make available.
4. “Confidential Information.” For the purposes of this Order and during the course of this
litigation, the parties to this Order identify “General Confidential Information” and define
it as follows:
a. “General Confidential Information” means:
(1) Inmate records of Plaintiff Mitchell Joseph Martin including, but not limited to,
grievances, use-of-force reports, incident reports, external and internal movement
records, confidential inmate witness statements provided in the course of
disciplinary investigations, and infraction reports pertaining to Plaintiff;
(2) The medical records maintained by the DAC pertaining to Plaintiff Mitchell

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Joseph Martin;
(3) The mental health records maintained by the DAC pertaining to Plaintiff
Mitchell Joseph Martin; and
(4) Other documents, materials, or information that is potentially embarrassing or
invasive of the privacy of a person not a party to this litigation and therefore an
appropriate subject of a Consent Order.
5. Disclosure of Confidential Information. General Confidential Information shall not be
disclosed to anyone except:
a. The court and its personnel;
b. The parties to this action as required by law and pursuant to the terms of this
Order;
c. Womble Bond Dickinson (US) LLP and Cranfill, Sumner & Hartzog, Counsel
for Defendants to this action and employees and/or vendors of Womble Bond
Dickinson (US) LLP and Cranfill, Sumner & Hartzog;
d. Experts or consultants specifically retained by the parties or their attorneys to
assist them in the preparation of this case or to serve as expert witnesses at the trial
of this action, but only after execution of a Confidentiality Agreement as provided
in Paragraph 6;
e. Court reporters or videographers engaged to record depositions, hearings or the
trial of this action;
f. Members of the Inmate Grievance Resolution Board;
g. Witnesses at any deposition in this matter as well as witnesses or jurors at the

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trial of this matter; and
h. The insurer or claims administrator, if any, for Defendants.
6. Confidentiality Agreements. Before any Confidential Information is disclosed to any
vendors of Womble Bond Dickinson (US) LLP and Cranfill, Sumner & Hartzog as well as
any person described in Paragraphs 5(d) and 5(h) of this Order, Womble Bond Dickinson
(US) LLP and Cranfill, Sumner & Hartzog, Counsel for Defendants, shall inform the
person to whom the disclosure is to be made that Confidential Information shall be used
only for the purpose of the prosecution or defense of this action, and shall obtain from the
person to whom the disclosure is to be made a signed confidentiality agreement, (Doc. No.
26-1 at 12). Womble Bond Dickinson (US) LLP and Cranfill, Sumner & Hartzog, Counsel
for Defendants, shall maintain the original Confidentiality Agreement and need not
produce it except by agreement of the DAC and Counsel for Defendants, Womble Bond
Dickinson (US) LLP and Cranfill, Sumner & Hartzog or upon order of the court.
7. Designation of Confidential Information. Information shall be designated as
Confidential Information in the following manner:
a. In the case of information reduced to paper form, the designation shall be made
(1) by placing the appropriate legend, “CONFIDENTIAL – SUBJECT TO
CONSENT ORDER” for General Confidential Information on each page
containing such information or (2) by such other means as agreed to by the DAC
and Counsel for Defendants. Counsel for the DAC shall designate the documents
as confidential at or before the time of the disclosure.
b. Information on a computer disk, data tape, or other medium that has not been

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reduced to paper form shall be designated as General Confidential Information (1)
by informing counsel for the receiving party in writing that the computer disk, data
tape, or other medium contains such Confidential Information and, where
applicable, specifying by Bates or other page number the particular information
being designated or (2) by such other means as agreed to by the parties to this
Consent Order. To the extent practicable, such physical medium shall be labeled
using the appropriate legend. Any party receiving Confidential Information
designated under this Paragraph shall then be responsible for appropriately labeling
any printed version(s) of such information that it creates.
c. Any other information that is not reduced to physical form or cannot be
conveniently labeled shall be designated as Confidential Information by serving a
written notification of such designation on Womble Bond Dickinson (US) LLP and
Cranfill, Sumner & Hartzog, Counsel for Defendanst. The notice shall, where
applicable, specify by Bates or other page number the particular information being
designated.
8. Disputes over Designations. If Womble Bond Dickinson (US) LLP and Cranfill, Sumner
& Hartzog, Counsel for Defendants, objects to the designation of any information as
confidential, Womble Bond Dickinson (US) LLP and Cranfill, Sumner & Hartzog, Counsel
for Defendants, and Counsel for the DAC shall attempt to resolve the disagreement on an
informal basis. If the objection is not so resolved, the objecting counsel may move the court
for appropriate relief. The information in question shall continue to be treated as
confidential in accordance with the disputed designation unless and until the court issues a

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final ruling that the information does not qualify for such a designation. The non-filing by
the objecting party of a motion for relief shall not be deemed an admission that the
information qualifies for the disputed designation.
9. Inadvertent Disclosure of Confidential Information. Inadvertent disclosure of
Confidential Information, without identifying the same as confidential, shall not be deemed
a waiver of confidentiality with regard to the information inadvertently disclosed if
promptly called to the attention of counsel for the receiving party.
10. Filing of Confidential Information Under Seal. At the time that confidential information
is produced to Womble Bond Dickinson (US) LLP and Cranfill, Sumner & Hartzog,
Counsel for Defendants and counsel for the DAC will indicate, in writing, if any of the
confidential information being produced is of the type that should be filed with the Court
as a proposed sealed document. If such indication is given, Womble Bond Dickinson (US)
LLP and Cranfill, Sumner & Hartzog, Counsel for Defendants, shall file the document as
a proposed sealed document along with a motion to seal and supporting memorandum
indicating the basis under which the DAC determined that the document should be filed
under seal. If Counsel for the DAC determines that the document should be filed as a
proposed sealed document, Counsel for the DAC agrees that the determination as set forth
in this paragraph will be narrow in scope and any such determination will be consistent
with the manner in which the attorneys in the Public Safety Section of the North Carolina
Department of Justice file the same or similar documents in 42 USC § 1983 cases involving
the medical care of inmates. If no such indication is given by Counsel for the DAC,
Womble Bond Dickinson (US) LLP and Cranfill, Sumner & Hartzog, Counsel for

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Defendants, may file the confidential information with the Court without the need to file
such confidential information as a proposed sealed document. Each time a party seeks to
file under seal confidential documents, things, and/or information, said party shall
accompany the request with a motion to seal and supporting memorandum of law
specifying:
a. The exact documents, things, and/or information, or portions thereof, for which
filing under seal is requested;
b. Where it is necessary for the court to determine the source of the public’s right
to access before a request to seal may be evaluated, whether any such request to
seal seeks to overcome the common law or the First Amendment presumption to
access;
c. The specific qualities of the material at issue which justify sealing such material,
taking into account the balance of competing interests in access;
d. The reasons why alternatives to sealing are inadequate; and
e. Whether there is consent to the motion.
Finally, in addition to the motion and supporting memorandum, said party must set out such
findings in a proposed order to seal for the court. Before ruling on any motion to seal, the court
will give public notice of the motion and a reasonable opportunity to challenge it. While individual
notice is unwarranted, the court will docket the motion reasonably in advance of deciding the issue,
or, where applicable, the court will notify persons present in courtroom proceedings of the motion.
The court will rule favorably upon any motion to seal only after carefully weighing the interest
advanced by the movant and those interests favoring public access to judicial documents and

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records, and only upon finding that the interests advanced by the movant override any
constitutional or common law right of public access which may attach to the documents, things,
and/or information at issue.
11. Authors/Recipients. Except as specifically provided herein, this Order shall not limit
use by a party of its own Confidential Information, nor shall this Order limit the ability of
a party to disclose any document to its author or to anyone identified on the face of the
document as a recipient.
12. Return of Confidential Information. Following the conclusion of this action, including
any appeals, Womble Bond Dickinson (US) LLP and Cranfill, Sumner & Hartzog, Counsel
for Defendants, shall request that any Confidential Information provided to any vendors of
Womble Bond Dickinson (US) LLP and Cranfill, Sumner & Hartzog as well as any person
described in Paragraphs 5(d) and 5(h) of this Order either be returned or shredded. Womble
Bond Dickinson (US) LLP and Cranfill, Sumner & Hartzog, Counsel for Defendants, shall
destroy any Confidential Information provided by the DAC in accordance with the Rules
of Professional Conduct of the North Carolina State Bar and/or any professional liability
policy requirements, which provide coverage for the services of Womble Bond Dickinson
(US) LLP and Cranfill, Sumner & Hartzog and/or Counsel for Defendants. If any vendor
of Womble Bond Dickinson (US) LLP and Cranfill, Sumner & Hartzog, any person
identified in Paragraphs 5(d) and 5(h) of this Order, or Womble Bond Dickinson (US) LLP
and Cranfill, Sumner & Hartzog itself elects to destroy the Confidential Information rather
than return it to Counsel for the DAC, Womble Bond Dickinson (US) LLP and Cranfill,
Sumner & Hartzog, Counsel for Defendants shall provide to counsel for the DAC a signed

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certification that the Confidential Information has been destroyed or will be destroyed in
accordance with the file retention policy of Womble Bond Dickinson (US) LLP and
Cranfill, Sumner & Hartzog, Counsel for Defendants. Any Confidential Information, or
portions or excerpts thereof, which are not returned or destroyed pursuant to this paragraph,
shall remain subject to the terms of this Order. The return of trial exhibits by the Court
shall be governed by Local Civil Rule 79.1, E.D.N.C.
13. Admissibility of Information. Neither the terms of this Order nor the disclosure or
designation as confidential of any information pursuant to it shall be deemed to establish
or vitiate the admissibility under the Federal Rules of Evidence of any information subject
to this Order.
14. Modification. This Order is without prejudice of the right of the DAC and/or Womble
Bond Dickinson (US) LLP and Cranfill, Sumner & Hartzog, Counsel for Defendants, to
seek modification or amendment of the Order by motion to the court, or to seek and obtain
additional protection with respect to Confidential Information as such party may consider
appropriate.
Based upon the foregoing, it is therefore FURTHER ORDERED that Womble Bond Dickinson
(US) LLP and Cranfill, Sumner & Hartzog, Counsel for Defendants, will observe the requirements
of this Order as to Confidential Information produced by the DAC as required by this Order.
IT IS, THEREFORE, ORDERED that the parties’ Joint Consent Order for the
Production of Medical Records & PHI, (Doc. No. 26), is GRANTED as set forth in this Order.

Signed: July 31, 2018

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