United States of America et al v. The Charlotte-Mecklenburg Hospital Authority

Filing 57

AMENDED PROTECTIVE ORDER REGARDING CONFIDENTIALITY. Signed by Magistrate Judge David Keesler on 10/16/17. (mga)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
CIVIL ACTION NO. 3:16-CV-311-RJC-DCK
UNITED STATES OF AMERICA AND
THE STATE OF NORTH CAROLINA,
Plaintiffs,
v.

THE CHARLOTTE-MECKLENBURG
HOSPITAL AUTHORITY, d/b/a
CAROLINAS HEALTHCARE SYSTEM,
Defendant.

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AMENDED PROTECTIVE ORDER
REGARDING CONFIDENTIALITY

WHEREAS the United States of America and State of North Carolina (“Plaintiffs”) filed
this civil antitrust action against the Defendant;
WHEREAS the information relevant to the issues in this action will likely include
commercially-sensitive and/or competitive health care information, such as information
pertaining to present or future business strategies, costs, and margins, and may include
personal health information;
WHEREAS Fed.R.Civ.P. 26(c)(1)(G) provides that the Court may, for good cause
shown, require that a “trade secret, or other confidential research, development, or commercial
information not be revealed or be revealed only in a specified way;”
WHEREAS the Court and the parties seek to facilitate orderly and efficient party and
third-party discovery to “secure the just, speedy, and inexpensive determination” of this action,
Fed.R.Civ.P. 1;

WHEREAS the parties consent to the entry of this Protective Order Regarding
Confidentiality; and
WHEREAS the Court hereby finds that there is good cause to enter this Protective Order
Regarding Confidentiality to shield commercially-sensitive, competitive health

care and

personal health information;
IT IS THEREFORE ORDERED that the following restrictions and procedures shall
apply to Materials provided by any Producing Person that contain Confidential Information,
Highly Confidential Information, or Restricted Highly Confidential Information as defined
herein.
A. Definitions
For purposes of this Order, the following definitions apply:
1. “Confidential Information” means any Material which contains any “trade secret or
other confidential research, development, or commercial information,” Fed.R.Civ.P.
26(c)(1)(G); protected personal information including protected personal health information;
Protected Health Information, as that term is defined by the Health Insurance Portability and
Accountability Act, 45 C.F.R. Parts 160 and 164; and competitive health care information,
as defined in Chapter 131E of the North Carolina General Statutes.
2. “Highly Confidential Information” means any Confidential Information that the
Producing Person reasonably believes to be so sensitive that it is entitled to extraordinary
protections.

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2.1 “Restricted Highly Confidential” means any Highly Confidential Information that the
Producing Person reasonably believes to be so sensitive that it is entitled to
extraordinary protections including limited distribution among the law firms representing
the Defendant.
3. “Investigation Materials” means any Materials provided by any Producing Person, either
voluntarily or under compulsory process, to any party in response to Plaintiffs’ pre- complaint
inquiry into the matters at issue in this action, including statements under oath and any exhibits
thereto.
4. “Materials” means any document, information, or transcript of testimony that is either
(a) Investigation Materials or (b) provided to any party in connection with the litigation of
this action.
5. “Producing Person” means any person that provides or has provided Materials.
6. “DiCesare v. CHS” or “state court” refers to a civil action presently pending in the
Superior Court Division of the General Court of Justice of Mecklenburg County and
assigned to the North Carolina Business Court entitled “Christopher DiCesare, James Little,
and Johanna Macarthur, individually and on behalf of all others similarly situated, Plaintiffs,
v. The Charlotte-Mecklenburg Hospital Authority, d/b/a Carolinas HealthCare

System,

Defendant” and bearing civil docket number 16-CvS-16404.
B. Protection of Confidential Information, Highly Confidential Information, or
Restricted Highly Confidential Information in Investigation Materials
7. Within ten business days of the Court’s entry of this Order, each party must send by
email, facsimile, or overnight delivery a copy of this Order to each non-party

Producing Person (or, if represented by counsel, the non-party Producing Person’s
counsel) that provided to that party any Investigation Materials relevant to this action.
8. A Producing Person shall have 60 days after receiving a copy of this Order (the
“Designation Period”) to designate as Confidential Information, Highly Confidential
Information, or Restricted Highly Confidential Information any Materials to the extent the
Producing Person determines, in good faith, that the Materials include Confidential
Information, Highly Confidential Information, or Restricted Highly Confidential Information,
and that such designation is necessary to protect the interests of the Producing Person. Such
Investigation Materials may be so designated, if they have not already been designated, by
providing written notice by overnight mail or email to the party to which the Investigation
Materials were produced that includes (i) copies of the Investigation Materials stamped with
the

legend

“CONFIDENTIAL

INFORMATION,”

“HIGHLY

CONFIDENTIAL

INFORMATION” or “RESTRICTED HIGHLY CONFIDENTIAL INFORMATION” as
appropriate or (ii) identification of the document(s) and page number(s), or page and line
number of testimony, containing the

Confidential Information, Highly Confidential

Information, or Restricted Highly Confidential Information. Until the expiration of this
Designation Period, all

Investigation Materials will be treated as Highly Confidential

Information in their entirety. Notwithstanding the foregoing, this Paragraph does not apply to
any Producing Person of Investigation Materials who received notice of the Protective Order
Regarding

Confidentiality (Dkt. 45) (“Initial Protective Order”) and was given the

opportunity to

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provide confidentiality designations for its Investigation Materials in accordance with the
Initial Protective Order.
9. Counsel for Plaintiffs and Defendant to be notified are as follows: For
Plaintiff United States:
John R. Read
U.S. Department of Justice
450 Fifth Street NW, Suite 4000
Washington, DC 20530
[e-mail]

For Plaintiff State of North Carolina:
K.D. Sturgis
Special Deputy Attorney General North
Carolina Department of Justice
P.O. Box 629 Raleigh, NC
27602
[e-mail]

For Defendant:
James P. Cooney III Suite
3500
One Wells Fargo Center 301
South College Street
Charlotte, North Carolina 28202
[e-mail]
10. If a non-party Producing Person determines that this Order does not adequately protect
its Confidential Information, Highly Confidential Information, or Restricted

Highly

Confidential Information, it may, within 30 days after receipt of a copy of this Order, seek
additional protection from the Court for its Confidential Information, Highly Confidential
Information, or Restricted Highly Confidential Information. If a non-party

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Producing Person seeks additional protection from the Court, any Investigation Materials for
which additional protection has been sought will not be provided to other persons until the
Court has ruled.
C. Protection of Confidential Information, Highly Confidential Information, or
Restricted Highly Confidential Information in Discovery
11. Whenever discovery is sought from any non-party in this action, a copy of this Order
must accompany the discovery request or subpoena, unless a party has already provided the
non-party with a copy of this Order. Non-parties may designate Materials as Confidential
Information, Highly Confidential Information, or Restricted Highly Confidential Information
pursuant to the procedures set forth in this Order.
12. Any Producing Person (including through counsel) may designate all or any part of
any Materials as Confidential Information, Highly Confidential Information, or Restricted
Highly Confidential Information to the extent the Producing Person determines, in good faith,
that the Materials include Confidential Information, Highly Confidential Information, or
Restricted Highly Confidential Information, and that such designation is necessary to protect
the interests of the Producing Person. For designations of Confidential Information, Highly
Confidential Information, or Restricted Highly Confidential Information that occur after entry
of this Order, the designations shall be

made by using the labels as appropriate:

“CONFIDENTIAL – PRODUCED PURSUANT TO PROTECTIVE ORDER”, “HIGHLY
CONFIDENTIAL

– PRODUCED

PURSUANT

TO

PROTECTIVE

ORDER”

or

“RESTRICTED HIGHLY CONFIDENTIAL - PRODUCED PURSUANT TO PROTECTIVE
ORDER”.

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13. All transcripts of depositions, including deposition exhibits, taken in this action after
entry of this Order will be treated as Highly Confidential Information in their entirety for
21 days after the date a copy of the final transcript has been made available to the deponent (or
to the deponent’s counsel, if applicable) for review. It is the obligation of the first party that
noticed the deposition to arrange for the final transcript to be furnished to the deponent
within five business days of receipt, unless the deponent has arranged to receive a copy of
the final transcript directly from the court reporter. During the 21 days following receipt of the
final transcript, the deponent may designate all or any part of the testimony as Confidential
Information, Highly Confidential Information, or Restricted Highly Confidential Information.
Such designations must be provided in writing by the deponent to all parties. For purposes of
this paragraph, a transcript that is available for the deponent to read-and-sign is considered a
final transcript.
14. Any production of Materials not designated as Confidential Information, Highly
Confidential Information, or Restricted Highly Confidential Information will not be deemed a
waiver of any future claim of confidentiality concerning such Materials if the Producing Person
later designates the Materials as Confidential Information, Highly Confidential Information, or
Restricted Highly Confidential Information. If at any time prior to the trial of this action, a
Producing Person realizes that it should have designated as Confidential Information, Highly
Confidential Information, or Restricted Highly Confidential Information any of that Person’s
Materials previously produced during

discovery in this action, including that Person’s

Investigation Materials produced by any party, it may so designate such Materials by notifying
the parties in writing. The parties

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shall thereafter treat the Materials pursuant to the Producing Person’s new designation under
the terms of this Order. The disclosure of any information for which disclosure was proper when
made will not be deemed improper regardless of any such subsequent confidentiality
designation.
15. Inadvertent production of any document provided by any Producing Person in this
litigation, including in response to any discovery request, subpoena, or agreement by any party
or non-party, that the Producing Person later determines in good faith should have been
withheld from production on grounds of a privilege, including the work product doctrine
(collectively referred to hereinafter as an “Inadvertently Produced Privileged Document”), will
not be deemed to waive any privilege or work product protection, subject to the following
provisions:
a. The Producing Person may request the return of any Inadvertently Produced
Privileged Document by identifying the Inadvertently Produced Privileged Document and
stating the basis for the claim that the Document should have been withheld and providing a
privilege log that provides the information provided by Fed.R.Civ.P. 26(b)(5) and the
identification of (1) all recipients of the document as reflected on the document and in that
document’s metadata, if applicable, and (2) the files or sources from which the document was
collected. If a Producing Person requests the return, pursuant to this paragraph, of such an
Inadvertently Produced Privileged Document then in the possession of one or more parties,
the possessing parties shall, within five (5) business days, sequester, destroy, or return to the
requesting party or non- party, the Inadvertently Produced Privileged Document and all copies
thereof, provided,

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however, that the receiving party may retain one copy of such Inadvertently Produced
Privileged Document for the sole purpose of challenging the assertion of privilege by the
producing party, in which case: (1) the receiving party shall notify the producing party in writing
of its intention to retain a copy for such purpose within ten business days of the receipt of the
notice demanding return of such Inadvertently Produced Privileged Document, and (2) either
party may thereafter seek a ruling from the Court with respect to the issue of whether the
Inadvertently Produced Privileged Document is indeed privileged, whether by way of a
motion to compel, motion for a protective order, or otherwise. All such motions shall be
submitted in camera. Absent an order from the Court, no Inadvertently Produced Privileged
Document shall be used for any purpose other than for challenging an assertion of privilege
in accordance with the terms of this

Paragraph. Absent the Court’s ruling that the

Inadvertently Produced Privileged Document is not subject to a valid privilege claim, the
possessing party must promptly expunge from any other document or material any
information solely derived from the Inadvertently Produced Privileged Document.
b. No party may assert as a ground for challenging privilege the mere fact of the
inadvertent production. Nothing in this Order shall preclude a party from arguing based on
the underlying facts and circumstances that the production of the allegedly inadvertently
produced document was not inadvertent or that conduct since production of the allegedly
inadvertently produced document constitutes a waiver.
c. If the request for return of an Inadvertently Produced Privilege Document
involves redaction of the Document, the redacted version of the Document must be

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provided within ten (10) business days together with a privilege log that includes the
information required by Fed.R.Civ.P 26(b)(5) and the identification of (1) all recipients of
the document as reflected on the document and in that document’s metadata, if applicable, and
(2) the files or sources from which the document was collected.
d. If the request for return of an Inadvertently Produced Privilege Document occurs
during the taking of a deposition or shortly before the occurrence of a deposition, the Producing
Person’s counsel, the examining counsel and defending counsel shall meet and confer in good
faith at the earliest possible opportunity to determine appropriate steps under the circumstances,
consistent with this protocol. In the event the claim of privilege is withdrawn or the Court
determines the document to be not subject to a valid claim of privilege, if counsel for the
parties and other defending counsel do not agree otherwise, the Court shall determine any
appropriate remedy, including whether and to what extent a reopening of the deposition may
be necessary including a reopening that would have the effect of extending the time limit for a
duration of a deposition. Nothing in this Paragraph prohibits examining counsel to voir dire a
deponent about the matters set forth in Fed.R.Civ.P. 26(b)(5) concerning the Document.
e. If an expert report or expert’s testimony uses a document that another party
identifies as an Inadvertently Produced Privileged Document after service of the expert’s
report or rendition of the expert’s testimony, then the party sponsoring the expert report or
expert testimony will, subject to the procedures in this Order, and if necessary, remove any
reference to the Inadvertently Produced Privileged Document from the expert’s report or
expert’s testimony and be allowed to substitute other documents or

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information for the Inadvertently Produced Privileged Document. Neither the expert’s report
not the expert’s testimony can be stricken in whole on the ground that the expert’s report or
expert’s testimony had previously relied on an Inadvertently Produced Privileged Document.
In the event that an expert’s report or expert’s testimony has relied on an Inadvertently Produced
Privileged Document, the parties agree to meet and confer on a schedule to allow the party
propounding an implicated expert report (whether an initial, response, or rebuttal report) to
modify or supplement such expert report within a reasonable period of time.
15.1 The parties and third parties desire to ensure the privacy of patient records and other
information that the parties have determined might contain Confidential Health Information
(“CHI”) and agree that a Producing Party may designate CHI as Confidential Information at a
minimum and, as such, subject to the terms of this Order. The parties and third parties also
seek to ensure that any person who receives and stores CHI in connection with this
proceeding will develop, implement, maintain, and use appropriate administrative, technical,
and physical safeguards to preserve the privacy, integrity, and confidentiality of any CHI and
to prevent unpermitted use or disclosure of any confidential health information they may
receive from any person in connection with this proceeding. CHI will be securely returned or
destroyed pursuant to the provisions of this Order. As used in this Order, Confidential Health
Information or CHI shall mean any patient health information protected by any state or federal
law, including but not limited to “Protected Health Information” or “PHI” as set forth in 45
C.F.R. § 160.103.

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16. Public Records Requests.
a. During the course of this litigation, and within 5 business days of the receipt
by Plaintiff State of North Carolina of a request under the North Carolina Public Records Act,
N.C. GEN. STAT. § 132 (2016), to inspect, examine, or copy Materials in its possession, custody,
or control, counsel for the North Carolina Department of Justice must provide notice of
such request to each Producing Person of such Materials. Absent an Order from this Court, the
North Carolina Department of Justice must not disclose any Confidential Information, Highly
Confidential Information, or Restricted Highly Confidential Information pursuant to any such
request. In addition, communications between any person at the North Carolina Department
of Justice and any person at the United States Department of Justice made pursuant to a
privileged common-interest in the joint prosecution of this action are considered trial
preparation materials. As such, Plaintiff State of North Carolina may not disclose such
communications under the North Carolina Public Records Act except with the consent of the
United States Department of Justice.
b. During the course of this litigation, and within 5 business days of the receipt
by Defendant, The Charlotte-Mecklenburg Hospital Authority, of a request under the North
Carolina Public Records Act, N.C. GEN. STAT. § 132 (2016), to inspect, examine, or copy
Materials in its possession, custody, or control, counsel for Defendant must provide notice of
such request to each Producing Person of such Materials. Absent an Order from this Court,
Defendant must not disclose any Producing Person’s

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Confidential Information, Highly Confidential Information, or Restricted Highly
Confidential Information pursuant to any such request.
D. Challenges to Designation of Confidential Information, Highly Confidential
Information, or Restricted Highly Confidential Information
17. Any party may challenge any designation of any Materials as Confidential Information,
Highly Confidential Information, or Restricted Highly Confidential Information. In the event
of such a challenge, counsel shall make a good faith effort to resolve the dispute, and in the
absence of a resolution, the party challenging the designation may thereafter file a motion
seeking resolution by the Court. The designated information shall be treated in accordance
with its confidentiality designation under this Order until the Court rules on the motion.
18. Nothing in this Order constitutes an admission by any party that Confidential
Information, Highly Confidential Information, or Restricted Highly Confidential Information
disclosed in this action is relevant or admissible. Each party specifically reserves the right
to object to the use or admissibility of any Materials designated as Confidential Information,
Highly Confidential Information, or Restricted Highly Confidential Information, in accordance
with applicable law.

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E. Disclosure of Confidential Information, Highly Confidential Information, or
Restricted Highly Confidential Information
19. Unless otherwise ordered by this Court, or otherwise provided in this Order,
Confidential Information, Highly Confidential Information, or Restricted Highly Confidential
Information will be held and used by the person receiving the Confidential Information, Highly
Confidential Information, or Restricted Highly Confidential Information solely in connection
with the above-captioned action.
20. Any Materials that contain Confidential Information shall not be disclosed to any
person, except:
a. The Court and all persons assisting the Court in this action, including court
reporters and members of the Clerk’s Office.
b. Plaintiffs’ attorneys and employees, and independent contractors retained by
any Plaintiff to assist in the prosecution of this action or otherwise assist in its work (including
testifying or consulting experts and their support staff).
c. Outside counsel acting for the Defendant in this action, and independent
contractors retained by the Defendant to assist outside counsel in the litigation of this action
or otherwise assist in its work (including testifying or consulting experts and their support
staff).
d. Outside vendors or service providers (such as copy-service providers and
document-management consultants) retained by any party to assist in the prosecution or
defense of this action or otherwise assist in its work only on the condition that each such person
shall be asked to sign an agreement to be bound by this Order in the form attached as Exhibit
A.

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e. Authors, addressees, and recipients of any particular Materials designated as
Confidential Information, solely to the extent that they have previously had lawful access
to the particular Materials disclosed or to be disclosed.
f. Persons (and their counsel) whom any Plaintiff or Defendant believes, in good
faith, to have previously had lawful access to any Material designated as Confidential
Information, or who have been participants in a communication that is the subject of the
designated Confidential Information and from whom verification of or other information
about that access or participation is sought, solely to the extent of disclosing such
Confidential Information to which they may have had lawful access or that is the subject of
the communication in which they may have participated; provided that, unless and until the
person or their counsel confirms that the person had prior lawful access or was a participant,
only as much of the Confidential Information may be disclosed as may be necessary to
confirm the person’s prior lawful access or participation; and
g. No more than two in-house lawyers (and necessary support staff) for the
Defendant in this action (“CHS’s Selected In-House Lawyers”) may have access to
Confidential Information (but not Highly Confidential Information) of a Producing Person that
is not the Defendant. Defendant shall provide to Plaintiffs and to any Producing Person who
has Confidential Information that may be disclosed to CHS’s Selected In-House Lawyers
(a) the identities of CHS’s Selected In-House Lawyers (and all necessary support staff) and
(b) a signed declaration from each of CHS’s Selected In- House Lawyers and all necessary
support staff declaring that he/she has read this

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Protective Order, understands that he/she may use Confidential Information (that is not the
Defendant’s Confidential Information) only for the purpose of this litigation (or the case of
DiCesare v. CHS pending in state court), and will comply with and be personally bound by
this Protective Order. Neither Defendant’s Executive Vice-President and General Counsel nor
any lawyer who either reports directly to Defendant’s Board (other than to report to the Board
on this litigation or the state court litigation), or supervises, advises or counsels Managed
Health Resources or any of Defendant’s contracting or negotiations with any payor may
serve as a CHS Selected In-House Lawyer. Necessary support staff shall not have
responsibility for or participation in supporting the Executive Vice-President and General
Counsel or any lawyer who either reports directly to Defendant’s Board (other than to report
to the Board on this litigation or the state court litigation) or in matters involving Managed
Health Resources or any other contracting or negotiations with any payor.
21. Highly Confidential Information may be disclosed only to any person falling within
categories (a) through (f) of Paragraph 20.
21.1 Restricted Highly Confidential Information may be disclosed only to any person falling
within categories (a), (b), (c) (d), (e), and (f), subject to the restrictions set forth in

this

paragraph. Restricted Highly Confidential Information under (c) may be disclosed only to (I)
attorneys at Womble, Carlyle, Sandridge & Rice (“WCSR team”) who do not represent
healthcare providers in any of (i) the direct negotiation of their payment agreements with payors
or (ii) disputes with payors regarding application, interpretation, or negotiation of their
payment agreements for the purpose of enforcing those

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agreements. Provided that such prohibition applies only to payors whose Restricted Highly
Confidential information the individual attorney has accessed and provided that none of the
WCSR team will participate in or access non-public information related to the In re Blue Cross
Blue Shield Antitrust Litigation MDL (N.D. Ala.) or any of its individual cases except with
regard to currently representing third parties from whom discovery is sought in those cases;
(II) Richard Feinstein; (III) any attorney, other than Richard Feinstein, at Boies Schiller
Flexner LLP (“BSF team”) who does not participate in or access non-public information related
to the In re Blue Cross Blue Shield Antitrust Litigation MDL (N.D. Ala.) or any of its
individual cases; and (IV) independent contractors retained by the Defendant to assist outside
counsel in the litigation of this action or otherwise assist in its work (including testifying or
consulting experts and their

support staff) (“Defense Experts”). Provided that Richard

Feinstein will not access any Restricted Highly Confidential Information designated by Blue
Cross Blue Shield of North Carolina (“BCBSNC”) or Blue Cross and Blue Shield of South
Carolina (“BCBSSC”) unless and until it is discussed or introduced at a deposition at which
he is present, it is referenced in a dispositive motion, it is referenced in a draft expert report, or
it is listed on an exhibit list for trial in this matter. It is further provided that none of the WCSR
team, BSF team or Defense Experts who have accessed Restricted Highly Confidential
Information produced by BCBSNC or BCBSSC may participate in or access non-public
information related to the In re Blue Cross Blue Shield Antitrust Litigation MDL (N.D. Ala.)
or any of its individual cases except with regard to representation by members of the WCSR
team of third parties from whom discovery is sought in the MDL

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proceedings. It is further provided that a Producing Person party may, before production of
materials containing any Restricted Highly Confidential Information, notify counsel for
Defendants of the production and request a list of counsel who will have access to Restricted
Highly Confidential Information. No counsel who is not included in the list provided to a
Producing Person may access the Restricted Highly Confidential Information of that
Producing Person. If counsel for the Producing Person objects to disclosure of such
information to a particular person or group of persons, the Producing Person will have ten
business days after receiving the list of counsel to object in writing and will thereafter have
five business days to file a motion for protective order seeking to restrict such access. The
Producing Person will still be required to produce Restricted Highly Confidential Information
but any person who is the subject of such a written objection will not access the Restricted
Highly Confidential Information unless and until the Court orders that such access may be
permitted in response to a timely-filed motion for protective order seeking to restrict such
access. If a Producing Person transmits a timely written objection to disclosure of Restricted
Highly Confidential Information to a person or persons, but fails to file a timely motion
for protective order, the written objection shall be deemed waived.
22. In the event that a party intends to disclose Highly Confidential Information or
Restricted Highly Confidential Information to a consultant or expert who works, or has a
present plan to work, either as an employee or a consultant in the healthcare industry and who
negotiates or consults on the negotiations, or has any role in the review or approval of such
negotiations, between healthcare providers located in North Carolina, South

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Carolina, and Georgia and health insurers (an “Industry Participant”), then such party (the
“Notifying Party”) shall notify the Producing Person, and provide ten (10) business days written
notice during which the Producing Person may seek an Order from the Court precluding
such disclosure. The Notifying Party must not disclose any such Highly Confidential
Information or Restricted Highly Confidential Information to an Industry Participant absent
either a ruling from the Court rejecting the challenge of the Producing Person or the passage
of ten (10) business days without written notice from the Producing Person that it is seeking an
Order from the Court precluding disclosure. In the event that a party intends to disclose Highly
Confidential Information or Restricted Highly Confidential Information to an Industry
Participant, before receiving any Confidential Information, the Industry Participant must sign
an agreement to be bound by this Order in the form attached as Exhibit A. It is expressly
understood that “Industry Participant”

excludes academics, accountants, behavioral

psychologists, economists, IT consultants, statisticians, and attorneys, whose primary role in
the industry is testifying or consulting in legal and regulatory proceedings.
23. Prior to a party’s disclosure or display of Confidential Information, Highly Confidential
Information, or Restricted Highly Confidential Information to any person in (b), (c), (e), or (f)
of Paragraph 20, counsel for the party must:
a. Inform the person of the confidential nature of the Material; and
b. Inform the person that this Court has enjoined the use of the Material by
him/her for any purpose other than this litigation (except as provided in this Order) and

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has enjoined the disclosure of the Material to any other person (except as provided in this
Order).
24. Nothing contained in this Order:
a. Affects or restrict the rights of any party with respect to its own Materials;
b. Prevents Plaintiffs, subject to taking appropriate steps to preserve the
confidentiality of such information, from disclosing Confidential Information, Highly
Confidential Information, or Restricted Highly Confidential Information (i) in the course of
any other legal proceeding in which the U.S. Department of Justice or the North Carolina
Department of Justice is a party; (ii) for the purpose of securing compliance with a Final
Judgment in this action; or (iii) for law enforcement purposes; or
c. Prevents Plaintiff United States’ retention or use or disclosure of Investigation
Materials outside the context of this action to the extent permitted by applicable law or
regulation governing such pre-complaint discovery including the Hart- Scott-Rodino Act, 15
U.S.C. § 18a and the Antitrust Civil Process Act, 15 U.S.C.
§§ 1311-14, or for law enforcement purposes, or as required by law, court order or
regulation.
d. Prevents the Defendant, from utilizing Confidential, Highly Confidential, or
Restricted Highly Confidential Information in connection with ongoing litigation in the case
entitled “Christopher DiCesare, James Little, and Johanna MacArthur, individually and on
behalf of all others similarly situated, Plaintiffs v. The Charlotte- Mecklenburg Hospital
Authority, d/b/a Carolinas Healthcare System, Defendant” now pending in the Superior
Court Division of the General Court of Justice of Mecklenburg

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County in the North Carolina Business Court and bearing docket number 16 CvS 16404 (“State
Litigation”) provided that a Protective Order is entered in the State Litigation that provides
protections for Confidential Information, Highly Confidential Information, Restricted Highly
Confidential Information and Confidential Health Information comparable to the protections
for such information contained in this Amended Order. Prior to such use, the Defendant must
provide to all Producing Persons proof of the entry of such order and an opportunity by a
Producing Person to object on the ground that the protections provided under such an order are
not comparable to the protections under this Amended Order.
24.1 The Parties recognize that the Defendant has received a Request for Production of
Documents in the State Litigation requesting the production of Materials received by the
Defendant in this matter. The Defendant is permitted to produce Materials it receives that have
been designated Confidential Information, Highly Confidential Information, or Restricted
Highly Confidential Information to this Amended Order on fifteen (15) days written notice
to a Producing Party that such production will occur, provided that before any production, all
counsel and all named plaintiffs in the State Litigation have executed an agreement in the form
attached as Exhibit B acknowledging that the disclosure of the information is subject to this
Amended Order and submitting themselves to the jurisdiction of this Court in the event that
the use or disclosure of the information violates this Amended Order. This procedure applies
to any and all Material designated pursuant to this Amended Order, including Investigation
Materials, deposition transcripts, Rule 26 disclosures of any kind, and documents.
notice shall be promptly given. If any

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Such

Producing Person files a written objection and seeks a protective order to such production with
this Court prior to the expiration of the fifteen days following a written notice, production
shall not occur unless and until the Court orders that such production may be made.

While

that objection remains pending, or while an objection under Paragraph
24.d remains pending, Defendant shall not use the Materials subject to the objection in the
State Litigation. Once such Materials have been produced to the plaintiffs in the State Litigation,
their use in that case and their confidential status will be governed by the protective order
in that case, so long as that order contains protections comparable to the protections in this
Amended Order, and such other orders as the presiding judge in the State Litigation may
issue regarding the use of such Materials.
25. In the event of a disclosure of any Confidential Information, Highly Confidential
Information, or Restricted Highly Confidential Information to any person(s) not authorized
to receive such disclosure under this Order, the party responsible for having made such
disclosure shall promptly notify the Producing Person whose Material has been disclosed
and provide to such Producing Person all known relevant information concerning the nature
and circumstances of the disclosure. The disclosing party shall also promptly take all reasonable
measures to retrieve the improperly disclosed Material and to ensure that no further or greater
unauthorized disclosure and/or use thereof is made. Unauthorized or inadvertent disclosure
shall not change the confidential status of any disclosed Material or waive the right to
maintain the disclosed Material as containing Confidential Information, Highly Confidential
Information, or Restricted Highly Confidential Information.

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26. Any order of this Court requiring the production of any Materials constitutes a
court order within the meaning of the Privacy Act, 5 U.S.C. § 552a(b)(11).
F. Use of Confidential Information, Highly Confidential Information, or Restricted
Highly Confidential Information in This Action
27. If any Confidential Information, Highly Confidential Information, or Restricted
Highly Confidential Information is included in any pleading, motion, exhibit, or other paper
to be filed with the Court, the party making the filing shall follow the procedures set forth in
Local Civil Rule 6.1, as supplemented by this Paragraph. For purposes of this action, this
Protective Order is “a previously entered Rule 26(e) Protective Order” under Local Civil Rule
6.1(B).
a. If a Party uses any other Party’s or a Third Party’s Confidential Information,
Highly Confidential Information, or Restricted Highly Confidential Information in any court
filing (the “Using Party”), the Using Party must file a Motion To Temporarily Seal. The Using
Party must submit with the motion a proposed order that if signed by the Court would have
the effect of keeping the Confidential Information, Highly Confidential Information, or
Restricted Highly Confidential Information under seal for 21 calendar days.
b. Within 3 business days of filing the Motion To Temporarily Seal, the Using
Party must serve the Producing Person (by e-mail or other means) with the Motion To
Temporarily Seal and a copy of this Order.
c. The Producing Person and all parties must conduct a meet-and-confer over the
treatment of the Producing Person’s Confidential Information, Highly Confidential

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Information, or Restricted Highly Confidential Information at issue in the Motion to
Temporarily Seal.
d. Within 21 days of notification of the Producing Person, and after a meet- andconfer, the Using Party shall submit to the Court any proposed agreed-upon order that would
continue the protections contained in this Order for Confidential Information,

Highly

Confidential Information, or Restricted Highly Confidential Information and the request that
the Court should order such information to be maintained under seal.
e. To the extent the Producing Person and the parties have disputes upon the
conclusion of the meet-and-confer, the Producing Person must file a Motion to Seal that
complies with Local Civil Rule 6.1. To the extent that the Producing Person and the parties
are unable to schedule a meet-and-confer within the 21-day period, the Producing Person shall
be entitled to file a Motion to Seal and shall inform the Court in the Motion of any
circumstances that prevented a meet-and-confer.
f. If, at the expiration of the 21-day period, the parties (including the Producing
Person) have failed to submit a proposed agreed-upon order, or the Producing Person has not
filed a Motion to Seal, all materials that were subject to the Motion To Temporarily Seal
shall be unsealed and made available to the public. Materials that are included in any proposed
agreed-upon order will remain under seal until such time as the Court signs or modifies the
proposed agreed-upon order. Materials included in a Motion to Seal will remain under seal
until the Court rules on the Motion.
g. To the extent that any Party seeks to have Confidential Information, Highly
Confidential Information, or Restricted Highly Confidential Information

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contained in its own court filing protected from public disclosure, it must follow the
procedures described above. It must meet-and-confer with the other Parties over the
treatment of the information at issue in the Motion to Temporarily Seal.
h. Nothing in this Order restricts any person, including any member of the public,
from challenging the filing of any Confidential Information, Highly Confidential Information,
or Restricted Highly Confidential Information under seal.
28. Any pleading that contains or refers to Confidential Information, Highly Confidential
Information, or Restricted Highly Confidential Information (or attaches such

Confidential

Information, Highly Confidential Information, or Restricted Highly Confidential Information),
in addition to being filed Under Seal as set forth in this Order, shall be filed publicly in a
redacted form so as to eliminate or obscure all references to Confidential Information, Highly
Confidential Information, or Restricted Highly Confidential Information. Such redacted public
versions of pleadings shall be filed and served within five (5) business days of the original
filing under seal.
29. Disclosure at trial of any Materials designated as Confidential Information, Highly
Confidential Information, or Restricted Highly Confidential Information will be governed
pursuant to Court order. The parties shall meet and confer and submit a recommended order
no later than 60 days before trial, outlining those procedures. The parties shall provide a copy
of the recommended order to all Producing Persons who have produced Confidential
Information, Highly Confidential Information, or Restricted Highly Confidential Information
which the parties reasonably anticipate will be utlized at trial. A Producing Party who receives
such notice shall be permitted to file any counter-

25

recommendations or objections no later than 30 days before trial and request a hearing. Absent
a ruling from the Court to the contrary, any Material designated as Confidential Information,
Highly Confidential Information, or Restricted Highly Confidential Information that appears
on an exhibit list or in deposition designations, that is admitted into evidence at trial, will be
disclosed on the public record, and any examination relating to such Material will likewise be
disclosed on the public record, after compliance with processes established by this Court.
G. Procedures upon Termination of This Action
30. The obligations imposed by this Order survive the termination of this action unless
the Court, which shall retain jurisdiction to resolve any disputes arising out of this Order, orders
otherwise. At the conclusion of litigation, all Confidential Information, Highly Confidential
Information, or Restricted Highly Confidential Information and any copies thereof shall be
promptly (and in no event later than thirty (30) days after entry of a final judgment no longer
subject to appeal) returned to the Producing Person or certified as destroyed. Nothing in this
Order prevents any Plaintiff from retaining any Confidential Information, Highly Confidential
Information, or Restricted Highly Confidential Information for law enforcement purposes, or to
secure compliance with any Final Judgment in this action.
31. The foregoing is entirely without prejudice to the right of any party or non-party to
apply to the Court for any further Protective Order relating to Confidential Information,
Highly Confidential Information, or Restricted Highly Confidential Information; or to object
to the production of documents or information; or to apply to

26

the Court for an order compelling production of documents or information; or for
modification of this Order.

SO ORDERED.

Signed: October 16, 2017

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EXHIBIT A
I have been informed by counsel that certain documents or information to be
disclosed to me in connection with the matter entitled United States of America and the State
of North Carolina v. The Charlotte-Mecklenburg Hospital Authority, d/b/a/ Carolinas
Healthcare System, Case No. 3:16-cv-00311-RJC-DCK, have been designated as confidential.
I have been informed that any such document or information labeled as “CONFIDENTIAL
– PRODUCED PURSUANT TO PROTECTIVE ORDER”. “HIGHLY CONFIDENTIAL –
PRODUCED PURSUANT TO PROTECTIVE ORDER” or

“RESTRICTED

HIGHLY

CONFIDENTIAL – PRODUCED PURSUANT TO
PROTECTIVE ORDER” (or with a similar label) are confidential by Order of the Court.
Under penalty of contempt of Court, I hereby agree that I will not disclose any
information contained in such documents to any other person, and I further agree not to use
any such information for any purpose other than this litigation.

DATED:

Signed in the presence of:

(Attorney)

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EXHIBIT B
I have been informed that certain documents or information to be disclosed to me in
connection with the matter entitled “Christopher DiCesare, James Little, and Johanna
MacArthur, individually and on behalf of all others similarly situated, Plaintiffs v. The
Charlotte-Mecklenburg Hospital Authority, d/b/a Carolinas Healthcare System, Defendant”
now pending in the Superior Court Division of the General Court of Justice of Mecklenburg
County in the North Carolina Business Court and bearing docket number 16 CvS 16404 have
been designated as confidential pursuant to the Amended Protective Order issued in the
matter entitled United States of America and the State of North Carolina v. The CharlotteMecklenburg Hospital Authority, d/b/a/ Carolinas Healthcare System, Case No. 3:16-cv00311-RJC-DCK before the United States District Court for the Western District of North
Carolina, Charlotte Division (the “Federal District Court”). I have been informed that any
such document or information labeled as “CONFIDENTIAL – PRODUCED PURSUANT
TO PROTECTIVE ORDER”. “HIGHLY CONFIDENTIAL – PRODUCED PURSUANT TO
PROTECTIVE ORDER” or “RESTRICTED HIGHLY CONFIDENTIAL – PRODUCED
PURSUANT TO
PROTECTIVE ORDER” (or with a similar label) are confidential by the Federal District
Court’s Amended Protective Order of the Court. In exchange for the receipt of this
information I agree to submit myself to the personal jurisdiction of the Federal District Court
for purposes of the enforcement of the Federal District Court’s Amended Protective Order,
including any alleged violations of the Amended Protective Order. I further understand and
agree with the terms and conditions set forth in the Federal

29

District Court’s Amended Protective Order and understand and agree that I cannot disclose
any information contained in such documents or the documents themselves except as provided
for in the Amended Protective Order. I further understand and agree that a violation of this
the Federal District Court’s Amended Protective Order will be treated as contempt.

DATED:

Signed in the presence of:

(Attorney)

30