Hayes v. Charlotte Mecklenburg Hospital Authority et al

Filing 33

CONSENT PROTECTIVE ORDER. Signed by Senior Judge Graham Mullen on 12/20/2019. (ctb)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
UNITED STATES OF AMERICA, ex rel.,
Daniel Hayes, M.D.,

Case No.: 3:16-cv-00750-GCM

Plaintiff,
v.

CONSENT PROTECTIVE ORDER
GOVERNING DISCOVERY AND
DISCLOSURE OF CONFIDENTIAL
INFORMATION

CHARLOTTE MECKLENBURG
HOPITAL AUTHORITY and
METROLINA NEPHROLOGY
ASSOCIATES, P.A.,
Defendants.

Upon the motion of Plaintiff Daniel H. Hayes, M.D. and Defendant Charlotte
Mecklenburg Hospital Authority (“Atrium”) (collectively the “Parties”), and for good cause
shown, it is hereby ORDERED by the Court, that the following terms and conditions shall
govern the use and handling of confidential information and documents produced by the Parties
in the above-captioned matter (“the Litigation”):
1.

All documents and data, including electronically stored information, produced

and all information obtained through discovery in the Litigation shall be used only for purposes
of litigation between the Parties.
2.

“Confidential Information” shall mean any and all information produced in the

course of discovery or trial which a Party deems to contain trade secrets or other proprietary,
technical, financial, personal or confidential information (including but not limited to design,
manufacturing, research, commercial or business information) and which is designated by such
Party as “Confidential” pursuant to the terms and mechanisms of this Consent Protective Order

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(the “Order”). The following documents, electronic data, and/or information may be designated
as “Confidential” pursuant to this Order: (a) trade secrets; (b) confidential or proprietary business
information; and (c) confidential or private personal information.
3.

To assert a claim that information is “Confidential,” the Parties shall designate the

whole or any part of any documents as such by stamping or imprinting the words
“CONFIDENTIAL - SUBJECT TO PROTECTIVE ORDER” upon every page of the produced
copies of the document at the time of production. Such designations shall be utilized in good
faith and only for such matters as documents disclosing Confidential Information as defined
herein.
a. In the case of information contained on computer servers, hard drives, or cloud
storage accounts, counsel producing such servers, hard drives, or cloud storage
accounts shall designate with specificity in writing to counsel for the Parties
whether some or all of the information on such servers, hard drives, or cloud
accounts is to be treated as “Confidential.”
b. In the case of depositions, including any transcripts or recordings thereof, the
Party may designate the deposition as “Confidential” by making such designation
on the record during the deposition, or after the deposition concludes by notifying
the opposing Party in writing that it is making such designation. Such designation
shall apply to the deposition and any transcript or other recording thereof. The
Party making the designation shall have thirty (30) days from delivery of the final
deposition transcript to make the designation (the “designation period”) and until
the earlier of receipt of such written notification or the expiration of the
designation period, the Parties must provisionally treat the deposition transcripts

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as “Confidential.” If the Party determines that some or all of the transcript
contains Confidential Information, the document shall bear a stamped legend of
“CONFIDENTIAL - SUBJECT TO PROTECTIVE ORDER” and the specific
Confidential Information contained therein shall bear the notation “Confidential.”
Unless the Parties intend to designate all of the information contained within the
deposition testimony as “Confidential,” counsel for that Party should indicate in a
clear fashion the portion of the testimony which is intended to be designated as
“Confidential” and such testimony should be segregated or placed in a separate
transcript bearing the appropriate designation. Any portion of a transcript
discussing materials designated as “Confidential” shall be similarly designated.
c. Written discovery, motions or pleadings containing or reflecting information
designated as “Confidential” under this Order shall bear a stamped legend of
“CONFIDENTIAL - SUBJECT TO PROTECTIVE ORDER” and the specific
Confidential Information contained therein shall bear the notation “Confidential.”
If such written discovery, motion or pleading containing Confidential Information
is filed with the Court, only the “Confidential” portion of such written discovery
or pleading will be filed with the Court in accordance with Paragraph 8 of this
Order. The non-confidential portion of any written discovery or pleading will not
be subject to the terms of this Order.
4. In the event that the producing person inadvertently fails to designate discovery material
as “Confidential” in the Litigation, it may make such a designation subsequently by notifying all
Parties to whom such discovery material was produced, in writing, as soon as practicable. After
receipt of such notification, the Parties to whom production has been made shall treat the

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designated discovery material as “Confidential,” subject to their right to dispute such designation
in accordance with Paragraph 7 below; provided however that any prior disclosure by the
receiving Party of the discovery material before its designation as “Confidential” shall not be
deemed a violation of this Order.
5.

Materials designated as “Confidential” may only be disclosed or made available

by the Party receiving such information to the following individuals provided that such
individuals are informed of the terms of this Order:
a. the Parties in the Litigation;
b. the employees or officers of the Parties to the Litigation who are working with
counsel in the Litigation and need to review the documents in order to provide
assistance to counsel in the Litigation;
c. legal counsel for the Parties and paralegals, support staff, investigators,
consultants, or attorneys working with, retained, or employed by legal counsel in
connection with the Litigation;
d. expert witnesses or consultants retained by the Parties to assist in the preparation
of the case;
e. any witness who is deposed under oath in this matter which appears on the face of
the exhibit or from other documents or testimony to have received the document
from, or communicated to that witness by, that same producing Party;
f. professional vendors (including outside information technology, photocopying,
data processing, graphic production, document management, investigators, and
litigation support employed by the Parties or their attorneys to assist in the
Litigation);

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g. the Court and its staff; and
h. special masters, mediators, or other non-parties retained by the Parties for
settlement purposes or resolution of discovery disputes
6.

The persons referred to under sub-paragraphs (a), (b), (c) and (d) of Paragraph 5

shall be furnished “Confidential” information only after they have agreed in writing, in the form
annexed hereto as “Exhibit A”, to be bound by the terms of this Order. Outside counsel for the
Parties shall maintain copies of the aforementioned written agreements.
7.

In the event counsel for the Party receiving materials designated as “Confidential”

objects to the designation, said counsel shall advise the Party producing the materials, in writing,
preferably by electronic mail, of such objection and the reasons therefore. Pending resolution of
the dispute, all of the materials shall be treated as designated. Counsel will attempt to resolve the
dispute within three (3) business days. If the dispute cannot be resolved among counsel, the
Party objecting to the designation of a document as “Confidential” shall submit a motion
objecting to such designation with the Court. The burden to sustain the designation
“Confidential” is upon the designating Party.
8.

Material containing Confidential Information shall not be filed with the Court

unless it is necessary to do so for purposes of trial, motions for summary judgment, other
motions or appeals. The Parties agree that if they intend to file with the Court any documents
and other materials, including but not limited to, transcripts of depositions, exhibits, physical
evidence, answers to interrogatories or requests for admissions, briefs and memorandum, which
comprise or contain material designated as “Confidential” or information taken therefrom, the
Parties will advise the Court that such documents have been designated as “Confidential”
pursuant to this Order, and will request from the Court permission to file such documents, or

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portions of such documents that contain Confidential Information, with the Clerk of the Court in
sealed envelopes or other appropriately sealed containers on which shall be endorsed the caption
of the Litigation, identity of the Party filing the materials, the statement “Confidential,” and a
statement substantially in the following form:
This envelope (container)(disk) contains documents (things)(data files) subject to
the Protective Order entered in this action. Do not open or display, reveal or make
public its contents without written order of the Court.
9.

Any non-party may subscribe to the terms and protections of this Order only after

they have reviewed the Order and have agreed in writing, in the form annexed hereto as “Exhibit
A,” to be bound by the terms of this Order. The non-party may designate materials containing
Confidential Information that the non-party is producing as “Confidential” subject to the
specifications of Paragraph 3 of this Order.
10.

No disclosure shall waive any rights or privileges of any Party granted by this

11.

This Order shall not enlarge, diminish, or affect the proper scope of discovery in

Order.

the Litigation, including expert discovery, or any other litigation, nor shall this Order imply that
discovery material designated as “Confidential” under the terms of this Order is or is not
properly discoverable, relevant or admissible in the Litigation or any other litigation.
12.

The entry of this Order shall be without prejudice to the rights of the Parties, or

any one of them, or of any non-party to assert or apply for additional or different protection from
the Court at their discretion.
13.

The terms of this Order shall survive and remain in effect after the termination of

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the Litigation. The Parties shall take such measures as are necessary and appropriate to prevent
the public disclosure of Confidential Information, through inadvertence or otherwise, after the
conclusion of the Litigation.
14.

This Order has no effect upon, and shall not apply to, a Party’s use or disclosure

of its own Confidential Information for any purpose.
15.

Inadvertent production of documents subject to work-product immunity, the

attorney-client privilege or other legal privilege protecting information from discovery shall not
constitute a waiver of the immunity or privilege, provided that the producing Party shall
promptly notify the receiving Party in writing of such inadvertent production. If reasonably
prompt notification is made, such inadvertently produced documents and all copies thereof, as
well as all notes or other work product reflecting the contents of such materials, shall be returned
to the producing Party or destroyed, upon request, and such returned or destroyed material shall
be deleted from any litigation-support or other database. No use shall be made of such
documents during deposition or at trial, nor shall they be shown to anyone who was not given
access to them prior to the request to return or destroy them. The Party returning such material
then may move the Court for an order compelling production of the material, but such motion
shall not assert as a ground for entering such an order the fact or circumstances of the inadvertent
production.
16.

This Order shall not prevent any persons bound hereby from making use of

information or documents if the information or documents are lawfully in their possession and/or
lawfully obtained through discovery in the Litigation in which such information was not
designated as “Confidential” or subject to a protective order or court order as “confidential” or

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subject to confidential treatment, or where there has been a final judgment (including any appeal
therefrom) declaring that such information or documents are not confidential.
17.

Within forty-five (45) days after receiving notice of the entry of an order,

judgment or decree finally disposing of the Litigation (including any appeal therefrom), or such
longer period of time upon which the Parties may agree, all persons having received material or
information containing information designated as “Confidential,” except as provided below, shall
destroy all copies of such material in any form it is maintained including but not limited to paper,
hard drives, network drives, off-site electronic storage, and internet storage services; and certify
in writing to the Parties that all copies of such documents have been destroyed. Counsel for the
Parties shall be entitled to retain court papers, deposition and trial transcripts and attorney work
product containing Confidential Information; provided that such counsel, and employees of such
outside counsel, shall not disclose such court papers or attorney work-product to any person
except pursuant to court order or agreement of the Parties. This provision shall not require the
Court’s return of any documents filed with the Court.
18.

The ultimate disposition of protected materials shall be subject to a final order of

the court upon completion of the litigation.
SO ORDERED.

Signed: December 20, 2019

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CONSENTED TO:

/s/ Robert R. Marcus
Robert R. Marcus (NC Bar # 20041)
Lyndsay E. Medlin (NC Bar # 49403)
Bradley Arant Boult Cummings, LLP
214 N. Tryon Street, Suite 3700
Charlotte, North Carolina 28202
(T) 704.338.6000
(F) 704.332.8858
[e-mail]
[e-mail]

/s/ Charles H. Rabon, Jr.
Charles H. Rabon, Jr.
N.C. State Bar No. 16800
[e-mail]
Gregory D. Whitaker
N.C. State Bar No. 51065
[e-mail]
Tel. [phone]
Fax [phone]

-AND-

-AND-

Jason Paul Mehta (FL # 106110)
Bradley Arant Boult Cummings LLP
100 North Tampa Street, Suite 2200
Tampa, Florida 33602
[phone] (Tel)
[phone] (Fax)
[e-mail]

Joshua R. Van Kampen
NC Bar No. 32168
[e-mail]
Charlotte, North Carolina 28203
Phone: [phone]
Fax: [phone]

Attorneys for Defendant Charlotte
Mecklenburg Hospital Authority

Attorneys for Plaintiff Daniel H.
Hayes, M.D.

This the 16th day of December, 2019.

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EXHIBIT A

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IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
UNITED STATES OF AMERICA, ex rel.,
Daniel Hayes, M.D.,

Case No.: 3:16-cv-00750-GCM

Plaintiff,
CONSENT PROTECTIVE ORDER
GOVERNING DISCOVERY AND
DISCLOSURE OF CONFIDENTIAL
INFORMATION

v.
CHARLOTTE MECKLENBURG
HOPITAL AUTHORITY and
METROLINA NEPHROLOGY
ASSOCITES, P.A.,
Defendants.

I _____________________________ hereby affirm that:
1. Information, including documents and things designated as “CONFIDENTIAL”
(collectively “Confidential Information”) as defined in the Consent Protective Order Governing
Discovery and Disclosure of Confidential Information (“Protective Order”) entered in the abovecaptioned action, is being provided to me pursuant to the terms and restrictions of the Protective
Order.
2. As a prior condition to me being permitted to receive, see or review any Confidential
Information, I have been given a copy of the aforementioned Protective Order, I have read it and
I agree to be bound by its terms.
3. I understand that the Protective Order is a Court Order which is legally binding upon me.
I hereby agree to submit to the jurisdiction of the United States District Court for the Western
District of North Carolina for enforcement of any claimed violation of the terms of the

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Protective Order or this Acknowledgement, and agree that such jurisdiction shall survive the
termination of this action.
4. I agree not to use any Confidential Information disclosed to me pursuant to the Protective
Order except for purposes of the above-referenced litigation and not to disclose such information
to persons other than those specifically authorized by the Protective Order, without the express
written consent of the Party who designated such information “Confidential” or by Order of this
Court. I also agree to notify any stenographic, clerical or technical personnel who are required to
assist me of the terms of this Protective Order and its binding effect on them.
5. I understand that I am to retain all documents or materials designated as Confidential
Information in a secure manner, and that all such documents and materials are to remain in my
personal custody until the completion of my assigned duties in this matter, whereupon all such
documents and materials, including copies thereof, and any writings prepared by me containing
any Confidential Information are to be returned to counsel who provided me with such
documents and materials.

____________________________________

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