Ragland et al v. Blue Cross Blue Shield of North Dakota

Filing 68

PROTECTIVE ORDER by Magistrate Judge Charles S. Miller, Jr.(KT)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NORTH DAKOTA
SOUTHWESTERN DIVISION
Dr. James Ragland,
Regional Neurological Center, P.C., and
Dakota MRI, Inc.,
Plaintiffs,
vs.
Blue Cross Blue Shield of North Dakota,
Defendant.

)
)
)
)
)
)
)
)
)
)
)

PROTECTIVE ORDER

Case No. 1:12-cv-080

Pursuant to the court’s memorandum opinion of this same date, it is hereby ORDERED as
follows:
1. As used in this Protective Order, the following terms shall have the following meaning
unless the context clearly provides otherwise:
a.

“Protected Material” means all documents, testimony, or other information
that have been marked or designated as being Protected Material in the
manner provided for by this Protective Order, including copies or other
reproductions of any material so marked or designated.

b.

“Party” or “parties” shall include the employees, agents, successors, assigns,
and attorneys of the party or parties named in this lawsuit

c.

“Termination of the Litigation” shall mean the entry of final, non-appealable
dismissal or judgment.

2. Any party may mark or designate as Confidential or Protected Material any documents,
testimony, or other information produced or generated during this litigation that the party in good
1

faith reasonably believes is properly the subject of a protective order under the Federal Rules of
Civil Procedure because it contains: (i) trade secrets, proprietary information, or commercially
sensitive information the dissemination of which has a significant likelihood of damaging the party’s
business position in the marketplace; or (ii) personal information the disclosure of which would
constitute an unwarranted invasion of privacy.
3. Any party may challenge a designation of Protected Material by filing a motion with the
court, but only after first attempting to resolve the matter with the other parties. The party claiming
the benefit of the designation of Protected Material shall have the burden of persuasion.
4. Except as otherwise provided herein, Protected Material that has been marked or
designated by a party in accordance with this Protective Order may only be used by the other parties
for purposes of this litigation and no other circumstances. The other parties shall keep the Protected
Material confidential, except that access to the Protected Material may be given as follows:
a.

To personnel who are directly employed by counsel of record for the other
parties, provided that they maintain the confidentiality of the Protected
Material and that counsel of record shall be responsible for their compliance
with this Protective Order.

b.

To experts or consultants retained for purposes of the litigation subject to the
requirements of paragraph 5 of the Protective Order.

c.

To witnesses and prospective witnesses, but only to the extent necessary for
their testimony or the preparation for their testimony.

d.

To the court, its staff, and to any privately engaged stenographic reporters.

2

5. The following applies to the Protected Material disclosed to experts and consultants
pursuant to this Protective Order:
a.

No Protected Material may be disclosed to an expert or consultant until that
person has been provided with a copy of the Protective Order, the person has
agreed to be bound by its provisions, and the person has acknowledged his
or her agreement in writing. Counsel providing access to the Protected
Material shall maintain a list of names of all experts and consultants to whom
the Protected Material has been provided as well as copies of the written
acknowledgments signed by the experts or consultants.

b.

Experts and consultants who have been provided access to Protected Material
shall use the Protected Material only for the purposes of this litigation and
not for any other purpose.

c.

Any expert or consultant who has been provided Protected Material pursuant
to this Protective Order shall, not later than thirty (30) days following the
Termination of the Litigation in this action, (i) destroy the Protected Material
or return it to the party or its counsel who provided the expert or consultant
with the Protected Material and (ii) indicate to that party or its counsel that
the Protected Material has all been destroyed or returned.

6. If documents constituting Protected Material are used during a deposition, they will be
marked as exhibits or otherwise referred to with enough specificity so that they can later be easily
identified, and, if marked as deposition exhibits, the original exhibits will be sealed with the original
deposition transcript. If a party desires to claim information discussed during a deposition as

3

Protected Material, counsel for the party may designate the appropriate portions of the deposition
transcript by page and line number as Protected Material provided that counsel does so within thirty
(30) days following receipt of the deposition transcript and serves the designation upon counsel for
the other parties.
7. If a party desires to file any deposition testimony, deposition exhibit, discovery request
or response, affidavit, motion, brief, or other document that includes, incorporates, or quotes specific
Protected Material, it shall follow the court’s requirements and procedures for filing under seal
unless the court orders otherwise.
8. Any party desiring to use Protected Material during the trial must first seek permission
from the court. The sealing of a trial record or closure of trial proceedings involves a number of
considerations that are not presently before the court and will be dealt with at that time.
9. Inadvertent or unintentional production of Protected Material by a party claiming
confidentiality shall not be deemed a waiver in whole or in part of that party’s claim of
confidentiality.
11. The party who has marked or designated specific documents or information as Protected
Material may agree, either in writing or verbally on the record during any deposition or court
proceeding, to declassify any such material, at which point it will no longer be deemed Protected
Material.
12. Any party or counsel who has been provided Protected Material marked or designated
by another party shall, no later than sixty (60) days following Termination of the Litigation in this
action, (i) destroy the Protected Material or return it to counsel for the party marking or designating

4

the Protected Material, and (ii) provide a letter to counsel for the party marking or designating the
Protected Material indicating that all of the Protected Material has been returned or destroyed.
13.

Information provided by third persons or entities may be designated as “Protected

Material” by agreement of the parties or by court order and the provisions of this Protective Order
shall apply to such Protected Material as appropriate.
14. The court retains jurisdiction over the subject matter of this Protective Order, the parties
to this action, and any persons and entities provided with Protected Material pursuant to this
Protective Order, even after the entry of judgment in this action, to hear any motions to resolve any
disputes with respect to this Protective Order.
Dated this 25th day of June, 2013.
/s/ Charles S. Miller, Jr.
Charles S. Miller, Jr., Magistrate Judge
United States District Court

5