Smith v. United States of America et al

Filing 36

AGREED PROTECTIVE ORDER. Signed by Magistrate Judge Terence P Kemp on 01/15/2014. (sr1)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
Patricia J. Smith, individually
and as Administrator of the Estate
of William Art Smith, deceased,

:
: Case No. 2:12-cv-616

Plaintiff,

: JUDGE EDMUND A. SARGUS, JR.

v.

: MAGISTRATE JUDGE KEMP

United States of America, et al.,
Defendants.

:
:

AGREED PROTECTIVE ORDER
In November 2013, Plaintiff Patricia J. Smith issued requests for
production under Fed. R. Civ. P. 34 that seek information protected by the
Privacy Act of 1974, 5 U.S.C. § 552a; the Health Insurance Portability and
Privacy Act (HIPAA), 42 USC § 1320d, et. seq., or considered proprietary
technical information by the United States Department of Veterans Affairs. To
permit the Plaintiff to discover the information requested, it is hereby
ORDERED under 5 U.S.C. § 552(a)(b)(11) and 45 C.F.R. § 164.512(e), and
Federal Rule of Civil Procedure 26(c) that the United States may disclose to
Plaintiff’s counsel information protected under the Privacy Act or HIPAA
without the consent of individuals who are not party to this case, or that is
considered proprietary by the VA. That information includes: (1) the VA’s
provider profile, credentialing & privileging files, and VA board meeting

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minutes regarding Dr. Martha Brogan, who was an employee of the VA’s
independent contractor Columbus Radiology during the events alleged in this
action; (2) information regarding employees of Columbus Radiology and other
entities and persons that are contained in the documents disclosed, except the
United States will redact before disclosure to Plaintiff’s counsel the full names
of providers other than Dr. Martha Brogan that appear in VA board meeting
minutes; (3) information relating to images, reports, and conditions of patients
other than William Arthur Smith found in the documents to be disclosed, so
long as the redactions in paragraph (D) below are made before disclosure to
Plaintiff’s counsel; and (4) proprietary information on VA software programs or
equipment.
This Order does not cover information on William Arthur Smith or Patricia
J. Smith’s administrative information in William Arthur Smith’s medical
records. That information may be disclosed by the United States absent this
Order because the Plaintiff’s counsel has requested the information from the
United States or will be relied upon by the United States in its defense, and
the Plaintiff consents to its production and use for this litigation.
In the response to the discovery requests or by letter to Plaintiff’s counsel,
the United States will designate the documents or files that contain
confidential information produced under the Agreed Protective Order. Except
as otherwise ordered by this Court, the disclosure of that information is
subject to the following conditions:

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A. Plaintiff’s counsel shall use the disclosed information only to litigate
this action, including any subsequent appeals, and shall not disclose it to the
public or to any other person or entity for any reason other than to litigate this
action.
B. Disclosure may be made only to the following persons: (i) parties and
counsel for the parties in this action; (ii) partners, associates, secretaries,
paralegal assistants, and employees of counsel who are litigating this action, to
the extent reasonably necessary to render professional services in this action;
(iii) persons retained by the parties or their counsel to assist in discovery,
preparation for any hearing, or to serve as expert witnesses, provided that
such disclosure is reasonably and in good faith calculated to aid in litigating
this action; (iv) at any hearing, provided that such disclosure is reasonably and
in good faith calculated to aid in litigating this action; (v) any deponent during
his or her deposition in this case, provided that such disclosure is reasonably
and in good faith calculated to aid in litigating this action; and (vi) court
personnel, mediators, and court reporters. Any persons to whom disclosure is
made shall be given a copy of this Order and advised of its terms.
C. If any documents or files designated as confidential are submitted in
Court, they shall be filed in sealed envelopes or other appropriate sealed
containers on which shall be endorsed the title of this action, a brief
description of the contents of each sealed envelope or other sealed container,
and the following declarations:

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This envelope [or container] contains confidential documents that were
disclosed in the above-captioned case through discovery. It is not to be
opened by any individual not authorized to access the information under
the terms of the enclosed Agreed Protective Order.
D. Information relating to images, reports, and conditions of patients other
than William Arthur Smith found in the documents responsive to Plaintiff’s
November 2013 discovery requests or on which the United States may rely for
its defenses may be disclosed without the consent of the individuals to whom
those records pertain so long as the United States makes the following
redactions before disclosure to Plaintiff’s counsel: the first five digits of the
patient’s social security number (last four may be revealed), the patient’s name
(first and last initials may be revealed), and the month and day of birth (birth
year may be revealed).
E. Plaintiff’s counsel will notify the United States if he finds any
documents that the United States has disclosed inadvertently without the
redactions identified in this Order. The United States will then provide the
redacted document and Plaintiff’s counsel agrees to destroy the respective
unredacted document. The same process will apply if the United States
otherwise finds out after production that it has inadvertently provided a
document without the redactions identified in this Order.
F. If confidential documents are used in deposition testimony, the
documents and testimony about those documents shall not be revealed to
anyone other than the individuals identified in paragraph (B) above.

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G. If confidential documents, or information contained in the documents,
are disclosed in any filing with the Clerk of Court, the documents, or
information contained in the documents, shall be filed under seal and kept
under seal by the Clerk until further order of the Court.
H. The undersigned counsel for the Plaintiff and Defendant agree that all
documents designated as subject to this Agreement, as well as every copy of
said document, shall be returned to the U.S. Attorney’s Office for the Southern
District of Ohio within 30 days of final disposition of this matter. In the
alternative, counsel for Plaintiff may destroy those materials and provide
written assurance of their destruction to the U.S. Attorney’s Office for the
Southern District of Ohio, within 30 days of a final decision in this matter.
I. Any party may make any objection to discovery permitted by the
Federal Rules of Civil Procedure or any statute or other authority.
J. The parties agree to this order without prejudice to the right of either
party to request the Court to modify this Order for any specific document(s)
after the United States produces the documents to Plaintiff’s counsel.
K. Any allegations of abuse or violation of this Order shall be considered by
the Court. If an allegation of abuse or violation of this Order is found, the
Court may take disciplinary action against the appropriate parties including
sanctions.
/s/ Terence P. Kemp
United States Magistrate Judge

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Agreed to by:
s/Daniel N. Abraham
Daniel N. Abraham (0023457)
Trial Attorney for Plaintiff

s/John J. Stark
John J. Stark (0076231)
Assistant United States Attorney
Trial Attorney for the United States

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