Plummer v. Adena Health System

Filing 13

STIPULATED PROTECTIVE ORDER. Signed by Magistrate Judge Kimberly A. Jolson on 8/8/2017. (ew)

IN THE UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
TASHA PLUMMER,
Plaintiff,
v.
ADENA HEALTH SYSTEM,
Defendant.

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Case No. 2:17-cv-00253
Judge Michael H. Watson
Magistrate Judge Jolson

STIPULATED PROTECTIVE ORDER
The parties to this Stipulated Protective Order have agreed to the terms of this Order to
govern the production and use of confidential matter in this case; accordingly, it is ORDERED:
1.

Scope. All documents produced or made available for inspection in the course of

discovery, including initial disclosures, all responses to discovery requests, all deposition
testimony and exhibits, other materials that may be subject to restrictions on disclosure for good
cause, and information derived directly therefrom (all such materials collectively referred to as
“Documents”), shall be subject to this Order concerning confidential information as set forth
below. The Order is subject to the Local Rules of the Southern District of Ohio and the Federal
Rules of Civil Procedure on matters of procedure and calculation of time periods.
2.

Form and Timing of Designation. A party may designate Documents as

confidential and restricted in disclosure under this Order by placing or affixing the words
“CONFIDENTIAL – SUBJECT TO PROTECTIVE ORDER” on the document in a manner that
will not interfere with the legibility of the document and that will permit complete removal of the
“CONFIDENTIAL – SUBJECT TO PROTECTIVE ORDER” designation at a later time after
production or disclosure of the Documents, if necessary. The designation “CONFIDENTIAL –

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SUBJECT TO PROTECTIVE ORDER” does not mean that the document has any status or
protection by statute or otherwise except to the extent and for the purposes of this Order.
3.

Documents That May be Designated CONFIDENTIAL – SUBJECT TO

PROTECTIVE ORDER. Any party may designate Documents as CONFIDENTIAL –
SUBJECT TO PROTECTIVE ORDER upon making a good faith determination that the
Documents contain information protected from disclosure by statute or that should be protected
from disclosure as confidential personal information; medical or psychiatric information; trade
secrets; confidential proprietary information; personnel or employment records; information
protected by the Health Insurance Portability and Accountability Act (“HIPAA”); or such other
sensitive information that is not publicly available. Public records and other information or
Documents that are publicly available may not be designated as CONFIDENTIAL – SUBJECT
TO PROTECTIVE ORDER.
4.

Depositions. Deposition testimony shall be deemed CONFIDENTIAL –

SUBJECT TO PROTECTIVE ORDER only if designated as such. Such designation shall be
specific as to the portions of the transcript or any exhibit to be designated as CONFIDENTIAL –
SUBJECT TO PROTECTIVE ORDER. A party wishing to designate any portion of a deposition
transcript or any portion of a deposition exhibit as CONFIDENTIAL – SUBJECT TO
PROTECTIVE ORDER shall serve its designations upon all other parties within 30 days after
either party has received the transcript of the deposition. Thereafter, the deposition transcripts
and any of those portions so designated shall be protected as CONFIDENTIAL – SUBJECT TO
PROTECTIVE ORDER, pending objection, under the terms of this Order.

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5.

Protection of Confidential Material.
(a)

General Protections.

Documents designated CONFIDENTIAL –

SUBJECT TO PROTECTIVE ORDER under this Order shall not be used or disclosed by
the parties, counsel for the parties, or any other persons identified in ¶5(b) for any
purpose whatsoever other than to prepare for and to conduct discovery, motions,
hearings, and trial in this action, including any appeal.
(b)

Limited Third-Party Disclosures. The parties and counsel for the parties

shall not disclose or permit the disclosure of any Documents designated as
CONFIDENTIAL – SUBJECT TO PROTECTIVE ORDER to any third person or entity
except as set forth below in subparagraphs (1)-(6). Subject to these requirements, the
following categories of persons may be allowed to review Documents that have been
designated CONFIDENTIAL – SUBJECT TO PROTECTIVE ORDER:
(1)

Counsel. Attorneys who are counsel of record for the parties in

this action, their employees (including paralegals, clerical, or other assistants),
and corporate counsel shall have access to the materials designated
“CONFIDENTIAL – SUBJECT TO PROTECTIVE ORDER” for use only in the
prosecution or defense of this action;
(2)

Parties. Parties and those employees of a party to this Order who

are assisting in the litigation, but only after such persons have completed the
certification contained in Attachment A, Acknowledgment of Understanding and
Agreement to be Bound. Counsel for the parties agree to confer in good faith as
to the marking of certain Documents as “ATTORNEYS' EYES ONLY” if a
producing party believes the Documents contain HIPAA-protected information,

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medical or psychiatric information, trade secrets, or other highly sensitive and/or
confidential information, including information related to former or present
patients of Adena Health System. Documents with the “ATTORNEYS' EYES
ONLY” designation may not be disclosed to the parties, absent the written
agreement of the producing party. If counsel for the parties cannot agree upon
such a designation, the producing party may seek to address the issue with the
Court;
(3)

Court Reporters and Recorders. Court reporters and recorders

engaged for depositions;
(4)

Consultants,

Investigators

and

Experts.

Consultants,

investigators, or experts (collectively referred to as “Experts”) employed by the
parties or counsel for the parties to assist in the preparation and trial of this action
or proceeding, but only after such persons have completed the certification
contained in Attachment A, Acknowledgment of Understanding and Agreement
to Be Bound;
(5)

Deposition Witnesses.

Witnesses and their respective counsel

may be shown Documents designated CONFIDENTIAL—SUBJECT TO
PROTECTIVE ORDER at depositions taken in this action and such Documents
may be marked as exhibits to such depositions; and
(6)

Others by Consent. Other persons only by written consent of the

producing party or upon order of the Court and on such conditions as may be
agreed or ordered. All such persons shall execute the certification contained in
Attachment A, Acknowledgement of Understanding and Agreement to Be Bound.

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(c)

Control of Documents. Counsel for the parties shall take reasonable and

appropriate measures to prevent unauthorized disclosure of Documents designated as
CONFIDENTIAL—SUBJECT TO PROTECTIVE ORDER pursuant to the terms of this
Order. Counsel shall maintain the originals of the forms signed by persons
acknowledging their obligations under this Order for a period of one year after dismissal
of the action, the entry of final judgment, and/or the conclusion of any appeals arising
therefrom.
(d)

Copies. Prior to production to another party, all copies, electronic images,

duplicates, extracts, summaries, or descriptions (hereinafter referred to collectively as
“Copies”)

of

Documents

designated

as

CONFIDENTIAL

–

SUBJECT

TO

PROTECTIVE ORDER under this Order, or any individual portion of such a document,
shall be affixed with the designation “CONFIDENTIAL – SUBJECT TO PROTECTIVE
ORDER” if the words do not already appear on the copy. All such Copies shall thereafter
be entitled to the protection of this Order. The term “Copies” shall not include indices,
electronic databases, or lists of Documents, provided these indices, electronic databases,
or lists do not contain substantial portions or images of the text of confidential
Documents or otherwise disclose the substance of the confidential information contained
in those Documents.
(e)

Inadvertent Production. Inadvertent or prior production of documents or

information subject to any privilege or documents or information without a designation of
“CONFIDENTIAL – SUBJECT TO PROTECTIVE ORDER” shall be governed by Fed.
R. Evid. 502.

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6.

Filing of CONFIDENTIAL – SUBJECT TO PROTECTIVE ORDER

Documents Under Seal. Materials designated as “CONFIDENTIAL – SUBJECT TO
PROTECTIVE ORDER” may be filed under seal pursuant to S.D. Ohio Civ. R. 5.2.1 only after
obtaining leave of Court. The parties may agree that certain material initially designated as
“CONFIDENTIAL – SUBJECT TO PROTECTIVE ORDER” need not be filed under seal, but
any such agreement must be in writing.
7.

Challenges by a Party to Designation as Confidential. Any CONFIDENTIAL

– SUBJECT TO PROTECTIVE ORDER designation is subject to challenge by any party or nonparty with standing to object. Before filing a motion with the Court disputing a designation, the
parties shall try to resolve the dispute in good faith pursuant to the requirements of S.D. Ohio
Civ. R. 37.1.

Until such time as the Court rules on any pending motion challenging a

designation, the challenging party shall treat the information as CONFIDENTIAL – SUBJECT
TO PROTECTIVE ORDER.
8.

Action by the Court. Nothing in this Order or any action or agreement of a party

under this Order limits the Court’s power to make any orders that may be appropriate with
respect to the use and disclosure of any Documents produced or used in discovery or at trial.
9.

Use of Confidential Documents or Information at Trial. Absent order of the

Court, there will be no restrictions on the use of any document that may be introduced by any
party during the trial. If a party intends to present at trial CONFIDENTIAL – SUBJECT TO
PROTECTIVE ORDER Documents or information derived therefrom, such party shall provide
advance notice to the other party identifying the Documents or information at issue as
specifically as possible (e.g., by Bates number, page range, deposition transcript lines, etc.)
without divulging the actual CONFIDENTIAL – SUBJECT TO PROTECTIVE ORDER

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Documents or information. The Court may thereafter make such orders as are necessary to
govern the use of such Documents or information at trial.
10.

Obligations on Conclusion of Litigation.
(a)

Order Remains in Effect. Unless otherwise agreed or ordered, this Order

shall remain in force after dismissal or entry of final judgment not subject to further
appeal.
(b)

Return of CONFIDENTIAL – SUBJECT TO PROTECTIVE

ORDER Documents. After dismissal or entry of final judgment not subject to further
appeal, all Documents treated as CONFIDENTIAL – SUBJECT TO PROTECTIVE
ORDER under this Order, including Copies as defined in Section 5(d), shall be retained
by counsel in their legal files for a period of one year. Within 90 days after expiration of
the one-year period, counsel shall return the Documents to the producing party unless: (1)
the document has been offered into evidence or filed without restriction as to disclosure;
(2) the parties agree to destruction in lieu of return; or (3) as to Documents bearing the
notations, summations, or other mental impressions of the receiving party, that party
elects to destroy the Documents and certifies to the producing party that it has done so.
Notwithstanding the above requirements to return or destroy Documents, counsel may
retain attorney work product, including an index which refers or relates to information
designated CONFIDENTIAL – SUBJECT TO PROTECTIVE ORDER, so long as that
work product does not duplicate verbatim substantial portions of the text or images of
confidential documents and the work product does not contain HIPAA-protected
information. Any work product meeting the foregoing conditions shall continue to be
CONFIDENTIAL – SUBJECT TO PROTECTIVE ORDER under this Order.

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(c)

Return of Documents Filed Under Seal. After dismissal or entry of final

judgment not subject to further appeal, the Clerk may elect to return to counsel for the
parties or, after notice, destroy Documents filed or offered at trial under seal or otherwise
restricted by the Court as to disclosure. To the extent the Clerk returns to counsel any
Documents treated as CONFIDENTIAL—SUBJECT TO PROTECTIVE ORDER under
this Order and/or containing HIPAA-protected information, such Documents are subject
to ¶10(b).
11.

Order Subject to Modification. This Order shall be subject to modification by

stipulation of the parties and approved by Order of the Court, the Court on its own motion, or on
motion of a party or any other person with standing concerning the subject matter.
12.

No Prior Judicial Determination. This Order is entered based on the

representations and agreements of the parties and for the purpose of facilitating discovery.
Nothing herein shall be construed or presented as a judicial determination that any Documents or
information designated CONFIDENTIAL – SUBJECT TO PROTECTIVE ORDER by counsel
or the parties is subject to protection under Rule 26(c) of the Federal Rules of Civil Procedure or
otherwise until such time as the Court may rule on a specific document or issue. Nothing in this
Order shall be construed as an admission as to the relevance, authenticity, foundation or
admissibility of any document, material, transcript, or other information.
13.

Persons Bound. This Order shall take effect when entered and shall be binding

upon all counsel and their law firms, the parties, and persons made subject to this Order by its
terms.

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14.

No Waiver. Neither the taking of any action in accordance with the provisions of

this Order nor the failure to object to such action shall be construed as a waiver of any claim or
defense in this action.
15.

No Restriction. Nothing contained in this Order shall be construed to limit,

restrict, or otherwise affect the ability of any party to seek the production of documents,
testimony, or information from any source.
IT IS SO ORDERED.
Date: August 8, 2017

/s/ Kimberly A. Jolson
KIMBERLY A. JOLSON
UNITED STATES MAGISTRATE JUDGE

STIPULATED TO BY:
/s/ Jill K. Bigler
James G. Petrie (0059446)
Trial Attorney
Jill K. Bigler (0083789)
Bricker & Eckler LLP
100 South Third Street
Columbus, Ohio 43215
Phone: [phone]
Fax: [phone]
[e-mail]
[e-mail]
Attorneys for Defendant

/s/ D. Joe Griffith (via phone consent 8/3/17)
D. Joe Griffith (0055499)
Trial Attorney
Dagger Johnston Miller Ogilvie &
Hampson, LLP
144 E. Main St., PO Box 667
Lancaster, Ohio 43130
Phone: [phone]
Fax: [phone]
[e-mail]
Attorney for Plaintiff

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ATTACHMENT A
IN THE UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
TASHA PLUMMER,
Plaintiff,
v.
ADENA HEALTH SYSTEM,
Defendant.

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:

Case No. 2:17-cv-00253
Judge Michael H. Watson
Magistrate Judge Jolson

ACKNOWLEDGEMENT OF UNDERSTANDING
AND AGREEMENT TO BE BOUND
The undersigned hereby acknowledges that he/she has read the Protective Order dated
_______________ in the above-captioned action and attached hereto, understands its terms, and
agrees to be bound by its terms. The undersigned submits to the jurisdiction of the United States
District Court for the Southern District of Ohio in matters relating to the Protective Order and
understands that the terms of the Protective Order obligate him/her to use Documents designated
CONFIDENTIAL – SUBJECT TO PROTECTIVE ORDER in accordance with the Order solely
for the purposes of the above-captioned action, and not to disclose any such Documents or
information derived directly therefrom to any other person, firm or concern. The undersigned
acknowledges that violation of the Protective Order may result in penalties for contempt of Court.
Name:

_________________________________________

Job Title:

_________________________________________

Employer:

________________________________________

Business Address:

___________________________________
___________________________________

Date: _________

____________________________________
Signature