Zorek v. CVS Caremark Corporation et al

Filing 66

ORDER Regarding Confidentiality and Non-Waiver of Attorney Client Privilege(memorandum filed previously as separate docket entry)Signed by Judge William I. Arbuckle, III on 09/11/2014. (Arbuckle, William)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF PENNSYLVANIA
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JOSEPH ZOREK,
Plaintiff,
v.
CVS CAREMARK CORP., et-al
Defendants,

Civil No. 1:13-cv-1949
(Judge Jones)
(Magistrate Judge Arbuckle)

PROTECTIVE ORDER REGARDING CONFIDENTIALITY
AND NON-WAIVER OF ATTORNEY-CLIENT PRIVILEGE
Plaintiff Joseph Zorek (“Plaintiff”) and Defendants CVS Pharmacy Inc., et
al. (“Defendants”), by their respective counsel, agree to and request entry of the
following protective order.
IT IS HEREBY ORDERED THAT:
1.

This Protective Order Regarding Confidential Information and

Inadvertently Disclosed Documents (“Order”) shall govern a party’s use and
disclosure of all confidential information, as defined below, obtained from another
party, in any formal discovery activity or proceeding during the course of the
above-captioned case, No. 1:13-cv-01949-JEJ. Such information shall be used by
the party receiving it from the other party only for the purpose of preparing for and
conducting the case styled Zorek v. CVS Pharmacy, Inc., et al., U.S. District Court

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for the Middle District of Pennsylvania, Case No. 1:13-cv-01949-JEJ, and any
further proceedings in this case, including any and all appeals, and for no other
proceeding, litigation, matter, personnel action, or any other purpose.
2.

CONFIDENTIALITY. As used herein, the term “Confidential

Information” shall refer to all documents produced by a party in this litigation that
may be designated by that party as “Confidential,” including all copies thereof,
reference thereto in deposition testimony or otherwise, information contained
therein, and any extracts, charts, summaries or notes made therefrom. Documents
that may be designated by a party as “Confidential” shall not include publiclyavailable information, and shall be limited, at this point, to: 
(A) Documents related to plaintiff’s medical condition(s), including all
records from medical providers and insurers and other documents
containing related medical information;
(B) Documents related to plaintiff’s income, financial status, financial
records, and personnel records, including all tax returns, salary records,
retirement and investment account(s), and related financial information;
(C) Documents related to defendants’ financial information;
(D) Documents related to internal information concerning CVS’s
confidential personnel, payroll and benefit information concerning
CVS’s employees; and
(E) Documents related to CVS’s internal policies, practices, or procedures.

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By stipulating to the confidentiality of the categories of documents listed above,
the parties do not concede that such documents are discoverable, relevant, material,
or admissible at trial. The parties also agree that the categories of documents listed
above may not constitute an exhaustive list of requested documents in which either
party may have a legitimate interest in confidentiality. If either party desires to
designate additional categories of documents to be covered by this Order, then the
parties shall negotiate in good faith in an attempt to resolve whether such
documents should be treated as confidential under this Order. Nothing in this
paragraph prohibits the parties from jointly filing a stipulation with the Court that
identifies additional categories of documents to be covered by this Order.
3.

The parties shall use confidential documents or information obtained

solely from confidential documents only as described below:
(A) The parties shall use the “confidential documents” or “confidential
information” only for purposes of this particular case, 1:13-cv-01949JEJ, and any further proceedings in this case, including any and all
appeals, and including any administrative or arbitration proceedings or
processes related to plaintiff’s employment, and not for any other
purpose or in any other case.
(B) The parties shall not disclose “confidential documents” or “confidential
information” to any person other than those persons designated as
persons entitled to have access to such “confidential documents” and
“confidential information,” pursuant to paragraph 4 below.

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(C) To the extent that any party shall need to use any “confidential
document” or “confidential information” to question a witness in the
course of a deposition taken in this case, No. 1:13-cv-01949-JEJ, the
“confidential document” or “confidential information,” and portion of
the transcript of the deposition that refers to such “confidential
document” or “confidential information” shall be maintained as subject
to this protective order.
(D) To the extent that any party refers to a “confidential document” or
“confidential information” in a pleading filed with the Court, that
pleading, or portion of the pleading which contains the “confidential
information” or attaches the “confidential documents,” shall be filed
under seal with the Court.
4.

The persons described below shall be entitled to have access to

“confidential documents” and “confidential information”:
(A) The parties and their counsel and counsel’s office personnel;
(B) The Court, and all court personnel who have need to read, review, or file
“confidential documents” or “confidential information”;
(C) All experts retained by the parties to testify in this action, Case No. 1:13cv-01949-JEJ, or to assist the parties in their litigation of this action;
(D) Any other deponents and witnesses who are testifying through a
deposition, during a hearing or at trial in this matter;
(E) Any other witness, on the condition that the witness be allowed only to
view, but not otherwise retain or download, the “confidential document”

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or “confidential information,” and that the witness is given a copy of this
Order and agrees in writing to be bound by it;1 and
(F) Any person who authored or received a copy of the document outside of
this litigation.
5.

Within forty-five (45) days after entry of an order, judgment, or

decree finally terminating this Case No. 1:13-cv-01949-JEJ (including any and all
appeals), each person to whom “confidential documents” or “confidential
information” has been disclosed hereunder shall return all such “confidential
documents” and “confidential information,” including all copies of such material,
to the party which has produced the “confidential documents.”
6.

NON-WAIVER OF ATTORNEY CLIENT PRIVILEGE. The

production of privileged documents or discovery information by one party does not
operate to waive the attorney-client privilege or the protections of the attorney
work product doctrine or the joint defense privilege of any other party, provided
that the producing party complied with Rule 502(b), Fed. R. Evid.
7.

Pursuant to Rule 26(b)(5)(B), Fed. R. Civ. P., if information produced

in discovery is subject to a claim of privilege or of protection as trial-preparation

1

This provision in no way alters and is expressly subject to the restrictions imposed by
Discovery Order dated June 23, 2014. See Doc. 63 para. 5 (“Regarding the request by Plaintiff to
provide confidential discovery documents directly to remote prospective witnesses in advance of
their interviews if the potential witness signs a confidentiality agreement, that request is denied.
Plaintiff [is] advised to utilize a procedure . . . that would permit the lawyer to show the
document to the witness without the witness being able to obtain or retain a copy. In the unlikely
event that a particular witness was unable to conduct an interview in this fashion counsel for the
parties will confer and seek an alternative arrangment.”).
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material, the party making the claim may notify any party that received the
information of the claim and the basis for it. After being notified, a party must
promptly return, sequester, or destroy the specified information and any copies it
has; must not use or disclose the information until the claim is resolved; must take
reasonable steps to retrieve the information if the party disclosed it before being
notified; and may promptly present the information to the court under seal for a
determination of the claim. The producing party must preserve the information
until the claim is resolved.
8.

Pursuant to Rule 502(b), Fed. R. Evid., an inadvertent disclosure does

not operate as a waiver if all three conditions are satisfied: (1) the disclosure is
inadvertent; (2) the holder of the privilege or protection took reasonable steps to
prevent disclosure; and (3) the holder promptly took reasonable steps to rectify the
error, including (if applicable) following Federal Rule of Civil Procedure
26(b)(5)(B).
9.

Neither this Order nor production of information or documents in

discovery in this case, Case No. 1:13-cv-01949-JEJ, shall in any way constitute a
waiver of the right of any party to object to the admissibility or use of such
information and documents at the hearing in this case, Case No.1:13-cv-01949-JEJ,
or in other proceedings, and the parties reserve all rights to object.

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10.

This Order shall remain in full force and effect unless and until (and

to the extent not) modified, superseded, or terminated by consent of the parties or
by order of the Court. forgoing
11.

Any party may move to modify this Order for good cause shown.

12.

Nothing in this Order shall prevent a party, in appropriate

circumstances, from seeking a court order to remove documents marked as
“Confidential” from the protection of this Order, or seeking a court order to contest
the designation of documents or information as “Confidential.” Further, this Order
may be amended without leave of the Court by agreement of the parties in the form
of a Stipulation filed with the Court.
SO ORDERED.
s/William I. Arbuckle, III
William I. Arbuckle, III
United States Magistrate Judge
Dated: September 11, 2014

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