Harris et al v. TLS Management and Marketing Services LLC

Filing 61

PROTECTIVE ORDER regarding discovery. Signed by Judge Raul M. Arias-Marxuach on 1/10/2020.(mrr)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
JAY HARRIS, HARRIS HOSPICE, INC.,
Plaintiffs,
v.
TLS
MANAGEMENT
SERVICES, LLC,

AND

MARKETING

CIVIL NO. 18-1320 (RAM)

Defendant.

CONFIDENTIALITY ORDER
Disclosure and discovery activities in this action are likely
to involve confidential, proprietary, or private information for
which special protection from public disclosure and from use for
any purpose other than prosecuting this action will be warranted.
Accordingly, pursuant to Rule 26(c) of the Federal Rules of Civil
Procedure, the Court orders the following:
1. As used throughout this Order, the terms listed in this
Paragraph shall be defined as follows:
a. A “Party” means any Plaintiff in this action or the
Defendant in this action.
b. “Protected

Materials”

shall

mean

documents

or

information designated as “CONFIDENTIAL” in accordance
with this Order.
c. A “Designating Party” means any Party or Third Party (as
defined below) that, in accordance with this Order,

Civil No. 18-1320(RAM)

2

designates and produces information and material as
Protected Materials.
d. A “Disclosing Party” means any Party that, in accordance
with Paragraph 7 of this Order, wishes to disclose
Protected Materials to persons identified in Paragraphs
8(C) and 8(F) of this Order.
e. A

“Receiving

Party”

means

any

Party

that

receives

Protected Materials produced in accordance with this
Order from a Designating Party.
f. A “Third Party” means any natural person, partnership,
corporation, association, or other legal entity that is
not a party to this action.
2. The Parties or any Third Party may designate, in the manner
set forth by and permitted in this Order, as “CONFIDENTIAL”
any

document,

testimony,

information,

or

other

material

provided by them in the course of this action (“Protected
Materials”).
a. Protected Materials designated as “CONFIDENTIAL” shall
be limited to those materials that the Designating Party
reasonably and in good faith believes constitute matter
that is not generally known to the public and that the
Designating Party would not normally reveal to third
parties or would cause third parties to maintain in
confidence, including, but not limited to, information

Civil No. 18-1320(RAM)
regarding

3

the

Designating

Party’s

business

affairs,

technology, products, processes, know-how, marketing,
personal or business information that would provide
others with an unfair competitive or improper advantage.
The categories of Protected Materials listed in this
Paragraph are for illustrative purposes only and are not
exhaustive of the categories of Protected Materials the
Parties

may

designate

as

“CONFIDENTIAL”

under

this

Order.
b. Protected Materials designated as “CONFIDENTIAL” shall
not include, with respect to any Party, information in
the public domain or otherwise publicly available (other
than as a result of disclosure by such Party or its
officers,

directors,

employees,

agents

or

representatives, in violation of this Order).
3. Any Protected Materials shall be designated as “CONFIDENTIAL”
on the first page of the document, to the extent possible.
For Protected Materials produced in some form other than
documentary, and for any other tangible items, such Protected
Materials shall be designated by affixing in a prominent
place on the exterior of the container or containers or other
manner in which the information or item is stored, the legend
“CONFIDENTIAL.” If only a portion of the information or item
warrants protection, the Designating Party, to the extent

Civil No. 18-1320(RAM)

4

practicable, shall identify the protected portion(s) and
specify the level of protection being asserted.
4. Any parts of testimony given at a deposition or hearing and
the resulting transcript that the Designating Party in good
faith

believes

“CONFIDENTIAL”

is

confidential

either

may

contemporaneously

be

designated

or

within

as

thirty

(30) days after receipt of a copy of the transcript by
advising the other parties to this action and the court
reporter in writing of the specific page and line numbers
designated as “CONFIDENTIAL.” All copies of transcripts that
contain Protected Materials shall be marked “CONFIDENTIAL”
on the pages of the transcript that are to be deemed as
Protected Materials.
5. Any Party that submits Protected Materials to the Court,
whether through CM/ECF filings or otherwise, shall comply
with all standing orders and rules in connection with the
filing of restricted or confidential documents or materials.
The filing of any documents or materials “under seal” or
“restricted” with the Court shall not be interpreted as an
admission by any Party that any such documents or materials
are indeed confidential.
6. The

protections

conferred

by

this

Order

cover

not

only

Protected Materials, but also (i) any information copied or
extracted

from

Protected

Materials;

(ii)

all

copies,

Civil No. 18-1320(RAM)

5

excerpts, summaries, or compilations of Protected Materials;
and (iii) any testimony conversations, or presentations by a
Party or their counsel that might reveal Protected Materials.
7. Any Protected Materials disclosed by the Designating Party
shall be used only by the Receiving Party(ies) in connection
with this litigation and solely for purposes of prosecuting,
defending, or attempting to settle this litigation.
8. Protected Materials designated “CONFIDENTIAL” shall not be
disclosed to anyone other than the following persons:
a. Counsel representing or advising the parties to this
action, including in-house counsel or any other legal
staff personnel who are employed by a Party and are
participating in this action on behalf of the Party;
b. The principals, managers, members, officers, agents, and
employees of a Party who are actively involved in this
action on behalf of the Party;
c. Independent

outside

experts

or

consultants,

whether

testifying or non-testifying, who have been retained by
a

Party

or

counsel

to

assist

with

the

technical,

financial or other aspects of the litigation (“Experts”
or “Consultants”), and staff employed by such Experts or
Consultants,

but

only

after

compliance

with

the

requirements of Paragraph 9, provided that no disclosure
of Protected Materials may be provided to an expert or

Civil No. 18-1320(RAM)
consultant

that

6
is

a

current

officer,

director,

or

employee of a competitor of a Party, nor anticipated at
the time of retention to become an officer, director or
employee of a competitor of a Party. No disclosure of
Protected Materials may be provided to an expert or
consultant that is involved in competitive decisionmaking, as defined by U.S. Steel v. United States, 730
F.2d 1465, 1468 n.3 (Fed. Cir. 1984), on behalf of a
competitor of a Party;
d. Witnesses at depositions if the witness is a principal,
manager, member, officer, agent, employee, or expert of
the Designating Party;
e. Court officials involved in these proceedings, including
court reporters and persons operating video recording
equipment at depositions; and;
f. Any other person who is approved by subsequent Order of
the Parties or order of the Court, but only after
compliance with the requirements of Paragraph 9.
9. Prior to disclosing any Protected Materials to any person
described

in

Paragraphs

8(c)

or

8(f),

counsel

for

the

Disclosing Party must first identify that person by providing
written notice to counsel for each of the Parties that: (a)
sets forth the full name of the person and the city and state
of his or her primary residence; and (b) in the case of

Civil No. 18-1320(RAM)

7

Experts or Consultants, attaches a copy of the Expert’s or
Consultant’s resume or curriculum vitae and the information
required by Fed. R. Civ. P. 26(a)(2)(B). Counsel for the
Disclosing Party must also provide a copy of this Order to
that person.
a. Prior to any disclosure of the Protected Materials under
this Paragraph, the receiving person must first receive
and will be bound by this Order. The administrative and
clerical staff of that person will also be bound by this
Order to the extent they assist that person and come in
contact with Protected Materials.
10.Absent written permission from the Designating Party or a
court

order

interested

secured

persons,

after
a

appropriate

Receiving

Party

notice
may

not

to
file

all
or

disclose in the public record any Protected Materials.
11.Notwithstanding anything to the contrary in this Order, any
Party may provide material designated “CONFIDENTIAL” to any
individual or entity if the Designating Party gives written
permission or the Court orders such disclosure.
12.A Party who objects to any designation of confidentiality
may, at any time before the trial of this action, serve upon
counsel for the Producing Party a written notice stating with
particularity the grounds of the objection. If the Parties
cannot reach an agreement promptly, counsel for any affected

Civil No. 18-1320(RAM)
Party

will

bring

8
their

dispute

before

the

Court.

In

accordance with Fed. R. Civ. P. 26(c)(1), any motion to that
effect must include a certification that the parties have
conferred, or attempted to confer, in good faith in an effort
to resolve the dispute without court action.
13.If any Protected Materials in the possession, custody, or
control of a Receiving Party are sought by subpoena, request
for production of documents, interrogatories, or any other
form of discovery request or compulsory process, including
any form of discovery request or compulsory process of any
court, administrative or legislative body, or any other
person or tribunal purporting to have opportunity to seek
such information by compulsory process or discovery request,
including private parties, the Receiving Party to whom the
process or discovery request is directed shall, within ten
(10) business days after receipt thereof, give written notice
of such process or discovery request, together with a copy
thereof,

to

counsel

for

the

Designating

Party.

The

Designating Party may move against the subpoena or other
process, or otherwise oppose entry of any order by a court
of

competent

jurisdiction

compelling

production

of

the

Protected Materials. If the Designating Party objects or
moves

against

the

subpoena

or

other

process,

the

Party

receiving the subpoena or process shall not produce the

Civil No. 18-1320(RAM)
Protected

9

Materials

before

the

actual

due

date

for

compliance, and shall not object to or interfere with any
effort by the Designating Party to seek a prompt judicial
determination of the Designating Party’s motion or objection
before compliance is required.
14.Protected Materials may be offered into evidence at trial or
at any hearing, however, the Designating Party shall petition
the

Court

to

establish

procedures

to

protect

the

confidentiality of such materials at trial or any hearing.
15.Unless

otherwise

specifically

agreed

to

in

this

Order,

nothing in this Order shall affect the discovery obligations
provided under the Federal Rules of Civil Procedure and the
Local Rules of the U.S. District Court for the District of
Puerto Rico nor under the Rules of Evidence.
16.Counsel are required to exert reasonable efforts to identify
materials protected by the attorney-client privilege or the
work-product doctrine prior to the disclosure of any such
materials or information. Pursuant to and in accordance with
Fed. R. Evid. 502(d), the inadvertent production of any
document or thing will be without prejudice to any claim that
such material is protected by the attorney-client privilege,
the work-product doctrine, or any other applicable privilege
or protection, and shall not constitute a waiver of that
privilege or protection in this case or any other federal or

Civil No. 18-1320(RAM)

10

state proceeding. This Order shall be interpreted to provide
the

maximum

protection

allowed

by

the

Federal

Rules

of

Evidence 502(d). In the event a Party sends written notice
to the other Party(ies) that materials subject to a claim of
privilege or protection (e.g., attorney-client privilege or
work

product

immunity)

were

inadvertently

produced,

the

Receiving Party(ies) shall return, sequester, or destroy such
materials (and take reasonable action to retrieve from third
parties for return, sequester, or destruction), together with
all

copies

thereof,

within

ten

(10)

business

days

of

receiving said notice. Nothing in this provision shall waive
or limit any Party’s obligations under Fed. R. Civ. P.
26(b)(5)(B).
17.In the event any Party produces Protected Materials that it
inadvertently fails to designate as such at the time of
production, it may thereafter serve notice on all Parties of
the confidential nature of such Protected Materials, which
materials

will

thereafter

be

treated

as

“CONFIDENTIAL”

pursuant to the terms of this Order. The inadvertent or
unintentional

production

of

Protected

Materials

without

being designated as such in accordance with this Order at the
time of production or disclosure will not be deemed a waiver
in whole or in part of a Designating Party’s claim of

Civil No. 18-1320(RAM)
confidentiality

11
as

to

the

specific

Protected

Materials

disclosed.
18.Counsel for each Party shall take reasonable precautions to
prevent

unauthorized

or

inadvertent

disclosure

of

any

Protected Materials to any person not authorized to receive
such Protected Materials under the terms of this Order. If
any Party learns of any such unauthorized or inadvertent
disclosure of Protected Materials, that Party’s counsel shall
(i) use its best efforts to retrieve all copies of the
unauthorized or inadvertently-disclosed Protected Materials,
(ii) shall inform the Designating Party promptly of the
disclosure and the circumstances surrounding the disclosure,
but no later than ten (10) business days after discovery of
such unauthorized or inadvertent disclosure, and (iii) have
the

Receiving

Party

who

received

the

unauthorized

or

inadvertently disclosed Protected Materials agree to be bound
by the terms of this Order and sign this Order. Protected
Materials shall, when not in use, be stored in such a manner
that persons not in the employment or service of those
possessing such Protected Materials will be unlikely to
obtain access to them.
19.Nothing in this Order prevents a Party from disclosing its
own Protected Materials as it sees fit. Any use or discussion

Civil No. 18-1320(RAM)

12

of such Protected Materials by the Designating Party shall
not be deemed a waiver of the terms of this Order.
20.Within sixty (60) days after the entry of final judgment from
which no appeal has been or can be taken, the settlement of
all claims asserted by any Party, or the dismissal of all
claims

asserted

in

this

action,

the

Parties

shall

make

reasonable efforts to return all Protected Materials subject
to this Order to the Designating Party or certify that
reasonable

efforts

have

been

taken

to

ensure

that

all

Protected Materials have been destroyed. This will not apply
to materials, documents or information that must be disclosed
by law or that is compelled by judicial or administrative
process.
21.The terms of this Order shall apply to all manner and means
of discovery. The provisions of this Order may be modified
at

any

time

by

written

stipulation

of

the

Parties.

In

addition, a Party may at any time apply to the Court for
modification of this Order. Nothing in this Order shall
constitute

(a)

an

Order

to

produce

in

discovery

any

testimony, document, or other information; (b) a waiver of
any right to object to or seek a protective order with respect
to any discovery or other matter in this or any other
litigation;

or

(c)

a

waiver

of

any

claim

or

immunity,

Civil No. 18-1320(RAM)

13

protection, privilege or lack thereof with respect to any
testimony, document, or information.
22.This Order shall not affect the rights of any of the Parties
to this action, shall not have the effect of altering the
burden of proof with regards to any matter in connection with
this action, nor does this Order in any way constitute an
admission by any party that the documents produced pursuant
to this Order are in fact confidential for purposes of this
action or any other action. Likewise, this Order does not
constitute an admission that any documents are admissible,
discoverable or relevant in this action or a waiver of the
right of any party to object to the production or admission
of any document.
IT IS SO ORDERED.
In San Juan Puerto Rico, this 10th day of January 2020
S/ RAÚL M. ARIAS-MARXUACH
United States District Judge