Sweat et al v. Houston Methodist Hospital

Filing 38

PROTECTIVE ORDER Granting 37 Motion for Protective Order.(Signed by Judge Lee H Rosenthal) Parties notified. (rlm4)

United States District Court
Southern District of Texas

ENTERED
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
EDWARD SWEAT, and MARIE GARZA- §
SWEAT individually and on behalf of a
§
class of similarly situated individuals,
§
§
Plaintiffs,
§
v.
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§
HOUSTON METHODIST HOSPITAL,
§
§
Defendant.
§
§

September 25, 2024
Nathan Ochsner, Clerk

Civil Action No. 4:24-cv-00775

PROTECTIVE ORDER
Pursuant to Federal Rule of Civil Procedure 26(c), the parties to the above-captioned case
(the “Litigation”), through their respective counsel, agree that the terms and conditions of this
Protective Order (the “Order”) shall govern the production and handling of all documents, items,
or other information exchanged by the parties and/or nonparties in this Litigation (the “Discovery
Material”) including, without limitation, responses to requests for production, interrogatories,
requests for admissions, pleadings, exhibits, and deposition or other testimony, regardless of the
medium or manner in which any such materials are generated, stored, or maintained. This includes
any material produced, filed, or served by any party or nonparty during discovery in this Litigation,
or any information included in any such material. The Court finds that good cause exists for entry
of a protective order in this Litigation to prevent unauthorized disclosure and use of confidential
information during and after the course of the Litigation.
Accordingly, IT IS HEREBY ORDERED AS FOLLOWS:
1.

Persons/Entities Covered.

This Order is binding upon all current and future

parties to this Litigation, including their subsidiaries, affiliates, successors, or assigns and their
respective counsel, agents, representatives, officers, and employees and any others set forth in this

Order. This Order shall also apply to any materials produced in discovery in this Litigation by
nonparties, and shall apply to parties and nonparties alike, and further provided that this Order
does not limit any party or nonparty’s rights with respect to its own materials that it produces in
discovery in this Litigation. When conducting discovery from nonparties, the parties to this
Litigation shall provide notice of the terms of this Order to such nonparties by providing a copy of
this Order with the discovery requests.
2.

Definitions. The following definitions will apply to this Order.
a.

“Document(s)” shall have the meaning contemplated by Federal Rule of

Civil Procedure 34(a)(1)(A).
b.

“Producing Party” means any party or nonparty that produces information,

documents, or electronically stored information (“ESI”) in this Litigation.
c.

“Receiving Party” means any party or nonparty that receives information,

documents, or electronically stored information (“ESI”) in this Litigation.
3.

Designation of Materials. Any Producing Party may designate a document, or all

or any part of a discovery response, deposition, or other material as Confidential Material (defined
below) based on a good-faith belief that such materials qualify for that designation under the terms
of this Order:
a.

“Confidential Material” designation shall mean i) any information,

testimony, or tangible thing produced during discovery that reveals a trade secret; (ii) confidential
research, analysis, development, or commercial information, which is maintained as confidential
and has not been released into the public domain (unless through unauthorized disclosure), in
accordance with Federal Rule of Civil Procedure 26(c); (iii) personal information that is protected
from disclosure by statute or regulation or is otherwise entitled to protection from public

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disclosure; and (iv) any other information for which a good faith claim of need of protection can
be made under the Federal Rules of Civil Procedure and/or applicable law.
b.

“Highly Confidential Material” designation shall mean any Confidential

Material that, if disclosed, is likely to cause significant competitive or commercial harm. By way
of example only, Highly Confidential material may include: trade secrets; highly sensitive and
non-public research or analysis; competitively sensitive customer information; non-public
financial, marketing, or strategic business planning information; current or future non-public
pricing information; information related to research, development, testing of, or plans for existing
or proposed future products or services.
c.

The parties to this Litigation and nonparties desire to ensure the privacy of

patient records and other information that the parties have determined might contain Confidential
Health Information (“CHI”) and agree that a Producing Party may designate CHI as Confidential
Material at a minimum, and, as such, subject to the terms of this Order. The parties to this Litigation
and nonparties also seek to ensure that any person who receives and stores CHI in connection with
this proceeding will develop, implement, maintain, and use appropriate administrative, technical,
and physical safeguards to preserve the privacy, integrity, and confidentiality of any CHI and to
prevent unpermitted use or disclosure of any CHI they may receive from any person in connection
with this proceeding. CHI will be securely returned or destroyed pursuant to the provisions of this
Order. As used in this Order, “Confidential Health Information” or “CHI” shall mean any patient
health information protected by any state or federal law, including but not limited to “Protected
Health Information” or “PHI” as set forth in 45 C.F.R. § 160.103.
d.

Confidential and Highly Confidential Material, respectively, shall include:

(i) all copies, extracts, and complete or partial summaries prepared from such Confidential or

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Highly Confidential Material; (ii) portions of deposition transcripts and exhibits thereto that
contain or summarize the content of any such Confidential or Highly Confidential Material; (iii)
portions of briefs, memoranda, or any other writings filed with the Court and exhibits thereto that
contain or summarize the content of any such Confidential or Highly Confidential Material; (iv)
written discovery responses and answers that contain or summarize the content of any such
Confidential or Highly Confidential Material; and (v) deposition testimony designated in
accordance with paragraph 3(e) below.
e.

Any document produced by a Producing Party may be designated as

Confidential Material by marking it “CONFIDENTIAL” on the face of the document at the time
of production. Any document produced by a Producing Party may be designated as Highly
Confidential Material by marking it “HIGHLY CONFIDENTIAL” on the face of the document at
the time of production. A Producing Party may also designate electronic documents and other nonpaper media as Confidential or Highly Confidential Material, as appropriate, by (i) noting such
designation in an accompanying cover letter; (ii) affixing the confidentiality designation to the
material or its container, including the appropriate confidentiality designation in the load file
provided with the electronic production; or (iii) including the appropriate confidentiality
designation in the name of the file(s) provided with the electronic production.
f.

Testimony provided in this Litigation may be designated as Confidential

Material or as Highly Confidential Material if the testimony concerns or relates to the designating
party's or nonparty's Confidential or Highly Confidential Material. The party or non-party desiring to

designate any portion of testimony and/or exhibits as Confidential or Highly Confidential Material
may do so by stating orally on the record on the day that the testimony is being given. If no such
designation is made at the time of the deposition, any party (or a nonparty as applicable) has thirty
(30) calendar days after delivery by the court reporter of the transcript of the deposition session to
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designate, in writing to the other parties and to the court reporter, what portions of the transcript
and which exhibits the party designates as containing Confidential or Highly Confidential
Material. During the transcription and following thirty (30) calendar day period after a deposition
session, the transcript and exhibits must be treated as Highly Confidential Material, unless the
parties consent to less confidential treatment of the information.
g.

Notwithstanding any of the foregoing, information shall be deemed non-

confidential material under this Order if it is in the public domain, or is already in the knowledge
or possession of the party to whom disclosure is made through proper means and on a
nonconfidential basis or is or becomes available to a party from a source rightfully in possession
of such information on a nonconfidential basis.
4.

Disclosure and Use of Confidential Material. Unless otherwise ordered by the

Court or permitted in writing by a Producing Party, Confidential Material may only be used in
connection with this Litigation, and disclosure of Confidential Material may be made only to:
a.

The Court and court personnel, including assistants, clerks, law clerks, and

other support staff (this category is referred to as the “Court”).
b.

Outside attorneys for a party who are working on this Litigation and their

employed or retained secretaries, paralegals, legal assistants, and support services (including,
without limitation, copy services, jury consultants, mock jurors/focus group participants,
interpreters, translators, document management services, graphics services, and similar
professional services) (this category is referred to as “Outside Attorneys”).
c.

In-house attorneys for a party (including their support staff) (this category

is referred to as “In-House Counsel”).

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d.

Court reporters, court videographers, and similar transcription services and

their support staff providing services in court or at depositions for the purpose of assisting the Court in
this Litigation (this category is referred to as “Court Reporters”).

e.

Any expert or consultant, including all nonparty personnel and support staff

assisting such expert or consultant, but not the entity itself by which such expert or consultant and
assisting personnel are employed, who is retained by or for the benefit of any of the parties in this
Litigation to assist counsel in this Litigation, and provided that the expert or consultant has executed
the agreement annexed hereto as Appendix A (this category is referred to as “Experts”).

f.

Any mediators engaged by the parties or appointed by the Court, and their

support staff (this category is referred to as “Mediators”).

g.

Any person who authored or previously received the material. For e-mails, this

provision is limited to individuals in the to, from, cc, or bee fields, and includes any attachments to an
e-mail that the person received.

h.

The Producing Party’s current directors, officers, employees, or outside

i.

The Producing Party’s former employees, provided that the party showing the

counsel.

former employee the materials has a good faith reason to believe that the former employee accessed
the materials in the ordinary course of business during their employment or worked on issues
sufficiently related that such access would have been likely.

j.

To the extent such Confidential Material was produced by a Producing Party,

any person who has been designated as a Federal Rule of Civil Procedure 30(b)(6) witness by the
Producing Party.

k.

A custodian of records that has or had possession of the material or access in

the ordinary course of business to the material.

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l.

During the conduct of hearings, witnesses in the Litigation to whom

disclosure is reasonably necessary and who have signed the agreement annexed hereto as Appendix A

(this category is referred to as “Witnesses”).
m.

Any other person to whom the Producing Party consents in writing or by

order of the Court.
5.

Disclosure and Use of Highly Confidential Material. Unless otherwise ordered

by the Court or permitted in writing by a Producing Party, Highly Confidential Material may only
be in connection with this Litigation, and disclosure of Highly Confidential Material may be made
only to the following, as defined in paragraph 4 above:
a.

The Court.

b.

Outside Attorneys.

c.

Court reporters.

d.

Experts.

e.

Mediators.

f.

Any person who authored or previously received the material. For e-mails, this

provision is limited to individuals in the to, from, cc, or bee fields, and includes any attachments to an
e-mail that the person received.

g.

The Producing Party’s current directors, officers, employees, or outside

h.

The Producing Party’s former employees, provided that the party showing the

counsel.

former employee the materials has a good faith reason to believe that the former employee accessed
the materials in the ordinary course of business during their employment or worked on issues
sufficiently related that such access would have been likely.

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i.

To the extent such Confidential Material was produced by a Producing Party,

any person who has been designated as a Federal Rule of Civil Procedure 30(b)(6) witness by the
Producing Party.

j.

A custodian of records that has or had possession of the material or access in

the ordinary course of business to the material.

k.

Witnesses.

l.

Any other person to whom the Producing Party consents in writing or by

order of the Court.
6.

Handling of Confidential Material and Highly Confidential Material. All

material designated Confidential or Highly Confidential shall remain in the possession of the
attorneys who receive such material through discovery in this Litigation, and they shall not release
or disclose the nature, substance, or contents thereof, except that copies of such materials may be
made for the use of those assisting the attorneys to whom disclosure may be made under paragraphs
4 and 5 above, including Experts, and copies of such materials may be submitted to the Court
under seal as necessary. Persons who have been shown Confidential or Highly Confidential
Material pursuant to this Order and have not otherwise obtained or maintained the material in the
normal course of business shall not retain copies of that material.
7.

Inadvertent Failure to Designate as to Confidentiality. The inadvertent failure

to designate a document as Confidential or Highly Confidential will not prevent the Producing
Party from designating such information as Confidential or Highly Confidential at a later date in
writing, so long as the designation is done with particularity. The inadvertent failure of a party or
nonparty to designate material as Confidential or Highly Confidential at the time of the production
shall also not be deemed a waiver of the protections of this Order, either as to specific information
in the material or as to any other information relating thereto or on the same or related subject matter.

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In the event a Producing Party late designates a document as Confidential or Highly Confidential,
the document must be treated by the Receiving Party in accordance with the confidentiality
designation that the Producing Party states should have been affixed to it. The Producing Party
shall re-produce the information, document, paper, or other thing with the appropriate
confidentiality designation unless doing so would not be feasible (as, for example, in the case of a
final deposition transcript). Each Receiving Party shall replace the incorrectly designated materials
with the newly designated materials, destroy the incorrectly designated materials, and treat the
materials in accord with their new designation. No party shall be deemed to have violated this
Order if, prior to notification of any later designation, such material has been disclosed or used in
a manner inconsistent with the later designation. If material inadvertently not designated as
confidential was filed with a court on the public record or otherwise disclosed before the time of
the material's later designation, then the Producing Party shall be responsible for seeking
appropriate relief, including return of the material.
8.

Challenges to Designations. A Receiving Party may challenge a Producing Party’s

designation of Confidential or Highly Confidential Material at any time by following the
procedures below:
a.

A Receiving Party shall not be obligated to challenge the propriety at the

time the designation is first made, and a failure to do so will not preclude a subsequent challenge
thereto.
b.

Any Receiving Party seeking to challenge a Confidential or Highly

Confidential designation may request in writing that the Producing Party change the designation.
The Producing Party within fourteen (14) days after receipt of a written challenge, must advise the
Receiving Party whether or not it will change the designation.

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c.

If the parties are unable to reach agreement after the expiration of this

fourteen (14) day period, they shall confer. If they cannot resolve the issue, the Receiving Party
may seek an order to alter the confidential status of the designated information.
d.

Until the presiding judge has ruled on a dispute under this paragraph, the

asserted designation will remain in full force and effect, and the document continues to be
protected by this Protective Order.
9.

Filing Documents With the Court. If any party wishes to file with the court any

affidavits, briefs, memoranda of law, or Discovery Material containing or referring to Confidential
Material or Highly Confidential Material (the “Filing Party”), the Filing Party must seek to file the
Confidential Material or Highly Confidential Material under seal under Fed. R. Civ. P. 5.2. To the
extent necessary, the Producing Party, or any other party or non-party asserting that the filing
contains Confidential Material or Highly Confidential Material, shall have the burden to
substantiate the need for maintaining the records under seal, regardless of the Filing Party. In
order to avoid the sealing of records, the Filing Party may elect to redact the portions of the
document that contain Confidential Material or Highly Confidential Material, which will not waive
the Discovery Material’s designation with respect to the redacted material. Where the Filing Party
seeks to file Discovery Material for which it is not the Producing Party, the Filing Party may redact
the portions of the document that constitute Confidential Material or Highly Confidential Material
with the agreement of the Producing Party that the Discovery Material may be filed in such a
redacted form. An agreement by the Producing Party that the Filing Party may file a redacted
version of the Discovery Material does not waive the Discovery Material’s designation with
respect to the redacted material. Where redacted Discovery Material has been filed with the court,

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any party may provide un-redacted copies of the Discovery Material to the court for an in camera
review without waiving the Discovery Material’s designation with respect to the redacted material.
10.

Non-Party Information. The existence of this Protective Order must be disclosed

to any person producing Discovery Material in this action who may reasonably be expected to
desire confidential treatment for any such Discovery Material. Any such person may designate
Discovery Material pursuant to this Protective Order.
11.

No Prejudice. Producing or receiving Confidential or Highly Confidential

Material, or otherwise complying with the terms of this Protective Order, including seeking a
sealing order, will not: (a) operate as an admission by any party that any particular Confidential
or Highly Confidential Material contains or reflects trade secrets or any other type of confidential
or proprietary information; (b) prejudice the rights of a party to object to the production of
information or material that the party does not consider to be within the scope of discovery; (c)
prejudice the rights of a party to seek a determination by the presiding judge that particular
materials be produced; (d) prejudice the rights of a party to apply to the presiding judge for further
protective orders; or (e) prevent the parties from agreeing in writing to alter or waive the
provisions or protections provided for in this Protective Order with respect to any particular
information or material.
12.

Other Proceedings. By entering this Protective Order and limiting the disclosure

of information in this case, the presiding judge does not intend to preclude another court from
finding that information may be relevant and subject to disclosure in another case. Any person or
party subject to this Protective Order who receives a subpoena or request for production or is
subject to a motion to disclose a Producing Party’s information designated as Confidential or
Highly Confidential must promptly notify the Producing Party of the motion so that the Producing

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Party may have an opportunity to appear and be heard on whether that information should be
disclosed. Confidential and Highly Confidential Material shall not be produced in any other
proceeding, or for any use other than in this Litigation, without an order compelling production
from a court of competent jurisdiction or the agreement of the Producing Party.
13.

Unauthorized Disclosure of Confidential or Highly Confidential Material.
a.

If any person subject to this Order becomes aware that they or any other

person has, either intentionally or inadvertently, disclosed Confidential or Highly Confidential
Material to someone not authorized to receive such material under this Order, counsel for the party
involved shall (i) as soon as is practicable notify in writing the Producing Party of the unauthorized
disclosure; (ii) use best efforts to obtain the return or destruction of all copies of the protected
materials; and (iii) inform the person or persons to whom unauthorized disclosures were made, to
the extent the person or persons are identifiable, of the terms of this Order.
b.

The Court has jurisdiction to enforce this Order and to grant relief, as

authorized by law or in equity, for any violations thereof.
14.

Conclusion of Litigation.

Within sixty (60) days after final judgment in this

action, including the exhaustion of all appeals, or within sixty (60) days after dismissal pursuant
to a settlement agreement, each party or other person subject to the terms of this Protective Order
is under an obligation to destroy or return to the Producing Party all Confidential or Highly
Confidential Material, and to certify to the Producing Party that this destruction or return has been
done. However, outside counsel for any party is entitled to retain all court papers, trial transcripts,
exhibits, and attorney work provided that any such materials are maintained and protected in
accordance with the terms of this Protective Order.

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15.

Modification and Relief from Protective Order. Any party may petition the

presiding judge for good cause shown if the party desires relief from a term or condition of this
Protective Order. The Court retains the right to allow disclosure of any subject covered by this
Order or to modify this Order at any time. Furthermore, nothing in this Order shall prejudice the
right of the parties to stipulate (subject to Court approval) an amendment, modification, or
supplement to this Order. Nothing in this Order shall preclude any party from seeking an order of
the Court amending, modifying, or supplementing this Order.

25th
September 2024.
Signed at Houston, Texas, this ____day
of ___________,

__________________________________
The Honorable Lee H. Rosenthal
United States District Judge

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Appendix A
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
EDWARD SWEAT, and MARIE GARZASWEAT individually and on behalf of a class of
similarly situated individuals,
v.

Plaintiffs,

HOUSTON METHODIST HOSPITAL,
Defendant.

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§
§
§
§
§
§
§
§
§
§

Civil Action No. 4:24-cv-00775

Assigned to Hon. Lee H. Rosenthal

CONFIDENTIALITY AGREEMENT
I, ______________________________, under penalty of perjury, 28 U.S.C. § 1746, that:
1.
Information, including documents and things, designated as “Confidential
Material” or “Highly Confidential Material,” as defined in the Protective Order entered in the
above-captioned action (“Protective Order”), is being provided to me pursuant to the terms and
restrictions of the Protective Order.
2.

I have been given a copy of and have read the Protective Order.

3.
I am familiar with the terms of the Protective Order and I agree to comply with and
to be bound by its terms.
4.
I submit to the jurisdiction of the United States District Court for the Southern
District of Texas for enforcement of the Protective Order.
5.
I agree not to use any Confidential or Highly Confidential Material disclosed to me
pursuant to the Protective Order except for purposes of the above-captioned litigation and not to
disclose any of this information to persons other than those specifically authorized by the
Protective Order, without the express written consent of the party who designated the information
as confidential or by order of the presiding judge.
6.
I also agree to notify any stenographic, clerical or technical personnel who are
required to assist me of the terms of this Protective Order and of its binding effect on them and
me.

7.
I understand that I am to retain all documents or materials designated as or
containing Confidential or Highly Confidential Material in a secure manner, and that all such
documents and materials are to remain in my personal custody until the completion of my assigned
duties in this matter, whereupon all such documents and materials, including all copies thereof,
and any writings prepared by me containing any Confidential or Highly Confidential Material are
to be returned to counsel who provided me with such documents and materials.
Signed at _______________, _________, this ________, day of ___________, 20__.
_______________________________

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