Bayless v. USA et al

Filing 56

ORDER granting 55 Consent MOTION to Compel Production of Neuropsychological Test Materials and Data. Signed by Judge Dale A. Kimball on 11/2/2015. (jwt)

IN THE UNITED STATES DISTRICT COURT
DISTRICT OF UTAH, CENTRAL DIVISION

CAROLYN BAYLESS,
Plaintiff,

v.

UNITED STATES OF AMERICA,

Defendant.

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ORDER

Civil No.: 2:09cv00495DAK
Judge Dale A. Kimball

Defendant United States of America (“United States”) has filed an Uncontested Consent
Motion to Compel and through this motion seeks to obtain neuropsychological test materials and
data subject to certain requirements and restrictions that will prevent the unfettered public
disclosure or release of that data. The Court, for reasons set forth herein, GRANTS that motion
and ORDERS production of the neuropsychological test material and data subject to the
requirements and restrictions set forth in this ORDER.
Dr. Nancy A. Didriksen, Ph.D., is a neuropsychologist practicing in Texas. On July 21,
2008, she conducted neuropsychological testing of Plaintiff Carolyn Bayless. Documents and
materials in Dr. Didriksen’s possession pertaining to such testing include the neuropsychological

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test materials administered to Plaintiff and the raw test data generated therefrom as these
materials were used to evaluate Plaintiff’s psychological functionality and/or impairment.
On April 24, 2015, the United States issued a subpoena to Dr. Didriksen seeking
production of all records in her possession, custody, and control relating to Plaintiff, including
the aforementioned test materials, raw test data, and specific methodologies used to evaluate
Plaintiff’s neuropsychological status. On May 13, 2015, Dr. Didriksen produced to the United
States records relating to Plaintiff, however, withheld from production the neuropsychological
test materials and raw test data . Dr. Didriksen notified the United States that pursuant to Texas
law, those materials may contain proprietary business information and can only be produced in
response to a court order.1
The Court “may order discovery of any matter relevant to the subject matter involved in
the action.” Fed. R. Civ. P. 26(b)(1); see Keefer v. Erie Ins. Exchange, 2014 WL 901123, at *2
(M.D. Pa.,2014) (“[t]he relevance requirement of Rule 26(b)(1) must be ‘firmly applied’”)
(citing Herbert v. Lando, 441 U.S. 153, 177 (1979)). The Court, however, has discretion to enter
an order limiting discovery (i.e., a protective order) upon a showing of “good cause.” Fed. R.
Civ. P. 26(c); see also Gulf Oil Co. v. Bernard, 452 U.S. 89, 104 n.16 (1981) (the good cause
standard requires a particular and specific demonstration of fact as distinguished from
stereotyped and conclusory statements). “The ‘good cause’ standard of Rule 26(c) is ‘highly
flexible, having been designed to accommodate all relevant interests as they arise.’” Rohrbough

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Texas Administrative Code, Title 22, section 465.22(c)(4) provides in part that
psychological “[t]est data shall be made available only: (A) to another qualified mental health
professional and only upon receipt of written release from the patient or client, or (B) pursuant to
a court order.” 22 TAC § 465.22 (c)(4).
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v. Harris, 549 F.3d 1313, 1321 (10th Cir. 2008) (citing United States v. Microsoft Corp., 165
F.3d 952, 959 (D.C. Cir. 1999)). In fashioning a discovery Order, the Court may impose
restrictions on its use and how “confidential research, development, or commercial information”
is revealed. Fed. R. Civ. P. 26(c)(1)(G). A general balancing test is applied weighing “the
requesting party’s need for information against the injury that might result if uncontrolled
disclosure is compelled.” Pansy v. Borough of Stroudsburg, 23 F.3d 772, 787 (3d Cir. 1994).
In the instant case, whether Plaintiff Carolyn Bayless was exposed to chemical and
biological weapons agent and the nature and extent of her neuropsychological injuries are at
issue. She alleges that as a result of exposure to chemical agent produced by the Army, she has
suffered from “sicknesses, diseases, neurological disorders and other adverse health impacts that
have advanced and worsened since 1997. . . .” Compl. ¶ 22 (Dkt. 1). The raw test data and
materials the United States seeks are relevant to assessing Plaintiff’s neuropsychological health,
and there is good cause to permit discovery of these materials, as the raw test data and materials
are wholly relevant to an assessment of Plaintiff’s general health, medical history, and medical
symptomology. Furthermore, the test materials and data may contain protected proprietary
information. Accordingly, consistent with the parties and Dr. Didriksen’s agreement and
consent, the Court will order Dr. Didriksen to produce the raw test data and materials subject to
the requirements set forth herein, which place appropriate restrictions on the release of these
materials. This arrangement satisfies the United States’ request for discovery of these materials,
while also protecting Dr. Didriksen’s professional obligations and proprietary test materials and
data.

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The Court hereby ORDERS that the test materials and raw test data generated from the
neuropsychological testing of Plaintiff, as well as any other materials withheld by Dr. Didriksen,
be produced to the United States. It is further ORDERED, that to ensure and protect against the
unfettered public disclosure of confidential and/or proprietary business information, that any
materials produced by Dr. Didriksen in response to this ORDER shall be handled and governed
by the following terms and conditions:
1.

Upon receipt of the responsive materials from Dr. Didriksen, the United States will
assign an identification number to the materials, and will mark/stamp each document
“Confidential” (hereinafter referred to as “Confidential Materials”).

2.

These Confidential Materials may be used only for purposes of this litigation. Such
materials shall not be used for any other purpose, including, without limitation, disclosure
to the public or media, use for any business or commercial purpose, or use in any other
litigation or proceeding. The foregoing shall not apply to discovery material that properly
is or becomes part of the public record.

3.

These Confidential Materials may not be disseminated, disclosed, summarized,
described, or otherwise communicated or made available in whole or in part to any
person except the following “Authorized Persons”:
A) Counsel for the parties, and the paralegals, secretaries, employees, and service
vendors of such counsel (including outside copying services and outside litigation
support services) who are assisting in the preparation and trial of this action;
B) Any person indicated on the face of a document to be the author, addressee, or an
actual or intended recipient of the document;

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C) Experts or consultants necessary to assist counsel for the parties, and secretaries,
employees, and service vendors of such experts or consultants (including outside
copying services and outside support services) who are assisting in the preparation
and trial of this action, provided that such expert or consultant is using said
Confidential Materials solely in connection with this action, and further provided that
such expert or consultant (and if the expert or consultant is a firm, each individual at
the firm who is involved in the project) signs the acknowledgment form attached
hereto, agreeing in writing to be bound by the terms of this Order, consenting to the
jurisdiction of the Court for purposes of enforcement of the terms of this Order, and
agreeing not to disclose or use any Confidential Materials for purposes other than
those permitted hereunder;
D) Witnesses or deponents and their counsel, only to the extent necessary to conduct or
prepare for depositions or testimony in this action;
E) The parties themselves;
F) The Court, persons employed by the Court, and court reporters/videographers
transcribing or recording any hearing, trial, or deposition in this action, or any appeal
therefrom;
G) Every person to whom Confidential Materials are disclosed, summarized, described,
or otherwise communicated or made available in whole or in part, shall be advised
that the information is being disclosed pursuant and subject to the terms of this Order
and may not be disclosed or used for purposes other than those permitted hereunder.

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Each such person shall maintain the Confidential Materials, or information derived
therefrom, in a manner reasonably calculated to prevent unauthorized disclosure.
4.

Counsel providing Confidential Materials to Authorized Persons (see paragraph 3 above)
shall obtain an executed confidentiality statement (attached to this order), entitled
“Acknowledgment of Confidentiality”) prior to providing any of these materials to the
Authorized Person and shall retain the original signed statement. Executed confidentiality
statements shall be provided upon request if the interested party has a good faith concern
that the confidentiality has not been maintained in accordance with this Order.

5.

Any submission to the Court that quotes or paraphrases any Confidential Materials,
including exhibits that contain Confidential Materials, or briefs and motions, must be
redacted to prevent disclosure of the Confidential Materials. If a party seeks to use a
document containing such material, the party should meet and confer with Dr. Didriksen
to ensure that the proper material will be redacted prior to public filing.

6.

Filing under seal will be required when the Confidential Materials cannot be redacted. If
the material cannot be effectively redacted or is substantively related to the filing at issue
(the pleading, brief, memorandum, motion, letter, affidavit, exhibit or other document
filed with the Court that discloses, contains, or describes this material), it shall be treated
as a Restricted Access Document for Electronic Case Filing Purposes (the document
should be filed under seal).

7.

Within forty-five (45) days after the conclusion of the proceedings before this Court and
any related appeal, the parties, as well as their experts and consultants, shall destroy all
such copies or versions of the Confidential Materials and certify to that fact. In addition,

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after the conclusion of the proceedings before the Court and any related appeal, the
parties shall promptly destroy all notes, summaries, attorney work product, and other
documents quoting, describing, summarizing, or incorporating any part of such
Confidential Materials. The parties shall be entitled to retain court papers as well as
deposition and trial transcripts that contain the protected information provided that they
not disclose this material to any person except pursuant to a court order or agreement
with the Producing Party.
8.

In the event that any Confidential Materials are used in any court proceeding in this
action, such material shall not lose its Confidential status through such use unless it
properly becomes part of the public record. Prior to any Court proceeding in which
Confidential Materials are to be used, using counsel shall confer with all counsel of
record to decide what procedures are necessary to protect such material.

9.

The obligation to prevent the unauthorized disclosure of these Confidential Materials
shall continue after the completion of this litigation, including any related appeal.

10.

This Order has no effect upon, and shall not apply to, Dr. Didriksen’s use of these
materials.

11.

All parties must promptly notify the Court of any breach of this Order, must make every
effort to fully remedy any breach, and must fully cooperate in any investigation of such
breach.

12.

Any allegations of abuse or violation of this Order will be considered by the Court for
purposes of determining whether it should impose sanctions, whether the matter should
be referred for appropriate disciplinary proceedings, or both.

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13.

This order does not constitute a ruling on the admissibility of any Confidential Materials.

Dated: this 2d day of November, 2015.

_________________________________
U.S. District Court Judge

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ACKNOWLEDGMENT OF CONFIDENTIALITY
OF NEUROPSYCHOLOGICAL TEST MATERIALS AND DATA
I have read and understand that the Court has entered an Order protecting the
confidentiality of neuropsychological test materials and data, and I hereby agree to be bound by
it. Specifically, I agree that I will not disclose these materials, except as authorized by the Court.
I further agree that I will destroy or return all documents that quote or paraphrase any
portion of the confidential neuropsychological test materials and data to Plaintiff or government
counsel within forty-five (45) days after the termination of this litigation, or the expiration of all
rights to appeal, whichever is later; and that I will take appropriate steps to maintain the
confidentiality of these materials and any documents that quote or paraphrase or describe any
part of them. I hereby confirm that my duties under this Acknowledgment shall survive the
termination of this case and are binding upon me for all time. I hereby consent to the personal
jurisdiction of the United States District Court for the District of Utah for the sole purpose of
enforcement of this Order.

Date: ____________________

Signature: ___________________________

Name (Print): ________________________

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