Gallion v. Medco Health Solutions Inc et al

Filing 12

STIPULATED PROTECTIVE ORDER. Signed by Judge Thomas O. Rice. (LLH, Courtroom Deputy)

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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WASHINGTON

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KAREN GALLION, a single woman,
NO: 13-CV-0135-TOR
Plaintiff,

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STIPULATED PROTECTIVE ORDER
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v.
MEDCO HEALTH SOLUTIONS,
INC.; Administrator of the
MEDCHOICE DISABILITY
PROGRAM; and DISABILITY
MANAGEMENT ALTERNATIVES,
LLC, third party administrator and
wholly-owned subsidiary of HEWITT
ASSOCIATES, LLC, and
HARTFORD LIFE AND ACCIDENT
INSURANCE COMPANY, third party
claims administrator for Medchoice
Long-Term Disability Program,

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Defendant.
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BEFORE THE COURT is the parties’ Stipulated Protective Order (ECF No.

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11). Pursuant to Federal Rule of Civil Procedure 26, and it appearing that

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discovery in the above-captioned matter will involve the disclosure of confidential

STIPULATED PROTECTIVE ORDER ~ 1

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information, it is ordered that the following Protective Order be entered to give

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effect to the terms and conditions set forth below as stipulated by and between the

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parties.

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1.

PURPOSES AND LIMITATIONS

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Discovery in this action is likely to involve production of confidential,

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proprietary, or private information for which special protection may be warranted.

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Accordingly, Plaintiff, Karen Gallion, and Defendant Medco Health Solutions, Inc.

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(“Medco”) (collectively “parties”) hereby stipulate to, and petition the court to

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enter, the following Stipulated Protective Order. The parties acknowledge that this

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agreement does not confer blanket protection on all disclosures or responses to

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discovery, the protection it affords from public disclosure and use extends only to

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the limited information or items that are entitled to confidential treatment under the

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applicable legal principles, and it does not presumptively entitle parties to file

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confidential information under seal. Rather, the parties acknowledge that any party

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seeking to seal a judicial record bears the burden of overcoming the strong

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presumption in favor of public access to court documents with compelling reasons

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supported by specific facts. Therefore, nothing in this Stipulated Protective Order

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shall impact the Court’s discretion and authority to determine what documents a

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party may file under seal.

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2.

“CONFIDENTIAL” MATERIAL

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“Confidential” material shall include the following documents and tangible

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things produced or otherwise exchanged: Plaintiff’s disability and other medical

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records; documents regarding the administration of the Medchoice Disability

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Program, which Medco and other parties thereto deem confidential and

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proprietary; and personnel information concerning non-parties.

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3.

SCOPE

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The protections conferred by this agreement cover not only confidential

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material (as defined above), but also (1) any information copied or extracted from

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confidential material; (2) all copies, excerpts, summaries, or compilations of

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confidential material; and (3) any testimony, conversations, or presentations by

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parties or their counsel that might reveal confidential material. However, the

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protections conferred by this agreement do not cover information that is in the

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public domain or becomes part of the public domain through trial or otherwise.

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4.

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ACCESS TO AND USE OF CONFIDENTIAL MATERIAL
4.1.

Basic Principles. A receiving party may use confidential material that

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is disclosed or produced by another party or by a non-party in connection with this

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case only for prosecuting, defending, or attempting to settle this litigation.

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Confidential material may be disclosed only to the categories of persons and under

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the conditions described in this agreement. Confidential material must be stored

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and maintained by a receiving party at a location and in a secure manner that

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ensures that access is limited to the persons authorized under this agreement.

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4.2.

Disclosure of “CONFIDENTIAL” Information or Items.

Unless

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otherwise ordered by the court or permitted in writing by the designating party, a

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receiving party may disclose any confidential material only to:

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(a)

the receiving party’s counsel of record in this action, as well as

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employees of counsel to whom it is reasonably necessary to disclose the

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information for this litigation;

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(b)

the officers, directors, and employees (including in house

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counsel) of the receiving party to whom disclosure is reasonably necessary for this

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litigation, unless the parties agree that a particular document or material produced

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is for “Attorney’s Eyes Only” and is so designated;

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(c)

experts and consultants to whom disclosure is reasonably

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necessary for this litigation and who have signed the “Acknowledgment and

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Agreement to Be Bound” (Exhibit A);

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(d)

the court, court personnel, and court reporters and their staff;

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(e)

copy or imaging services retained by counsel to assist in the

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duplication of confidential material, provided that counsel for the party retaining

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the copy or imaging service instructs the service not to disclose any confidential

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STIPULATED PROTECTIVE ORDER ~ 4

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material to third parties and to immediately return all originals and copies of any

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confidential material;

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(f)

during their depositions, witnesses in the action to whom

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disclosure is reasonably necessary and who have signed the “Acknowledgment and

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Agreement to Be Bound” (Exhibit A), unless otherwise agreed by the designating

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party or ordered by the court.

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exhibits to depositions that reveal confidential material must be separately bound

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by the court reporter and may not be disclosed to anyone except as permitted under

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this agreement;

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(g)

Pages of transcribed deposition testimony or

the author or recipient of a document containing the

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information or a custodian or other person who otherwise possessed or knew the

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information.

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4.3.

Filing Confidential Material. Before filing confidential material or

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discussing or referencing such material in court filings, the filing party shall confer

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with the designating party to determine whether the designating party will remove

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the confidential designation, whether the document can be redacted, or whether a

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motion

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WDWA Local Civil Rule 5(g) sets forth the procedures that must be followed and

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the standards that will be applied when a party seeks permission from the court to

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file material under seal.

to

seal

or

stipulation

and

STIPULATED PROTECTIVE ORDER ~ 5

proposed

order

is

warranted.

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5.

DESIGNATING PROTECTED MATERIAL
5.1.

Exercise of Restraint and Care in Designating Material for Protection.

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Each party or non-party that designates information or items for protection under

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this agreement must take care to limit any such designation to specific material that

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qualifies under the appropriate standards. The designating party must designate for

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protection only those parts of material, documents, items, or oral or written

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communications for which protection is not warranted are not swept unjustifiably

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within the ambit of this agreement.

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Mass,

indiscriminate,

or

routinized

designations

are

prohibited.

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Designations that are shown to be clearly unjustified or that have been made for an

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improper purposed (e.g. to unnecessarily encumber or delay the case development

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process or to impose unnecessary expenses and burdens on other parties) expose

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the designating party to sanctions.

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If it comes to a designating party's attention that information or items that it

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designated for protection do not qualify for protection, the designating party must

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promptly notify all other parties that it is withdrawing the mistaken designation.

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5.2.

Manner and Timing of Designations. Except as otherwise provided in

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this agreement (see, e.g., second paragraph of section 5.2(a) below), or as

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otherwise stipulated or ordered, disclosure of discovery material that qualifies for

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protection under this agreement must be clearly so designated before or when that

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material is disclosed or produced.

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(a)

Information in documentary form: (e.g., paper or electronic

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documents and deposition exhibits, but excluding transcripts of depositions or

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other pretrial or trial proceedings), the designating party must affix the word

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“CONFIDENTIAL” to each page that contains confidential material. If only a

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portion or portions of the material on a page qualifies for protection, the producing

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party also must clearly identify the protected portion(s) (e.g., by making

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appropriate markings in the margins).

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(b)

Testimony given in deposition or in other pretrial or trial

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proceedings: the parties must identify on the record, during the deposition, hearing,

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or other proceeding, all protected testimony, without prejudice to their right to so

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designate other testimony after reviewing the transcript. Any party or non-party

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may, within fifteen days after receiving a deposition transcript, designate portions

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of the transcript, or exhibits thereto, as confidential.

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(c)

Other tangible items:

the producing party must affix in a

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prominent place on the exterior of the container or containers in which the

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information or item is stored the word “CONFIDENTIAL.” If only a portion or

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portions of the information or item warrant protection, the producing party, to the

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extent practicable, shall identify the protected portion(s).

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5.3.

Inadvertent Failures to Designate. If timely corrected, an inadvertent

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failure to designate qualified information or items does not, standing alone, waive

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the designating party's right to secure protection under this agreement for such

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material. Upon timely correction of a designation, the receiving party must make

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reasonable efforts to ensure that the material is treated in accordance with the

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provisions of this agreement.

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6.

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CHALLENGING CONFIDENTIALITY DESIGNATIONS
6.1.

Timing of Challenges.

Any party or non-party may challenge a

designation of confidentiality at any time.

Unless a prompt challenge to a

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designating party's confidentiality designation is necessary to avoid foreseeable,

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substantial unfairness, unnecessary economic burdens, or a significant disruption

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or delay of the litigation, a party does not waive its right to challenge a

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confidentiality designation by electing not to mount a challenge promptly after the

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original designation is disclosed.

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6.2.

Meet and Confer. The parties must make every attempt to resolve any

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dispute regarding confidential designations without court involvement.

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motion regarding confidential designations or for a protective order must include a

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certification, in the motion or in a declaration or affidavit, that the movant has

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engaged in a good faith meet and confer conference with other affected parties in

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an effort to resolve the dispute without court action. The certification must list the

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Any

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date, manner, and participants to the conference. A good faith effort to confer

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requires a face-to-face meeting or a telephone conference.

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6.3.

Judicial Intervention. If the parties cannot resolve a challenge without

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court intervention, the designating party may file and serve a motion to retain

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confidentiality. The burden of persuasion in any such motion shall be on the

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designating party. Frivolous challenges, and those made for an improper purpose

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(e.g., to harass or impose unnecessary expenses and burdens on other parties) may

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expose the challenging party to sanctions. All parties shall continue to maintain

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the material in question as confidential until the court rules on the challenge.

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7.

PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED

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IN OTHER LITIGATION

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If a party is served with a subpoena or a court order issued in other litigation

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that compels disclosure of any information or items designated in this action as

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“CONFIDENTIAL,” that party must:

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(a)

promptly notify the designating party in writing and include a

copy of the subpoena or court order;
(b)

promptly notify in writing the party who caused the subpoena

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or order to issue in the other litigation that some or all of the material covered by

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the subpoena or order is subject to this agreement. Such notification shall include

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a copy of this agreement; and

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(c)

cooperate with respect to all reasonable procedures sought to be

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pursued by the designating party whose confidential material may be affected.

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8.

UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL

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If a receiving party learns that, by inadvertence or otherwise, it has disclosed

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confidential material to any person or in any circumstance not authorized under

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this agreement, the receiving party must immediately (a) notify in writing the

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designating party of the unauthorized disclosures, (b) use its best efforts to retrieve

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all unauthorized copies of the protected material, (c) inform the person or persons

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to whom unauthorized disclosures were made of all the terms of this agreement,

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and (d) request that such person or persons execute the “Acknowledgement and

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Agreement to Be Bound” that is attached hereto as Exhibit A.

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INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE

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PROTECTED MATERIAL

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When a producing party gives notice to receiving parties that certain

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inadvertently produced material is subject to a claim of privilege or other

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protection, the obligations of the receiving parties are those set forth in Federal

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Rule of Civil Procedure 26(b)(5)(B). This provision is not intended to modify

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whatever procedure may be established in an e-discovery order or agreement that

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provides for production without prior privilege review. Parties shall confer on an

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appropriate non-waiver order under Fed. R. Evid. 502.

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10.

NON TERMINATION AND RETURN OF DOCUMENTS

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Within 60 days after the termination of this action, including all appeals,

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each receiving party must return all confidential material to the producing party,

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including all copies, extracts and summaries thereof. Alternatively, the parties

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may agree upon appropriate methods of destruction.

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Notwithstanding this provision, counsel are entitled to retain one archival

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copy of all documents filed with the court, trial, deposition, and hearing transcripts,

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correspondence, deposition and trial exhibits, expert reports, attorney work

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product, and consultant and expert work product, even if such materials contain

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confidential material.

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The confidentiality obligations imposed by this agreement shall remain in

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effect until a designating party agrees otherwise in writing or a court orders

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otherwise.

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IT IS SO ORDERED.

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The District Court Executive is hereby directed to enter this Order and
provide copies to counsel.
DATED October 18, 2013.

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THOMAS O. RICE
United States District Judge

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