The Estate of Jessie Miller et al v. Michlowski, Thomas et al

Filing 103

PROTECTIVE ORDER. Signed by District Judge William M. Conley on 10/3/2012. (arw)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN

THE ESTATE OF JESSIE MILLER, et aI.,
Plaintiffs,

v.

Case No. 1O-CV-807

RYAN TOBIASZ, et aI.,
Defendants.

PROTECTIVE ORDER

The Court enters the following order to enable the parties and their experts to examine
relevant documents and give testimony about their conclusions based on those documents and to
enable the parties to adequately prosecute and defend this litigation. The Court recognizes that
each party reserves all rights to object, for any reason, to any discovery request made by any
other party, and that no party consents to any particular discovery request made by any other
party. The purpose of this Order is instead to facilitate the exchange and use of certain
documents in this case in ways that protect third party rights and that avoid violations of
applicable laws and regulations.
1.

Counsel for both parties may have access to records in the possession and control

of the Wisconsin Department of Corrections (WDOC) and the Wisconsin Department of Health
Services (WDHS) that relate to the medical, dental, mental health care or of the social service or
correctional history of Jessie Miller, and that might otherwise be subject to confidentiality
restrictions. Counsel for both parties may also designate records not listed above as confidential
by so designating the document at the time of production.or inspection.

2.

Counsel for plaintiffs may share confidential records or information from

confidential records and clinical files or personally identifying information from confidential
records with the following individuals only:
(a)

Robert Bertram, as executor of Jessie Miller's estate;

(b)

plaintiffs' experts, as provided herein;

(c)

counsel's legal, clerical and' other staff;

(d)

court personnel;

(e)

court reporters and deponents;

(f)

any outside mediator retained by mutual consent of the parties;

(g)

other persons stipulated in writing by mutual agreement as provided herein or
authorized by order of the Court.

3.

Counsel for defendants may share information from confidential records with the

following:
(a)

their clients;

(b)

persons designated to represent named defendants for the purposes of defending

and/or resolving this lawsuit;
(c)

Current or former WDOC and WDHS health services employees or employees of

health services organizations under contract to WDOC or WDHS who provided treatment
to Jessie Miller;
(d)

current or former employees of Columbia Correctional Institution, to the extent

reasonably necessary for the litigation of this action;
(e)

current or former employees of Wisconsin Resource Center, to the extent

reasonably necessary for the litigation of this action;
(f)

experts or consultants retained for purposes of defending this lawsuit;
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(g)

Department of Corrections and Department of Justice legal and clerical staff, as

well as individuals or employees of vendors retained to provide clerical services;
(h)

court personnel;

(i)

deponents and court reporters; and

(;)

other persons as provided herein or authorized by order of the court.

4.

Counsel for either party may share information from confidential records,

including the record itself, with expert witnesses retained by the party for this case, conditioned
on those experts signing a copy of this protective order. The expert's written agreement to
accept these terms must be filed with opposing counsel before they may examine confidential
records or information from the records.
5.

If an expert believes that his or her report must reference confidential records, the

expert may do so but must then submit his or her report. to counselor the Court under seal. Such
reports shall remain under seal and be subject to in camera inspection only by the court until
opened by agreement of counsel for both parties or by order of the Court. Portions of deposition
transcripts which reference confidential material or exhibits thereto shall also be maintained
under seal subject to these same provisions.
6.

An expert designated by either party may discuss confidential information with

the counsel who retained him or her or with Robert Bertram as executor of Jessie Miller's estate.
The expert may also discuss confidential information with health care providers who provided
health care services, with health care staff employed by WDOC and WDHS, and with employees
of health services organizations under contract with WDOC or WDHS. However, all such
discussions shall remain confidential except to the extent they may be otherwise discoverable or
subject to disclosure under the terms of this protective order. Further, the parties and their

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counsel agree that any such discussions are subject to the ordinary rules of practice regarding
counsel contacting and communicating with persons who are represented by counsel.
7.

These procedures shall also apply to examination of pre-sentence investigation

reports. However, under no circumstances may counsel, orally or otherwise, share with plaintiffs
the statements of victims or witnesses contained in those reports.

This order satisfies the

requirements of Wis. Stat. § 972.15(4) for disclosure of information from pre-sentence
investigation reports.
8.

Regarding the personal information of employees of WDOC and WDHS, there

shall be no disclosure to any parties or to experts retained by parties of the employees' date of
birth, marital status, family information, address, social security number, telephone number, or
email address.

Such information may be shared among counsel of record and their own

employees only.
9.

The following documents may be examined by counsel and their experts but may

be disclosed to no one else, except upon express order of the Court or by defendants' agreement:
mortality reviews, internal investigation, video recordings, post orders, Security Internal
Management Procedures, blueprints, and those parts of the WDOC's policy and procedure
manuals designated as confidential and/or restricted.
10.

With respect to alcohol and drug abuse treatment information ("AODA

information"), counsel shall attempt to reach agreement on a procedure for disclosure of AODA
information that may be contained in records to the

ex~ent

necessary for this litigation and

consistent with the applicable requirements of federal and state law. In the interim, counsel for
defendants and defendant health services employees may review records as necessary to timely
respond to discovery requests that do not request AODA information.

11.

Counsel for the parties shall exercise reasonable professional judgment in both

designating documents as confidential as well as in requesting documents which are confidential.
All persons -allowed access to confidential records pursuant to this agreement shall take
reasonable and necessary measures to maintain the confidentiality of such records, and are
prohibited from using or disclosing the confidential records for any other purposes other than
litigating or pursuing settlement in this lawsuit.

12.

Upon termination of this lawsuit, including termination of any appeal from the

final judgment of this Court, all confidential records obtained, disclosed or used pursuant to this
order, and any copies thereof, shall be destroyed or returned to the entity that provided the
records. In the alternative, counsel shall protect the confidentiality of the records for so long as
they are retained by counsel, and shall limit further uses and disclosures of confidential
information as required by this Order.

IT IS SO ORDERED.
Dated

thi~ay of C2~~2012.

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