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United States v. Charlotte-Mecklenburg Hospital Authority

United States District Court, W.D. North Carolina, Charlotte Division

October 16, 2017

UNITED STATES OF AMERICA AND THE STATE OF NORTH CAROLINA, Plaintiffs,
v.
THE CHARLOTTE-MECKLENBURG HOSPITAL AUTHORITY, d/b/a CAROLINAS HEALTHCARE SYSTEM, Defendant.

          AMENDED PROTECTIVE ORDER REGARDING CONFIDENTIALITY

          DAVID C. KEESLER, UNITED STATES MAGISTRATE JUDGE.

         WHEREAS the United States of America and State of North Carolina (“Plaintiffs”) filed this civil antitrust action against the Defendant;

         WHEREAS the information relevant to the issues in this action will likely include commercially-sensitive and/or competitive health care information, such as information pertaining to present or future business strategies, costs, and margins, and may include personal health information;

         WHEREAS Fed.R.Civ.P. 26(c)(1)(G) provides that the Court may, for good cause shown, require that a “trade secret, or other confidential research, development, or commercial information not be revealed or be revealed only in a specified way;”

         WHEREAS the Court and the parties seek to facilitate orderly and efficient party and third-party discovery to “secure the just, speedy, and inexpensive determination” of this action, Fed.R.Civ.P. 1;

         WHEREAS the parties consent to the entry of this Protective Order Regarding Confidentiality; and

         WHEREAS the Court hereby finds that there is good cause to enter this Protective Order Regarding Confidentiality to shield commercially-sensitive, competitive health care and personal health information;

         IT IS THEREFORE ORDERED that the following restrictions and procedures shall apply to Materials provided by any Producing Person that contain Confidential Information, Highly Confidential Information, or Restricted Highly Confidential Information as defined herein.

         A. Definitions

         For purposes of this Order, the following definitions apply:

1. “Confidential Information” means any Material which contains any “trade secret or other confidential research, development, or commercial information, ” Fed.R.Civ.P. 26(c)(1)(G); protected personal information including protected personal health information; Protected Health Information, as that term is defined by the Health Insurance Portability and Accountability Act, 45 C.F.R. Parts 160 and 164; and competitive health care information, as defined in Chapter 131E of the North Carolina General Statutes.
2. “Highly Confidential Information” means any Confidential Information that the Producing Person reasonably believes to be so sensitive that it is entitled to extraordinary protections.
2.1 “Restricted Highly Confidential” means any Highly Confidential Information that the Producing Person reasonably believes to be so sensitive that it is entitled to extraordinary protections including limited distribution among the law firms representing the Defendant.
3. “Investigation Materials” means any Materials provided by any Producing Person, either voluntarily or under compulsory process, to any party in response to Plaintiffs' pre- complaint inquiry into the matters at issue in this action, including statements under oath and any exhibits thereto.
4. “Materials” means any document, information, or transcript of testimony that is either (a) Investigation Materials or (b) provided to any party in connection with the litigation of this action.
5. “Producing Person” means any person that provides or has provided Materials.
6. “DiCesare v. CHS” or “state court” refers to a civil action presently pending in the Superior Court Division of the General Court of Justice of Mecklenburg County and assigned to the North Carolina Business Court entitled “Christopher DiCesare, James Little, and Johanna Macarthur, individually and on behalf of all others similarly situated, Plaintiffs, v. The Charlotte-Mecklenburg Hospital Authority, d/b/a Carolinas HealthCare System, Defendant” and bearing civil docket number 16-CvS-16404.

         B. Protection of Confidential Information, Highly Confidential Information, or Restricted Highly Confidential Information in Investigation Materials

         7. Within ten business days of the Court's entry of this Order, each party must send by email, facsimile, or overnight delivery a copy of this Order to each non-party Producing Person (or, if represented by counsel, the non-party Producing Person's counsel) that provided to that party any Investigation Materials relevant to this action.

         8. A Producing Person shall have 60 days after receiving a copy of this Order (the “Designation Period”) to designate as Confidential Information, Highly Confidential Information, or Restricted Highly Confidential Information any Materials to the extent the Producing Person determines, in good faith, that the Materials include Confidential Information, Highly Confidential Information, or Restricted Highly Confidential Information, and that such designation is necessary to protect the interests of the Producing Person. Such Investigation Materials may be so designated, if they have not already been designated, by providing written notice by overnight mail or email to the party to which the Investigation Materials were produced that includes (i) copies of the Investigation Materials stamped with the legend “CONFIDENTIAL INFORMATION, ” “HIGHLY CONFIDENTIAL INFORMATION” or “RESTRICTED HIGHLY CONFIDENTIAL INFORMATION” as appropriate or (ii) identification of the document(s) and page number(s), or page and line number of testimony, containing the Confidential Information, Highly Confidential Information, or Restricted Highly Confidential Information. Until the expiration of this Designation Period, all Investigation Materials will be treated as Highly Confidential Information in their entirety. Notwithstanding the foregoing, this Paragraph does not apply to any Producing Person of Investigation Materials who received notice of the Protective Order Regarding Confidentiality (Dkt. 45) (“Initial Protective Order”) and was given the opportunity to provide confidentiality designations for its Investigation Materials in accordance with the Initial Protective Order.

         9. Counsel for Plaintiffs and Defendant to be notified are as follows:

          For Plaintiff United States: John R. Read U.S. Department of Justice

          For Plaintiff State of North Carolina: K.D. Sturgis Special Deputy Attorney General North Carolina Department of Justice

          For Defendant: James P. Cooney III Suite One Wells Fargo Center 301 South College Street Charlotte, North Carolina

         10. If a non-party Producing Person determines that this Order does not adequately protect its Confidential Information, Highly Confidential Information, or Restricted Highly Confidential Information, it may, within 30 days after receipt of a copy of this Order, seek additional protection from the Court for its Confidential Information, Highly Confidential Information, or Restricted Highly Confidential Information. If a non-party Producing Person seeks additional protection from the Court, any Investigation Materials for which additional protection has been sought will not be provided to other persons until the Court has ruled.

         C. Protection of Confidential Information, Highly Confidential Information, or Restricted Highly Confidential Information in Discovery

         11. Whenever discovery is sought from any non-party in this action, a copy of this Order must accompany the discovery request or subpoena, unless a party has already provided the non-party with a copy of this Order. Non-parties may designate Materials as Confidential Information, Highly Confidential Information, or ...


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