United States District Court, W.D. North Carolina, Asheville Division
UNITED STATES OF AMERICA and THE STATE OF NORTH CAROLINA ex rel. Amanda Sharpe, and AMANDA SHARPE, individually, Plaintiffs,
ALLERGY PARTNERS, P.A., and DAVID A. BROWN, M.D., Defendants.
C. Keesler, United States Magistrate Judge.
Parties having stipulated that the following restrictions and
procedures shall apply to certain information, documents, and
excerpts from documents supplied by the Parties to each other
in response to discovery requests in this matter, and also
shall apply to documents served upon third parties, or
produced by such pursuant to subpoena, the Court hereby
enters the following Protective Order.
Confidential Information: all Material designated as
“Confidential-Attorneys' Eyes Only” in
accordance with Sections 4 and 5. A Producing Party may
designate any Material as “Confidential” if it
contains trade secrets, proprietary business information,
competitively sensitive information, personal information, or
other information, the disclosure of which, to persons or
entities not identified in Section 7.2 would, in the good
faith judgment of the Producing Party, cause injury to any
person or to the conduct of the Producing Party's
business or the business of any of the Producing Party's
customers or clients. A Producing Party may also designate
any Material as “Confidential” if it contains
proprietary business information or competitively sensitive
information of a third-party and the Producing Party has an
obligation to keep the information confidential. A Producing
Party may designate any Material as
“Confidential-Attorneys' Eyes Only” if, in
the good faith judgment of the Party making such designation,
the information embodies or contains extremely sensitive
trade secrets or non-public confidential personal and/or
proprietary business, commercial, or financial information.
Material: all documents, deposition transcripts,
deposition exhibits, responses to any discovery requests,
including responses to interrogatories, document requests,
and requests for admission, inspections, and physical
evidence, and any other information or items produced
pursuant to discovery obligations in this case or otherwise
given, received, or exchanged by or among the Parties or
filed with the Court and includes all copies of such
documents or other materials, in hard copy, electronic form,
or any other form or format.
Party: any party to this action, including any
officer, director, manager, member, employee, representative,
agent, consultant, retained expert, outside counsel (and
their support staff), or other person or entity acting or
purporting to act on behalf of or at the direction of any
Receiving Party: a Party or non-party that receives
Material from a Producing Party.
Producing Party: a Party or non-party that produces
Material in this action.
Designating Party: a Party or non-party that
designates Material as “Confidential” or
“Confidential-Attorneys' Eyes Only” in
accordance with Section 4.
Outside Counsel: attorneys of record in this action
who are not employees of a Party, but who are retained to
represent or advise a Party, including any counsel retained
by contract for the sole purpose of reviewing documents for
discovery in the Litigation.
In-House Counsel: attorneys who are employees of a
Party or an affiliate of a Party and who provide legal
services to a Party.
Counsel (without qualifier): Outside Counsel and
In-House Counsel (as well as their support staff).
Expert: a person with specialized knowledge or
experience in a matter pertinent to the litigation who has
been retained by a Party or its Counsel to serve as an expert
witness or as a consultant in this action. This definition
includes a professional jury or trial consultant retained in
connection with this action.
Professional Vendors: persons or entities that
provide litigation support services (e.g., photocopying;
videotaping; translating; preparing exhibits or
demonstrations; organizing, storing, retrieving data in any
form or medium; etc.) and their employees and subcontractors.
Joinder: the “Acknowledgment and Agreement to
Be Bound by Protective Order” the form of which is
attached as Exhibit A.
Litigation: as used herein, the term
“Litigation” shall mean and refer solely to
proceedings in the above-captioned lawsuit including, without
limitation, any appeal or retrial.
HIPAA: the Health Insurance Portability and
Accountability Act of 1996, codified primarily at 18, 26
& 42 U.S.C. (2003).
Protected Health Information (“PHI”):
has the same meaning as in HIPAA and the Privacy Standards,
and as defined in 45 C.F.R. §§ 160 & 164
(2003). Without limiting the definition and merely for
purposes of providing relevant examples, PHI includes, but is
not limited to, health information, including demographic
information, relating to either: the past, present, or future
physical or mental condition of an individual; the provision
of care to an individual; and the payment for care provided
to an individual that identifies the individual or which
reasonably could be expected to identify the individual.
Privacy Standards: the Standards for Privacy of
Individually Identifiable Health Information. See 45 C.F.R.
§§ 160 & 164 (2003).
Covered Entity: any entity defined by 45 C.F.R.
§ 160.103 (2003).
Signatory: any Party to this Litigation, its
attorneys, and any non-party that a court may subsequently
recognize as a signatory of this protective order.
protections conferred by this Order cover not only
Confidential Information, but also any information copied or
extracted from Confidential Information, as well as all
copies, excerpts, summaries, or compilations thereof, plus
testimony, conversations, or presentations by Parties or
Counsel to or in court or in other settings that might reveal
Confidential Information. To the extent that during the
course of this litigation, “Confidential” or
“Confidential- Attorneys' Eyes Only” Material
needs to be served on or produced to counsel for the United
States or the State of North Carolina, such service or
production shall be conditioned upon such entity's first
agreeing to be bound by the terms of this Order.
after the termination of this Litigation, the confidentiality
obligations imposed by this Order shall remain in effect
until a Designating Party agrees otherwise in writing or a
court order otherwise directs.
DESIGNATING CONFIDENTIAL INFORMATION
and Timing of Designations. Material sought to be
protected under this Order must be clearly designated at the
time the Material is disclosed or produced. The inadvertent
production of Materials not designated as
“Confidential-Attorneys' Eyes Only” will not
be deemed a waiver of any future claim of confidentiality
concerning such Materials. Should a Producing or Receiving
Party discover or determine that Materials should have been
designated as “Confidential” or
“Confidential-Attorneys' Eyes Only, ” the
Producing or Receiving Party shall be permitted to move the
Court for appropriate relief, consistent with applicable law.
Until such time as an order to the contrary is entered by the
Court, if ever, the Parties shall treat the Materials
pursuant to the new designation under the terms of this
in conformity with this Order requires:
for information in documentary form (whether in
electronic or physical form, but apart from transcripts of
depositions or other pretrial or trial proceedings), that the
Producing or Receiving Party conspicuously affix the legend
“Confidential-Attorneys' Eyes Only” on each
page of each document that contains Confidential Information.
For avoidance of doubt, the affixing of such legend on the
first page or any other page of any document does
not confer Confidential status on any page of that
document that does not also bear that legend, except
that in the case of electronic documents, the addition
of such legend to the filename of a document shall confer
Confidential status on the whole document, and the addition
of such legend to the name of an electronic folder shall
confer Confidential status on all documents therein, in their
for testimony given in deposition or in other pretrial or
trial proceedings, that the Party or non-party identify
on the record all protected testimony, or within ten (10)
business days after the transcript is received after the
close of the deposition, hearing, or other proceeding specify
any portions of the testimony that qualify as
“Confidential-Attorneys' Eyes Only.” Only
those portions of the testimony that are designated for
protection within the ten-business-day period shall be
covered by the provisions of this Order. Until the expiration
of the ten-business-day period, all deposition testimony
shall be deemed “Confidential” and treated as if
Party or non-party offering or sponsoring the witness or
presenting the testimony shall direct the court reporter to
mark the transcript pages (and exhibits if a Designating
Party has identified such exhibits pursuant to Section 4(a))
containing Confidential Information with the legend