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United States v. Allergy Partners, P.A.

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

November 5, 2019

UNITED STATES OF AMERICA and THE STATE OF NORTH CAROLINA ex rel. Amanda Sharpe, and AMANDA SHARPE, individually, Plaintiffs,


          David C. Keesler, United States Magistrate Judge.

         The 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.

         1. DEFINITIONS

         1.1 Confidential Information: all Material designated as “Confidential” or “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.

         1.2 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.

         1.3 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 party.

         1.4 Receiving Party: a Party or non-party that receives Material from a Producing Party.

         1.5 Producing Party: a Party or non-party that produces Material in this action.

         1.6 Designating Party: a Party or non-party that designates Material as “Confidential” or “Confidential-Attorneys' Eyes Only” in accordance with Section 4.

         1.7 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.

         1.8 In-House Counsel: attorneys who are employees of a Party or an affiliate of a Party and who provide legal services to a Party.

         1.9 Counsel (without qualifier): Outside Counsel and In-House Counsel (as well as their support staff).

         1.10 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.

         1.11 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.

         1.12 Joinder: the “Acknowledgment and Agreement to Be Bound by Protective Order” the form of which is attached as Exhibit A.

         1.13 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.

         1.14 HIPAA: the Health Insurance Portability and Accountability Act of 1996, codified primarily at 18, 26 & 42 U.S.C. (2003).

         1.15 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.

         1.16 Privacy Standards: the Standards for Privacy of Individually Identifiable Health Information. See 45 C.F.R. §§ 160 & 164 (2003).

         1.17 Covered Entity: any entity defined by 45 C.F.R. § 160.103 (2003).

         1.18 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.

         2. SCOPE

         The 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.

         3. DURATION

         Even 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.


         Manner 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” or “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 Order.

         Designation in conformity with this Order requires:

         (a) 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” or “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 respective entireties.

         (b) 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” or “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 so designated.

         The 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 ...

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