GERSHWIN A. DRAIN, District Judge.
This matter coming before the Court on Rehab Solutions, LLC's ("Plaintiff") Motion for Entry of Protective Order [27], the Court being duly advised in the premises,
All materials produced or adduced in the course of discovery by or on behalf of any party, non-party or witness in connection with the above-captioned matter, including without limitation initial disclosures, subpoenas, responses to discovery requests, deposition testimony and exhibits, expert testimony, disclosures and reports, and information derived directly therefrom (hereinafter collectively "Discovery Material"), shall be subject to this Order concerning Confidential Information as defined below. As used herein, "Producing Party" shall refer to any party to the above-captioned matter and to any non-party who produces Discovery Material, and "Receiving Party" shall refer to any individual who properly receives, is shown, or is exposed to Discovery Material. This Order is subject to the Local Rules of this District and the Federal Rules of Civil Procedure on matters of procedure and calculation of time periods.
As used in this Order, "Confidential Information" means information designated as "CONFIDENTIAL-SUBJECT TO PROTECTIVE ORDER" by the producing party that falls within one or more of the following categories: (a) information prohibited from disclosure by statute or written agreement; (d) information that reveals trade secrets; (c) research, technical, commercial or financial information that the party has maintained as confidential; (d) medical information concerning any individual; (e) personal identity information; (f) income tax returns (including attached schedules and forms), W-2 forms and 1099 forms; or (g) personnel or employment records of a person who is not a party to this case. Information and documents that are available to the public may not be designated as Confidential Information.
Unless all parties agree on the record at the time the deposition testimony is taken, all deposition testimony taken in this case shall be treated as Confidential Information for twenty (20) calendar days following receipt of the final transcript (i.e., the first transcript not designated "Draft" or "Rough" by the court reporter) by counsel for the Producing Party, but not thereafter unless, before the twenty (20) calendar day period has expired, counsel for the Producing Party serves a Notice of Designation to all parties of record as to specific portions of the testimony that are designated as Confidential, and thereafter only those portions identified in the Notice of Designation shall be protected by the terms of this Order. The failure to serve a timely Notice of Designation shall waive any designation of testimony taken in that deposition as Confidential Information, unless otherwise ordered by the Court.
Confidential Information shall not be used or disclosed by the parties, counsel for the parties or any other persons identified in subparagraph (b) for any purpose whatsoever other than in this litigation, including any appeal thereof. Nothing in this Order shall preclude a party or its counsel (1) from showing Confidential Information to an individual who prepared or authored the Discovery Material prior to the filing of this Action; (2) from using or disclosing its own Confidential Information; or (3) from using or disclosing any information or documents obtained legally from a source not governed by this Order.
Unless otherwise directed by the Court or authorized in writing by the Producing Party, counsel for the parties shall not disclose or permit the disclosure of any Confidential Information to any person or entity except as set forth in subparagraphs (1)-(10). Subject to these requirements, the following categories of persons may be allowed to review Confidential Information:
Confidential Information shall not be disclosed to persons described in Paragraphs 5(b)(5)-(10) unless and until such persons have completed the certification contained in Attachment A, Acknowledgment of Understanding and Agreement to Be Bound.
Counsel for the Parties shall make reasonable efforts to prevent unauthorized or inadvertent disclosure of Confidential Information. Counsel shall maintain the originals of the forms signed by persons acknowledging their obligations under this Order for a period of three years after the termination of the case.
Third parties may designate as Confidential deposition transcripts of their witnesses and any documents or information they produce, either voluntarily or by subpoena, to the same extent and in the same manner as parties to the above-captioned matter, and any such Discovery Material shall be treated by the parties to this matter in the same manner as Discovery Material so designated by a party. Third parties shall have the same rights and obligations under this Order as parties and may move the Court to enforce the provisions of this Order.
An inadvertent failure to designate a document as Confidential does not, standing alone, waive the right to so designate the document; provided, however, that a failure to serve a timely Notice of Designation of deposition testimony as required by this Order, even if inadvertent, waives any protection for deposition testimony. If a party designates a document as Confidential after it was initially produced, the Receiving Party, on notification of the designation, must make a reasonable effort to assure that the document is treated in accordance with the provisions of this Order. No party shall be found to have violated this Order for failing to maintain the confidentiality of material during a time when that material has not been designated Confidential Information, even where the failure to so designate was inadvertent and where the material is subsequently designated Confidential Information.
This Order does not, by itself, authorize the filing of any document under seal. Any party wishing to file a document designated as or containing Confidential Information in connection with a motion, brief or other submission to the Court must comply with Local Rule 26.4.
Except on privilege grounds not addressed by this Order, no party may withhold information from discovery on the ground that it requires protection greater than that afforded by this Order unless the party moves for an order providing such special protection.
The designation of any material or document as Confidential Information is subject to challenge by any party. The following procedure shall apply to any such challenge.
A party challenging the designation of Confidential Information must do so in good faith and must begin the process by conferring directly with counsel for the designating party. In conferring, the challenging party must explain the basis for its belief that the confidentiality designation was not proper and must give the designating party an opportunity to review the designated material, to reconsider the designation, and, if no change in designation is offered, to explain the basis for the designation. The designating party must respond to the challenge within five (5) business days.
A party that elects to challenge a confidentiality designation may file and serve a motion that identifies the challenged material and sets forth in detail the basis for the challenge. Each such motion must be accompanied by a competent declaration that affirms that the movant has complied with the meet and confer requirements of this procedure. The burden of persuasion in any such challenge proceeding shall be on the designating party. Until the Court rules on the challenge, all parties shall continue to treat the materials as Confidential Information (as applicable) under the terms of this Order.
Applications to the Court for an order relating to materials or documents designated Confidential Information shall be by motion. Nothing in this Order or any action or agreement of a party under this Order limits the Court's power to make orders concerning the disclosure of documents produced in discovery or at trial.
Nothing in this Order shall be construed to affect the use of any document, material, or information at any trial or hearing. A party that intends to present or that anticipates that another party may present Confidential Information at a hearing or trial shall bring that issue to the Court's and parties' attention by motion or in a pretrial memorandum without disclosing the Confidential Information. The Court may thereafter make such orders as are necessary to govern the use of such documents or information at trial.
Unless otherwise agreed or ordered, this Order shall remain in force after dismissal or entry of final judgment not subject to further appeal.
Within sixty-three days after dismissal or entry of final judgment not subject to further appeal, all Confidential Information and documents marked "CONFIDENTIAL — SUBJECT TO PROTECTIVE ORDER" under this Order, including copies as defined in Paragraph 3(a), shall be returned to the Producing Party unless: (1) the document has been offered into evidence or filed without restriction as to disclosure; (2) the parties agree to destruction to the extent practicable in lieu of return;
Notwithstanding the above requirements to return or destroy documents, counsel of record in the above-captioned matter may retain (1) attorney work product, including an index that refers or relates to designated Confidential Information so long as that work product does not duplicate verbatim substantial portions of Confidential Information, (2) one complete set of all documents filed with the Court, including those filed under seal; (3) transcripts of testimony and exhibits; and (4) correspondence for archival purposes. Any retained Confidential Information shall continue to be protected under this Order. An attorney may use his or her work product in subsequent litigation, provided that its use does not disclose or use Confidential Information.
Filings under seal shall be deleted from the ECF system only upon order of the Court.
This Order shall be subject to modification by the Court on its own initiative or on motion of a party or any other person with standing concerning the subject matter.
This Order is entered based on the representations and agreements of the parties and for the purpose of facilitating discovery. Nothing herein shall be construed or presented as a judicial determination that any document or material designated Confidential Information by counsel or the parties is entitled to protection under Rule 26(c) of the Federal Rules of Civil Procedure or otherwise until such time as the Court may rule on a specific document or issue.
Nothing in this Order shall bar or otherwise restrict counsel from rendering advice to his or her client with respect to the above-captioned matter and, in the course thereof, relying in a general way upon his or her examination of Confidential Information produced or exchanged in the above-captioned matter; provided, however, that in rendering such advice and in otherwise communicating with a person not entitled to view Confidential Information, the attorney shall not disclose the contents of Confidential Information produced by any other party or non-party.
This Order shall take effect when entered and shall be binding upon all counsel of record and their law firms, the parties, and persons made subject to this Order by its terms.
Additionally, the Court
SO ORDERED.
