CARMEN E. GARZA, Chief Magistrate Judge.
The Court recognizes that some documents and information ("Materials" as defined herein) being sought through discovery in the above-captioned action may be considered confidential by the producing parties for competitive reasons or to protect personally identifying health information and confidential medical records ("Confidential Information" as defined herein). The parties have agreed to be bound by the terms of this Protective Order ("Order") in this action to facilitate document production and disclosure, and to protect the interests of the parties in their Confidential Information. This Order also applies to any nonparty from whom discovery may be sought who desires the protections provided herein. This Order shall remain in effect unless modified pursuant to the terms contained in this Order.
The following Definitions shall apply in this Order:
Each party or nonparty to this litigation that produces or discloses any Materials, answers to interrogatories, responses to requests for admission, responses to subpoenas, deposition testimony, or information that the producing party or nonparty believes should be subject to this Protective Order may designate the same as "CONFIDENTIAL." Plaintiff's counsel designates "CONFIDENTIAL" all of Mr. Salopek's medical information, whether obtained by Zurich in the application process, obtained through a medical release provided in this litigation, produced by plaintiff, or obtained from some other source. Plaintiff will stamp "CONFIDENTIAL" those medical records produced directly in litigation. Zurich should stamp "CONFIDENTIAL" all medical records it obtained in the application process and through a medical records release.
Whenever a deposition taken on behalf of any party involves the disclosure of Confidential Information of any party or nonparty:
The parties shall serve a copy of this Order simultaneously with any discovery request made to a nonparty.
Information and materials that are designated "CONFIDENTIAL" may be viewed only by:
At any stage of these proceedings, any party may request that it be permitted to disclose Materials designated as Confidential Information to individuals not permitted by this Order to view such Materials. The party must notify, in writing, Counsel for the producing party or the producing nonparty of the identity of the relevant Materials and the individuals to whom the party wishes to disclose the Materials. If the request is not resolved consensually between the parties within fourteen (14) days of receipt of such a request, the requesting party may move the Court for a ruling allowing such disclosure. In the event any party files a motion requesting such disclosure, the document shall be submitted to the Court, under seal, for an in-camera inspection. The Materials at issue must be treated as Confidential Information, as designated by the producing party, until the Court has ruled on the request.
Confidential Information and Materials designated "CONFIDENTIAL" shall be used solely for the prosecution or defense of this action. However, the principals, employees, or other agents of the parties who received information prior to and apart from this litigation that was subsequently disclosed in this litigation and designated as "CONFIDENTIAL" may retain copies of that information as is necessary for use in their respective businesses.
Nothing in this Order shall limit any producing party's use of its own documents or shall prevent any producing party from disclosing its own Confidential Information to any person. Such disclosures shall not affect any confidentiality designation made pursuant to the terms of this Order so long as the disclosure is made in a manner which is reasonably calculated to maintain the confidentiality of the information. Confidentiality will no longer apply if the producing party makes the information publically available.
Before any Materials produced in discovery, answers to interrogatories, responses to requests for admissions, responses to subpoenas, deposition transcripts, or other documents which are designated as Confidential Information are filed with the Court for any purpose, the party seeking to file such Material must seek permission of the Court to file the Material under seal. Nothing in this Order shall be construed as automatically permitting a party to file under seal. Additionally, such party seeking to file under seal shall, within the applicable deadline, file a redacted, unsealed version of any motion, response, or reply if such party is waiting for a ruling from the Court on filing an unredacted, sealed version of the same document. Further, no portion of the trial of the matter shall be conducted under seal. Should a party inadvertently file a confidential document in a public pleading, upon notice, both sides will work together to have the document placed under seal.
At any stage of these proceedings, any party may object to a designation of Materials as Confidential Information. The party objecting to confidentiality must notify, in writing, Counsel for the producing party or the producing nonparty of the objected-to Materials and the grounds for the objection. If the dispute is not resolved consensually between the parties within fourteen (14) days of receipt of such a notice of objection, the party seeking to maintain confidentiality may move the Court to maintain confidentiality. In the event any party files a motion seeking to maintain confidentiality or redaction of information, the document shall be submitted to the Court, under seal, for an in-camera inspection. The Materials at issue must be treated as Confidential Information, as designated by the producing party or nonparty, until the Court has ruled on the objection or the matter has been otherwise resolved.
No party will be responsible to another party or nonparty for disclosure of Confidential Information under this Order if the information in question is not labeled or otherwise identified as such in accordance with this Order.
If a party or nonparty, through inadvertence, produces any Confidential Information without labeling or marking or otherwise designating it as such in accordance with this Order, the producing party may give written notice to the receiving party that the Materials produced are deemed Confidential Information, and that the Materials produced should be treated as such in accordance with that designation under this Order. The receiving party must treat the Materials as confidential once the producing party so notifies the receiving party. If the receiving party has disclosed the Materials before receiving the designation, the receiving party must notify the producing party in writing of each such disclosure. Counsel for the parties and, where implicated, nonparties will agree on a mutually acceptable manner of labeling or marking the inadvertently produced Materials as "CONFIDENTIAL."
Within five (5) years of the final termination of this action, including any and all appeals, Counsel for each party must certify that they have purged all Confidential Information from all machine-readable media on which it resides and must either (a) return all Confidential Information to the party or nonparty that produced the information, including any copies, excerpts, and summaries of that information, or (b) destroy or delete all copies of Confidential Information, including excerpts and summaries of that information. With respect to paper copies, return or destruction of Confidential Information is at the option of the producing party. Notwithstanding the foregoing, Counsel for each party may retain all pleadings, briefs, memoranda, motions, and other documents filed with the Court that refer to or incorporate Confidential Information, and will continue to be bound by this Order with respect to all such retained information after the conclusion of this litigation. Further, attorney work product Materials that contain Confidential Information need not be destroyed, but, if they are not destroyed, the person in possession of the attorney work product will continue to be bound by this Order with respect to all such retained information after the conclusion of this litigation.
Any party may designate as "CONFIDENTIAL" any Materials that were produced during the course of this action without such designation before the effective date of this Order, as follows:
Transmission by email or facsimile is acceptable for all notification purposes within this Order.
This Order may be modified by agreement of the parties, subject to approval by the Court.
The Court may modify the terms and conditions of this Order for good cause, or in the interest of justice, or on its own order at any time in these proceedings.
After termination of this action, the provisions of this Order shall continue to be binding, except with respect to those documents and information that became a matter of public record. This Court retains and shall have continuing jurisdiction over the parties and recipients of Confidential Information and Materials designated as confidential for enforcement of the provisions of this Order following termination of this litigation.