Opinion
CIVIL NO. 2:03 CV 00646 TC
June 1, 2004
LAWRENCE E. STEVENS, DEREK LANGTON, JOHN E. DELANEY, Parsons Behle Latimer, Salt Lake City, UT, for Defendant American National Insurance Company
STEPHEN G. MORGAN, DENNIS R. JAMES, MORGAN, MINNOCK RICE, L.C., for Plaintiffs
LAWRENCE E. STEVENS, DEREK LANGTON, JOHN E. DELANEY, PARSONS BEHLE LATIMER, for American National Insurance Company
JONATHAN O. HAFEN, MATTHEW J. BALL, PARR WADDOUPS BROWN GEE LOVELESS, for Damn Ivie
STIPULATED PROTECTIVE ORDER
Based on the Stipulation for Protective Order and Confidentiality Agreement (the "Stipulation") entered into between defendant American National Insurance Company ("ANIC"), defendant/counterclaimant Darrin Ivie ("Ivie"), and plaintiffs/counterclaim defendants Farm Bureau Life Insurance Company and Farm Bureau Mutual Insurance Company (collectively "Plaintiffs"), and for good cause shown,
It is hereby ORDERED as follows:
1. This Stipulated Protective Order (hereinafter "this Order") shall apply to all of the documents and information produced by any of the parties to this action that are designated as "Confidential Information" and/or "Protected Health Information" as provided herein,
2. For purposes of this Order, the term "Confidential Information" shall mean all documents designated as confidential, as provided herein, as well as all information contained in any such documents, and any notes, summaries, pleadings or other papers containing or incorporating any information derived from or contained in any confidential documents.
3. For purposes of this Order, the term "Protected Health Information" shall mean all documents and information that contain or may contain information that may be subject to the Health Insurance Portability and Accountability Act of 1996 ("HIPAA"). Such documents include all individually identifiable health information which identifies or reasonably can be used to identify an individual and relates to (a) the past, present, or future physical or mental health of an individual; (b) the provision of health care to an individual; or (c) the past, present, or future payment for the provision of health care to an individual. All documents designated as Protected Health Information, as provided herein, as well as all information contained in any such documents, and any notes, summaries, pleadings or other papers containing or incorporating any information derived from or contained in any documents relating to Protected Health Information are protected under this Order.
4. Any of the parties to this action may designate as Confidential Information any documents or information that such party reasonably and in good faith regards as proprietary, confidential, trade secrets or otherwise highly sensitive. Further, any of the parties to this action may designate as Protected Health Information any documents or information that such party reasonably and in good faith regards as being subject to HIPAA protection.
5. Documents identified as containing Confidential Information shall be identified by typing, stamping or affixing on the face of the first page of each document the designation, "Confidential," prior to or at the time of production.
6. Documents identified as containing Protected Health Information shall be identified by typing, stamping or affixing on the face of the first page of each document the designation, "Confidential — Protected Health Information," prior to or at the time of production.
7. Any party to this action may object to the designation by the producing party of information or documents as Confidential Information and/or Protected Health Information by submitting a motion to the Court for a ruling that the information or documents should not be so treated. Upon such application, the party designating the information or documents as Confidential Information and/or Protected Health Information shall have the burden of persuasion on the issue of whether the information or documents warrant protection under Rule 26(c) of the Federal Rules of Civil Procedure. Unless and until the Court expressly rules that the information or documents do not warrant such protection, however, the parties shall continue to maintain the confidentiality of the information or material, and shall not use such information or material for any purpose outside of this proceeding, and shall otherwise abide by the provisions of this Order.
8. Except as otherwise provided in paragraphs 10, 12, and 13 below, Confidential Information and/or Protected Health Information may only be disclosed to the Court, the named parties, counsel of record for the parties and their paralegal and clerical employees, and retained experts and consultants. Additionally, except as otherwise provided in this Order, the parties who receive Confidential Information and/or Protected Health Information from the producing party shall make all reasonable efforts to maintain the confidentiality of such Confidential Information and/or Protected Health Information, and shall not use such Confidential Information and/or Protected Health Information for any purpose other than the litigation of this action. All outside experts or consultants of any party to whom Confidential Information and/or Protected Health is disclosed under this paragraph must first agree to be bound by the terms of this Order, shall acknowledge his or her willingness to abide by its terms by executing an Acknowledgement of Protective Order in the form attached to the Stipulation as Exhibit A, shall maintain the confidentiality of all Confidential Information and/or Protected Health Information, and (a) shall not disclose such information to any other person or entity, except as expressly permitted under this Order, or as required by law, including, but not limited to, a duly issued subpoena; and (b) shall not use such information for any purpose other than for the limited purpose of the litigation of this proceeding.
9. Neither the taking of any action nor the failure to take any action to enforce the provisions of this Order, nor the failure to object to any such action or omission, shall constitute a waiver of any claim or defense in this proceeding, or any other action or proceeding, that any information or material is or is not proprietary or that such information embodies or contains trade secrets of any party.
10. If any non-party to this proceeding seeks access to Confidential Information and/or Protected Health Information from any party to the Stipulation (other than the party that produced the Confidential Information and/or Protected Health Information) by serving a subpoena issued by any court, or any administrative or legislative body, or any other person or entity purporting to have authority to subpoena such information, the party to whom the subpoena is directed, unless otherwise required by the express terms of the subpoena, shall not produce such information until that party first (a) promptly notifies the party that produced the Confidential Information and/or Protected Health Information of the subpoena, (b) informs the person or entity on behalf of whom the subpoena was issued of the existence of this Order and the Stipulation and of this Order based on the Stipulation, and (c) allows counsel for the party that produced the Confidential Information and/or Protected Health Information a reasonable opportunity to move to quash or modify the subpoena.
11. This Order shall not prejudice the right of any party hereto to seek relief from or modification of any provision contained herein by motion to the Court with reasonable notice to all parties to this litigation.
12. Counsel for any party may disclose Confidential Information and/or Protected Health Information during the taking of any deposition or examination of any witness during any trial or other evidentiary hearing before the Court if counsel, in good faith, believes that disclosure of such Confidential Information and/or Protected Health Information is necessary to conduct a full and complete examination of the deponent or witness; however, no copy or original of a confidential document shall be provided to a witness or deponent other than for the limited purpose of examining the document during the course of the deposition or examination, after which the document shall be returned to counsel or the court reporter. The deponent or witness shall be informed that the Confidential Information and/or Protected Health Information is subject to this Order and the Stipulation, limiting disclosure of the information, and shall be directed to maintain the confidentiality of the information.
13. If any Confidential Information and/or Protected Health Information is used or discussed during any deposition taken in this action, the party which produced such Confidential Information and/or Protected Health Information may designate the deponent's entire testimony, and the transcript thereof, as Confidential Information and/or Protected Health Information by so requesting on the record prior to the conclusion of the deposition. Such designation shall be effective only until forty-five (45) days after the receipt of the transcript of the deposition, after which the party may designate portions of the deposition testimony as Confidential Information and/or Protected Health Information only by informing opposing counsel in writing of the pages that contain Confidential Information and/or Protected Health Information. The parties thereafter shall stamp or cause to be stamped the word "Confidential" and/or "Confidential — Protected Health Information" on each page of the original, and all copies, of the deposition transcript so identified.
14. In connection with any evidentiary hearing in this proceeding, any party to this action may designate all or any portion of a witness's testimony as Confidential Information and/or Protected Health Information by advising the Court of the designation at or before the close of evidence. Thereafter, the court reporter, if any, shall separately transcribe and bind those portions of the testimony designated as Confidential Information and/or Protected Health Information, and shall stamp "Confidential" on the cover of the separate transcript. Separate transcripts so designated shall be filed under seal in the Court records. If such hearing is tape recorded or video recorded, then such recordings will be filed under seal in the Court records.
15. Storage, transmission or communication of Confidential Information and/or Protected Health Information must be such as reasonably to ensure that the Confidential Information and/or Protected Health Information will not be disclosed, accidentally or otherwise, to non-authorized persons.
16. All Confidential Information and/or Protected Health Information filed with the Court, and any pleading, motion, or other paper filed with the Court that contains or otherwise discloses Confidential Information and/or Protected Health Information, shall be filed under seal in the Court records and kept under seal until further order of the Court.
17. Each of the parties hereto agrees to return to the producing party all Confidential Information and/or Protected Health Information, as defined in paragraphs 1 through 3 above, in the receiving party's possession, custody or control, or in the possession, custody or control of such party's attorneys, within sixty (60) days, after the conclusion or termination of this litigation, including all appeals, or alternatively, they shall, within sixty (60) days, after the conclusion or termination of this litigation, including all appeals, destroy all Confidential Information and/or Protected Health Information that they received from the other party, and certify in writing to the party that produced such information that all Confidential Information and/or Protected Health Information has been destroyed.
18. This Order and the Stipulation shall remain in force and effect during the entirety of this proceeding and thereafter, unless and until modified, superseded or terminated pursuant to written agreement of the parties or by order of the Court.
CHECKLIST FOR FILING DOCUMENTS UNDER SEAL
HAVE YOU: Placed your document in an unfolded envelope with a copy of the cover page of the document affixed to the outside of the envelope.
Placed a notation on the coverpage affixed to the outside of the envelope that the document is "SEALED."
Prepared a copy for the Judge as noted above.
Differentiated the documents as to "original" and/or "copy".
No document may be sealed unless accompanied by an order sealing the document, it is being filed in a case already under seal or it contains material under a protective order (if under a protective order, coverpage document should be clearly marked: "CONFIDENTIAL, SUBJECT TO A COURT PROTECTIVE ORDER"), Unless otherwise ordered, the clerk will provide access to a sealed case or document only on court order.