Opinion
Case No. 2:03CV00616 PGC
December 15, 2003
ELISABETH R. BLATTNER, JEFFREY J. DROUBAY, PARSONS BEHLE LATIMER, Salt Lake City, UT, for Neways, Inc.
STIPULATED CONFIDENTIALITY AND PROTECTIVE ORDER
The parties, through their respective undersigned counsel, hereby stipulate and agree to the following Protective Order, and by the Court's approval it is hereby ORDERED:
1. Certain information that is or may be sought by discovery requests in this action may contain or reveal trade secrets, or other confidential research, development, or business information, personal information, or other proprietary information; and
2. Certain information that is or may be sought by discovery requests in this action may constitute Protected Health Information as defined in 45 C.F.R. § 160 and 164 ("PHI"); THEREFORE,
The referenced sections of C.F.R. and other related sections and statutes shall be referred to collectively as HIPAA.
3. Any document or information furnished in this action by a party, or its representatives, which the party in good faith believes contains or reveals any trade secrets, or other confidential research, development, or business information, personal information, or other proprietary information may be designated "CONFIDENTIAL" in accordance with the terms of this ORDER;
4. Any document or information furnished in this action by a party, or its representatives, which the party in good faith believes contains PHI may be designated "HIPAA PROTECTED" in accordance with the terms of this ORDER;
5. "CONFIDENTIAL" documents shall be so designated by stamping copies of the document produced to a party with the legend "CONFIDENTIAL." Stamping "CONFIDENTIAL" on the first page of any multipage document shall designate all pages of the document and its attachments and exhibits as confidential, unless otherwise indicated by the producing party.
6. "HIPAA PROTECTED" documents shall be so designated by stamping copies of the document produced to a party with the legend "HIPAA PROTECTED." Stamping "HIPAA PROTECTED" on the first page of any multipage document shall designate all pages of the document and its attachments and exhibits as "HIPAA PROTECTED", unless otherwise indicated by the producing party.
7. Testimony taken at a deposition, conference, hearing or trial may be designated as "CONFIDENTIAL" or "HIPAA PROTECTED" by making a statement to that effect on the record at the deposition or other proceeding, or by following the procedures set forth in Paragraph 11 hereof. Arrangements shall be made with the court reporter taking and transcribing such proceeding to separately bind such portions of the transcript containing information designated as "CONFIDENTIAL" or "HIPAA PROTECTED " and to label such portions appropriately. When testimony designated as "CONFIDENTIAL" or "HIPAA PROTECTED" is elicited during a deposition or other proceeding, persons not entitled to receive such information under the terms of this Confidentiality Order shall be excluded therefrom.
8. "CONFIDENTIAL" or "HIPAA PROTECTED" materials, including without limitation any summaries, copies, abstracts, or other documents derived in whole or in part from "CONFIDENTIAL" or "HIPAA PROTECTED" materials, shall be used for the purpose of the prosecution, defense or settlement of this case, and for no other purpose.
9. "CONFIDENTIAL" or "HIPAA PROTECTED" materials produced pursuant to this Confidentiality Order may be disclosed or made available only to the Court, to counsel of record for a party (including the paralegal, clerical and secretarial staff employed by such counsel), and to the "qualified persons" designated below:
a. a party, or an officer, director, or employee of a party deemed necessary by counsel to aid in the prosecution, defense, or settlement of this case;
b. experts or consultants (together with their clerical staff) retained by counsel to assist in the prosecution, defense or settlement of this case;
c. court reporters employed in this case;
d. a witness or potential witness being deposed or preparing for a deposition or appearing in any other proceeding in this case; and
e. any other person as to whom the parties agree in writing.
10. If a producing party inadvertently fails to mark an item as "CONFIDENTIAL" or "HIPAA PROTECTED" at the time of production, that party shall have fourteen (14) days thereafter in which to correct its failure. Such correction and notice thereof shall be made in writing, accompanied by substitute copies of each item, appropriately marked "CONFIDENTIAL" or "HIPAA PROTECTED." Within five (5) days or receipt of the substitute copies, the receiving party shall return the previously unmarked items and all copies thereof. In the event the receiving party has provided copies of unmarked documents to witnesses or others, the receiving party will take reasonable steps to retrieve the unmarked documents and to obtain the signature of the party to whom the unmarked documents were given.
11. Counsel attending a deposition, who inadvertently fails to designate any portion of the transcript as "CONFIDENTIAL" or "HIPAA PROTECTED" on the record at the deposition, shall have thirty (30) days, following mailing of the transcript by the court reporter, in which to correct his or her failure. Such correction and notice thereof shall be made in writing to the reporter, with copies to all other counsel, designating the portion(s) of the transcript that constitute "CONFIDENTIAL" or "HIPAA PROTECTED" materials, and directing the reporter to place the same under seal as provided in Paragraph 7.
12. If any party discloses "CONFIDENTIAL" or "HIPAA PROTECTED" materials of the other to a party not authorized to receive such "CONFIDENTIAL" or "HIPAA PROTECTED" materials, the party making such inadvertent disclosure shall notify the other party in writing within ten (10) days of the inadvertent disclosure, or first knowledge thereof, confirming that the inadvertently disclosed "CONFIDENTIAL" or "HIPAA PROTECTED" materials have been recovered from the individual to whom such inadvertent unauthorized disclosure was made, and verifying that no copies were made or retained by the individual receiving the unauthorized "CONFIDENTIAL" or "HIPAA PROTECTED" materials.
13. Nothing herein shall impose any restrictions on the use or disclosure by a party of material obtained by such party independent of discovery in this case, whether or not such material is also obtained through discovery in this case, or from disclosing its own "CONFIDENTIAL" or "HIPAA PROTECTED" materials as it deems appropriate.
14. If "CONFIDENTIAL" or "HIPAA PROTECTED" materials, including any portion of a deposition transcript designated as "CONFIDENTIAL" or "HIPAA PROTECTED," are attached to any papers to be filed in Court, such attachments shall be labeled "SUBJECT TO COURT ORDER" and shall be filed under seal until further order of this Court,
15. In the event that any "CONFIDENTIAL" or "HIP AA PROTECTED" materials are used in any court proceeding in this case, they shall not lose their "CONFIDENTIAL" or "HIPAA PROTECTED" status through such use, and the party using such shall take all reasonable steps to maintain their "CONFIDENTIAL" or "HIPAA PROTECTED" status during such use to ensure that end.
16. With regard to "HIPAA PROTECTED" materials, all parties shall use such materials only for purposes of this case and at the end of the litigation, including any appeal, such information shall either be returned to the producing party, or destroyed, with a certificate of destruction to be provided by the requesting party to the producing party.
17. With regard to "CONFIDENTIAL" materials, within ninety (90) days after the conclusion of the litigation, including any appeal, all such documents and information designated "CONFIDENTIAL" shall be destroyed or returned to the producing party along with all copies thereof, except that trial counsel may retain one copy of all produced documents, pleadings and transcripts. All documents prepared by attorneys, or outside experts and consultants, containing summaries, abstracts or quotations of the opposing parties' "CONFIDENTIAL" information, shall after the conclusion of the litigation, be kept within the internal files of trial counsel for the party creating such work product documents, or be destroyed.
18. This Confidentiality and Protective Order shall be without prejudice to the right of the parties to challenge designation of "CONFIDENTIAL" or "HIPAA PROTECTED" materials. If a party desires to challenge such a designation, the receiving party shall request in writing that the designating party change the designation, stating the reasons in that request. The producing party shall thereafter have five (5) business days from the date of receipt of the notification to either (i) advise the receiving party(ies) whether or not it persists in such designation; and (ii) if it persists in the designation, to explain the reason for the particular designation.
19. If the parties are thereby unable to resolve a dispute regarding a designation, the parties may (i) bring before the Court thereafter the question of whether any particular document or information is "CONFIDENTIAL" or "HIPAA PROTECTED" or whether its use should be restricted, or (ii) to present a motion to the Court for a separate protective order as to any particular document or information, including restrictions differing from or in addition to those specified herein. Upon any party's application or motion to the Court, the party designating information as "CONFIDENTIAL" or "HIPAA PROTECTED" shall continue to bear the burden of proof and persuasion under applicable legal standards with regard to justifying the designation made by that party, regardless of which party raises the question of the designation of any information as "CONFIDENTIAL" or "HIPAA PROTECTED."
20. This Confidentiality and Protective Order shall not be deemed to prejudice the parties in any way in any future application for modification of any Confidentiality and Protective Order,
21. This Confidentiality and Protective Order is entered solely for the purpose of facilitating the exchange of documents and information between the parties to this case without involving the Court unnecessarily in the process. Nothing in this Confidentiality and Protective Order, nor the giving of testimony or the production of any information or documents under the terms of this Confidentiality and Protective Order, nor any proceedings pursuant to this Confidentiality and Protective Order, shall be deemed to have the effect of an admission or waiver by either party or of altering the confidentiality or nonconfidentiality of any such document or information or altering any existing obligation of any party or the absence thereof.
22. Nothing contained herein shall affect, preclude or immunize a party from responding to any compulsory process regarding the production of documents or other things, provided that the responding party give all other parties at least ten (10) days notice of such compulsory process (or if ten (10) days is not possible, whatever reasonable notice is possible).
23. The inadvertent or unintentional production of documents containing attorney-client communications, attorney work-product or settlement discussions, shall not be deemed a waiver in whole or in party of a party's claim of confidentiality or privilege either as to the specific information disclosed therein or on the same or related subject matter, provided that the party asserting the claim of confidentiality or privilege informs the opposing party of its claim within a reasonable time after learning of the production.
24. This Confidentiality and Protective Order may be modified only by written agreement signed by counsel for the parties to the litigation.
25. This Confidentiality and Protective Order shall continue to have full force and effect in the event that this Action is transferred or remanded to another jurisdiction or venue.