United States District Court, E.D. Arkansas, Western Division
AGREED PROTECTIVE ORDER
HONORABLE KRISTINE BAKER UNITED STATES DISTRICT JUDGE
This
Court holds that the following procedures and provisions
apply to discovery in this civil action (the
"Action") in order to protect information of a
sensitive, confidential, proprietary, or legally protected
nature, and the privacy rights of the parties or certain
non-parties. The entry of this Protective Order is not, and
should not be construed as, a waiver by any party or
non-party of any privilege or objection to any particular
discovery request. This Protective Order shall be deemed to
be a "qualified protective order" for purposes of
HIPAA (the "Health Insurance Portability and
Accountability Act"), including but not limited to 45
C.F.R. § 164.512(e).
I.
DEFINITIONS
A.
"Party" means any current plaintiff or defendant in
this Action, and any plaintiff, defendant, or other party
that may be joined in this Action, B. "Corporate
Party" means any current plaintiff or defendant in this
Action that is not an individual, but rather, is named in the
Action as a business entity or association, such as a
corporation, limited liability company, partnership or any
other business concern required to be formed pursuant to
applicable law.
C.
"Non-Party" means any person or entity not a Party
who produces documents or other information or provides
testimony in response to a subpoena or other process in this
Action.
D.
"Material" is defined as documents, electronically
stored information, records, tangible materials, testimony,
responses to discovery, and other information produced by a
Party or Non-Party in discovery in this Action.
E.
"Confidential Material" is defined as Material that
any Party or Non-Party considers in good faith to be
information relating to: medical treatment, trade secrets,
research, development, strategic planning, financial,
commercial, confidential, sensitive or proprietary
information which, if disclosed, might adversely affect the
competitive position or business operations of the Party or
Non-Party producing the materials, or invade the privacy
rights of any person.
F. The
"Designator" is any Party or Non-Party who produces
Material in this Action and designates any such Material as
"CONFIDENTIAL" in conformity with Section
II.
DESIGNATION OF MATERIALS AS "CONFIDENTIAL"
Any
Party or Non-Party who produces Material in the course of
discovery In this Action may designate such Material as
Confidential Material if that Party or Non-Party believes in
good faith that the Material satisfies the definition of
Confidential Material, as set forth in Paragraph
I.E.
A. The
Designator will mark the word "CONFIDENTIAL" on the
face of each document and each page of Material so designated
at the time it is produced or, in the case of Confidential
Material contained in or on media other than paper, by
affixing a label with the word "CONFIDENTIAL" on
the produced media or by using its best efforts to identify
the information as Confidential Material
B. In
the event that a Party or Non-Party desires to designate
specific answers or responses to interrogatories or requests
for admission as Confidential Material, the Party or
Non-Party will insert the word "CONFIDENTIAL" in
brackets at the beginning of the specific answer or response.
C. In
the case of depositions, designation of the portion of the
transcript (including exhibits) which contains Confidential
Material will be made within thirty business days
alter receipt of the transcript by notifying all
Parties, the deponent, and the court reporter in writing of
the page and line numbers which have been designated as
Confidential Material In the absence of an agreement on the
record or in writing, or an order of the Court to the
contrary, all deposition testimony will be deemed
Confidential Material until the expiration of the
thirty-business-day period, Alternatively, a Party may
designate all or any part of the deposition as
"Confidential" by stating on the record during the
deposition that all or part of the deposition should be so
treated. Counsel should identify, on the record, when the
protected designation begins and ends.
D. If
any Party that requests Material pursuant to a subpoena
receives Material pursuant to the subpoena, the requesting
Party shall, within seven days, provide copies of such
Material to all other non-requesting adverse Parties in this
case. For fourteen days after the non-requesting Party
receives such Material from the requesting Party, the
non-requesting Party has a "Period of Review," in
which the non-requesting Party shall mark the word
"CONFIDENTIAL" on the face of each document and
each page of Material so designated as Confidential Material
At the end of the Period of Review, the non-requesting Party
shall provide copies of the designated Confidential Material
to the requesting Party, The Parties may agree, or may
petition the Court on reasonable cause, to modify the
deadlines in this paragraph. The requesting Party shall treat
Material received pursuant to a subpoena as Confidential
Material throughout the Period of Review.
E. For
purposes of this Action, no Party concedes that any Material
designated by any other Designator as Confidential Material
should be treated as Confidential Material, A Party will not
be obligated to challenge the propriety of the designation of
Material as ''CONFIDENTIAL" at the time made,
and the failure to do so will not preclude a later challenge
in this or any other action. If a Party challenges a
designation, it will give written notice to the Designator,
and the Party and the Designator must attempt to resolve any
challenge in good faith on an informal basis ("meet and
confer"). If the challenge cannot be informally
resolved, the Party challenging the designation may seek
appropriate relief from the Court; however, the Designator
shall have the burden of establishing that any such document
or other material in dispute is entitled to protection from
unrestricted disclosure, The Material will continue to be
treated as Confidential Material until the issue relating to
the propriety of the designation has been resolved.
F. Any
Designator may, at any time, withdraw the
"CONFIDENTIAL" designation of any
Material produced by that Designator.
G. The
inadvertent failure to designate or withhold any Material as
Confidential Material, including Material obtained through
subpoena but not so designated during the Period of Review,
will not be deemed to waive a later claim as to Its
confidential nature, or to preclude a Party or Non-Party from
designating the Material as Confidential Material at a later
date in writing and with particularity. The Material will be
treated by the receiving Party as Confidential Material from
the time the receiving Party is notified in writing of the
change in the designation. If a Party produced the
information ...