APRIL POLK, Plaintiff, v. DR. IAN SWIFT, WYOMING ENT PC, CAMPBELL COUNTY HEALTH, CAMPBELL COUNTY MEMORIAL HOSPITAL, Defendants Case No. 19-CV-148-S United States District Court, D. Wyoming Filed January 13, 2020 Counsel Frank R. Chapman, Michael John Lansing, Patrick Lewallen, Thomas A. Valdez, Chapman Valdez & Lansing, Casper, WY, Mikole Jane Bede Soto, Chapman Valdez & Lansing, Sheridan, WY, for Plaintiff. Mark B. Collier, Tanner J. Walls, Messner Reeves LLP, Denver, CO, for Defendants Dr. Ian Swift, Wyo ENT PC. Lena Kathleen Moeller, Messner Reeves, LLP, Cheyenne, WY, Amy M. Iberlin, Willams Porter Day & Neville PC, Casper, WY, for Defendants Campbell County Health, Campbell County Memorial Hospital. Rankin, Kelly H., United States Magistrate Judge PROTECTIVE ORDER *1 This matter is before the Court on the Parties’ Stipulated Motion for a Protective Order [Doc. 20]. It is well settled that courts have broad discretion in ruling on discovery matters, including protective orders. SEC v. Merrill Scott & Assocs., Ltd., 600 F.3d 1262, 1271 (10th Cir. 2010) (internal quotations omitted); Fed. R. Civ. P. 26(c)(1); Marsee v. U.S. Tobacco Co., 866 F.2d 319 (10th Cir. 1989). Having carefully considered the proposed Protective Order and the reasoning offered in support of the proposal, the Court grants the Parties’ Stipulated Motion and enters the following Protective Order: 1. Nondisclosure of Confidential Information. Confidential Information means documents designated as confidential in accordance with this Order, and information contained therein that does not also appear in (or is not available from) a separate, non-confidential source. Plaintiff, its attorneys and their law firms, and Defendant, its attorneys and their law firms (“Parties and Attorneys”), expert witnesses, and any other individual who obtains Confidential Information in this case will not disclose Confidential Information, without prior written consent of the affected or disclosing party, except as expressly provided for herein. 2. Designating Confidential Information. The Parties and any third party producing documents (the “Designating Party”), may designate documents produced or disclosed as Confidential if the Designating Party reasonably believes in good faith that the document contains nonpublic information which is protected under Fed. R. Civ. P. 26(c)(1)(G) because it contains or includes: (a) trade secrets; (b) other confidential or proprietary information, development, financial or commercial information; (c) personal information, including, but not limited to, social security numbers, tax returns, medical information, credit information, and/or banking information; (d) “Protected Health Information” (or “PHI”) which shall have the same scope and definition as set forth in the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”), and specifically 45 CFR §§ 160.103 and 164.501; information protected from disclosure pursuant to 42 U.S.C. § 290dd-2 and 42 C.F.R. Part 2; information protected from disclosure pursuant to 4 Pa. Code § 255.5; and/or (e) information that the Parties agree is otherwise entitled to protection. If a Party receives a Document they reasonably believe in good faith contains nonpublic information related to that Party, which is protected under Fed. R. Civ. P. 26(c)(1)(G) as pursuant to this paragraph, that Party may designate the Document as “CONFIDENTIAL,” provided that they notify the opposing Party. a. Documents shall be subject to the provisions of this Order if they have been designated clearly on their face as “CONFIDENTIAL.” In the case of electronically stored information, Documents may be designated “CONFIDENTIAL” in the file or directory name or by designating the media containing the Documents (e.g., hard drive or DVD) as “CONFIDENTIAL.” If it is impracticable to mark such Documents, files, or media as “CONFIDENTIAL” on their face, then some other method (by mutual agreement of the Parties) may be used to indicate their confidentiality. *2 b. Deposition testimony and exhibits may be designated as “CONFIDENTIAL” either: (1) at the deposition, by instructing the reporter to make a notation in the record and instructing that each page of the transcript be marked “CONFIDENTIAL”; or (2) by written notice to the other Parties within thirty (30) days after the receipt of the transcript by the Party wishing to so designate the deposition testimony or exhibit. Until the expiration of the thirty (30) day period with respect to any deposition transcript, all deposition testimony and transcripts and any information contained therein or exhibits thereto shall be deemed to be CONFIDENTIAL. 3. Permissible Disclosures. Confidential Information may be disclosed to counsel for the parties in this action who are actively engaged in the conduct of this litigation; to the partners, associates, secretaries, paralegals, vendors, and employees of such counsel to the extent reasonably necessary to render professional services in the litigation; to persons with prior knowledge of the Confidential Information, and their agents; and to Court officials involved in this litigation (including court reporters, persons operating video recording equipment at depositions, and any Special Master, Arbitrator, or Mediator appointed by the Court) – all of whom are bound by this Order. Subject to the provisions (a)-(c), infra, such Confidential Information may also be disclosed: a. to any person designated by the Court in the interests of justice, upon such terms as the Court may deem proper; b. all non-party witnesses noticed for depositions, designated as trial witnesses, outside consultants or experts retained for the purpose of assisting counsel in the litigation, to the extent reasonably necessary, provided, however, that in all such cases the individual to whom disclosure is made has signed a form containing: i. a recital that the signatory has read and understands this Order; ii. a recital that the signatory understands that unauthorized disclosure of the Confidential Information constitutes contempt of Court; and iii. a statement that the signatory consents to the exercise of personal jurisdiction by this Court. c. Documents may be disclosed to any party/litigant in this lawsuit after execution of a form containing: i. a recital that the signatory has read and understands this Order; ii. a recital that the signatory understands that unauthorized disclosure of Confidential Information constitutes contempt of Court; and iii. a statement that the signatory consents to the exercise of personal jurisdiction by this Court. 4. Declassification. A party may object to the classification of a document as Confidential Information by sending a letter to the party making the designation. If the party making the designation does not respond to such objection within two (2) weeks of service thereof, by making an application to the Court as described below, the document subject to the objection shall be declassified, as a matter of course, and may thereafter be treated as not Confidential Information. To maintain Confidential Information status after objection, the proponent of confidentiality must apply to the Court for an Order maintaining confidentiality, and must show in that application, that there is good cause for the document to have such protection. Such application shall be treated as a motion filed under the Local Rules. 5. Confidential Information in Depositions. a. A deponent may not, during the deposition, be shown and examined about Confidential Information unless they have prior knowledge of the Confidential Information or sign the appropriate form prescribed in paragraphs 3(b) and 3(c). *3 b. Parties (and deponents) may, within thirty (30) days after receiving a deposition transcript, designate pages of the transcript (and exhibits thereto) as containing Confidential Information. Confidential Information within the deposition transcript may be designated by underlining the portions of the pages that are confidential and marking such pages with a stamp indicating that the page so marked is confidential. Until expiration of the thirty-day period, the entire deposition will be treated as subject to protection against disclosure under this Order. If no party or deponent timely designates Confidential Information in a deposition, then none of the transcript or its exhibits will be treated as Confidential Information; if a timely designation is made, the designated deposition excerpts and exhibits shall be treated as Confidential Information. Any party objecting to the Confidential Information designation shall follow the procedure identified in section 4 of this Order. 6. Use at Trial or Other Public Hearing. The designation of a document as containing Confidential Information does not affect or limit the document's use at trial. The parties, if necessary, may address the Court at a later time as to the appropriate handling of Confidential Information at any trial or other public hearing. 7. Subpoena by Other Court or Agency. If another Court or agency subpoenas, demands, or orders production of Confidential Information that a party has obtained under the terms of this Order, that party shall promptly notify the party or other person who designated the document as containing Confidential Information of the pendency of such subpoena, demand or order. 8. Status as Qualified Protective Order. To the extent that HIPAA applies to any Confidential information, including PHI, this Stipulated Protective Order constitutes a Qualified Protective Order under 45 C.F.R. § 164.512(e)(v); to the extent that 42 U.S.C. § 290dd-2 and/or 42 C.F.R. Part 2 apply (or applies) to any Confidential information, this Stipulated Protective Order constitutes a qualified order under 42 U.S.C. § 290dd-2(b)(2)(c) and 42 C.F.R. § 2.64. This paragraph is without prejudice to any Party's right to assert that these statutory and regulatory provisions do or do not apply, either as a general proposition or with respect to any particular Confidential Information. 9. HIPAA. With respect to information protected from disclosure by HIPAA the Parties agree that, to the extent not redacted, any such information produced shall be Confidential information pursuant to this Stipulated Protective Order. The Parties acknowledge and agree that this is a Qualified Protective Order as that term is defined in 45 C.F.R. § 164.512(e)(v). The Parties acknowledge and agree that this Stipulated Protective Order (a) prohibits the Parties from using or disclosing PHI for any purpose other than the litigation or proceeding for which such information was requested, and (b) requires the return or destruction of PHI (including all copies made) at the end of this litigation as required below, except that the parties may retain one copy of these documents as set forth in Paragraph 13. 10. Other confidentiality laws. In addition to the other obligations and duties established in this Stipulated Protective Order, the Parties will treat information subject to HIPAA and other applicable state and federal confidentiality laws in accordance with those laws. Nothing in this Stipulated Protective Order diminishes those obligations in any way. 11. Filing. Documents containing Confidential Information that that are filed with the Court shall be filed under seal or as non-public documents and shall remain sealed or non-public so long as they retain their status as Confidential Information. Any confidential documents mistakenly filed without being sealed or made non-public shall be corrected as soon as possible by the party who mistakenly filed the pleading or document with the Court. 12. Use. Persons obtaining access to Confidential Information covered by this Order shall use the information only for investigation, preparation and trial of this litigation (including appeals and retrials), and shall not use such information for any other purpose, including business, governmental, commercial, administrative, or judicial proceedings. *4 13. Non-Termination. The provisions of this Order shall not terminate at the conclusion of this case. At the conclusion of this case, the parties may either (a) return documents containing Confidential Information and all copies of the same (other than one copy retained for counsel's file) to the party or person that produced such document, or (b) segregate the documents containing Confidential Information for destruction, assuring access to no person other than counsel bound by the terms of the Order. Counsel may retain copies of all documents that have been filed with the Court, deposition transcripts and exhibits thereto, correspondence (including emails), and counsel's work product materials. 14. Modification. Nothing in this Order shall prevent any party or other person from seeking modification of this Order or from objecting to discovery that it believes otherwise improper. 15. Responsibility of Attorneys. The attorneys of record are responsible for employing reasonable measures, consistent with this Order, to control duplication of, access to, and distribution of copies of documents containing Confidential Information. 16. No Waiver. Documents or other confidential information inadvertently disclosed may be retroactively deemed confidential by written correspondence from the party inadvertently making the disclosure to the parties or person(s) to whom such disclosure was made. 17. Further Objections. Nothing contained in this protective order and no action taken pursuant to it shall prejudice the right of any party to contest the alleged relevancy, admissibility, or discoverability of Confidential Information. NOW, IT IS THEREFORE ORDERED the Parties’ Stipulated Motion for a Protective Order [Doc. 20] is GRANTED. IT IS FURTHER ORDERED the parties abide by the terms and conditions of this Order as stated above. DATED this 13th day of January, 2020.