Blue Sky Endeavors, LLC et al v. Henderson County Hospital Corporation et al

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
ASHEVILLE DIVISION
CIVIL CASE NO. 1:23-cv-00097-MR
BLUE SKY ENDEAVORS, LLC,
Plaintiff,
vs.
HENDERSON COUNTY HOSPITAL
CORPORATION AND BLUE RIDGE
COMMUNITY HEALTH SERVICES,
INC.,
Defendants.
PROTECTIVE
ORDER
THIS MATTER is before the Court on the parties’ Consent Motion
for Protective Order and Rule 502(d) Order. [Doc. 20].
For the reasons stated in the Motion, and for cause shown, the
Court hereby enters the following Protective Order.
IT IS, THEREFORE, ORDERED that the following restrictions
and procedures shall apply to certain deposition testimony, information,
documents and excerpts from documents supplied by the parties to each
other in response to discovery requests:
1. Counsel for any party may designate any document or
information contained in a document as “confidential” or “confidential
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attorney eyes only” if counsel determines, in good faith, that such
designation is necessary to protect the interests of the client.
Information and documents designated by a party as confidential will
be labeled “CONFIDENTIAL.” Information and documents designated
by a party as confidential attorney eyes only will be labeled
“CONFIDENTIAL ATTORNEY EYES ONLY.” Confidential and
confidential attorney eyes only information or documents may be
referred to collectively as “Confidential Information.”
a. “Confidential Information” means and includes the
following:
i. information that constitutes confidential,
proprietary, or financial business information,
trade secrets, strategic business records, or
information subject to a legally protected right of
privacy or a confidentiality agreement with a
third party; or
ii. information regarding or other documents
containing private employment-related
information, health-related information, spouse
and other dependent information, and all
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personally identifiable information, to include
names, dates of birth, addresses, personal
images, telephone numbers, email addresses,
emergency contact information, social security
numbers, driver’s license numbers, criminal
records, background checks or other reference
check information, and/or documents related to
employee domestic or financial obligations, such
as child support orders and garnishments and
bank account information; or
iii. medical records and reports; psychological
records and reports; photographs, x-rays or
illustrations, or other personal health-related
information regarding a party or any other
individual about whom such information is
discovered; or
iv. federal or state income tax returns or other
financial information of any party.
b. Discovery Material designated “Confidential” may
contain non- public proprietary information, whether
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personal or business- related; information protected
from disclosure by contractual obligations with third
parties; or information protected from disclosure by
law.
c. Discovery Material may alternatively be designated as
“Confidential Attorneys Eyes Only.” The “Confidential
Attorneys Eyes Only” designation may be reserved for
confidential information that constitutes, reflects, or
concerns trade secrets, know-how or proprietary data,
business, financial, or commercial information, the
disclosure of which is likely to cause substantial harm
to the competitive position or personal interests of the
party making the confidentiality designations of
Discovery Material.
2. Unless otherwise ordered by the Court, or otherwise provided
for herein, the Confidential Information disclosed will be held and used
by the person receiving such information solely for use in connection
with the above-captioned action or any appeal taken from a judgment
entered in the case and not for any other purposes. Confidential
Information shall not be disclosed in conversations, presentations by
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persons or receiving parties, in court, or in other settings that might
reveal the Confidential Information, except in accordance with the
terms of this Order.
3. In the event a party challenges another party’s confidential
designation, counsel shall make a good faith effort to resolve the
dispute, and in the absence of a resolution, either party may thereafter
seek resolution by the Court. Nothing in this Protective Order
constitutes an admission by any party that Confidential Information
disclosed in this case is relevant or admissible. Each party specifically
reserves the right to object to the use or admissibility of all Confidential
Information disclosed, in accordance with applicable law.
4. Information or documents designated as “CONFIDENTIAL”
shall not be disclosed to any person, except:
a. The requesting party and counsel;
b. Employees or contractors of such counsel assigned to
and necessary to assist in the litigation or otherwise
provide professional services related to this litigation;
c. Consultants or experts and their respective staffs to
the extent deemed necessary by counsel;
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d. Any persons requested by counsel to furnish case-
related services such as eDiscovery services, document
coding, image scanning, mock trial, jury profiling,
translation services, court reporting services,
demonstrative exhibit preparation, or the creation of
any computer database from documents;
e. Any person from whom testimony is taken or is to be
taken, except that such a person may only be shown
Confidential Information during and in preparation for
his/her testimony and may not retain the Confidential
Information;
f. The Court and its personnel, or the jury at trial or as
exhibits to motions; and
g. Any mediator retained by all affected parties, including
such mediator’s staff, provided the disclosure is made
in the course of mediation.
5. Information designated “CONFIDENTIAL ATTORNEY
EYES ONLY” may be disclosed by the receiving party only to the
following individuals, provided that such individuals are informed of the
terms of this Protective Order:
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a. Outside counsel for the receiving party:
b. Supporting personnel employed by outside counsel,
such as paralegals, legal secretaries, data entry clerks,
legal clerks, private photocopying services;
c. Consultants or experts and their respective staffs to
the extent deemed necessary by counsel;
d. Any persons requested by counsel to furnish case-
related services such as eDiscovery services, document
coding, image scanning, mock trial, jury profiling,
translation services, court reporting services,
demonstrative exhibit preparation, or the creation of
any computer database from documents;
e. Any person from whom testimony is taken or is to be
taken, except that such a person may only be shown
Confidential Information during and in preparation for
his/her testimony and may not retain the Confidential
Information; and
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f. The Court and its personnel, or the jury at trial or as
exhibits to motions.
6. Prior to disclosing or displaying any Confidential
Information to any person (other than to an author or prior recipient of
a document, the Court, and the jury), counsel shall:
a. Inform the person of the confidential nature of the
information or documents;
b. Inform the person that this Court has enjoined the use
of the information or documents by him/her for any
purpose other than this litigation and has enjoined the
disclosure of that information or documents to any
other person; and
c. Obtain from the person, other than the author or prior
recipient of a document, to whom the disclosure is to be
made a signed confidentiality agreement in the form
attached hereto as Exhibit A.
7. If any party inadvertently fails to designate any material as
Confidential Information before its production, it may correct its error
at any time utilizing the following procedures. Upon learning that
Confidential Information was produced without the appropriate
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designation, the producing party will immediately provide notice of the
omission to the receiving party and provide substituted copies of the
Confidential Information appropriately marked. Upon receiving notice
of an omitted designation, it will be the duty of the receiving party to
make all reasonable efforts to return all identified unmarked materials
in its possession or in the possession of persons within that party’s
control (e.g., retained consultants) to the designating party or to
otherwise destroy the unmarked materials within ten (10) business
days of any written notice of an omitted designation and receipt of
substituted copies of the Confidential Information that have been
marked appropriately. If the receiving party has made any use or
disclosure of information, documents, or materials before the producing
party designates such material as Confidential Information, then such
prior use or prior disclosure shall not be deemed a violation of this
Order.
8. For the purpose of Paragraphs 4 and 5, it is understood by
the parties that any documents which become part of an official judicial
proceeding, or which are filed with the Court are public documents, and
that such documents can and will be sealed by the Court only upon
motion and in accordance with applicable law.
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9. Any party seeking to file any materials designated as
Confidential Information or to file any pleadings, motions or other
papers disclosing any Confidential Information shall first move the
Court for a Motion to Seal or Otherwise Restrict Public access in
accordance with the Court’s local rules, including without limitation
LCvR 6.1.
10. Any party issuing a subpoena, request, or other directive to a
non-party seeking the production of information shall simultaneously
provide the non-party with a copy of this Order to ensure that the non-
party is aware of its rights to seek protection of the information
pursuant to the terms herein. Information produced by non-parties
during the course of this action may be designated under this Order by
such non-party or by a party as “CONFIDENTIAL” or
“CONFIDENTIAL ATTORNEYS EYES ONLY” by following the
procedures set forth herein. Information so designated and produced by
non-parties shall thereafter be treated by the parties in the same
manner as if produced with such designation by a party. A producing
non-party shall have all the rights of a producing party with respect to
protection of information under the terms of this Order.
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11. Testimony given at a deposition may be temporarily
designated “CONFIDENTIAL” or “CONFIDENTIAL ATTORNEYS
EYES ONLY” by indicating on the record at the deposition or hearing,
based on a good-faith belief that the designation complies with the
provisions of this Protective Order, that the information is
“CONFIDENTIAL” or “CONFIDENTIAL ATTORNEYS EYES ONLY”
and is subject to the provisions of this Order. Within the 30-day period
following receipt of the deposition transcript, the designating party
shall notify the deposing party in writing of the specific transcript pages
that should be marked “CONFIDENTIAL” or “CONFIDENTIAL
ATTORNEYS EYES ONLY.”
12. Ultimate disposition of protected materials is subject to final
order of the Court upon completion of this litigation. However, in the
absence of a final order of the Court addressing the disposition of
Confidential Information, the parties agree that counsel for each party
shall, not later than sixty (60) days after the termination of this
litigation (including related appeals), either (i) collect from any experts,
consultants or third party witnesses to whom any documents containing
Confidential Information were disclosed pursuant to the terms of this
Order, any and all documents containing Confidential Information,
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including without limitation, any copies or excerpts of such documents,
and return them to the producing party or destroy all such materials, or
(ii) verify that such experts, consultants or third party witnesses have
destroyed all such documents. Counsel of record for each party shall be
permitted to retain in their files a copy of all documents containing
information subject to this Order obtained during the course of this
litigation, pursuant to the North Carolina Rules of Professional
Conduct; provided, however, the prohibitions against the use or
disclosure of Confidential Information as set forth above shall continue
to apply to said counsel. This provision does not require a party or its
attorney to delete or otherwise alter a regularly maintained back-up
system for its electronic information.
13. Nothing in this Order shall limit, expand, restrict, or
prejudice (a) the right of any party to apply to the Court for any further
Protective Order relating to Confidential Information; (b) the right of
any party to object to the production of documents; or (c) the right of any
party to apply to the Court for an order compelling production of
documents or information; or (d) the right of any party to apply to the
Court for modification of this Order; or (e) any party’s use or disclosure
of documents or information properly obtained by means other than
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another party’s production pursuant to this Order; or (f) the producing
party’s use or disclosure of information, documents, or materials that it
designated as Confidential Information pursuant to the terms of this
Order.
IT IS SO ORDERED.
Signed: December 19, 2023
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IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
ASHEVILLE DIVISION
CIVIL CASE NO. 1:23-cv-00097-MR
BLUE SKY ENDEAVORS, LLC,
Plaintiff,
vs.
HENDERSON COUNTY HOSPITAL
CORPORATION AND BLUE RIDGE
COMMUNITY HEALTH SERVICES,
INC.,
Defendants.
EXHIBIT A
CONFIDENTIALITY AGREEMENT
I have read and am familiar with the terms of the Protective
Order governing the disclosure of Confidential Information in the case
of Blue Sky Endeavors, LLC v. Henderson County Hospital Corporation
and Blue Ridge Community Health Services Inc., Civil Case No. 1:21-cv-
97-MR (WDNC) (the “Order”), and I agree to abide by all the terms of
said Order and not to reveal or otherwise communicate any of the
information disclosed to me pursuant thereto to anyone except in
accordance with the terms of said Order. I agree not to make use of any
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information or material obtained pursuant to that Order other than for
purposes of this litigation.
I also agree to destroy or return to counsel of record, not later than
thirty (30) days after the termination of this litigation, any and all
documents in my possession containing Confidential Information which
is the subject of said Order (whether such information is in the form
of notes, memoranda, reports or other written communications or
documents prepared by any person at any time containing
information covered by the terms of said Order).
In accordance with 28 U.S.C ⸹ 1746, I state under penalty of
perjury under the laws of the United States of America that the
foregoing is true and correct.
Name:
Signature:
Date:
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