United States District Court, S.D. Ohio, Western Division
J. DLOTT, JUDGE.
MEZIBOV (0019316) BRIAN BUTLER (0082675) DANIEL J. TREADAWAY
(0098000) MEZIBOV BUTLER Counsel for Plaintiff.
M. SEIDENSTICKER (0046761) Trial Counsel Principal Assistant
Attorney General COLLEEN KOEHLER (0090728) Associate
Assistant Attorney General Employment Law Section Counsel for
PROTECTIVE ORDER AND ORDER FOR RELEASE OF DISCOVERABLE
MATERIALS OTHERWISE COVERED BY THE HEALTH INSURANCE
PORTABILITY AND ACCOUNTABILITY ACT AND THE FEDERAL DRUG AND
ALCOHOL TESTING REQUIREMENTS AND CLEARINGHOUSE FOR COMMERCIAL
L. LITKOVITZ, MAGISTRATE JUDGE.
parties expect the disclosure of documents in this case to
involve the exchange of sensitive information, including,
inter alia, medical information, personally
identifying information that may be covered by the Health
Insurance Portability and Accountability Act (HIPAA), the
Federal Motor Carrier Safety Administration's Commercial
Driver's License Drug and Alcohol Testing and
Clearinghouse, 49 CFR Parts 382, 383, 384, and 391, or other
federal or state law or regulations. In order to permit
discovery, the parties stipulate and agree to, and the Court
finds good cause for, entry of a Protective Order and Order
for Release of discoverable materials otherwise protected by
HIPAA, or other law or regulation pursuant to Federal Rule of
Civil Procedure 26(c).
hereby ordered that:
documents produced in the course of discovery, including
initial disclosures, all responses to discovery requests, all
deposition testimony and exhibits, other materials which may
be subject to restrictions on disclosure for good cause and
information derived directly therefrom (hereinafter
collectively "documents"), shall be subject to this
Order concerning confidential information as set forth below.
The Order is also subject to the Local Rules of this District
and the Federal Rules of Civil Procedure on matters of
procedure and calculation of time periods.
Form and Timing of Designation.
may designate documents as confidential and restricted from
disclosure under this Order by placing or affixing the words
"CONFIDENTIAL - SUBJECT TO PROTECTIVE ORDER" on the
document in a manner that will not interfere with the
legibility of the document and that will permit complete
removal of the CONFIDENTIAL SUBJECT TO PROTECTIVE ORDER
designation. Documents shall be designated CONFIDENTIAL -
SUBJECT TO PROTECTIVE ORDER prior to or at the time of the
production or disclosure of the documents. Inadvertent
failure to designate a document as CONFIDENTIAL - SUBJECT TO
PROTECTIVE ORDER may be corrected by supplemental written
notice given as soon as practicable. The designation
"CONFIDENTIAL - SUBJECT TO PROTECTIVE ORDER" does
not mean that the document has any status or protection by
statute or otherwise except to the extent and for the
purposes of this Order.
Documents Which May be Designated CONFIDENTIAL - SUBJECT
TO PROTECTIVE ORDER.
party may designate documents as CONFIDENTIAL -SUBJECT TO
PROTECTIVE ORDER upon making a good faith determination that
the documents contain information protected from disclosure
by statute or that should be protected from disclosure as
confidential personal information, medical or psychiatric
information, trade secrets, personnel records, education
records, or such other sensitive information that is not
publicly available. Public records and other information or
documents that are publicly available may not be designated
as CONFIDENTIAL - SUBJECT TO PROTECTIVE ORDER. If
nonconfidential information is contained in or otherwise
derived from confidential materials, any portion that
consists solely of non-confidential information shall not be
confidential for purposes of this Order.
testimony shall be deemed CONFIDENTIAL SUBJECT TO PROTECTIVE
ORDER only if designated as such. Such designation shall be
specific as to the portions of the transcript or any exhibit
to be designated as CONFIDENTIAL -SUBJECT TO PROTECTIVE
ORDER. Counsel for any party in this case may designate
deposition testimony or any portion of deposition testimony
as confidential by advising the court reporter and counsel of
such designation during the course of the deposition.
Thereafter, the deposition transcripts and any of those
portions so designated shall be protected as CONFIDENTIAL
SUBJECT TO PROTECTIVE ORDER, pending objection, under the
terms of this Order.
parties shall treat as confidential any information related
to the medical condition, history and/or treatment of any
person identified by the parties as having information
relevant to this litigation, regardless of the method by
which such information was obtained and regardless of whether
such information has been disclosed in any manner prior to
the date of this Order. Without limiting the foregoing, any
of the parties' discovery requests or responses that
reference, contain, or attach information or documents
related to such medical condition, history and/or treatment
are hereby designated as confidential and subject to the
provisions of this Order. The fact that such information is
not marked as CONFIDENTIAL - SUBJECT TO PROTECTIVE ORDER or
that it was received by a third party or disclosed prior to
the entry of this Protective Order shall not alter the
parties' obligations under this paragraph.
Protection of Confidential Material.
designated CONFIDENTIAL -SUBJECT TO PROTECTIVE ORDER under
this Order shall not be used or disclosed by the parties,
counsel for the parties or any other persons identified in
¶ 6(b) for any purpose whatsoever other than to prepare
for and to conduct discovery and trial in this action
including any appeals.
Limited Third-Party Disclosures.
parties and counsel for the parties shall not disclose or
permit the disclosure of any CONFIDENTIAL - SUBJECT TO
PROTECTIVE ORDER documents to any third person or entity
except as set forth in subparagraphs (i)-(vii). Subject to
these requirements, the following categories of persons may
be allowed to review documents that have been designated
CONFIDENTIAL SUBJECT TO PROTECTIVE ORDER:
for the parties and employees and agents of counsel who have
responsibility for the preparation and trial of the action;