United States District Court, D. Kansas
P.F., a minor by and through his Natural Mother and Next Friend, JESSICA FLAX, Plaintiff,
ERIC L. HETZEL, D.O., Defendant.
SIMPSON, LOGBACK, LYNCH, NORRIS, P.A. By: John Wesley Smith,
BARTIMUS, FRICKLETON & ROBERTSON, P.C. By: James P.
Frickleton, KS Bar # 20602 Michelle L. Marvel, KS Bar # 23511
ATTORNEYS FOR PLAINTIFFS.
A. Lynch, KS Bar # 14277 John Wesley Smith, KS Bar # 24935
ATTORNEYS FOR DEFENDANT.
GARY SEBELIUS, U.S. MAGISTRATE JUDGE
parties agree that during the course of discovery it may be
necessary to disclose certain confidential information
relating to the subject matter of this action. They agree
that certain categories of such information should be treated
as confidential, protected from disclosure outside this
litigation, and used only for purposes of prosecuting or
defending this action and any appeals. The parties jointly
request entry of this proposed Protective Order to limit the
disclosure, dissemination, and use of certain identified
categories of confidential information.
parties assert in support of their request that protection of
the identified categories of confidential information is
necessary because this case necessarily involves discovery of
sensitive information relating to a minor and his medical
records. This case centers on Defendant Hetzel's medical
treatment of Plaintiff P.F., a minor, and therefore discovery
will entail extensive production of Plaintiff P.F.'s
protected health information, necessitating this protective
good cause shown under Fed.R.Civ.P. 26(c), the court grants
the parties' joint request and hereby enters the
following Protective Order:
documents and materials produced in the course of discovery
of this case, including initial disclosures, responses to
discovery requests, all deposition testimony and exhibits,
and information derived directly therefrom (hereinafter
collectively “documents”), are subject to this
Order concerning Confidential Information as set forth below.
As there is a presumption in favor of open and public
judicial proceedings in the federal courts, this Order will
be strictly construed in favor of public disclosure and open
proceedings wherever possible.
Definition of Confidential Information.
in this Order, “Confidential Information” is
defined as information that the producing party designates in
good faith has been previously maintained in a confidential
manner and should be protected from disclosure and use
outside the litigation because its disclosure and use is
restricted by statute or could potentially cause harm to the
interests of disclosing party or nonparties. For purposes of
this Order, the parties will limit their designation of
“Confidential Information” to information or
documents containing the identifying information of a minor,
his protected health information, including but not limited
to Plaintiff P.F.'s medical records. Information or
documents that are available to the public may not be
designated as Confidential Information.
and Timing of Designation.
producing party may designate documents as containing
Confidential Information and therefore subject to protection
under this Order by marking or placing the words
“CONFIDENTIAL - SUBJECT TO PROTECTIVE ORDER”
(hereinafter “the marking”) on the document and
on all copies in a manner that will not interfere with the
legibility of the document. As used in this Order,
“copies” includes electronic images, duplicates,
extracts, summaries or descriptions that contain the
Confidential Information. The marking will be applied prior
to or at the time the documents are produced or disclosed.
Applying the marking to a document 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.
Copies that are made of any designated documents must also
bear the marking, except that indices, electronic databases,
or lists of documents that do not contain substantial
portions or images of the text of marked documents and do not
otherwise disclose the substance of the Confidential
Information are not required to be marked. By marking a
designated document as confidential, the designating attorney
or party appearing pro se thereby certifies that the
document contains Confidential Information as defined in this
Inadvertent Failure to Designate.
failure to designate any document or material as containing
Confidential Information will not constitute a waiver of an
otherwise valid claim of confidentiality pursuant to this
Order, so long as a claim of confidentiality is asserted
within 30 days after discovery of the inadvertent failure.
testimony will be deemed confidential only if designated as
such when the deposition is taken or within a reasonable time
period after receipt of the deposition transcript. Such
designation must be specific as to the portions of the
transcript and/or any exhibits to be protected.
Protection of Confidential Material.
General Protections. Designated Confidential Information must
be used or disclosed solely for purposes of prosecuting or
defending this lawsuit, including any appeals, [or any other
related legal proceeding brought by one of the parties to
May View Designated Confidential Information. Except with the
prior written consent of the designating party or prior order
of the court, designated Confidential ...