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Finken v. Lynch

United States District Court, D. Nebraska

December 22, 2015

JILL FINKEN, Plaintiff,
v.
LORETTA LYNCH, Attorney General of the United States, Defendant.

PROTECTIVE ORDER

CHERYL R. ZWART U.S. MAGISTRATE JUDGE

The 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.

The parties assert in support of their request that protection of the identified categories of confidential information is necessary because discovery in this employment discrimination case will require the plaintiff and the United States to exchange copies of plaintiff’s medical records which are subject to the Health Insurance Portability and Accountability Act of 1996 (HIPAA), 42 U.S.C. § 1320d et seq. Although Plaintiff may have previously received copies of certain documents during the EEOC administrative proceedings, Defendant may produce those same documents to Plaintiff in this case and those same documents if marked as Confidential Information are covered by this Protective Order. The Plaintiff may also request additional records from the United States, including information about employees of the United States Department of Justice or applicants to become employees of the United States Department of Justice, that are protected by the Privacy Act, 5 U.S.C. § 552a, and without this Protective Order, the United States could not release such records to plaintiff in discovery. Because the United States Department of Justice is a law firm for whom the plaintiff was a Special Assistant United States Attorney, many of the potentially relevant documents or written communications in this case may be protected by the attorney client privilege, the work product doctrine, or concern the deliberative processes of the United States Attorney General. Production of such documents without a protective order would potentially reveal privileged or sensitive matters of the United States Attorney General to the public.

For good cause shown under Fed.R.Civ.P. 26(c), the court grants the parties’ joint request and hereby enters the following Protective Order:

1. Scope.

All 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.

2. Definition of Confidential Information.

As used in this Order, “Confidential Information” is defined as information that the producing party designates in good faith 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 a disclosing party or nonparties. For purposes of this Order, the parties will limit their designation of “Confidential Information” to the following categories of information or documents:

a. medical records;
b. personnel files from DOJ employees or applicants to become DOJ employees; and
c. documents protected by the attorney client privilege, the work product doctrine, or other privileged or sensitive matters that concern the deliberative processes of the United States Attorney General.

Information or documents that are available to the public may not be designated as Confidential Information.

3. Form and Timing of Designation.

The producing party may designate documents as containing Confidential Information and therefore subject to protection under this Order by marking or placing the words “CONFIDENTIAL” (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 of 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 Order.

4. Inadvertent Failure to Designate.

Inadvertent 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 ten days after discovery of the inadvertent failure.

5. Depositions.

Deposition 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 ...


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