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Berry v. Think Whole Person Healthcare, LLC

United States District Court, D. Nebraska

May 29, 2018

CANDACE BERRY, Plaintiff,
v.
THINK WHOLE PERSON HEALTHCARE LLC; THINK AKSARBEN, LLP, Defendants.

          CANDACE BERRY, PLAINTIFF BONNIE M. BORYCA, ERICKSON/SEDERSTROM, P.C.

          THINK WHOLE PERSON HEALTHCARE LLC; THINK AKSARBEN, LLP, DEFENDANTS MARCIA A. WASHKUHN MEAGHAN M. GANDY KUTAK ROCK LLP

          STIPULATION FOR PROTECTIVE ORDER AND PROTECTIVE ORDER

         Plaintiff Candace Berry (“Berry”) and Defendants Think Whole Person Healthcare LLC and Think Aksarben, LLP (collectively “Think”) (Berry and Think are hereafter collectively referred to as the “Parties”), by and through their respective undersigned counsel, hereby stipulate and agree to the request for, and entry of, the following Protective Order:

         1. In this action, the Parties are seeking Confidential Information (as defined in Paragraph 2 below). The Parties also anticipate seeking additional Confidential Information during discovery and that there will be questioning concerning Confidential Information in the course of depositions. The Parties assert that the need for this Protective Order also applies to any information or materials produced by a non-party as a result of discovery subpoenas or other requests. The Parties have entered into this Stipulation and request the Court enter the Protective Order for the purpose of preventing the disclosure and use of Confidential Information by any Party or non-party except as set forth herein. The terms of this Protective Order shall apply to any information or materials produced by any Party or non-party as part of discovery in this action. Each and every attorney with the law firms representing the Parties in this case shall be deemed to be subject to this Protective Order and shall be deemed to have actual knowledge of the restrictions herein.

         2. Definition of “Confidential Information.” Under the terms of this Protective Order, “Confidential Information” means any document, file, electronic material, portions of files, transcribed testimony, or responses to discovery requests, including any extract, abstract, chart, summary, note, or copy made therefrom - not made available to the public - and designated by one of the Parties or a non-party (in the manner provided in Paragraph 3 below) as containing or comprising confidential or sensitive information or other trade secrets or proprietary business information. In connection with this Stipulation and Protective Order, Confidential Information shall constitute documents, information or materials the release of which would harm one of the Parties, including but not limited to, medical and financial information related to Berry, non-public financial or business records, information sensitive to the parties' business or affairs, trade secrets, internal personnel policies and procedures of Think and any affiliate entity, information relating to non-parties (including employment and personnel records, financial records, medical records, and other confidential personal or business information), confidential patient information, protected health information, or any other identifiable health information as defined by the Health Insurance Portability and Accountability Act (“HIPAA”), and other information which is private in nature and may have the effect, if not deemed to be confidential, of embarrassing, humiliating or otherwise invading the privacy of a Party, and could potentially cause significant public and private harm, humiliation and exposure to the Parties. Such information or materials may only be so designated if they are not otherwise publicly available.

         3. For purposes of this Protective Order, “protected health information” or “PHI” shall have the same scope and definition as set forth in 45 C.F.R. § 160.103. Without limiting the generality of the foregoing, protected health information or “PHI” includes, but is not limited to, health information, including demographic information, relating to either (a) the past, present or future physical or mental condition of an individual, (b) the provision of care to an individual, or (c) the payment for care provided to an individual which identifies the individual or which reasonably could be expected to identify the individual.

         4. All “covered entities” (as defined by 45 C.F.R. § 160.103) are hereby authorized to disclose PHI to all attorneys now of record in this matter or who may become of record in the future of this litigation, pursuant to the terms of this Protective Order.

         5. Designation of “Confidential Information.” Where any kind of Confidential Information is produced, provided or otherwise disclosed by a Party or a non-party in response to any discovery request or subpoena, including by means of entry onto land or premises or by inspection of books, records, documents, or tangible things, such Confidential Information will be designated in the following manner:

a. By imprinting the word “Confidential” on at least the first page or cover of any document produced or within the file name of any electronically-stored document, except that the Parties need not separately stamp or declare PHI as “Confidential” for it to qualify and be treated as Confidential Information;
b. By imprinting the word “Confidential” next to or above any response to a discovery request; and
c. With respect to transcribed testimony, either during the deposition on the record, or by giving written notice to opposing counsel sufficient to designate such portions as “Confidential” no later than twenty (20) calendar days after receipt of the transcribed testimony.
During a deposition, the deponent or his counsel, or any other counsel of record present at the deposition, may give notice on the record that testimony about to be given is deemed “Confidential”. If during the course of a deposition, a document or other material that has previously been designated “Confidential” is used, then that particular portion of the deposition shall be deemed to be subject to the same level of protection accorded to the designated document without further need of any written designation of the deposition transcript by the designating party.
This section shall not apply to PHI, which the Parties need not separately designate or identify “Confidential” for it to qualify and be treated as Confidential Information.

         6. Restrictions on Confidential Information. All Confidential Information provided by a Party or a non-party in response to a discovery request, in connection with a deposition, or as ...


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