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Advance Nursing Corp. v. South Carolina Hospital Association

United States District Court, D. South Carolina, Greenville Division

December 13, 2016

Advance Nursing Corporation, Plaintiff,
v.
South Carolina Hospital Association, SCHA Solutions, Inc., Greenville Health System, Spartanburg Regional Health Services District, Inc. d/b/a Spartanburg Regional Healthcare System, Mary Black Health System, Palmetto Health, Lexington County Health Services District, Inc. d/b/a Lexington Medical Center, Tuomey, Carolinas Hospital System, St. Francis Hospital, Inc., Sisters of Charity Providence Hospitals, Providence Hospital, LLC, and Regional Medical Center of Orangeburg and Calhoun Counties, Defendants.

          CONFIDENTIALITY ORDER

          MARY GEIGER LEWIS, UNITED STATES DISTRICT JUDGE

         Whereas, the parties to this Consent Confidentiality Order (“parties”), have stipulated that certain discovery material is and should be treated as confidential, and have agreed to the terms of this order; accordingly, it is this 13th day of December, 2016, ORDERED:

         1. Scope.

         All materials produced in the course of discovery, all responses to discovery requests and all deposition testimony and deposition exhibits and any other materials which may be subject to discovery (hereinafter collectively “materials”) shall be subject to this Order concerning confidential information as set forth below.

         2. Form and Timing of Designation.

         Confidential materials shall be so designated, in the case of documents, by placing or affixing the word “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY” on the document in a manner which will not interfere with the legibility of the document and which will permit complete removal of the CONFIDENTIAL or HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY designation. In the case of materials for which affixation is impracticable (for example, in the case of a database or spreadsheet produced electronically), the designation may be made in writing. Materials shall be designated CONFIDENTIAL or HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY prior to, or contemporaneously with, production or disclosure. Inadvertent or unintentional production of materials without prior designation as CONFIDENTIAL or HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY shall not be deemed a waiver, in whole or in part, of the right to designate such materials as CONFIDENTIAL or HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY as otherwise allowed by this Order.

         3. Materials Which May Be Designated CONFIDENTIAL or HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY.

         Any party may designate materials as CONFIDENTIAL but only after review of the materials by an attorney[1] who, in good faith, determines that the materials contain information protected from disclosure by statute, sensitive personal information, trade secrets, or confidential research, development, or commercial information. Any party may designate materials as HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY but only after review of the materials by an attorney[2] who, in good faith, determines that the materials contain confidential information of such a sensitive nature that it requires protection greater than what is provided in this order for materials designated CONFIDENTIAL. The certification shall be made concurrently with the disclosure of the material, using the form attached hereto at Attachment A which shall be executed subject to the standards of Rule 11 of the Federal Rules of Civil Procedure. Information or documents which are available in the public sector may not be designated as CONFIDENTIAL or HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY.

         4. Non-Waiver.

         In accordance with Rule 502(d), Federal Rules of Evidence, and in order to further facilitate timely disclosure of large numbers of materials which may contain information subject to a privilege or other legal protection, the following “non-waiver” provisions shall apply.

a. If, in connection with the pending litigation, a party or a non-party subpoena recipient (the “disclosing party”) discloses information subject to a claim of attorney-client privilege or attorney work product protection (“disclosed protected information”), the disclosure of the disclosed protected information shall not constitute or be deemed a waiver or forfeiture of any claim of privilege or work product protection that the disclosing party would otherwise be entitled to assert with respect to the disclosed protected information and its subject matter.
b. Counsel for a party receiving disclosed protected information (the “receiving party”) will comply with Rule 4.4(b) (including Comment 2) of the South Carolina Rules of Professional Conduct by promptly notifying the disclosing party of the production of any materials that appear to be privileged or protected by work product or other legal doctrine, thus allowing the disclosing party to take any corrective steps that are reasonably necessary under the circumstances.
c. A disclosing party may assert in writing attorney-client privilege or work product protection with respect to disclosed protected information. The receiving party shall, within five business days of receipt of that writing, return or destroy all copies, electronic or otherwise, of the disclosed protected information and shall certify that all such disclosed protected information has been returned or destroyed.
d. Within five business days of the notification that such disclosed protected information has been returned or destroyed, the disclosing party shall produce a privilege log with respect to the disclosed protected information.
e. The receiving party may move the Court for an order compelling production of the disclosed protected information. Such motion shall be filed under seal and shall not assert the fact or circumstances of the prior disclosure as a ground for compelling production. The disclosing party retains the burden of establishing the privileged or protected nature of any disclosed protected information. Nothing in this paragraph shall limit the right of any party to petition the Court for an in camera review of the Disclosed Protected Information.
f. If, at trial, at a hearing, at a deposition, or on a motion, a disclosing party marks for identification or offers into evidence disclosed protected information - or proffers or elicits testimony or other evidence that incorporates or relies on disclosed protected information, including evidence within Federal Rule of Evidence 703 - that act shall be deemed to effect a waiver and forfeiture by the disclosing party of attorney-client privilege and work product protection that would otherwise apply to undisclosed information concerning the same subject matter, within Federal Rule of Evidence 502(a). The preceding sentence shall not apply, however, to (i) proceedings to determine whether disclosed protected information is privileged or protected or subject to discovery or disclosure, or (ii) disclosed protected information that is marked for identification, offered into evidence, or incorporated in evidence proffered or elicited by an adverse party, or relied on by a witness proffered by an adverse party.

         5. Depositions.

         Portions of depositions shall be deemed CONFIDENTIAL or HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY only if designated as such when the deposition is taken or within seven business days after receipt of the transcript. Such designation shall be specific as to the portions to be protected. During the first seven business days following receipt of a transcript, the entire transcript shall be treated as HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY.

         6. Protection of CONFIDENTIAL and HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY Materials.

a. General Protections. Materials designated CONFIDENTIAL or HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY under this Order shall not be used or disclosed by the parties or counsel for the parties or any other persons identified below (¶ 7.b.) for any purposes whatsoever other than preparing for and conducting the litigation in which the materials were disclosed (including any appeal of that litigation).
b. Limitations on Disclosure of CONFIDENTIAL Materials. The parties and counsel for the parties shall not disclose or permit the disclosure of any materials designated CONFIDENTIAL under the terms of this Order to any other person or entity except as set forth in subparagraphs (1)-(5) below, and then only after the person to whom disclosure is to be made has executed an acknowledgment (in the form set forth at Attachment B hereto), that he or she has read and understands the terms of this Order and is bound by it. Subject to these requirements, the following categories of persons may be allowed to review materials which have been designated CONFIDENTIAL pursuant to this Order:
(1) Outside counsel and employees of outside counsel for the parties who have responsibility for the preparation and trial of the lawsuit;
(2) Parties and employees of a party to this Order, including in-house counsel, but only to the extent outside counsel shall certify that the specifically named individual party or employee's assistance is necessary to the conduct of the litigation in which the information is disclosed;[3]
(3) Court reporters engaged for depositions and those persons, if any, specifically engaged for the limited purpose of making photocopies of documents;
(4) Consultants, investigators, or experts (hereinafter referred to collectively as “experts”) employed by the parties or counsel for the parties to assist in the preparation and trial of the lawsuit; and
(5) Other persons only upon consent of the producing party or upon order of the court and on such conditions as are ...

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