UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF FLORIDA

GAINESVILLE DIVISION

REHABCARE GROUP EAST, INC. d/b/a )

REHABCARE GROUP THERAPY )

SERVICES, INC., )

)

PLAINTIFF, )

) CASE NO. 1:11CV66-SPM/GRJ

v. )

)

HEALTH FACILITIES, INC. d/b/a )

TRI-COUNTY NURSING HOME, )

)

DEFENDANT. )

AGREED PROTECTIVE ORDER

Plaintiff, RehabCare Group East, Inc. d/b/a RehabCare Group Therapy

Services, Inc. (“RehabCare”), joins with Defendant, Health Facilities, Inc. d/b/a

Tri-County Nursing Home, to stipulate to entry of this Agreed Qualified Protective

Order (the “Order”). This Order is necessary because certain documents that will

be produced in discovery, or that have already been produced, contain

confidential business information and “Protected Health Information,” as that term

is defined by the Health Insurance Portability and Accountability Act of 1996

(“HIPAA”). Therefore, the parties request that the Court enter this Order.

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IT IS HEREBY ORDERED:

The parties desire that confidential materials not be disclosed to anyone

other than those designated herein or used outside of the scope of this case. In

order to protect the confidentiality of materials produced by any party, to the

greatest extent possible consistent with the requesting party’s desire to examine

and use the documents and materials in the course of this litigation, and to

address this situation should it arise in the course of future discovery, the

undersigned parties agree that this and all future discovery shall be governed as

follows:

1. a. This Order governs the handling of all documents, meaning

all written, recorded, transcribed, printed or impressed matter of any kind,

however produced or reproduced, including but not limited to, all documents

containing “Protected Health Information” as defined by HIPAA, sound or pictorial

recordings, computerized information, books, pamphlets, letters, memoranda,

telegrams, handwritings, charts, papers, writings, printings, transcriptions, tapes,

cancelled checks, financial records, bookkeeping entries and records or

information of any kind (collectively, “Material”) produced, given or filed during

discovery and other proceedings in this action.

 b. The provisions of this Order shall apply to (i) the named

parties to this action, (ii) all attorneys for such parties, and (iii) any other person

producing or disclosing Material in this action who agrees to be bound by the

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terms of this Order. “Person” includes the named parties and others who have

agreed to be bound by this Order; “Parties” is limited to the named parties in this

action.

2. “PHI” or "protected health information" shall have the same scope

and definition as set forth in 45 CFR 160.103 and 160.502. Without limiting the

generality of the foregoing, "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.

3. “Confidential Material” shall refer to any portion of any document or

testimony which contains PHI as such term is used in 45 CFR 160.103 and

160.502. 

4. Any Person may designate as “CONFIDENTIAL” any Material

which it produces or otherwise discloses in response to discovery in the action

only upon a good faith belief and reasonable basis in law and fact that the

Material is entitled to confidential status. 

5. Confidential Material shall be subject to the following restrictions:

 a. Confidential Material shall be used only for the purpose of

this litigation (including appeals) and not for any other purpose whatsoever, and

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shall not be given, shown, made available or communicated in any way to

anyone except those to whom it is necessary that such Material be given, shown,

made available or communicated for the purposes permitted under this

paragraph, as set forth in paragraph 5(b) below.

b. In the absence of written permission from the Party

producing the confidential information or further order of the Court, confidential

information shall not be disclosed to any person other than:

(i) counsel of record and other counsel for the named parties

and counsels’ employees;

(ii) the Court (including court reporters, stenographic

reporters, and court personnel); and 

(iii) the named parties, their officers, directors, employees or

agents of any named party, if the confidential information is

required for a party’s case preparation;

(iv) expert witnesses and their secretarial or clerical staff,

retained by any named party

(v) deponents (including the stenographic reporters and

video technicians); and

(vi) witnesses and potential witnesses. 

 c. All exhibits to pleadings or other court filings which contain

Confidential Material shall be labeled “CONFIDENTIAL -- Subject to Court Order”

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and filed under seal, and shall remain under seal until the Court orders

otherwise. 

d. Notwithstanding any of the foregoing provisions, this Order

shall not restrict any Person’s use of its own Confidential Material.

6. Each Person given access to Confidential Material pursuant to the

terms hereof (other than those Persons enumerated in paragraph 5(b)(ii) and (iii)

above, counsel of record, and employees of counsel of record) shall be advised

that (i) the Confidential Material is being disclosed pursuant to and subject to the

terms of this Order and may not be disclosed other than pursuant to the terms

hereof, and (ii) that the violation of the terms of this Confidentiality Order (by use

of the Confidential Material) in any impermissible manner or for any

impermissible purpose may constitute contempt of a court order. Before any

Person (other than those Persons enumerated in paragraph 5(b)(ii) and (iii)

above, counsel of record, and employees of counsel of record) is given access to

Confidential Material, he must also execute a copy of the certificate attached as

Exhibit “A.”

7. Confidential Material shall be designated as follows:

 a. In the case of documents, designation shall be made in the

case of confidential documents by placing the legend “CONFIDENTIAL” on each

page of any such document.

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 b. In the case of interrogatory answers, designation shall be

made by placing the legend “CONFIDENTIAL” on each page of any answer or

response that contains such Confidential Material.

 c. All briefs, pleadings or other filings with the Court that

incorporate or disclose Confidential Material shall be appropriately labeled on the

cover page and filed under seal.

8. Any Party may at any time, on reasonable notice, move for (i)

modification of this Order, or (ii) relief from the provisions of this Order with

respect to specific Material.

9. a. This Order, insofar as it restricts the communication and use

of Confidential Material, shall continue to be binding from the date of filing of the

Complaint throughout and after the conclusion of this litigation, including, any

appeals. Within 60 days after the conclusion of this litigation (including any

appeals), all Confidential Material, and all conforming and nonconforming copies,

shall be returned to counsel for the producing Party or shall be destroyed.

 b. Upon the final determination of this action, including appeals,

if any, any Confidential Material which has been submitted to the Court during

the course of this action, including Confidential Material submitted for

identification and/or evidence at the trial of this action, may be the subject of a

withdrawal request addressed to this Court and the consent of all Parties to such

request shall not be withheld without good cause.

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10. Neither the signing of this Order, nor the designation and disclosure

of Confidential Material pursuant hereto shall be construed as a waiver of, or

preclude any Person from raising, any objection to discovery or asserting any

and all privileges otherwise available. Neither the designation by a party of any

document, information or deposition testimony as CONFIDENTIAL, nor its receipt

by another party, shall constitute any agreement that the document, information

or deposition testimony is actually confidential. In the event that any party to this

lawsuit or interested member of the public objects at any point in these

proceedings to the designation of any document or information as

CONFIDENTIAL, the party or interested member of the public shall state the

grounds for the objection. The parties shall thereafter try to resolve such dispute

in good faith on an informal basis. If the dispute cannot be resolved, the

objecting party shall notify the producing party in writing, and the producing party

or the objecting party may seek appropriate relief from this Court, including an

order that the documents should or should not be treated as CONFIDENTIAL.

Pending a court ruling, the documents must be treated as confidential.

11. Any material that was obtained by means other than through

disclosure pursuant to this Order need not be treated as Confidential Material

under the terms of this Order.

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12. a. In the event that a Party inadvertently produces to any other

Party any document that is subject to a recognized claim of privilege, for

example, pursuant to the attorney client privilege or work product doctrine, the

producing Party may retrieve the privileged documents as follows:

 i. The producing Party must give written notice to all

Parties who received copies of the produced document that said document is

privileged and state the nature of the privilege.

ii Upon receipt of such notice, all Parties who have

received a copy of the privileged document shall promptly return it to the

producing Party and destroy any other copies thereof.

 b. No subsequent Motion to Compel the Production of the

produced document may rely on an allegation that any privilege as to the

document was waived by its production.

S/ Stephan P. Mickle

Stephan P. Mickle

Senior United States District Judge

Date: December 9, 2011

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EXHIBIT A

As a condition to my being permitted to receive, see, or review any

CONFIDENTIAL MATERIALS, I have reviewed and agree to be bound by the

Agreed Protective Order in the case of RehabCare Group East, Inc. d/b/a

RehabCare Group Therapy Services, Inc. v. Health Facilities, Inc. d/b/a TriCounty Nursing Home, Case No. 1:11-CV-66 (N.D. Fla.). I hereby certify that I

will comply with the terms of the Agreed Protective Order in full.

I hereby agree to submit to the jurisdiction of the United States District

Court for the Northern District of Florida for enforcement of any claimed violation

of the terms of the Agreed Protective Order.

 

Signature

Name: 

Date: 

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