Bishop v. United States of America

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
CENTRAL DIVISION
CANDACE BISHOP,Personal Case: 3:20-cv-03002-RAL
Representative for the Estate of CHARLES
EDWARD BISHOP, JR.,
Plaintiff, PROTECTIVE ORDER
V.
UNITED STATES OF AMERICA,
Defendant.
Pursuant to the provisions of Rule 26(e) ofthe Federal Rules of Civil Procedure, the Court
enters this Privacy Act Order and Protective Order ("Protective Order"), upon the joint request of
Plaintiffand Defendant(the "parties"),for the purposes offacilitating the disclosure ofinformation
that otherwise would be prohibited from disclosure under the Privacy Act of 1974,5 U.S.C. S 552a.
and assuring the confidentiality ofinformation that may be disclosed by the parties or by any non-
party agencies, departments, offices ofthe Government, or Government personnel in the course of
this litigation. Accordingly,
IT IS HEREBY ORDERED that the terms and conditions set forth in the Stipulation for
Protective Order are entered herewith, as follows:
1. Discovery in this case will involve the production of documents in the possession
ofthe United States that are maintained in a government system of records. These records may be
subject to the Privacy Act of 1974,5 U.S.C. § 552a("Privacy Act"), or otherwise contain sensitive
personal information, including personally identifiable information. However, nothing in this
Protective Order shall require production of information that is prohibited from disclosure (even
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with the entry of this Protective Order) by other applicable privileges, statutes, regulations, or
authorities.
2. The United States, its agencies, and employees, including its counsel, are
authorized, under 5TT.S.C. 8 522arbyi IV to produce, provide, and release, in connection with this
litigation, information and documents that would otherwise be protected from disclosure under the
Privacy Act, as well as information and documents covered by the Right to Financial Privacy Act,
12TT.S.C. S 3401 ^ and the Health Insurance Portability and Accountability Act, see Pub. L.
No. 104-191. 101 Stat. 1936 119961.
3. For purposes ofthis Protective Order,the term "Confidential Information" includes
the following: (a) information produced by the United States, its agencies, or employees, which
the United States has determined to be protected by the Privacy Act; and(b)other information that
counsel for the parties deems, in good faith, to be confidential, proprietary, sensitive, or
personal, including but not limited to, information the release of which could constitute an
unreasonable invasion of privacy. Such information may only be used, disseminated, copied, or
disclosed as indicated in this Protective Order.
4. The parties may designate documents, testimony, written responses, and other
materials produced in this case as subject to this Protective Order by marking each page as "Subject
to Protective Order," if practical to do so. If it is not practical to do so, the designating party must
otherwise inform the receiving party, in writing, that the information is subject to this Protective
Order.
5. Except as otherwise ordered by this Court or provided herein, or stipulated to by
counsel, any documents or materials designated "Subject to Protective Order," including
information derived therefrom, may be disclosed only to the following persons:(a) Plaintiff;(b)
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attorneys of record for the Plaintiff in this case; (c) any persons regularly in the employ of, or
persons contracted to perform services for attorneys of record for, the Plaintiff to the extent
reasonably necessary for the prosecution ofthis action;(d)attorneys ofrecord for the United States
in this case;(e)persons regularly in the employ ofsuch attorneys to the extent reasonably necessary
to render professional services in this case;(f) employees offederal agencies as deemed necessary
by cormsel for the United States;(g)this Court and its support personnel who are involved in this
case; and(h) any court reporter reporting a deposition.
6. Except as provided herein, no person having access to Confidential Information
shall make any disclosure of Confidential Information without further Order of the Court.
7. Except as provided herein. Confidential Information may be used only for purposes
of this litigation.
8. This Protective Order does not restrict the disclosure or use of any information or
documents lawfully obtained by the parties through means or sources outside of this litigation.
Should a dispute arise as to any specific information or document,the burden shall be on the party
using the information to establish that such information or document was lawfully obtained
through means or sources outside of this litigation.
9. Except for the individuals described in Paragraph 5(g) above, all individuals to
whom Confidential Information is disclosed shall be informed of and shall agree with the terms of
this Protective Order; shall not disclose or use the Confidential Information except in compliance
with this Protective Order; and shall, before receiving Confidential Information, acknowledge their
agreement to comply with this Protective Order by signing a copy ofthe attached acknowledgment
form. A copy of each such acknowledgment form must be provided promptly after its execution
to counsel for Plaintiff and counsel for United States.
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10. Any documents, filings, briefs, or other materials containing information
designated "Subject to Protective Order," if filed publicly, shall contain redactions of the
Confidential Information.
11. As a supplement to the public filing of any documents, briefs, or other materials
that conceal(through the use of redactions) materials designated "Subject to Protective Order," a
party may file under seal materials containing the Confidential Information without concealment.
Neither the Plaintiff, the United States, or any other litigant or third party may use Confidential
Information in open Court, orally or through documents, without first obtaining the written consent
of counsel of the Department of Justice or an order from the Court ruling that the Confidential
Information is relevant and may be publicly disclosed.
12. Nothing in this Protective Order shall limit the parties' right to access, use, or
disclose their own Confidential Information, and the requirements of Paragraph 9 shall not apply
to the parties' own Confidential Information. Nothing in this Protective Order shall be construed
to restrict in any way the use of any federal records by any federal agency or federal employee in
the ordinary course of business consistent with applicable statutes and regulations.
13. Whenever materials designated "Subject to Protective Order" are to be discussed
or disclosed in a deposition, hearing, or pre-trial proceeding, the United States may exclude fi"om
the room any person—other than persons designated in Paragraph 5 and who have complied, if
applicable, with the terms ofParagraph 9—for that portion ofthe deposition, hearing, or pre-trial
proceeding. A party's right to use materials designated "Subject to Protective Order" at a hearing
or other court proceeding in this action shall be determined by the presiding judge. The Court may
also require the redaction of personal identifiers in materials designated "Subject to Protective
Order" before use at a hearing or other Court proceeding in this action. The designation of
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materials designated "Subject to Protective Order" shall not affect the Court's determination as to
whether the material shall be received into evidence; nor shall such designation constitute the
authentication ofsuch material or a waiver of any right to challenge the relevance, confidentiality,
or admissibility ofsuch material. This Protective Order shall not govern the admission ofevidence
at trial in open court. Should a party believe that documents, materials, or information designated
as "Subject to Protective Order" should not be used in open court during trial, that party will have
the burden to seek such protections from the court prior to trial.
14. Within 30 days after receipt ofthe final transcript ofthe deposition of any party or
witness in this case, the parties may designate "Subject to Protective Order" any portion of the
transcript that the parties view as disclosing Confidential Information. If a transcript(or excerpt of
a transcript) containing any such material is filed with the Court, it shall be filed under seal and
marked as "Confidential—Subject to Protective Order." Unless otherwise agreed, all deposition
transcripts shall be treated as subject to this Protective Order until the expiration of the 30-day
period.
15. At the deposition of any witness, the parties may designate "Subject to Protective
Order" any confidential testimony, exhibit, or other information provided or disclosed at the
deposition of any witness, and that testimony, exhibit, or other information is subject to the
provisions of this Protective Order, unless the Court orders otherwise or counsel for the parties
stipulate otherwise.
16. Should this matter proceed to trial, the parties shall confer concerning measures
which should be taken during trial of this action to satisfy the requirements of confidentiality
consistent with the right of all parties to present admissible evidence necessary for a proper
resolution of this case and in accordance with Paragraph 13 above.
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17. The parties reserve the right to dispute the confidential status of information in
accordance with this Protective Order. If the parties believe that any materials have been
inappropriately designated "Subject to Protective Order," counsel for the parties shall confer in
good faith in an attempt to resolve the matter. As part of that conferral, the parties must assess
whether redaction is a viable alternative to complete non-disclosure. If the parties are unable to
resolve the matter, the matter may be challenged by motion. The parties must abide by the
confidential designation until the matter is resolved by agreement of the parties or by the Court.
18. The inadvertent failure to label a document,testimony, or other material as "Subject
to Protective Order" prior to disclosure shall not waive or forfeit the right to later designate the
document,testimony, or other material as Confidential Information. The parties, their counsel, and
any others bound by this Protective Order shall not disclose such documents, testimony, or other
material if the person knows or reasonably should know that a claim of confidentiality would be
made. Promptly after receiving notice of a claim of confidentiality, the receiving parties, their
counsel, or others bound by this Protective Order shall inform the designating party of all pertinent
facts relating to the prior disclosure of the newly-designated documents or materials, and shall
make reasonable efforts to retrieve such documents and materials and to prevent further disclosure.
19. Labeling of information or documents as "Subject to Protective Order," or the
failure to do so, will not constitute an admission regarding the confidentiality of information or
documents. The receiving parties may not introduce into evidence in any proceeding between the
parties, other than in a motion to determine whether this Protective Order covers the information
or documents in dispute, the fact that the disclosing party labeled or failed to label information or
documents "Subject to Protective Order" or otherwise designate them as Confidential Information.
20. Except as provided herein, within ninety (90) days of the conclusion of this case
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(including any appeals), documents,discovery requests, discovery responses,transcripts, and other
materials, and all copies thereof, containing Confidential Information must be destroyed by
persons in possession of such materials containing Confidential Information. Within ninety (90)
days ofthe conclusion ofthis case(including any appeals),Plaintiffs counsel and any other person
in possession ofdocuments, discovery requests, discovery responses,transcripts, or other materials
containing Confidential Information must certify in writing that said items, and all copies thereof,
containing Confidential Information have been destroyed. Within ninety (90) days of the
conclusion of this case (including any appeals). Plaintiffs counsel and any other person in
possession of documents, discovery requests, discovery responses, transcripts, or other materials
containing Confidential Information must also certify in writing that any documents they or their
attorneys or agents have created which contain Confidential Information derived solely from those
protected documents, discovery requests, discovery responses, transcripts, or other materials have
been destroyed. Notwithstanding the foregoing provisions ofthis Paragraph, no person is required
to destroy any document that has been publicly filed with this Court or with a court of appeals of
competent jurisdiction in connection with this case; further, this Paragraph does not apply to the
United States, its employees, its attomeys, or persons hired or in the employ of its attomeys; or to
this Court or its support personnel.
21. If Plaintiff receives a subpoena or similar request, or a court order, to produce,
disseminate, or transmit Confidential Information produced under this Protective Order to any
person or entity not authorized under this Protective Order to receive Confidential Information,
Plaintiffs counsel shall notify counsel for the United States of the subpoena, request, or court
order no less than 14 days prior to the production deadline set forth in the subpoena, request, or
court order so as to provide the United States sufficient time to object and seek a protective order
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as necessary. There shall be no disclosure after an objection has been made until the objection has
been resolved. If Confidential Information produced under this Protective Order is required by law
or court order to be disclosed to a person or entity not identified herein as an authorized individual,
the person or entity receiving the Confidential Information shall, before receiving the Confidential
Information, be provided with a copy of this Protective Order and shall acknowledge their
agreement to comply with this Protective Order by signing a copy of the attached
acknowledgement form. A copy of each such acknowledgement form must be provided promptly
after its execution to counsel for the United States.
22. This Protective Order does not constitute any ruling on the question of whether any
particular document or category of information is properly discoverable and does not constitute
any ruling on any potential objection to the discoverability, relevance, or admissibility of any
document or information. Nor does this Protective Order constitute any ruling on the question of
whether the United States may withhold any particular document or category of information on
the basis of privilege.
23. This Protective Order does not constitute a waiver of any defense, right, objection,
privilege, or claim by any party, including any objection to the production of documents and any
claim of privilege or other protection—including, but not limited to, the attorney-client privilege,
attorney work product, or the law enforcement privilege—in connection with this litigation.
Furthermore,inadvertent disclosure by Plaintiff or the United States, its agencies, or its employees
of any document or other material containing attorney-client communications, attorney work
product, or other privileged information shall not constitute a waiver ofthe privilege for either that
document or other material, or for the subject matter ofthat document or other material. Except in
the event that the requesting party disputes the claim of privilege, any documents the disclosing
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party deems to have been inadvertently disclosed and to be subject to a privilege shall, within five
business days of notification, be returned to the producing party, or destroyed, at that party's
option. If the privilege claim is disputed, a single copy of the materials may be retained by the
requesting party for the exclusive purpose ofseeking judicial determination ofthe matter pursuant
to Fed. R. Civ. P. 26ib¥5yR1 and Fed R Fvid. .502.
24. Nothing in this Protective Order shall preclude the parties from seeking
amendments to expand or restrict the rights of access to or use of materials designated "Subject to
Protective Order," or other modifications, subject to order by the Court.
25. The restrictions on disclosure and use of materials designated "Subject to Protective
Order" shall survive the conclusion ofthis action, and this Court shall retain jurisdiction to enforce
the terms of this Protective Order.
26. Breach of the provisions of this Protective Order shall be subject to sanctions as
authorized by statute, rule, or the inherent power of the Court.
DATED this day of 2021.
BY THE COURT:
Honorable Roberto A. Lange
United States District Judge
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