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Abdou v. Davita Inc.

United States District Court, D. Nevada

February 27, 2018

SHERIF W. ABDOU, M.D. and AMIR S. BACCHUS, M.D., Plaintiffs,
v.
DAVITA INC., HEALTHCARE PARTNERS HOLDINGS, LLC, and HEALTHCARE PARTNERS, LLC, Defendants. AND RELATED CLAIMS.

          JOHN R. BAILEY Nevada Bar No. 0137 JOSHUA M. DICKEY Nevada Bar No. 6621 KELLY B. STOUT Nevada Bar No. 12105 PAUL C. WILLIAMS Nevada Bar No. 12524 BAILEY KENNEDY Attorneys for Defendants DaVita Inc.; HealthCare Partners Holdings, LLC; and HealthCare Partners, LLC

          SNELL & WILMER, L.L.P. Charles E. Gianelloni PATRICK G. BYRNE, NEV. Bar No. 7636 CHARLES E. GIANELLONI, Nev. Bar No. 12747 Attorneys for Plaintiffs Sherif W. Abdou, M.D. and Amir S. Bacchus, M.D.

          FIRST AMENDED STIPULATED CONFIDENTIALITY AGREEMENT AND PROTECTIVE ORDER

         Plaintiffs/Counterdefendants Sherif W. Abdou (“Dr. Abdou”) and Amir S. Bacchus (“Dr. Bacchus”) (jointly, the “Doctors”), by and through their counsel, the law firm of Snell & Wilmer L.L.P., and Defendants/Counterclaimants DaVita Inc. (“DaVita”), DaVita Medical Holdings, LLC, f/k/a HealthCare Partners Holdings, LLC (“HCP Holdings”), and DaVita Medical Management, LLC, f/k/a HealthCare Partners, LLC (“HCP”) (collectively, the “DaVita Parties”), by and through their counsel, the law firm of Bailey ♦Kennedy, hereby stipulate and agree to the following terms:

         This Stipulated Confidentiality Agreement and Protective Order (“Protective Order”) shall govern the handling and disclosure of all documents, testimony or other information produced or given in the above-captioned action (the “Litigation”) which is designated to be subject to this Order in accordance with the terms herein.

         For purposes of the Protective Order, each Plaintiff/Counterdefendant or Defendant/Counterclaimant is a “Party” (collectively, the “Parties”). Any reference to a Party or “non-party” means-unless otherwise indicated-a natural person, firm, entity, corporation, partnership, proprietorship, association, joint venture, wholly-owned direct or indirect subsidiary, division, affiliate, parent company, and any other form of business organization or arrangement, and includes the Party, person, or non-party's officers, directors, managers, members, employees, agents, representatives, shareholders, independent contractors, attorneys, accountants and all other persons over which the Party, person, or non-party has control or which act or purport to act on its behalf.

         Any Party or non-party producing or disclosing confidential documents, materials, items, or other information pursuant to the terms of this Protective Order is the “Producing Party, ” and the Party or non-party receiving or being given access to confidential documents, materials, items, or other information pursuant to the terms of this Protective Order is the “Receiving Party.”

         A. Purposes and Limitations.

         Discovery in this Litigation may involve the use, production, and disclosure of confidential, financial, proprietary, sensitive, personal, and/or private information for which special protection from public disclosure and from use for any purpose-other than in prosecuting, defending, settling, or otherwise in this Litigation-including any appeals, and/or for enforcing and/or collecting any judgment entered in this Litigation, would be warranted and consistent with the public policy of United States of America and the State of Nevada. The use, production, and/or disclosure of “Protected Material, ” as this term is defined in Section B, could severely injure or damage the Parties and place the Parties at a competitive disadvantage if accomplished in a manner or means inconsistent with the terms and conditions of this Protective Order.

         Therefore, in the interest of expediting and facilitating discovery, permitting the same to proceed without delay occasioned by possible disputes regarding claims of confidentiality, and balancing the interests of the Parties, this Protective Order establishes a procedure for producing, disclosing, and using Protected Material without unnecessarily involving the Court in the process; imposes obligations upon all Parties, persons, and non-parties receiving or given access to Protected Material to protect it from unauthorized production, disclosure, and/or use; and establishes a procedure for challenging the use, disclosure, or dissemination of Protected Material.

         B. Protected Information.

         Any Party or non-party may designate for protection under this Protective Order, in whole or in part, any document, information or material that constitutes or includes, in whole or in part, confidential or proprietary information or trade secrets (“Protected Material”). Subject to the provisions herein and unless otherwise stated, this Protective Order governs, without limitation: (a) all documents, electronically stored information, and/or things as defined by the Federal Rules of Civil Procedure; (b) all pretrial, hearing or deposition testimony, or documents marked as exhibits or for identification in depositions and hearings; (c) all pretrial pleadings, exhibits to pleadings and other court filings; (d) all affidavits; and (e) all stipulations. All copies, reproductions, extracts, digests and complete or partial summaries prepared from any Protected Material shall also be considered Protected Material and treaded as such under this Protective Order.

         C. Designation of Protected Material.

         Protected Material shall be designated by the Producing Party by affixing a legend or stamp on such document, information or material as follows: (i) “CONFIDENTIAL, ” (ii) “CONFIDENTIAL - ATTORNEYS' EYES ONLY, ” or (iii) “CONFIDENTIAL - OUTSIDE ATTORNEYS' EYES ONLY.” The marking shall be placed clearly on each page of the Protected Material. A designation of material as “CONFIDENTIAL, ” “CONFIDENTIAL - ATTORNEYS' EYES ONLY, ” or “CONFIDENTIAL - OUTSIDE ATTORNEYS' EYES ONLY” may be made at any time. An inadvertent or unintentional production of documents, information or material that has not been designated as Protected Material shall not be deemed a waiver in whole or in part of a claim for confidential treatment.

         A Party may object to a Producing Party's designation(s) of confidentiality, including the specific level of designation (e.g. outside attorneys' eyes only vs. attorneys' eyes only). If a Party objects to a designation(s) made by a Producing Party, the Producing Party and objecting Party shall first meet-and-confer within fourteen (14) days of the objection in an effort to resolve the matter. If the Producing Party and objecting Party are not able to resolve the objection, the objecting Party may seek relief from the Court. The designation(s) shall remain subject to this Protective Order and the protections afforded to the specific designation(s) pending a ruling from the Court.

         D. Use of Protected Material Generally.

         The Parties, and the law firms appearing as their counsel in this Litigation, may make such use of the Protected Material produced by the Parties or non-parties subject to this Protective Order as the preparation of this Litigation may reasonably require. The Parties, and the law firms appearing as their counsel in this Litigation, may not use any Protected Material received from another Party or a non-party for any purposes other than this Litigation.

         1. In addition to any restrictions imposed by the Protective Order, all Protected Material shall remain subject to any and all restrictions imposed by statute, regulation, agreement, or other legal duty.

         2. Notwithstanding any existing restriction imposed by statute, regulation, agreement, or other legal duty, this Protective Order shall not further restrict the Party's use/disclosure of Protected Material that was already in a Party's care, custody, and/or control at the commencement of this Litigation.

         All Parties or non-parties obtaining, receiving, inspecting, examining or being given access to any Protected Material in accordance with this Protective Order, (i) shall first agree to submit himself or herself to the jurisdiction of this Litigation for purposes of enforcing this Protective Order, and (ii) shall agree to be bound by this Protective Order.

         E. Storage and Maintenance of Protected Material.

         All Protected Material designated or marked as provided herein shall not be disclosed to anyone other than those persons identified in Sections F and G of this Protective Order, and they shall be handled in the manner set forth herein. The Receiving Party, or any non-party who receives or is given access to any Protected Material under this Protective Order shall:

1. Store and maintain such Protected Material in a secure and safe area and manner within their exclusive possession and control;
2. Exercise the same standard of due and proper care with respect to the storage, custody, use, and/or dissemination of such information as is exercised by the recipient with respect to its own Protected Material;
3. Take all measures reasonably necessary to maintain the confidentiality of such information, documents, materials, items, and things; and
4. Not permit or participate in the unauthorized production, disclosure, or use of such Protected Material.

         F. Use of Protected Material in Depositions.

         Any Party shall have the right to use Protected Material during depositions unless otherwise agreed to by the Parties in writing or on the record at the deposition. To the extent a deponent (and/or any other non-party otherwise unauthorized to receive Protected Material pursuant to Section G) is present at the deposition, that third party deponent and/or non-party shall be required to execute a copy of the form Attachment “A, ” affixed to this Protective Order, prior to dissemination or disclosure of any Protected Material. Counsel for the affected Party may otherwise request that all individuals not qualified to obtain, receive, or be given access to Protected Material under this Protective Order leave the deposition session during any portions where Protected Material is used ...


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