2022)¶

Corbett v. Texas Tech University Health Sciences Center, No. 5:21-cv-00281-H (N.D. Tex.) · Dkt. 12 · 2022-10-17 · PDF

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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
LUBBOCK DIVISION

SHANNON CORBETT,

Plaintiff,
v.

TEXAS TECH UNIVERSITY HEALTH

No. 5:21-CV-281-H

SCIENCES CENTER,
Defendant.

ORDER

Before the Court is the parties' Agreed Motion for Protective Order. Dkt. No. 9.
The Court grants the motion and enters the following Protective Order. Section 12, below,
was modified by the Court in place of the parties' proposed section 12 to address filings that
include materials designated by the parties as confidential. The Court has also modified
headings and portions of other paragraphs for clarification.
1. Information and documents produced by the parties to this action, if reasonably
believed by such producing party to be Confidential (as defined below), may be designated

by such producing party as "Confidential." Except as otherwise provided in this Agreed
and Stipulated Protective Order ("the Order" or "this Order"), such designation shall be
made by clearly indicating on any document or information to be produced the phrase,
"Confidential." Protected Information shall be treated as confidential by all parties, subject

to the provisions of this Order. As used herein, the designation of information as Protected
Information shall include all documents (including without limitation all copies, extracts,
and summaries) containing, referring to, and reflecting such information. Nothing in this

Order shall prevent any party from challenging the designation of documents or information

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as Protected Information by presenting such dispute to the Court for in camera resolution.
2. Definition of Confidential Information.

2.1 Subject to the limitations set forth in this Order, a designation of
·Confidential· includes but is not limited to documents and information, whether embodied

in any physical or electronic medium, that contains information which is protected from
disclosure under state or federal law or information containing a party·s (a) infrastructure,
such that revealing to the public such information could create a health, safety, or security
risk, (b) proprietary or confidential financial or business information, (c) trade secrets,
(d) and sensitive or private personal information, including but not limited to social security
numbers.

2.2 ·Confidential· information includes, without limitation, documents, maps,
blueprints, renderings, architectural drawings, exhibits, answers to discovery requests,

deposition transcripts, pleadings, affidavits, declarations, briefs, motions, transcripts, or
other writing containing such information, all of which may be designated as ·Confidential·
under this Order as appropriate. Information may also be designated ·Confidential· if the
producing party believes in good faith that the information falls within the right to privacy
of protected health information guaranteed by the laws of the State of Texas, the United
States, or any other applicable jurisdiction.

2.3 A party shall designate as Protected Information only such information that
the party in good faith believes in fact is confidential. Information that is generally available
to the public or is in the public domain, such as public filings, catalogues, advertising
materials, and the like, shall not be designated as Protected Information

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3. Designation of Protected Information. Protected Information shall be stamped or
otherwise designated "Confidential" by marking each page of the documents so designated
with a stamp. This procedure shall be followed with regard to documents, exhibits, briefs,
memoranda, interrogatory responses, responses to requests for admissions, or other

materials. In the event the producing party inadvertently fails to designate a document or
testimony as Protected Information, that producing party may make such a designation
subsequently by promptly notifying the other parties in writing. Until such notification,
however, disclosure of any such document or testimony shall not constitute a violation of
this Order.

3.1 Claw Back. If Protected Information is inadvertently produced, the party
claiming it is Protected Information may notify any party that received the information of
the claim and the basis for it. After being notified, a party that received the asserted
privileged or protected information must promptly return or destroy the specified
information and any copies of it; must not use or disclose the information until the claim of
privilege or protection is resolved; must take reasonable steps to retrieve the information if

the party disclosed it to others before being notified of the producing party's claim of
privilege or protection; and may promptly present the information to the Court under seal
for a determination of the producing party's claim of privilege or protection. If a receiving

party moves the Court for a determination of the producing party's claim of privilege or
protection, then the producing party, in turn, must preserve the asserted privileged or
protected information until the claim is resolved by the Court.
4. Portions of transcripts·whether of depositions, pre-hearing conferences, or

hearings·may be designated as Protected Information by a statement on the record at the

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deposition or hearing, or by written designation to all parties within 30 days after receipt of

the transcript. No person shall be present during portions of the depositions or hearings that
are designated ·Confidential· unless such person is authorized under the terms of this Order

to receive such Protected Information or unless the producing party consents to such person
being present. To the extent possible, the court reporter shall segregate into separate
transcripts information designated as Protected Information with blank, consecutively
numbered pages being provided in a non-designated main transcript. The separate
transcript containing Protected Information shall have page numbers that correspond to the
blank pages in the main transcript.
5. Any party shall retain the right to redact from Protected Information any identifying
information protected by statute, law, or rule (e.g., FERPA) and any such information that
the party reasonably believes (a) should be redacted to protect irrelevant Protected
Information, including but not limited to the identity of specific payers and the identity of a
person or entity who is not a party to this action and who otherwise reasonably could be
determined to be without any information potentially relevant to this action, and (b) the
redaction of which will not impair the other parties· legitimate use of the information in this
action. After attempting to reach a resolution with counsel for the opposing party, any party
who believes that the redactions impair their legitimate use of the information in this action

may make a motion to the Court for a determination of whether the redactions should
remain.

6. All information produced by any party to an opposing party prior to the entry of this

Order shall be subject to the terms and conditions of this Order if designated as Protected
Information within 30 days of the entry of this Order.

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7. Disclosure of Protected Information Designated as "Confidential."
Protected Information designated as "Confidential" may be disclosed only to the

following persons:
(a) counsel(s) for the respective parties to this litigation, including any staff
members assisting in the preparation for trial or appeal of the action;
(b) named parties, including any officers, directors, employees, or certified agents

or representatives thereof assisting in the preparation for trial or appeal of this
action, provided such officers, directors, or employees execute a
Confidentiality Agreement pursuant to paragraph 8 below;
(c) experts, consultants, or advisors (and their administrative or clerical staff)

employed or retained by counsel(s) for the respective parties to perform
investigative work, research, analysis, or other services related to this action
provided such experts, consultants, or advisors execute a Confidentiality
Agreement pursuant to paragraph 8 below;
(d) persons or entities that provide litigation support services (e.g., photocopying;

videotaping; translating; preparing exhibits or demonstrations; organizing,
storing, retrieving data in any form or medium; etc.) and their employees and
subcontractors, provided that such persons or entities execute a
Confidentiality Agreement pursuant to paragraph 8 below, and all documents
designated as "Confidential" are retrieved by the party furnishing those

documents upon completion of the services;
(e) the Court, including any staff members assisting in the services of the Court,
who require access to the Protected Information;
(f) court reporters and their staff;

(g) mediators chosen by or for the parties in this action provided such persons
execute a Confidentiality Agreement pursuant to paragraph 8 below;
(h) deponents, during the course of their depositions, if the attorney making such
disclosure obtains an executed Confidentiality Agreement from that deponent
pursuant to paragraph 8 below, but only to the extent such deponents are
shown Protected Information to which they have not authored, sent, or

received in the regular course of their business duties;
(i) the author, addressees, and recipients of the document or any person who had
access to such information by virtue of his/her employment;
(j) any member of the Texas Legislature who requests the information for

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legislative purposes pursuant to the Public Information Act, subject to the
provisions found in Chapter 552 of the Texas Government Code, including

Sections 552.002, 552.005, and 552.008; and
(k) (k) any other person upon the written agreement of the party who designated
the information as "Confidential," or pursuant to order of the Court.
8. Each person receiving disclosure of Protected Information, other than counsel for the

respective parties in this action (and staff for said counsel), the Court, and court reporters,
shall be shown a copy of this Order and shall sign a Confidentiality Agreement in the form
attached hereto as "Exhibit A." Each such person agrees to be subject to the restrictions

imposed by this Order and to submit his or her person to the jurisdiction of any Court of
competent jurisdiction for the limited purpose of securing compliance with the terms of this

Order. This Order is enforceable by contempt proceedings, which may include monetary
penalties. Counsel for the party making such disclosure shall retain the original executed

Confidentiality Agreements.
9. The parties, and all persons who receive Protected Information as identified in this
Order:

(a) are prohibited from using or disclosing any Protected Information for any
purpose other than the prosecution, defense, or appeal of the claims asserted
in this action; and

(b) not later than 120 days after the conclusion of this litigation and any appeal
related to it, must (i) return the Protected Information (including all copies,
extracts or summaries thereof) to the party that produced the Protected

Information or (ii) certify in writing that it has destroyed all such Protected
Information (including all copies or summaries thereof).
10. Any party designating a person as one who shall receive and review Protected

Information shall use reasonable care and precaution to ensure that each such person
observes the terms of this Order, including, but not limited to, showing each such person a

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copy of this Order and instructing each such person regarding compliance with the terms of
this Order.

11. Nothing in this order shall prevent disclosure beyond the terms of this order if each

party designating the information as Protected Information consents to such disclosure or if
the Court, after notice to all affected parties and nonparties, orders such disclosure. Nor
shall anything in the order prevent any counsel of record from utilizing Protected
Information in the examination or cross-examination of any expert witness; nor prevent any
person who is indicated on the document as being an author, source, or recipient of the

Protected Information from using the information as they otherwise would; nor prevent any
person who has access to Protected Information by virtue of his/her employment, and not
this litigation, from using the information as they otherwise would.
12. Filing Documents with the Court.
12.1 The Court generally discourages requests for filing motions and exhibits

under seal. The parties may agree between themselves to designate documents
"Confidential" during discovery. The typical standard there involves the parties assessing
whether they want that material in the public domain. But filing that material with the

Court under seal is a different matter. Court proceedings are, by and large, public matters·
and rightfully so given the First Amendment and that tax dollars fund the courts.¹

¹ See Bin Hoa Le v. Exeter Fin. Corp., 990 F.3d 410, 417·21 (5th Cir. 2021); United States v. Holy Land Found.
for Relief & Dev., 624 F.3d 685, 690 (5th Cir. 2010) ("Public confidence [in our judicial system]
cannot long be maintained where important judicial decisions are made behind closed doors and

then announced in conclusive terms to the public, with the record supporting the court's decision
sealed from public view.") (quoting In re High Sulfur Content Gasoline Prods. Liab. Litig., 517 F.3d
220, 230 (5th Cir. 2008)); SEC v. Van Waeyenberghe, 990 F.2d 845, 848 (5th Cir. 1993) ("Public access
[to judicial records] serves to promote trustworthiness of the judicial process, to curb judicial abuses,

and to provide the public with a more complete understanding of the judicial system, including a
better perception of its fairness.") (quoting Littlejohn v. BIC Corp., 851 F.2d 673, 682 (3d Cir. 1998));

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12.2 Here, the parties' agreement takes the form of this Protective Order. Federal
Rule of Civil Procedure 26(c) permits the Court to issue a protective order "for good cause."
To assist the parties in showing good cause here, the Court adds the following requirements
that complement the sealing practices of the Fifth Circuit. A party seeking to file a specific

document under seal must move for leave to do so and: (1) brief the legal authorities
indicating the risks of disclosure outweigh the public's right to know, and (2) explain that no

other viable alternative to sealing exists. Further, all facts recited in any such motion must
be verified by the oath or declaration of a person or persons with personal knowledge.
12.3 If any party wishes to submit Confidential Information to the Court, the

parties shall request to file the materials under seal, as appropriate and consistent with Fifth
Circuit precedent. See Bin Hoa Le v. Exeter Fin. Corp., 990 F.3d 410, 417-21 (5th Cir. 2021).
The submission must be filed pursuant to Local Rule 79.3 or in a sealed envelope bearing
the caption of this Action and a notice in the following form:
CONFIDENTIAL INFORMATION or
CONFIDENTIAL ATTORNEYS' EYES ONLY INFORMATION

[caption]
This envelope, which is being filed under seal,

contains documents that are subject to a Protective
Order governing the use of confidential discovery material.
No Prejudice.
12.4 Producing or receiving confidential information, or otherwise complying
with the terms of this Protective Order, will not: (a) operate as an admission by any
party that any particular Confidential Information contains or reflects trade secrets or
any other type of confidential or proprietary information; (b) prejudice the rights of a

_______________________

see also Brown & Williamson Tobacco Corp. v. F.T.C., 710 F.2d 1165, 1177 (6th Cir. 1983) (explaining
that the First Amendment and the common law limit the court's discretion to seal records).

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party to object to the production of information or material that the party does not

consider to be within the scope of discovery; (c) prejudice the rights of a party to
seek a determination by the presiding judge that particular materials be produced;

(d) prejudice the rights of a party to apply to the presiding judge for further protective
orders; or (e) prevent the parties from agreeing in writing to alter or waive the
provisions or protections provided for in this Protective Order with respect to any
particular information or material.

13. Copies of any motion, pleading, memorandum, or other document containing
Protected Information shall be stamped on the cover page with the appropriate legend.

14. The failure of any party to object to designation of information as Protected
Information does not prevent the party from later objecting to such designation and
requesting that the party be permitted to disclose the information without regard to the
terms of this Order.

15. At any time after receipt of Protected Information from another party, the receiving
party may move the Court for an Order removing the designation and any restrictions
attendant to that designation. At the hearing on any such motion, the designating party

shall have the burden of demonstrating that the Protected Information addressed by the
motion is entitled to that designation and its attendant protections.

16. Nothing herein shall be construed to be an admission of relevance or to affect, in any
way, the admissibility of any documents, testimony, or other evidence in this action. This
Order is without prejudice to the right of any party to bring before the Court at any time the
question of whether any particular information is or is not discoverable or admissible in this

case, and such right is expressly reserved.

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17. This Order shall survive any settlement, judgment, or other disposition or conclusion

of this action and all appeals therefrom, and any Court of competent jurisdiction may
enforce the terms of this Order after the final termination of this action, whether by final
award or settlement. Notwithstanding, the foregoing provision, a party may seek the
written permission of the producing party or order of the Court with respect to dissolution
or modification of this, or any other, protective order.
18. This Order shall not bar any attorney in the course of rendering advice to such

attorney·s client with respect to this litigation from conveying to any party client the
attorney's evaluation in a general way of Protected Information produced or exchanged
under the terms of this order; provided, however, that in rendering such advice and

otherwise communicating with the client, the attorney shall not disclose the specific
contents of any Protected Information produced by another party if such disclosure would
be contrary to the terms of this Order.

19. Nothing in this Order shall prevent a party who has designated information as
Protected Information from agreeing to release any of the information designated by it as
Protected Information from the requirements of this Order.
20. Nothing in this Order limits any designating party·s use of its own information, nor
shall it prevent the designating party from disclosing its own Protected Information or

documents to any person. Such disclosure shall not affect any designations made pursuant
to the terms of this Order, so long as the disclosure is made in a manner that is reasonably
calculated to maintain the confidentiality of the information.
21. Nothing in this Order bars the parties from agreeing to amend this Order, nor
prevent any party from moving to amend this Order during or after the conclusion of this

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So ordered on October 17, 2022.

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action. This Order shall not prejudice the rights of a party to apply to the Court for any
additional protections as that party may consider appropriate.
22. Neither the attorney-client privilege nor work product protection is waived by
disclosure connected with this litigation except insofar as such privilege is waived in the
manner deemed by relevant jurisprudence to constitute waiver.
23. The parties have the right to seek any appropriate remedies and/or sanctions from

the Court for any violations of this Order.
24. The parties may, by stipulation, provide for exceptions to this Order and any party
may seek an order of this Court modifying this Order.

JAMES WESLEY HENDRIX
UNITED STATES DISTRICT JUDGE

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IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
LUBBOCK DIVISION

SHANNON CORBETT,

§

Plaintiff,

§
§
§

v.

§

§
TEXAS TECH UNIVERSITY,

Defendant.

§

CONFIDENTIALITY AGREEMENT
REGARDING ACCESS TO PROTECTED INFORMATION

I, ___________________________________, hereby acknowledge and agree that:
1. I have read the foregoing Agreed and Stipulated Protective Order dated _______________

_________________, 2022, which I am informed has been entered in the action currently
pending before the United States District Court for the Northern District of Texas,
Lubbock Division, captioned Shannon Corbett v. Texas Tech University; Civil Action
No. 5:21-CV-00281;

2. I understand the terms of the Agreed and Stipulated Protective Order;

3. I agree, upon threat of penalty of contempt and other civil remedies, to be bound by
such terms; and
4. I shall irrevocably submit my person to any court of competent jurisdiction for the

limited purpose of securing compliance with the terms and conditions of the Agreed
and Stipulated Protective Order.

Dated: __________________

_____________________________________

SIGNATURE

_____________________________________

PRINTED NAME

_____________________________________

ADDRESS

Civil Action No. 5:21-CV-00281-H
Agreed and Stipulated Protective Order

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