Sumpter v. Crittenden Hospital Association et al

Filing 51

AGREED QUALIFIED HIPAA-PROTECTIVE ORDER. Signed by Judge D. P. Marshall Jr. on 1/23/2015. (jak)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
JONESBORO DIVISION
DELORIS SUMPTER, ET AL.,
Plaintiff,

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v.

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Case No. 3:14-cv-00229-DPM

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CRITTENDEN HOSPITAL ASSOCIATION,
GENE CASHMAN, DAVID RAINES, BRAD
MCCORMICK, CIGNA HEALTH AND LIFE
INSURANCE CO. AND CIGNA CORPORATION,
Defendants.
RHONDA MICHELLE GOODFELLOW,
on behalf of herself and all similarly situated
persons,
Plaintiffs,

v.

) Removed from the Circuit Court
) of Crittenden County, Arkansas,
) No. CV-2014-303
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EUGENE K. CASHMAN, JR.; JAMIE R.
CARTER, JR.; DAVID G. BAYTOS;
DAVID RAINES, JR.; W. BRAD
MCCORMICK; JASON W. COLLARD;
HERSCHEL F. OWENS; ANDREW
LUTTRELL; DONNA B. LANIER;
CAROL C. MCCORMACK; KEITH M.
INGRAM; RANDALL CATT; DAVID
FORD; THOMAS F. DONALDSON, JR.;
WILLIAM JOHNSON; LANNIE L.
LANCASTER; JULIO P. RUIZ; SHERRY
L. LONDON; NESS S. SECHREST;
RANDY R. SULLIVAN; LEVEN
WILLIAMS; SIMPLIFI HEALTH
BENEFIT MANAGEMENT, LLC; and
CIGNA HEALTH AND LIFE
INSURANCE COMPANY,
Defendants.

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Case No. 3:14-cv-00226-DPM

AGREED QUALIFIED HIPAA-PROTECTIVE ORDER

The parties have agreed to the terms of this Order, and the Court finds it appropriate and
in accordance with the Health Insurance Portability and Accountability Act of 1996 ("HIPAA")
(Pub.L. 104-191, 110 Stat. 1936). Therefore, the Court orders as follows:
1.

HIPAA. The parties desire to ensure the privacy of medical information, medical

records, demographic information, and financial information relating to participants and
beneficiaries (collectively, "members") of the health benefits plan ("the Plan") established by the
Crittenden Hospital Association ("CHA"). The Plan is governed by the Employee Retirement
Income Security Act of 1974 ("ERISA"), 29 U.S.C. § 1001 et seq. Patient Health Information,
as defined below, will be designated, in the producing party's discretion, as "Confidential PHI"
under this Order.
(a)

Patient Health Information. Patient Health Information includes "health

information," "individually identifiable health information," and "protected health information,"
as those phrases are defined in HIPAA, 45 C.F.R. § 160.103.

Patient Health Information

includes, but is not limited to:
i.

information that: 1) identifies or reasonably could be expected to identify
an individual; and 2) relates to a) the past, present, or future physical or
mental health or condition of an individual; b) the provision of health care
to an individual; or c) the past, present, or future payment for the provision
of health care to an individual.

ii.

medical bills, claims forms, data on claims submitted by health facilities
and professionals, charge sheets, medical records, medical charts, test
results, notes, dictation, invoices, itemized billing statements, remittance
advice forms, explanation of benefits, checks, notices, and requests, and
all notes, summaries, compilations, extracts, abstracts or oral
communications that are based on or derived from Patient Health
Information.

iii.

the information referred to in 45 C.F.R. § 164.514(b), including, but not
limited to: name; address; names of relatives; name of employers; all

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elements of dates; telephone numbers; fax numbers; electronic mail
addresses; social security numbers; medical record numbers; health plan
beneficiary numbers; account numbers; certificate/license numbers;
Internet Protocol (IP) address numbers; biometric identifiers; full face
photographic images; or any other unique identifying numbers,
characteristic, or code of any patient.

(b)

Authorization for Covered Entities to Disclose Protected Health

Information. Pursuant to 45 C.F.R. § 164.512(e)(l)(i), the Court authorizes each party and its,
his, or her counsel to release to the other parties and their counsel Patient Health Information
relating to members of the Plan. Counsel of record for the parties, and any "covered entities," as
that term is defined in 45 C.F.R. §160.103, are hereby authorized to receive, subpoena, disclose,
and transmit such Patient Health Information as long as it is designated "Confidential PHI"
subject to this Order.

(c)

HIPAA-Qualified Protective Order. The parties are prohibited from

using Patient Health Information under this Order for any purpose other than this litigation and
will be required to return any such information at the end of the litigation, upon request of the
producing party. All Patient Health Information produced in this action shall remain subject to
the terms of this Order after the termination of the litigation, absent contrary Order by the Court.

2.

Protection of Confidential Material.
(a)

General Protections. Patient Health Information shall not be used or

disclosed by the parties, counsel for the parties or any other persons identified in subparagraph
(b) for any purpose whatsoever other than in this litigation, including any appeal. Patient Health
Information may not be used for any commercial purpose (aside from prosecuting or defending
against the claims in this action) or for the purpose of obtaining clients or developing business.
This Order does not restrict a party's use of its own Patient Health Information.

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(b)

Limited Disclosures. The parties and counsel for the parties shall not

disclose or permit the disclosure of any Patient Health Information to any third person or entity
except as set forth in subparagraphs (1)-(9).

Subject to these requirements, the following

categories of persons may be allowed to review Patient Health Information:

(1)

Counsel. Counsel for the parties and employees of counsel who
have responsibility for the action;

(2)

Employees of a Party. Individual employees of a party to the
extent counsel for the receiving party determines in good faith that
the employee's assistance is reasonably necessary to the conduct of
the litigation in which the information is disclosed;

(3)

Plaintiffs. An individual plaintiff may review Patient Health
Information relating to that individual plaintiff; counsel for
plaintiffs may not disclose to an individual plaintiff Protected
Health Information that relates to other persons;

(4)

The Court and its personnel;

(5)

Court Reporters and Recorders. Court reporters and recorders
engaged for depositions;

(6)

Contractors. Those persons specifically engaged for the limited
purpose of making copies of documents or organizing or
processing documents, including outside vendors hired to process
electronically stored documents;

(7)

Consultants and Experts. Consultants, investigators, or experts
employed by the parties or counsel for the parties to assist in the
preparation and trial of this action but only after such persons have
completed the certification contained in Attachment A,
Acknowledgment of Understanding and Agreement to Be Bound;

(8)

Witnesses at depositions. During their depositions, witnesses in
this action to whom disclosure is reasonably necessary. Witnesses
shall not retain a copy of documents containing Patient Health
Information, except witnesses may receive a copy of all exhibits
marked at their depositions in connection with review of the
transcripts. Pages of transcribed deposition testimony or exhibits
to depositions that are designated as Patient Health Information
pursuant to the process set out in this Order must be separately
bound by the court reporter and may not be disclosed to anyone
except as permitted under this Order.

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(9)

(10)

(c)

Author or recipient. The author or recipient of the document (not
including a person who received the document in the course of
litigation); and
Others by Consent. Other persons only by written consent of the
producing party or upon order of the Court and on such conditions
as may be agreed or ordered.

Control of Documents. Counsel for the parties shall make reasonable

efforts to prevent unauthorized or inadvertent disclosure of Patient Health Information. Counsel
shall maintain the originals of the forms signed by persons acknowledging their obligations
under this Order for a period of three years after the termination of the case.

3.

Obligations on Conclusion of Litigation.
(a)

Order Continues in Force.

Unless otherwise agreed or ordered, this

Order shall remain in force after dismissal or entry of final judgment not subject to further
appeal.

(b)

Obligations at Conclusion of Litigation. Within 60 days after dismissal

or entry of final judgment not subject to further appeal, all Patient Health Information and
documents marked "Confidential PHI" under this Order, including copies, electronic images,
duplicates, extracts, summaries or descriptions that contain the Patient Health Information, shall
be returned to the producing party unless: (1) the document has been offered into evidence or
filed without restriction as to disclosure; (2) the parties agree to destruction to the extent
practicable in lieu of return; 1 or (3) as to documents bearing the notations, summations, or other
mental impressions of the receiving party, that party elects to destroy the documents and certifies
to the producing party that it has done so.

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The parties may choose to agree that the receiving party shall destroy documents containing Patient Health
Information and certify the fact of destruction, and that the receiving party shall not be required to locate, isolate and
return e-mails (including attachments to e-mails) that may include Patient Health Information, or Patient Health
Information contained in deposition transcripts or drafts or final expert reports.

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(c)

Retention of Work Product and one set of Filed Documents.

Notwithstanding the above requirements to return or destroy documents, counsel may retain (1)
attorney work product, including an index that refers or relates to designated Patient Health
Information so long as that work product does not duplicate verbatim substantial portions of
Patient Health Information, and (2) one complete set of all documents filed with the Court
including those filed under seal. Any retained Patient Health Information shall continue to be
protected under this Order.

An attorney may use his or her work product in subsequent

litigation, provided that its use does not disclose or use Patient Health Information.

4.

Order Subject to Modification. This Order shall be subject to modification by

the Court on its own initiative or on motion of a party or any other person with standing
concerning the subject matter.

5.

Persons Bound. This Order shall take effect when entered and shall be binding

upon all counsel of record and their law firms, the parties, and persons made subject to this Order
by its terms.

So Ordered.

Dated:

Hon. D.P. MarshJfiir.
United States District Judge

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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
JONESBORO DIVISION
DELORIS SUMPTER, ET AL.,

)
)

Plaintiff,

v.

)
)

)

Case No. 3:14-cv-00229-DPM

)

CRITTENDEN HOSPITAL ASSOCIATION,
GENE CASHMAN, DAVID RAINES, BRAD
MCCORMICK, CIGNA HEALTH AND LIFE
INSURANCE CO. AND CIGNA CORPORATION,

) Removed from the Circuit Court
) of Crittenden County, Arkansas,
) No. CV-2014-303
)
)

Defendants.
RHONDA MICHELLE GOODFELLOW,
on behalf of herself and all similarly situated
persons,
Plaintiffs,

v.

)

)
)
)
)
)
)

) Case No. 3:14-cv-00226-DPM
)

EUGENE K. CASHMAN, JR.; JAMIE R.
CARTER, JR.; DAVID G. BAYTOS;
DAVID RAINES, JR.; W. BRAD
MCCORMICK; JASON W. COLLARD;
HERSCHEL F. OWENS; ANDREW
LUTTRELL; DONNA B. LANIER;
CAROL C. MCCORMACK; KEITH M.
INGRAM; RANDALL CATT; DAVID
FORD; THOMAS F. DONALDSON, JR.;
WILLIAM JOHNSON; LANNIE L.
LANCASTER; JULIO P. RUIZ; SHERRY
L. LONDON; NESS S. SECHREST;
RANDY R. SULLIVAN; LEVEN
WILLIAMS; SIMPLIFI HEALTH
BENEFIT MANAGEMENT, LLC; and
CIGNA HEALTH AND LIFE
INSURANCE COMPANY,
Defendants.

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ATTACHMENT A -- ACKNOWLEDGMENT
AND
AGREEMENT TO BE BOUND
The undersigned hereby acknowledges that he/she has read the Agreed Qualified HIP AA
Protective Order dated

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in the above-captioned action and

attached hereto, understands the terms thereof, and agrees to be bound by its terms.

The

undersigned submits to the jurisdiction of the Eastern District of Arkansas in matters relating to
the Order and understands that the terms of the Order obligate him/her to use materials
designated as Confidential PHI in accordance with the Order solely for the purposes of the
above-captioned action, and not to disclose any such Confidential PHI to any other person, firm
or concern.

The undersigned acknowledges that violation of the Order may result in penalties for
contempt of court.

Name:
Job Title:

Business Address:

Date:
Signature

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