IV Solutions, Inc v. CIGNA Healthcare of California Inc et al

Filing 46

PROTECTIVE ORDER by Magistrate Judge Frederick F. Mumm, re: Stipulation for Protective Order, 44 . (mz)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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IV SOLUTIONS, INC.,

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Plaintiff,

Case No. 2:15-cv-05730-SVW(FFMx)
PROTECTIVE ORDER

v.
CIGNA HEALTHCARE OF
CALIFORNIA, INC.,
CONNECTICUT GENERAL LIFE
INSURANCE COMPANY, and DOES
1 through 25, inclusive,

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Defendants.

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Pursuant to the stipulation of the parties, and good cause appearing therefore,
the Court enters the following protective order (“Order”) to govern discovery in this
action:
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STATEMENT OF GOOD CAUSE: This action involves claims

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related to payments for medical products and services provided to a non-party. As

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such, the Parties expressly understand and agree that certain documents and

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information relevant to the claims and defenses in this action may contain

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information that is subject to the Standards for Privacy of Individually Identifiable

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Health Information, 45 C.F.R. Parts 160 and 164, promulgated pursuant to the

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Health Insurance Portability and Accountability Act of 1996 (“HIPAA”); California

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PROTECTIVE ORDER
2:15-CV-05730-SVW (FFMx)

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Code of Civil Procedure §§ 56 et seq.; or other similar statutory or regulatory

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privacy protections. The Parties agree that, once adopted, this Order will constitute

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a Qualified Protective Order under 45 C.F.R. 164.512(e).

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2.

In connection with discovery in this action, the Parties may designate

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certain documents and testimony, or other information derived therefrom, as

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“Confidential” or “Attorney’s Eyes Only” under the terms of this Order.

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3.

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(a)

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“Confidential” information is information that is subject to the

HIPAA’s Standards or Privacy of Individually Identifiable Health Information;

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California Code of Civil Procedure §§ 56 et seq.; or other similar statutory or

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regulatory privacy protections, or information which has not been made public and

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which concerns or relates to the Parties’ business practices and falls within Federal

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Rule of Civil Procedure 26(c)(1)(G), including within the following categories:

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material protected under the Uniform Trade Secrets Act, California Civil Code

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section 3426, et seq., in that such information derives independent economic value,

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actual or potential, from not being generally known to, and not being readily

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ascertainable by proper means, by other persons, who can obtain economic value

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from its disclosures or use; information that is the subject of efforts that are

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reasonable under the circumstances to maintain its secrecy; material that is regarded

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by a Party as being confidential, private, or proprietary in nature, customer lists,

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confidential financial information of the Parties (including but not limited to profit

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margins, sales data, profits, and retail sales information); vendor lists; order

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summaries; confidential contracts; proprietary specifications; documents describing

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concepts, ideas, proposals, designs, inventions, devices, methods of manufacturing,

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techniques, development processes, marketing programs, and trade secrets; and

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customer-confidential information, agreements or relationships with non-parties

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designated as confidential between the parties to such agreements.

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(b)

“Attorney’s Eyes Only” means any Confidential information that any

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Party determines in good faith is particularly sensitive, confidential, personal,

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and/or private, and/or the disclosure of which to persons other than those set forth

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in Section 7(ii) below is reasonably likely to cause serious competitive harm or

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other harm.

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4.

A party receiving (“Receiving Party”) material protected under this

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agreement (“Protected Material”) may use Protected Material disclosed or produced

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by another Party or by a non-party in connection with this case only for

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prosecuting, defending, or attempting to settle this litigation.

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5.

By designating a document, testimony or other information derived

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therefrom as Protected Material labeled “Confidential” or “Attorney’s Eyes Only”

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under the terms of this Order, the Parties are certifying that there is a good faith

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basis both in law and in fact for the designation. Such “Confidential” or

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“Attorney’s Eyes Only”materials shall be used solely in connection with this

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lawsuit, and not for any business, competitive, or governmental purpose or

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function, and such information shall not be disclosed to anyone except as provided

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herein.

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Except as otherwise provided in this Order, or as otherwise stipulated

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or ordered, material that qualifies for protection under this Order should be clearly

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so designated before the material is disclosed or produced. Designation in

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conformity with this Order requires:

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(a)

for information in documentary form (apart from transcripts of

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depositions or other pretrial or trial proceedings), that the party producing Protected

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Material (“Producing Party”) affix the legend “Confidential” or “Attorney’s Eyes

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Only” on each page that contains protected material, or prominently on each

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electronic media that contains protected material.

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(b)

for testimony given in deposition, the testimony may be designated as

“Confidential” or “Attorney’s Eyes Only” by making a statement to that effect on
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the record at the deposition. Following the deposition, the party wishing to

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designate certain testimony as Protected Material (“Designating Party”) shall have

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30 days, after the transcript becomes available, to identify the specific portions of

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the testimony as to which protection is sought. Only those portions of the

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testimony that are appropriately designated for protection within the 30 days shall

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be covered by the provisions of this Order.
(c)

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for information produced in any other form, including any tangible

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items, that the Producing Party affix in a prominent place on the exterior of the

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container or containers in which the information or item is stored the legend

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“Confidential” or “Attorney’s Eyes Only.” If only portions of the information or

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item warrant protection, the Producing Party, to the extent practicable, shall identify

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the protected portions.

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7.

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(i)

Information or material produced which is designated as

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“Confidential” may be disclosed or made available only to the Court, to counsel for

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a party (including the paralegal, clerical, and secretarial staff employed by such

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counsel), and to the “qualified persons” designated below:
a.

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in-house counsel of a party, or an officer, director, or employee of a

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party deemed necessary by counsel to aid in the prosecution, defense, or settlement

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of this action;

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b.

experts or consultants (together with their clerical staff) retained to

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assist in the prosecution, defense, or settlement of this action who sign an

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undertaking, in the form of Exhibit A hereto, confirming that they have reviewed

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and agree to be bound by the terms of this Order;

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c.

court reporter(s) employed in this action;

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d.

a witness at any proceeding in this action; and,

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e.

any other person as to whom the Disclosing Party agrees in writing.

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(ii)

Information or material produced which is designated as “Attorneys’

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Eyes Only” may be disclosed or made available to all of the foregoing persons in

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Section 7(i) except those set forth in subsections (a) and (d) thereof.

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8.

Nothing herein shall impose any restrictions on the use or disclosure

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by a party of material obtained by such party independent of discovery in this

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action, whether or not such material is also obtained through discovery in this

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action, or from disclosing its own Protected Material as it deems appropriate.

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9.

In the event that any Protected Material is used in any proceeding in

this action, the party using such shall take all reasonable steps to maintain its

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confidentiality or attorney’s eyes only status during such use; however, this

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Paragraph does not apply where the Protected Material appears in the public record.

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10.

Without written permission from the Designating Party or a court

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order secured after appropriate notice to all interested persons, a Party may not file

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in the public record in this action any Protected Material. If any Protected Material

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are to be filed with the Court, such papers shall be accompanied by an application

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to file the papers, or the confidential or attorney’s eyes only portions thereof, under

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seal. The application must show good cause for the under seal filing. The

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application shall be directed to the appropriate judicial officer. Pending the ruling

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on the application, the papers or portions thereof subject to the sealing application

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shall be lodged under seal. A Party that seeks to file under seal any Protected

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Material must comply with Local Rule 79-5 and this Court’s published procedures

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requiring an application to the Court for an order to seal documents.

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11.

This Stipulation is entered solely for the purpose of facilitating the

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exchange of documents and information between the Parties to this action without

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involving the Court unnecessarily in the process. Nothing in this Stipulation nor

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the production of any information or document under the terms of this Stipulation

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nor any proceedings pursuant to this Stipulation shall be deemed to have the effect

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of an admission or waiver by any party or of altering the confidentiality or non5

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confidentiality, or attorney’s eyes only or non-attorney’s eyes only, of any such

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document or information or altering any existing obligation of any party or the

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absence thereof. Neither the stipulation nor its contents, nor designation of a

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document as “Confidential” or “Attorney’s Eyes Only”, nor any party’s objection

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or failure to object to such a designation is admissible as evidence for the purpose

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of proving or disproving any matter at issue in the litigation. Further, the Parties

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agree that the “Confidential” or “Attorney’s Eyes Only” designations provided on

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documents for purposes of production under this Order shall have no evidentiary

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value.

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12.

Inadvertent production of privileged material, or the inadvertent failure

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to designation material as “Confidential” or “Attorney’s Eyes Only”, does not

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waive the privileged, confidential, or attorney’s eyes status of the document or

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information.

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If timely corrected, an inadvertent failure to designate qualified

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information or items as “Confidential” or “Attorney’s Eyes Only” does not,

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standing alone, waive the Designating Party’s right to secure protection under this

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Order for such material. If material is appropriately designated as “Confidential” or

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“Attorney’s Eyes Only” after the material was initially produced, the Receiving

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Party, on timely notification of the designation, must make reasonable efforts to

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assure that the material is treated in accordance with the provisions of this Order,

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and must immediately (a) notify in writing the Designating Party of any disclosures

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of such Protected Material, (b) use its best efforts to retrieve all copies of the

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Protected Material, and (c) inform the person or persons to whom disclosures were

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made of all the terms of this Order. If the undesignated documents have already

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been filed with the Court without the confidential or attorney’s eyes designation,

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the Designating Party may move the court for filing of the document under seal.

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14.

Any party may challenge the confidentiality or attorney’s eyes only

designation of the other party, but shall be required to maintain the confidentiality
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or attorney’s eyes only status of the information unless and until a ruling issues

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designating that the information ought not be deemed “Confidential” or “Attorney’s

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Eyes Only”, or the Designating Party fails to seek a ruling on the confidentiality or

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attorney’s eyes only status of the designated material.

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15.

A party that elects to initiate a challenge to a Designating Party’s

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confidentiality or attorney’s eyes only designation must begin the process by

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conferring directly with counsel for the Designating Party, pursuant to the Local

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Rules. In conferring, the challenging Party must explain the basis for its belief that

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the confidentiality or attorney’s eyes only designation was not proper and must give

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the Designating Party an opportunity to review the designated material, to

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reconsider the circumstances, and, if no change in designation is offered, to explain

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the basis for the chosen designation.

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16.

If the parties are unable to resolve their dispute regarding the

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confidentiality of the designated material following the meet and confer process set

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forth herein, the Designating Party must, pursuant to Federal Rule of Civil

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Procedure 26, and the rules of this Court, file and serve a motion for a protective

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order that identifies the material designated as confidential or attorney’s eyes only

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and affirms that the movant has complied with the meet and confer requirements

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imposed in the preceding paragraph. The Designating Party bears the burden of

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persuading the Court that the information is Confidential or “Attorney’s Eyes

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Only” within the definitions of those terms set forth above. In the event a motion

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for protective order is filed, the Parties will comply with the requirements and

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procedures set forth in Local Rule 37 and will file the motion in the form of a Joint

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Stipulation. If the Parties wish, or a Party wishes, to file the Joint Stipulation under

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seal, the Parties may file a stipulation to that effect, or the moving party may file an

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ex parte application making the appropriate request. The Parties must set forth

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good cause in the stipulation or ex parte application as to why the Joint Stipulation

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or portions thereof should be filed under seal.
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In the case of a dispute, the material designated as confidential or

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attorney’s eyes only will be deemed confidential or attorney’s eyes only until thirty

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(30) days following the start of the meet and confer process set forth herein. If the

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Designating Party files a motion for a protective order, the designated material

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maintains its confidentiality or attorney’s eyes only designation until the court

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orders otherwise. If the Designating Party fails to file a motion for a protective

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order following the meet and confer process, after thirty days from the start of the

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meet and confer process, the material is no longer considered confidential or

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attorney’s eyes only, as the case may be.
18.

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in other litigation that compels disclosure of any Protected Material that Party must:
a.

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If a Receiving Party is served with a subpoena or a court order issued

promptly notify in writing the Designating Party. Such notification

shall include a copy of the subpoena or court order;
b.

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promptly notify in writing the party who caused the subpoena or order

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to issue in the other litigation that some or all of the material covered by the

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subpoena or order is subject to this Protective Order. Such notification shall

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include a copy of this Protective Order; and
c.

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cooperate with respect to all reasonable procedures sought to be

pursued by the Designating Party whose Protected Material may be affected.
If the Designating Party timely seeks a protective order, the Party served with

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the subpoena or court order shall not produce any information designated in this

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action as “Confidential” or “Attorney’s Eyes Only” before a determination by the

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court from which the subpoena or order issued, unless the Party has obtained the

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Designating Party’s permission. The Designating Party shall bear the burden and

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expense of seeking protection in that court of its Confidential Material and nothing

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in these provisions should be construed as authorizing or encouraging a Receiving

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Party in this Action to disobey a lawful directive from another court.

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19.

Upon written request, at the conclusion of this matter, the Parties

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hereby agree to promptly return all copies of all Protected Material received; or, in

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the alternative, such parties may shred all copies of all such Protected Material and

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promptly send written confirmation from the other Party that it has complied with

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the terms of this Stipulation. Notwithstanding, Counsel shall be able to retain a

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copy of confidential or attorney’s eyes only information that has been submitted in

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a pleading or marked as an exhibit in a deposition.
20.

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In the event this action proceeds to trial, if a Party wishes to maintain

the confidential or attorney’s eyes only nature of any Protected Material, that Party

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must apply to the district judge in advance of the trial to seal any exhibits or

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testimony of a confidential or attorney’s eyes only nature, or any other Protected

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Material. If this litigation is terminated prior to the commencement of trial, the

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confidentiality obligations imposed by this Order shall remain in effect until a

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Designating Party agrees otherwise in writing or a court order otherwise directs,

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and this Court will retain and shall have jurisdiction over the Parties, their attorneys

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and all recipients of material designated “Confidential” or “Attorney’s Eyes Only”

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for the enforcement of the provisions of this Order following termination of this

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case prior to trial, and/or to terminate all or some of the provisions of this Order on

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application by any party.
21.

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This Order shall not preclude a party from exercising any rights or

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raising any objections otherwise available to them under the rules of discovery and

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evidence.

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22.

This Order shall be binding upon the Parties to this action, the

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attorneys for each party and upon any recipient of discovery designated as

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“Confidential” or “Attorney’s Eyes Only” and upon any successor, executor,

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personal representative, administrator, heir, legal representative, assignee,

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subsidiaries, division, employee, agent, independent contractor, or other person or

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legal entity over which any party or attorney or recipient of documents covered by

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this Order may have control.

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Dated: May 27, 2016
/s/ Frederick F. Mumm
FREDERICK F. MUMM
United States Magistrate Judge

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EXHIBIT A

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AGREEMENT CONCERNING MATERIAL COVERED BY ORDER
GOVERNING THE TREATMENT OF CONFIDENTIAL INFORMATION
ENTERED IN THE UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF CALIFORNIA

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The undersigned hereby acknowledges that he or she has read the attached

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Protective Order (“Order”) entered in the United States District Court for the

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Central District of California, in the litigation entitled IV Solutions, Inc. v. Cigna

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HealthCare of California, Inc., et al., Central District Case No. 2:15-cv-05730-

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SVW (FFMx), and understands the terms thereof and agrees to be bound by such

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terms. The undersigned further acknowledges and understands that a violation of

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the Order could be punishable as a contempt of Court.

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Dated: ________________

_____________________________
[Signature]

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_____________________________
[Print Name]

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Executed in ____________________________, ______________________.
[City]

[State]

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