Soma Surgery Center, Inc. v. Aetna Life Insurance Company

Filing 23

PROTECTIVE ORDER by Magistrate Judge Alka Sagar re Stipulation for Protective Order 22 . (See document for complete details) (afe)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA, WESTERN DIVISION

1875 CENTURY PARK EAST, SUITE 1600
LOS ANGELES, CALIFORNIA 90067-2517
TEL: [phone] • FAX: [phone]

HOOPER, LUNDY & BOOKMAN, P.C.

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11 SOMA SURGERY CENTER, INC., a
California corporation,
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Plaintiff,
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vs.
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AETNA LIFE INSURANCE
15 COMPANY and DOES 1 through 100,
inclusive,
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Defendants.
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Case No. 16-CV-05802-DSF (ASx)
STIPULATED PROTECTIVE
ORDER
Trial Date:

May 15, 2018

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16-CV-05802-DSF (ASX)
79300.902 1220522.1

STIPULATED PROTECTIVE ORDER

1

The PARTIES HAVING STIPULATED to the matters herein, the Court

2 hereby orders that all confidential Documents or information produced in this Case
3 shall be subject to the terms and provisions that are set forth herein:
4 1.

A. PURPOSES AND LIMITATIONS

5

Discovery in this action is likely to involve production of confidential,

6 proprietary, or private information for which special protection from public
7 disclosure and from use for any purpose other than prosecuting this litigation may
8 be warranted. Accordingly, the parties hereby stipulate to and petition the Court to
9 enter the following Stipulated Protective Order. The parties acknowledge that this

1875 CENTURY PARK EAST, SUITE 1600
LOS ANGELES, CALIFORNIA 90067-2517
TEL: [phone] • FAX: [phone]

HOOPER, LUNDY & BOOKMAN, P.C.

10 Order does not confer blanket protections on all disclosures or responses to
11 discovery and that the protection it affords from public disclosure and use extends
12 only to the limited information or items that are entitled to confidential treatment
13 under the applicable legal principles. The parties further acknowledge, as set forth
14 in Section 12.3, below, that this Stipulated Protective Order does not entitle them to
15 file confidential information under seal; Civil Local Rule 79-5 sets forth the
16 procedures that must be followed and the standards that will be applied when a party
17 seeks permission from the court to file material under seal.
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B. GOOD CAUSE STATEMENT

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This action is a payment dispute over the healthcare services that Soma

20 provided to several dozen patients. Those patients’ medical information and records
21 are private and confidential such that it is protected both by HIPAA and California
22 law, and for which special protection from public disclosure is warranted. Such
23 confidential and proprietary patient-related materials will include, among other
24 things: patient medical consultation records; operation or surgery medical records;
25 pre-operative and post-operative medical records; discharge medical records;
26 laboratory, pathology, and radiology medical records; patient communications with
27 doctors, and other medical providers; patient communications with the Plaintiff or
28 Defendant; and communications between Plaintiff and Defendant, such as pre2
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1 authorization requests and letters, Explanation of Benefits forms, appeal letters,
2 appeal denial letters, and medical records submitted by Plaintiff.
3

The parties also require a stipulated protective order in order to protect their

4 respective commercial, financial, and proprietary business information for which
5 special protection from public disclosure and from use for any purpose other than
6 prosecution of this action is warranted. One of the issues in this case, apart from the
7 medical necessity of the procedures that were performed, is the appropriate
8 payment, if any, owed to Plaintiff, which is known in the industry and under the
9 relevant benefit plan documents as “Reasonable & Customary,” or “R&C.” In order

1875 CENTURY PARK EAST, SUITE 1600
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TEL: [phone] • FAX: [phone]

HOOPER, LUNDY & BOOKMAN, P.C.

10 to determine the appropriate R&C amount, the parties may rely on confidential
11 payment rates negotiated with similar providers and/or payors. Aetna, for instance,
12 may rely upon rates of payment found in its commercial contracts with other health
13 providers, which Aetna typically keeps confidential. Soma’s contracted rates with
14 other health insurers, if any, would also routinely be kept as confidential business
15 records.
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Accordingly, a protective order governing the use of such information is

17 necessary and desirable in order to expedite the flow of information while ensuring
18 the confidentiality of sensitive information. A protective order will also facilitate
19 the prompt resolution of disputes over confidentiality of discovery materials, ensure
20 that the parties are permitted reasonable necessary uses of such material in
21 preparation for and in the conduct of trial, address their handling at the end of the
22 litigation, and generally serve the ends of justice. It is the intent of the parties that
23 information will not be designated as confidential for tactical reasons and that
24 nothing will be designated without a good faith belief that it has been maintained in
25 a confidential, non-public manner, and there is good cause why it should not be part
26 of the public record of this case.
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1 2.

DEFINITIONS

2

2.1

Action: This pending Federal lawsuit, Soma Surgery Center, Inc. v.

3 Aetna Life Insurance Company, Case No. 16-CV-05802-DSF (ASx).
4

2.2

Challenging Party: a Party or Non-Party that challenges the

5 designation of information or items under this Order.
6

2.3

“CONFIDENTIAL” Information or Items: information (regardless of

7 how it is generated, stored or maintained) or tangible things that qualify for
8 protection under Federal Rule of Civil Procedure 26(c), and as specified above in
9 the Good Cause Statement.

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HOOPER, LUNDY & BOOKMAN, P.C.

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2.4

Counsel: Outside Counsel of Record and House Counsel (as well as

11 their support staff).
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2.5

Designating Party: a Party or Non-Party that designates information or

13 items that it produces in disclosures or in responses to discovery as
14 “CONFIDENTIAL.”
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2.6

Disclosure or Discovery Material: all items or information, regardless

16 of the medium or manner in which it is generated, stored, or maintained (including,
17 among other things, testimony, transcripts, and tangible things), that are produced or
18 generated in disclosures or responses to discovery in this matter.
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2.7

Expert: a person with specialized knowledge or experience in a matter

20 pertinent to the litigation who has been retained by a Party or its counsel to serve as
21 an expert witness or as a consultant in this Action.
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2.8

House Counsel: attorneys who are employees of a party to this Action.

23

House Counsel does not include Outside Counsel of Record or any other

24 outside counsel.
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2.9

Non-Party: any natural person, partnership, corporation, association, or

26 other legal entity not named as a Party to this action.
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2.10 Outside Counsel of Record: attorneys who are not employees of a

28 party to this Action but are retained to represent or advise a party to this Action and
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1 have appeared in this Action on behalf of that party or are affiliated with a law firm
2 which has appeared on behalf of that party, and includes support staff.
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2.11 Party: any party to this Action, including all of its officers, directors,

4 employees, consultants, retained experts, and Outside Counsel of Record (and their
5 support staffs).
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2.12 Producing Party: a Party or Non-Party that produces Disclosure or

7 Discovery Material in this Action.
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2.13 Professional Vendors: persons or entities that provide litigation

9 support services (e.g., photocopying, videotaping, translating, preparing exhibits or

1875 CENTURY PARK EAST, SUITE 1600
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HOOPER, LUNDY & BOOKMAN, P.C.

10 demonstrations, and organizing, storing, or retrieving data in any form or medium)
11 and their employees and subcontractors.
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2.14 Protected Material: any Disclosure or Discovery Material that is

13 designated as “CONFIDENTIAL.”
14

2.15 Receiving Party: a Party that receives Disclosure or Discovery

15 Material from a Producing Party.
16 3.

SCOPE

17

The protections conferred by this Stipulation and Order cover not only

18 Protected Material (as defined above), but also (1) any information copied or
19 extracted from Protected Material; (2) all copies, excerpts, summaries, or
20 compilations of Protected Material; and (3) any testimony, conversations, or
21 presentations by Parties or their Counsel that might reveal Protected Material.
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Any use of Protected Material at trial shall be governed by the orders of the

23 trial judge. This Order does not govern the use of Protected Material at trial.
24 4.

DURATION

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Even after final disposition of this litigation, the confidentiality obligations

26 imposed by this Order shall remain in effect until a Designating Party agrees
27 otherwise in writing or a court order otherwise directs. Final disposition shall be
28 deemed to be the later of (1) dismissal of all claims and defenses in this Action, with
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1 or without prejudice; and (2) final judgment herein after the completion and
2 exhaustion of all appeals, rehearings, remands, trials, or reviews of this Action,
3 including the time limits for filing any motions or applications for extension of time
4 pursuant to applicable law.
5 5.

DESIGNATING PROTECTED MATERIAL

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5.1

Exercise of Restraint and Care in Designating Material for Protection.

7 Each Party or Non-Party that designates information or items for protection under
8 this Order must take care to limit any such designation to specific material that
9 qualifies under the appropriate standards. The Designating Party must designate for

1875 CENTURY PARK EAST, SUITE 1600
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HOOPER, LUNDY & BOOKMAN, P.C.

10 protection only those parts of material, documents, items, or oral or written
11 communications that qualify so that other portions of the material, documents,
12 items, or communications for which protection is not warranted are not swept
13 unjustifiably within the ambit of this Order.
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Mass, indiscriminate, or routinized designations are prohibited. Designations

15 that are shown to be clearly unjustified or that have been made for an improper
16 purpose (e.g., to unnecessarily encumber the case development process or to impose
17 unnecessary expenses and burdens on other parties) may expose the Designating
18 Party to sanctions.
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If it comes to a Designating Party’s attention that information or items that it

20 designated for protection do not qualify for protection, that Designating Party must
21 promptly notify all other Parties that it is withdrawing the inapplicable designation.
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5.2

Manner and Timing of Designations. Except as otherwise provided in

23 this Order (see, e.g., second paragraph of section 5.2(a) below), or as otherwise
24 stipulated or ordered, Disclosure or Discovery Material that qualifies for protection
25 under this Order must be clearly so designated before the material is disclosed or
26 produced.
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1

Designation in conformity with this Order requires:

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(a)

for information in documentary form (e.g., paper or electronic

3 documents, but excluding transcripts of depositions or other pretrial or trial
4 proceedings), that the Producing Party affix at a minimum, the legend
5 “CONFIDENTIAL” (hereinafter “CONFIDENTIAL legend”), to each page that
6 contains protected material. If only a portion or portions of the material on a page
7 qualifies for protection, the Producing Party also must clearly identify the protected
8 portion(s) (e.g., by making appropriate markings in the margins).
9

A Party or Non-Party that makes original documents available for inspection

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HOOPER, LUNDY & BOOKMAN, P.C.

10 need not designate them for protection until after the inspecting Party has indicated
11 which documents it would like copied and produced. During the inspection and
12 before the designation, all of the material made available for inspection shall be
13 deemed “CONFIDENTIAL.” After the inspecting Party has identified the
14 documents it wants copied and produced, the Producing Party must determine which
15 documents, or portions thereof, qualify for protection under this Order. Then,
16 before producing the specified documents, the Producing Party must affix the
17 “CONFIDENTIAL legend” to each page that contains Protected Material. If only a
18 portion or portions of the material on a page qualifies for protection, the Producing
19 Party also must clearly identify the protected portion(s) (e.g., by making appropriate
20 markings in the margins).
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(b)

for testimony given in depositions that the Designating Party identify

22 the Disclosure or Discovery Material on the record, before the close of the
23 deposition all protected testimony.
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(c)

for information produced in some form other than documentary and for

25 any other tangible items, that the Producing Party affix in a prominent place on the
26 exterior of the container or containers in which the information is stored the legend
27 “CONFIDENTIAL.” If only a portion or portions of the information warrants
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1 protection, the Producing Party, to the extent practicable, shall identify the protected
2 portion(s).
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5.3

Inadvertent Failures to Designate. If timely corrected, an inadvertent

4 failure to designate qualified information or items does not, standing alone, waive
5 the Designating Party’s right to secure protection under this Order for such material.
6 Upon timely correction of a designation, the Receiving Party must make reasonable
7 efforts to assure that the material is treated in accordance with the provisions of this
8 Order.
9 6.

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HOOPER, LUNDY & BOOKMAN, P.C.

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CHALLENGING CONFIDENTIALITY DESIGNATIONS
6.1

Timing of Challenges. Any Party or Non-Party may challenge a

11 designation of confidentiality at any time that is consistent with the Court’s
12 Scheduling Order.
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6.2

Meet and Confer. The Challenging Party shall initiate the dispute

14 resolution process under Local Rule 37.1 et seq.
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6.3

The burden of persuasion in any such challenge proceeding shall be on

16 the Designating Party. Frivolous challenges, and those made for an improper
17 purpose (e.g., to harass or impose unnecessary expenses and burdens on other
18 parties) may expose the Challenging Party to sanctions. Unless the Designating
19 Party has waived or withdrawn the confidentiality designation, all parties shall
20 continue to afford the material in question the level of protection to which it is
21 entitled under the Producing Party’s designation until the Court rules on the
22 challenge.
23 7.

ACCESS TO AND USE OF PROTECTED MATERIAL

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7.1

Basic Principles. A Receiving Party may use Protected Material that is

25 disclosed or produced by another Party or by a Non-Party in connection with this
26 Action only for prosecuting, defending, or attempting to settle this Action. Such
27 Protected Material may be disclosed only to the categories of persons and under the
28 conditions described in this Order. When the Action has been terminated, a
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1 Receiving Party must comply with the provisions of section 13 below (FINAL
2 DISPOSITION).
3

Protected Material must be stored and maintained by a Receiving Party at a

4 location and in a secure manner that ensures that access is limited to the persons
5 authorized under this Order.
6

7.2

Disclosure of “CONFIDENTIAL” Information or Items. Unless

7 otherwise ordered by the court or permitted in writing by the Designating Party, a
8 Receiving Party may disclose any information or item designated
9 “CONFIDENTIAL” only to:

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HOOPER, LUNDY & BOOKMAN, P.C.

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(a)

the Receiving Party’s Outside Counsel of Record in this Action, as well

11 as employees of said Outside Counsel of Record to whom it is reasonably necessary
12 to disclose the information for this Action;
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(b)

the officers, directors, and employees (including House Counsel) of the

14 Receiving Party to whom disclosure is reasonably necessary for this Action;
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(c)

Experts (as defined in this Order) of the Receiving Party to whom

16 disclosure is reasonably necessary for this Action and who have signed the
17 “Acknowledgment and Agreement to Be Bound” (Exhibit A);
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(d)

the court and its personnel;

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(e)

court reporters and their staff;

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(f)

professional jury or trial consultants, mock jurors, and Professional

21 Vendors to whom disclosure is reasonably necessary for this Action and who have
22 signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A);
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(g)

the author or recipient of a document containing the information or a

24 custodian or other person who otherwise possessed or knew the information;
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(h)

during their depositions, witnesses, and attorneys for witnesses, in the

26 Action to whom disclosure is reasonably necessary provided: (1) the deposing party
27 requests that the witness sign the form attached as Exhibit 1 hereto; and (2) they will
28 not be permitted to keep any confidential information unless they sign the
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1 “Acknowledgment and Agreement to Be Bound” (Exhibit A), unless otherwise
2 agreed by the Designating Party or ordered by the court. Pages of transcribed
3 deposition testimony or exhibits to depositions that reveal Protected Material may
4 be separately bound by the court reporter and may not be disclosed to anyone except
5 as permitted under this Stipulated Protective Order; and
6

(i)

any mediator or settlement officer, and their supporting personnel,

7 mutually agreed upon by any of the parties engaged in settlement discussions.
8 8.

PROTECTED MATERIAL SUBPOENAED OR ORDERED

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PRODUCED IN OTHER LITIGATION

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10

If a Party is served with a subpoena or a court order issued in other litigation

11 that compels disclosure of any information or items designated in this Action as
12 “CONFIDENTIAL,” that Party must:
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(a)

promptly notify in writing the Designating Party. Such notification

14 shall include a copy of the subpoena or court order;
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(b)

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

16 to issue in the other litigation that some or all of the material covered by the
17 subpoena or order is subject to this Protective Order. Such notification shall include
18 a copy of this Stipulated Protective Order; and
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(c)

cooperate with respect to all reasonable procedures sought to be

20 pursued by the Designating Party whose Protected Material may be affected.
21

If the Designating Party timely seeks a protective order, the Party served with

22 the subpoena or court order shall not produce any information designated in this
23 action as “CONFIDENTIAL” before a determination by the court from which the
24 subpoena or order issued, unless the Party has obtained the Designating Party’s
25 permission. The Designating Party shall bear the burden and expense of seeking
26 protection in that court of its confidential material and nothing in these provisions
27 should be construed as authorizing or encouraging a Receiving Party in this Action
28 to disobey a lawful directive from another court.
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1 9.

A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE

2

PRODUCED IN THIS LITIGATION

3

(a)

The terms of this Order are applicable to information produced by a

4 Non-Party in this Action and designated as “CONFIDENTIAL.” Such information
5 produced by Non-Parties in connection with this litigation is protected by the
6 remedies and relief provided by this Order. Nothing in these provisions should be
7 construed as prohibiting a Non-Party from seeking additional protections.
8

(b)

In the event that a Party is required, by a valid discovery request, to

9 produce a Non-Party’s confidential information in its possession, and the Party is

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10 subject to an agreement with the Non-Party not to produce the Non-Party’s
11 confidential information, then the Party shall:
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(1)

promptly notify in writing the Requesting Party and the Non-Party that

13 some or all of the information requested is subject to a confidentiality agreement
14 with a Non-Party;
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(2)

promptly provide the Non-Party with a copy of the Stipulated

16 Protective Order in this Action, the relevant discovery request(s), and a reasonably
17 specific description of the information requested; and
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(3)

make the information requested available for inspection by the Non-

19 Party, if requested.
20

(c)

If the Non-Party fails to seek a protective order from this court within

21 14 days of receiving the notice and accompanying information, the Receiving Party
22 may produce the Non-Party’s confidential information responsive to the discovery
23 request. If the Non-Party timely seeks a protective order, the Receiving Party shall
24 not produce any information in its possession or control that is subject to the
25 confidentiality agreement with the Non-Party before a determination by the court.
26 Absent a court order to the contrary, the Non-Party shall bear the burden and
27 expense of seeking protection in this court of its Protected Material.
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1 10.

UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL

2

If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed

3 Protected Material to any person or in any circumstance not authorized under this
4 Stipulated Protective Order, the Receiving Party must immediately (a) notify in
5 writing the Designating Party of the unauthorized disclosures, (b) use its best efforts
6 to retrieve all unauthorized copies of the Protected Material, (c) inform the person or
7 persons to whom unauthorized disclosures were made of all the terms of this Order,
8 and (d) request such person or persons to execute the “Acknowledgment and
9 Agreement to Be Bound” that is attached hereto as Exhibit A.

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10 11.

INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE

11

PROTECTED MATERIAL

12

When a Producing Party gives notice to Receiving Parties that certain

13 inadvertently produced material is subject to a claim of privilege or other protection,
14 the obligations of the Receiving Parties are those set forth in Federal Rule of Civil
15 Procedure 26(b)(5)(B). This provision is not intended to modify whatever
16 procedure may be established in an e-discovery order that provides for production
17 without prior privilege review. Pursuant to Federal Rule of Evidence 502(d) and
18 (e), insofar as the parties reach an agreement on the effect of disclosure of a
19 communication or information covered by the attorney-client privilege or work
20 product protection, the parties may incorporate their agreement in the stipulated
21 protective order submitted to the court.
22 12.

MISCELLANEOUS

23

12.1 Right to Further Relief. Nothing in this Order abridges the right of any

24 person to seek its modification by the Court in the future.
25

12.2 Right to Assert Other Objections. By stipulating to the entry of this

26 Protective Order no Party waives any right it otherwise would have to object to
27 disclosing or producing any information or item on any ground not addressed in this
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1 Stipulated Protective Order. Similarly, no Party waives any right to object on any
2 ground to use in evidence of any of the material covered by this Protective Order.
3

12.3 Filing Protected Material. A Party that seeks to file under seal any

4 Protected Material must comply with Civil Local Rule 79-5. Protected Material
5 may only be filed under seal pursuant to a court order authorizing the sealing of the
6 specific Protected Material at issue. If a Party's request to file Protected Material
7 under seal is denied by the court, then the Receiving Party may file the information
8 in the public record unless otherwise instructed by the court.
9 13.

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10

FINAL DISPOSITION
After the final disposition of this Action, as defined in paragraph 4, within 60

11 days of a written request by the Designating Party, each Receiving Party must return
12 all Protected Material to the Producing Party or destroy such material. As used in
13 this subdivision, “all Protected Material” includes all copies, abstracts, compilations,
14 summaries, and any other format reproducing or capturing any of the Protected
15 Material. Whether the Protected Material is returned or destroyed, the Receiving
16 Party must submit a written certification to the Producing Party (and, if not the same
17 person or entity, to the Designating Party) by the 60 day deadline that (1) identifies
18 (by category, where appropriate) all the Protected Material that was returned or
19 destroyed and (2)affirms that the Receiving Party has not retained any copies,
20 abstracts, compilations, summaries or any other format reproducing or capturing any
21 of the Protected Material. Notwithstanding this provision, Counsel are entitled to
22 retain an archival copy of all pleadings, motion papers, trial, deposition, and hearing
23 transcripts, legal memoranda, correspondence, deposition and trial exhibits, expert
24 reports, attorney work product, and consultant and expert work product, even if such
25 materials contain Protected Material. Any such archival copies that contain or
26 constitute Protected Material remain subject to this Protective Order as set forth in
27 Section 4 (DURATION).
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1 14.

Any violation of this Order may be punished by any and all appropriate

2 measures including, without limitation, contempt proceedings and/or monetary
3 sanctions.
4

IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD.

5
6 Dated: December 21, 2016

HOOPER, LUNDY & BOOKMAN, P.C.

7
8
By:

/s/ Bridget A. Gordon
BRIDGET A. GORDON
Attorneys for Soma Surgery Center, Inc.

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Dated: December 20, 2016

KENNADAY LEAVITT OWENSBY P.C.

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15

By:

/s/ Curtis S. Leavitt
CURTIS S. LEAVITT
Attorneys for Aetna Life Insurance Co.

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FOR GOOD CAUSE SHOWN, IT IS SO ORDERED.

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DATED: December 21, 2016

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HONORABLE ALKA SAGAR
United States Magistrate Judge

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1
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3

EXHIBIT A
ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND

4 I,________________________________ [print or type full name], of
5 ____________________________ [print or type full address], declare under penalty
6 of perjury that I have read in its entirety and understand the Stipulated Protective
7 Order that was issued by the United States District Court for the Central District of
8 California on _____________ [date] in the case of Soma Surgery Center, Inc. v.
9 Aetna Life Insurance Company, 2:16-cv-05802-DSF-AS. I agree to comply with

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10 and to be bound by all the terms of this Stipulated Protective Order and I understand
11 and acknowledge that failure to so comply could expose me to sanctions and
12 punishment in the nature of contempt. I solemnly promise that I will not disclose in
13 any manner any information or item that is subject to this Stipulated Protective
14 Order to any person or entity except in strict compliance with the provisions of this
15 Order.
16 I further agree to submit to the jurisdiction of the United States District Court for the
17 Central District of California for the purpose of enforcing the terms of this
18 Stipulated Protective Order, even if such enforcement proceedings occur after
19 termination of this action. I hereby appoint _____________________________
20 [print or type full name] of ____________________________ [print or type full
21 address and telephone number] as my California agent for service of process in
22 connection with this action or any proceedings related to enforcement of this
23 Stipulated Protective Order.
24 Date:___________________________________
25 City and State where sworn and signed: ______________________________
26 Printed name: ______________________
27 Signature: _________________________
28
15
79300.902 1220522.1

STIPULATED PROTECTIVE ORDER

16-CV-05802-DSF (ASX)