Prime Healthcare Services, Inc. et al v. Humana Insurance Company, et al

Filing 62

PROTECTIVE ORDER GOVERNING THE PRODUCTION AND THE EXCHANGE OF CONFIDENTIAL INFORMATION by Magistrate Judge John E. McDermott re Stipulation for Protective Order 61 . (san)

1
2
3
4
5
6
7
8
9
10
11

CROWELL & MORING LLP
Jennifer S. Romano (CSB No. 195953)
[e-mail]
515 South Flower St., 40th Floor
Los Angeles, CA 90071
Telephone: [phone]
Facsimile: 213-622-2690
CROWELL & MORING LLP
Daniel M. Glassman (CSB No. 179302)
[e-mail]
Samrah R. Mahmoud (CSB No. 285168)
[e-mail]
3 Park Plaza, 20th Floor
Irvine, CA 92614-8505
Telephone: [phone]
Facsimile: 949-263-8414
Attorneys for Defendant
HUMANA INSURANCE COMPANY

12

UNITED STATES DISTRICT COURT

13

CENTRAL DISTRICT OF CALIFORNIA

14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

PRIME HEALTHCARE SERVICES,
INC., a Delaware corporation;
ALVARADO HOSPITAL LLC, a
Delaware limited liability company dba
Alvarado Hospital Medical Center;
VERITAS HEALTH SERVICES, INC.,
a California corporation dba Chino
Valley Medical Center; DESERT
VALLEY HOSPITAL, INC., a
California corporation dba Desert Valley
Hospital; PRIME HEALTHCARE
SERVICES –GARDEN GROVE, LLC, a
Delaware limited liability company dba
Garden Grove Hospital & Medical
Center; PRIME HEALTHCARE
HUNTINGTON BEACH, LLC, a
Delaware limited liability company dba
Huntington Beach Hospital; PRIME
HEALTHCARE LA PALMA, LLC, a
Delaware limited liability company dba
La Palma Intercommunity Hospital;
PRIME HEALTHCARE SERVICES –
MONTCLAIR, LLC, a Delaware limited
liability company dba Montclair Hospital
Medical Center; PRIME HEALTHCARE
PARADISE; VALLEY, LLC, a

C ROWELL
& M ORING LLP

Case No. 5:16-cv-01097-BRO-JEM
PROTECTIVE ORDER
GOVERNING THE
PRODUCTION AND EXCHANGE
OF CONFIDENTIAL
INFORMATION
Hon. Beverly Reid O’Connell
Courtroom 7C (1st Street)

PROTECTIVE ORDER;
CASE NO. 5:16-CV-01097-BRO-JEM

ATTORNEYS AT LAW

LAACTIVE-602734268-1

1

19

Delaware limited liability company dba
Paradise Valley
Hospital; PRIME HEALTHCARE
SERVICES – SAN DIMAS, LLC, a
Delaware limited liability company dba
San Dimas Community Hospital; PRIME
HEALTHCARE SERVICES –SHASTA,
LLC, a Delaware limited
liability company dba Shasta Regional
Medical Center; PRIME HEALTHCARE
SERVICES – SHERMAN OAKS, LLC,
a Delaware limited liability company dba
Sherman Oaks Hospital; PRIME
HEALTHCARE ANAHEIM, LLC, a
Delaware limited liability company dba
West Anaheim Medical Center; PRIME
HEALTHCARE SERVICES – NORTH
VISTA, LLC, a Delaware limited
liability company dba North Vista
Hospital; PRIME
HEALTHCARE SERVICES – ST.
MARY’S PASSAIC, LLC, a Delaware
limited liability company dba St. Mary’s
General Hospital; PRIME
HEALTHCARE SERVICES – RENO,
LLC, a Delaware limited liability
company dba Saint Mary’s Regional
Medical Center; PRIME
HEALTHCARE SERVICES –
GARDEN CITY, LLC, a Delaware
limited liability company dba Garden
City Hospital; PRIME HEALTHCARE
SERVICES – PAMPA, LLC, a Delaware
limited liability company dba Pampa
Regional Medical Center PRIME
HEALTHCARE FOUNDATION, INC.,
a Delaware corporation;

20

Plaintiffs,

2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18

21
22
23

v.
HUMANA INSURANCE COMPANY, a
Wisconsin corporation; and DOES 1 50, inclusive,

24

Defendants.

25
26
27
28
C ROWELL
& M ORING LLP

PROTECTIVE ORDER;
CASE NO. 5:16-CV-01097-BRO-JEM

ATTORNEYS AT LAW

LAACTIVE-602734268-1

1

Plaintiffs Prime Healthcare Services, Inc., et al. (“Plaintiffs”) and Defendant

2

Humana Insurance Company (“Humana”) anticipate that documents, testimony, or

3

information containing or reflecting confidential, proprietary, trade secret, and/or

4

commercially sensitive information are likely to be disclosed or produced during

5

the course of discovery, initial disclosures, and supplemental disclosures in this

6

case and request that the Court enter this Order setting forth the conditions for

7

treating, obtaining, and using such information.

8

1.

9

PURPOSES AND LIMITATIONS
a.

All Protected Material (as defined below) shall be used solely

10

for the above-captioned case and any related appellate proceedings, and not for any

11

other purpose whatsoever, including without limitation any other litigation or any

12

business or competitive purpose or function. Protected Material shall not be

13

distributed, disclosed, or made available to anyone except as expressly provided in

14

this Order.

15

b.

The Parties acknowledge that this Order does not confer blanket

16

protections on all disclosures during discovery, or in the course of making initial or

17

supplemental disclosures under Rule 26(a). Designations under this Order shall be

18

made with care and shall not be made absent a good faith belief that the designated

19

material satisfies the criteria set forth below. If it comes to a Producing Party’s

20

attention that designated material does not qualify for protection at all, or does not

21

qualify for the level of protection initially asserted, the Producing Party must

22

promptly withdraw or change the designation as appropriate and notify all

23

Receiving Parties of such withdrawal or change.

24
25

2.

DEFINITIONS
a.

“Discovery Material” means all items or information, including

26

from any non-party, regardless of the medium or manner generated, stored, or

27

maintained (including, among other things, testimony, transcripts, or tangible

28
C ROWELL
& M ORING LLP

-1-

ATTORNEYS AT LAW

LAACTIVE-602734268-1

PROTECTIVE ORDER;
CASE NO. 5:16-CV-01097-BRO-JEM

1

things) that are produced, disclosed, or generated in connection with discovery,

2

Rule 26(a) disclosures or trial subpoenas in this case.

3

b.

“Protected Material” means any Discovery Material that is

4

designated as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL” or

5

“ATTORNEY’S EYES ONLY” as provided for in this Order. Protected Material

6

shall not include: (i) materials that have been disseminated to the public or

7

otherwise communicated to a third party without restriction; (ii) materials that the

8

parties agree should not be designated Protected Materials; (iii) materials that the

9

parties agree, or the Court rules, are already public knowledge; (iv) materials that

10

the parties agree, or the Court rules, have become public knowledge other than as a

11

result of disclosure by the Receiving Party, its employees, or its agents in violation

12

of this Order; or (v) materials that have come or will come into the Receiving

13

Party’s legitimate knowledge independently of the production by the designating

14

party. Prior legitimate knowledge must be established by pre-production

15

documentation.

16
17

c.

“Party” means any party to this case, including all of its officers,

directors, employees, consultants, retained experts, and their support staffs.

18

d.

“Producing Party” means any Party or non-party that discloses

19

or produces any Discovery Material in this case. A non-party producing

20

information or material voluntarily or pursuant to a subpoena or a court order may

21

designate such material or information as Protected Material pursuant to the terms

22

of this Order. A non-party’s use of this Order to protect its Protected Material does

23

not entitle that non-party access to the Protected Material produced by any Party in

24

this case.

25
26
27
28

e.

“Receiving Party” means any Party who receives Discovery

Material from a Producing Party.
f.

“Outside Counsel” means (i) outside counsel who appear on the

pleadings as counsel for a Party (ii) partners, associates, of counsel attorneys, and

C ROWELL
& M ORING LLP

-2-

ATTORNEYS AT LAW

LAACTIVE-602734268-1

PROTECTIVE ORDER;
CASE NO. 5:16-CV-01097-BRO-JEM

D

1

staff of such counsel to whom it is reasonably necessary to disclose the information

2

for this litigation, and (iii) counsel for any insurance carrier of a Party that has a

3

duty to defend even if under a reservation of rights.

4

3.

5

The computation of any period of time prescribed or allowed by this Order

COMPUTATION OF TIME

6

shall be governed by the provisions for computing time set forth in Federal Rules of

7

Civil Procedure 6.

8

4.

9

SCOPE
a.

The protections conferred by this Order cover not only

10

Discovery Material governed by this Order as addressed herein, but also any

11

information copied or extracted therefrom, as well as all copies, excerpts,

12

summaries, or compilations thereof, plus testimony, conversations, or presentations

13

by Parties or their counsel in court or in other settings that might reveal Protected

14

Material.

15

b.

Nothing in this Protective Order shall prevent or restrict a

16

Producing Party’s own disclosure or use of its own Protected Material for any

17

purpose.

18

c.

Nothing in this Order shall preclude any Receiving Party from

19

showing Protected Material to an individual who either prepared the Protected

20

Material or has prior personal knowledge of the Protected Material as demonstrated

21

from the contents of the Protected Material or agreed by the Parties.

22

d.

Nothing in this Order shall restrict in any way the use or

23

disclosure of Discovery Material by a Receiving Party: (i) that is or has become

24

disseminated to the public through no fault of the Receiving Party and without

25

violation of this Order or other obligation to maintain confidentiality; (ii) that

26

written records demonstrate was lawfully acquired by or previously known to the

27

Receiving Party independent of the Producing Party; (iii) previously produced,

28

disclosed and/or provided by the Producing Party to the Receiving Party or a non-

C ROWELL
& M ORING LLP

-3-

ATTORNEYS AT LAW

LAACTIVE-602734268-1

PROTECTIVE ORDER;
CASE NO. 5:16-CV-01097-BRO-JEM

D

1

party without an obligation of confidentiality and not by inadvertence or mistake;

2

(iv) with the consent of the Producing Party; or (v) pursuant to order of the Court.

3

e.

This Order is without prejudice to the right of any Party to seek

4

further or additional protection of any Discovery Material or to modify this Order in

5

any way, including, without limitation, an order that certain matter not be produced

6

at all.

7

5.

8

Even after Final Disposition of this case, the confidentiality obligations

9

DURATION

imposed by this Order shall remain in effect until a Producing Party agrees

10

otherwise in writing or a court order otherwise directs. “Final Disposition” shall be

11

deemed to be the later of (1) dismissal of all claims and defenses in this action, with

12

or without prejudice; or (2) final judgment herein after the completion and

13

exhaustion of all appeals, rehearings, remands, trials, or reviews of this action,

14

including the time limits for filing any motions or applications for extension of time

15

pursuant to applicable law.

16
17

6.

DESIGNATING PROTECTED MATERIAL
a.

Available Designations. Any Producing Party may designate

18

Discovery Material with any of the following designations, provided that the

19

Discovery Material meets the requirements for such designations as provided for

20

herein: “CONFIDENTIAL,” “HIGHLY CONFIDENTIAL,” or “ATTORNEY’S

21

EYES ONLY.”

22

b.

Written Discovery and Documents and Tangible Things.

23

Written discovery, documents (which include “electronically stored information,”

24

as that phrase is used in Federal Rule of Procedure 34), and tangible things that

25

meet the requirements for the confidentiality designations listed in Paragraph 6(a)

26

may be so designated by placing the appropriate designation on every page of the

27

written material prior to production. For digital files being produced, the Producing

28

Party may mark each viewable page or image with the appropriate designation, and

C ROWELL
& M ORING LLP

-4-

ATTORNEYS AT LAW

LAACTIVE-602734268-1

PROTECTIVE ORDER;
CASE NO. 5:16-CV-01097-BRO-JEM

D

1

mark the medium, container, and/or communication in which the digital files were

2

contained. In the event that original documents are produced for inspection, the

3

original documents shall be presumed ATTORNEYS’ EYES ONLY during the

4

inspection and re-designated as appropriate during the copying process.

5

c.

Native Files. Where electronic files and documents are

6

produced in native electronic format, such electronic files and documents shall be

7

designated for protection under this Order by appending to the file names or

8

designators information indicating whether the file contains CONFIDENTIAL,

9

HIGHLY CONFIDENTIAL, or ATTORNEY’S EYES ONLY material, or shall use

10

any other reasonable method for so designating Protected Materials produced in

11

electronic format. When electronic files or documents are printed for use at

12

deposition, in a court proceeding, or for provision in printed form to an expert or

13

consultant, the party printing the electronic files or documents shall affix a legend

14

to the printed document corresponding to the designation of the Designating Party

15

and including the production number and designation associated with the native

16

file.

17

d.

18

Depositions and Testimony.
i.

Except as may be otherwise ordered by the Court, any

19

person may be examined as a witness at depositions and trial and may testify

20

concerning all Protected Material of which such person has prior knowledge, e.g.,

21

was the author or contributed to the authorship of the Protected Material or a person

22

who has seen or viewed or examined the Protected Material in the regular course of

23

his or her business. Without in any way limiting the generality of the foregoing: a

24

present director, officer, and/or employee of a Producing Party or a Rule 30(b)(6)

25

witness of the Producing Party may be examined and may testify concerning all

26

Protected Material which has been produced by the Producing Party; a former

27

director, officer, agent and/or employee of a Producing Party may be interviewed,

28

examined and may testify concerning all Protected Material of which he or she has

C ROWELL
& M ORING LLP

-5-

ATTORNEYS AT LAW

LAACTIVE-602734268-1

PROTECTIVE ORDER;
CASE NO. 5:16-CV-01097-BRO-JEM

D

1

personal knowledge, including any Protected Material that refers to matters of

2

which the witness has personal knowledge, and which pertains to the period or

3

periods of his or her employment; and any person other than the witness, his or her

4

attorney(s), or any person qualified to receive Protected Material under this Order

5

shall be excluded from the portion of the examination concerning such information,

6

unless the Producing Party consents to persons other than qualified recipients being

7

present at the examination. If the witness is represented by an attorney who is not

8

qualified under this Order to receive such information, then prior to the

9

examination, the attorney must provide a signed statement, in the form of Exhibit A

10

hereto, that he or she will be subject to and comply with the terms of this Order and

11

maintain the confidentiality of Protected Material disclosed during the course of the

12

examination. In the event that such attorney declines to sign such a statement prior

13

to the examination, the Parties, by their attorneys, shall jointly seek a protective

14

order from the Court prohibiting the attorney from disclosing Protected Material.

15

ii.

Parties or testifying persons or entities may designate

16

depositions and other testimony with the appropriate designation by indicating on

17

the record at the time the testimony is given or by sending written notice of which

18

portions of the transcript of the testimony is designated within thirty (30) days of

19

receipt of the final transcript of the testimony. Counsel shall exercise discretion in

20

designating a deposition, or portions of a deposition, under this Protective Order. If

21

no indication on the record is made, all information disclosed during a deposition

22

shall be deemed ATTORNEYS’ EYES ONLY until the time within which it may

23

be appropriately designated as provided for herein has passed. Notwithstanding

24

this provision, any Party that wishes to disclose the transcript, or information

25

contained therein, prior to the expiration of the thirty (30) day period following

26

receipt of the final transcript, may provide written notice of its intent to treat the

27

transcript as non-confidential, after which time, any Party that wants to maintain

28

any portion of the transcript as confidential must designate the confidential portions

C ROWELL
& M ORING LLP

-6-

ATTORNEYS AT LAW

LAACTIVE-602734268-1

PROTECTIVE ORDER;
CASE NO. 5:16-CV-01097-BRO-JEM

D

1

within fourteen (14) days, or else the transcript may be treated as non-confidential.

2

Any Protected Material that is used in the taking of a deposition shall remain

3

subject to the provisions of this Protective Order, along with the transcript pages of

4

the deposition testimony dealing with such Protected Material. In such cases the

5

court reporter shall be informed of this Protective Order and shall be required to

6

operate in a manner consistent with this Protective Order. In the event the

7

deposition is videotaped, the original and all copies of the videotape shall be

8

marked by the video technician to indicate that the contents of the videotape are

9

subject to this Protective Order, substantially along the lines of “This videotape

10

contains confidential testimony used in this case and is not to be viewed or the

11

contents thereof to be displayed or revealed except pursuant to the terms of the

12

operative Protective Order in this matter or pursuant to written stipulation of the

13

parties.” Counsel for any Producing Party shall have the right to exclude from oral

14

depositions any person who is not authorized by this Protective Order to receive or

15

access Protected Material based on the designation of such Protected Material. This

16

right of exclusion does not include the deponent, deponent’s counsel, the reporter or

17

videographer (if any). Such right of exclusion shall be applicable only during

18

periods of examination or testimony regarding such Protected Material.

19
20

7.

DISCOVERY MATERIAL DESIGNATED AS CONFIDENTIAL
a.

A Producing Party may designate Discovery Material as

21

“CONFIDENTIAL” if it contains or reflects confidential, proprietary,

22

commercially sensitive information, and/or protected health information under the

23

Health Insurance Portability and Accountability Act of 1996 (“HIPPA”) as defined

24

at 45 C.F.R. 160.103.

25
26

b.

Unless otherwise ordered by the Court, Discovery Material

designated as “CONFIDENTIAL” may be disclosed only to the following:

27
28
C ROWELL
& M ORING LLP

-7-

ATTORNEYS AT LAW

LAACTIVE-602734268-1

PROTECTIVE ORDER;
CASE NO. 5:16-CV-01097-BRO-JEM

D

1

i.

The Receiving Party’s Outside Counsel, such counsel’s

2

immediate paralegals and staff, and any copying or clerical litigation support

3

services working at the direction of such counsel, paralegals, and staff;

4

ii.

Any individual who prepared or viewed the Discovery

5

Material in the regular course of his/her business, and/or who sent or received the

6

Discovery Material in the regular course of his/her business;

7

iii.

The Receiving Party’s in-house counsel, officers,

8

executives, or Trustees to whom disclosure is reasonably necessary for this case, as

9

well as their immediate paralegals and staff and any copying or clerical litigation

10

support services working at the direction of such counsel, paralegals, and staff.

11

Discovery Material designated as “CONFIDENTIAL” may only be provided to the

12

individuals described above provided that each such person has agreed to be bound

13

by the provisions of the Protective Order by signing a copy of Exhibit A.

14

iv.

Any outside expert or consultant retained by the

15

Receiving Party to assist in this action, provided that disclosure is only to the extent

16

necessary to perform such work; and provided that: (a) such expert or consultant

17

has agreed to be bound by the provisions of the Protective Order by signing a copy

18

of Exhibit A; and (b) such expert or consultant is not a current officer, director, or

19

employee of a Party or of a competitor of a Party, nor anticipated at the time of

20

retention to become an officer, director or employee of a Party or of a competitor of

21

a Party.

22

v.

23

to record testimony taken in this action;

24

vi.

The Court, jury, and court personnel;

25

vii.

Graphics, translation, design, and/or non-technical trial or

Court reporters, stenographers and videographers retained

26

jury consulting personnel (not including mock jurors), having first agreed to be

27

bound by the provisions of the Protective Order by signing a copy of Exhibit A;

28
C ROWELL
& M ORING LLP

-8-

ATTORNEYS AT LAW

LAACTIVE-602734268-1

PROTECTIVE ORDER;
CASE NO. 5:16-CV-01097-BRO-JEM

D

1

viii. Mock jurors who have signed an undertaking or

2

agreement agreeing not to publicly disclose Protected Material and to keep any

3

information concerning Protected Material confidential;

4

ix.

Any mediator who is assigned to hear this matter, and his

5

or her staff, subject to their agreement to maintain confidentiality to the same

6

degree as required by this Protective Order; and

7
8
9
10

x.

Any other person with the prior written consent of the

Producing Party.
8.

DISCOVERY MATERIAL DESIGNATED AS “HIGHLY

CONFIDENTIAL”

11

a.

A Producing Party may designate Discovery Material as

12

“HIGHLY CONFIDENTIAL” if it contains or reflects information that includes

13

patient information.

14

b.

Unless otherwise ordered by the Court, Discovery Material

15

designated as “HIGHLY CONFIDENTIAL” may be disclosed only to persons or

16

entities listed in paragraphs 7(b)(i-x).

17

9.

18

EYES ONLY”

19

DISCOVERY MATERIAL DESIGNATED AS “ATTORNEY’S

a.

A Producing Party may designate Discovery Material as

20

“ATTORNEY’S EYES ONLY” if it contains or reflects information that is

21

commercially confidential and/or sensitive in nature and the Producing Party

22

reasonably believes that the disclosure of such Discovery Material is likely to cause

23

economic harm or significant competitive disadvantage to the Producing Party that

24

could not be avoided by less restrictive means.

25

b.

Unless otherwise ordered by the Court, Discovery Material

26

designated as “ATTORNEY’S EYES ONLY” may be disclosed only to persons or

27

entities listed in paragraphs 7(b)(i-ii), (iv)-(x) and to in-house counsel with

28
C ROWELL
& M ORING LLP

-9-

ATTORNEYS AT LAW

LAACTIVE-602734268-1

PROTECTIVE ORDER;
CASE NO. 5:16-CV-01097-BRO-JEM

D

1

responsibility for managing and overseeing the litigation, as well as their immediate

2

paralegals and staff, to whom disclosure is reasonably necessary for this case.

3
4
5

10.

CHALLENGING DESIGNATIONS OF PROTECTED

MATERIAL
a.

A Party shall not be obligated to challenge the propriety of any

6

designation of Discovery Material under this Order at the time the designation is

7

made, and a failure to do so shall not preclude a subsequent challenge thereto.

8
9

b.

Any challenge to a designation of Discovery Material under this

Order shall be written, shall be served on outside counsel for the Producing Party,

10

shall particularly identify the documents or information that the Receiving Party

11

contends should be differently designated, and shall state the grounds for the

12

objection. Thereafter, further protection of such material shall be resolved in

13

accordance with the following procedures:

14

c.

The objecting Party shall have the burden of conferring either in

15

person or by telephone with the Producing Party claiming protection (as well as any

16

other interested party) in a good faith effort to resolve the dispute. The Producing

17

Party shall have the burden of justifying the disputed designation;

18

d.

Failing agreement, the Receiving Party may bring a motion to

19

the Court for a ruling that the Discovery Material in question is not entitled to the

20

status and protection of the Producing Party’s designation. The Parties’ entry into

21

this Order shall not preclude or prejudice either Party from arguing for or against

22

any designation, establish any presumption that a particular designation is valid, or

23

alter the burden of proof that would otherwise apply in a dispute over discovery or

24

disclosure of information;

25

e.

Notwithstanding any challenge to a designation, the Discovery

26

Material in question shall continue to be treated as designated under this Order until

27

one of the following occurs: (a) the Party who designated the Discovery Material

28
C ROWELL
& M ORING LLP

-10-

ATTORNEYS AT LAW

LAACTIVE-602734268-1

PROTECTIVE ORDER;
CASE NO. 5:16-CV-01097-BRO-JEM

D

1

in question withdraws such designation in writing; or (b) the Court rules that the

2

Discovery Material in question is not entitled to the designation.

3

11.

4

If at any time Protected Material is subpoenaed by any court, arbitral,

SUBPOENAS OR COURT ORDERS

5

administrative, or legislative body, the Party to whom the subpoena or other request

6

is directed shall immediately give prompt written notice thereof to every Party who

7

has produced such Discovery Material and to its counsel and shall provide each

8

such Party with an opportunity to move for a protective order regarding the

9

production of Protected Materials implicated by the subpoena. This Paragraph shall

10

not apply to search warrants, subpoenas or other compulsory process(es) issued by

11

any law enforcement agencies.

12

12.

13

Absent written permission from the Producing Party or a court Order secured

FILING PROTECTED MATERIAL UNDER SEAL

14

after appropriate notice to all interested persons, a Receiving Party may not file or

15

disclose in the public record any Protected Material. This Protective Order does not

16

entitle a Party to file Protected Material information under seal.

17

No document shall be filed under seal unless counsel secures a court order

18

allowing the filing of a document under seal. An application to file a document

19

under seal shall be served on opposing counsel, and on the person or entity that has

20

custody and control of the document, if different from opposing counsel. If the

21

application to file under seal a document designated as CONFIDENTIAL is being

22

made by the non-designating party, then, upon request, the designating party must

23

promptly provide the applicant with a legal basis for the confidential designation to

24

include within the application. If opposing counsel, or the person or entity that has

25

custody and control of the document, wishes to oppose the application, he/she must

26

contact the chambers of the judge who will rule on the application, to notify the

27

judge’s staff that an opposition to the application will be filed.

28
C ROWELL
& M ORING LLP

-11-

ATTORNEYS AT LAW

LAACTIVE-602734268-1

PROTECTIVE ORDER;
CASE NO. 5:16-CV-01097-BRO-JEM

D

1

13.

2

INADVERTENT DISCLOSURE OF PRIVILEGED MATERIAL
a.

The inadvertent production by a Party of Discovery Material

3

subject to the attorney-client privilege, work-product protection, or any other

4

applicable privilege or protection, despite the Producing Party’s reasonable efforts

5

to prescreen such Discovery Material prior to production, will not waive the

6

applicable privilege and/or protection if a request for return of such inadvertently

7

produced Discovery Material is made within a reasonable time after the Producing

8

Party learns of its inadvertent production.

9

b.

Upon a request from any Producing Party who has inadvertently

10

produced Discovery Material that it believes is privileged and/or protected, each

11

Receiving Party shall immediately return such Protected Material or Discovery

12

Material and all copies to the Producing Party. Any electronic copies and any

13

pages containing privileged markings by the Receiving Party shall be destroyed and

14

certified as such by the Receiving Party to the Producing Party.

15

c.

In the event a Producing Party recalls privileged information

16

under this Paragraph, the Producing Party shall, within seven days, provide the

17

Receiving Party with a description of the recalled privileged information in a

18

manner consistent with the requirements of Rule 26(b)(5)(B).

19

d.

Nothing in this Paragraph shall preclude a Receiving Party from

20

challenging the claim of privilege by a Producing Party, but the right to challenge

21

such a designation shall not in any way entitle the Receiving Party to delay in

22

returning the Discovery Material to the Producing Party.

23
24

14.

INADVERTENT FAILURE TO DESIGNATE PROPERLY
a.

The inadvertent failure by a Producing Party to designate

25

Discovery Material as Protected Material with one of the designations provided for

26

under this Order shall not waive any such designation provided that the Producing

27

Party notifies all Receiving Parties that such Discovery Material is protected under

28

one of the categories of this Order within a reasonable time of the Producing Party

C ROWELL
& M ORING LLP

-12-

ATTORNEYS AT LAW

LAACTIVE-602734268-1

PROTECTIVE ORDER;
CASE NO. 5:16-CV-01097-BRO-JEM

D

1

learning of the inadvertent failure to designate. The Producing Party shall

2

reproduce the Protected Material with the correct confidentiality designation within

3

seven (7) days of its notification to the Receiving Parties. Upon receiving the

4

Protected Material with the correct confidentiality designation, the Receiving

5

Parties shall return or securely destroy, at the Producing Party’s option, all

6

Discovery Material that was not designated properly.

7

b.

A Receiving Party shall not be in violation of this Order for any

8

use of such Discovery Material before the Receiving Party receives such notice that

9

such Discovery Material is protected under one of the categories of this Order,

10

unless an objectively reasonable person would have realized that the Discovery

11

Material should have been appropriately designated with a confidentiality

12

designation under this Order. Once a Receiving Party has received notification of

13

the correct confidentiality designation for the Protected Material with the correct

14

confidentiality designation, the Receiving Party shall treat such Discovery Material

15

at the appropriately designated level pursuant to the terms of this Order.

16
17

c.

Nothing herein shall impair a Receiving Party’s ability to

challenge a Producing Party’s designation as discussed in Paragraph 10.

18

15.

19

ORDER

20

INADVERTENT DISCLOSURE NOT AUTHORIZED BY

a.

In the event of a disclosure of any Protected Material pursuant to

21

this Order to any person or persons not authorized to receive such disclosure under

22

this Protective Order, the Party responsible for having made such disclosure, and

23

each Party with knowledge thereof, shall immediately notify counsel for the

24

Producing Party whose Protected Material has been disclosed and provide to such

25

counsel all known relevant information concerning the nature and circumstances of

26

the disclosure. The responsible disclosing Party shall also promptly take all

27

reasonable measures to retrieve the improperly disclosed Protected Material and to

28

ensure that no further or greater unauthorized disclosure and/or use thereof is made.

C ROWELL
& M ORING LLP

-13-

ATTORNEYS AT LAW

LAACTIVE-602734268-1

PROTECTIVE ORDER;
CASE NO. 5:16-CV-01097-BRO-JEM

D

1

b.

Unauthorized or inadvertent disclosure does not change the

2

status of Protected Material or waive the right to designate the disclosed document

3

or information as Protected.

4

c.

Nothing in this Paragraph 15 shall preclude the Producing Party

5

from pursuing its available remedies for the improper disclosure of Protected

6

Materials.

7

16.

8
9

FINAL DISPOSITION
a.

Not later than ninety (90) days after the Final Disposition of this

case, each Party shall return all Protected Material of a Producing Party to the

10

respective outside counsel of the Producing Party or destroy such Material, at the

11

option of the Producing Party. Any Producing Party that desires the return of

12

Protected Material lodged with the Court must file an ex parte motion for an order

13

authorizing the return of said Protected Material within the same time frame or else

14

the Party shall be deemed to having consented to the Court’s destruction thereof.

15

For purposes of this Order, “Final Disposition” occurs after an order, mandate, or

16

dismissal finally terminating the above-captioned action with prejudice, including

17

all appeals.

18

b.

All Parties that have received any such Protected Material shall

19

certify in writing that all such materials have been returned to the respective outside

20

counsel of the Producing Party or destroyed. Notwithstanding the provisions for

21

return of Protected Material, outside counsel may retain one set of pleadings, court

22

filings, written discovery responses, correspondence and attorney and consultant

23

work product (but not document productions) for archival purposes, but must not

24

retain any pleadings, court filings, written discovery responses, correspondence,

25

and consultant work product that contain HIGHLY CONFIDENTIAL or

26

ATTORNEYS’ EYES ONLY Discovery Material.

27
28
C ROWELL
& M ORING LLP

-14-

ATTORNEYS AT LAW

LAACTIVE-602734268-1

PROTECTIVE ORDER;
CASE NO. 5:16-CV-01097-BRO-JEM

D

1
2
3
4

17.

MISCELLANEOUS
a.

Notices. All notices required by this Protective Order are to be

served on the attorney(s) listed in the signature block below for each Party.
b.

Agreement to be Bound. Each of the Parties agrees to be

5

bound by the terms of this Protective Order as of the date counsel for such Party

6

executes this Protective Order, at which time the provisions of this Order shall

7

retroactively apply to any Protected Material obtained by that Party or its counsel

8

prior to execution, even if prior to entry of this Order by the Court.

9

c.

Privilege Logs. The Parties shall exchange their respective

10

privilege document logs at a time to be agreed upon by the Parties following the

11

production of documents.

12

d.

Right to Further Relief. Nothing in this Order abridges the

13

right of any person to seek its modification by the Court in the future. By

14

stipulating to this Order, the Parties do not waive the right to argue that certain

15

material may require additional or different confidentiality protections than those

16

set forth herein.

17

e.

Termination of Matter and Retention of Jurisdiction. The

18

Parties agree that the terms of this Protective Order shall survive and remain in

19

effect after the Final Disposition of the above-captioned matter. The Court shall

20

retain jurisdiction after Final Disposition of this matter to hear and resolve any

21

disputes arising out of this Protective Order.

22

f.

Successors. This Order shall be binding upon the Parties

23

hereto, their attorneys, and their successors, executors, personal representatives,

24

administrators, heirs, legal representatives, assigns, subsidiaries, divisions,

25

employees, agents, retained consultants and experts, and any persons or

26

organizations over which they have direct control.

27
28

g.

Right to Assert Other Objections. By stipulating to the entry

of this Protective Order, no Party waives any right it otherwise would have to

C ROWELL
& M ORING LLP

-15-

ATTORNEYS AT LAW

LAACTIVE-602734268-1

PROTECTIVE ORDER;
CASE NO. 5:16-CV-01097-BRO-JEM

D

1

object to disclosing or producing any information or item. Similarly, no Party

2

waives any right to object on any ground to use in evidence of any of the material

3

covered by this Protective Order. This Order shall not constitute a waiver of the

4

right of any Party to claim in this action or otherwise that any Discovery Material,

5

or any portion thereof, is privileged or otherwise non-discoverable, or is not

6

admissible in evidence in this action or any other proceeding.

7

h.

Burdens of Proof. Notwithstanding anything to the contrary

8

above, nothing in this Protective Order shall be construed to change the burdens of

9

proof or legal standards applicable in disputes regarding whether particular

10

Discovery Material is confidential, which level of confidentiality is appropriate,

11

whether disclosure should be restricted, and if so, what restrictions should apply.

12

i.

Modification by Court. This Order is subject to further court

13

order based upon public policy or other considerations, and the Court may modify

14

this Order sua sponte in the interests of justice. The United States District Court for

15

the Central District of California is responsible for the interpretation and

16

enforcement of this Order. All disputes concerning Protected Material, however

17

designated, produced under the protection of this Order shall be resolved by the

18

United States District Court for the Central District of California. In the event

19

anyone shall violate or threaten to violate material terms of this Protective Order,

20

the aggrieved Party may immediately apply to obtain injunctive relief against any

21

such person violating or threatening to violate any of the terms of this Protective

22

Order.

23

j.

Discovery Rules Remain Unchanged. Nothing herein shall

24

alter or change in any way the discovery provisions of the Federal Rules of Civil

25

Procedure, the Local Rules for the United States District Court for the Central

26

District of California, or the Court’s own orders. Identification of any individual

27

pursuant to this Protective Order does not make that individual available for

28

deposition or any other form of discovery outside of the restrictions and procedures

C ROWELL
& M ORING LLP

-16-

ATTORNEYS AT LAW

LAACTIVE-602734268-1

PROTECTIVE ORDER;
CASE NO. 5:16-CV-01097-BRO-JEM

D

1

of the Federal Rules of Civil Procedure, the Local Rules for the United States

2

District Court for the Central District of California, or the Court’s own orders.

3
4

18.

OTHER PROCEEDINGS
a.

By entering this order and limiting the disclosure of information

5

in this case, the Court does not intend to preclude another court from finding that

6

this information may be relevant and subject to disclosure in another case. Any

7

person or party subject to this order who becomes subject to a motion to disclose

8

another party’s information designated as confidential pursuant to this Order shall

9

promptly notify that party of the motion so that the party may have an opportunity

10

to appear and be heard on whether that information should be disclosed.

11

DATED: June 16, 2017

BUCHALTER

12
13

By

14
15

/s/ Damaris L. Medina
Damaris L. Medina
Attorneys for Plaintiffs Prime Healthcare
Services, Inc., et al.

16
17
18

DATED: June 16, 2017

CROWELL & MORING LLP

19
By

20
21
22
23

/s/ Daniel M. Glassman
Jennifer S. Romano
Daniel M. Glassman
Samrah R. Mahmoud
Attorneys for Defendant Humana Insurance
Company

24
25
26
27
28
C ROWELL
& M ORING LLP

-17-

ATTORNEYS AT LAW

LAACTIVE-602734268-1

PROTECTIVE ORDER;
CASE NO. 5:16-CV-01097-BRO-JEM

D

1

Pursuant to Rule 26(c) of the Federal Rules of Civil Procedure, the Court

2

finds good cause to enter this Agreed Protective Order Regarding the Disclosure

3

and Use of Discovery Materials (“Order” or “Protective Order”).

4
5

IT IS SO ORDERED.

6

DATED: June 15, 2017

/s/John E. McDermott

7

United States Magistrate Judge

8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
C ROWELL
& M ORING LLP

-18-

ATTORNEYS AT LAW

LAACTIVE-602734268-1

PROTECTIVE ORDER;
CASE NO. 5:16-CV-01097-BRO-JEM

D

1

EXHIBIT A

2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
C ROWELL
& M ORING LLP

-19-

ATTORNEYS AT LAW

LAACTIVE-602734268-1

PROTECTIVE ORDER;
CASE NO. 5:16-CV-01097-BRO-JEM

D

1
2
3
4
5
6
7
8
9
10
11
12

UNITED STATES DISTRICT COURT

13

CENTRAL DISTRICT OF CALIFORNIA

14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

PRIME HEALTHCARE SERVICES,
INC., a Delaware corporation;
ALVARADO HOSPITAL LLC, a
Delaware limited liability company
dba Alvarado Hospital Medical
Center; VERITAS HEALTH
SERVICES, INC., a California
corporation dba Chino Valley Medical
Center; DESERT VALLEY
HOSPITAL, INC., a California
corporation dba Desert Valley
Hospital; PRIME HEALTHCARE
SERVICES –GARDEN GROVE,
LLC, a Delaware limited liability
company dba Garden Grove Hospital
& Medical Center; PRIME
HEALTHCARE HUNTINGTON
BEACH, LLC, a Delaware limited
liability company dba Huntington
Beach Hospital; PRIME
HEALTHCARE LA PALMA, LLC, a
Delaware limited liability company
dba La Palma Intercommunity
Hospital; PRIME HEALTHCARE
SERVICES –MONTCLAIR, LLC, a
Delaware limited liability company

C ROWELL
& M ORING LLP

-20-

ATTORNEYS AT LAW

LAACTIVE-602734268-1

Case No. 5:16-cv-01097-BRO-JEM
Hon. Beverly Reid O’Connell
PROTECTIVE
ORDER GOVERNING THE
PRODUCTION AND EXCHANGE
OF CONFIDENTIAL
INFORMATION

PROTECTIVE ORDER;
CASE NO. 5:16-CV-01097-BRO-JEM

D

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22

dba Montclair Hospital Medical
Center; PRIME HEALTHCARE
PARADISE; VALLEY, LLC, a
Delaware limited liability company
dba Paradise Valley
Hospital; PRIME HEALTHCARE
SERVICES – SAN DIMAS, LLC, a
Delaware limited liability company
dba San Dimas Community Hospital;
PRIME HEALTHCARE SERVICES
–SHASTA, LLC, a Delaware limited
liability company dba Shasta Regional
Medical Center; PRIME
HEALTHCARE SERVICES –
SHERMAN OAKS, LLC, a Delaware
limited liability company dba
Sherman Oaks Hospital; PRIME
HEALTHCARE ANAHEIM, LLC, a
Delaware limited liability company
dba West Anaheim Medical Center;
PRIME HEALTHCARE SERVICES
– NORTH VISTA, LLC, a Delaware
limited liability company dba North
Vista Hospital; PRIME
HEALTHCARE SERVICES – ST.
MARY’S PASSAIC, LLC, a
Delaware limited liability company
dba St. Mary’s General Hospital;
PRIME HEALTHCARE SERVICES
– RENO, LLC, a Delaware limited
liability company dba Saint Mary’s
Regional Medical Center; PRIME
HEALTHCARE SERVICES –
GARDEN CITY, LLC, a Delaware
limited liability company dba Garden
City Hospital; PRIME
HEALTHCARE SERVICES –
PAMPA, LLC, a Delaware limited
liability company dba Pampa
Regional Medical Center PRIME
HEALTHCARE FOUNDATION,
INC., a Delaware corporation;
Plaintiffs,

23
24
25
26
27

v.
HUMANA INSURANCE
COMPANY, a Wisconsin
corporation; and DOES 1 - 50,
inclusive,
Defendants.

28
C ROWELL
& M ORING LLP

-21-

ATTORNEYS AT LAW

LAACTIVE-602734268-1

PROTECTIVE ORDER;
CASE NO. 5:16-CV-01097-BRO-JEM

D

1

I, ____________________________________, state that:

2

1.

My address is ________________________________________________.

3

2.

My present employer is ________________________________________.

4

3.

My present occupation or job description is ________________________.

5

4.

I have received a copy of the Stipulation and Protective Order for the

6

Production and Exchange of Confidential Information (the “Protective Order”)

7

entered in the above-entitled action on _______________________.

8

5.

I have carefully read and understand the provisions of the Protective Order.

9

6.

I will comply with all of the provisions of the Protective Order.

10

7.

I will hold in confidence, will not disclose to anyone not qualified under the

11

Protective Order, and will use only for purposes of this action, any Confidential

12

Information that is disclosed to me.

13

8.

14

possession, and documents or things that I have prepared relating thereto, to

15

counsel for the party by whom I am employed or retained, or to counsel from whom

16

I received the Confidential Information.

17

9.

18

enforcement of the Protective Order in this action.

19
20

Upon request, I will return all Confidential Information that comes into my

I hereby submit to the jurisdiction of this Court for the purpose of

I declare under penalty of perjury under the laws of the United States of
America that the foregoing is true and correct.

21
22
23

Dated: _________________________

_________________________________

24
25
26
27
28
C ROWELL
& M ORING LLP

-22-

ATTORNEYS AT LAW

LAACTIVE-602734268-1

PROTECTIVE ORDER;
CASE NO. 5:16-CV-01097-BRO-JEM

D

1

I, Daniel M. Glassman, am the ECF user whose ID and password are being

2

used to file this document. In compliance with General Order 45, section X.B., I

3

hereby attest that concurrence in the filing of the document has been obtained from

4

each of the other signatories.

5
By:

6

/s/ Daniel M. Glassman

Daniel M. Glassman

7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
C ROWELL
& M ORING LLP

-23-

ATTORNEYS AT LAW

LAACTIVE-602734268-1

PROTECTIVE ORDER;
CASE NO. 5:16-CV-01097-BRO-JEM

D