Kenneth Goss v. Zimmer Holdings, Inc. Health and Welfare Plan

Filing 26

STIPULATED PROTECTIVE ORDER by Magistrate Judge Sheri Pym [NOTE CHANGES MADE BY THE COURT IN VI, VII, VIII] (SEE ORDER FOR DETAILS). (kca)

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 UNITED STATES DISTRICT COURT 19 CENTRAL DISTRICT OF CALIFORNIA – EASTERN DIVISION 20 21 KENNETH GOSS, 22 23 24 25 26 CASE NO.: 5:16-cv-02475-AB-SP Plaintiff v. STIPULATED PROTECTIVE ORDER Judge: Hon. Andre Birotte Jr. ZIMMER HOLDINGS, INC. HEALTH AND WELFARE PLAN, Defendant. Complaint filed: 12/01/2016 [NOTE CHANGES MADE BY THE COURT IN ¶¶ VI, VII, VIII] 27 28 1 STIPULATED PROTECTIVE ORDER IT IS HEREBY STIPULATED by and between Plaintiff Kenneth Goss 1 2 (“Plaintiff”) and Defendant Zimmer Holdings, Inc. Health and Welfare Plan 3 (“Defendant”) through their respective attorneys of record, that certain documents 4 and information have been and may be sought, produced or exhibited by and 5 between the parties in this proceeding (the “Proceeding”). Some of these 6 documents relate to the parties’ and non-parties’ financial information, competitive 7 information, protected health information (“PHI”) (as defined in 45 C.F.R. 8 § 160.103) or other types of sensitive information which the party making the 9 production deems confidential (“Confidential Information”). To expedite the flow 10 of discovery material and to preserve the confidentiality of certain documents and 11 information, a Protective Order (“Protective Order”) may be entered by the Court 12 as follows: 13 I. 14 SCOPE A. This Order shall govern all documents, the information contained 15 therein, and all other information produced or disclosed during the Proceeding 16 whether revealed in a document, deposition, other testimony, discovery response or 17 otherwise, by any party, including any non-party, in this Proceeding (the 18 “Supplying Party”) to any other party, including any non-party, (the “Receiving 19 Party”), when the same is designated with the procedures set forth herein. This 20 Order is binding upon the parties to the Proceeding, as well as their respective 21 attorneys, agents, representatives, officers and employees and others as set forth in 22 this Order. This Order is also binding on and applies to all non-parties who either 23 produce or receive documents or information in connection with this Proceeding. 24 B. Under this Order, any Supplying Party shall have the right to identify 25 and designate as “Confidential” any document or other information it produces or 26 provides, or any testimony given in this Proceeding, which testimony or discovery 27 material is believed in good faith by that Supplying Party, and by the Supplying 28 Party’s counsel, to constitute, reflect or disclose trade secret or other confidential 2 STIPULATED PROTECTIVE ORDER 1 research, development, or commercial information, or personal health information, 2 contemplated under Rule 26(c) of the Federal Rules of Civil Procedure 3 (“Designated Material”). C. 4 “Confidential Information” as used herein means any Designated 5 Material that is designated pursuant to this Protective Order as “Confidential” by 6 the Supplying Party, whether it is a document, information contained in a 7 document, information revealed during a deposition or other testimony, 8 information revealed in an interrogatory answer or information otherwise revealed. D. 9 A party may designate as “Confidential” information in the possession 10 of and supplied by a non-party if the information was transmitted to the non-party 11 under an agreement or an obligation that it would remain confidential and the 12 information otherwise complies with Paragraph 1(c). E. 13 Subject to Paragraph 12(c), all documents and other materials 14 produced in this litigation shall be used only for purposes of this litigation whether 15 or not a Supplying Party designates such documents or materials as “Confidential.” F. 16 This protective order meets the requirements of a qualified protective 17 order as defined in 45 C.F.R. Part 164.512(e)(1)(v) and pursuant to California Civil 18 Code § 56 et seq. 19 II. 20 PROTECTED HEALTH INFORMATION. A. Protected Health Information. The current parties (and their 21 attorneys) and any future parties (and their attorneys) to the above-captioned 22 matter are hereby authorized to receive, subpoena, and transmit “protected health 23 information” (“PHI”) pertaining to the health care claims at issue in this litigation 24 to the extent and subject to the terms outlined herein, which shall be marked as 25 “CONFIDENTIAL.” 26 1. For the purposes of this Order, “PHI” shall have the same scope 27 and definition as set forth in 45 C.F.R. § 160.103. Without limiting the 28 generality of the foregoing, “PHI” includes, but is not limited to health 3 STIPULATED PROTECTIVE ORDER 1 information including demographic information relating to (i) the past, 2 present, or future physical or mental condition of an individual, (ii) the 3 provision of care to an individual, or (iii) the past, present, or future payment 4 for health care services provided to an individual which identifies the 5 individual or which reasonably could be expected to identify the individual 6 involved in a health insurance claim at issue in this litigation. 2. 7 All “covered entities” (as defined by 45 C.F.R. § 160.103) are 8 hereby authorized to disclose PHI pertaining to the claims at issue in this 9 litigation to all attorneys now of record in this matter or who may become of record in the future of this litigation. 10 3. 11 The parties and their attorneys shall be permitted to use the PHI 12 pertaining to the claims at issue in this litigation in any manner that is 13 reasonably connected with the above-captioned litigation. This includes but 14 is not limited to, disclosures to the parties, their attorneys of record, the 15 attorneys’ firm (i.e., attorneys, support staff, agents, and consultants), the 16 parties’ insurers, experts, consultants, court personnel, court reporters, copy 17 services, trial consultants, jurors, venire members, and other entities 18 involved in the litigation process. 4. 19 This Order shall not control or limit the use of PHI pertaining to 20 the claims at issue in this litigation that comes into the possession of any 21 party or any party’s attorney from a source other than a “covered entity” (as 22 that term is defined in 45 C.F.R. § 160.103). 5. 23 Nothing in this Order authorizes any party to obtain medical 24 records or information through means other than formal discovery requests, 25 subpoena, or deposition. 26 27 28 III. DESIGNATION OF CONFIDENTIALITY Documents or information may be designated CONFIDENTIAL within the meaning of this Order in the following ways: 4 STIPULATED PROTECTIVE ORDER 1 A. Specific documents produced by a Supplying Party shall, if 2 appropriate, be designated as “Confidential” by marking the first page of the 3 document and each subsequent page thereof containing Confidential Information 4 with the legend: “CONFIDENTIAL.” 5 B. In the case of interrogatory answers and responses to requests for 6 admissions, if appropriate, designation of Confidential Information shall be made 7 by means of a statement in the answers or responses specifying that the answers or 8 responses or specific parts thereof are designated “CONFIDENTIAL.” The 9 following legend shall be placed on each page of interrogatory answers or 10 responses to requests for admission containing Confidential Information: 11 “CONTAINS CONFIDENTIAL INFORMATION.” 12 C. In the case of depositions and the information contained in depositions 13 (including exhibits), designation of the portions of the transcript (including 14 exhibits) which contain Confidential Information shall be made by a statement to 15 such effect on the record in the course of the deposition by counsel for the party or 16 witness producing such information, or by letter from such counsel within thirty 17 (30) days of receipt of the deposition transcript or copy thereof (or written 18 notification that the transcript is available). The entire deposition transcript 19 (including exhibits) shall be treated as Confidential under this Order until the 20 expiration of the above-referenced thirty-day period for designation by letter, 21 except that the deponent may review the transcript of his or her own deposition 22 during this thirty-day period. After the expiration of the thirty (30) day period, the 23 following legend shall be conspicuously placed on the front and back of any 24 original deposition transcript, and on each copy thereof, which contains 25 Confidential Information: “CONTAINS CONFIDENTIAL INFORMATION.” If 26 portions of a videotaped deposition are designated as “CONFIDENTIAL,” the 27 videocassette or other videotape container shall be labeled with the same legend 28 provided for in Paragraph 2(a). 5 STIPULATED PROTECTIVE ORDER 1 D. To the extent that matter stored or recorded in the form of electronic 2 or magnetic media (including information, files, databases, or programs stored on 3 any digital or analog machine-readable device, computers, discs, networks or 4 tapes) (“Computerized Material”) is produced by any party in such form, the 5 Supplying Party may designate such matter as “CONFIDENTIAL” by cover letter 6 referring generally to such matter or by affixing to such media a label with the 7 legend provided for in Paragraph 2(a) above. Whenever any party to whom 8 Computerized Material designated as “CONFIDENTIAL” is produced reduces 9 such material to hard-copy form, such party shall mark such hard-copy form with 10 11 the legend provided for in Paragraph 2(a) above. E. To the extent that any party or counsel for any party creates, develops 12 or otherwise establishes on any digital or analog machine-readable device, 13 recording media, computer, disc, network, tape, file, database or program 14 information designated CONFIDENTIAL, that party and/or its counsel must take 15 all necessary steps to ensure that access to such media is properly restricted to 16 those persons who, by the terms of this Order, may have access to Confidential 17 Information, and will affix to any media containing such information a label with 18 the legend provided for in Paragraph 2(a) above. 19 F. The filing of any documents and materials with the Court containing 20 or reflecting the contents of Confidential Information shall be governed by Local 21 Rule 79-5.1. Each party shall use its best efforts to minimize filings that necessitate 22 the filing of documents and materials designated Confidential under seal. Without 23 written permission from the Supplying Party or a Court order, a party may not file 24 in the public record in this action any designated material. Filings may be made 25 under seal only pursuant to a court order authorizing the sealing of the specific 26 material at issue. The fact that a document has been designated under this Order is 27 insufficient to justify filing under seal. Instead, parties must explain the basis for 28 confidentiality of each document sought to be filed under seal. If a Receiving 6 STIPULATED PROTECTIVE ORDER 1 Party’s request to file designated material under seal pursuant to L.R. 79-5.1 is 2 denied by the Court, then the Receiving Party may file the material in the public 3 record unless (1) the Supplying Party seeks reconsideration within four days of the 4 denial, or (2) as otherwise instructed by the Court. G. 5 6 IV. Documents filed under seal may be unsealed at the Court’s discretion. USE OF CONFIDENTIAL INFORMATION Subject to Paragraph 12(c), Confidential Information shall not be used by 7 8 any person, other than the Supplying Party, for any purpose other than conducting 9 this Proceeding, Kenneth Goss v. Zimmer Holdings, Inc. Health and Welfare Plan, 10 which is pending in the United States District Court for the Central District of 11 California, and in no event shall such information be used for any business, 12 competitive, personal, private, public or other purpose. 13 V. 14 DISCLOSURE OF CONFIDENTIAL INFORMATION A. The attorneys of record are responsible for employing reasonable 15 measures, consistent with this Order, to control access to, and distribution of 16 information designated “CONFIDENTIAL” pursuant to this Order. 17 B. Subject to Paragraph 6 below, access to information designated 18 “CONFIDENTIAL” pursuant to this Order shall be limited to the following 19 persons: 20 1. The parties, including outside and in-house counsel for the 21 parties, as well as members and employees of their firms including but not 22 limited to their paralegals, investigative, secretarial and clerical personnel 23 who are employed by and engaged in assisting such counsel in this 24 Proceeding. 25 26 27 28 2. Outside photocopying, data processing or graphic production services employed by the parties or their counsel to assist in this Proceeding. 3. Any outside expert or consultant (or any employee of such outside expert or consultant) who is retained, or sought to be retained, by 7 STIPULATED PROTECTIVE ORDER 1 counsel for a party in this Proceeding, for purposes of consulting, and/or 2 testifying in this Proceeding, and to whom counsel in good faith has deemed 3 disclosure of such “CONFIDENTIAL” material is reasonably necessary in 4 order to assist in the preparation or the conduct of this Proceeding. This 5 paragraph shall not relieve, change or otherwise affect any obligations or 6 limitations imposed on any person by contract or law regarding the 7 disclosure or use of trade secrets or other confidential, protected health, or 8 proprietary information. 9 4. Any fact witness, at the witness’ deposition in this Proceeding, 10 but only if counsel who discloses “CONFIDENTIAL” information to the 11 witness determines, in good faith, that such disclosure is reasonably 12 necessary and appropriate to assist in the conduct of this Proceeding. 13 5. Any person (a) who was involved in the preparation of the 14 document or other tangible medium containing the Confidential Information 15 and/or who is shown on the face of “CONFIDENTIAL” material to have 16 authored or received the “CONFIDENTIAL” material sought to be disclosed 17 to that person, or (b) who is specifically referenced by name and 18 substantively discussed in the “CONFIDENTIAL” material, but only as to 19 the specific material the person authored or received, or in which such 20 person is referenced and discussed. 21 6. This Court or any other Court exercising jurisdiction with 22 respect to this litigation, Court personnel, jurors, and qualified persons 23 (including necessary clerical personnel) recording, taking or transcribing 24 testimony or argument at any deposition, hearing, trial or appeal in this 25 litigation; and 26 7. Any other person to whom the Supplying Party agrees in 27 writing or on the record in advance of the disclosure, provided that the party 28 seeking to make the disclosure must first submit a request, in writing or on 8 STIPULATED PROTECTIVE ORDER 1 the record, to the Supplying Party explaining why the disclosure is 2 necessary. If the Supplying Party does not agree to allow the disclosure, the 3 party seeking to make the disclosure may file a motion with the Court for 4 approval to make the disclosure. 5 VI. NOTIFICATION OF PROTECTIVE ORDER 6 Confidential Information shall not be disclosed to a person described in 7 Paragraphs V(B)(2), V(B)(3), V(B)(4), or V(B)(7) unless and until such person has 8 executed an Agreement of Confidentiality in substantially the form attached hereto 9 as Exhibit A. The originals of an executed Agreement of Confidentiality shall be 10 maintained by counsel for the party who obtained it until the final resolution of this 11 litigation, and shall not be subject to discovery except upon motion on notice and a 12 showing of good cause. This prohibition includes either direct or indirect 13 disclosure, including but not limited to, any disclosure by counsel or experts. At 14 any deposition and absent the agreement of the parties, prior to the disclosure of 15 any Confidential Information, the deponent shall be provided a copy of the form 16 attached hereto as Exhibit B and shall be asked to affirmatively state on the record 17 that he or she has received the form and consents to the restrictions contained 18 within the Stipulated Protective Order, a copy of which shall be provided to the 19 deponent. 20 VII. USE OF CONFIDENTIAL INFORMATION AT TRIAL 21 The rules and procedures governing the use of Confidential Information at 22 trial shall be determined by the trial judge. 23 VIII. OBJECTIONS TO DESIGNATIONS 24 A party may, at any time, make a good faith challenge to the propriety of a 25 Confidential Information designation. In the event a party objects to the 26 designation of any material under this Order, the objecting party shall consult with 27 the designating party to attempt to resolve their differences. If the parties are 28 unable to reach an accord as to the proper designation of the material, after giving 9 STIPULATED PROTECTIVE ORDER 1 notice to the designating party, the objecting party may apply to the Court for a 2 ruling that the material shall not be so designated, in compliance with Local Rule 3 37. If such a motion is made, the designating party has the burden of establishing 4 that the designation is proper. If no such motion is made, the material will retain its 5 designation. Any documents or other materials that have been designated 6 “CONFIDENTIAL” shall be treated as Confidential until such time as the Court 7 rules that such materials should not be treated as Confidential. 8 IX. PRESERVATION OF RIGHTS AND PRIVILEGES 9 Nothing contained in this Order shall affect the right, if any, of any party or 10 witness to make any other type of objection, claim, or other response to discovery 11 requests, including, without limitation, interrogatories, requests for admissions, 12 requests for production of documents or questions at a deposition. Nor shall this 13 Order be construed as a waiver by any party of any legally cognizable privilege to 14 withhold any Confidential Information other than on the basis that it has been 15 designated Confidential, or of any right which any party may have to assert such 16 privilege at any stage of this litigation. 17 X. 18 RETURN OR DESTRUCTION OF MATERIALS Within sixty (60) business days after the final resolution of this litigation, all 19 Confidential Information shall be returned to counsel for the party or non-party 20 that produced it or shall be destroyed. As to those materials that contain or reflect 21 Confidential Information, but that constitute or reflect counsel’s work product, 22 counsel of record for the parties, or non-parties, shall be entitled to retain such 23 work product in their files in accordance with the provisions of this Order, so long 24 as it is clearly marked to reflect that it contains information subject to this Order. 25 Such materials may not be used in connection with any other proceeding or action. 26 Counsel shall be entitled to retain pleadings, affidavits, motions, briefs, other 27 papers filed with the Court, deposition transcripts, and the trial record (including 28 exhibits) even if such materials contain Confidential Information, so long as such 10 STIPULATED PROTECTIVE ORDER 1 materials are clearly marked to reflect that they contain information subject to this 2 Order and may not be used in connection with any other proceeding or action. 3 XI. 4 INADVERTENT OR UNINTENTIONAL DISCLOSURE A Supplying Party that inadvertently fails to designate discovery material as 5 “Confidential” or mis-designates discovery material as “Confidential” pursuant to 6 this Order at the time of its production shall be entitled to make a correction to its 7 designation within a reasonable time of the discovery of the non- or mis- 8 designation. Such correction and notice thereof shall be made in writing, 9 accompanied by substitute copies of each item of discovery material, appropriately 10 designated. Those individuals who received the discovery material prior to notice 11 of non- or mis-designation by the Supplying Party shall within five (5) days of 12 receipt of the substitute copies, take reasonable steps to destroy or return to the law 13 firm representing the Supplying Party all copies of such mis-designated 14 documents. The obligation to treat such material pursuant to the corrected 15 designation shall be prospective only, and those individuals who reviewed the mis- 16 designated discovery material prior to notice of the mis-designation by the 17 Supplying Party shall abide by the provisions of this Order with respect to all 18 future use and disclosure of any information contained in the mis-designated 19 materials. 20 XII. OTHER PROVISIONS 21 A. The restrictions set forth in this Order shall not apply to documents or 22 information designated Confidential that are publicly available or that are obtained 23 independently and under rightful means by the Receiving Party, unless they 24 became so due to a violation of this Order. 25 B. A party’s compliance with the terms of this Order shall not operate as 26 an admission that any particular document is or is not (a) confidential, (b) 27 privileged or (c) admissible in evidence at trial. 28 11 STIPULATED PROTECTIVE ORDER 1 C. Any party or person bound by this Order who receives a subpoena (or 2 other process) from any person (including natural persons, corporations, 3 partnerships, firms, governmental agencies, departments or bodies, boards or 4 associations) who is not a party to this Order, which subpoena seeks production or 5 other disclosure of such Confidential Information shall immediately give written 6 notice by electronic mail to counsel for the other party or person who produced the 7 materials designated as Confidential. The written notice shall identify the materials 8 sought and enclose a copy of the subpoena or other process, unless ordered 9 otherwise by a court of competent jurisdiction. Nothing herein shall be construed 10 to obligate the person subject to service or other process to make a motion or 11 undertake other legal process, or to appear before any court or administrative body 12 in opposition to a motion or other legal process seeking production of any 13 Confidential materials, provided such person invokes, to the extent reasonably 14 possible, the highest level of confidentiality available under applicable law, rule, 15 regulation, court order, or other compulsory process, at the time of disclosure of 16 such Confidential materials. 17 D. This Order shall apply to non-parties who provide discovery, by 18 deposition, production of documents or otherwise, in this litigation, if said 19 non-party requests, in writing, the protection of this Order as to said non-party’s 20 Confidential Information and complies with the provisions of this Order. 21 E. Upon the final resolution of this litigation (including conclusion of 22 any appeal), this Order shall remain in effect and continue to be binding, unless 23 expressly modified, superseded, or terminated by consent of all parties or by Order 24 of the Court. This Court expressly retains jurisdiction over this action for 25 enforcement of the provisions of this Order following the final resolution of this 26 litigation. 27 28 F. This Order shall not prevent a party from applying to the Court for relief therefrom, or from applying to the Court for further or additional protective 12 STIPULATED PROTECTIVE ORDER 1 orders, or from agreeing to modifications of this Order, subject to the approval of 2 the Court. G. 3 4 The Court may amend, modify or dissolve this Protective Order at any time. 5 6 Dated: September 6, 2017 KANTOR & KANTOR, LLP 7 8 By: 9 10 11 Dated: September 6, 2017 /s/ Lisa S. Kantor Lisa S. Kantor Attorneys for Plaintiff Kenneth Goss FAEGRE BAKER DANIELS LLP 12 By: /s/ Michael J. Nader Michael J. Nader Attorneys for Defendant Zimmer Holdings, Inc. Health and Welfare Plan 13 14 15 16 17 Filer’s Attestation: Pursuant to Civil Local Rule 5-4.3.4(a)(2)(i) regarding signatures, Lisa S. Kantor hereby attests that concurrence in the filing of this document and its content has been obtained by all signatories listed. 18 19 20 21 22 23 FOR GOOD CAUSE SHOWN, IT IS SO ORDERED. DATE: September 13, 2017 By:___________________________________ Sheri Pym, Magistrate Judge United States District Court, Central District of California 24 25 26 27 28 13 STIPULATED PROTECTIVE ORDER 1 EXHIBIT A 2 ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND 3 I, _____________________________ [print or type full name], of 4 _____________________________________________ [print or type full address], 5 declare under penalty of perjury that I have read in its entirety and understand the 6 Stipulated Protective Order that was issued by the United States District Court for 7 the Central District of California on _____________ in the case of Goss v. Zimmer 8 Holdings, Inc. Health and Welfare Plan, Case No. 5:16-cv-02475-AB (SP). I agree 9 to comply with and to be bound by all the terms of this Stipulated Protective Order 10 and I understand and acknowledge that failure to so comply could expose me to 11 sanctions and punishment in the nature of contempt. I solemnly promise that I will 12 not disclose in any manner any information or item that is subject to this Stipulated 13 Protective Order to any person or entity except in strict compliance with the 14 provisions of this Order. 15 I further agree to submit to the jurisdiction of the United States District Court 16 for the Central District of California for the purpose of enforcing the terms of this 17 Stipulated Protective Order, even if such enforcement proceedings occur after 18 termination of this Action. I hereby appoint __________________________ [print 19 or type full name] of _______________________________________ [print or type 20 full address and telephone number] as my California agent for service of process in 21 connection with this action or any proceedings related to enforcement of this 22 Stipulated Protective Order. 23 24 Date: ___________ City and State where sworn and signed: _______________________ 25 Printed name: _______________________________ 26 27 Signature: __________________________________ 28 14 STIPULATED PROTECTIVE ORDER 1 EXHIBIT B 2 ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND 3 I, _____________________________________ [print or type full name], of 4 ____________________________________________ [print or type full address], declare 5 under penalty of perjury that I have read in its entirety and understand the Stipulated 6 Protective Order that was issued by the United States District Court for the Central District 7 of California on _________ in the case of Goss v. Zimmer Holdings, Inc. Health and 8 Welfare Plan, Case No. 5:16-cv-02475-AB (SP), in which case I am a deponent. I 9 understand that the deposition in which I have been requested to give testimony will result 10 in the receipt by me of documents marked as “CONFIDENTIAL” under the terms of said 11 Stipulated Protective Order. I agree to comply with and to be bound by all the terms of 12 this Stipulated Protective Order with regard to any and all such documents and I under- 13 stand and acknowledge that failure to so comply could expose me to sanctions and 14 punishment in the nature of contempt. I solemnly promise that I will not disclose in any 15 manner any information or item that is subject to this Stipulated Protective Order to any 16 person or entity except in strict compliance with the provisions of this Order. 17 I further agree to submit to the jurisdiction of the United States District Court for 18 the Central District of California for the purpose of enforcing the terms of this Stipulated 19 Protective Order, even if such enforcement proceedings occur after termination of this 20 Action. I hereby appoint __________________________ [print or type full name] of 21 _____________________________________________ [print or type full address and 22 telephone number] as my California agent for service of process in connection with this 23 action or any proceedings related to enforcement of this Stipulated Protective Order. 24 25 Date: ___________ City and State where sworn and signed: _______________________ 26 Printed name: _______________________________ 27 28 Signature: __________________________________ 15 STIPULATED PROTECTIVE ORDER

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