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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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA – EASTERN DIVISION

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KENNETH GOSS,

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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]

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STIPULATED PROTECTIVE ORDER

IT IS HEREBY STIPULATED by and between Plaintiff Kenneth Goss

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(“Plaintiff”) and Defendant Zimmer Holdings, Inc. Health and Welfare Plan

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(“Defendant”) through their respective attorneys of record, that certain documents

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and information have been and may be sought, produced or exhibited by and

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between the parties in this proceeding (the “Proceeding”). Some of these

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documents relate to the parties’ and non-parties’ financial information, competitive

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information, protected health information (“PHI”) (as defined in 45 C.F.R.

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§ 160.103) or other types of sensitive information which the party making the

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production deems confidential (“Confidential Information”). To expedite the flow

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of discovery material and to preserve the confidentiality of certain documents and

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information, a Protective Order (“Protective Order”) may be entered by the Court

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as follows:

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I.

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SCOPE
A.

This Order shall govern all documents, the information contained

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therein, and all other information produced or disclosed during the Proceeding

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whether revealed in a document, deposition, other testimony, discovery response or

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otherwise, by any party, including any non-party, in this Proceeding (the

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“Supplying Party”) to any other party, including any non-party, (the “Receiving

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Party”), when the same is designated with the procedures set forth herein. This

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Order is binding upon the parties to the Proceeding, as well as their respective

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attorneys, agents, representatives, officers and employees and others as set forth in

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this Order. This Order is also binding on and applies to all non-parties who either

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produce or receive documents or information in connection with this Proceeding.

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B.

Under this Order, any Supplying Party shall have the right to identify

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and designate as “Confidential” any document or other information it produces or

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provides, or any testimony given in this Proceeding, which testimony or discovery

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material is believed in good faith by that Supplying Party, and by the Supplying

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Party’s counsel, to constitute, reflect or disclose trade secret or other confidential
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STIPULATED PROTECTIVE ORDER

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research, development, or commercial information, or personal health information,

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contemplated under Rule 26(c) of the Federal Rules of Civil Procedure

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(“Designated Material”).
C.

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“Confidential Information” as used herein means any Designated

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Material that is designated pursuant to this Protective Order as “Confidential” by

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the Supplying Party, whether it is a document, information contained in a

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document, information revealed during a deposition or other testimony,

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information revealed in an interrogatory answer or information otherwise revealed.
D.

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A party may designate as “Confidential” information in the possession

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of and supplied by a non-party if the information was transmitted to the non-party

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under an agreement or an obligation that it would remain confidential and the

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information otherwise complies with Paragraph 1(c).
E.

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Subject to Paragraph 12(c), all documents and other materials

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produced in this litigation shall be used only for purposes of this litigation whether

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or not a Supplying Party designates such documents or materials as “Confidential.”
F.

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This protective order meets the requirements of a qualified protective

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order as defined in 45 C.F.R. Part 164.512(e)(1)(v) and pursuant to California Civil

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Code § 56 et seq.

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II.

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PROTECTED HEALTH INFORMATION.
A.

Protected Health Information. The current parties (and their

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attorneys) and any future parties (and their attorneys) to the above-captioned

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matter are hereby authorized to receive, subpoena, and transmit “protected health

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information” (“PHI”) pertaining to the health care claims at issue in this litigation

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to the extent and subject to the terms outlined herein, which shall be marked as

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“CONFIDENTIAL.”

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1.

For the purposes of this Order, “PHI” shall have the same scope

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and definition as set forth in 45 C.F.R. § 160.103. Without limiting the

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generality of the foregoing, “PHI” includes, but is not limited to health
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STIPULATED PROTECTIVE ORDER

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information including demographic information relating to (i) the past,

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present, or future physical or mental condition of an individual, (ii) the

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provision of care to an individual, or (iii) the past, present, or future payment

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for health care services provided to an individual which identifies the

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individual or which reasonably could be expected to identify the individual

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involved in a health insurance claim at issue in this litigation.
2.

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All “covered entities” (as defined by 45 C.F.R. § 160.103) are

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hereby authorized to disclose PHI pertaining to the claims at issue in this

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litigation to all attorneys now of record in this matter or who may become of
record in the future of this litigation.

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3.

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The parties and their attorneys shall be permitted to use the PHI

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pertaining to the claims at issue in this litigation in any manner that is

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reasonably connected with the above-captioned litigation. This includes but

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is not limited to, disclosures to the parties, their attorneys of record, the

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attorneys’ firm (i.e., attorneys, support staff, agents, and consultants), the

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parties’ insurers, experts, consultants, court personnel, court reporters, copy

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services, trial consultants, jurors, venire members, and other entities

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involved in the litigation process.
4.

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This Order shall not control or limit the use of PHI pertaining to

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the claims at issue in this litigation that comes into the possession of any

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party or any party’s attorney from a source other than a “covered entity” (as

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that term is defined in 45 C.F.R. § 160.103).
5.

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Nothing in this Order authorizes any party to obtain medical

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records or information through means other than formal discovery requests,

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subpoena, or deposition.

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III.

DESIGNATION OF CONFIDENTIALITY
Documents or information may be designated CONFIDENTIAL within the

meaning of this Order in the following ways:
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STIPULATED PROTECTIVE ORDER

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A.

Specific documents produced by a Supplying Party shall, if

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appropriate, be designated as “Confidential” by marking the first page of the

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document and each subsequent page thereof containing Confidential Information

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with the legend: “CONFIDENTIAL.”

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B.

In the case of interrogatory answers and responses to requests for

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admissions, if appropriate, designation of Confidential Information shall be made

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by means of a statement in the answers or responses specifying that the answers or

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responses or specific parts thereof are designated “CONFIDENTIAL.” The

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following legend shall be placed on each page of interrogatory answers or

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responses to requests for admission containing Confidential Information:

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“CONTAINS CONFIDENTIAL INFORMATION.”

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C.

In the case of depositions and the information contained in depositions

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(including exhibits), designation of the portions of the transcript (including

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exhibits) which contain Confidential Information shall be made by a statement to

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such effect on the record in the course of the deposition by counsel for the party or

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witness producing such information, or by letter from such counsel within thirty

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(30) days of receipt of the deposition transcript or copy thereof (or written

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notification that the transcript is available). The entire deposition transcript

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(including exhibits) shall be treated as Confidential under this Order until the

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expiration of the above-referenced thirty-day period for designation by letter,

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except that the deponent may review the transcript of his or her own deposition

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during this thirty-day period. After the expiration of the thirty (30) day period, the

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following legend shall be conspicuously placed on the front and back of any

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original deposition transcript, and on each copy thereof, which contains

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Confidential Information: “CONTAINS CONFIDENTIAL INFORMATION.” If

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portions of a videotaped deposition are designated as “CONFIDENTIAL,” the

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videocassette or other videotape container shall be labeled with the same legend

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provided for in Paragraph 2(a).
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STIPULATED PROTECTIVE ORDER

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D.

To the extent that matter stored or recorded in the form of electronic

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or magnetic media (including information, files, databases, or programs stored on

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any digital or analog machine-readable device, computers, discs, networks or

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tapes) (“Computerized Material”) is produced by any party in such form, the

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Supplying Party may designate such matter as “CONFIDENTIAL” by cover letter

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referring generally to such matter or by affixing to such media a label with the

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legend provided for in Paragraph 2(a) above. Whenever any party to whom

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Computerized Material designated as “CONFIDENTIAL” is produced reduces

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such material to hard-copy form, such party shall mark such hard-copy form with

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the legend provided for in Paragraph 2(a) above.
E.

To the extent that any party or counsel for any party creates, develops

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or otherwise establishes on any digital or analog machine-readable device,

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recording media, computer, disc, network, tape, file, database or program

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information designated CONFIDENTIAL, that party and/or its counsel must take

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all necessary steps to ensure that access to such media is properly restricted to

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those persons who, by the terms of this Order, may have access to Confidential

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Information, and will affix to any media containing such information a label with

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the legend provided for in Paragraph 2(a) above.

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F.

The filing of any documents and materials with the Court containing

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or reflecting the contents of Confidential Information shall be governed by Local

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Rule 79-5.1. Each party shall use its best efforts to minimize filings that necessitate

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the filing of documents and materials designated Confidential under seal. Without

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written permission from the Supplying Party or a Court order, a party may not file

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in the public record in this action any designated material. Filings may be made

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under seal only pursuant to a court order authorizing the sealing of the specific

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material at issue. The fact that a document has been designated under this Order is

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insufficient to justify filing under seal. Instead, parties must explain the basis for

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confidentiality of each document sought to be filed under seal. If a Receiving
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STIPULATED PROTECTIVE ORDER

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Party’s request to file designated material under seal pursuant to L.R. 79-5.1 is

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denied by the Court, then the Receiving Party may file the material in the public

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record unless (1) the Supplying Party seeks reconsideration within four days of the

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denial, or (2) as otherwise instructed by the Court.
G.

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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

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any person, other than the Supplying Party, for any purpose other than conducting

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

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which is pending in the United States District Court for the Central District of

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California, and in no event shall such information be used for any business,

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competitive, personal, private, public or other purpose.

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V.

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DISCLOSURE OF CONFIDENTIAL INFORMATION
A.

The attorneys of record are responsible for employing reasonable

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measures, consistent with this Order, to control access to, and distribution of

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information designated “CONFIDENTIAL” pursuant to this Order.

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B.

Subject to Paragraph 6 below, access to information designated

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“CONFIDENTIAL” pursuant to this Order shall be limited to the following

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persons:

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1.

The parties, including outside and in-house counsel for the

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parties, as well as members and employees of their firms including but not

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limited to their paralegals, investigative, secretarial and clerical personnel

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who are employed by and engaged in assisting such counsel in this

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Proceeding.

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2.

Outside photocopying, data processing or graphic production

services employed by the parties or their counsel to assist in this Proceeding.
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Any outside expert or consultant (or any employee of such

outside expert or consultant) who is retained, or sought to be retained, by
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STIPULATED PROTECTIVE ORDER

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counsel for a party in this Proceeding, for purposes of consulting, and/or

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testifying in this Proceeding, and to whom counsel in good faith has deemed

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disclosure of such “CONFIDENTIAL” material is reasonably necessary in

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order to assist in the preparation or the conduct of this Proceeding. This

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paragraph shall not relieve, change or otherwise affect any obligations or

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limitations imposed on any person by contract or law regarding the

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disclosure or use of trade secrets or other confidential, protected health, or

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proprietary information.

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4.

Any fact witness, at the witness’ deposition in this Proceeding,

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but only if counsel who discloses “CONFIDENTIAL” information to the

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witness determines, in good faith, that such disclosure is reasonably

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necessary and appropriate to assist in the conduct of this Proceeding.

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5.

Any person (a) who was involved in the preparation of the

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document or other tangible medium containing the Confidential Information

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and/or who is shown on the face of “CONFIDENTIAL” material to have

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authored or received the “CONFIDENTIAL” material sought to be disclosed

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to that person, or (b) who is specifically referenced by name and

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substantively discussed in the “CONFIDENTIAL” material, but only as to

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the specific material the person authored or received, or in which such

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person is referenced and discussed.

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6.

This Court or any other Court exercising jurisdiction with

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respect to this litigation, Court personnel, jurors, and qualified persons

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(including necessary clerical personnel) recording, taking or transcribing

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testimony or argument at any deposition, hearing, trial or appeal in this

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litigation; and

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7.

Any other person to whom the Supplying Party agrees in

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writing or on the record in advance of the disclosure, provided that the party

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seeking to make the disclosure must first submit a request, in writing or on
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STIPULATED PROTECTIVE ORDER

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the record, to the Supplying Party explaining why the disclosure is

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necessary. If the Supplying Party does not agree to allow the disclosure, the

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party seeking to make the disclosure may file a motion with the Court for

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approval to make the disclosure.

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VI.

NOTIFICATION OF PROTECTIVE ORDER

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Confidential Information shall not be disclosed to a person described in

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Paragraphs V(B)(2), V(B)(3), V(B)(4), or V(B)(7) unless and until such person has

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executed an Agreement of Confidentiality in substantially the form attached hereto

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as Exhibit A. The originals of an executed Agreement of Confidentiality shall be

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maintained by counsel for the party who obtained it until the final resolution of this

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litigation, and shall not be subject to discovery except upon motion on notice and a

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showing of good cause. This prohibition includes either direct or indirect

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disclosure, including but not limited to, any disclosure by counsel or experts. At

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any deposition and absent the agreement of the parties, prior to the disclosure of

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any Confidential Information, the deponent shall be provided a copy of the form

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attached hereto as Exhibit B and shall be asked to affirmatively state on the record

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that he or she has received the form and consents to the restrictions contained

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within the Stipulated Protective Order, a copy of which shall be provided to the

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deponent.

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VII. USE OF CONFIDENTIAL INFORMATION AT TRIAL

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The rules and procedures governing the use of Confidential Information at

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trial shall be determined by the trial judge.

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VIII. OBJECTIONS TO DESIGNATIONS

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A party may, at any time, make a good faith challenge to the propriety of a

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Confidential Information designation. In the event a party objects to the

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designation of any material under this Order, the objecting party shall consult with

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the designating party to attempt to resolve their differences. If the parties are

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unable to reach an accord as to the proper designation of the material, after giving
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STIPULATED PROTECTIVE ORDER

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notice to the designating party, the objecting party may apply to the Court for a

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ruling that the material shall not be so designated, in compliance with Local Rule

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37. If such a motion is made, the designating party has the burden of establishing

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that the designation is proper. If no such motion is made, the material will retain its

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designation. Any documents or other materials that have been designated

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“CONFIDENTIAL” shall be treated as Confidential until such time as the Court

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rules that such materials should not be treated as Confidential.

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IX.

PRESERVATION OF RIGHTS AND PRIVILEGES

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Nothing contained in this Order shall affect the right, if any, of any party or

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witness to make any other type of objection, claim, or other response to discovery

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requests, including, without limitation, interrogatories, requests for admissions,

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requests for production of documents or questions at a deposition. Nor shall this

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Order be construed as a waiver by any party of any legally cognizable privilege to

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withhold any Confidential Information other than on the basis that it has been

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designated Confidential, or of any right which any party may have to assert such

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privilege at any stage of this litigation.

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X.

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RETURN OR DESTRUCTION OF MATERIALS
Within sixty (60) business days after the final resolution of this litigation, all

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Confidential Information shall be returned to counsel for the party or non-party

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that produced it or shall be destroyed. As to those materials that contain or reflect

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Confidential Information, but that constitute or reflect counsel’s work product,

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counsel of record for the parties, or non-parties, shall be entitled to retain such

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work product in their files in accordance with the provisions of this Order, so long

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as it is clearly marked to reflect that it contains information subject to this Order.

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Such materials may not be used in connection with any other proceeding or action.

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Counsel shall be entitled to retain pleadings, affidavits, motions, briefs, other

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papers filed with the Court, deposition transcripts, and the trial record (including

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exhibits) even if such materials contain Confidential Information, so long as such
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materials are clearly marked to reflect that they contain information subject to this

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Order and may not be used in connection with any other proceeding or action.

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XI.

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INADVERTENT OR UNINTENTIONAL DISCLOSURE
A Supplying Party that inadvertently fails to designate discovery material as

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“Confidential” or mis-designates discovery material as “Confidential” pursuant to

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this Order at the time of its production shall be entitled to make a correction to its

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designation within a reasonable time of the discovery of the non- or mis-

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designation. Such correction and notice thereof shall be made in writing,

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accompanied by substitute copies of each item of discovery material, appropriately

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designated. Those individuals who received the discovery material prior to notice

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of non- or mis-designation by the Supplying Party shall within five (5) days of

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receipt of the substitute copies, take reasonable steps to destroy or return to the law

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firm representing the Supplying Party all copies of such mis-designated

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documents. The obligation to treat such material pursuant to the corrected

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designation shall be prospective only, and those individuals who reviewed the mis-

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designated discovery material prior to notice of the mis-designation by the

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Supplying Party shall abide by the provisions of this Order with respect to all

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future use and disclosure of any information contained in the mis-designated

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materials.

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XII. OTHER PROVISIONS

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A.

The restrictions set forth in this Order shall not apply to documents or

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information designated Confidential that are publicly available or that are obtained

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independently and under rightful means by the Receiving Party, unless they

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became so due to a violation of this Order.

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B.

A party’s compliance with the terms of this Order shall not operate as

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an admission that any particular document is or is not (a) confidential, (b)

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privileged or (c) admissible in evidence at trial.

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STIPULATED PROTECTIVE ORDER

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C.

Any party or person bound by this Order who receives a subpoena (or

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other process) from any person (including natural persons, corporations,

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partnerships, firms, governmental agencies, departments or bodies, boards or

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associations) who is not a party to this Order, which subpoena seeks production or

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other disclosure of such Confidential Information shall immediately give written

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notice by electronic mail to counsel for the other party or person who produced the

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materials designated as Confidential. The written notice shall identify the materials

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sought and enclose a copy of the subpoena or other process, unless ordered

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otherwise by a court of competent jurisdiction. Nothing herein shall be construed

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to obligate the person subject to service or other process to make a motion or

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undertake other legal process, or to appear before any court or administrative body

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in opposition to a motion or other legal process seeking production of any

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Confidential materials, provided such person invokes, to the extent reasonably

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possible, the highest level of confidentiality available under applicable law, rule,

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regulation, court order, or other compulsory process, at the time of disclosure of

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such Confidential materials.

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D.

This Order shall apply to non-parties who provide discovery, by

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deposition, production of documents or otherwise, in this litigation, if said

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non-party requests, in writing, the protection of this Order as to said non-party’s

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Confidential Information and complies with the provisions of this Order.

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E.

Upon the final resolution of this litigation (including conclusion of

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any appeal), this Order shall remain in effect and continue to be binding, unless

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expressly modified, superseded, or terminated by consent of all parties or by Order

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of the Court. This Court expressly retains jurisdiction over this action for

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enforcement of the provisions of this Order following the final resolution of this

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litigation.

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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
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orders, or from agreeing to modifications of this Order, subject to the approval of

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the Court.
G.

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The Court may amend, modify or dissolve this Protective Order at any

time.

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Dated: September 6, 2017

KANTOR & KANTOR, LLP

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By:

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Dated: September 6, 2017

/s/ Lisa S. Kantor
Lisa S. Kantor
Attorneys for Plaintiff
Kenneth Goss

FAEGRE BAKER DANIELS LLP

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By: /s/ Michael J. Nader
Michael J. Nader
Attorneys for Defendant Zimmer
Holdings, Inc. Health and
Welfare Plan

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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.

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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

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STIPULATED PROTECTIVE ORDER

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EXHIBIT A

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ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND

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I, _____________________________ [print or type full name], of

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_____________________________________________ [print or type full address],

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declare under penalty of perjury that I have read in its entirety and understand the

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Stipulated Protective Order that was issued by the United States District Court for

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the Central District of California on _____________ in the case of Goss v. Zimmer

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Holdings, Inc. Health and Welfare Plan, Case No. 5:16-cv-02475-AB (SP). I agree

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to comply with and to be bound by all the terms of this Stipulated Protective Order

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and I understand and acknowledge that failure to so comply could expose me to

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sanctions and punishment in the nature of contempt. I solemnly promise that I will

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not disclose in any manner any information or item that is subject to this Stipulated

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Protective Order to any person or entity except in strict compliance with the

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provisions of this Order.

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I further agree to submit to the jurisdiction of the United States District Court

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for the Central District of California for the purpose of enforcing the terms of this

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Stipulated Protective Order, even if such enforcement proceedings occur after

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termination of this Action. I hereby appoint __________________________ [print

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or type full name] of _______________________________________ [print or type

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full address and telephone number] as my California agent for service of process in

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connection with this action or any proceedings related to enforcement of this

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Stipulated Protective Order.

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Date: ___________ City and State where sworn and signed: _______________________

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Printed name: _______________________________

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Signature: __________________________________

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STIPULATED PROTECTIVE ORDER

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EXHIBIT B

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ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND

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I, _____________________________________ [print or type full name], of

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____________________________________________ [print or type full address], declare

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under penalty of perjury that I have read in its entirety and understand the Stipulated

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Protective Order that was issued by the United States District Court for the Central District

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of California on _________ in the case of Goss v. Zimmer Holdings, Inc. Health and

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Welfare Plan, Case No. 5:16-cv-02475-AB (SP), in which case I am a deponent. I

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understand that the deposition in which I have been requested to give testimony will result

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in the receipt by me of documents marked as “CONFIDENTIAL” under the terms of said

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Stipulated Protective Order. I agree to comply with and to be bound by all the terms of

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this Stipulated Protective Order with regard to any and all such documents and I under-

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stand and acknowledge that failure to so comply could expose me to sanctions and

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punishment in the nature of contempt. I solemnly promise that I will not disclose in any

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manner any information or item that is subject to this Stipulated Protective Order to any

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person or entity except in strict compliance with the provisions of this Order.

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I further agree to submit to the jurisdiction of the United States District Court for

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the Central District of California for the purpose of enforcing the terms of this Stipulated

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Protective Order, even if such enforcement proceedings occur after termination of this

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Action. I hereby appoint __________________________ [print or type full name] of

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_____________________________________________ [print or type full address and

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telephone number] as my California agent for service of process in connection with this

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action or any proceedings related to enforcement of this Stipulated Protective Order.

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Date: ___________ City and State where sworn and signed: _______________________

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Printed name: _______________________________

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Signature: __________________________________
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STIPULATED PROTECTIVE ORDER