California Surgical Institute, Inc. v. AETNA Life and Casualty (Bermuda) LTD et al

Filing 39

QUALIFIED PROTECTIVE ORDER by Magistrate Judge Paul L. Abrams re Amended Stipulation and Qualified Protective Order 36 . (ch)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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Gordon & Rees LLP
633 West Fifth Street, 52nd Floor
Los Angeles, CA 90071

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) CASE NO. SA CV 17-00310 AG (PLAx)
) Magistrate Judge: Paul L. Abrams
)
)
Plaintiff,
) QUALIFIED PROTECTIVE ORDER
)
vs.
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AETNA LIFE AND CASUALTY
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(BERMUDA) LTD., a corporation
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form unknown; AETNA, INC., a
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corporation form unknown; and
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DOES 1 to 50, inclusive,
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Defendants. )
)
CALIFORNIA SURGICAL
INSTITUTE, INC., a California
corporation,

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

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Insurance Portability and Accountability Act of 1996, and for good cause, the

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Court issues this Qualified Protective Order. Unless modified pursuant to the

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terms contained in this Order, this Order shall remain in effect through the

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conclusion of this litigation.

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IT IS ORDERED THAT:

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1.

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This Protective Order shall govern any record of information produced in

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this action and designated pursuant to this Protective Order, including all
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Scope of Protection

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QUALIFIED PROTECTIVE ORDER

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designated deposition testimony, all designated testimony taken at a hearing or

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other proceeding, all designated deposition exhibits, interrogatory answers,

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admissions, documents and other discovery materials, whether produced

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informally or in response to interrogatories, requests for admissions, requests for

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production of documents or other formal methods of discovery.

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This Protective Order shall also govern any designated record of information

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produced in this action pursuant to required disclosures under any federal

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procedural rule or local rule of the Court and any supplementary disclosures

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thereto.
This Protective Order shall apply to the parties and to any nonparty from

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Los Angeles, CA 90071

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whom discovery may be sought who desires the protection of this Protective Order.

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2.

Definitions

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The term Confidential Information shall mean confidential or proprietary

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technical, scientific, financial, business, health, or medical information designated

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as “CONFIDENTIAL” by the producing party.

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The term Confidential Health Information shall constitute a subset of

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Confidential Information, and shall be designated as “CONFIDENTIAL” and

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subject to all other terms and conditions governing the treatment of Confidential

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Information. Confidential Health Information shall mean information supplied in

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any form, or any portion thereof, that identifies an individual or subscriber in any

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manner and relates to the past, present, or future care, services, or supplies relating

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to the physical or mental health or condition of such individual or subscriber, the

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provision of health care to such individual or subscriber, or the past, present, or

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future payment for the provision of health care to such individual or subscriber.

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Confidential Health Information shall include, but is not limited to, claim data,

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claim forms, grievances, appeals, or other documents or records that contain any

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patient health information required to be kept confidential under any state or

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federal law, including 45 C.F.R. Parts 160 and 164 promulgated pursuant to the
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Health Insurance Portability and Accountability Act of 1996 (see 45 C.F.R.

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§§ 164.501 & 160.103), and the following subscriber, patient, or member

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identifiers:

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a.

names;

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b.

all geographic subdivisions smaller than a State, including street

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address, city, county, precinct, and zip code;
c.

all elements of dates (except year) for dates directly related to an

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individual, including birth date, admission date, discharge date, age,

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and date of death;
d.

telephone numbers;

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e.

fax numbers;

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f.

electronic mail addresses;

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g.

social security numbers;

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h.

medical record numbers;

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i.

health plan beneficiary numbers;

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j.

account numbers;

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k.

certificate/license numbers;

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l.

vehicle identifiers and serial numbers, including license plate

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numbers;

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m.

device identifiers and serial numbers;

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n.

web universal resource locators (“URLs”);

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o.

internet protocol (“IP”) address numbers;

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p.

biometric identifiers, including finger and voice prints;

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q.

full face photographic images and any comparable images; and/or

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r.

any other unique identifying number, characteristic, or code.

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The term Technical Advisor shall refer to any person who is not a party to

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this action or not presently employed by the receiving party or a company affiliated

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through common ownership, who has been designated by the receiving party to
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receive another party’s Confidential Information, including Confidential Health

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Information. Each party’s Technical Advisors shall be limited to such person as, in

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the judgment of that party’s counsel, are reasonably necessary for development and

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presentation of that party’s case.

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consultants retained to provide technical or other expert services such as expert

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testimony or otherwise assist in trial preparation.

These persons include outside experts or

3.

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Documents and things produced or furnished during the course of this action

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shall be designated as containing Confidential Information, including Confidential

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Health Information, by placing on each page, each document (whether in paper or

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Designation of Information

electronic form), or each thing a legend substantially as follows:

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CONFIDENTIAL

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A party may designate information disclosed at a deposition as Confidential

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Information by requesting the reporter to so designate the transcript at the time of

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the deposition.

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A producing party shall designate its discovery responses, responses to

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requests for admission, briefs, memoranda and all other papers sent to the court or

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to opposing counsel as containing Confidential Information when such papers are

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served or sent.

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A party shall designate information disclosed at a hearing or trial as

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Confidential Information by requesting the court, at the time the information is

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proffered or adduced, to receive the information only in the presence of those

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persons designated to receive such information and court personnel, and to

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designate the transcript appropriately.

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The parties will use reasonable care to avoid designating any documents or

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information as Confidential Information that is not entitled to such designation or

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which is generally available to the public. The parties shall designate only that part

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of a document or deposition that is Confidential Information, rather than the entire

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document or deposition.
4.

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Information that has been designated Confidential shall be disclosed by the

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receiving party only to Qualified Recipients. All Qualified Recipients shall hold

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such information received from the disclosing party in confidence, shall use the

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information only for purposes of this action and for no other action, and shall not

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use it for any business or other commercial purpose, and shall not use it for filing

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or prosecuting any patent application (of any type) or patent reissue or

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reexamination request, and shall not disclose it to any person, except as hereinafter

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Disclosure and Use of Confidential Information

provided. All information that has been designated Confidential shall be carefully

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maintained so as to preclude access by persons who are not qualified to receive

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such information under the terms of this Order.

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In the event that any receiving party’s briefs, memoranda, discovery

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requests, requests for admission or other papers of any kind which are served or

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filed shall include another party’s Confidential Information, the papers shall be

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appropriately designated and shall be treated accordingly.

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All documents, including attorney notes and abstracts, which contain another

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party’s Confidential Information, shall be handled as if they were designated

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pursuant to paragraph 3.

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If Confidential Information is included in any documents, papers or

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transcripts filed with the Court, such papers shall be accompanied by an

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application to file the papers – or the confidential portion thereof – under seal. The

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application must demonstrate good cause for the under seal filing. Pending the

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

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application shall be lodged under seal.

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5.

Qualified Recipients

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For purposes of this Order, the term Qualified Recipient means
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a.

Outside counsel of record for any party in this action, as well as

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employees of such counsel (excluding experts and investigators)

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assigned to and necessary to assist such counsel in the preparation and

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trial of this action;

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b.

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Representatives, officers, or employees of a party as necessary to
assist outside counsel in the preparation and trial of this action;

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c.

Witnesses who testify by deposition or at trial who, if not a
representative, officer, or employee of a party, shall be advised about

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the terms of this Order and that such Order is applicable to them in

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connection with their testimony and do not retain copies of

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633 West Fifth Street, 52nd Floor
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Confidential Information;

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d.

Persons who were authors or recipients of the Confidential

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Information or previously had legal access to Confidential

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Information;

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e.

Technical Advisors, expert witnesses, or consultants engaged by a

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party to assist with the preparation and trial of this action provided

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such expert or consultant agrees in writing, in the form attached at

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Appendix A, to be bound by the terms of this Order;

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f.

Any designated arbitrator or mediator who is assigned to hear this

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matter, or who has been selected by the parties, and his or her staff,

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provided that such individuals agree in writing, in the form attached at

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Appendix A, to be bound by the terms of this Order;

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g.

Stenographers and videographers engaged to transcribe or record

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depositions conducted in this action provided that such individuals

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agree in writing, in the form attached at Appendix A, to be bound by

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the terms of this Order; and

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h.

The Court and its support personnel.

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6.

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Any nonparty who produces documents or other information in response to

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discovery requests or subpoenas in this litigation shall be entitled to the benefits

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and protections of this Order and shall be entitled to seek additional protections.

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Nonparties

The parties agree that they will treat Confidential Information produced by
nonparties according to the terms of this Order.
Nonparties may challenge the confidentiality of Confidential Information by
filing a motion to intervene and a motion to de-designate.
7.

Inadvertent Failure to Designate

In the event that a producing party inadvertently fails to designate any of its

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information pursuant to paragraph 3, it may later designate by notifying the

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receiving parties in writing. The receiving parties shall take reasonable steps to see

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that the information is thereafter treated in accordance with the designation.

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It shall be understood however, that no person or party shall incur any

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liability hereunder with respect to disclosure that occurred prior to receipt of

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written notice of a belated designation.

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8.

Inadvertent Disclosure

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In the event of an inadvertent disclosure of another party’s Confidential

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Information to a non-Qualified Recipient, the party making the inadvertent

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disclosure shall promptly upon learning of the disclosure: (i) notify the person to

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whom the disclosure was made that it contains Confidential Information subject to

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this Order; (ii) make all reasonable efforts to preclude dissemination or use of the

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Confidential Information by the person to whom disclosure was inadvertently

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made including, but not limited to, obtaining all copies of such materials from the

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non-Qualified Recipient; and (iii) notify the producing party of the identity of the

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person to whom the disclosure was made, the circumstances surrounding the

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disclosure, and the steps taken to ensure against the dissemination or use of the

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information.
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9.

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Any challenge to the designation or disclosure of Confidential Information

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Challenge to Designation

must occur within the discovery period established by the District Judge.

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At any time after the delivery of Confidential Information, counsel for the

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party receiving the Confidential Information may challenge the designation of all

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or any portion thereof by providing written notice thereof to counsel for the party

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disclosing or producing the Confidential Information.
In the event of a dispute regarding the designation or disclosure of

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Confidential Information, the parties may seek Court intervention by following the

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procedure set forth in Local Rule 37. If the parties wish to file the Joint Stipulation

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required by Local Rule 37 under seal, the parties may filed a stipulation to that

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effect, or the moving party may file an ex parte application making the appropriate

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request. The parties must set forth good cause in the stipulation or ex parte

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application as to why the Joint Stipulation or portions thereof should be filed under

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seal.

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All Confidential Information is entitled to confidential treatment pursuant to

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the terms of this Order until and unless the parties formally agree in writing to the

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contrary, a party fails to timely challenge the disclosure of Confidential

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Information, or a contrary determination is made by the Court as to whether all or a

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portion of designated Confidential Information is entitled to confidential treatment.

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10.

Trial

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Once a case proceeds to trial, all of the court-filed information that is to be

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introduced and was previously designated as Confidential Information and/or kept

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and maintain pursuant to the terms of a protective order becomes public and will

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be presumptively available to all members of the public, including the press, unless

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compelling reasons are supported by specific factual findings to proceed otherwise

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are made to the District Judge in advance of the trial. See, e.g., Hagestad v.

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Tragesser, 49 F.3d 1430, 1434 (9th Cir. 1995); San Jose Mercury News, Inc. v.
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U.S. District Court – Northern District, 187 F.3d 1096, 1102 (9th Cir. 1999);

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Kamakana v. City and County of Honolulu, 447 F.3d 1172, 1180-81 (9th Cir.

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2006) (distinguishing “good cause” showing for sealing documents produced in

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discovery and attached to non-dispositive motions from “compelling reasons”

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standard when merits-related documents are part of the judicial record). The Court

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will not enter a protective order that extends beyone the commencement of trial.
10.

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At the conclusion of this action, including through all appeals, each party or

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other person subject to the terms hereof shall be under an obligation to destroy or

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return to the producing party all materials and documents containing Confidential

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Information and to certify to the producing party such destruction or return. Such

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return or destruction shall not relieve said parties or persons from any of the

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continuing obligations imposed upon them by this Order.

Conclusion of Action

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The provisions of this paragraph shall not be binding on the United States,

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any insurance company, or any other party to the extent that such provisions

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conflict with applicable Federal or State law. The Department of Justice, any

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insurance company, or any other party shall notify the producing party in writing

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of any such conflict it identifies in connection with a particular matter so that such

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matter can be resolved either by the parties or by the Court.

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11.

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After the termination of this action, the Court will continue to have

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Jurisdiction to Enforce Protective Order

jurisdiction to enforce this Order.

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12.

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This Order is without prejudice to the right of any person or entity to seek a

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modification of this Order at any time either through stipulation or Order of the

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Court.

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Modification of Protective Order

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13.

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Nothing herein shall affect the right of the designating party to disclose to its

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officers, directors, employees, attorneys, consultants or experts, or to any other

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person, its own information. Such disclosure shall not waive the protections of this

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Protective Order and shall not entitle other parties or their attorneys to disclose

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such information in violation of it, unless by such disclosure of the designating

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party the information becomes public knowledge. Similarly, the Protective Order

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shall not preclude a party from showing its own information, including its own

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information that is filed under seal by a party, to its officers, directors, employees,

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Confidentiality of Party’s Own Documents

attorneys, consultants or experts, or to any other person.

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14.

Compulsory Disclosure to Third Parties

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If any receiving party is subpoenaed in another action or proceeding or

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served with a document or testimony demand or a court order, and such subpoena

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or demand or court order seeks Confidential Information, including Confidential

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Health Information of a producing party, the receiving party shall give prompt

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written notice to counsel for the producing party and allow the producing party an

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opportunity to oppose such subpoena or demand or court order prior to the

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deadline for complying with the subpoena or demand or court order.

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compulsory disclosure to third parties of information or material exchanged under

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this Order shall be deemed a waiver of any claim of confidentiality, except as

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expressly found by a court or judicial authority of competent jurisdiction.

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No

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15.

Binding Effect

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This Order shall be binding upon the parties and their attorneys, successors,

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executors, personal representatives, administrators, heirs, legal representatives,

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assigns, subsidiaries, divisions, employees, agents, independent contractors, or

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other persons or organizations over which they have control.

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IT IS SO ORDERED.

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DATED: October 18, 2017
Paul L. Abrams
United States Magistrate Judge

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633 West Fifth Street, 52nd Floor
Los Angeles, CA 90071

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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Gordon & Rees LLP
633 West Fifth Street, 52nd Floor
Los Angeles, CA 90071

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)
)
)
)
Plaintiff,
)
)
vs.
)
)
AETNA LIFE AND CASUALTY
)
(BERMUDA) LTD., a corporation
)
form unknown; AETNA, INC., a
)
corporation form unknown; and
)
DOES 1 to 50, inclusive,
)
Defendants. )
)
CALIFORNIA SURGICAL
INSTITUTE, INC., a California
corporation,

CASE NO. 17-cv-00310 AG (PLAx)
Magistrate Judge: Paul L. Abrams
APPENDIX A – PROTECTIVE
ORDER UNDERTAKING

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I,

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1.

, declare that:
My address is

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current employer is

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occupation is

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2.

. My
. My current
.

I have received a copy of the Qualified Protective Order in this action.

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I have carefully read and understand the provisions of the Qualified Protective

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Order.

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3.

I will comply with all of the provisions of the Qualified Protective

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Order and agree to be bound by the Qualified Protective Order. I will hold in

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confidence, will not disclose to anyone not qualified under the Qualified Protective
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Order, and will use only for purposes of this action any Confidential Information

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or information designated as “Confidential” that is disclosed to me.

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4.

Promptly upon termination of the relevant action, I will either return

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in full to the outside counsel for the party by whom I am employed or completely

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destroy all documents and things designated as “Confidential” that came into my

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possession, and all documents and things that I have prepared relating thereto.

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633 West Fifth Street, 52nd Floor
Los Angeles, CA 90071

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5.

I understand that the obligations of this undertaking and the provisions

of the Qualified Protective Order continue past the termination of the action.
6.

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

enforcement of the Qualified Protective Order in this action.
I declare under penalty of perjury that the foregoing is true and correct.

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Signature

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Date

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1134393/35261311v.1

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