San Joaquin Valley Insurance Authority v. Gallagher Benefit Services, Inc.

Filing 15

STIPULATED QUALIFIED PROTECTIVE ORDER signed by Magistrate Judge Erica P. Grosjean on 9/26/2017. (Rooney, M)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 12 SAN JOAQUIN VALLEY INSURANCE AUTHORITY, a joint powers authority, 13 Plaintiff, 14 v. 15 GALLAGHER BENEFIT SERVICES, INC., a Delaware corporation; and Does 1 through 20, inclusive, 16 17 18 19 20 21 22 23 24 25 26 27 28 Defendants. Case No. 1:17-cv-00861-LJO-EPG Judge: Hon. Erica P. Grosjean, U.S. Magistrate Judge STIPULATED QUALIFIED PROTECTIVE ORDER 1 STIPULATED QUALIFIED PROTECTIVE ORDER 2 WHEREAS, in the above-captioned case, San Joaquin Valley Insurance 3 Authority v. Gallagher Benefit Services Inc., U.S.D.C. (E.D. Cal.) No. 1:17-cv- 4 00861-LJO-EPG (the “Action”), Plaintiff San Joaquin Valley Insurance Authority, 5 and Defendant Gallagher Benefit Services Inc. and Does 1 through 20 (each a 6 “Party, and collectively, the “Parties”) seek to facilitate the exchange of 7 Confidential Information, as defined below, including, but not limited to 8 information defined by the regulations promulgated under the Federal Health 9 Insurance Portability and Accountability Act of 1996 (HIPAA). 10 NOW, THEREFORE, IT IS HEREBY STIPULATED AND AGREED by 11 and between the Parties by and through their respective counsel of record, that they 12 jointly request, pursuant to Rule 26(c) of the Federal Rules of Civil Procedure and 13 45 C.F.R. Section 164.512(e)(1)(ii)(B), that the Court enter this Stipulated 14 Qualified Protective Order (“Protective Order”) as an Order of the Court, as 15 follows: 16 1. The Parties are hereby authorized to use or disclose “Protected Health 17 Information” as necessary for purposes of the above-captioned litigation, including 18 any appeals thereof. Such purposes may include: 19 (a) Responding to valid interrogatories seeking “Protected Health 20 Information,” served pursuant to the Federal Rules of Civil Procedure in the 21 Action; 22 (b) Responding to valid requests for production seeking “Protected 23 Health Information,” served pursuant to the Federal Rules of Civil Procedure in the 24 Action; 25 (c) Responding to valid and timely subpoenas for records seeking 26 “Protected Health Information,” pursuant to the Federal Rules of Civil Procedure in 27 the Action ; 28 (d) Responding to each of a Party’s own experts who request, either -1- 1 orally or in writing, “Protected Health Information,” for the purposes of reviewing 2 materials related to the instant litigation, regardless of whether the expert is a 3 consulting or trial expert or is considered retained for compensation, by disclosing 4 and providing such requested “Protected Health Information;” 5 6 (e) subpoena duces tecum at a duly-noticed deposition in the Action; 7 8 Responding to deposition questions or a valid and timely (f) Appearing as witnesses for any judicial proceeding related to the (g) Otherwise complying with their discovery and disclosure Action; and 9 10 obligations under the Federal Rules of Civil Procedure, including Rule 26 of the 11 Federal Rules of Civil Procedure. 12 Further, covered entities who are non-parties to the Action are authorized to use and 13 disclose “Protected Health Information” for the purposes set forth above to the 14 extent and subject to the conditions outlined herein. 15 2. This Protective Order does not function to waive any right to the 16 prepayment of costs or any other appropriate objection or privilege that may be 17 timely asserted in this litigation by either Party. 18 3. For the purposes of this Protective Order, “Protected Health 19 Information” shall have the same scope and definition as set forth in 45 C.F.R. 20 § 160.103. “Protected Health Information” includes, but is not limited to, health 21 information, including demographic information, that (1) is created or received by a 22 “covered entity”, i.e., a health care provider, health plan, employer, or health care 23 clearinghouse; (2) relates to either (a) the past, present, or future physical or mental 24 condition of an individual, (b) the provision of health care to an individual, or (c) 25 the past, present, or future payment for health care provided to an individual, and 26 (3) identifies the individual or which reasonably can reasonably be believed to 27 identify the individual. 28 4. For purposes of this -2- Protective Order, CONFIDENTIAL 1 INFORMATION means any document, information, or tangible thing, electronic 2 recording or transcript of oral testimony, whether or not made under oath, or any 3 portion of such a document, thing, recording, or transcript, designated by any Party 4 as “CONFIDENTIAL INFORMATION” because it contains (a) proprietary 5 information (trade secret, proprietary matter, or other confidential research, 6 development, or commercial information as those terms are used in Federal Rule of 7 Civil Procedure 26, (b) confidential personal information, such that the Party 8 making the designation avers that it can and would make a showing to the Court 9 sufficient to justify the filing of the document or information under seal in 10 accordance with Federal Rule of Civil Procedure 26(c), Local Rule 141, and 11 controlling federal case law, or (c) information reasonably believed to be protected 12 from disclosure pursuant to state or federal law, including “Protected Health 13 Information.” 14 5. By way of example, the term “documents” includes but is not limited 15 to operations records, institutional records, medical records, policy and procedure 16 manuals, training materials, correspondence, emails, memoranda, or other printed 17 or electronic matter, interoffice and/or intra-corporate communications, letters, 18 statements, contracts, invoices, drafts, charts, maps, diagrams, video, photographs, 19 medical records, institutional records, personnel files, work sheets, desk diaries, 20 recordings, specifications, compilations from which information can be obtained 21 and translated as required through detection devices into reasonably usable form, 22 sketches, drawings, notes (including laboratory notebooks and records), disclosures, 23 data, reports, work assignments, instructions, and other writings. 24 example, and not limitation, CONFIDENTIAL INFORMATION may include or be 25 included in simulations, animations, computer programs and software, magnetic or 26 digital discs, electronically recorded tapes of any sort, summaries, notes, abstracts, 27 motions, drawings, videos, photographs, and any instrument that comprises, 28 embodies, or summarizes otherwise CONFIDENTIAL INFORMATION. -3- By way of 1 6. During the Action, the Parties may produce certain documents 2 pursuant to discovery requests, subpoenas, and other legal proceedings which 3 request or require the disclosure of CONFIDENTIAL INFORMATION. At the 4 time of production, the producing Party will designate the documents or portions 5 thereof that they deem to contain CONFIDENTIAL INFORMATION. 6 documents or portions thereof marked as “CONFIDENTIAL INFORMATION” 7 will be subject to this Protective Order. CONFIDENTIAL INFORMATION will 8 not be disseminated or produced except in accordance with this Protective Order. 9 By designating a document or portion thereof as Only CONFIDENTIAL 10 INFORMATION, the Party making the designation avers that it can and would 11 make a showing to the Court sufficient to justify the filing of the document or 12 portion thereof under seal in accordance with Federal Rule of Civil Procedure 13 26(c), Local Rule 141, and controlling federal case law. 14 7. The designation of a document or portion thereof as CONFIDENTIAL 15 INFORMATION shall be made, whenever possible prior to production, by placing 16 or affixing on each page of such material in a manner that will not interfere with its 17 legibility the words “CONFIDENTIAL INFORMATION.” If such designation is 18 not possible prior to the production, the designation must be made by the producing 19 Party within twenty (20) days after disclosure. In the event that documents subject 20 to confidentiality, or portions thereof, are inadvertently produced without being 21 designated CONFIDENTIAL INFORMATION, they shall be treated as 22 CONFIDENTIAL INFORMATION as of the date of designation, if timely made. 23 8. Counsel for any Party retains the right to challenge the designation of a 24 particular document or portion thereof as CONFIDENTIAL INFORMATION. The 25 burden of proof with respect to the propriety or correctness of the designation of 26 any document or portion thereof as CONFIDENTIAL INFORMATION will rest on 27 the designating Party. If any Party believes any designation of a document or 28 portion thereof as CONFIDENTIAL INFORMATION is inappropriate, the Parties -4- 1 will meet and confer and attempt to resolve the issue on an expedited basis. If the 2 Parties are unable to mutually agree on a resolution, the Parties will seek 3 appropriate Court intervention, including a request for a discovery conference or 4 call with the Magistrate Judge, and where appropriate, submit the documents to the 5 Magistrate Judge under seal to determine whether and to what extent such 6 documents 7 INFORMATION in accordance with 8 Magistrate Judge shall determine whether the Party seeking to designate 9 CONFIDENTIAL INFORMATION has satisfied the requirements for filing the 10 document or portion thereof sought to be designated under seal in accordance with 11 Federal Rule of Civil Procedure 26(c), Local Rule 141, and controlling federal case 12 law. Where requested or permitted by the Court, the Parties may provide the Court 13 with separate statements containing the challenges by the Party opposing the 14 CONFIDENTIAL INFORMATION designation and the justifications by the Party 15 designating 16 INFORMATION. 17 18 19 9. or the portions thereof documents or should be deemed this Protective Order. portions thereof as CONFIDENTIAL Specifically, the CONFIDENTIAL Whenever a deposition or court proceeding involves the disclosure of a Party’s CONFIDENTIAL INFORMATION, the following procedure will apply: (a) The court reporter will be directed to bind those portions of the 20 transcript containing CONFIDENTIAL INFORMATION separately. This request 21 will be made on the record whenever possible. 22 (b) The cover of any portion of a deposition or court proceeding 23 transcript that contains testimony or documentary evidence that has been designated 24 CONFIDENTIAL 25 CONFIDENTIAL/SUBJECT TO PROTECTIVE ORDER. 26 (c) INFORMATION will be prominently marked: All portions of deposition or court proceeding transcripts 27 designated as CONFIDENTIAL INFORMATION will be sealed and will not be 28 disseminated except to the persons identified in Paragraph 12. -5- 1 10. Any Party may designate a deposition or portion thereof as 2 CONFIDENTIAL INFORMATION and subject to the Protective Order during or 3 for a reasonable time after the deposition. If a Party intends to designate portions of 4 a deposition as “CONFIDENTIAL” that Party shall have the right to limit 5 attendance at the relevant portion of the deposition to the persons set forth in 6 Paragraph 12 of this Order. 7 INFORMATION, the filing Party shall seek leave of court to file under seal 8 consistent with the Local Rules for the Eastern District of California. For all pleadings that contain CONFIDENTIAL 9 Upon a failure of the filing Party to file CONFIDENTIAL INFORMATION 10 under seal, any Party may request that the Court place the document under seal. 11 The procedures of Local Rule 141 shall be followed. 12 11. Either Party may challenge the designation of a deposition transcript, 13 or a portion thereof, as CONFIDENTIAL INFORMATION, under the procedure 14 set forth in Paragraph 8, above. 15 12. Unless otherwise provided in this Order, and subject to the provisions 16 of Paragraphs 13 and 14, access to CONFIDENTIAL INFORMATION will be 17 restricted to the Court, its officers, court personnel and stenographic parties 18 engaged in proceedings in this matter, Plaintiff and Defense experts, any neutral 19 experts retained jointly by the Parties, Plaintiff and Defense counsel (defined herein 20 to include: attorneys in this action and their support staff, including paralegals, legal 21 interns and legal assistants), 22 officers, directors, partners, members, employees, representatives and agents of all 23 non-designating Parties that counsel for such Parties deems necessary to aid counsel 24 in the prosecution and defense of this Proceeding; provided, however, that, prior to 25 the disclosure of Confidential Information, the Receiving Party must agree to be 26 bound by the terms of this Order. 27 28 13. other testifying or consulting experts, and those The Parties agree that CONFIDENTIAL INFORMATION subject to this Protective Order shall be used solely for the purposes of this Action, and in no -6- 1 other litigation, except as unsealed by the Court or filed in the public record in this 2 Action. 3 14. Each person designated in Paragraph 12, by receiving and reading a 4 copy of the Protective Order entered by the Court as part of this Stipulation and 5 Protective Order, agrees to abide by its provisions and to see that its provisions are 6 known and adhered to by those under his or her supervision or control, and to 7 submit to the jurisdiction of the Court in the event the Protective Order is breached. 8 9 10 15. NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE PRODUCED IN THIS LITIGATION (a) The terms of this Order are applicable to information produced 11 by a Non-Party in this action and designated as “CONFIDENTIAL.” Such 12 information produced by Non-Parties in connection with this litigation is protected 13 by the remedies and relief provided by this Order. Nothing in these provisions 14 should be construed as prohibiting a Non-Party from seeking additional protections. 15 (b) In the event that a Party is required, by a valid discovery 16 request, to produce a Non-Party’s confidential information in its possession, and the 17 Party is subject to an agreement with the Non-Party not to produce the Non-Party’s 18 confidential information, then the Party shall: 19 (i) promptly notify in writing the Requesting Party and the 20 Non-Party that some or all of the information requested is subject to a 21 confidentiality agreement with a Non-Party; 22 (ii) promptly provide the Non-Party with a copy of the 23 Stipulated Protective Order in this litigation, the relevant discovery request(s), and a 24 reasonably specific description of the information requested; and 25 26 27 28 (iii) make the information requested available for inspection by the Non-Party. (c) If the Non-Party fails to object or seek a protective order from this court within 14 days of receiving the notice and accompanying information, the -7- 1 Receiving Party may produce the Non-Party’s confidential information responsive 2 to the discovery request. If the Non-Party timely seeks a protective order, the 3 Receiving Party shall not produce any information in its possession or control that 4 is subject to the confidentiality agreement with the Non-Party before a 5 determination by the court. Absent a court order to the contrary, the Non-Party 6 shall bear the burden and expense of seeking protection in this court of its Protected 7 Material. 8 16. 9 all Within thirty (30) days of the conclusion of the litigation of this action, material marked as CONFIDENTIAL INFORMATION under this 10 Confidentiality Agreement and not received in evidence shall be returned to the 11 producing Party or third Party, unless the Parties agree that the material may be 12 destroyed instead of being returned, in which instance counsel shall certify that the 13 documents have been destroyed. The Parties agree to request that the clerk of the 14 Court return to the producing Party or third Party, or destroy, any sealed material 15 and/or CONFIDENTIAL INFORMATION used as evidence at the end of the 16 litigation, including appeals. This Confidentiality Agreement shall survive the 17 discontinuance or other resolution of the action. 18 17. As far as the provisions of any protective orders entered in this action 19 restrict the communication and use of the CONFIDENTIAL INFORMATION 20 produced thereunder, such orders shall continue to be binding after the conclusion 21 of this litigation, except that there shall be no restriction on documents that are used 22 as exhibits in Court unless such exhibits were or should have been filed under seal. 23 18. Nothing in this Protective Order precludes Plaintiff or Defendant from 24 seeking and obtaining, on an appropriate showing, additional protection 25 /// 26 /// 27 /// 28 /// -8- 1 with respect to the confidentiality of documents or portions thereof, or relief from 2 the Protective Order. 3 4 IT IS SO STIPULATED. Dated: September 25, 2017 BEST BEST & KRIEGER LLP 5 6 By:/s/ Richard T. Egger RICHARD T. EGGER LAUREN M. STRICKROTH JACQUELINE YAEGER Attorneys for Plaintiff SAN JOAQUIN VALLEY INSURANCE AUTHORITY, a joint powers authority 7 8 9 10 11 Dated: September 25, 2017 ANDERSON, McPHARLIN & CONNERS LLP 12 13 By: /s/ Kenneth D. Watnick KENNETH D. WATNICK THOMAS J. KEARNEY Attorneys for Defendant GALLAGHER BENEFIT SERVICES, INC. 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -9- 1 2 ORDER The Court, having reviewed the above Stipulated Qualified Protective Order, 3 and good cause appearing, enters this Stipulated Qualified Protective Order as an 4 Order of the Court. 5 6 7 IT IS SO ORDERED. Dated: September 26, 2017 /s/ UNITED STATES MAGISTRATE JUDGE 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -1- 1 APPENDIX A 2 3 ACKNOWLEDGMENT OF AND AGREEMENT TO BE BOUND BY PROTECTIVE ORDER 4 5 I, _______________________________, declare: 6 1. I have received a copy of the Stipulated Qualified Protective Order in 7 the action entitled San Joaquin Valley Insurance Authority v. Gallagher Benefit 8 Services Inc. No. 1:17-cv-00861-LJO-EPG (the “Protective Order”). I have 9 carefully read and understand the provisions of the Protective Order. 10 2. I will comply with all of the provisions of the Protective Order. I will 11 hold in confidence, and will not disclose to anyone other than those persons 12 specifically authorized by the Protective Order, will not copy or use except for 13 purposes of the Litigation, and will return or destroy pursuant to the terms of this 14 Protective order, any information designated “Confidential” which I receive in the 15 litigation. 16 3. I agree to submit to the continuing jurisdiction of the United States 17 District Court for the Eastern District of California for purposes of enforcement of 18 the Protective Order. 19 I declare under penalty of perjury under the laws of the United States that the 20 foregoing is true and correct and that this declaration was executed at 21 _______________________ this _______ day of _____________, 20___. 22 23 24 25 26 27 28 1

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