Anderson v. Kelso, et al.

Filing 204

STIPULATED PROTECTIVE ORDER signed by Magistrate Judge Kendall J. Newman on 10/08/15 regarding confidential material. (See order for further details) (Plummer, M)

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KAMALA D. HARRIS
Attorney General of California
MONICA N. ANDERSON
Supervising Deputy Attorney General
R. LAWRENCE BRAGG, State Bar No. 119194
Deputy Attorney General
1300 I Street, Suite 125
P.O. Box 944255
Sacramento, CA 94244-2550
Telephone: [phone]
Fax: [phone]
E-mail: [e-mail]
Attorneys for Defendants Lee, Stovall, and Swingle

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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SACRAMENTO DIVISION

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SAMUEL ANDERSON,

2:12-CV-00261 MCE KJN

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Plaintiff, STIPULATED PROTECTIVE ORDER
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v.

Judge: The Honorable Kendall J. Newman
Trial Date:
March 14, 2016
Action Filed: April 18, 2012

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J. CLARK KELSO, et al.,

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Defendants.

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IT IS STIPULATED BY THE PARTIES, BY AND THROUGH THEIR

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RESPECTIVE COUNSEL, AND ORDERED BY THE COURT AS FOLLOWS:

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A.

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CONFIDENTIAL MATERIAL SUBJECT TO THIS PROTECTIVE
ORDER.

Plaintiff Anderson has requested production of declarations and expert witness reports

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prepared by the expert witness disclosed by Defendants, B. Barnett, M.D., in other actions, and

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medical records of third-party inmate-patients reviewed by Dr. Barnett in other actions. These

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documents refer to the medical conditions of the third-party inmate-patients who are the subjects

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of the declarations and expert witness reports prepared by Dr. Barnett.

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(PROPOSED) STIPULATED PROTECTIVE ORDER (2:12-CV-00261 MCE KJN)

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B.

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The declarations and expert witness reports prepared by Dr. Barnett in other actions, and

NEED FOR PROTECTION OF CONFIDENTIAL MATERIAL.

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the medical records of third-party inmate-patients reviewed by Dr. Barnett in these other actions,

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contain confidential information concerning the medical condition of these third-party inmate-

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patients. Federal courts generally recognize a right of privacy which can be raised in response to

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discovery requests. Johnson v. Thompson, 971 F.2d 1487, 1497 (10th Cir. 1992); DeMasi v.

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Weiss, 669 F.2d 114, 119-120 (3rd Cir. 1982). Disclosure of health care information concerning

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inmates who are not parties to this litigation arguably violates the Health Insurance Portability

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and Accountability Act of 1996 (“HIPAA”) Privacy Rule. 45 C.F.R. §§ 160.102, 160.103.

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Production of inmate medical information violates CDCR procedures set forth by California Code

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of Regulations, Title 15, section 3370, "Case Records File and Unit Health Records Material —

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Access and Release."

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C.

NEED FOR A COURT ORDER.

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In the course of this litigation, Anderson has demanded that Dr. Barnett produce

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declarations and expert witness reports prepared by Dr. Barnett in other actions, and the medical

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records of third-party inmate-patients reviewed by Dr. Barnett in these other actions, which are in

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the possession, custody or control of the California Department of Corrections and Rehabilitation

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(CDCR) and California Correctional Health Care Services (CCHCS). Since CDCR and CCHCS

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are not parties to this litigation, a private agreement among the parties is not sufficient to protect

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the interests of CDCR and CCHCS in maintaining the confidentiality of these documents.

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D.

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The Court orders the following to protect the confidentiality of the confidential documents

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CONDITIONS FOR RELEASE OF CONFIDENTIAL DOCUMENTS.

described above:
1.

The provisions of this Protective Order apply to the confidential records and

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information (“confidential material”) designated by Defendants, CDCR and/or CCHCS as

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“Confidential,” and those confidential records and information which the Court orders

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Defendants and/or CDCR to produce following an in camera hearing. The Court-issued

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Protective Order applies because those documents contain confidential information, which if
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(PROPOSED) STIPULATED PROTECTIVE ORDER (2:12-CV-00261 MCE KJN)

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shared, could jeopardize the privacy rights of third-party inmate-patients.

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2.

The confidential material may be disclosed only to the following persons:

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(a) Plaintiff Anderson’s retained attorney(s) of record;

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(b) The attorney(s) of record for Defendants, CDCR, and CCHCS;

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(c) Any paralegal, secretarial, or clerical personnel regularly employed by counsel

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for Anderson, Defendants, CDCR, and CCHCS who are necessary to aid counsel for Anderson,

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Defendants, CDCR and CCHCS in the litigation of this matter;

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(d) Court personnel and stenographic reporters necessarily involved in these
proceedings; and

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(e) Any outside expert or consultant retained by counsel for Anderson, Defendants,
CDCR, and/or CCHCS for purposes of this action.

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3.

None of the confidential material or information contained within the confidential

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material shall be shown to Anderson, or shown to, discussed with, or disclosed in any other

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manner to any other inmate or former inmate, any parolee or former parolee, or any other person

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not indicated in paragraph 2, unless a written waiver expressly authorizing such disclosure has

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been obtained from counsel for Defendants, CDCR, and CCHCS who maintain possession and

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control over the original confidential material.

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4.

No person who has access to the confidential material, as set forth in paragraph 2,

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shall copy any portion of the confidential material, except as necessary to provide a copy of the

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confidential material to any other authorized individual listed in paragraph 2, or to submit copies

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to the Court under seal in connection with this matter. Any copies made for such purpose will be

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subject to this order. A copy of this order must be provided to any individual authorized to access

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the confidential material before providing that individual with access to the confidential material,

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and that individual must agree in writing to comply with this order. Counsel for the parties shall

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maintain a record of all persons to whom access to the confidential material has been

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provided. The Court and counsel for Defendants, CDCR, and CCHCS may request a copy of

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such record at any time to determine compliance with the Court’s order.

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(PROPOSED) STIPULATED PROTECTIVE ORDER (2:12-CV-00261 MCE KJN)

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5.

Any exhibits or documents filed with the Court that reveal confidential material, or

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the contents of any confidential material, shall be submitted on purple or pink paper, filed under

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seal, labeled with a cover sheet bearing the case name and number and the statement: “This

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document is subject to a Protective Order issued by the Court and may not be copied or examined

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except in compliance with that Order.” Documents so labeled shall be kept by the Clerk of this

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Court under seal and shall be made available only to the Court or counsel of record for the

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parties. If any party fails to file confidential material in accordance with this paragraph, any party

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may request that the Court place the filing under seal.

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6.

The portion(s) of any transcript of a deposition of any witness testifying about

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confidential information shall be designated as confidential by the court reporter at the request of

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Defendants, CDCR, and/or CCHCS and kept under seal subject to a further order of the Court.

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Information or material designated as confidential by Defendants, CDCR,and/or CCHCS may be

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disclosed or discussed in open court, subject to a Motion in Limine and/or Motion for Protective

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Order filed by Defendant, CDCR, and/or CCHCS.

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7.

At the conclusion of the proceedings in this case, including any period for appeal

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or collateral review, or upon other termination of this litigation, counsel for Anderson shall

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destroy all confidential materials and all copies of such material in counsel’s possession or return

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such materials to counsel for Defendant.

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8.

All confidential material in this matter shall be used solely in connection with the

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litigation of this matter, or any related appellate proceeding and collateral review, and not for any

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other purpose, including any other litigation or proceeding.

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9.

Any violation of this order may result in sanctions by this Court, including

contempt, and may be punishable by state or federal law.
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The provisions of this order are without prejudice to the right of any party:
a.

To apply to the Court for a further protective order relating to any other

confidential documents or material, or relating to discovery in this litigation;
b.

To apply to the Court for an order removing the confidential material

designation from any documents; or
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(PROPOSED) STIPULATED PROTECTIVE ORDER (2:12-CV-00261 MCE KJN)

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c.
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To object to a discovery request.

The provisions of this order shall remain in effect until further order of this

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Court. The Court will provide counsel for Defendants, CDCR, and/or CCHCS an opportunity to

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be heard should the Court find modification of this order necessary.

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12.

This order is applicable to declarations, reports, and medical records pertaining to

third party inmates previously produced to counsel for Anderson.
SO STIPULATED.

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Dated: September 29, 2015

Respectfully submitted,
/s/ Chijioke O. Ikonte

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CHIJIOKE O. IKONTE
Law Offices of Akudinobi & Ikonte

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KAMALA D. HARRIS
Attorney General of California
MONICA N. ANDERSON
Supervising Deputy Attorney General

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/s/ R. Lawrence Bragg

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R. LAWRENCE BRAGG
Deputy Attorney General
Attorneys for Defendants Lee, Stovall, and
Swingle

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Good cause appearing, IT IS SO ORDERED, with the clarification that although the

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parties refer to an in camera review, the court has not reviewed any documents and will not

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review any documents without adequate showing and proper notice.

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Dated: October 8, 2015

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An261.po

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(PROPOSED) STIPULATED PROTECTIVE ORDER (2:12-CV-00261 MCE KJN)