Schmuckley et al v. Rite Aid Corporation

Filing 109

STIPULATED PROTECTIVE ORDER signed by Magistrate Judge Edmund F. Brennan on 02/07/18. (Benson, A.)

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MORGAN, LEWIS & BOCKIUS LLP
ERIC W. SITARCHUK, Admitted pro hac vice
[e-mail]
KELLY A. MOORE, Admitted pro hac vice
[e-mail]
TERA M. HEINTZ, Bar No. 241414
[e-mail]
MICHAEL Q. EAGAN, JR., Bar No. 275823
[e-mail]
One Market, Spear Street Tower
San Francisco, CA 94105-1596
Tel: [phone]; Fax: [phone]

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Attorneys for Defendant
RITE AID CORPORATION

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[Additional counsel on signature page]

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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UNITED STATES OF AMERICA, and the
STATE OF CALIFORNIA, et al., ex rel.
LOYD F. SCHMUCKLEY, JR.,
Plaintiffs,

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vs.

STIPULATED HIPAA QUALIFIED
PROTECTIVE ORDER; [PROPOSED]
ORDER THEREON
[Fed. R. Civ. P. 26(c); Local Rule 141.1]

RITE AID CORPORATION,

Complaint Filed: September 21, 2017

Defendant.

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Case No. 2:12-cv-01699-KJM-EFB

STATE OF CALIFORNIA ex rel. LOYD F.
SCHMUCKLEY, JR.,

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Plaintiffs,
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vs.
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RITE AID CORPORATION,
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Defendant.
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MORGAN, LEWIS &
BOCKIUS LLP
ATTORNEYS AT LAW
SAN FRANCISCO

STIPULATED HIPAA QUALIFIED
PROTECTIVE ORDER
Case No. 2:12-CV-01699-KJM-EFB

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RECITALS

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WHEREAS, the State filed its Complaint-in-Intervention (“State’s Complaint”) with the
Court in this action on September 21, 2017 (Dkt. 57);

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WHEREAS, Defendant agreed to waive formal service of the State’s Complaint and

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summons upon it pursuant to Fed. R. Civ. P. 4(d), establishing Defendant’s deadline to respond to

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the State’s Complaint as November 21, 2017 (Dkt. 80);

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WHEREAS, Relator filed his First Amended Complaint (“Relator’s Complaint”) with the
Court in this action on September 28, 2017 (Dkt. 79);

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WHEREAS, Defendant Rite Aid (“Rite Aid”) filed a consolidated motion to dismiss both

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the State’s and Relator’s Complaints with prejudice on January 19, 2018, based on the grounds

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that, among things, Relator and State fail to state a claim under the False Claims Act under

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Federal Rules of Civil Procedure 8 and 9(b);

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WHEREAS, Rite Aid also intends to seek a motion to stay of all discovery in this case

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unless and until the Court rules that Relator and the State have adequately stated a claim against

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Rite Aid, which the State and Relator will oppose;

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WHEREAS, all Parties agree that entry into this Stipulated Protective Order is without

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waiver or prejudice to any party’s position with respect to a stay of discovery pending

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determination of Rite Aid’s motion to dismiss;

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WHEREAS, Local Rule 141.1(c)(3) requires parties to show why a court order should
address the need for protection as opposed to a private agreement among the parties;

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WHEREAS, the documents produced in and relevant to this litigation are likely to

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contain and involve production of confidential, proprietary, or private information, including

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Protected Health Information (“PHI”), for which special protection from public disclosure and

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from use for any purpose other than prosecuting this litigation may be warranted.

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MORGAN, LEWIS &
BOCKIUS LLP

STIPULATION
1.

PURPOSE AND LIMITATIONS
Pursuant to Federal Rule of Civil Procedure 26(c), 45 C.F.R. § 164.512, and the

applicable local rules, the parties stipulate to and petition the court to enter the following

ATTORNEYS AT LAW
SAN FRANCISCO

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STIPULATED HIPAA QUALIFIED
PROTECTIVE ORDER
Case No. 2:12-CV-01699-KJM-EFB

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Stipulated HIPAA Qualified Protective Order. The parties, by and through their respective

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counsel, mutually agree that a protective order that meets the requirements of a “qualified

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protective order,” as that term is defined by 45 C.F.R. § 164.512(e)(1)(v), and mutually agree to

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remain in full compliance with any privacy requirements imposed by regulations promulgated

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under the Health Insurance Portability and Accountability Act of 1996 (45 C.F.R. § 164)

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(“HIPAA”).

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Under the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”),

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covered entities may disclose PHI in the course of any judicial proceeding (1) in response to a

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court order, provided that the covered entity discloses only the PHI expressly authorized by such

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order or (2) in response to a subpoena, discovery request, or other lawful process, that is not

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accompanied by a court order under certain conditions. 45 C.F.R. § 164.512(e)(1). See also Cal.

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Civ. Code § 56.10(b)(1) (allowing disclosure of medical records), Cal. Welf. & Inst. Code §

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5328(f) (allowing disclosure of mental health records).

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The parties acknowledge that this Order does not confer blanket protections on all

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disclosures or responses to discovery and that the protection it affords from public disclosure and

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use extends only to the limited information or items that are entitled to confidential treatment

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under the applicable legal principles. The parties further acknowledge, as set forth in Section

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12.3, below, that this Stipulated Protective Order does not entitle them to file confidential

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information under seal; Federal Rule of Civil Procedure 5.2, Civil Local Rules 141 and 141.1, and

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the Court’s Standing Orders set forth the procedures that must be followed and the standards that

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will be applied when a party seeks permission from the court to file material under seal.

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2.

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DEFINITIONS
2.1

Challenging Party: a Party or Non-Party that challenges the designation of

information or items under this Order.
2.2

“CONFIDENTIAL” Information or Items: information (regardless of how it is

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generated, stored or maintained) or tangible things that qualify for protection as PHI as that term

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is defined under HIPAA and the Federal Regulations enacted pursuant to HIPAA.

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2.3

Counsel (without qualifier): Outside Counsel of Record and House Counsel (as

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STIPULATED HIPAA QUALIFIED
PROTECTIVE ORDER
Case No. 2:12-CV-01699-KJM-EFB

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well as their support staff).
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Designating Party: a Party or Non-Party that designates information or items that it

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produces in disclosures or in responses to discovery as “CONFIDENTIAL PROTECTED

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HEALTH INFORMATION.”

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2.5

Disclosure or Discovery Material: all items or information, regardless of the

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medium or manner in which it is generated, stored, or maintained (including, among other things,

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testimony, transcripts, and tangible things), which is produced or generated in disclosures or

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responses to discovery in this matter.

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2.6

Expert: a person with specialized knowledge or experience in a matter pertinent to

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the litigation who has been retained by a Party or its counsel to serve as an expert witness or as a

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consultant in this action.

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Health Information: defined as set forth in 45 C.F.R. § 160.103.

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2.8

House Counsel: attorneys who are employees of Rite Aid.

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2.9

Non-Party: any natural person, partnership, corporation, association, or other legal

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entity not named as a Party to this action.
2.10

Outside Counsel of Record: attorneys who are not employees of a party to this

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action but are retained to represent or advise a party to this action and have appeared in this action

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on behalf of that party or are affiliated with a law firm which has appeared on behalf of that party.

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2.11

Party: any party to this action, including all of its fiduciaries, trustees,

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recordkeepers, administrators, and their successors in interest, as well as consultants, retained

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experts, insurers, re-insurers, and Outside Counsel of Record (and their support staffs).

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2.12

Producing Party: a Party or Non-Party that produces Disclosure or Discovery

Material in this action.
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Professional Vendors: persons or entities that provide litigation support services

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(e.g., photocopying, videotaping, translating, preparing exhibits or demonstrations, and

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organizing, storing, or retrieving data in any form or medium) and their employees and

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subcontractors.

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Protected Health Information/PHI: defined as set forth in 45 C.F.R. § 160.103.

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STIPULATED HIPAA QUALIFIED
PROTECTIVE ORDER
Case No. 2:12-CV-01699-KJM-EFB

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PHI also includes confidential mental health information and records under California Welfare

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and Institutions Code § 5328(a).

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2.15

Protected Material: any Disclosure or Discovery Material that is designated as

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“CONFIDENTIAL PROTECTED HEALTH INFORMATION,” which designation is not

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challenged or, if challenged, survives such challenge.

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2.16

Receiving Party: a Party that receives Disclosure or Discovery Material from a

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Producing Party.

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3.

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SCOPE
The protections conferred by this Stipulation and Order cover not only Protected Material

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(as defined above), but also (1) any information copied or extracted from Protected Material; (2)

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all copies, excerpts, summaries, or compilations of Protected Material; and (3) any testimony,

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conversations, or presentations by Parties or their Counsel that reveal Protected Material.

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However, the protections conferred by this Stipulation and Order do not cover the following

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information: (a) any information that is in the public domain at the time of disclosure to a

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Receiving Party or becomes part of the public domain after its disclosure to a Receiving Party as

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a result of publication not involving a violation of this Order; and (b) any information known to

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the Receiving Party prior to the disclosure or obtained by the Receiving Party after the disclosure

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from a source who obtained the information lawfully and is under no obligation of confidentiality

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to the Designating Party. Any use of Protected Material at trial shall be governed by a separate

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agreement or order.

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4.

DURATION

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Even after final disposition of this litigation, the confidentiality obligations imposed by

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this Order shall remain in effect until a Designating Party agrees otherwise in writing or a court

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order otherwise directs. Final disposition shall be deemed to be the later of (1) dismissal of all

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claims and defenses in this action, with or without prejudice; and (2) final judgment in this action

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after the completion and exhaustion of all appeals, rehearings, remands, trials, or reviews,

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including the time limits for filing any motions or applications for extension of time pursuant to

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applicable law.

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ATTORNEYS AT LAW
SAN FRANCISCO

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STIPULATED HIPAA QUALIFIED
PROTECTIVE ORDER
Case No. 2:12-CV-01699-KJM-EFB

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5.

DESIGNATING PROTECTED MATERIAL
5.1

Exercise of Restraint and Care in Designating Material for Protection. Each Party

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or Non-Party that designates information or items for protection under this Order must take care

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to limit any such designation to specific material that qualifies under the appropriate standards.

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5.2

Manner and Timing of Designations. Except as otherwise provided in this Order

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(see, e.g., second paragraph of section 5.2(a) below) or as otherwise stipulated or ordered,

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Disclosure or Discovery Material that qualifies for protection under this Order must be clearly so

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designated before the material is disclosed or produced.

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Designation in conformity with this Order requires:
(a)

for information in documentary form (e.g., paper or electronic documents,

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but excluding transcripts of depositions or other pretrial or trial proceedings), that the Producing

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Party affix the phrase “CONFIDENTIAL PROTECTED HEALTH INFORMATION” on each

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page which contains any PHI.

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A Party or Non-Party that makes original documents or materials available for inspection

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need not designate them for protection until after the inspecting Party has indicated which

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material it would like copied and produced. During the inspection and before the designation, all

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of the material made available for inspection shall be deemed “CONFIDENTIAL PROTECTED

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HEALTH INFORMATION.” After the inspecting Party has identified the documents it wants

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copied and produced, the Producing Party must determine which documents, or portions thereof,

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qualify for protection under this Order. Then, before producing the specified documents, the

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Producing Party must affix the “CONFIDENTIAL PROTECTED HEALTH INFORMATION”

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legend to each page that contains Protected Material. If only a portion or portions of the material

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on a page qualifies for protection, the Producing Party also must clearly identify the protected

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portion(s) (e.g., by making appropriate markings in the margins).

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(b)

for testimony given in deposition or in other pretrial or trial proceedings,

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that the Designating Party identify on the record, within thirty days after completion of the

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deposition, hearing, or other proceeding, all protected testimony.

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(c)

for information produced in some form other than documentary and for any

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STIPULATED HIPAA QUALIFIED
PROTECTIVE ORDER
Case No. 2:12-CV-01699-KJM-EFB

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other tangible items, that the Producing Party affix in a prominent place on the exterior of the

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container or containers in which the information or item is stored the legend “CONFIDENTIAL

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PROTECTED HEALTH INFORMATION.” If only a portion or portions of the information or

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item warrant protection, the Producing Party, to the extent practicable, shall identify the protected

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portion(s).

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5.3

Inadvertent Failure to Designate. An inadvertent failure to designate qualified

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information or items does not, standing alone, waive the Designating Party’s right to secure

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protection under this Order for such material. Upon timely correction of a designation, the

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Receiving Party must make reasonable efforts to assure that the material is treated in accordance

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with the provisions of this Order.

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6.

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CHALLENGING CONFIDENTIALITY DESIGNATIONS
6.1

Timing of Challenges. Any Party or Non-Party may challenge a designation of

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confidentiality at any time. Unless a prompt challenge to a Designating Party’s confidentiality

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designation is necessary to avoid foreseeable, substantial unfairness, unnecessary economic

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burdens, or a significant disruption or delay of the litigation, a Party does not waive its right to

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challenge a confidentiality designation by electing not to mount a challenge promptly after the

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original designation is disclosed.

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6.2

Meet and Confer. The Challenging Party shall initiate the dispute resolution

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process by providing written notice of each designation it is challenging and describing the basis

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for each challenge. To avoid ambiguity as to whether a challenge has been made, the written

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notice must recite that the challenge to confidentiality is being made in accordance with this

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specific paragraph of the Protective Order. The parties shall attempt to resolve each challenge in

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good faith and must begin the process by conferring directly within 14 days of the date of service

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of notice, unless otherwise extended by agreement of the parties. In conferring, the Challenging

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Party must explain the basis for its belief that the confidentiality designation was not proper and

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must give the Designating Party an opportunity to review the designated material, to reconsider

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the circumstances, and, if no change in designation is offered, to explain the basis for the chosen

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designation. A Challenging Party may proceed to the next stage of the challenge process only if

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ATTORNEYS AT LAW
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STIPULATED HIPAA QUALIFIED
PROTECTIVE ORDER
Case No. 2:12-CV-01699-KJM-EFB

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it has engaged in this meet and confer process first or establishes that the Designating Party is

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unwilling to participate in the meet and confer process in a timely manner.

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6.3

Judicial Intervention. If the Parties cannot resolve a challenge without court

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intervention, the Challenging Party shall file and serve a motion challenging the confidentiality

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(in compliance with Civil Local Rules 141 and 141.1, if applicable) within 21 days of the initial

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notice of challenge or within 14 days of the parties agreeing that the meet and confer process will

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not resolve their dispute, whichever is earlier, unless this deadline is otherwise extended by

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agreement of the parties. Each such motion must be accompanied by a competent declaration

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affirming that the movant has complied with the meet and confer requirements imposed in the

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preceding paragraph.

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The burden of persuasion in any such challenge proceeding shall be on the Challenging

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Party. While challenges are pending, all parties shall continue to afford the material in question

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the level of protection to which it is entitled under the Producing Party’s designation until the

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court rules on the challenge.

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7.

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ACCESS TO AND USE OF PROTECTED MATERIAL
7.1

Basic Principles. A Receiving Party may use Protected Material that is disclosed

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or produced by another Party or by a Non-Party in connection with this case only for prosecuting,

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defending, or attempting to settle this litigation. Such Protected Material may be disclosed only

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to the categories of persons and under the conditions described in this Order. When the litigation

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has been terminated, a Receiving Party must comply with the provisions of section 13 below

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(FINAL DISPOSITION).

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Protected Material must be stored and maintained by a Receiving Party in a manner that
ensures that access is limited to the persons authorized under this Order.
7.2

Disclosure of “CONFIDENTIAL PROTECTED HEALTH INFORMATION” or

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Items. Unless otherwise ordered by the court or permitted in writing by the Designating Party, a

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Receiving Party may disclose any information or item designated “CONFIDENTIAL

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PROTECTED HEALTH INFORMATION” only to:

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(a)

the Receiving Party’s Outside Counsel of Record in this action, as well as

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STIPULATED HIPAA QUALIFIED
PROTECTIVE ORDER
Case No. 2:12-CV-01699-KJM-EFB

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employees of said Outside Counsel of Record to whom it is reasonably necessary to disclose the

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information for this litigation and who have signed the “Acknowledgment and Agreement to Be

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Bound” that is attached hereto as Exhibit A;

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(b)

fiduciaries, trustees, recordkeepers, administrators, and their successors in

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interest, as well as consultants, retained experts, House Counsel, and Outside Counsel of Record

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(and their support staffs) of the Receiving Party to whom disclosure is reasonably necessary for

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this litigation and who have signed the “Acknowledgment and Agreement to Be Bound”

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(Exhibit A);

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(c)

Experts (as defined in this Order) of the Receiving Party to whom

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disclosure is reasonably necessary for this litigation and who have signed the “Acknowledgment

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and Agreement to Be Bound” (Exhibit A);

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(d)

the court and its personnel;

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(e)

court reporters and their staff, professional jury or trial consultants, mock

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jurors, and Professional Vendors to whom disclosure is reasonably necessary for this litigation

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and who have signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A);

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(f)

during their depositions, witnesses in the action to whom disclosure is

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reasonably necessary and who have signed the “Acknowledgment and Agreement to Be Bound”

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(Exhibit A), unless otherwise agreed by the Designating Party or ordered by the court. Pages of

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transcribed deposition testimony or exhibits to depositions that reveal Protected Material must be

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separately bound by the court reporter and may not be disclosed to anyone except as permitted

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under this Stipulated Protective Order.

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(g)

the author or recipient of a document containing the information or a

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custodian or other person who otherwise possessed, had access to, or knew the information.

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8.

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A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE PRODUCED IN
THIS LITIGATION
(a)

The terms of this Order are applicable to information produced by a Non-

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Party in this action and designated as “CONFIDENTIAL PROTECTED HEALTH

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INFORMATION.” Such information produced by Non-Parties in connection with this litigation

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STIPULATED HIPAA QUALIFIED
PROTECTIVE ORDER
Case No. 2:12-CV-01699-KJM-EFB

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is protected by the remedies and relief provided by this Order. Nothing in these provisions should

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be construed as prohibiting a Non-Party from seeking additional protections.

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(b)

In the event that a Party is required, by a valid discovery request, to

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produce a Non-Party’s PHI in its possession, and the Party is subject to an agreement with the

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Non-Party not to produce the Non-Party’s PHI, then the Party shall:

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(1)

promptly notify in writing the Requesting Party and the Non-Party

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that some or all of the information requested is subject to a confidentiality agreement with a Non-

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Party;

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(2)

promptly provide the Non-Party with a copy of the Stipulated

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Protective Order in this litigation, the relevant discovery request(s), and a reasonably specific

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description of the information requested; and

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(3)

make the information requested available for inspection by the

Non-Party.

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(c)

If the Non-Party fails to object or seek a protective order from this court

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within 14 days of receiving the notice and accompanying information, the Receiving Party may

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produce the Non-Party’s PHI responsive to the discovery request. If the Non-Party timely seeks a

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protective order, the Receiving Party shall not produce any information in its possession or

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control that is subject to the confidentiality agreement with the Non-Party before a determination

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by the court. Absent a court order to the contrary, the Non-Party shall bear the burden and

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expense of seeking protection in this court of its Protected Material.

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(c)

Nothing in this protective order limits any Party from producing material

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under this protective order to other parties, pursuant to requirements of local and federal rules.

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9.

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UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL
If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed Protected

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Material to any person or in any circumstance not authorized under this Stipulated Protective

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Order, the Receiving Party must immediately (a) notify in writing the Designating Party of the

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unauthorized disclosures, (b) use its best efforts to retrieve all unauthorized copies of the

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Protected Material, (c) inform the person or persons to whom unauthorized disclosures were

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STIPULATED HIPAA QUALIFIED
PROTECTIVE ORDER
Case No. 2:12-CV-01699-KJM-EFB

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made of all the terms of this Order, and (d) request such person or persons to execute the

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“Acknowledgment and Agreement to Be Bound” that is attached hereto as Exhibit A.

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10.

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MISCELLANEOUS
10.1

Right to Further Relief. Nothing in this Order abridges the right of any person to

seek its modification by the court in the future.

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10.2

Right to Assert Other Objections. By stipulating to the entry of this Protective

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Order no Party waives any right it otherwise would have to object to disclosing or producing any

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information or item on any ground not addressed in this Stipulated Protective Order. Similarly,

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no Party waives any right to object on any ground to use in evidence of any of the material

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covered by this Protective Order.

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10.3

Filing Confidential Protected Health Information. Without written permission

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from the Designating Party or a court order secured after appropriate notice to all interested

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persons, a Party may not file in the public record in this action any confidential PHI. A Party that

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seeks to file under seal any confidential PHI must comply with Civil Local Rules 141 and 141.1.

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Confidential PHI may only be filed under seal pursuant to a court order authorizing the sealing of

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the specific Confidential PHI. Pursuant to Civil Local Rules 141 and 141.1, a sealing order will

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issue only upon a request establishing that the confidential PHI at issue entitled to protection

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under applicable law, including, but not limited to, HIPAA. If a Receiving Party's request to file

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confidential PHI under seal pursuant to Civil Local Rules 141 and 141.1 is denied by the court,

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then the Receiving Party may file the information in the public record unless otherwise instructed

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by the court.

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11.

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FINAL DISPOSITION
Within 60 days after the final disposition of this action, as defined in paragraph 4, each

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Receiving Party must return all Protected Material to the Producing Party or destroy such

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material. As used in this subdivision, “all Protected Material” includes all copies, abstracts,

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compilations, summaries, and any other format reproducing or capturing any of the Protected

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Material. Whether the Protected Material is returned or destroyed, the Receiving Party must

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submit a written certification to the Producing Party (and, if not the same person or entity, to the

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STIPULATED HIPAA QUALIFIED
PROTECTIVE ORDER
Case No. 2:12-CV-01699-KJM-EFB

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Designating Party) by the 60-day deadline that (1) identifies (by category, where appropriate) all

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the Protected Material that was returned or destroyed and (2) affirms that the Receiving Party has

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not retained any copies, abstracts, compilations, summaries or any other format reproducing or

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capturing any of the Protected Material. Notwithstanding this provision, Counsel are entitled to

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retain an archival copy of all pleadings, motion papers, trial, deposition, and hearing transcripts,

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legal memoranda, correspondence, deposition and trial exhibits, expert reports, attorney work

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product, and consultant and expert work product, even if such materials contain Protected

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Material. However, pursuant to 45 C.F.R. 164.512 (e)(1)(v)(B) all protected health information

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(including all copies) must be returned to the covered entity or destroyed at the end of the

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litigation. Any such archival copies that contain or constitute Protected Material remain subject

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to this Protective Order as set forth in Section 4 (DURATION).

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IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD.

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STIPULATED HIPAA QUALIFIED
PROTECTIVE ORDER
Case No. 2:12-CV-01699-KJM-EFB

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Dated: January 30, 2018

By

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/s/ Emmanuel R. Salazar
EMMANUEL R. SALAZAR (Bar No. 240794)
Deputy Attorney General
2329 Gateway Oaks Drive, Suite 200
Sacramento, CA 95833-4252
Telephone: [phone]
Fax: [phone]
E-mail: [e-mail]
Attorneys for STATE OF CALIFORNIA

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Dated: January 30, 2018

WATERS & KRAUS, LLP

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By
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/s/ Wm. Paul Lawrence, II
WM. PAUL LAWRENCE, II (Pro hac vice)
Washington D.C. Metro Office
37163 Mountville Road
Middleburg, VA 20117
Telephone: [phone]
Fax: [phone]
E-mail: [e-mail]
Attorneys for Qui Tam Plaintiff
LOYD F. SCHMUCKLEY, JR.

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Dated: January 30, 2018

MORGAN, LEWIS & BOCKIUS LLP

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By

/s/ Tera M. Heintz
TERA M. HEINTZ, Bar No. 241414
One Market, Spear Street Tower
San Francisco, CA 94105-1596
Telephone: [phone]
Fax: [phone]
E-mail: [e-mail]
Attorneys for Defendant
RITE AID CORPORATION

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MORGAN, LEWIS &
BOCKIUS LLP
ATTORNEYS AT LAW
SAN FRANCISCO

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STIPULATED HIPAA QUALIFIED
PROTECTIVE ORDER
Case No. 2:12-CV-01699-KJM-EFB

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FILER’S ATTESTATION
I, Tera M. Heintz, am the ECF user whose identification and password are being used to

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file this Stipulated HIPAA Qualified Protective Order. In compliance with L.R. 131(e), I hereby

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attest that Emmanuel R. Salazar and William Paul Lawrence, II authorized and concurred in this

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filing on January 29, 2018.

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Dated: January 30, 2018

/s/ Tera M. Heintz
Tera M. Heintz

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MORGAN, LEWIS &
BOCKIUS LLP
ATTORNEYS AT LAW
SAN FRANCISCO

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STIPULATED HIPAA QUALIFIED
PROTECTIVE ORDER
Case No. 2:12-CV-01699-KJM-EFB

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[PROPOSED] ORDER

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The above having been stipulated by all parties, and the Court having found good cause,

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IT IS SO ORDERED that pursuant to Local Rule 141.1(c), a Protective Order is hereby

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entered which prevents from public disclosure, in accordance with the terms set forth in the

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attached Stipulation, the following category of information:

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Category 1:

All Protected Health Information (“PHI”), as that term is defined in 45

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C.F.R. § 160.103, which may also include mental health information and records under California

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Welfare and Institutions Code § 5328(a), in the possession, control and/or custody of (1) one or

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more Parties to this litigation, or (2) any Non-Party to whom a valid subpoena for document

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preservation and/or production has been issued by a Party to this litigation.
The Court finds that the above-described category of information presents a particularized

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need which justifies prevention of public disclosure of Non-Parties’ PHI. This protective order

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meets the requirements of a “qualified protective order,” as that term is defined by 45 C.F.R.

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§ 164.512(e)(1)(v), and is necessary to protect privacy requirements imposed by regulations

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promulgated under the Health Insurance Portability and Accountability Act of 1996 (45 C.F.R. §

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164 et seq.) (“HIPAA”).

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This need for protection is properly addressed by an order of the Court to comply with

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HIPAA’s requirements concerning the protection of PHI. Namely, HIPAA requires that covered

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entities may disclose PHI in the course of any judicial proceeding (1) in response to a court order,

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provided that the covered entity discloses only the PHI expressly authorized by such order or (2)

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in response to a subpoena, discovery request, or other lawful process, that is not accompanied by

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a court order only (a) after notification is provided to the individual whose PHI may be disclosed,

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or (b) after obtaining assurances of “reasonable efforts” to secure a “qualified protective order,”

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such as this one. 45 C.F.R. § 164.512(e)(1)(i)—(ii); see also id. § 164.512(e)(1)(v) (defining

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“qualified protective order” as “an order of the court” or stipulation of the Parties). Thus, a

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qualified protective order from the Court is proper to ensure, and provide assurance to Non-

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Parties that, PHI produced in this matter will be maintained confidentially without the need to

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provide notification to each individual, numbering in the hundreds, whose PHI may be produced

MORGAN, LEWIS &
BOCKIUS LLP
ATTORNEYS AT LAW
SAN FRANCISCO

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STIPULATED HIPAA QUALIFIED
PROTECTIVE ORDER
Case No. 2:12-CV-01699-KJM-EFB

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in this matter.

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Dated: February 7, 2018.

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MORGAN, LEWIS &
BOCKIUS LLP
ATTORNEYS AT LAW
SAN FRANCISCO

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STIPULATED HIPAA QUALIFIED
PROTECTIVE ORDER
Case No. 2:12-CV-01699-KJM-EFB

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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], declare under penalty of

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perjury that I have read in its entirety and understand the Stipulated HIPAA Qualified Protective

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Order that was issued by the United States District Court for the Eastern District of California on

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[date] in the case of Schmuckley, et al. v. Rite Aid Corporation, Case No. 2:12-cv-01699-KJM-

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EFB. I agree to comply with and to be bound by all the terms of this Stipulated HIPAA Qualified

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Protective Order 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 promise that I will not disclose in any

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

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Order to any 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 the

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Eastern District of California for the purpose of enforcing the terms of this Stipulated HIPAA

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Qualified Protective Order, even if such proceedings occur after termination of this action.

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Date: ___________________________________________

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City and State where sworn and signed: _______________________________________

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Printed name: ____________________________________

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Signature: _______________________________________

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MORGAN, LEWIS &
BOCKIUS LLP
ATTORNEYS AT LAW
SAN FRANCISCO

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STIPULATED HIPAA QUALIFIED
PROTECTIVE ORDER
Case No. 2:12-CV-01699-KJM-EFB