Schmuckley et al v. Rite Aid Corporation

Filing 136

STIPULATED ADDENDUM and ORDER signed by Magistrate Judge Edmund F. Brennan on 9/10/2018 re 109 Protective Order. (Washington, S)

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XAVIER BECERRA
Attorney General of California
VINCENT DICARLO
Supervising Deputy Attorney General
BERNICE L. LOUIE YEW, State Bar No. 114601
Deputy Attorney General
E-mail: [e-mail]
EMMANUEL R. SALAZAR, State Bar No. 240794
Deputy Attorney General
E-mail: [e-mail]
2329 Gateway Oaks Drive, Suite 200
Sacramento, CA 95833-4252
Telephone: [phone]
Fax: [phone]

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Attorneys for State of California
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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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UNITED STATES OF AMERICA, et al., ex
rel. LOYD F. SCHMUCKLEY, JR.,

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2:12-CV-1699-KJM-EFB
STIPULATED ADDENDUM TO
FEBRUARY 8, 2018 STIPULATED HIPAA
QUALIFIED PROTECTIVE ORDER
[DKT. 109]; [PROPOSED] ORDER
THEREON

Plaintiffs,
v.

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RITE AID CORPORATION,

[Fed. R. Civ. P. 26(c); Local Rule 141.1]

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Defendant.

Complaint Filed: September 21, 2017

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

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Plaintiff,
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v.
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RITE AID CORPORATION,
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Defendant.
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STIPULATED ADDENDUM TO FEBRUARY 8, 2018 STIPULATED
HIPAA QUALIFIED PROTECTIVE ORDER [DKT. 109] (2:12-CV-1699 KJM EFB)

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RECITALS
WHEREAS, on September 21, 2017, Plaintiff-Intervenor State of California (“California”)
filed its Complaint-in-Intervention in the above-captioned False Claims Act qui tam matter;
WHEREAS, the parties stipulated to and the Court entered a Stipulated HIPAA Qualified
Protective Order (“HIPAA QPO”) on February 8, 2018 [Dkt. 109];

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WHEREAS, nothing in this Addendum shall be construed as an alteration and/or expansion

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of the parties’ duties to preserve the confidentiality of Protected Health Information as required by

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the HIPAA QPO and/or as required by the applicable regulations promulgated under the Health

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Insurance Portability and Accountability Act of 1996 (45 C.F.R. § 164), as amended (“HIPAA”);

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WHEREAS, on May 29, 2018, the Court issued a Status (Pretrial Scheduling) Order [Dkt.

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128], adopting California’s and Relator Loyd F. Schmuckley, Jr.’s request to conduct discovery in

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phases, the first phase evaluating the validity of California’s statistical sampling methodology, and

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ordering California to make disclosures concerning its statistics experts and the design of the

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statistical sample at the earliest feasible point during the first stage of discovery so that Defendant

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Rite Aid Corporation (“Rite Aid”) can conduct discovery concerning the same;

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WHEREAS, in connection with the design of the statistical sample in this matter and the

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Court’s Case Status Order of May 29, 2018 [Dkt. 128], California’s investigation prior to filing its

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Complaint-in-Intervention involved obtaining and reviewing Medi-Cal claims data that contain

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social security numbers and other potentially individually identifiable health information of more

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than 120,000 Medi-Cal beneficiaries for whom Rite Aid submitted claims for payment;

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WHEREAS, California has provided the same unredacted, non-anonymized Medi-Cal

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claims data described above to its testifying expert, Michael J. Petron, CPA, CFE, whom California

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retained to provide expert opinion supporting the validity of California’s sampling methodology

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in this matter;

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WHEREAS, Rite Aid claims that California’s provision of the same unredacted, non-

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anonymized Medi-Cal claims data described above to its testifying sampling methodology expert

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requires the same production of such unredacted, non-anonymized Medi-Cal claims data to Rite

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Aid under Federal Rule of Civil Procedure 26(a)(2).
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STIPULATED ADDENDUM TO FEBRUARY 8, 2018 STIPULATED
HIPAA QUALIFIED PROTECTIVE ORDER [DKT. 109] (2:12-CV-1699 KJM EFB)

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STIPULATION

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

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local rules, the parties stipulate to and petition the Court to enter the following Addendum to the

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currently effective Stipulated HIPAA Qualified Protective Order (“HIPAA QPO”) [Dkt. 109].

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The parties acknowledge that nothing in this stipulation expands, diminishes or otherwise

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alters any of the duties and procedures required under the terms of the HIPAA QPO [Dkt. 109]

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and/or any applicable regulations promulgated under HIPAA or related California privacy law. This

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stipulated Addendum only addresses the need for protection of Personally Identifying Information,

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such as, but not limited to, social security numbers, of Medi-Cal beneficiaries and/or Rite Aid

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pharmacy customers that may be reflected and/or contained in the documents, records and data

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relevant to this matter.

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ADDENDUM TO HIPAA QPO
The parties agree to the following addendum to the Stipulated HIPAA Qualified Protective
Order [Dkt. 109], as follows:
1.

The parties agree to adopt and add to the Stipulated HIPAA Qualified Protective Order

all the above-mentioned recitals;
2.

The parties agree to supplement section 2. DEFINITIONS by adding the following

provision:

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2.17 Personally Identifying Information/PII: This term shall encompass both (i) the

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definition of “personal information” set forth in California Civil Code § 1798.3 and (ii) the

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definition of “patient identifying information” set forth in 42 C.F.R. § 2.11.

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3.

The parties agree to modify definition 2.2 “CONFIDENTIAL” Information or Items to

now read as follows:

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information (regardless of how it is generated, stored or maintained) or tangible things

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that qualify for protection as: (1) PHI as that term is defined under HIPAA and the

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Federal Regulations enacted pursuant to HIPAA; and/or (2) PII as defined herein.

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4.

The parties agree that wherever it appears within Section 5.2 and Section 8 of the

HIPAA QPO, the defined term “PHI” shall now be read to mean “PHI and/or PII.”
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STIPULATED ADDENDUM TO FEBRUARY 8, 2018 STIPULATED
HIPAA QUALIFIED PROTECTIVE ORDER [DKT. 109] (2:12-CV-1699 KJM EFB)

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5.

The parties agree to supplement section 10. MISCELLANEOUS by adding the

following provision:

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10.4 Filing Confidential Personally Identifying Information/PII. A Party seeking to

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file in the public record any Protected Material that reflects or contains PII shall comply with Civil

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Local Rule 140(a) regarding the redaction of “personal data identifiers.”

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IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD.
Dated: September 7, 2018

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By

/s/ Emmanuel R. Salazar
Emmanuel R. Salazar
Deputy Attorney General

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Attorneys for STATE OF CALIFORNIA
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Dated: September 7, 2018

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WATERS & KRAUS, LLP
By /s/ Wm. Paul Lawrence, II as authorized on
9/7/18
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]

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Attorneys for Qui Tam Plaintiff
LOYD F. SCHMUCKLEY, JR.

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Dated: September 7, 2018

MORGAN, LEWIS & BOCKIUS LLP
By
/s/ Michael Q. Eagan, Jr. as authorized on
9/7/18
Michael Q. Eagan, Jr.
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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STIPULATED ADDENDUM TO FEBRUARY 8, 2018 STIPULATED
HIPAA QUALIFIED PROTECTIVE ORDER [DKT. 109] (2:12-CV-1699 KJM EFB)

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[PROPOSED] ORDER
The above modifications having been stipulated by all parties, and the Court having found
good cause,
IT IS SO ORDERED that the above stipulated addendum to the Stipulated HIPAA
Qualified Protective Order [Dkt. 109] is approved.

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Dated: September 10, 2018.

______________________________________
EDMUND F. BRENNAN
UNITED STATES MAGISTRATE JUDGE

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STIPULATED ADDENDUM TO FEBRUARY 8, 2018 STIPULATED
HIPAA QUALIFIED PROTECTIVE ORDER [DKT. 109] (2:12-CV-1699 KJM EFB)