Schaldach v. Dignity Health, et. al.
Filing
17
STIPULATED PROTECTIVE ORDER signed by Magistrate Judge Kendall J. Newman on 1/7/2013. (Zignago, K.)
1
2
3
4
5
A PROFESSIONAL CORPORATION
Nancy J. Sheehan, SBN 109419
Katherine L.M. Mola, SBN 264625
350 University Avenue, Suite 200
Sacramento, California 95825
(916) 929-1481
(916) 927-3706 (facsimile)
6
9
Attorneys for Defendants
DIGNITY HEALTH, fka CATHOLIC HEALTHCARE WEST, DIGNITY HEALTH
MEDICAL FOUNDATION (erroneously sued as MERCY MEDICAL GROUP); SHELLEY
NOYES (erroneously sued as SHELLY), DEDRA BOUCHARD and A.C. SAECHAO
(erroneously sued as SAECHOU)
10
UNITED STATES DISTRICT COURT, EASTERN DISTRICT OF CALIFORNIA
7
8
11
12
LINDA M. SCHALDACH, fka LINDA M.
LOWRY,
No. 2:12-CV-02492-MCE-KJN
13
14
15
16
STIPULATION
AND
PROTECTIVE ORDER
Plaintiff,
[PROPOSED]
v.
DIGNITY HEALTH, et al.,
17
Defendants.
Complaint Filed: July 26, 2012
18
19
Plaintiff LINDA M. SCHALDACH and Defendants DIGNITY HEALTH, DIGNITY
20
HEALTH MEDICAL FOUNDATION (erroneously sued as MERCY MEDICAL GROUP),
21
SHELLEY NOYES (erroneously sued as SHELLY), DEDRA BOUCHARD and A.C.
22
SAECHAO (erroneously sued as SAECHOU), by and through their undersigned counsel, and
23
subject to the approval of the Court, stipulate to the following Protective Order, as set forth
24
below:
25
This lawsuit arises out of the termination of Plaintiff LINDA SCHALDACH’s
26
employment with DIGNITY as a Medical Office Receptionist I.
27
Receptionist I, Plaintiff was exposed to confidential information about DIGNITY’s patients.
28
Plaintiff was terminated in July 2011 for alleged violations of the Health Insurance Portability and
As a Medical Office
1
STIPULATION AND [PROPOSED] PROTECTIVE ORDER
{01082765.DOC}
1
Accountability Act (HIPAA) and DIGNITY’s Network Usage Policy that occurred while she was
2
accessing patient information. Plaintiff disputes that her termination was for these performance-
3
based reasons. Instead, Plaintiff contends that she was terminated because of, among other
4
reasons, her age and disability in violation of federal and California anti-discrimination statutes.
5
The parties acknowledge and agree that certain deposition testimony and potentially
6
discoverable documents in this case will contain confidential information regarding non-parties,
7
including non-party DIGNITY patients and current and former employees. This information is
8
integral to proving or disproving that Plaintiff was terminated and subjected to other disciplinary
9
actions for the reasons alleged by the parties. Without a protective order in place, if such
10
information is required to be produced in discovery, it may run afoul of privacy rights guaranteed
11
under the United States Constitution, HIPAA, the California Evidence Code, and Article I,
12
Section 1 of the California Constitution.
13
Subject to and without waiving any statutory or Constitutional privileges or objections to
14
the admissibility or discoverability of any testimony, information or documents produced in
15
connection with this Order, the parties stipulate that access to and use of such testimony,
16
documents, and information shall be governed by the provisions of this Stipulated Protective
17
Order and that the terms set forth herein may be entered by the Court, pursuant to Federal Rules
18
of Civil Procedure 26(c). This Stipulated Protective Order shall also apply to all copies, extracts,
19
and summaries of designated documents.
20
I.
21
DESIGNATION OF CONFIDENTIAL DOCUMENTS
22
A.
“Confidential” materials shall be all documents that are handwritten, typewritten,
23
printed, photostated, photographed, photocopied, transmitted by electronic mail or facsimile, and
24
recorded by every means upon any tangible thing, any form of communication or representation,
25
including letters, words, pictures, sounds or symbols, or combinations thereof, and any records
26
thereby created regardless of the manner in which the record has been stored, which contain
27
confidential and private information pertaining to any current or former DIGNITY HEALTH
28
patient, and/or third persons who are not parties to this suit.
Any document designated as
2
STIPULATION AND [PROPOSED] PROTECTIVE ORDER
{01082765.DOC}
1
“Confidential” by a party producing that document shall, without more, subject that material to the
2
provisions of this Stipulated Protective Order.
3
4
B.
The scope of this Stipulated Protective Order is limited to the following categories
of documents which may or may not be subject to discovery:
5
1. Documents related to Plaintiff’s access to patient-related information for her
6
current or former family members, including Patient Access Reports,
7
documentation regarding whether Plaintiff’s family members authorized her to
8
obtain or access their records, messages sent by Plaintiff to her family
9
members’ medical providers regarding her family members, and any other
10
report or document that reflects whether Plaintiff accessed her family members’
11
records.
12
2. Private third party personnel information regarding current or former DIGNITY
13
14
HEALTH employees.
Any document may be designated as “Confidential” upon a good faith
C.
15
determination by a party that the document falls within the purview of one of the specified
16
categories of protected documents by stamping or affixing the word “CONFIDENTIAL” on the
17
face of the document. Tangible things other than documents (e.g., audio tapes, products, computer
18
disks, etc.) may be designated by stamping or affixing the designation to the item or its container
19
as appropriate.
20
A party producing a “Confidential” document may redact any private information
D.
21
which may be affected by dissemination of the “Confidential” document. Redactions shall be
22
made by such method that the masking of any text is readily apparent to persons reviewing the
23
“Confidential” document, and the document shall also be marked “Redacted.” Furthermore, the
24
redaction shall be documented in a privilege log.
25
26
27
28
Any party may designate material as “Confidential” after production, only under
E.
the following conditions:
1. The party to whom such documents have been produced must be advised in writing
of the new designation;
3
STIPULATION AND [PROPOSED] PROTECTIVE ORDER
{01082765.DOC}
1
2
2. The new designation applies only as of the date and time of receipt of notice by the
party notified;
3
4
3. The party to whom such documents have been disclosed must be provided with
another copy of the documents that bears the new and correct designation;
5
4. The party to whom such documents have been produced must make a good faith
6
effort to immediately retrieve any information disclosed to persons not authorized by this
7
Protective Order to receive such information, and obtain an agreement from the persons to whom
8
the disclosure was made to be bound by this Protective Order.
9
II.
10
RESTRICTIONS REGARDING CONFIDENTIAL DOCUMENTS
11
12
13
14
No “Confidential” documents produced by any party shall be used for any purpose
A.
other than the litigation, preparation for, and trial of this case.
There shall be no disclosure of documents designated as “Confidential” to anyone
B.
other than the following:
15
1. The parties to the case, including current employees, officers, or directors of a
16
corporation or entity party responsible for assisting counsel in the litigation and who have a
17
reasonable need to know the contents of the “Confidential” documents;
18
19
2. The parties’ attorneys, and the attorneys’ staff, including, but not limited to, outside
copy service personnel;
20
21
3. Experts and consultants retained by attorneys for the parties in the preparation or
presentation of the case; and
22
23
24
25
26
4. The court or other officer who presides over any proceeding in the case, and to
court reporters as necessary.
If a party wishes to file a “Confidential” document with the court, the party must
C.
seek to do so under seal in compliance with Local Rule 141.
D.
Disclosure
27
1. Other than the parties’ attorneys, any person to whom Confidential documents or
28
their information are to be disclosed shall be provided and required to read a copy of this
4
STIPULATION AND [PROPOSED] PROTECTIVE ORDER
{01082765.DOC}
1
Stipulated Protective Order before disclosure of such information to that person. The person must
2
agree to abide by the terms of this Stipulated Protective Order by executing a non-disclosure
3
agreement in the form of Attachment A, that acknowledges that the person has reviewed the
4
Stipulated Protective Order, that the person understands the Stipulated Protective Order, and that
5
the person agrees to abide by the Stipulated Protective Order, and by providing the signed
6
agreement to counsel who intends to make such disclosure. Counsel for each party shall maintain
7
a list of the names of all persons to whom he, she, or they have disclosed Confidential documents
8
or the information contained therein, and shall, upon three business days notice, produce to any
9
other party copies of such agreements for inspection and copying.
10
2. Whenever, during the course of a deposition, “Confidential” documents or
11
information are utilized by the examining attorney, only those persons permitted access to such
12
documents pursuant to this Stipulated Protective Order shall be present at the deposition. Counsel
13
for the party noticing the deposition shall instruct the court reporter that he or she is to ensure that
14
all exhibits containing “Confidential” exhibits are labeled prominently as “CONFIDENTIAL,”
15
and that originals or copies of such “Confidential” exhibits may be released to no one except
16
counsel for the parties.
17
3. Any party to this Stipulation may designate testimony given during a deposition as
18
“Confidential” via the party’s counsel making a statement on the record before or during the
19
testimony that is “Confidential” and subject to this stipulation and order. The portions of a
20
deposition which contain “Confidential” testimony shall be prepared by the court reporter in a
21
separate transcript.
22
III.
23
GENERAL
24
A.
The terms of this Stipulated Protective Order shall be binding on all parties from
25
the time that all parties’ counsels have signed the Stipulation, even if the Court has not signed the
26
Order.
27
28
B.
This Stipulated Protective Order may be modified or terminated by the court for
good cause shown, or by signed stipulation by all parties.
5
STIPULATION AND [PROPOSED] PROTECTIVE ORDER
{01082765.DOC}
1
C.
Any party for good cause may apply to the court to challenge a designation made
2
by any other party, or to reveal information that the producing party has redacted, after an attempt
3
has been made to meet and confer over the issue. Upon such a request to the court to challenge
4
the designation made, the court shall first review the documents and determine whether the
5
designation is appropriate. The parties shall comply with this Stipulated Protective Order unless
6
the court orders otherwise.
7
8
D.
The party designating material as “Confidential” may waive any of the provisions
of this Stipulated Protective Order in writing.
9
E.
The parties agree that they will meet and confer with the court as necessary about
10
the handling of material designated by any of the parties as “Confidential,” produced pursuant to
11
this Stipulated Protective Order for trial purposes.
12
concession by any party that its presentation at trial of evidence relevant to its claims or defenses
13
should be restricted in any manner.
14
F.
Nothing herein shall be construed as a
This Order shall be without prejudice to present a stipulation or motion to the court
15
under Federal Rules of Civil Procedure 26(c) for a separate Protective Order as to any particular
16
document or information, including restrictions different from those as specified herein. This shall
17
not be deemed to prejudice the parties in any way in any future application for modification of this
18
Stipulation and Order.
19
IV.
20
TERMINATION OF THE LITIGATION
21
A.
Within twenty days after a final unopposed judgment or demand after settlement,
22
all original “Confidential” materials and all copies or portions thereof containing or reflecting
23
information from “Confidential” documents shall be returned to counsel for the producing party.
24
B.
This Stipulated Protective Order shall survive and remain in full force and effect
25
after the termination of this case and may be enforced as a contract between the parties, or by
26
application to the court for a finding of contempt.
27
///
28
///
6
STIPULATION AND [PROPOSED] PROTECTIVE ORDER
{01082765.DOC}
1
IT IS SO STIPULATED.
2
3
Dated: January 2, 2013
PORTER SCOTT
A PROFESSIONAL CORPORATION
4
5
By _/s/Katherine L.M. Mola_____________
Nancy J. Sheehan
Katherine L.M. Mola
Attorneys for Defendants
6
7
8
9
Dated: January 2, 2013
10
11
By ___/s/Robert R. Schaldach____________
Robert R. Schaldach
[as authorized on 1/2/13]
Attorney for Plaintiff
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
7
STIPULATION AND [PROPOSED] PROTECTIVE ORDER
{01082765.DOC}
1
ORDER
2
Having reviewed the above Stipulation, considered the applicable law, and good cause
3
appearing, THE COURT ORDERS AS FOLLOWS: With the alterations described in the two
4
paragraphs below, the parties’ stipulation is approved, with the understanding that it governs
5
relations between the parties and the discovery phase of litigation, and does not predetermine any
6
issues related to the sealing or redaction or retention of documents filed with or otherwise
7
presented to the court. See Local Rules 140, 141.
8
As to Part III, paragraph C, the provision appears to envision the court completing an in
9
camera review of documents anytime the parties disagree about the documents being designated
10
as “Confidential.” Accordingly, the undersigned hereby alters that provision and orders that in the
11
event a party wishes to challenge a designation of “Confidential” made by any other party, or to
12
reveal information that the producing party has redacted, the parties shall meet and confer over the
13
issue. If the issue is not resolved through meet and confer efforts, the parties shall proceed in
14
compliance with Eastern District Local Rule 251, including but not limited to the filing of a Joint
15
Statement re: Discovery Dispute. Only after the parties fully comply with Local Rule 251 will the
16
undersigned consider completing an in camera review of the documents in question.
17
As to Part IV, paragraph B, the provision appears to suggest that the court will retain
18
jurisdiction over this matter following the termination of this case. The undersigned is not
19
inclined to approve a stipulated protective order that might require this court to retain jurisdiction
20
regarding confidential information after the termination of this action.
21
undersigned hereby alters that provision and orders that the Stipulated Protective Order shall
22
survive and remain in full force and effect such that it may be enforced as a contract between the
23
parties after the termination of this case, but the court will not retain jurisdiction after the
24
termination of this case.
25
26
Accordingly, the
IT IS SO ORDERED.
Date: 1/7/2013
27
_____________________________________
KENDALL J. NEWMAN
UNITED STATES MAGISTRATE JUDGE
28
8
STIPULATION AND [PROPOSED] PROTECTIVE ORDER
{01082765.DOC}
1
ATTACHMENT A
NONDISCLOSURE AGREEMENT
2
3
4
I, _______________________________, hereby swear that I am fully familiar with the terms and
5
conditions of the Stipulated Protective Order entered in Linda Schaldach v. Dignity Health et al.,
6
United States District Court for the Eastern District of California, Case No. 2:12-CV-02492-MCE-
7
KJN, and hereby agree to comply with and be bound by the terms and conditions of said Order,
8
9
unless and until modified by further Order of this Court. I hereby consent to the jurisdiction of
10
said Court for purposes of enforcing this Order.
11
Dated: _______________
________________________________
12
13
ad4mc0d
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
9
STIPULATION AND [PROPOSED] PROTECTIVE ORDER
{01082765.DOC}
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?