Ahmed v. Beverly Health and Rehabilitation Services, Inc., et al.

Filing 19

STIPULATED PROTECTIVE ORDER signed by Magistrate Judge Kendall J. Newman on 1/11/2017. (Washington, S)

1
2
3
4
5
6
7
8

JESSICA G. WILSON (SBN 254366)
[e-mail]
CHARLES M. ROESCH
[e-mail] (pro hac vice pending)
DREW B. MILLAR
[e-mail] (pro hac vice pending)
DINSMORE & SHOHL LLP
655 West Broadway
Suite 840
San Diego, CA 92101
Phone [phone]
Fax [phone]
Attorneys for Defendants
BEVERLY HEALTH AND REHABILITATION SERVICES, INC.;
GGNSC ADMINISTRATIVE SERVICES, LLC

9
UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF CALIFORNIA

10
11
12

15
16

STIPULATED PROTECTIVE ORDER

Plaintiff,

13
14

CASE NO. 2:16−cv-01747-WBS-KJN

HENNA AHMED, an individual,

v.
BEVERLY HEALTH
AND REHABILITATION SERVICES,
INC.; GGNSC ADMINISTRATIVE
SERVICES, LLC and Does 1-100, inclusive,

Action Filed:
Trial Date:

July 25, 2016
March 13, 2018

17
18

Defendants.

19
20

In order to facilitate the production of documents in this case, yet protect the Parties'

21

confidences and proprietary interests, and in order to comply with the Health Insurance Portability

22

and Accountability Act (HIPAA) regulations, specifically 45 C.F.R. § 164.512(e), which sets forth

23
24

the requirements for disclosure of Protected Health Information in the course of a judicial
proceeding, as well as the Graham-Leach-Bliley Act, which sets forth the requirements for

25
26
27

confidentiality of personal information (such as financial information), the Parties have agreed that
confidential or proprietary documents and information should be kept confidential, used only for

28
STIPULATED PROTECTIVE ORDER

1

purposes of this litigation, and disclosed only to certain designated persons. The Court being

2

sufficiently advised, and with the agreement of the Parties, the Court hereby orders the following,

3

pursuant to Federal Rule of Civil Procedure 26(c) and Local Rule 141.1:

4
5
6

1.

"Confidential" information shall specifically include, but shall not be limited to,

Defendants’ proprietary information (including internal policies and procedures), documents with
private information regarding third parties, and protected health information ("PHI"), as that term is

7
defined in HIPAA and its accompanying Standards for Privacy of Individually Identifiable Health
8
9

Information ("the Privacy Rule") and Security Standards for the Protection of Electronic Protected

10

Health Information ("the Security Rule") codified at 45 C.F.R. Parts 160 and Part 164, Subparts A, C,

11

and E, as amended by the HITECH Act and its implementing regulations, and personal information

12

("PI"), as that term is defined in the Graham-Leach-Bliley Act ("GLB Act"), that is in the possession

13
14

of any party and is requested to be produced in this litigation. PHI includes Electronic Protected
Health Information or "ePHI" as that term is defined by the Security Rule.

15
16

2.

Unless and until otherwise ordered by this Court or consented to in writing by the

17

parties, all documents, tangible materials, and/or information produced and designated as

18

"Confidential Information" shall be made available only to "Qualified Persons" as defined in

19
20

paragraph 3, below, who shall be advised of this Order and that disclosure of such Confidential
Information is not permitted as to anyone who is not a Qualified Person hereunder.

21
22

3.

This Order applies to all documents, tangible materials and/or information

23

produced by Plaintiff and Defendants and any third-party (not a party to this litigation) that

24

contain or consist of information believed to be subject to protection and which are in good faith

25
26

designated by Plaintiff or Defendants as "Confidential Information" pursuant to Paragraph 5,
below. This Protective Order shall be construed as requiring the parties to produce all relevant

27
28
2
STIPULATED PROTECTIVE ORDER

1

PHI and PI, and shall be considered a Court Order that satisfies the HIPAA Privacy Rule and GLB

2

Act requirements that a court order be obtained prior to disclosure of PHI or PI.

3

Unless otherwise ordered by this Court, all such Confidential Information:

4

(a) shall be revealed only to the persons designed as "Qualified Persons" under paragraph 4,

5
below;
6
7
8
9

(b) shall be used solely in accordance with the terms of this Order and in connection with the
preparation for trial of this case and any appeals therefrom;
(c) shall not be used or communicated for any business, commercial, or other purpose;

10
11

(d) shall be maintained in strict confidence by the party to whom it is produced; and

12

(e) shall, if to be filed with the Court after the granting of a Request to Seal, be placed in a

13

sealed envelope, or other appropriate sealed container.

14
15

Nothing contained in this Agreement shall be construed as giving any person advance

16

permission to file a document under seal. No document treated as confidential under this Order

17

may be filed under seal unless the court, on separate motion for good cause shown, grants leave to

18

file under seal.

19

4.

The term "Qualified Persons" as used in this Order shall include only the following:

20
21

(a) Plaintiff;

22

(b) Counsel of record for both parties and all attorneys, paralegals, and employees of the law

23

firm of such counsel of record assisting in the preparation for trial of this case;

24
25
26

(c) Defendants’ designated employees assisting in the preparation for trial of this case;
(d) experts who are assisting counsel of record in the preparation for trial of this case;

27
28

(e) the judge, and any court personnel and reporter assigned to this case;
3
STIPULATED PROTECTIVE ORDER

1

(f) any witness deposed in this case who in the good faith opinion of counsel of record must

2

be deposed about the contents of any documents or information subject to this Order in preparation

3

for the trial of this case; and

4

(g) any court reporter necessary for such deposition.

5
6

5.

All "Confidential Information" that is subject to this Order shall be designated or

7

labeled in the following manner: there shall be placed clearly on the face of such Confidential

8

Information a designation which adequately identifies it as subject to the terms of this Order, such as

9

a stamp reading "Confidential." If such Confidential Information consists of a document that has

10

multiple pages, the Confidential designation shall be placed on each page of the document.

11
12

6.

Prior to making any Confidential Information available to any Qualified Person,

13

counsel for the party making any Confidential Information available shall be responsible for

14

providing the Qualified Person with a copy of this Order and ensuring that the Qualified Person

15

understands this Order and the obligations imposed upon Qualified Persons as set forth herein,

16

including the obligation to return all such Confidential Information as noted in Paragraph 8. Any

17
person to whom PHI or PI is provided pursuant to this Protective Order shall be shown a copy of
18
19
20

this Order and acknowledge in writing that he/she shall be subject to its terms.
7.

The Parties shall refrain from referring in open court to any Confidential

21

documents or information, except under such conditions and safeguards, such as in camera

22

proceedings, as the Court may impose to protect against its disclosure. Counsel for the parties

23

hereby consent to and agree not to object to a request for such an in camera proceeding. The Clerk

24

of Court shall retain PHI and PI identified by the Parties in the Court file or received into evidence

25
26
27

by the Court and, upon completion of the case, shall destroy such records in accordance with all
applicable Rules of Court.

28
4
STIPULATED PROTECTIVE ORDER

8.

1

At the completion of the case, upon written request of counsel, any and all copies of

2

discovery provided by a party pursuant to this Protective Order and/or the data and information

3

contained therein, and any other discovery designated “Confidential Information” in the possession of

4

persons other than the Court, shall be returned to the producing party’s counsel of record.

5
9.

6

Any party who questions or challenges whether any particular information should

7

be designated as "Confidential" shall first contact the party designating the information

8

"Confidential" to discuss the matter and attempt to reach a mutually-agreeable resolution of the

9

matter.

10

If the Parties cannot resolve a challenge without court intervention, the Designating Party

11

shall file and serve a motion to retain confidentiality within 21 days of the initial notice of

12

challenge or within 14 days of the parties agreeing that the meet and confer process will not

13

resolve their dispute, whichever is earlier.

14

competent declaration affirming that the movant has complied with the meet and confer

15

requirements imposed in the preceding paragraph. Failure by the Designating Party to make such

16

a motion including the required declaration within 21 days (or 14 days, if applicable) shall

17

automatically waive the confidentiality designation for each challenged designation. In addition,

18

the Challenging Party may file a motion challenging a confidentiality designation at any time if

19

there is good cause for doing so, including a challenge to the designation of a deposition transcript

20

or any portions thereof. Any motion brought pursuant to this provision must be accompanied by a

21

competent declaration affirming that the movant has complied with the meet and confer

22

requirements imposed by the preceding paragraph.

23

challenge proceeding shall be on the Designating Party. Frivolous challenges, and those made for

24

an improper purpose (e.g., to harass or impose unnecessary expenses and burdens on other parties)

25

may expose the Challenging Party to sanctions. Unless the Designating Party has waived the

26

confidentiality designation by failing to file a motion to retain confidentiality as described above,

27

all parties shall continue to afford the material in question the level of protection to which it is

Each such motion must be accompanied by a

The burden of persuasion in any such

28
5
STIPULATED PROTECTIVE ORDER

1

entitled under the Producing Party’s designation until the court rules on the challenge.

2
3

10.

The parties acknowledge and understand that the Court retains its inherent right to

4

alter the provisions of this Protective Order when the Court believes the interests of justice will be

5

served by any such alteration. The parties further agree that they may apply to the Court for

6

modification of the Order.

7
SO ORDERED, except that the Clerk of Court shall not return to the parties, or destroy,
8
9

Confidential materials filed under seal upon completion of the action. Such materials shall be

10

retained under seal in the court’s records, pursuant to the court’s regular procedures.

11

Dated: January 11, 2017

12
13
14

WE AGREE TO THE FOREGOING ORDER:

15
16
17

Dated: January 9, 2017

DINSMORE & SHOHL
By:

18

/s/ Andrew B. Millar
Andrew B. Millar
Attorney for Defendants

19

MAYALL HURLEY

20

By:

21

/s/ Robert Wasserman (w/permission)
Robert Wasserman
Attorney for Plaintiff

22
23
24
25
26
27
28
6
STIPULATED PROTECTIVE ORDER