San Joaquin General Hospital v. Cigna Healthcare of California, Inc. et al.

Filing 11

STIPULATED PROTECTIVE ORDER signed by District Judge Morrison C. England, Jr. on 6/19/2017. (Zignago, K.)

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LAW OFFICES OF STEPHENSON,
ACQUISTO & COLMAN, INC.
MELANIE JOY STEPHENSON-LAWS, ESQ. (SBN 113755)
BARRY SULLIVAN, ESQ.
(SBN 136571)
RICHARD A. LOVICH, ESQ. (SBN 113472)
KARLENE J. ROGERS-ABERMAN, ESQ. (SBN 237803)
BARBARA V. LAM, ESQ.
(SBN 231073)
303 N. Glenoaks Blvd., Suite 700
Burbank, CA 91502
Telephone: [phone]
Facsimile: [phone]
Attorneys for Plaintiff
SAN JOAQUIN GENERAL HOSPITAL

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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Case No.: 2:16-cv-01921-MCE-EFB
SAN JOAQUIN GENERAL
HOSPITAL, a department of the County
of San Joaquin, a political subdivision of
- DISCOVERY MATTER the State of California,

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Plaintiffs,

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v.

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STIPULATION AND ORDER
RE: CONFIDENTIAL
DOCUMENTS

CIGNA HEALTHCARE OF
CALIFORNIA, INC., a California for
profit corporation; CIGNA HEALTH &
LIFE INSURANCE COMPANY, a
Connecticut for profit corporation; and
DOES 1 - 25, INCLUSIVE,

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Defendants.

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STIPULATION AND ORDER RE:
CONFIDENTIAL DOCUMENTS

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WHEREAS, discovery in the above-entitled matter may involve the

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production of documents containing trade secrets, confidential commercial,

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personal, or financial information, or protected health information and may

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otherwise require disclosure of such information;

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WHEREAS, Plaintiff SAN JOAQUIN GENERAL HOSPITAL (“San

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Joaquin” or “Plaintiff”) and Defendants, CIGNA HEALTHCARE OF

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CALIFORNIA, INC. and CIGNA HEALTH & LIFE INSURANCE COMPANY,

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(“CIGNA” or “Defendant”) acknowledge and agree that it is appropriate to provide

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safeguards to prevent the public dissemination of such confidential information, to

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establish procedures to limit the necessity for objections or subsequent motions

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regarding discovery, and to facilitate disposition of any discovery disputes that

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may arise; and

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WHEREAS, the Parties have agreed to the entry of this Stipulated Protective
Order, as evidenced by the signatures of their respective counsel;

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IT HEREBY IS STIPULATED and agreed, as follows:

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1.

As used herein, “Confidential Information” shall mean any document

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or information in any form, or any portion thereof, designated and supplied by one

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Party or a third party (“Designating Party”) to another Party or third party

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(“Receiving Party”) in this action, which contains confidential business, financial,

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personal, health, proprietary, trade secret or commercial data of a sensitive nature

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and which is designated as Confidential Information for purposes of this litigation

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by the Party or third party producing it. A designation by a Party or third party of

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Confidential Information shall constitute a representation that counsel believes in

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good faith that the information constitutes Confidential Information. The Parties
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STIPULATION AND ORDER RE:
-2CONFIDENTIAL DOCUMENTS

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shall make a good faith effort to designate information so as to provide the

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requisite level of disclosure possible within the parameters of the discovery

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requested but still preserve confidentiality as appropriate.

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2.

All documents, information or materials designated as Confidential

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Information shall be treated as such for purposes of this Stipulated Protective

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Order, provided, however, that by agreeing to this Stipulated Protective Order, no

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Party waives the right to challenge any other Party’s designation of any document

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or other material as Confidential Information. The Parties expressly understand

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and agree that certain documents and information relevant to the claims and

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defenses in this action may contain information that is subject to the Standards of

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Privacy of Individually Identifiable Health Information, 45 C.F.R. Parts 160 and

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164, promulgated pursuant to the Health Insurance Portability and Accountability

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Act of 1996 (“HIPAA”); or other similar statutory or regulatory privacy

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protections. The Parties agree that, once adopted, this Stipulated Protective Order

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will constitute a Qualified Protective Order under 45 CFR 164.512(e).

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3.

Any Confidential Information supplied in written or documentary

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form shall be labeled by the Designating Party as “Confidential”. With respect to

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the examination of witnesses upon oral deposition, when Confidential Information

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is supplied and/or when the deponent’s testimony contains, reflects or relates in

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any way to Confidential Information, the reporter will be informed of this

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Stipulated Protective Order by the Party seeking confidentiality and will be

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required to operate in a manner consistent therewith. The reporter shall place on

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the cover of any deposition transcript which contains any Confidential Information

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the words “Contains Confidential Information Pursuant to Protective Order.”

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Counsel for the respective Parties shall take appropriate steps to prevent any

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portions of any deposition transcript designated “Confidential” from being

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disclosed to any person except as provided in this Stipulated Protective Order.

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Each Designating Party shall provide the other Party with a list of the page(s) of
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STIPULATION AND ORDER RE:
-3CONFIDENTIAL DOCUMENTS

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each deposition transcript and any exhibits attached thereto that the Party has

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designated as “Confidential” within thirty (30) days of receipt by counsel of the

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transcript unless otherwise agreed. Until the earlier of thirty (30) days or the

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Designating Party’s having provided such a listing of pages, the other Party shall

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maintain the entire deposition transcript and exhibits as “Confidential.” Any

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documents designated “Confidential” which are made part of the transcript of such

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documents on which examination is taken during depositions shall maintain their

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character as Confidential under the terms of this agreement without further the

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necessity of further designation as such.

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4.

All Confidential Information shall be maintained in confidence, and

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not disclosed, directly or indirectly, including the very fact of production of

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Confidential Information, to any person except as provided in this Paragraph:
(a)

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directors, officers and employees of the Party to whom it is

necessary that the materials be shown for purposes of this legal action;
(b)

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counsel for the Party, whether or not counsel of record in this

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proceeding (including members and employees of such counsel’s law firm), and

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in-house counsel for the Party;
(c)

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litigation support services;
(d)

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persons employed by the Party’s attorney to furnish expert and

pursuant to the restrictions set forth in Paragraph 7 of this

Stipulated Protective Order, deponents incident to their depositions;
(e)

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such other persons as hereafter may be designated by written

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agreement of the Parties or by order of the Court.

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Said access shall be for the sole limited purposes of settlement negotiations, trial or

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preparation for trial of this action.

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5.

Confidential information may be further designated “HIGHLY

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RESTRICTED CONFIDENTIAL INFORMATION: ATTORNEYS’ AND

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EXPERTS’ EYES ONLY” by marking each document containing such
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STIPULATION AND ORDER RE:
-4CONFIDENTIAL DOCUMENTS

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information with the legend “Highly Restricted Confidential Information:

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Attorneys' and Experts’ Eyes Only” (hereinafter referred to as “Highly Restricted

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Information”) in the same manner and within the same time limitations as the

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marking of such information as “Confidential” set forth in paragraph 3. All

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documents or things designated as “Highly Restricted Confidential Information:

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Attorneys' and Experts’ Eyes Only” are included within the meaning of

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“Confidential Information” as used in this Order and all provisions of this Order

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applying to Confidential Information shall apply to Restricted Information. Highly

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Restricted Information shall be given, shown, disclosed, made available, or

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communicated only to the persons identified in subparagraphs 4(b)-(f) above

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except that Highly Restricted Information may not be disclosed to any of the

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recipient’s officers, directors, or employees.
(a)

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To the extent that certain Highly Restricted Information, by

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their terms, may require written consent of third parties before disclosure, the

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parties agree that the producing party may seek and obtain and Order of Production

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from the presiding judge of the Action in order to protect themselves from liability.
(b)

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If a recipient of any Highly Restricted Information wishes to

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file any documents designated as such in Court or to offer any of them into

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evidence or otherwise disclose them during the course of any legal proceeding

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herein for any such purpose, the parties must first meet and confer to allow the

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producing party to redact highly sensitive information as necessary.
(c)

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If a recipient of any Highly Restricted Information wishes to

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have the presiding judge of the Action review or see Highly Restricted Information

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(for the purposes of challenging such redactions or otherwise) that are not redacted

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as set forth in the preceding paragraph, then the recipient must first obtain an order

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from the Court that the unredacted documents shall be sealed.

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6.

Confidential Information held by a Party may be disclosed to persons

as provided in Paragraph 4 and to persons who are employed or otherwise bound
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STIPULATION AND ORDER RE:
-5CONFIDENTIAL DOCUMENTS

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by counsel to furnish expert services, to give expert testimony, or otherwise to aid

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in the preparation for trial of this action, provided that prior to such disclosure such

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person to whom disclosure of Confidential Information is to be made shall

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acknowledge and confirm in the form of a Declaration, in the form attached hereto

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as Exhibit “A,” that he or she has read this Stipulated Protective Order and agrees

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to comply with its terms.

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Confidential Information designated by a Party as “Confidential” may

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be disclosed by any other Party to a deponent during the deponent’s deposition

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provided that the deponent has been informed of this Stipulated Protective Order

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and executes a Declaration, in the form attached hereto as Exhibit “A,” that he or

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she has read this Stipulated Protective Order and agrees to comply with its terms.

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The attorneys for the respective Parties shall maintain a file of such Declarations.

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The file containing these Declarations shall not be available for review absent an

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agreement by the Parties or an order of the Court determining that there is good

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cause for the Declarations to be reviewed.

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8.

Information or documents produced in this matter prior to the

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execution of this Stipulated Protective Order (hereinafter “Previously Produced

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Information”) that have not previously been designated confidential may be

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designated as Confidential Information as follows: not later than (10) days after the

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execution of this Stipulated Protective Order by both parties, the Designating Party

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shall notify in writing all recipients of the Previously Produced Information of the

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material's designation as Confidential Information. The Designating Party shall

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specifically identify, by reference to document title, page number and/or any alpha

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or numeric production designation (such as Bates number), the material being

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designated as Confidential Information. The Parties agree that all Previously

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Produced Information so identified shall be treated as Confidential Information in

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all respects, as though it had been designated and marked as such hereunder. Any

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STIPULATION AND ORDER RE:
CONFIDENTIAL DOCUMENTS

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party may object to the designation of any such document(s) as Confidential

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Information using the procedure set forth in paragraph 9 below.

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In the event a Party inadvertently fails to designate information or

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documents as Confidential Information when copies are produced to another Party

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after the execution of this Stipulated Protective Order, the Designating Party shall

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diligently notify in writing all recipients of the information or document of the

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material's designation as Confidential Information. The Designating Party shall

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specifically identify, by reference to document title, page number and/or any alpha

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or numeric production designation (such as Bates number), the material being

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designated as Confidential Information. The Designating Party shall have the right

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to recover all copies of the Confidential Information and apply the Confidential

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designation and the Receiving Party shall return to the Designating Party all copies

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of the unlabeled Confidential Information inadvertently or unintentionally

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disclosed. The inadvertent, unintentional or in camera disclosure of confidential

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documents and information shall not, under any circumstances, be deemed a

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waiver, in whole or in part, of any Party’s claims of confidentiality.

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10.

If any Party objects to the designation of materials being marked as

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Confidential Information, the Party shall state the objection by letter to all counsel

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of record in this case. If the Parties are unable to resolve the objection, any Party

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may move the Court for an Order that the challenged material does not qualify as

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Confidential Information under the terms of this agreement. In any such

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proceeding, the Designating Party shall bear the burden of proof for demonstrating

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that the material is Confidential. Until the Court rules on the objection, the

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disputed material shall be treated as Confidential Information. Neither Party shall

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be obliged to challenge the propriety of a designation of material as Confidential

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Information, and the failure to do so shall not preclude a subsequent attack on the

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propriety of such designation, unless prejudice can be shown by the Designating

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Party to have resulted from the delay in challenging the designation,
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STIPULATION AND ORDER RE:
-7CONFIDENTIAL DOCUMENTS

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11.

A Designating Party requesting that a record be filed under seal must

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file a noticed motion for an order sealing such specific records in compliance with

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Local Rule of Court 141(b).

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If a Party intends to file, quote, or otherwise reference in any manner

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Confidential information or material or reveal the contents of records designated as

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Confidential pursuant to this Order in connection with any discovery motion, the

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Party shall meet and confer with the designating Party prior to the informal

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discovery conference required by the Court before filing any discovery motion,

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and shall also bring all such materials to the informal discovery conference and be

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prepared to discuss them off the record with the Court and the designating Party, so

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that the Parties can reach agreement, and/or the Court provide direction on how

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and in what manner such Confidential information, material, or records will be

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presented in connection with any actual discovery motion filed to avoid reference

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in the public record to such Confidential information, material, or records and/or to

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provide the designating Party with an appropriate opportunity to move to seal such

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information, records, or material.

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13.

Nothing in this Protective Order supplants, modifies or in any way

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violates the requirements and procedures for the sealing of records contained with

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Local Rule of Court 141.

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In the event that the Receiving Party is served with legal process,

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other than an order of a court or tribunal, seeking the production of Confidential

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Information obtained through discovery in this litigation and protected thereunder,

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the Receiving Party shall promptly notify the Designating Party whose

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Confidential Information is sought by service of the legal process and afford the

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Designating Party a reasonable opportunity to object to the production of the

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Confidential Information. The Receiving Party shall not produce any Confidential

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Information in response to the legal process, except as ordered by a court or a

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tribunal, until the Designating Party has had an opportunity to object to such
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STIPULATION AND ORDER RE:
-8CONFIDENTIAL DOCUMENTS

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process and either declined to object or has had an objection overruled and appeals

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therefrom exhausted. Designating party must lodge such objections with sufficient

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time to allow Receiving Party to comply with its legal duties to properly respond to

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such request.

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By entering into this Stipulated Protective Order, neither Party waives

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any objections it may have to the production of any documents covered by this

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Stipulated Protective Order.

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The provisions of this Stipulated Protective Order apply to all

proceedings in this matter, including all appeals and proceedings upon remand.

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These obligations of confidentiality and non-disclosure shall survive the

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conclusion of this action.

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The provisions of this Protective Order shall apply retroactively to all

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documents and information previously exchanged by either party to this action. To

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the extent not already designated as Confidential, the producing party can

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designate any and all documents produced and/or provided as Confidential or

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Confidential Health Information within thirty (30) days of the execution of this

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Stipulated Protective Order.

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Within ninety (90) days following the termination of this action

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through settlement or adjudication, including all appeals, upon written request all

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Confidential Information designated as such by the Designating Party shall be

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returned to the Designating Party, or destroyed, and all copies, summaries or

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transcripts thereof, and any and all other documents which contain, reflect, refer or

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relate to such Confidential Information which are not delivered to the Designating

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Party, shall be destroyed. Upon written request counsel of record for each Party

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shall attest to compliance with the terms of this Paragraph in an affidavit or

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declaration served on each other Party within the 90-day period. This Paragraph

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shall not preclude counsel from maintaining a file copy of any pleading or hearing

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transcript that contains or attaches Confidential Information.
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STIPULATION AND ORDER RE:
-9CONFIDENTIAL DOCUMENTS

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19.

Nothing in the foregoing provisions regarding confidentiality shall

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prevent or otherwise restrict counsel from rendering advice to their clients and, in

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the course thereof, relying generally on examination of Confidential Information,

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provided, however, that in rendering such advice and otherwise communicating

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with such clients, counsel shall not make specific disclosure of any item so

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designated except pursuant to the foregoing provisions.

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20.

Nothing in this Stipulated Protective Order shall prevent a Party from

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independently obtaining publicly available information, including the final version

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of documents actually filed with any Federal, State, County or local legislature,

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regulatory authority, agency or court, nor shall this Stipulated Protective Order

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constitute a restriction on information independently obtained, even if a copy of a

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document independently obtained is otherwise provided in the Action and

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designated as Confidential Information. Use of any independently obtained

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documents shall be subject to any confidentiality or other restrictions regarding the

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use or distribution of such documents imposed by the relevant authority or by law.

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If a Party, through inadvertence, produces any document or

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information that it believes is protected from discovery pursuant to the attorney-

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client privilege or work product doctrine, such production shall not be deemed a

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waiver of any privilege or protection, and the producing Party may give prompt

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written notice to the Receiving Party that the document or information produced is

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deemed privileged or protected and that return of the document or information is

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requested. Upon receipt of such written notice, the Receiving Party shall

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immediately gather the original and all copies of the document or information of

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which the Receiving Party is aware and shall immediately return the original and

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all such copies to the producing Party.

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22.

This Stipulated Protective Order may be modified by written

agreement of counsel for the Parties, provided that any such agreement be

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STIPULATION AND ORDER RE:
CONFIDENTIAL DOCUMENTS

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memorialized in the form of a stipulation that shall be filed and approved by the

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Court.

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The Stipulated Protective Order may be executed in counterparts, each

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when taken together with the others, shall constitute a whole, as if executed

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simultaneously on the same document.

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After this Protective Order has been signed by counsel for all Parties,

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it shall be presented to the Court for entry. Counsel agrees to be bound by the

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terms set forth herein with regard to any Documents that have been produced

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before the Court enters the Protective Order.

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25.

Any witness or other person, firm or entity from which discovery is

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sought may be informed of and may obtain the protection of this Protective Order

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by written advice to the Parties’ respective counsel or by oral advice at the time of

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any deposition or similar proceeding.

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26.

Nothing contained herein shall prevent any Party from using or

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disclosing its own Confidential Material without having to comply with the terms

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of this Protective Order.

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27.

Nothing contained herein shall prevent a Party from (a) objecting to

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the production of Confidential Material based on the grounds that the information

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or documents are neither relevant nor reasonably calculated to lead to the

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discovery or admissible evidence, and/or (b) producing redacted copies of

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documents to prevent disclosure of irrelevant Confidential Material.

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The Court shall retain jurisdiction to make such amendments,

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modifications, deletions and additions to this Protective Order as the Court may

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from time to time deem necessary or appropriate.

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IT IS SO STIPULATED.

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STIPULATION AND ORDER RE:
CONFIDENTIAL DOCUMENTS

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Respectfully submitted,

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Dated:
LAW OFFICES OF STEPHENSON,
ACQUISTO & COLMAN, INC.

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BARBARA V. LAM
Attorneys for Plaintiff
SAN JOAQUIN GENERAL HOSPITAL

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Dated:
COLE PEDROZA LLP

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TAMMY C. WEAVER
Attorneys for Defendant
CIGNA HEALTHCARE OF
CALIFORNIA, INC. and CIGNA
HEALTH & LIFE INSURANCE
COMPANY

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Filing Attestation: I, Barbara V. Lam, hereby attest that I have received
authorization for the electronic signature(s) indicated by a “conformed” signature
(/s/) within this e-filed document.

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STIPULATION AND ORDER RE:
CONFIDENTIAL DOCUMENTS

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ORDER
Pursuant to the stipulation of the parties and good cause having been shown, the Court

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hereby approves this Protective Order.

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IT IS SO ORDERED.

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Dated: June 19, 2017

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STIPULATION AND ORDER RE:
CONFIDENTIAL DOCUMENTS

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EXHIBIT A

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CERTIFICATION RE: CONFIDENTIAL DISCOVERY MATERIALS

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I hereby acknowledge that I, __________________________[NAME],

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_______________________________________[POSITION AND EMPLOYER],

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am about to receive confidential information supplied in connection with the court

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action SAN JOAQUIN GENERAL HOSPITAL, a department of the County of San

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Joaquin, a political subdivision of the State of California vs. CIGNA

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HEALTHCARE OF CALIFORNIA, INC., a California for profit corporation;

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CIGNA HEALTH & LIFE INSURANCE COMPANY, a Connecticut for profit

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corporation; and DOES 1 - 25, INCLUSIVE, United States District Court Case No.

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2:16-cv-01921-MCE-EFB (the “Action”). I certify that I understand that this

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Confidential Information is provided to me subject to the terms and restrictions of

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the Protective Order field in this Action. I have been given a copy of the

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Protective Order; I have read it; and I agree to be bound by its terms. I understand

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that Confidential Information, as defined in the Protective Order, including any

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notes or other records that may be made regarding any such materials, shall not be

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disclosed to anyone except as expressly permitted by the Protective Order.

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DATED: ______________

_____ ________________________

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STIPULATION AND ORDER RE:
CONFIDENTIAL DOCUMENTS