Grotz v. Kaiser Foundation Hospitals et al

Filing 45

PROTECTIVE ORDER, STIPULATION AND ORDER re #44 STIPULATION WITH PROPOSED ORDER Stipulation and Protective Order filed by Kaiser Foundation Hospitals. Signed by Judge Edward M. Chen on 6/7/13. (bpf, COURT STAFF) (Filed on 6/7/2013)

1 Michele Ballard Miller (SBN 104198)
[e-mail]
2 Katherine L. Kettler (SBN 231586)
[e-mail]
3 MILLER LAW GROUP
A Professional Corporation
4
111 Sutter Street, Suite 700
5 San Francisco, CA 94104
Tel. [phone]
6 Fax [phone]

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7 Attorneys for Defendants
KAISER FOUNDATION HOSPITALS
8
Bruce A. Harland (SBN 230477)
9 Manuel Boigues (SBN 248990)
[e-mail]
10 WEINBERG, ROGER & ROSENFELD
1001 Marina Village Parkway, Suite 200
11 Alameda, CA 94501-1091
Tel. [phone]
12 Fax [phone]
13 Attorneys for Defendant
SEIU, UHW - WEST
14
George F. Camerlengo (SBN 50232)
[e-mail]
15
CAMERLENGO & JOHNSON
16 643 Bair Island Road, Suite 400
Redwood City, CA 94063
17 Tel. [phone]
Fax [phone]
18
Attorney for Plaintiff
19 KRISTINNA GROTZ
20

IN THE UNITED STATES DISTRICT COURT

21

NORTHERN DISTRICT OF CALIFORNIA

22
Case No.: CV 12 3539 EMC

23 KRISTINNA GROTZ, an individual,
24
25

Plaintiff,

STIPULATION AND PROTECTIVE ORDER
Complaint filed: July 6, 2012

v.

26
27 KAISER FOUNDATION HOSPITALS, INC.,
THE PERMANENTE MEDICAL GROUP,
28 INC., SEIU-UNITED HEALTHCARE
WORKERS WEST,
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1
2

Defendants.

3
4

STIPULATION

5
6

WHEREAS, the parties have or intend to exchange requests for information

7 and documents in discovery, and produce witnesses for deposition testimony, which may
8 require disclosure of highly sensitive, personal, confidential and/or proprietary information
9 and documents pertaining to Plaintiff’s medical and/or mental health records and the
10 business operations of The Permanente Medical Group, Kaiser Foundation Hospitals,
11 Kaiser Foundation Health Plan, Kaiser Permanente Medical Care Program (collectively

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12 referred to herein as “Kaiser”), members, patients, current and former Kaiser employees,
13 agents, representatives, officers, directors, and/or Health Plan members including, but not
14 limited to, peer review and quality of care information protected by California Evidence Code
15 § 1157 and/or Health and Safety Code §§ 1370 and 1370.1; patient health information
16 protected under the Health Insurance Portability and Accountability Act (“HIPAA”) Privacy
17 Rule, the California Confidentiality of Medical Information Act, Civil Code § 56, et seq.,
18 Article I, Section 1 of the California Constitution and the state common law right to privacy;
19 and confidential personnel records and information pertaining to third-party employees or
20 former employees of Kaiser (hereinafter “Confidential Information”); and
21
22

WHEREAS, the unauthorized disclosure or use of Confidential Information

23 could seriously harm Kaiser’s business operations, Plaintiff’s right to privacy, or the right to
24 privacy of Kaiser’s current and former employees, its member patients, and the public
25 interest; and
26
27

WHEREAS, such information are properly the subject of a protective order, as

28 contemplated by Federal Rule of Civil Procedure 26;
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Case No.: CV 12 3539 EMC

1

WHEREAS, the parties wish to have the Court enter this Protective Order so

2 they may litigate this action while protecting against unauthorized disclosure of Confidential
3 Information, and to ensure that such information will be used solely for the prosecution or
4 defense of this action and not for any other purpose whatsoever;
5
6

NOW THEREFORE, the parties to this action, through their counsel of record

7 and subject to approval of the Court, and without waiving any claims or defenses in this
8 case, hereby stipulate to entry by the Court of a Protective Order in the form set forth below:
9
10

1.

11

“Confidential Information” shall mean any documents or testimony, discovery

Confidential Information.

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12 responses, notes and all information contained in any of these, which contain patient
13 identifying information, patient medical information, peer review documents and information,
14 financial and business information not available to the public, and/or personnel information.
15
16
17

2.

Scope of Protective Order.
(a)

All Confidential Information produced by any party or non-party

18 shall be used solely for the purposes of the prosecution or defense of this litigation. The
19 disclosure of Confidential Information by any party shall not constitute a waiver of
20 confidentiality or of any applicable privilege recognized by law.
21

(b)

The protection of this Protective Order may be invoked with

22 respect to the originals or copies of any documents, oral testimony, data, information, or
23 things (collectively “Materials”) produced, created or given in this action which contain
24 Confidential Information.
25 / / /
26 / / /
27
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Case No.: CV 12 3539 EMC

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3.

2

A party may designate testimony, documents or other information as

Designation of Materials Containing Confidential Information.

3 “Confidential” for purposes of this Protective Order in the following manner:
4

(a) Documents: The copy of the document when produced shall bear

5 the clear and legible designation “CONFIDENTIAL-SUBJECT TO PROTECTIVE ORDER”
6 on each page of the document;
7

(b) Discovery Responses: The pages of such responses containing

8 Confidential Information shall be so marked, and the first page of the requests or responses
9 shall bear a legend substantially stating that “This Document Contains Confidential Material
10 Subject To A Protective Order;”
11

(c) Deposition Testimony: The party seeking to designate testimony as

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12 subject to this Protective Order may make a statement on the record by counsel, during
13 such deposition or other pretrial proceeding that the entire transcript or a portion hereof
14 shall be designated as “CONFIDENTIAL – SUBJECT TO PROTECTIVE ORDER”; or by
15 written notice of such designation sent to counsel for all other parties and to the court
16 reporter within thirty (30) days of the party’s receipt of the deposition transcript in which the
17 designations are made or within thirty days after the entry of this Protective Order,
18 whichever occurs later. The Parties shall treat all depositions and other pretrial testimony
19 as Confidential until the expiration of the period of time during which the deposition
20 transcript may be designated as Confidential. The parties may modify this procedure for
21 any particular deposition or proceeding through agreement on the record at such deposition
22 or proceeding or by written stipulation, without further order of the Court.
23

(d) Discovery Produced by Opposing Party or Non-Party: A party may

24 designate as “Confidential Information” documents or discovery materials produced by a
25 party or non-party by providing written notice to all parties of the relevant document
26 numbers or other identification within thirty (30) days after receiving such documents or
27 discovery materials.
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4.

Disclosure of Materials Designated Confidential.

2

(a)

Materials designated “Confidential,” as well as notes, summaries,

3 excerpts and extracts thereof, shall not be disclosed or made accessible to, or used by, any
4 person except as specifically permitted by this Protective Order.

Materials designated

5 “Confidential” may be disclosed to the following “Qualified Persons:”
6

(i)

Plaintiff;

7

(ii)

Defendants;

8

(iii)

Attorneys actively involved in representation of a party in this

9 action, including partners, associate attorneys, their secretaries, paralegals, legal assistants,
10 and other staff actively involved in this litigation;
11

(iv)

In-house attorneys employed by any party to this action and

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12 responsible for this litigation, and their secretaries, paralegal and legal assistants;
13

(v)

The parties and employees of the parties whose assistance is

14 needed by counsel for the purposes of this litigation;
15

(vi)

Any expert or consultant retained by any party to this action, or

16 their counsel of record, and any employee of such expert assisting in this litigation
17 (collectively, “Experts”);
18

(vii)

For purposes of filing or lodging documents with the Court, the

19 assigned judge(s) and other Court personnel;
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(viii)

Court reporters and videographers of sworn proceedings;

21

(ix)

Any person whom a document, on its face, indicates that he/she

22 was the author or recipient (i.e., listed as a recipient or a “cc” or a bcc”) of the document;
23

(x)

Witnesses and prospective witnesses (and witness’s counsel, if

24 any) to the extent deemed in good faith to be necessary by any party to investigate and/or
25 to prepare for or give testimony regarding facts raised in this litigation, or to assist counsel in
26 performing work in this litigation;
27

(xi)

Any person called to testify as a witness either at a deposition or

28 other court proceeding in this action, but only to the extent necessary for the purpose of
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1 assisting in the preparation or examination of the witness, and only if such persons are
2 informed of the terms of this Protective Order, provided with a copy of the Protective Order
3 and agree, on the record, that they are bound by the terms of the Protective Order and are
4 required not to disclose information contained in the Materials which is designated
5 “Confidential;”
6

(x)

Any other person only upon order of the Court or upon prior

7 written consent of the party producing the Confidential Information, subject to and
8 conditioned upon compliance with Paragraph (b) immediately below.
9

(b)

Each Qualified person described in paragraphs 2(a)(vi), (ix) and (x) to

10 whom Confidential Materials are disclosed shall, before the disclosure, execute a non11 disclosure certification (“Certification”) in the form attached hereto as Exhibit A, and shall

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12 agree to be bound by this Protective Order and to be subject to the jurisdiction of the Court
13 for the purpose of enforcement.

Counsel disclosing “Confidential” material to persons

14 required to execute a Certification shall retain all such executed Certifications. Copies of
15 the executed Certifications shall be preserved by counsel until six (6) months after the final
16 termination of this action, and shall be provided to the opposing party if the Court so orders
17 upon a showing of good cause. Nothing in this section precludes authors or recipients of
18 documents designated as CONFIDENTIAL from using such documents for peer review or in
19 the ordinary course of business.
20
21

5.

22

Pursuant to the Health Insurance Portability and Accountability Act of 1996

Disclosure of Plaintiff’s Health Information and Medical Records

23 (“HIPAA”), as amended, and its governing regulations, Plaintiff hereby authorizes and
24 understands that Plaintiff’s individually identifiable health information and medical records
25 regarding any past, present or future medical or mental health condition, that are produced
26 during discovery in this action, will be subject to the terms of this Stipulation and Protective
27 Order.
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Case No.: CV 12 3539 EMC

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6.

2

All transcripts, depositions, exhibits, answers to interrogatories, and other

Procedures For Filing Papers In Court.

3 documents and things filed with the Court, which contain Confidential Information as defined
4 above, or any pleading or memorandum purporting to reproduce or paraphrase such
5 information, shall be filed only with the agreement of the Producing Party or under seal,
6 pursuant to Civil Local Rule 79-5.
7
8

7.

9

A Qualified Person with custody of Materials designated as containing

Custody of Materials Designated Confidential.

10 Confidential Information shall maintain such Materials in a manner that limits access only to
11 Qualified Persons and shall take reasonable and prudent measures to safeguard the

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12 confidentiality of the Materials. Such measures shall include, without limitation, making
13 reasonable efforts to redact from the Materials all protected health information, all peer
14 review privileged information, and other personal identifying information of Kaiser Health
15 Plan members and Kaiser employees when the Materials are produced in pre-trial
16 discovery, at a Court hearing, at trial or any other legal proceeding, and when such
17 Confidential Information is not relevant to any issue in the litigation.
18
19

8.

20

All provisions of this Protective Order restricting the communication or use of

Termination.

21 Confidential Information shall continue to be binding after the final termination of this action,
22 unless otherwise agreed or ordered. Within ten (10) days of the final termination of this
23 action, up to and including expiration of the time for any appeals, if requested by the
24 Producing Party, the parties shall return all Materials designated as containing Confidential
25 Information (other than that which is contained in the pleadings, correspondence and
26 deposition transcripts), including all copies thereof, to the party who produced such
27 Materials. All counsel of record shall certify in writing their compliance with this provision
28 and shall deliver the certification to counsel for the producing party no later than fourteen
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1 (14) days after final termination of this action.
2
3

9.

4

Should any Materials designated as containing Confidential Information be

Inadvertent Disclosure.

5 disclosed, through inadvertence or otherwise, to any person or entity not entitled to receive
6 it under this Protective Order, the parties shall use their best efforts to bind such person or
7 entity to the terms of this Protective Order and:
8

(a)

Such person or entity shall be informed promptly of all of the provisions

9 of this Protective Order by the party or counsel who learned of the disclosure;
10

(b)

Such person or entity shall be identified immediately to the party that

11 designated the Materials as Confidential; and

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(c)

Such person or entity shall be requested to sign an agreement to abide

13 by the terms of this Protective Order, which agreement shall be served on the party that
14 designated the Materials as Confidential.
15
16

10.

17

By designating any Materials “Confidential,” the parties do not acknowledge

Reservation of Rights.

18 that any such material is relevant or discoverable in this action.

This Stipulation and

19 Protective Order shall not constitute a waiver of any right to seek, or resist, discovery of any
20 Materials in this action.

Designation of Materials as “Confidential” pursuant to this

21 Protective Order does not in any way restrict or adversely affect the designating party’s use
22 or disclosure of such documents, nor does it restrict or adversely affect the non-designating
23 party’s right to object to the admissibility of such documents.
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25

11.

26

No party to this action shall be obligated to challenge the propriety of any

No Waiver.

27 Confidential designation and a failure to do so shall not constitute a waiver of, or preclude a
28 subsequent attack on, the propriety of such designation. Nothing in this Protective Order
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Case No.: CV 12 3539 EMC

1 shall abridge the right of any person to seek review or to pursue other appropriate action to
2 seek a modification or amendment of this Stipulation and Protective Order. Nothing in this
3 Protective Order shall be deemed to waive any applicable privilege or work product
4 protection, or to affect the ability of a party to seek relief for an inadvertent disclosure of
5 Materials protected by privilege or work product protection.
6
7

12.

8

This Stipulation and Protective Order shall not be construed or interpreted as

Not a Contract.

9 creating a contract between the parties or their counsel.
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13.

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The parties acknowledge that disagreements may arise over the precise

Challenges to Definition of Confidential Information.

13 definition of Confidential Information and, therefore, retain the right to seek a determination
14 by the Court with respect to the definition as applied to any specified types of Materials or
15 information, following a good faith attempt to resolve the disagreement with the other party.
16 Notwithstanding any challenge to the designation of Materials as Confidential Information,
17 all Materials shall be treated as such and shall be subject to the provisions hereof unless
18 and until one of the following occurs:
19

(a)

The party or non-party who claims that the Materials are Confidential

20 Information withdraws such designation in writing; or
21

(b)

The party or non-party who claims that the Materials are Confidential

22 Information fails to apply to the Court for an order designating the Materials confidential
23 within thirty (30) days after receipt of a written challenge to such designation; or
24

(c)

The Court rules the Materials are not Confidential Information.

26

14.

Retention of Jurisdiction.

27

This Court shall retain jurisdiction over all persons to be bound by the terms of

25

28 this Protective Order, during the pendency of this action and for such time thereafter as is
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Case No.: CV 12 3539 EMC

1 needed to enforce the terms of this Protective Order.
2
3

IT IS SO STIPULATED.

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Dated: June 4, 2013

CAMERLENGO & JOHNSON

7
By:

8
9

/s/ George F. Camerlengo
George F. Camerlengo
Attorneys for Plaintiff
KRISTINNA GROTZ

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12 Dated: June 4, 2013
13
14

MILLER LAW GROUP
A Professional Corporation

By:

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16

/s/ Michele Ballard Miller
Michele Ballard Miller
Attorneys for Defendant
KAISER FOUNDATION HOSPITALS

17
18
Dated: June 4, 2013
19

WEINBERG, ROGER & ROSENFELD
A Professional Corporation

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21

By:

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23
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/s/ Manuel A. Boigues
Manuel A. Boigues
Attorneys for Defendant
SEIU-UNITED HEALTHCARE
WORKERS-WEST

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Case No.: CV 12 3539 EMC

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ORDER

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For good cause shown, it is hereby ORDERED that this STIPULATED

4 PROTECTIVE ORDER is entered in this case in accordance with the above stipulation of
5 the parties.
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7 PURSUANT TO STIPULATION, IT IS SO ORDERED.
6/7
DATED: ____________, 2013

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Hon. Edward M. Chen
Federal DistrictORDERED
Court Judge

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C

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EXHIBIT A

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ACKNOWLEDGEMENT OF UNDERSTANDING AND AGREEMENT

3

REGARDING DISCOVERY OF CONFIDENTIAL INFORMATION

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8

The undersigned hereby acknowledges that he/she has read the Protective
Order regarding confidentiality entered in this civil action entitled Kristinna Grotz, v. Kaiser
Foundation Hospitals, Inc.; The Permanente Medical Group, Inc., SEIU - United Healthcare
Workers West; pending in United States District Court, Northern District, Case No. CV 12

9
3539 EMC, that he/she understands the terms thereof, that he/she has been designated by
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_________________________ as a “Qualified Person” thereunder, and that he/she
individually and on behalf of ______________________________________, and on behalf
of the party who designated him/her as a “Qualified Person”, agrees to be bound by such
Protective Order, and that he/she acknowledges the jurisdiction of the Court and agrees to

15 be bound by the jurisdiction of the Court.
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18 DATED:

______________________, 20___.

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__________________________________________
(signature)
__________________________________________
(print name)

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STIPULATION AND PROTECTIVE ORDER
Case No.: CV 12 3539 EMC

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ORDER

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For good cause shown, it is hereby ORDERED that this STIPULATED

3 PROTECTIVE ORDER is entered in this case in accordance with the above stipulation of
4 the parties.
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S

NO

Hon. Edward M. Chen
n
M. Che
Edward
Judge

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Dated: __________________

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DERED
SO OR
IT IS
______________________________

6/7/13

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PURSUANT TO STIPULATION, IT IS SO ORDERED.

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D IS T IC T
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