Fowler et al v. Evercare Hospice, Inc. et al

Filing 94

PROTECTIVE ORDER entered by Magistrate Judge Nina Y. Wang on 3/17/15. (bsimm, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 11-cv-00642-PAB-NYW
(Consolidated with Civil Action No. 14-cv-01647-PAB)

Civil Action No. 11-cv-00642-PAB-NYW
UNITED STATES OF AMERICA, ex rel. TERRY LEE FOWLER, and LYSSA TOWL,
Plaintiff,
v.
EVERCARE HOSPICE, INC., n/k/a OPTUM PALLIATIVE AND HOSPICE CARE a
Delaware corporation,
OVATIONS, INC., a Delaware corporation, and
OPTUMHEALTH HOLDINGS, LLC, a Delaware limited liability corporation,
Defendants.

Civil Action No. 14-cv-01647-PAB
UNITED STATES OF AMERICA ex rel. SHARLENE RICE,
Plaintiff,
v.
EVERCARE HOSPICE, INC.
Defendant.

PROTECTIVE ORDER

Upon a showing of good cause in support of the entry of a Protective Order to
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protect the discovery and dissemination of confidential information, including Protected
Health Information and proprietary business information, IT IS ORDERED:
1. This Protective Order shall apply to all documents, materials, and information, including
without limitation, documents produced, answers to interrogatories, responses to
requests for admission, deposition testimony, and other information disclosed pursuant
to the disclosure or discovery duties created by the Federal Rules of Civil Procedure.
2. As used in this Protective Order:
(a) “Document” is defined as provided in Fed. R. Civ. P. 34(a), including any
electronically-stored information, or tangible thing. A draft or non-identical copy
is a separate document within the meaning of this term.
(b) “Protected Health Information” or “PHI” means “protected health information”
as defined in 45 C.F.R. § 160.103.
(c) “Proprietary Information” means trade secret or other confidential research,
development, or commercial information entitled to protection under Fed. R. Civ.
P. 26(c)(1)(G).
(d) “Covered Entity or Entities” means “covered entity” as defined in 45 C.F.R.
§ 160.103.
(e) “Litigation” is understood to include the above-captioned cases as well as all
related appellate proceedings or the expiration of time to commence such
appellate proceedings.

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(f) “Conclusion” is understood to include the time for any records retention
requirement and statute of limitations applicable to a Party or a Party’s counsel.
3. Information designated as “CONFIDENTIAL” pursuant to this Protective Order
(hereinafter “CONFIDENTIAL Information”) shall be information that contains PHI
or Proprietary Information.
4. CONFIDENTIAL Information shall not be disclosed or used for any purpose other
than the litigation of this case.
5. Upon producing PHI or Proprietary Information to a Party pursuant to a discovery
request or other lawful process, the producing Party should designate a
Document with PHI or Proprietary Information as “CONFIDENTIAL.” To
designate a Document with PHI or Proprietary Information as “CONFIDENTIAL,”
the producing Party shall, if practical, designate “CONFIDENTIAL” on every page
of the Document with PHI or Proprietary Information in the same manner in which
every page is bates stamped. If not practical to designate “CONFIDENTIAL” on
the Document, then the producing Party shall designate the Document as
Confidential in correspondence, a response to a discovery request, or in some
other manner reasonably giving notice of the designation. It is “practical” to
designate “CONFIDENTIAL” on every page of the Document if the Document is
produced with a bates stamp on every page. It is not “practical” to designate
“CONFIDENTIAL” on every page of the Document if the Document is a

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spreadsheet or presentation file produced in native format (e.g., Microsoft Excel,
PowerPoint, or Access).
6. The Parties shall permit only the following persons, who shall be referred to
herein as “Authorized Representatives,” to have access to CONFIDENTIAL
Information:
(a) the Parties’ and their employees and agents;
(b) the Parties’ legal counsel and their employees and agents;
(c) any court reporter service, videographer service, translation service,
photocopy service, document management service, records management
service, graphics service, or other such litigation service (“Service Providers”),
designated by a Party or a Party’s legal counsel in this case;
(d) the Parties’ experts and consultants and their employees and agents;
(e) individuals who any Party or Party’s legal counsel interviews or deposes;
(f) the court and court-related personnel; and
(g) such other persons if this Court so orders or if the Parties agree in writing.
7. Except for the individuals designated under Paragraph 6(f), Tthe Parties shall
ensure that each Authorized Representative who reviews or is given access
to another Party’s CONFIDENTIAL Information reads, agrees to, and signs a
copy of the attached Acknowledgement of Protective Order. Entry of this
Order by the Court will constitute Acknowledgement by the Parties and their
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legal counsel. Where the Authorized Representative is an entity, an officer or
manager of the entity may sign the Acknowledgement of Protective Order on
behalf of the entire entity. The Parties’ legal counsel shall maintain the copy of
the Protective Order as signed by each Authorized Representative and shall
permit the opposing Party’s legal counsel to inspect said copy or copies upon
request.
8. CONFIDENTIAL Information shall not be filed with or submitted to the Court or
reproduced in any court filing unless the Document or filing is filed as a restricted
document in accordance with D.C.COLO.LCivR 7.2 or all PHI or Proprietary
Information is removed or redacted. Any party seeking to restrict access to part
or all of a document must proceed under D.C.COLO.LCivR 7.2, and the Parties’
agreement alone is insufficient to establish the grounds to restrict.
9. No later than 90 days following the conclusion of the Litigation, the Parties and
their Authorized Representatives shall destroy or return to the opposing Party’s
legal counsel all CONFIDENTIAL Information. Within the same 90 days, the
Parties shall exchange verified certifications that, to the best of each Party’s and
its Authorized Representatives’ knowledge, information, and belief, all
CONFIDENTIAL Information has been returned or destroyed.
TERMS SPECIFIC TO PROTECTED HEALTH INFORMATION
(a)

Pursuant to 45 C.F.R. § 164.512(e)(1) and for purposes of

compliance with the Health Insurance Portability and Accountability Act
(“HIPAA”), the Parties’ legal counsel in this case, the employees and
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agents of each Party and each Party’s legal counsel in this case, and all
non-party Covered Entities are expressly and specifically authorized to
provide PHI in accordance with this order to:
(b)

respond to Interrogatories served pursuant to the Federal Rules of

Civil Procedure in this case seeking PHI;
(c) respond to Requests for Production of Documents, including electronically
stored information, served pursuant to the Federal Rules of Civil Procedure in
this case seeking PHI;
(d) respond to Requests for Admission served pursuant to the Federal Rules of
Procedure in this case seeking PHI;
(e) request interviews or depositions and interview, depose, or respond in
interviews or depositions in which PHI might be disclosed;
(f) prepare briefs and other materials for the Court so long as such materials are
treated in accordance with Paragraph 8 of this Order; and
(g) disclose PHI to a Party’s expert regardless of whether the expert is a
consulting or testifying expert.
10. Pursuant to 45 C.F.R. § 164.512(e)(1) and for purposes of HIPAA compliance,
each deponent noticed for deposition in this case, including but not limited to a
Party, a fact witness, a records custodian, an expert, or a Covered Entity of any
type, is expressly and specifically authorized to use or to disclose to the Parties’
legal counsel in this case and the employees and agents of each Party and each
Party’s legal counsel in this case, the PHI that is responsive to deposition
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questions or a valid subpoena duces tecum.
11. Pursuant to 45 C.F.R. § 164.512(e)(1) and for purposes of HIPAA compliance,
any person or entity authorized or ordered above to use or disclose PHI is
expressly and specifically authorized to do so with, to, or before any Service
Providers designated by a Party or a Party’s legal counsel in this case. The
protections and requirements of Paragraphs 4 and 9 of this Protective Order
apply to Service Providers. Each Party or the Party’s legal counsel is charged
with obtaining advance consent of such service provider to comply with this
paragraph. Upon such consent, the service provider will be deemed to have
voluntarily submitted to this Court’s jurisdiction during the pendency of this case
for purposes of enforcement of this paragraph, including but not limited to the
imposition of such sanctions as may be appropriate for any non-compliance.
12. Except for business associate agreements (as defined by HIPAA) entered into by
a Party or a Party’s legal counsel for purposes of satisfying the requirements of
Paragraph 12 above, the uses and disclosures of PHI authorized under this
Protective Order are separate from, and not to be deemed subject to, any
business associate agreement that has been or will be executed by any Party,
any Party’s legal counsel, or any disclosing person or entity. No use or
disclosure made pursuant to this Protective Order shall be deemed to require the
execution of a business associate agreement (as defined by HIPAA). The intent
of this Protective Order is that such business associate agreements, including

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any requirement for such agreements under the HIPAA regulations, should be
construed as inapplicable to uses and disclosures under this Protective Order
and as limited only to uses and disclosures of PHI outside of this Protective
Order.
TERMS SPECIFIC TO PROPRIETARY INFORMATION
13. For Documents containing Proprietary Information designated as Confidential, a
Party’s or a non-party’s production of the Documents in this case shall not be
construed as waiving or diminishing the Party’s or the non-party’s interests in and
rights to the confidentiality of Proprietary Information, unless otherwise ordered
by the court.
GENERAL PROVISIONS
14. The Parties may use and disclose CONFIDENTIAL Information during
depositions; however, if practicable, such CONFIDENTIAL Information should
only be disclosed to deponents who the disclosing party reasonably believes
already have that information. For depositions taken as part of this case, the
entire deposition transcript and all deposition exhibits will be treated as
CONFIDENTIAL Information for sixty (60) days. The portions of the transcript
and exhibits not specifically designated as CONFIDENTIAL Information within
sixty (60) days will no longer be treated as CONFIDENTIAL Information under
this Order. The To the extent that a party seeks to submit CONFIDENTIAL
portions and exhibits shall be filed as restricted, the party will proceed to file a
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motion in accordance with D.C.COLO.LCivR 7.2.
15. Nothing in this Protective Order shall limit any Party’s right to object to another
Party’s designation of any Documents or information as CONFIDENTIAL
Information. A Party may object to the designation of CONFIDENTIAL
Information by giving written notice to the Party designating the disputed
information. The written notice shall identify the information to which the
objection is made. After notification of such objection, the Parties shall confer
and attempt to resolve the issue informally before involving the Court. If the
Parties cannot resolve the objection within fourteen (14) days after the time the
notice is received, it shall be the obligation of the party designating the
information as CONFIDENTIAL to file within twenty eight (28) days an
appropriate motion requesting that the Court determine whether the disputed
information should be subject to the terms of this Protective Order. If the
disputed CONFIDENTIAL Information is attached to such a motion, it shall be
filedthe party will file a motion in accordance with D.C.COLO.LCivR 7.2 and retain
the mark “CONFIDENTIAL.” If such a motion is timely filed, the disputed
information shall be treated as CONFIDENTIAL under the terms of this
Protective Order until the Court rules on the motion. The burden of establishing
that the information at issue should be designated as CONFIDENITIAL is on the
Party asserting that the information should be CONFIDENTIAL.

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16. Nothing in this Protective Order shall give any Party a basis to withhold or slow
the production of Documents. If a Party files a motion under Paragraph 1516,
and if the court rules against the producing Party, that Party shall reproduce that
same information without the designation.
17. The failure to designate any Documents as “CONFIDENTIAL” as provided in this
Protective Order shall not constitute a waiver of a Party’s right to assert that the
Documents are CONFIDENTIAL Information covered by this Protective Order, as
long as the production of such information was inadvertent and the designating
Party notifies the receiving Party of the inadvertent production within fourteen
(14) days of discovery of the inadvertent production.
18. Any production before this Protective Order was entered of Documents with PHI
or Proprietary Information that were was not designated in accordance with this
Protective Order does not violate this Protective Order. Documents produced
before this Protective Order was entered are entitled to be considered as
CONFIDENTIAL Information under the terms of this Protective Order by use of
the following procedure. On or before August 24, 2015, any Party claiming that
documents produced before this Protective Order was entered are entitled to be
treated as CONFIDENTIAL Information shall produce to all other Parties a log of
such documents, including the Bates Number (or other specific identifying
information) and the marking on the document. Only documents that already

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contain a marking indicating that the document is confidential are entitled to be
considered as CONFIDENTIAL Information. On or before September 24, 2015,
any Party may object to any Party’s designation of documents produced before
this Protective Order was entered as CONFIDENTIAL Information using the
procedures in Paragraph 16. Alternatively, documents produced before this
Protective Order was entered that contain PHI or Proprietary Information may be
reproduced with the “CONFIDENTIAL” designation and treated in accordance
with the terms of this Protective Order.
19. Nothing in this Protective Order shall prevent any Party from objecting to
discovery on any basis permitted under the Federal Rules of Civil Procedure.
20. This Protective Order does not constitute a ruling on the question of whether any
particular Document is properly discoverable or admissible and does not
constitute any ruling on any potential objection to the discoverability of any
Document.
21. Nothing in this Protective Order shall be construed as precluding a Party from
objecting to the use of CONFIDENTIAL Information on grounds other than
confidentiality or be construed as relevant to the issue of whether any Document
or information is or is not admissible into evidence in this case. Such objections
are to be governed by this Court’s orders.

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22. Nothing in this Protective Order shall prevent the United States from disclosing or
limit or impair the United States’ ability to disclose to any agency or department
of the United States, or any division of any such agency or department,
CONFIDENTIAL Information relating to any potential violation of law or
regulation, or relating to any matter within that agency’s jurisdiction, nor shall
anything contained in this Protective Order prevent or in any way limit or impair
the use of any CONFIDENTIAL Information by an agency in any proceeding
relating to any potential violation of law or regulation, or relating to any matter
within that agency’s jurisdiction; provided, however, that the agency shall
maintain the confidentiality of the CONFIDENTIAL Information consistent with the
terms of this Protective Order.
23. Nothing in this Protective Order shall prevent the United States from disclosing or
limit or impair the United States’ ability to disclose CONFIDENTIAL Information
obtained from a Party or non-party to a Congressional entity if such
Congressional entity requests such CONFIDENTIAL Information; provided,
however, that the United States shall notify the Congressional entity requesting
the Documents that the CONFIDENTIAL Information has been produced
pursuant to this Protective Order and shall, if there are no objections interposed
by the Congressional entity requesting the Documents, use a reasonable effort to

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notify the producing Party or non-party of the Congressional entity’s request and
the United States’ responses thereto.
24. In the event of a request by a non-party (excluding Congress or any agency of
the United States) for disclosure of an opposing Party’s CONFIDENTIAL
Information, the Party will protect the opposing Party’s CONFIDENTIAL
Information to the fullest extent permitted by law. The Party will take reasonable
steps to provide notice to the legal counsel of the opposing Party whose
CONFIDENTIAL Information is requested, as is allowable under the law, prior to
the disclosure of CONFIDENTIAL Information to a non-party who requests
disclosure under any provision of law.
25. If a non-party produces Documents as part of this case, the non-party may
designate such Documents as CONFIDENTIAL Information and all Documents
so designated shall be subject to the terms of this Protective Order and shall be
entitled to the protections afforded herein.
26. If a Party produces documents that would otherwise be protected by the Privacy
Act, this Protective Order is an order of the Court pursuant to 5 U.S.C.
§ 552a(b)(11), which allows for such production.
27. The procedures for use of CONFIDENTIAL Information during any hearing or the
trial of these matters shall be controlled by the Court’s order or orders for the
hearing or trial.

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28. Nothing in this Protective Order shall prevent any Party from seeking modification
of this Protective Order for good cause.

ORDERED DATED this 17th day of March, 2015.
BY THE COURT:

s/ Nina Y. Wang

United States Magistrate Judge

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 11-cv-00642-PAB-NYW
(Consolidated with Civil Action No. 14-cv-01647-PAB)

Civil Action No. 11-cv-00642-PAB-NYW
UNITED STATES OF AMERICA, ex rel. TERRY LEE FOWLER, and LYSSA TOWL,
Plaintiff,
v.
EVERCARE HOSPICE, INC., a Delaware corporation,
OVATIONS, INC., a Delaware corporation,
OPTUMHEALTH, LLC, a Delaware limited liability corporation,
UNITED HEALTHCARE SERVICES, INC., a Minnesota corporation, and
UNITED HEALTH GROUP, INC., a Minnesota corporation.
Defendants.

Civil Action No. 14-cv-01647-PAB
UNITED STATES OF AMERICA ex rel. SHARLENE RICE,
Plaintiff,
v.
EVERCARE HOSPICE, INC.
Defendant.

ACKNOWLEDGEMENT OF PROTECTIVE ORDER

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I have read and understand the Protective Order governing the disclosure of
confidential information (“Protective Order”) entered in this action. I hereby agree to be
bound by the terms of the Protective Order. Specifically, I agree that I will use
confidential documents and any information contained therein only for purposes of this
case, including any appeals, and not for any other purpose of any kind; that I will
destroy or return all confidential documents to counsel within ninety (90) days after the
later of the termination of this litigation or expiration of all rights to appeal and that I will
take all appropriate steps to keep the confidential documents and any information
contained therein confidential. I hereby confirm that my duties under this
Acknowledgment shall survive the termination of this case and are binding upon me for
all time. I hereby consent to the personal jurisdiction of the United States District Court
for the District of Colorado in the above-captioned case for the purpose of enforcing the
Protective Order.
Dated:
[signature]

[print name]

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