Kissing Camels Surgery Center, LLC et al v. HCA Inc. et al
Filing
141
STIPULATED PROTECTIVE ORDER by Magistrate Judge Boyd N. Boland on 10/10/13. (bnbcd, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 1:12-cv-03012-WJM-BNB
KISSING CAMELS SURGERY CENTER, LLC,
CHERRY CREEK SURGERY CENTER, LLC,
ARAPAHOE SURGERY CENTER, LLC,
and HAMPDEN SURGERY CENTER, LLC,
Plaintiffs,
v.
HCA, INC., HCA-HEALTHONE, LLC,
CENTURA HEALTH CORPORATION,
COLORADO AMBULATORY SURGERY CENTER ASSOCIATION, INC.,
KAISER FOUNDATION HEALTH PLAN OF COLORADO,
ROCKY MOUNTAIN HOSPITAL AND MEDICAL SERVICE, INC. d/b/a ANTHEM BLUE
CROSS AND BLUE SHIELD OF COLORADO,
UNITEDHEALTHCARE OF COLORADO, INC.,
AUDUBON AMBULATORY SURGICAL CENTER, LLC, and
AETNA, INC.,
Defendants.
[PROPOSED] STIPULATED PROTECTIVE ORDER
Plaintiffs, Kissing Camels Surgery Center, LLC; Cherry Creek Surgery Center LLC;
Arapahoe Surgery Center, LLC; and Hampden Surgery Center, LLC, and Defendants Rocky
Mountain Hospital and Medical Service, Inc. d/b/a Anthem Blue Cross and Blue Shield Of
Colorado; UnitedHealthcare of Colorado, Inc.; Audubon Ambulatory Surgical Center, LLC; and
Aetna, Inc. (individually, a “Party,” and collectively, the “Parties”), anticipate that certain of
their confidential business records, as well as those of non-parties, may be produced in discovery
in the above-captioned action (the “Action”) and that such confidential records must be protected
from further disclosure. Pursuant to Federal Rule of Civil Procedure 26(c), the Court finds good
cause for entry of this Stipulated Protective Order (“Protective Order”) to provide such
protection according to the terms and conditions set forth below. To expedite the flow of
discovery material and the litigation of this case, facilitate the prompt resolution of disputes over
confidentiality, and adequately protect material entitled to be kept confidential, it is, by
agreement of the Parties, STIPULATED and ORDERED that:
1.
This Protective Order shall apply to all documents, electronically stored
information, materials, and information disclosed, filed or served pursuant to the Federal Rules
of Civil Procedure or the Local Rules of Practice, including without limitation, documents and
data produced by any party or non-party, answers to interrogatories, responses to requests for
admission, expert disclosures, and deposition testimony.
2.
As used in this Protective Order, “document” and “electronically stored
information” are defined as provided in Federal Rule of Civil Procedure 34(a)(1)(A).
3.
As used in this Protective Order, “Confidential Information” is information that
the designating party or non-party believes is not in the public domain and which constitutes,
contains or reflects confidential business, research, development, commercial, financial or
personal information, such as confidential patient information.1
4.
As used in this Protective Order, “Highly Confidential Information” is
information that the designating party or non-party believes is Confidential Information that, if
disclosed, might give an unfair competitive or business advantage to another person or entity, or
create a substantial risk of injury to the designating party or non-party, such as trade secret or
other sensitive proprietary information.
1
This Protective Order is a HIPPA-compliant “qualified protective order” pursuant to
45 C.F.R. § 164.512(e)(1)(v).
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5.
Any document that contains confidential, proprietary, or personal financial or
health information may be designated as Confidential or Highly Confidential Information by
stamping the term “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL,” respectively, clearly
and conspicuously on the face of each document containing such information or in the metadata
of the document if produced in native format. For a multi-page document, each page containing
Confidential or Highly Confidential Information shall be stamped separately.
6.
All documents and materials produced in the Action shall be used solely for the
purposes of preparing for and conducting pre-trial, trial, and post-trial proceedings in this
Action, and not for any other purpose, and such documents shall not be disclosed to any person
or entity except as provided in this Protective Order.
7.
Documents containing Confidential Information shall not be disclosed without the
consent of the producing Party or further Order of the Court, except that such information may
be disclosed to:
(a)
the Parties in this Action to the extent reasonably necessary to allow them
to assist in the preparation or conduct of pre-trial, trial, and post-trial
proceedings in this Action;
(b)
counsel of record for the Parties in this Action, and the personnel who are
directly employed or retained by counsel of record for the purpose of
assisting with, or working on, this Action;
(c)
expert witnesses and consultants, such as e-discovery vendors, that are
retained in connection with this Action, to the extent such disclosure is
necessary for preparation for trial or other proceedings in this Action;
(d)
the Court and its officers, including stenographic reporters engaged to
transcribe court proceedings and sworn testimony in this Action; and
(e)
other persons by written agreement of the Parties.
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8.
Documents containing Highly Confidential Information shall be subject to the
same restrictions as Confidential Information, except that Highly Confidential Information may
be disclosed only to those persons identified in subparagraphs (b)–(e) of paragraph 7 of this
Protective Order. Parties or their employees, however, may be shown documents marked
“HIGHLY CONFIDENTIAL” during a hearing or trial.
9.
Prior to disclosing any Confidential or Highly Confidential Information to any
person listed above (other than counsel and their employees, court personnel, and stenographic
reporters), counsel shall provide such person with a copy of this Protective Order and obtain
from such person an executed copy of the Acknowledgment of Stipulated Protective Order
attached hereto as Exhibit A, which states that he/she has read this Protective Order and agrees
to be bound by its provisions. All such acknowledgments shall be retained by counsel and shall
be subject to in camera review by the Court if good cause for review is demonstrated by
opposing counsel.
10.
Documents and other information produced by non-parties shall be treated as
Highly Confidential Information for fourteen (14) days after such documents and information are
produced, during which time any Party may designate any document or information as
Confidential or Highly Confidential Information by letter to all other Parties in the Action.
11.
Deposition transcripts in this Action shall be treated as Highly Confidential
Information until thirty (30) days after receipt of a final copy of the transcript, after which time
any Party (or non-party deponent) may designate any portion or all of any transcript as
Confidential or Highly Confidential Information by letter to all other Parties in the Action.
Additionally, any Party or non-party participating in a deposition may designate any portions of
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the transcript of the deposition as Confidential or Highly Confidential Information during the
recording of such deposition. No person shall be present during portions of the depositions
designated as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL” unless such person is an
authorized recipient of Confidential or Highly Confidential Information pursuant to paragraphs 7
and 8, respectively, of this Protective Order.
12.
Any request to restrict access must comply with the requirements of
D.C.COLO.LCivR 7.2.
13.
A Party may object to the designation of particular Confidential or Highly
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. If
the Parties cannot resolve the objection within ten (10) business days after the time the notice is
received, it shall be the obligation of the Party designating the information as Confidential or
Highly Confidential Information to file an appropriate motion requesting that the Court
determine whether the disputed information should be subject to the terms of this Protective
Order. Such motion shall be filed within twenty (20) business days after the time the notice is
received. If such a motion is timely filed, the disputed information shall be treated as
Confidential or Highly Confidential Information under the terms of this Protective Order until
the Court rules on the motion. If the designating Party fails to file such a motion within the
prescribed time, the disputed information shall lose its designation as Confidential or Highly
Confidential Information and shall not thereafter be treated as Confidential or Highly
Confidential Information in accordance with this Protective Order. In connection with a motion
filed under this provision, the Party designating the information as Confidential or Highly
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Confidential Information shall bear the burden of establishing that good cause exists for the
disputed information to be treated as Confidential or Highly Confidential Information.
14.
Upon termination or resolution of this Action, the Parties shall within sixty (60)
days return to the producing Party all materials marked “CONFIDENTIAL” or “HIGHLY
CONFIDENTIAL” (and any copies thereof) or destroy them. Counsel for each Party shall
furnish a certificate of compliance that all Confidential and Highly Confidential Information
produced to the Party, as well as all summaries, excerpts, or copies of such materials, have been
returned or destroyed.
15.
The termination of proceedings in this Action shall not relieve the Parties from
the obligation of maintaining the confidentiality of all Confidential or Highly Confidential
Information that is received or disclosed pursuant to this Protective Order.
16.
Consistent with Federal Rule of Evidence 502(b) and (d), the inadvertent
production of any document protected from discovery by the attorney-client privilege, the workproduct doctrine, or other applicable privilege or immunity shall not constitute a waiver of the
privilege or protection, either as to the produced document or any other documents, or otherwise
affect the right to withhold such document(s) from production as privileged or otherwise
protected from discovery.
17.
This Protective Order may be modified by the Court at any time for good cause
shown following notice to the Parties and an opportunity for them to be heard.
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Dated October 10, 2013.
BY THE COURT:
s/ Boyd N. Boland
United States Magistrate Judge
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APPROVED AS TO FORM AND CONTENT:
Attorneys for Plaintiffs
Attorneys for Defendants Rocky
Hospital and Medical Service, ColoradoMountain
Blue Cross and Blue Shield of Inc. d/b/a Anthem
/s/ Craig A. Hoover
/s/ Joe R. Whatley, Jr.
Joe R. Whatley, Jr.
WHATLEY KALLAS, LLC
201 North Mill Street
Aspen, CO 81611
Tel: 800-695-6750
Fax: 800-922-4851
Craig A. Hoover
E. Desmond Hogan
Hogan Lovells US LLP
555 13th Street NW
Columbia Square
Washington, DC 20004-1109
Phone: (202) 637-5600
Fax: (202) 637-5910
desmond.hogan@hoganlovells.com
craig.hoover@hoganlovells.com
Edith M. Kallas
WHATLEY KALLAS, LLC
380 Madison Ave., 23rd Floor
New York, NY 10017
Tel: (212) 447-7060
Fax: (800) 922-4851
Michael C. Theis
David A. DeMarco
Hogan Lovells US LLP
1200 17th Street
One Tabor Center
Suite 1500
Denver, CO 80202
Phone: (303) 899-7300
Fax: (303) 899-7333
michael.theis@hoganlovells.com
david.demarco@hoganlovells.com
W. Tucker Brown
WHATLEY KALLAS, LLC
2001 Park Place Tower, Suite 1000
Birmingham, AL 35203
Tel: (205) 488-1200
Fax: (800) 922-4851
Deborah J. Winegard
WHATLEY KALLAS, LLC
1068 Virginia Ave., NE
Atlanta, GA 30306
Tel: (404) 607-8222
Fax: (404) 607-8451
Attorneys of Colorado,
UnitedHealthcarefor Defendant Inc.
/s/ Lawrence W. Treece
Lawrence W. Treece, #5384
Richard B. Benenson, #32566
Karl L. Schock, #38239
BROWNSTEIN HYATT FARBER
SCHRECK, LLP
410 Seventeenth Street
Suite 2200
Denver, Colorado 80202
Phone: 303.223.1100
Fax: 303.223.1111
ltreece@bhfs.com
Attorneys for Center, LLC
Ambulatory Surgical Defendant Audubon
/s/ Gregory B. Kanan
Gregory B. Kanan
Kenneth F. Rossman, IV
LLP
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ROTHGERBER JOHNSON & LYONS
One Tabor Center, Suite 3000
1200 Seventeenth Street
Denver, CO 80202
303.623.9000
gkanan@rothgerber.com
krossman@rothgerber.com
rbenenson@bhfs.com
kschock@bhfs.com
Attorneys for Defendant Aetna, Inc.
/s/ Joshua Lipton
Joshua Lipton
GIBSON, DUNN & CRUTCHER LLP
1500 Connecticut Ave. N.W.
Third Floor
Washington, DC 20036-5303
Telephone: 202-955-8226
Facsimile: 202-530-9536
jlipton@gibsondunn.com
Laura Sturges
GIBSON, DUNN & CRUTCHER LLP
1801 California Street, Suite 4200
Denver, Colorado 80202-2642
Telephone: 303-298-5700
Facsimile: 303-313-2825
lsturges@gibsondunn.com
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EXHIBIT A
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 1:12-cv-03012-WJM-BNB
KISSING CAMELS SURGERY CENTER, LLC,
CHERRY CREEK SURGERY CENTER, LLC,
ARAPAHOE SURGERY CENTER, LLC,
and HAMPDEN SURGERY CENTER, LLC,
Plaintiffs,
v.
HCA, INC., HCA-HEALTHONE, LLC,
CENTURA HEALTH CORPORATION,
COLORADO AMBULATORY SURGERY CENTER ASSOCIATION, INC.,
KAISER FOUNDATION HEALTH PLAN OF COLORADO,
ROCKY MOUNTAIN HOSPITAL AND MEDICAL SERVICE, INC. d/b/a ANTHEM BLUE
CROSS AND BLUE SHIELD OF COLORADO,
UNITEDHEALTHCARE OF COLORADO, INC.,
AUDUBON AMBULATORY SURGICAL CENTER, LLC, and
AETNA, INC.,
Defendants.
ACKNOWLEDGMENT OF STIPULATED PROTECTIVE ORDER
I, ____________________________, have read and understand the Stipulated Protective
Order entered in the above-captioned action (the “Protective Order”). I understand that
confidential documents or other sources of information that have been designated as
“CONFIDENTIAL” or “HIGHLY CONFIDENTIAL” pursuant to the Protective Order are to be
disclosed to me for use by me solely in connection with prosecution or defense of claims
involved in this action. I further understand that the Protective Order prohibits me from either
using or disclosing such Documents or other sources of information for any purpose other than
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as set forth in and pursuant to the Protective Order. If I violate the Protective Order, I
understand that I may be held in contempt of Court, and I submit to the Court’s jurisdiction for
enforcement of the Protective Order.
Notwithstanding the foregoing, this endorsement shall not apply to any documents or
information validly obtained by me or my employer independent from this action.
Dated: ___________________
By:
(print name)
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