Kissing Camels Surgery Center, LLC et al v. HCA Inc. et al

Filing 79

STIPULATED PROTECTIVE ORDER by Magistrate Judge Boyd N. Boland on 4/8/13. (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 HCA Inc.,
HCA-HealthONE LLC, Centura Health Corporation, Colorado Ambulatory Surgery Center
Association, Inc., and Kaiser Foundation Health Plan of Colorado (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

1

This Protective Order is a HIPPA-compliant “qualified protective order” pursuant to
45 C.F.R. § 164.512(e)(1)(v).

create a substantial risk of injury to the designating party or non-party, such as trade secret or
other sensitive proprietary information.
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)
(e)
8.

the Court and its officers, including stenographic reporters engaged to
transcribe court proceedings and sworn testimony in this Action; and
other persons by written agreement of the Parties.

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 Acknowledgement 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
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. When filed with pleadings or offered as evidence at any hearing or
trial, Confidential or Highly Confidential Information shall be designated for restricted access
pursuant to Rule 7.2 of the Local Rules of Practice for the United States District Court for the
District of Colorado, and any party filing or offering such Confidential or Highly Confidential
Information must notify the designating party or non-party that such Confidential or Highly
Confidential Information will be filed or offered into the Court record in advance of or
simultaneously with the filing or offering. It is incumbent upon the Party or non-party
designating the information as Confidential or Highly Confidential to take all steps necessary
under Local Rule 7.2 to ensure the continued confidential treatment of such information.
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
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.

The inadvertent production of any document protected from discovery by the

attorney-client privilege, the work-product 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. In the event that any privileged or protected
document(s) is produced during discovery in this Action, the Party or non-party claiming the
privilege or protection may notify all Parties in writing of the inadvertent disclosure and request
the destruction of such document(s). If a request is made in good faith to return any such
inadvertently produced document(s), the Party(ies) or non-party(ies) that received the
document(s) shall within five (5) business days of receipt of such request, confirm in writing
that it has destroyed all copies thereof and deleted any copy of the documents, or any portion
thereof, from any word processing or data base tape or disk it maintains, and that it has destroyed
any work product that incorporates such document or information. The status of the document(s)
as privileged or otherwise protected from discovery shall be deemed to be restored upon the
making of such a request. If, however, the Party claiming privilege either (i) expresses the intent
to use such document (or information contained therein) at a hearing, deposition, or trial, or (ii)
uses such document (or information contained therein) at a hearing, deposition, or trial, that
Party’s right to assert the privilege or protection and to request destruction of the document(s)
shall be foreclosed. Compliance with this paragraph shall not be deemed to prejudice the rights
of any other Party to seek an order from the Court directing production of the information or
document on the ground that the claimed privilege, protection, or immunity is invalid; provided,
however, that mere production of the information or document in the course of this Action shall
not be a ground for asserting waiver of the privilege, protection, or immunity. In the event that a
Party intends to challenge the claim of privilege, protection, or immunity, the Party may retain a
copy of the inadvertently produced document(s) for such purposes.
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.

Dated April 8, 2013.
BY THE COURT:
s/ Boyd N. Boland
United States Magistrate Judge

APPROVED AS TO FORM AND CONTENT:
Attorneys for Plaintiffs

Attorneys for Defendants HCA Inc. and
HCA-HealthONE LLC

/s/ Joe R. Whatley, Jr.
Joe R. Whatley, Jr.
WHATLEY KALLAS, LLC
201 North Mill Street
Jerome Professional Building
Suite 103
Aspen, CO 81611

/s/Kevin Arquit
John A. Francis
Erin McAlpin Eiselein
Natalie West
DAVIS GRAHAM & STUBBS LLP
1550 17th Street, Suite 500
Denver, CO 80202

Tel:

970-300-2631

Tel: [phone]

Fax:

800-922-4851

Fax: [phone]

Edith M. Kallas
WHATLEY KALLAS, LLC
380 Madison Ave., 23rd Floor
BARTLETT LLP
New York, NY 10017
Tel: [phone]
Fax: [phone]
W. Tucker Brown
WHATLEY KALLAS, LLC
2001 Park Place Tower, Suite 1000
BARTLETT LLP
Birmingham, AL 35203
Tel: [phone]
Fax: [phone]
Deborah J. Winegard
WHATLEY KALLAS, LLC

Kevin Arquit
Aimee Goldstein
SIMPSON THACHER &
425 Lexington Avenue
New York, NY 10017-3954
Tel: [phone]
Fax: [phone]
Abram J. Ellis
SIMPSON THACHER &
1155 F. Street, N.W.
Washington, DC 20004
Tel: [phone]
Fax: [phone]

1068 Virginia Ave., NE
Atlanta, GA 30306
Tel: [phone]
Fax: [phone]

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 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)