Baker v. Banner Health et al

Filing 44

STIPULATED PROTECTIVE ORDER signed by Magistrate Judge Craig B. Shaffer on 12/16/14. ORDERED that when filing restricted documents, parties MUST fully comply with the requirements of D.C.ColoL.CivR. 7.2. (cbssec)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 1:12-cv-03029-WJM-CBS
UNITED STATES ex rel.,
MARTHA L. BAKER,
Plaintiff-Relator
v.
BANNER HEALTH and BANNER
MEDICAL GROUP COLORADO,
Defendants.
STIPULATED PROTECTIVE ORDER

Upon showing of good cause in support of the entry of a protective order to
protect the discovery and dissemination of confidential information, IT IS ORDERED:
1.

In this action, at least one of the Parties has sought and/or may seek to

discover Confidential Information, including Protected Health Information. “Confidential
Information” and “Protected Health Information” are defined in part, in paragraphs 6, 7,
and 8, below.
2.

The purpose of this Protective Order is to preclude disclosure of

Confidential Information to any person or entity not subject to this litigation as defined in
this Protective Order. The Parties recognize that the disclosure of Confidential
Information and Protected Health Information could result in significant injury to one or
more of the Parties’ business or privacy interests, the patient(s) identified in the

protected health records, and/or without an agreement, a possible violation of the
Health Insurance Portability and Accountability Act of 1996 (“HIPAA”).
3.

The purpose of this Protective Order is to prohibit the Parties from using or

disclosing the Confidential Information and Protected Health Information for any
purpose other than this litigation.
4.

The Parties agree that this agreement does not constitute a global waiver

by any party as to whether any Confidential or Privileged Information is discoverable,
but rather, is a mechanism by which Confidential Information that is disclosed is
prevented from being used for any purpose outside this litigation by any Party.
5.

This Protective Order shall apply to all documents, files or portions of files,

materials, and information, including without limitation, documents produced, answers to
interrogatories, responses to requests for admission, deposition testimony, and other
information disclosed in this litigation and designated as “Confidential” pursuant to the
terms of this Protective Order. As used in this Protective Order, “document” is defined
as provided in Fed.R.Civ.P. 34(a). A draft or non-identical copy is a separate document
within the meaning of this term.
6.

“Confidential Information,” includes, any documents that contain “Protected

Health Information”, protected professional review information, proprietary business
information, financial or tax information, compliance and/or investigative files, or other
information that has been maintained by the designating party in a confidential fashion.
7.

“Confidential Information” may include information that implicates common

law and statutory privacy interests of the Plaintiff and the Defendants in this matter,
2

including current and former employees of Defendants. See, e.g.; COLO. REV. STAT. §
13-90-107(1)(d) (physician-patient privilege); Alcon v. Spicer, 113 P.3d 735 (Colo.
2005); Weil v. Dillon Co., Inc., 109 P.3d 127 (Colo. 2005); COLO. REV. STAT. § 24-72204(3)(a)(II)(A) (concerning disclosure of personnel /employment file records); Everitt v.
Brezzel, 750 F. Supp. 1063 (D. Colo. 1990); Martinelli v. District Court in and for the City
and County of Denver, 612 P.2d 1083 (Colo. 1980); COLO. REV. STAT. §§ 12-36.5101 et seq.; §§ 25-3-109 et seq. (Professional Review and Quality Assurance Rules).
8.

“Protected Health Information” includes all documents and other materials

which constitute Protected Health Information, as that term is defined in the Privacy
Regulations promulgated pursuant to the Health Insurance Portability and Accountability
Act, 45 C.F.R. Parts 160 and 164 (the “privacy regulations”), and copies, summaries,
pleadings, testimony or transcripts containing quotations there from or references
thereto. This Order is intended to constitute a “qualified protective order” as described in
45 C.F.R. 164.512(e).
9.

Documents containing “Confidential Information,” including “Protected

Health Information,” are designated as CONFIDENTIAL by placing or affixing on them
(in a manner that will not interfere with their legibility) the following or other appropriate
notice: “CONFIDENTIAL.” Designation or identification, or assertion of a document as
Confidential or Privileged Information does not necessarily indicate that it is or is not
discoverable.
10.

Responses to discovery requests are designated as CONFIDENTIAL by

imprinting the word “CONFIDENTIAL” next to or above the response.
3

11.

Whenever a deposition involves the disclosure of CONFIDENTIAL

Information, the deposition or portions thereof shall be designated as CONFIDENTIAL
and shall be subject to the provisions of this Protective Order. Such designation shall be
made on the record during the deposition whenever possible, but a Party may designate
portions of depositions as CONFIDENTIAL after transcription, provided written notice of
the designation is promptly given to all counsel of record within thirty (30) days after
notice by the court reporter of the completion of the transcript.
12.

Individuals authorized to review CONFIDENTIAL Information pursuant to

this Protective Order including, but not limited to, the Parties to this action and their
undersigned counsel, shall hold CONFIDENTIAL Information in confidence.
CONFIDENTIAL Information shall not be disclosed, revealed, leaked to the media
(inadvertently or otherwise), or used for any purpose except in the preparation and trial
of this case.
13.

CONFIDENTIAL Information may be disclosed to the following, provided

that these persons comply with the terms of this Protective Order:
a. attorneys actively working on this case and their support staff;
b. the Parties and designated representatives and agents for the
Defendants;
c. expert witnesses and consultants retained in connection with this
proceeding, to the extent such disclosure is necessary for preparation, trial or
other proceedings in this case;

4

d. stenographic reporters who are engaged in proceedings necessarily
incident to the conduct of this action;
e. deponents;
f. the Court and employees of the Court;
g. the attorneys, investigators, and other employees of the United States
Attorney’s Office and the United States Department of Justice;
h. a witness or potential witness in this case; and
i.

other persons by written agreement of the Parties.

CONFIDENTIAL information shall not be disclosed to persons specified in
subparagraphs 13 (c), (e), (h) and (i) until such persons have executed a Written
Acknowledgment as set forth in Attachment A.
14.

The Party’s counsel who discloses CONFIDENTIAL Information pursuant

to subparagraphs 13(c), (e), (h) and (i) shall send to the recipient of the information a
copy of the Protective Order and obtain a Written Acknowledgment from the recipient
that he/she has reviewed and will abide by the terms of the Protective Order. The
subject Party’s counsel shall maintain a list of all persons to whom any CONFIDENTIAL
Information is disclosed and retain the Written Acknowledgments.
15.

No copies of CONFIDENTIAL Information shall be made except by or on

behalf of counsel in this litigation for work product purposes, including, but not limited to,
for review by experts in this case. Any such copies shall be made and used solely for
purposes of this litigation.

5

16.

A Party may object to the designation of particular 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 to file an appropriate motion requesting that the Court determine
whether the disputed information should be subject to the terms of this Protective Order
within thirty (30) days of the aforementioned notice. 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. In connection with a motion filed
under this provision, the Party designating the information as CONFIDENTIAL shall
bear the burden of establishing that good cause exists for the disputed information to be
treated as CONFIDENTIAL.
17.

In the event it is necessary for the Parties to file CONFIDENTIAL

Information with the Court in connection with any proceeding or motion, nothing
contained herein shall prevent a party from applying to the Court to restrict public
access to the CONFIDENTIAL Information in accordance with the procedures and
requirements of D.C.COLO.LCiv.R 7.2.
18.

The termination of this action shall not relieve counsel or other persons

obligated hereunder from their responsibility to maintain the confidentiality of
CONFIDENTIAL Information pursuant to this Protective Order, and the terms and
requirements of this Protective Order shall survive the termination of this action.
6

19.

By agreeing to the entry of this Protective Order, the Parties adopt no

position as to the authenticity or admissibility of any document produced subject to it.
Neither the taking of any action in accordance with the provisions of this Protective
Order, nor the failure to object thereto, shall be construed as a waiver of any claim or
defense in this action.
20.

Upon the termination of this litigation, counsel shall be responsible for

retrieving any and all copies which they have caused to be made of Confidential
Records and either destroying such copies or returning such copies to the providing
party. Counsel may retain a single set of Confidential Records for a period of no more
than three (3) years from the conclusion of the litigation at which time the Confidential
Records shall either be returned or destroyed.
21.

Nothing in this Protective Order shall preclude any Party from filing a

motion seeking further or different protection from the Court under Rule 26(c) of the
Federal Rules of Civil Procedure, or from filing a motion with respect to the manner in
which CONFIDENTIAL Information shall be treated at trial.
22.

This Protective Order may be modified by the Court at any time for good

cause shown following notice to all Parties and an opportunity for them to be heard.
16th
Dated: December ____, 2014.
BY THE COURT:

____________________________________
Craig B. Shaffer 
United States Magistrate Judge 

7