Arapahoe Surgery Center, LLC et al v. CIGNA Healthcare, Inc. et al

Filing 55

AMENDED STIPULATED PROTECTIVE ORDER approved by Magistrate Judge Craig B. Shaffer on 06/17/2014. (Attachments: # 1 Agreement Re: Related Action, # 2 Stipulation Re: ESI) (cbslc1)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 13-cv-03422
ARAPAHOE SURGERY CENTER, LLC,
CHERRY CREEK SURGERY CENTER, LLC,
HAMPDEN SURGERY CENTER, LLC,
KISSING CAMELS SURGERY CENTER,
LLC, SURGCENTER OF BEL AIR, LLC, and
WESTMINSTER SURGERY CENTER, LLC,
Plaintiffs,
v.
CIGNA HEALTHCARE, INC.,
CONNECTICUT GENERAL LIFE INSURANCE COMPANY,
CIGNA HEALTHCARE - MID-ATLANTIC, INC., and CIGNA
HEALTHCARE OF COLORADO, INC.,
Defendants.

______________________________________________________________________
STIPULATED PROTECTIVE ORDER
______________________________________________________________________
Plaintiffs and Counterclaim Defendants Arapahoe Surgery Center, LLC
(“Arapahoe”), Cherry Creek Surgery Center, LLC (“Cherry Creek”), Hampden Surgery
Center, LLC (“Hampden”), Kissing Camels Surgery Center, LLC (“Kissing Camels”),
SurgCenter

of

Bel

Air,

LLC

(“Bel

Air”),

Westminster

Surgery

Center

LLC

(“Westminster”), and Surgical Center Development, Inc. d/b/a SurgCenter Development
(“SurgCenter”) (collectively, “Plaintiffs and Counterclaim Defendants”) and Defendants
and Counterclaim Plaintiffs Cigna Healthcare, Inc., Connecticut General Life Insurance

Company, Cigna Health and Life Insurance Company, Cigna Healthcare - Mid-Atlantic,
Inc., and Cigna Healthcare of Colorado, Inc. (collectively, “Cigna”) (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 abovecaptioned 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 in this Action 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 production, response to requests for
admission, expert disclosures, and deposition testimony.
2.

Upon full execution of an agreement in the form attached hereto as Exhibit

B between the Parties to the above-captioned Action and the HCA Parties (as defined
below), each Party to the above-captioned Action shall have the right to use in this
Action all materials produced and associated with the HCA Action (as defined below),
pursuant to the Protective Orders in the HCA Action, including documents and data

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produced by any party or non-party, answers to interrogatories, responses to requests
for production, response to requests for admission, expert disclosures, and deposition
testimony. The “HCA Action” shall refer to Kissing Camels Surgery Center, LLC et al v.
HCA, Inc., et al., 12-cv-3012 (D. Colo.) The “HCA Parties” shall refer to those entities
that are or have been parties or participated in discovery in the HCA Action, including
HCA Inc., HCA-HealthONE LLC, Rocky Mountain Hospital and Medical Service, Inc.
d/b/a Anthem Blue Cross and Blue Shield of Colorado, Colorado Ambulatory Surgery
Center Association, Audubon Ambulatory Surgical Center, LLC, Aetna, Inc., United
Healthcare of Colorado, Inc., Centura Health Corporation, the Kaiser Foundation Health
Plan of Colorado, Humana Health Plan, Inc., Pinnacle III, Arapahoe, Cherry Creek,
Hampden, and Kissing Camels.
3.

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).
4.

As used in this Protective Order, “Confidential Information” is information

that the designating party or non-party believes in good faith 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
5.

As used in this Protective Order, “Highly Confidential Information” is

information that the designating party or non-party believes in good faith is Confidential

1

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

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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.
6.

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 multipage document, each page containing Confidential or Highly Confidential Information
shall be stamped separately.
7.

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.
8.

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:
8.1

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;

8.2

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;

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8.3

8.4

the Court and its officers, including stenographic reporters and
videographers engaged to transcribe or record court proceedings
and sworn testimony in this Action;

8.5

counsel of record for the HCA Parties in the HCA Action as
permitted by the Agreement Regarding the Production of Materials
from Related Action; and

8.6
9.

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;

other persons by written agreement of the Parties.

Except as noted in Paragraph 10, 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 2–6 of paragraph 8 of this Protective Order.
Parties or their employees, however, may be shown documents marked “HIGHLY
CONFIDENTIAL” during a hearing or trial.
10.

To the extent that documents containing Highly Confidential Information

reflect the following categories of information, such information may be disclosed to inhouse counsel of the receiving Party in addition to those persons identified in
subparagraphs 2–6 of paragraph 8 of this Protective Order:
10.1
Internal proprietary policies and procedures with respect to the
Parties' operations, including without limitation accounting procedures, financial
procedures, general operations, employment policies, standard operating procedures,
patient care, and billing practices.
10.2
Documents and reports reflecting Patient financial information
relating to claims submitted by or to any of the receiving Parties, including without
limitation billing data, insurer reimbursement received, calculation of insurer
reimbursement, calculation of charges, and/or patient payments for various procedures.

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11.

The determination of whether Highly Confidential Information falls under

subparagraphs 1 and 2 of Paragraph 10 shall be made by the receiving Party’s counsel.
To the extent that the receiving Party’s counsel cannot in good faith determine whether
Highly Confidential Information falls under these subparagraphs, the Parties shall meet
and confer regarding the treatment of such information. If the Parties cannot come to
an agreement within five (5) business days after the time the notice is received, the
Parties shall notify the Court of their dispute. The disputed information shall not be
disclosed to in-house counsel until the Court rules on the motion
12.

Should a Party believe that effective prosecution of the claims or defenses

requires disclosing to in-house counsel categories of Highly Confidential Information
outside of the subparagraphs 1 and 2 of Paragraph 10, the receiving Party shall provide
written notice to the designating Party and the Parties shall meet and confer within five
(5) days to determine whether such category of information can be disclosed to inhouse counsel. If the Parties cannot come to an agreement within five (5) business
days after the time the notice is received, the Parties shall notify the Court of their
dispute. The disputed information shall not be disclosed to in-house counsel until the
Court rules on the motion.
13.

Prior to disclosing any Confidential or Highly Confidential Information to

any person listed above (other than counsel of record 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

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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.
14.

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.
15.

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, during
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 8 and 9, respectively, of this Protective
Order.
16.

Any request to restrict access must comply with the requirements of

D.C.COLO.LCivR 7.2.

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17.

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.
18.

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

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Confidential Information produced to the Party, as well as all summaries, excerpts, or
copies of such materials, have been returned or destroyed.
19.

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.
20.

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

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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 inadvertent 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.
21.

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.
SO ORDERED this 17th day of June, 2014.

BY THE COURT:

s/Craig B. Shaffer
United States Magistrate Judge

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