Sarasota County Public Hospital Board v. Blue Cross and Blue Shield of Florida, Inc. et al

Filing 49

ORDER granting in part and denying in part 47 Motion Qualified Protective Order. Signed by Magistrate Judge Sean P. Flynn on 10/8/2019. (Flynn, Sean)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
Tampa Division

SARASOTA COUNTY PUBLIC
HOSPITAL BOARD d/b/a SARASOTA
MEMORIAL HEALTH CARE SYSTEM,

Plaintiff,
v.

CASE NO.: 8:18-cv-02873-T-23SPF

BLUE CROSS AND BLUE SHIELD OF
FLORIDA, INC., and HEALTH OPTIONS,
INC.,
Defendants.
______________________________________________/

QUALIFIED PROTECTIVE ORDER
THIS CAUSE, having come before the Court upon the Joint Motion for Entry of a
Qualified Protective Order filed by the parties, collectively, and the Court having reviewed the
parties’ joint motion, it is hereby,
ORDERED AND ADJUDGED as follows:
1.

In accordance with the requirements of the regulations promulgated under the

Health Insurance Portability and Accountability Act of 1996 (“HIPAA”) (see Pub. L. 104-191,
110 Stat. 1936), as amended by the Health information Technology for Economic and Clinical
Health Act (the “HITECH Act”), including all applicable regulations and guidance issued by the
Secretary of the United States Department of Health and Human Services (collectively, the
“HIPAA Rules”), including specifically 45 C.F.R. § 164.512(e)(1)(ii)(B) and § 164.512(e)(1)(v),
and in addition, the requirements under 42 C.F.R. Part 2, as well as all state laws and regulations

regarding the privacy and security of personal information (collectively with the HIPAA Rules,
the “Privacy Rules”), the Court hereby enters this Qualified Protective Order, as that term is
defined in the Privacy Rules.
2.

The current Parties (and their attorneys) and any future parties (and their

attorneys) to the above-captioned litigation are hereby authorized through discovery to receive,
subpoena, and transmit “protected health information” (“PHI”) pertaining to Plaintiff’s past,
present, and future patients and Defendants’ past, present, and future insureds (including
insureds covered by insurance plans administered but not issued by Defendants) (collectively,
the “Insureds”), to the extent that such information is otherwise discoverable, reasonably
accessible, and not objectionable, subject to all conditions outlined herein.
3.

For the purposes of this Order, PHI shall have the same scope and definition as set

forth in 45 C.F.R. § 160.103. Without limiting the generality of the foregoing, PHI refers to
individually identifiable health information, including demographic information, collected from
an individual, that: (1) is created or received by a health care provider, health plan, employer, or
health care clearinghouse; and (2) relates to the past, present, or future physical or mental health
or condition of an individual, or the past, present, or future payment for the provision of health
care to an individual, and (i) that identifies the individual, or (ii) with respect to which there is a
reasonable basis to believe the information can be used to identify the individual.
4.

All parties must fully comply with all applicable discovery rules, statutes, and

precedent, including 42 C.F.R. Part 2 where applicable. Upon such compliance, all “covered
entities” (as defined by 45 C.F.R. § 160.103) are hereby authorized to disclose PHI pertaining to
Insureds to the attorneys for the parties now of record in this litigation, or who may become of
record in the future in this litigation.

5.

The parties and their attorneys shall be permitted to use and disclose PHI

pertaining to Insureds solely for the matters reasonably connected with this litigation. Permitted
disclosures may be made in this litigation to: (a) the Court and its support staff; (b) court or
deposition reporters; (c) counsel of record in this litigation; (d) shareholders, partners, associates,
secretaries, paralegal assistants, and employees of counsel of record, but only to the extent
reasonably necessary to render professional services in this litigation; (e) the named Parties and
their corporate affiliates, officers, directors, employers, employees, or agents, but only to the
extent reasonably necessary to render professional services in this litigation; (f) witnesses,
experts, and consultants; (g) employees of third-party contractors providing litigation support
services; (h) jurors; and (i) mediators and any magistrate or special master. The recipients of
PHI pertaining to Insureds shall maintain it as confidential and are prohibited from using or
disclosing it for any purpose other than in this litigation.
With respect to items 5(f) and 5(g) above, any witness who is not an officer, director, or
employee of any of the Parties to this litigation; any expert, consultant, or employee of any such
expert or consultant; and any employee of a third-party contractor providing litigation support
services, who is to be provided or shown PHI in the course of this litigation, must first receive a
copy of this Order and execute a copy of the Third-Party Attestation attached hereto as Exhibit
1.
All parties and persons or entities who might receive PHI (including all signatories to
Exhibit 1) agree that they will (1) comply with the Privacy Rules; (2) establish contractual
controls that require any vendors, experts, or third parties that might receive PHI to comply with
the Privacy Rules; and (3) undertake due diligence to verify that the privacy and security
protections of any such vendors, experts, or third parties comply with the Privacy Rules.

6.

PHI pertaining to Insureds shall not be contained, referenced within, or annexed

to a pleading, motion, exhibit, or other pretrial paper submitted to the Court, unless such PHI is
redacted or the paper bears an appropriate legend and the Court authorizes it to be filed under
seal. The use PHI at trial, including trial exhibits containing PHI, will be addressed by the Court
closer to trial.
7.

Within 90 days of the conclusion of this litigation as to any Party (which shall be

defined as the point at which final orders disposing of the entire case as to that particular party
have been entered and the time for any appellate proceedings concerning such orders have
expired or appeal rights exhausted), that Party and any person or entity in possession of PHI
received from another Party or person pursuant to this Order shall destroy any and all copies of
such PHI. Notwithstanding the foregoing, counsel of record and in-house counsel for each Party
may each retain, subject to this Order, the pleadings, documents filed with the Court,
depositions, and discovery responses, and may retain any documents and copies thereof which
are work product (collectively, the “Permitted Materials”), except to the extent the Permitted
Materials contain PHI of a member or insured of a payor other than one of the Defendants named
in this action or one of its or their respective affiliates, in which case those portions of the
Permitted Materials shall be destroyed in conformance with this Order.
8.

Nothing contained in this Order authorizes counsel to obtain medical records or

information through means other than formal discovery requests, subpoenas, depositions, patient
authorizations, or attorney-client communications. Moreover, the Parties may seek additional
protection from the disclosure and use of any documents and information for which they believe
this Order does not provide adequate protection or with respect to documents and information
which they believe are not subject to disclosure pursuant to applicable statutes, rules, regulations,
or other applicable law.

DONE AND ORDERED in Tampa, Florida, this 8th day of October 2019.

___________________________________
SEAN P. FLYNN
UNITED STATES MAGISTRATE JUDGE

Copies to all counsel of record.

EXHIBIT 1

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
Tampa Division
SARASOTA COUNTY PUBLIC
HOSPITAL BOARD d/b/a SARASOTA
MEMORIAL HEALTH CARE SYSTEM,
Plaintiff,
CASE NO.: 8:18-cv-02873-T-23SPF

v.

BLUE CROSS AND BLUE SHIELD OF
FLORIDA, INC., and HEALTH OPTIONS,
INC.,
Defendants.
______________________________________________/
THIRD-PARTY ATTESTATION
This is to certify that the undersigned has read and is fully familiar with the provisions of
the Qualified Protective Order (“Order”) entered on ___________________ in the abovecaptioned litigation. As a condition precedent to my receipt and examination of Protected Health
Information disclosed pursuant to the Order, or my obtaining any information derived from
Protected Health Information, I hereby agree that the Order shall be deemed to be directed to and
shall include me, and that I shall be bound by, observe, and comply with the provisions of the
Order. I further agree that I shall be subject to the Court’s enforcement and jurisdiction for any
violation or attempted violation of the provisions of the Order.
______________________
Name (Signature)
_______________________
Name (Printed)
_______________________
Relationship to or interest in this Litigation
Dated: _________________