Mingus v. Blue Cross and Blue Shield of Kansas, Inc.

Filing 19

PROTECTIVE ORDER. The parties shall abide by the terms of the order. Signed by Magistrate Judge K. Gary Sebelius on 9/11/2017.(wh)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
ROY MINGUS,
Plaintiff,
v.
BLUE CROSS AND BLUE SHIELD OF
KANSAS, INC.,
Defendant.

)
)
)
)
)
)
)
)
)
)

Case No. 17-2362-JAR

PROTECTIVE ORDER
The parties agree that during the course of discovery it may be necessary to disclose
certain confidential information relating to the subject matter of this action. They agree that
certain categories of such information should be treated as confidential, protected from
disclosure outside this litigation, and used only for purposes of prosecuting or defending this
action and any appeals. The parties jointly request entry of this proposed Protective Order to
limit the disclosure, dissemination, and use of certain identified categories of confidential
information.
The Parties assert in support of their request that protection of the identified categories of
confidential information is necessary because this action concerns the propriety of Defendant’s
handling of certain health insurance claims involving mental health and substance abuse
conditions. Accordingly, the Plaintiff is expected to request confidential, and non-public
documents and information regarding the Defendant’s business operations, and financial
condition, including Defendant’s debt collection practices. Defendant expects to request
documents and information relating to medical treatments and services received by Plaintiff,
medical necessity of services received by Plaintiff, and documents related to Plaintiff’s benefits,

including those which are protected under the Health Insurance Portability and Accountability
Act of 1996, as codified at 42 U.S.C. 1320d through d-8 and KSA 65-5601 et seq. (“HIPAA”).
The Defendant considers its proprietary information, employment personnel records, student
records, and employee compensation records to be confidential, and the Plaintiff considers his
personal financial, personnel, medical, and compensation information to be confidential. To
expedite discovery and permit discovery to proceed without the delay occasioned by possible
disputes regarding claims of confidentiality, the Parties wish to produce documents subject to the
protective provisions set forth below. Based on the foregoing, the parties assert good cause
exists for entry of a Protective Order.
Pursuant to Federal Rule of Civil Procedure 26(c), and in order to protect the parties from
disclosure of proprietary or confidential information, the parties hereto stipulate and agree, and it
is hereby ORDERED AND DECREED that:
1.

Scope. All documents and materials produced in the course of discovery of this

case, including initial disclosures, responses to discovery requests, all deposition testimony and
exhibits, and information derived directly therefrom (hereinafter collectively “documents”), are
subject to this Order concerning Confidential Information as set forth below. As there is a
presumption in favor of open and public judicial proceedings in the federal courts, this Order will
be strictly construed in favor of public disclosure and open proceedings wherever possible.
2.

Definition of Confidential Information. As used in this Order, “Confidential

Information” is defined as information that the producing party designates in good faith has been
previously maintained in a confidential manner and should be protected from disclosure and use
outside the litigation because its disclosure and use is restricted by statute or could potentially
cause harm to the interests of disclosing party or nonparties. For purposes of this Order, the

2

parties will limit their designation of Confidential Information to the following categories of
information or documents:
(a)

Medical records regarding the Plaintiff, and any other current or former

employees, applicants or insureds of Defendant;
(b)

All Protected Health Information (“PHI”) as defined in 45 C.F.R. 160.103

(without formal designation); 42 C.F.R., Part 2; and KSA 65-5601
(c)

Personal information regarding Plaintiff, and any current or former

employees of Defendant, including, but not limited to, personal financial and medical
information;
(d)

Any identifying information regarding Defendant’s patients/consumers;

(d)

Non-public confidential information and documents regarding the

Defendant’s business operations, including, but not limited to, information about the
Defendant’s financial condition, and policies and procedures.
Information or documents that are available to the public may not be designated as
Confidential Information.
3.

Form and Timing of Designation.

The producing party may designate

documents as containing Confidential Information and therefore subject to protection under this
Order by marking or placing the words “CONFIDENTIAL” (hereinafter “the marking”) on the
document and on all copies in a manner that will not interfere with the legibility of the document.
As used in this Order, “copies” includes electronic images, duplicates, extracts, summaries or
descriptions that contain the Confidential Information. The marking will be applied prior to or at
the time of the documents are produced or disclosed. Applying the marking to a document does
not mean that the document has any status or protection by statute or otherwise except to the

3

extent and for the purposes of this Order. Copies that are made of any designated documents
must also bear the marking, except that indices, electronic databases, or lists of documents that
do not contain substantial portions or images of the text of marked documents and do not
otherwise disclose the substance of the Confidential Information are not required to be marked.
By marking a designated document as confidential, the designating attorney thereby certifies that
the document contains Confidential Information as defined in this Order. Inadvertent failure to
designate any document or material as containing Confidential Information will not constitute a
waiver of an otherwise valid claim of confidentiality pursuant to this Order, so long as a claim of
confidentiality is asserted within seven (7) days after discovery of the inadvertent failure.
4.

Depositions. Deposition testimony will be deemed confidential only if designated

as such when the deposition is taken or within a reasonable time period after receipt of the
deposition transcript. Such designation must be specific as to the portions of the transcript
and/or any exhibits to be protected.
5.

Protection of Confidential Material.
(a)

General Protections. Designated Confidential Information must be used

or disclosed solely for purposes of prosecuting or defending this lawsuit, including any
appeals, (or any other related legal proceeding brought by one of the parties to this
litigation).
(b)

Who May View Designated Confidential Information. Except with the

prior written consent of the designating party or prior order of the court, designated
Confidential Information may only be disclosed to the following persons:
(1)
(2)

The parties to this litigation, including any employees, agents, and
representatives of the parties;
Counsel working on this action on behalf of any party to this
action, and all assistants and stenographic and clerical employees
4

working under the direct supervision of counsel, copying service
providers and other independent contractors retained for the
purpose of this litigation;
(3)

Any person not employed by a party who is expressly retained by a
party, or any attorney, to assist in litigation of this action, with
disclosure of “CONFIDENTIAL” materials only to the extent
necessary to perform such work;

(4)

The court and court personnel, including any special master
appointed by the court, and members of the jury;
Court reporters, recorders, and videographers engaged for
depositions;

(5)

(6)

(7)

Any expert witness, outside consultant, or investigator retained
specifically in connection with this litigation;

(8)

Any potential, anticipated, or actual fact witness and/or non-party
deponent and his or her counsel, but only to the extent such
confidential documents or information will assist the witness in
recalling, relating, or explaining facts or in testifying;

(9)

The author or recipient of the document;

(10)

Independent providers of document reproduction, electronic
discovery, or other litigation services retained or employed
specifically in connection with this litigation; and

(11)

(c)

Any mediator appointed by the court or jointly selected by the
parties;

Other persons only upon consent of the producing party and on
such conditions as the parties may agree.

Control of Documents. The parties must take reasonable efforts to prevent

unauthorized or inadvertent disclosure of documents designated as containing Confidential
Information pursuant to the terms of this Order. Except as provided in this Protective Order, no
copies of material designated as “Confidential” shall be made or furnished, and no information
contained in such material shall be disclosed to any person, firm, or entity except those identified

5

in this Protective Order, without prior written consent of the party to whom the records belong or
their attorneys of record.
6.

Undertaking of Persons Receiving Designated Materials. In no event shall any

material designated “CONFIDENTIAL” be disclosed to any person described in paragraphs
5(b)(3), (7) or (8) until that person has been informed of the confidential nature of the material,
and indicated their understanding and intent to be bound by this order.
7.

Filing of Confidential Information.

Counsel shall not unnecessarily disclose

Confidential Information on the public record of this proceeding or in written arguments or
memoranda submitted to the Court. However, Counsel shall have the right to file or deposit with
the Court any Confidential Information at any time if such filing or deposit is necessary and
intended in good faith to support any party’s prosecution or defense of this Action, and further
subject to the right of any party or its counsel to request the Court place any Confidential
Information under seal, either before or after such Confidential Information has been initially
filed with the Court. If any party desires to request any Confidential Information be placed
under seal, that party shall file a separate motion seeking such Order from the Court in
accordance with D. Kan. Rule 5.4.6.
Nothing in this Order will be construed as a prior directive to allow any document to be
filed under seal. The parties understand that the requested documents may be filed under seal
only with the permission of the court after proper motion. If the motion is granted and the
requesting party permitted to file the requested documents under seal, only counsel of record and
unrepresented parties will have access to the sealed documents.
8.

Challenges to a Confidential Designation. The designation of any material or

document as Confidential Information is subject to challenge by any party. Before filing any

6

motion or objection to a confidential designation, the objecting party must confer in good faith to
try to resolve the objection informally without judicial intervention. A party that elects to
challenge a confidentiality designation may file and serve a motion that identifies the challenged
material and sets forth in detail the basis for the challenge. The burden of proving the necessity
of a confidentiality designation remains with the party asserting confidentiality. Until the court
rules on the challenge, all parties must continue to treat the materials as Confidential Information
under the terms of this Order.
9.

Use of Confidential Documents or Information at Trial or Hearing. Nothing

in this Order will be construed to affect or limit the use of any document, material, or
information at any trial or hearing. The court may hereafter make such other or further orders as
may be necessary to govern the use of such documents or information at any hearing or trial
upon the subsequent request or motion of any party.
10.

Obligations on Conclusion of Litigation.
(a)

Order Remains in Effect and Jurisdiction. Unless otherwise agreed or

ordered, all provisions of this Order will remain in effect and continue to be binding after
conclusion of the litigation. The Court’s jurisdiction to enforce the provisions of this
Order shall be terminated upon the final disposition of this case, unless and until a party
seeks leave to reopen the case to enforce the provisions of this Order.
(b)

Storage of Confidential Documents. Upon the conclusion of this Action

by settlement, final judgment, or final order, including all appeals, counsel for any party
to this Action shall return any original Confidential Information to the designating party,
if requested. However, counsel in this Action may maintain a copy of all Confidential
Information as a part of counsel’s case files.

7

11.

Order Subject to Modification. This Order is subject to modification by the

court on its own motion or on motion of any party or any other person with standing concerning
the subject matter. The Order must not, however, be modified until the parties have been given
notice and an opportunity to be heard on the proposed modification.
12.

No Prior Judicial Determination.

This Order is entered based on the

representations and agreements of the parties and for the purpose of facilitating discovery.
Nothing in this Order will be construed or presented as a judicial determination that any
document or material designated as Confidential Information by counsel or the parties is entitled
to protection under Fed. R. Civ. P. 26(c) or otherwise until such time as the court may rule on a
specific document or issue.
13.

Persons Bound by Protective Order. This Order will take effect when entered

and is binding upon all counsel of record and their law firms, the parties, and persons made
subject to this Order by its terms.
14.

Applicability to Parties Later Joined. If additional persons or entities become

parties to this lawsuit, they must not be given access to any Confidential Information until they
execute and file with the court their written agreement to be bound by the provisions of this
Order.
15.

Protections Extended to Third-Party’s Confidential Information. The parties

agree to extend the provisions of this Protective Order to Confidential Information produced in
this case by third parties, if timely requested by the third party.
16.

Confidential Information Subpoenaed or Ordered Produced in Other

Litigation. If a receiving party is served with a subpoena or an order issued in other litigation
that would compel disclosure of any material or document designated in this action as

8

Confidential Information, the receiving party must so notify the designating party, in writing,
immediately and in no event more than three business days after receiving the subpoena or order.
Such notification must include a copy of the subpoena or court order.
The receiving party also must immediately inform in writing the party who caused the
subpoena or order to issue in the other litigation that some or all of the material covered by the
subpoena or order is the subject of this Order. In addition, the receiving party must deliver a
copy of this Order promptly to the party in the other action that caused the subpoena to issue.
The purpose of imposing these duties is to alert the interested persons to the existence of
this Order and to afford the designating party in this case an opportunity to try to protect its
Confidential Information in the court from which the subpoena or order issued. The designating
party bears the burden and the expense of seeking protection in that court of its Confidential
Information, and nothing in these provisions should be construed as authorizing or encouraging a
receiving party in this action to disobey a lawful directive from another court. The obligations
set forth in this paragraph remain in effect while the party has in its possession, custody, or
control Confidential Information designated by the other party to this case.
IT IS SO ORDERED.

Dated this 11th day of September, 2017.

s/ K. Gary Sebelius
K. Gary Sebelius
U.S. Magistrate Judge

9

Submitted and agreed by,

By:

/s/ Sean M. McGivern
Sean M. McGivern, #22932
GRAYBILL & HAZLEWOOD, LLC
218 N. Mosley St.
Wichita, KS 67202
Telephone: [phone]
Fax: [phone]
[e-mail]

ATTORNEYS FOR PLAINTIFF

By:

/s/ Gregory P. Goheen
Gregory P. Goheen
#16291
McANANY, VAN CLEAVE & PHILLIPS, P.A.
10 E. Cambridge Circle Drive, Suite 300
Kansas City, Kansas 66103
Telephone [phone]
Facsimile [phone]
Email: [e-mail]

ATTORNEYS FOR DEFENDANT

10

ATTACHMENT A

ACKNOWLEDGMENT
AND
AGREEMENT TO BE BOUND
The undersigned hereby acknowledges that he/she has read the Protective Order
dated _______________ in the case captioned, _________________________________,
and attached hereto, understands the terms thereof, and agrees to be bound by its terms.
The undersigned submits to the jurisdiction of the United States District Court for the
District of Kansas in matters relating to this Protective Order and understands that the
terms of the Protective Order obligate him/her to use materials designated as Confidential
Information in accordance with the order solely for the purposes of the above-captioned
action, and not to disclose any such Confidential Information to any other person, firm, or
concern, except in accordance with the provisions of the Protective Order.
The undersigned acknowledges that violation of the Protective Order may result in
penalties for contempt of court.
Name:

______________________________________

Job Title:

______________________________________

Employer:

______________________________________

Business Address:

___________________________
___________________________

Date: _________________

___________________________
Signature
11