Michigan Regional Council of Carpenters Employee Benefits Fund et al v. Blue Cross Blue Shield of Michigan

Filing 40

STIPULATED PROTECTIVE ORDER concerning confidentiality. Signed by District Judge Denise Page Hood. (LSau)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF MICHIGAN

THE SHANE GROUP, INC. and
BRADLEY A. VENEBERG,
Plaintiffs, on behalf of themselves and all
others similarly situated,
v.
BLUE CROSS BLUE SHIELD OF
MICHIGAN,
Defendant.

MICHIGAN REGIONAL COUNCIL OF
CARPENTERS EMPLOYEE BENEFITS
FUND; ABATEMENT WORKERS
NATIONAL HEALTH AND WELFARE
FUND; MONROE PLUMBERS &
PIPEFITTER LOCAL 671 WELFARE
FUND; on behalf of themselves and all
others similarly situated,
Plaintiffs,
v.
BLUE CROSS BLUE SHIELD OF
MICHIGAN,
Defendant.

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Case No. 2:10-cv-14360-DPH-MKM
Honorable Denise Page Hood

Case No. 2:10-cv-14887-DPH-MKM

SCOTT STEELE, on behalf of
himself and all others similarly
situated,
Plaintiff,
v.
BLUE CROSS BLUE SHIELD OF
MICHIGAN,
Defendant.

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Case No. 2:11-cv-10375-DPH-VMM

STIPULATED PROTECTIVE ORDER CONCERNING CONFIDENTIALITY
In the interests of (i) promoting an efficient and prompt resolution of the Actions; (ii)
facilitating discovery by the Parties litigating the Actions; and (iii) protecting the Parties’ and
non-parties’ Confidential Information from improper disclosure or use, The Shane Group, Inc.,
Bradley A. Veneberg, Michigan Regional Council of Carpenters Employee Benefits Fund,
Abatement Workers National Health and Welfare Fund, and Monroe Plumbers & Pipefitter
Local 671 Welfare Fund, Scott Steele (collectively, “Plaintiffs”), and Defendant Blue Cross Blue
Shield of Michigan (collectively, the “Parties”), have stipulated to the provisions set forth below.
Upon good cause shown, pursuant to Fed. R. Civ. P. 26(c)(1)(G) and E.D. Mich. LR 26.4, the
Court ORDERS as follows:
A.

DEFINITIONS

1.

As used in this Order:
(a)

“Confidential Information” means any trade secret or other confidential

research, development, or commercial information, as such terms are used in Fed. R. Civ. P.
26(c)(1)(G), or any document, transcript, or other material containing such information, or nonpublic personal information (such as Social Security numbers, credit card or bank account

(b)

information, or home telephone numbers), or protected health information

(“PHI”) under HIPPA.
(c)

“Defendant” means Blue Cross Blue Shield of Michigan, its divisions,

subsidiaries, affiliates, partnerships and joint ventures, and all directors, officers, employees,
agents, and representatives of the foregoing.
(d)

“Disclosed” means shown, divulged, revealed, produced, described,

transmitted, or otherwise communicated, in whole or in part.
(e)

“Document” means documents or electronically stored information as

defined in Fed. R. Civ. P. 34(a).
(f)

“Investigations” means the U.S. Department of Justice’s and/or the State

of Michigan’s inquiries, before commencing United States v. Blue Cross Blue Shield of
Michigan, No. 2:10-cv-14155 (E.D. Mich.) (“DOJ/Michigan Action”), into (i) Defendant’s
inclusion of the most favored nation clauses in its contracts with hospitals in Michigan identified
in the complaints in the Actions; and/or (ii) Defendant’s proposed acquisition of Physicians
Health Plan of Mid-Michigan.
(g)

“Investigation Materials” means documents, transcripts of testimony, or

other materials that (i) any non-party provided to any Party either voluntarily or under
compulsory process during the Investigations; (ii) any Party sent to any non-party during the
Investigations; and/or (iii) Defendant has provided to either the DOJ or the State of Michigan
during the Investigations.
(h)

“Person” means any natural person, corporate entity, partnership,

association, joint venture, governmental entity, or trust.
(i)

“Plaintiffs” means The Shane Group, Inc., Bradley A. Veneberg,

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Michigan Regional Council of Carpenters Employee Benefits Fund, Abatement Workers
National Health and Welfare Fund, and Monroe Plumbers & Pipefitter Local 671 Welfare Fund,
Scott Steele, and all employees, agents, and representatives of those persons or entities.
(j)

“Protected Person” means any person (including a Party) that has provided

Investigation Materials or that, voluntarily or under compulsory process, provides any
documents or testimony in the Actions.
(k)

“The Actions” means the above-captioned actions pending in this Court,

including any pretrial, trial, post-trial, or appellate proceedings.
B.

DESIGNATION OF CONFIDENTIAL INFORMATION

2.

All Documents, including deposition transcripts, produced in the Actions that

were previously provided to either DOJ or the State of Michigan during the Investigations or
after the commencement of the DOJ/Michigan Action designated or treated as Confidential
Information under the Stipulated Protective Order Regarding Confidentiality entered in the
DOJ/Michigan Action on March 16, 2011, will be treated as Confidential Information under this
Order.
3.

A Protected Person may designate as Confidential Information any documents or

transcripts that it provides to any Party during the Actions, to the extent such information
constitutes Confidential Information as defined in Paragraph 1(a) of this Order. Such
designations constitute a representation to the Court that such Protected Person believes, in good
faith, that the information so designated constitutes Confidential Information. Any production of
documents or testimony not designated as Confidential Information will not be deemed a waiver
of any future claim of confidentiality concerning such information, including PHI, if it is later
designated Confidential Information pursuant to Paragraph 5 of this Order. However, any such
subsequent designation will not retroactively prohibit the disclosure of any information for which
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disclosure was proper when made. Persons who receive production of documents or testimony
containing PHI that have not been designated as Confidential Information, will, if they determine
that the document or testimony contains PHI, promptly notify the Protected Person, to permit the
Protected Person to designate the document or testimony as Confidential Information.
4.

Designation as Confidential Information of Documents, including deposition

transcripts, produced in the Actions that were not previously provided to either DOJ or the State
of Michigan during the Investigations or after the commencement of the DOJ/Michigan Action is
governed as follows:
(a)

Whenever discovery is sought by subpoena from a non-party in the

Actions after entry of this Order, a copy of this Order shall accompany the subpoena.
(b)

All transcripts of depositions taken in the Actions after entry of this Order

will be treated as Confidential Information in their entirety for 30 days after the date a copy of
the final transcript has been made available to the Protected Person for review. Within five days
of receipt of the final transcript, the Party that noticed the deposition shall provide the final
transcript to the Protected Person. At any time during the 30 days following receipt of the final
transcript, the Protected Person may designate testimony as Confidential Information, in
compliance with Paragraph 3 of this Order. Such designations (with reference to the page(s) and
line(s) of the final transcript) must be provided in writing by the person making such
designations to Plaintiffs’ and Defendant’s counsel.
(c)

A Protected Person that designates as Confidential Information any

document produced in the Actions after entry of this Order must stamp or label each confidential
page of each document with the designation “CONFIDENTIAL.” If the entire document is not
Confidential Information, the Protected Person shall stamp or label only those pages that contain

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Confidential Information. Where Confidential Information is produced in electronic format on a
disk or other medium that contains exclusively Confidential Information, the
“CONFIDENTIAL” designation may be placed on the disk.
5.

If a Party or Protected Person inadvertently fails to designate as Confidential

Information any documents or testimony, it may later so designate by notifying the Parties in
writing. After receiving such notice, the Parties shall thereafter treat the newly designated
information as Confidential Information. No prior disclosure of newly designated Confidential
Information shall violate this Order and the Parties have no obligations regarding such prior
disclosures, if any.
6.

Any Party that objects to the designation as Confidential Information of any

documents or transcripts may notify the designating person in writing, copying all Parties. The
designating person shall then have 14 days from receipt of the notification to file a motion
seeking a Court order upholding the designation. The burden of proving that the designation is
proper under Rule 26(c)(1)(G) shall be upon the person seeking to uphold the designation. If a
motion is filed, the Parties shall continue to treat the designated Confidential Information at issue
as Confidential Information until the Court rules on the motion. If the designating person does
not seek an order within two weeks of receiving notice, or if the Court determines the
designation of Confidential Information to have been inappropriate, the challenged designation
shall be rescinded.
7.

If a Party receives a confidentiality waiver to allow a deponent to be questioned

on information that would otherwise be Confidential Information, that waiver (including
identifying the specific Confidential Information to which it pertains) must be disclosed to
counsel for all other Parties as soon as practicable, but in any event no later than five business

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days prior to the deposition of the witness in question.
C.

SCOPE OF DISCLOSURE OF CONFIDENTIAL INFORMATION

8.

Except as authorized by this Order, documents, transcripts of testimony, or other

materials designated as Confidential Information pursuant to this Order shall not be disclosed to
any person other than the persons set forth below, and may be disclosed to and used by the
persons set forth below only in the Actions:
(a)

the Court and all persons assisting the Court in the Actions, including law

clerks, court reporters, and stenographic or clerical personnel;
(b)

outside counsel acting for either Plaintiffs or Defendant in the Actions,

those counsels’ employees, and independent contractors assisting such outside counsel in the
prosecution or defense of the Actions, except to the extent outside counsel and those assisting
such outside counsel was involved in or provided advice, or knows it will be involved in or
provide advice, concerning negotiations between any Michigan hospital and Defendant or a
commercial insurer doing business in Michigan at any time between January 1, 2005 and three
years after the close of this litigation or related litigation;
(c)

authors, addressees, and recipients of particular information designated as

Confidential Information solely to the extent that they have previously had lawful access to the
particular information disclosed or to be disclosed;
(d)

persons (and their counsel) whom Plaintiffs or Defendant believes, in

good faith, to have had prior access to the Confidential Information, or who have been
participants in a communication that is the subject of the Confidential Information and from
whom verification of or other information about that access or participation is sought, solely to
the extent of disclosing such information to which they may have had access or that is the subject
of the communication in which they may have participated; provided that, unless and until the
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persons or their counsel confirms that the persons had access or were participants, only as much
of the information may be disclosed as may be necessary to confirm the persons’ access or
participation;
(e)

testifying or consulting experts retained by a Party to assist outside

counsel in the prosecution or defense of the Actions, including employees of the firm with which
the expert or consultant is associated to the extent necessary to assist the expert’s work in the
Actions; and
(f)

persons in the courtroom during proceedings in this Action, provided that

the Confidential Information is disclosed for those proceedings, subject to the right of the
Protected Person to move to restrict access to the courtroom.
9.

Before any information designated as Confidential Information may be disclosed

to any person described in Paragraph 8(b)-(e) of this Order, he or she must first read this Order
or must have otherwise been instructed on his or her obligations under the Order by this Court or
counsel for a Party, and shall have executed the agreement included as Appendix A hereto.
Counsel for the Party making the disclosure must retain the original of such executed agreement
for a period of at least three years following the final resolution of the Actions. Each individual
described in Paragraph 8 of this Order to whom information designated as Confidential
Information is disclosed must not disclose that Confidential Information to any other individual,
except as provided in this Order.
10.

Notwithstanding Paragraphs 8 and 9 of this Order, nothing in this Order shall:
(a)

limit a person’s use or disclosure of its own information designated as

Confidential Information;
(b)

prevent disclosure of Confidential Information by any Party to any current

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employee of the person that designated the information as Confidential Information; or
(c)

prevent disclosure of Confidential Information by any Party with the

consent of the person that designated the Confidential Information; provided, however, that this
Order does not authorize disclosure of PHI beyond the persons identified in Paragraph 8 above.
(d)

prevent Plaintiffs, subject to taking appropriate steps to preserve the

further confidentiality of such information, from disclosing information designated as
Confidential Information as may be required by law.
(e)

prohibit the discussion of issues with witnesses simply because those

issues are discussed in Confidential Information, provided that the witness in question had lawful
access to the particular information being discussed.
D.

DISCLOSURE OF CONFIDENTIAL INFORMATION IN PRETRIAL
AND TRIAL PROCEEDINGS IN THE ACTIONS

11.

If any documents or testimony designated or treated under this Order as

Confidential Information is included in any pleading, motion, exhibit, or other paper to be filed
with the Court, the Party seeking to use such material shall follow the procedures set forth in
E.D. Mich. LR 5.3 and 26.4. Nothing in this Order shall restrict any person, including any
member of the public, from challenging the filing of any Confidential Information material under
seal.
E.

PROCEDURES UPON TERMINATION OF THE ACTIONS

12.

Within 90 days after receiving notice of the entry of an order, judgment, or decree

terminating the Actions, after all appeals have concluded or the time for appeal has expired, all
persons having received information designated as Confidential Information must either make a
good faith effort to return such material and all copies thereof to the person that produced it, or
destroy all such Confidential Information and certify that fact in writing to that person. Counsel

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for Plaintiffs and Defendant will be entitled to retain court papers, deposition and trial transcripts
and exhibits, and work product, provided that Plaintiffs’ employees, Plaintiffs’ counsel and their
employees and independent contractors, and Defendant’s counsel and Defendant’s counsel’s
employees do not disclose the portions of court papers, deposition transcripts, exhibits, or work
product containing information designated as Confidential Information to any person except
pursuant to Court order or agreement with the person that produced the information designated
as Confidential Information. All Confidential Information returned to the Parties or their counsel
by the Court likewise must be disposed of in accordance with this Paragraph.
F.

RIGHT TO SEEK MODIFICATION

13.

Nothing in this Order prevents any person, including members of the public, from

seeking modification of this Order, upon motion made pursuant to the rules of this Court.

SO ORDERED:
Dated at Detroit, Michigan, this 5th day of October, 2011.

s/Denise Page Hood
UNITED STATES DISTRICT JUDGE

I hereby certify that a copy of the foregoing document was mailed to the attorneys of record on
this date, October 5, 2011, by electronic and/or ordinary mail.

s/LaShawn R. Saulsberry
Case Manager, [phone]

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Dated October 3, 2011.
Stipulated for form and entry by:

FOR SHANE/COUNCIL/STEELE PLAINTIFFS

FOR DEFENDANT BLUE CROSS
BLUE SHIELD OF MICHIGAN

/s/ E. Powell Miller
E. Powell Miller (P39487)
THE MILLER LAW FIRM, P.C.
950 West University Drive, Suite 300
Rochester, Michigan 48307
Telephone: [phone]
Email: [e-mail]

/s/ D. Bruce Hoffman w/ permission
D. Bruce Hoffman
Hunton & Williams LLP
1900 K Street, N.W.
Washington, DC 20006
Telephone: [phone]
Email: [e-mail]
Adm. E.D.Mich., DC Bar # 495385

/s/ Mary Jane Fait w/ permission
Mary Jane Fait
WOLF HALDENSTEIN ADLER
FREEMAN & HERZ LLC
55 West Monroe Street, Suite 1111
Chicago, Illinois 60603
Telephone: [phone]
Email: [e-mail]
/s/ Daniel A. Small w/ permission
Daniel A. Small
COHEN MILSTEIN SELLERS
& TOLL PLLC
1100 New York Avenue, NW, Suite 500
Washington, DC 20005
Telephone: [phone]
Email: [e-mail]
/s/ Daniel E. Gustafson w/ permission
Daniel E. Gustafson
GUSTAFSON GLUEK PLLC
650 Northstar East
608 Second Avenue South
Minneapolis, MN 55402
Telephone: [phone]
Email: [e-mail]

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David H. Fink (P28235)
FINK + ASSOCIATES LAW
100 West Long Lake Road; Suite 111
Bloomfield Hills, Michigan 48304
Telephone: [phone]
Email: [e-mail]
Eric L. Cramer
BERGER & MONTAGUE, P.C.
1622 Locust Street
Philadelphia, Pennsylvania 19103
Telephone: [phone]
Joseph C. Kohn
William E. Hoese
KOHN, SWIFT & GRAF, P.C.
One South Broad Street, Suite 2100
Philadelphia, Pennsylvania 19107
Telephone: [phone]
Marvin A. Miller
Matthew E. Van Tine
MILLER LAW LLC
115 South LaSalle Street
Suite 2910
Chicago, Illinois 60603
Telephone: [phone]
Richard N. LaFlamme
LAFLAMME & MAULDIN, P.C.
2540 Spring Arbor Road
Jackson, Michigan 49203
Telephone: [phone]
David Balto
LAW OFFICES OF DAVID BALTO
1350 I Street, NW
Suite 850
Washington, DC 20005
Telephone: [phone]
Attorneys for Plaintiffs The Shane Group, Inc. and
Bradley A. Veneberg

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L. Kendall Satterfield
Don A. Resnikoff
Michael G. McLellan
FINKELSTEIN THOMPSON LLP
1050 30th Street, NW
Washington, D.C. 20007
Telephone: [phone]
Email: [e-mail]
Email: [e-mail]
John Tesija
Mike Novara
Bryan M. Beckerman
NOVARA TESIJA, P.L.L.C.
2000 Town Center, Suite 2370
Southfield, Michigan 48075
Telephone: [phone]
Email: [e-mail]
Email: [e-mail]
Email; [e-mail]
Attorneys for Plaintiffs Michigan Regional Council of
Carpenters Employee Benefits Fund, Abatement Workers
National Health and Welfare Fund, and Monroe
Plumbers & Pipefitter Local 671 Welfare Fund
Alyson Oliver (#55020)
KRESCH OLIVER PLLC
24100 Southfield Road, suite 305
Southfield, MI 48075
Telephone: [phone]
Email: [e-mail]
Joseph Goldberg
FREEDMAN BOYD HOLLANDER GOLDBERG &
IVES, P.A.
20 First Plaza, Suite 700
Albuquerque, NM 87102
Telephone: [phone]
Email: [e-mail]

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Dianne Nast
RODANAST, P.C.
801 Estelle Drive
Lancaster, PA 17601
Telephone: [phone]
[e-mail]
W. Joseph Bruckner
Richard A. Lockridge
LOCKRIDGE GRINDAL NAUEN P.L.L.P
100 Washington Avenue South,
Suite 2200
Minneapolis, MN 55401
Telephone: [phone]
Email: [e-mail]
Email: [e-mail]
Charles Zimmerman
Anne T. Regan
ZIMMERMAN REED, PLLP
1100 IDS Center
80 South 8th Street
Minneapolis, MN 55402
Telephone: [phone]
Email: [e-mail]
Email: [e-mail]
Attorneys for Plaintiff Scott Steele

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APPENDIX A
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF MICHIGAN

THE SHANE GROUP, INC. and
BRADLEY A. VENEBERG,
Plaintiffs, on behalf of themselves and all
others similarly situated,
v.
BLUE CROSS BLUE SHIELD OF
MICHIGAN,
Defendant.

MICHIGAN REGIONAL COUNCIL OF
CARPENTERS EMPLOYEE BENEFITS
FUND; ABATEMENT WORKERS
NATIONAL HEALTH AND WELFARE
FUND; MONROE PLUMBERS &
PIPEFITTER LOCAL 671 WELFARE
FUND; on behalf of themselves and all
others similarly situated,
Plaintiffs,
v.
BLUE CROSS BLUE SHIELD OF
MICHIGAN,
Defendant.

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Case No. 2:10-cv-14360-DPH-MKM
Honorable Denise Page Hood

Case No. 2:10-cv-14887-DPH-MKM

SCOTT STEELE, on behalf of
himself and all others similarly
situated,
Plaintiff,
v.
BLUE CROSS BLUE SHIELD OF
MICHIGAN,
Defendant.

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Case No. 2:11-cv-10375-DPH-VMM

AGREEMENT CONCERNING CONFIDENTIALITY
I, __________________________________, am employed as _____________________
by ________________________________________. I hereby certify that:
1.
I have read the Stipulated Protective Order Concerning Confidentiality
(“Protective Order”) entered in the above-captioned actions, and understand its terms.
2.
I agree to be bound by the terms of the Protective Order and agree to use
information, designated as Confidential Information, provided to me only for the purpose of this
litigation.
3.
I understand that my failure to abide by the terms of the Protective Order entered
in the above-captioned actions will subject me, without limitation, to civil and criminal penalties
for contempt of Court.
4.
I submit to the jurisdiction of the United States District Court for the Eastern
District of Michigan solely for the purpose of enforcing the terms of the Protective Order entered
in the above-captioned actions and freely and knowingly waive any right I may otherwise have
to object to the jurisdiction of said Court.
5.

I make this certificate this _____ day of _________________, 201___.

(SIGNATURE)

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