FIAMM Technologies, LLC et al v. Blue Cross Blue Shield of Michigan

Filing 21

STIPULATED PROTECTIVE ORDER Signed by District Judge Robert H. Cleland. (LWag)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
FIAMM TECHNOLOGIES, LLC
AND FIAMM TECHNOLOGIES,
LLC GROUP HEALTH PLAN,

Case No. 16-cv-13182
Hon. Robert H. Cleland

Plaintiffs,
v.
BLUE CROSS BLUE SHIELD OF
MICHIGAN,
Defendant.
/

STIPULATED PROTECTIVE ORDER
WHEREAS, the parties consider certain information and documents in their
possession to be confidential and proprietary, including, inter alia, sensitive
financial, commercial, business, and medical information and, therefore, mutually
desire that a protective order limiting the use, access to and disclosure of such
information and documents be entered, and the Court being otherwise fully
informed;
IT IS HEREBY ORDERED that, pursuant to Rule 26(c) of the Federal Rules
of Civil Procedure, the production and use of documents and information produced
or made available in this matter shall proceed in accordance with the following
terms:
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I.
1.

SCOPE OF THE ORDER

Scope of Order: This Order applies to all documents (and the contents

thereof) served, transmitted, or incorporated in this lawsuit pursuant to Rules 26
through 36 and/or Rule 45 of the Federal Rules of Civil Procedure.
II.

DESIGNATION OF MATERIALS AS “CONFIDENTIAL” OR
“ATTORNEYS EYES ONLY”
2.
Confidential Designation: The supplying party (including third-

parties) may designate material (including paper or electronic documents, written
discovery responses, and/or deposition testimony or exhibits) as “Confidential” if
such party believes in good faith, and after reasonable inquiry, that such material is
entitled to protection under Rule 26, or any other applicable law. Medical
information protected by the Health Insurance Portability and Accountability Act
Privacy Regulations, 45 CFR § 164.512(e), is entitled to protection and is treated as
though designated as Confidential regardless of whether it is designated Confidential
by the supplying party. Nothing in this Order is intended to expand the scope of
materials entitled to protection beyond what is covered by Rule 26 or other
applicable law.
If BCBSM produces any electronically-stored information as previously
produced in Hi-Lex marked “Confidential” and/or “Attorney Eyes Only,” BCBSM
may keep those designations in this case, but the designations are withdrawn as to
(a) designated documents in the Hi-Lex materials that were later de-designated in

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Hi-Lex, or (b) documents that are dated 2009 or earlier. As to the remaining
designations, Plaintiffs may identify specific documents, or reasonably ascertainable
categories of documents, that it wants de-designated and BCBSM shall promptly
review those documents to determine, and report to Plaintiffs, whether it will
continue the designations in accordance with the terms of this order.
3.

Persons Eligible to View Confidential Information: Only Qualified

Persons are authorized to view confidential information in this case, who are:
a.

b.

c.

d.

e.

Attorneys of record in this litigation and secretaries, paralegals,
law clerks and support staff employees to whom, in the opinion
of the attorney of record for the receiving party, it is necessary
that the information be disclosed for purposes of this litigation;
Any person who is not an employee or business consultant of a
party and who is retained by a party or its attorneys of record in
this litigation solely as an independent expert for the purposes of
this litigation and who agrees in writing to be bound by the terms
of this Protective Order. The independent expert must complete
and sign a Confidentiality Statement in the form of Exhibit A,
attached hereto. A copy of that Statement must be given to the
other party before access is allowed to the Confidential
information.
Officers, directors, and/or employees expressly designated by
each party, who, by accepting said designation agree to be bound
by the terms of this Protective Order.
Any person that an attorney of record in this litigation reasonably
believes needs to review the confidential information to enable
the good faith prosecution or defense of this litigation, such as a
potential witness. Any such person shall complete and sign a
Confidentiality Statement in the form of Exhibit A, attached
hereto. A copy of that Statement must be given to the other party
before access is allowed to the Confidential information.
Any other person who is designated as a Qualified Person by
Order of this Court, after notice to all parties, or who, by written
agreement of the parties, is designated as a Qualified Person. Any
person designated under this subparagraph must complete and
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f.

4.

sign a Confidentiality Statement in the form of Exhibit A,
attached hereto. A copy of that Statement must be given to the
other party before access is allowed to the Confidential
information.
Court reporters, stenographers, clerks, law clerks, and other court
personnel employed by the Court, and court reporters and/or
stenographers at depositions.

Persons Eligible to View Attorneys Eyes Only Information: By

placing the phrase “Attorneys Eyes Only” on a document, a producing party
designates that document as one to be viewed only by the Court, by attorneys of
record, and/or by expert consultants retained in this proceeding, who may not
disclose the content of the document to their client except with the written consent
of the producing party or by order of the Court. The “Attorney Eyes Only”
designation is only permissible if the document contains pricing information related
to BCBSM customers that are not parties to this action, and if the material so
designated is of a particularly sensitive nature that the opposing party’s knowledge
of it has a reasonable potential to cause significant commercial harm to the
designating party. A requesting party may challenge the designation of a document
as “Attorney Eyes Only” pursuant to paragraph 17 below.
5.

Method of Designation: All Information produced in this matter shall

be accorded the protections of this Protective Order if affirmatively designated as
“Confidential” or “Attorneys Eyes Only.” Documents and things produced which
contain Confidential information (with the exception of medical records, which
require no designation) shall be designated as such by marking each page of the
document or thing at or before the time of production substantially as follows:
4821-1735-7373, v. 1

“CONFIDENTIAL”
or
“CONFIDENTIAL - PURSUANT TO PROTECTIVE ORDER”
or
“ATTORNEYS EYES ONLY”
or
“ATTORNEYS EYES ONLY – PURSUANT TO PROTECTIVE ORDER”
In lieu of marking the original of documents, the party may mark the copies that are
produced or exchanged, before or after an inspection of the originals by the other
party. The designation of material as Confidential or Attorneys Eyes Only constitutes
a representation by the designating party and its counsel that they, in good faith,
believe that the material so designated contains or constitutes information which is
properly the subject of this Protective Order. A requesting party may challenge the
designation of a document as Confidential or Attorneys Eyes Only pursuant to
paragraph 17 below.
6.

Designation of Deposition Records: Information disclosed at the

deposition of a party or one of its present or former officers, directors, employees,
agents, or independent experts retained by a party for purposes of this litigation as
well as third parties may be designated as Confidential or Attorneys Eyes Only
information by indicating on the record at the deposition that the particular testimony
is Confidential or Attorneys Eyes Only information and subject to the provisions of
this Protective Order.
7.

Effect of Designation and/or Failure to Designate: Designation of

materials as Confidential is a representation by the designating person that there is a
valid basis for such designation. Notwithstanding the foregoing, the failure to
4821-1735-7373, v. 1

designate materials as Confidential shall not be used against any person as an
admission or concession that the materials are not eligible for designation, nor shall
it constitute, be construed as, or have the effect of, a waiver of any kind. In the event
that a person inadvertently fails to designate materials as Confidential, any person to
whom the materials were produced, shall, upon written notice, designate, and
thereafter treat, such materials as though designated as Confidential.
III.

TREATMENT OF MATERIALS SUBJECT TO PROTECTIVE
ORDER
8.
Prohibited Use of Materials: Materials subject to this Order shall not

be used for any purpose other than in connection with this litigation. Furthermore,
materials designated as Confidential and/or Attorneys Eyes Only shall not be: (1)
made available, directly or indirectly or through paraphrasing, by the party receiving
it to any persons or entities other than Qualified Persons; or (2) used by any person
for any purpose other than in connection with this litigation. Nothing herein is,
however, intended to restrict counsel's use of the general knowledge it gains from
reviewing materials subject to this Order, as long as such use does not include
counsel communicating the specific contents of such materials.
9.

Permitted Use of Materials: Nothing shall prevent disclosure beyond

the terms of this Order if the party and/or third-party designating the information as
Confidential or Attorneys Eyes Only Information consents, in writing, to such
disclosure, withdraws the Confidential or Attorneys Eyes Only designation, or if the
Court, after notice to all parties, orders such disclosure. A party may, in a deposition,
show any witness Confidential information. This Protective Order does not prohibit
4821-1735-7373, v. 1

the use or disclosure by a person of materials lawfully obtained or developed by such
person independently of discovery in this matter, even if such materials are also
obtained through discovery in this matter.
10.

Inapplicability of Protective Order: This Protective Order shall not

apply to information that: (i) was, is, or becomes public knowledge (not by any way
of a violation of this Protective Order); (ii) was or is acquired from a third party
possessing such information and having no obligation of confidentiality to the
designating party; or (iii) the receiving party establishes was already in its rightful
and lawful possession at the time of the disclosure.
11.

Filing and Use of Confidential Material in Court: Materials marked

“Confidential” or “Attorney’s Eyes Only” shall not be filed unless the designating
party prior to filing consents in writing to de-designate the material or unless the
filing party obtains an order from the Court authorizing the filing of such materials
under seal. This order does not authorize the filing of any documents or other
materials under seal. A party seeking to file such items under seal must file a motion
for leave to do so in accordance with Local Rule 5.3 and 26.4.
12.

Return of Materials Subject to the Protective Order: As to all

Confidential or Attorneys Eyes Only Information excluding medical records: Within
sixty (60) days after the conclusion of this litigation, including all appellate
proceedings, originals or reproductions of any documents or things produced by a
party containing Confidential or Attorneys Eyes Only information shall be returned
to the producing party or destroyed, except as required by law. Moreover, the office
4821-1735-7373, v. 1

of each principal counsel may retain for its archive a single copy of any such
materials. Principal counsel may also retain all exhibits, deposition transcripts,
correspondence and papers filed with the Court. There shall be no restrictions on the
disclosure or use of any trial exhibits, unless the exhibits were filed under seal and
the Court has not lifted any such restriction on the same. As to medical records,
within sixty (60) days after the conclusion of this litigation, all parties will return all
copies of the medical records to the producing party or provide the producing party
with satisfactory assurances that all copies have been destroyed.

13.

IV. MISCELLANEOUS
Inadvertent or Unintentional Disclosure of Privileged Information:

If a person inadvertently or unintentionally produces or discloses materials that are
confidential because of the attorney-client privilege, work product doctrine, or other
immunity, such person shall promptly give written notice to any receiving persons.
On receiving such notice, a receiving person shall sequester the materials. The
producing or disclosing person and the receiving person(s) shall thereafter negotiate
the disposition of the materials in good faith. If, after 7 days, the persons are unable
to reach an agreement as to the disposition of the materials, either of them may move
the Court to resolve the matter. In the event of such a motion, no person shall use
the fact of production or disclosure to argue that any applicable privilege is or was
waived. Nothing herein shall preclude a receiving person from otherwise
challenging or disputing the privilege or immunity claimed by the producing person,
including by using the materials at issue in a manner consistent with this Protective
Order.
4821-1735-7373, v. 1

14.

Non-Waiver of Rights: This Order shall not constitute a waiver of any

right(s) to: (1) object to any discovery request and withhold information and/or
materials on the ground of attorney/client privilege, work product or otherwise; (2)
object to the introduction of any materials as evidence at any hearing or trial in this
matter; (3) seek other and further protections as to any materials that may be offered
or admitted as evidence at any hearing or trial in this matter; or (4) file any other
motions that may be permitted by any applicable law or court rule. Nothing in this
Protective Order shall constitute an admission or waiver of any objection, claim or
defense by any person or party.
15.

Modifications to Order: Any person with proper standing may, on

motion or other request to the Court and for good cause shown, seek a modification
of this Order. No modification of this Order that adversely affects the protection of
any materials produced by a person shall be entered without first giving the person
appropriate notice and an opportunity to be heard.
16.

Binding Order: This Order shall bind all parties to this litigation and

any and all other persons to the fullest extent lawfully permissible.
17.

Dispute Resolution: A person need not challenge the propriety of the

designation of materials as Confidential or Attorneys Eyes Only at the time of
designation. In the event of a dispute concerning this Protective Order, including,
but not limited to, a dispute over the designation of materials as Confidential or
Attorneys Eyes Only, the attorneys for the parties shall first attempt in good faith to
negotiate a resolution. If the parties are unable to resolve the dispute, the producing
4821-1735-7373, v. 1

party shall have 14 days from the date the party opposing the designation confirms
in writing an impasse to file a motion pursuant to Fed. R. Civ. P. 26 to continue the
designation. Until the motion is resolved by the Court, the designated materials at
issue shall continue to have the protections afforded by this Order. If the producing
party fails to file a motion within 14 days, then the material that was the subject of
the dispute shall no longer be entitled to protection under this Order. In the event of
such a dispute, the party designating materials

as Confidential or Attorneys Eyes

Only bears the burden of justifying that designation.
18.

Survival of Litigation: This Order shall survive the termination of this

litigation, and shall remain in effect until modified, superseded, or terminated by
order of the Court or by agreement of the parties.
19.

Violations: Any person who violates this Order may be subject to

sanctions, including injunctive relief, contempt orders, monetary damages, or other
penalties to be determined by the Court.
20.

Filing Under Seal: This order does not authorize the filing of any

documents or other matter under seal. Documents or other matter may be sealed only
if authorized by statute, rule, or order of the Court. A party seeking to file such items
under seal shall file and serve a motion that sets forth (i) the authority for sealing;
(ii) an identification and description of each item proposed for sealing;
(iii) the reason that sealing each item is necessary; (iv) the reason that means other
than sealing are not available or unsatisfactory to preserve the interest advanced by
the movant in support of sealing; (v) a memorandum of legal authority supporting
4821-1735-7373, v. 1

sealing. See Local Rule 5.3. A party shall not file or otherwise tender to the Clerk
any item proposed for sealing unless the Court has granted the motion required by
this section.
IT IS SO ORDERED.
S/Robert H. Cleland
ROBERT H. CLELAND
UNITED STATES DISTRICT JUDGE

Dated: December 15, 2016

I hereby certify that a copy of the foregoing document was mailed to counsel of record
and/or pro se parties on this date, December 15, 2016, by electronic and/or ordinary mail.

S/Lisa Wagner
Case Manager and Deputy Clerk
(810-) 984-2056

Stipulated as to form:
Date: December 12, 2016

Date: December 12, 2016

VARNUM LLP
Attorneys for Plaintiffs

HICKEY HAUCK BISHOFF &
JEFFERS, PLLC
Attorneys for Defendant

By: /s/ William L. Thompson (w By: /s/Benjamin W. Jeffers
Benjamin W. Jeffers (P57161)
permission)
[e-mail]
William L. Thompson (P80123)
[e-mail]

4821-1735-7373, v. 1

EXHIBIT A
I,

, state that:

1.

My address is

.

2.

My present employer is

.

3.

My present occupation or job description is

4.

.

I have received a copy of the Protective Order Governing The Exchange

Of Information Deemed Confidential By The Parties (“Protective Order”) in the
matter entitled FIAMM Technologies, LLC, et al. v. Blue Cross Blue Shield of
Michigan.
5.

I have carefully read and understand the provisions of the Protective

Order. I will comply with all of the provisions, including holding in confidence and
not disclosing to anyone not qualified under the Protective Order, any Confidential
Document, or information contained in a Confidential Document.
6.

I hereby consent to be subject to personal jurisdiction of the United

States District Court for the Eastern District of Michigan in respect to any proceeding
relative to the enforcement of the Protective Order.

Signature
Date

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