RightCHOICE Managed Care, Inc. et al v. Hospital Partners, Inc. et al

Filing 659

ORDER denying 567 motion to modify the protective order. Signed on August 31, 2021 by District Judge Greg Kays. (Law clerk)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MISSOURI
ST. JOSEPH DIVISION
RIGHTCHOICE MANAGED CARE, INC.,
et al.,
Plaintiffs,
v.
HOSPITAL PARTNERS, INC., et al.,
Defendants.

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No. 5:18-cv-06037-DGK

ORDER DENYING MOTION TO MODIFY PROTECTIVE ORDER
This lawsuit arises out of an alleged fraudulent pass-through billing scheme for laboratory
tests billed from Putnam County Memorial Hospital (“Putnam”), a fifteen-bed hospital in rural
Missouri. Plaintiffs, a group of licensees or subsidiaries of independent licensees of Blue Cross
and Blue Shield Association, are suing a variety of Defendants who allegedly participated in, or
benefitted from, the alleged scheme, including the laboratories who conducted the testing. This
civil case is related to an ongoing criminal case in the Middle District of Florida, United States v.
David Lane Byrns, No. 3:19-CR-166-J-32JRK (M.D. Fla.).
Now before the Court is James F. Porter, Jr.’s (“Porter”) motion to modify the protective
order in this case (“the Civil Protective Order”). ECF No. 567. Movant Porter is a defendant in
the criminal case 1 who argues he needs a significant amount of the information Plaintiffs produced
to him in discovery in this case to defend himself in the criminal case. His motion does not state
what modification he wants to make to the Civil Protective Order, but he argues the information

Porter was initially a defendant in this case as well, but he settled with Plaintiffs, and the Court dismissed him from
this case on April 22, 2021. ECF No. 569.

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Plaintiffs produced in this case would still be protected by a protective order entered in the criminal
case.
When parties have agreed to a stipulated protective order, a party subsequently seeking
modification thereof must adduce “particular” good cause to gain relief. Blount v. Major, No. 4:15
CV 322 DDN, 2016 WL 2937333, at *1 (E.D. Mo. May 20, 2016).

That showing must

demonstrate that intervening circumstances have limited any potential prejudice to the protected
party. CFTC v. U.S. Bank, N.A., No C13-2041, 2015 WL 429962, at *2 (E.D. Iowa Feb. 2, 2015)
(citing Iowa Beef Processors, Inc. v. Bagley, 601 F.2d 949, 954 (8th Cir. 1979)).
Plaintiffs object to modifying the Civil Protective Order. They note Porter has not
identified—even by category—the documents that he purports are absolutely necessary for his
criminal defense. They observe the protective order in the criminal case applies only to material
the United States produces to Porter, not material produced by Plaintiffs, so if the Court granted
Porter’s motion, it would effectively obviate all protection for this material. They argue that he
appears to be seeking carte blanche to use any documents produced by them in this case.
Plaintiffs note Porter can request the materials he wants directly from them pursuant to a
subpoena issued via Federal Rule of Criminal Procedure 17(c). They also report that in June they
confirmed in writing to Porter’s attorney that they would produce the requested documents in
response to a Rule 17 subpoena once a modification of the protective order in the criminal case
was entered, and that they have already produced two of the three categories of requested
information to him.
Finally, Plaintiffs observe that when Porter agreed to the protective order in this case, he
had already invoked the Fifth Amendment as a basis to refuse to answer Plaintiffs’ questions at his

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deposition. Hence, he should not be permitted to characterize the criminal case as a subsequent,
intervening factor necessitating modification of the Civil Protective Order.
The Court holds Porter has not carried his burden of showing good cause to modify the
Civil Protective Order. Under the circumstances, Porter should seek the materials he wants to use
in the criminal case under Federal Rule of Criminal Procedure 17(c). This will allow Porter access
to the material without effectively eliminating all protection for it.
The motion is DENIED.
IT IS SO ORDERED.
Date: August 31, 2021

/s/ Greg Kays
GREG KAYS, JUDGE
UNITED STATES DISTRICT COURT

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