Wagner et al v. Summit Air Ambulance et al

Filing 84

STIPULATED PROTECTIVE ORDER. Signed by Judge Brian Morris on 6/12/2018. (Attachments: # 1 Exhibit A, # 2 Exhibit B) (NOS)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
BUTTE DIVISION
)
)
STAN and RAINY WAGNER, on
Behalf of Themselves and All Others )
)
Similarly Situated,
)
)
Plaintiffs,
)
) Cause No. CV-17-57-BU-BMM
vs.
)
)
SUMMIT AIR AMBULANCE,
)
LLC, REACH AIR MEDICAL
)
SERVICES, LLC, and DOES I-X,
)
) STIPULATED PROTECTIVE
Defendants.
)
ORDER
)
)
REACH AIR MEDICAL
)
SERVICES, LLC,
)
Counterclaim and Third-Party )
)
Claim-Plaintiff,
)
)
vs.
)
)
HEALTH CARE SERVICE
)
CORPORATION d/b/a BLUE
)
CROSS AND BLUE SHIELD OF
MONTANA and STAN and RAINY )
)
WAGNER,
)
)
Counterclaim and Third)
Party Claim-Defendants.

Come now Summit Air Ambulance, LLC and REACH Air Medical Services
LLC ("Defendants"), Stan and Rainy Wagner ("Plaintiffs"), and Third-Party
Defendant Health Care Service Corporation d/b/a Blue Cross and Blue Shield of
Montana (“BCBSMT”) (hereinafter, the "Parties"), by their respective counsel, and
advise the Court that they have agreed to be bound by the terms of a Protective
Order set forth herein below. The Parties have mutually agreed that a "qualified
protective order," as that term is defined by 45 C.F.R. § 164.512(e)(1)(v), is
required and mutually agree to remain in full compliance with any privacy
requirements imposed by regulations promulgated under the Health Insurance
Portability and Accountability Act of 1996 (45 C.F.R. Part 164).
The Health Insurance Portability and Accountability Act (“HIPPA”)
authorizes a plaintiff, however, to seek limited health care information with
appropriate redaction and a protective order. 42 U.S.C. § 1320d-2. A covered
entity may disclose protected health information in response to a court order,
provided that the entity discloses only the protected health information expressly
authorized by such order. 45 C.F.R. § 164.512(e)(1)(i).
The Court must craft a qualified protective order that prohibits the parties
from using or disclosing the protected health information for any purpose other
than the litigation or proceeding for which such information was requested; and
requires the return to the covered entity or destruction of the protected health

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information (including all copies made) at the end of the litigation or proceeding.
45 C.F.R. § 164.512(e)(1)(v)(A)-(B).
The Federal Regulations provide standards and procedures for the proper deidentification of protected health information. 45 C.F.R. § 164.514. Health
information that does not identify an individual and with respect to which no
reasonable basis exists to believe that the information can be used to identify an
individual is not individually identifiable health information. Id.
Under 45 C.F.R. § 164.514(b), a covered entity may determine that health
information is not individually identifiable health information only if: (1) a person
with appropriate knowledge documents the limited risk that the information could
be used to identify a person; or (2)(i) the following identifiers of the individual or
of relatives, employers, or household members of the individual are removed:
(A)

Names;

(B)

All geographic subdivisions smaller than a State, including street

address, city, county, precinct, zip code, and their equivalent geocodes, except for
the initial three digits of a zip code if, according to the current publicly available
data from the Bureau of the Census:
(1)

The geographic unit formed by combining all zip codes with

the same three initial digits contains more than 20,000 people; and

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(2)

The initial three digits of a zip code for all such geographic

units containing 20,000 or fewer people is changed to 000.
(C)

All elements of dates (except year) for dates directly related to an

individual, including birth date, admission date, discharge date, date of death; and
all ages over 89 and all elements of dates (including year) indicative of such age,
except that such ages and elements may be aggregated into a single category of age
90 or older;
(D)

Telephone numbers;

(E)

Fax numbers;

(F)

Electronic mail addresses;

(G)

Social security numbers;

(H)

Medical record numbers;

(I)

Health plan beneficiary numbers;

(J)

Account numbers;

(K)

Certificate/license numbers;

(L)

Vehicle identifiers and serial numbers, including license plate

numbers;
(M)

Device identifiers and serial numbers;

(N)

Web Universal Resource Locators (URLs);

(O)

Internet Protocol (IP) address numbers;

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(P)

Biometric identifiers, including finger and voice prints;

(Q)

Full face photographic images and any comparable images; and

(R)

Any other unique identifying number, characteristic, or code, except

as permitted by paragraph (c) of this section; and
(ii)

The covered entity does not have actual knowledge that the information

could be used along or in combination with other information to identify an
individual who is a subject of the information.
It appearing to the Court that its terms are reasonable and will protect the
respective interests of the Parties as well as the interests of any related third parties,
it is therefore ORDERED as follows:
1.

Scope of Protective Order. Any party may designate as "Confidential"

any document or other material it produces in the course of discovery or other
proceedings when that party in good faith believes that the document or other
material contains confidential information as defined in the Federal Rules of Civil
Procedure and 9th Circuit case law ("Confidential Material"). “Confidential
Material” means any Documents, Testimony, or Information as defined below
designated as “Confidential” or “Confidential-Attorney’s Eyes Only” pursuant to
the provisions of this Protective Order. Confidential Material shall be used only
for the purpose of the proceedings in the above-captioned action (the “Civil

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Action”) or any appeals thereof, and not for any other business, competitive,
personal, private, public, or other purpose.
2.

Challenges by a Party to Designation as Confidential. Any

Confidential designation is subject to challenge by any party by sending written
notice to the producing party. After sending written notice, the Parties shall have
an obligation to meet and confer in good faith within 14 days to resolve the
objection. The producing party must bring a motion to maintain the confidentiality
of documents as subject to this protective order within 45 days of the conclusion of
the meet and confer process, and the producing party shall have the burden of
establishing the confidentiality of such designations in the event of such a
challenge. If the Court determines that any designation is improper, such
document(s) will not be entitled to confidential status.
3.

Obligation of Parties.
(a)

Documents. The Parties agree under this Protective Order that
if any party in response to a request to produce documents
believes in good faith that any portion of a document to be
produced contains Confidential Material, the producing party
shall designate any such documents as confidential by typing or
stamping on its face “CONFIDENTIAL” or
“CONFIDENTIAL ATTORNEY EYES ONLY.” In the

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case of documents produced in electronic form, the producing
party may designate documents as confidential by prominently
typing or stamping “CONFIDENTIAL” or
“CONFIDENTIAL ATTORNEY EYES ONLY” on the
exterior of the storage medium on which the documents are
produced (e.g., CD-ROM, DVD, USB) and by causing each
page containing Protected Information to be stamped
“CONFIDENTIAL” or “CONFIDENTIAL ATTORNEY
EYES ONLY.” “CONFIDENTIAL” or “CONFIDENTIAL
ATTORNEY EYES ONLY” designation should be applied in
a manner so as not to obscure any information contained therein
or interfere with Optical Character Recognition.
(b)

Depositions. In the case of depositions, designation of a portion
of the transcript (including exhibits) shall be made orally at the
deposition or by giving written notice of such designation,
within 30 days after the designating party receives a read and
sign version of the transcript. If the designation is made during
the deposition, the court reporter recording such deposition
shall bind the transcript into separate portions containing the
Confidential Material and the non-Confidential Material, and

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the reporter shall place the appropriate legend on the cover of
the Confidential portions of the transcript.
4.

Use of Confidential Materials. Qualified Persons, as defined in

Paragraphs 5 and 6, may use any designated Confidential Material and/or materials
fully and without restriction in the ordinary course of the prosecution or defenses
of this litigation in accordance with the terms of this Stipulated Protective Order.
5.

Persons Who May Access Confidential Material designated as

“CONFIDENTIAL” (“Qualified Persons”).
(a)

Except as provided in Paragraphs 9 and 10, absent written
consent from the Parties, or unless otherwise directed by the
Court, Confidential Material designated as
“CONFIDENTIAL” may be disclosed only to the following
persons:
(i)

The Court and its officers, and any court reporters
employed in this Civil Action;

(ii)

The Parties and their counsel;

(iii)

The employees, third-party administrators, officers or
directors of the Parties and their counsel to the extent
necessary in the litigation;

(iv)

In-house counsel;

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(v)

Outside photocopying, graphic production services or
litigation support services employed by the Parties’
counsel to assist in the litigation, and computer service
personnel performing duties in relation to a computerized
litigation system; and

(vi)

Outside counsel of record in this Civil Action and any
legal assistants or other employees of counsel working
with them in this Civil Action.

(vii) Independent experts and consultants retained by a party
whose assistance is deemed necessary by such party’s
counsel for the prosecution or defense of this Civil
Action, and employees of such experts and consultants
necessary to assist such persons in performing their
duties.
6.

Persons Who May Access Confidential Material designated as

“CONFIDENTIAL ATTORNEYS EYES ONLY ” (“Qualified Persons”).
(a)

Except as provided in Paragraphs 9 and 10, absent written
consent from the Parties, or unless otherwise directed by the
Court, Confidential Material designated as “CONFIDENTIAL

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ATTORNEYS EYES ONLY” may be disclosed only to the
following persons:
(i)

The Court and its officers, and any court reporters
employed in this Civil Action;

(ii)

Attorneys of record in this Civil Action and their
affiliated attorneys, paralegals, clerical and secretarial
staff employed by such attorneys who are actively
involved in the Civil Action and are not employees of
any Party.

(iii)

In-house counsel to the undersigned Parties and the
paralegal, clerical and secretarial staff employed by such
counsel. Provided, however, that each non-lawyer given
access to CONFIDENTIAL ATTORNEYS EYES
ONLY material shall be advised that such Materials are
being Disclosed pursuant to, and are subject to, the terms
of this Stipulation and Protective Order and that they may
not be Disclosed other than pursuant to its terms;

(iv)

Outside photocopying, graphic production services or
litigation support services employed by the Parties’
counsel to assist in the litigation, and computer service

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personnel performing duties in relation to a computerized
litigation system;
(v)

Independent experts and consultants retained by a party
whose assistance is deemed necessary by such party’s
counsel for the prosecution or defense of this Civil
Action, and employees of such experts and consultants
necessary to assist such persons in performing their
duties; and

(vi)

named plaintiffs, excluding any Third-Party Claim or
Counterclaim plaintiffs.

7.

Disclosure of Documents or Materials Containing Confidential

Material. If counsel for a party wishes to disclose any documents or materials
provided pursuant to a discovery request that contains Confidential Material to any
person subject to Paragraphs 5(a)(v), 5(a)(vii), 6(a)(iv), or 6(a)(v) (e.g., experts or
consultants), the person making the disclosure shall do the following:
(a)

Provide a copy of this Protective Order to the person to whom
disclosure is made;

(b)

Inform the person to whom disclosure is made that he/she is
bound by this Protective Order;

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(c)

Require the person to whom disclosure is made to sign an
acknowledgment and receipt of this Protective Order in the
form attached as Exhibit A;

(d)

If the person to whom disclosure is made is a consulting or
testifying expert and is employed by a competitor of any party
in the case (not just the producing party), require the employer
to sign an acknowledgement and receipt of this Protective
Order in the form attached as Exhibit B.

(e)

Instruct the person to whom disclosure is made to return any
document or other material containing Confidential Material, at
the conclusion of this Civil Action, or any appeals thereof,
including any notes or memoranda containing Confidential
Material;

(f)

Maintain a list of persons to whom disclosure was made and a
copy of the signed forms attached as Exhibits A and B;

(g)

At the conclusion of this Civil Action, gather the documents or
other material containing Confidential Material, copies thereof,
and related notes and memoranda, and return them to the
attorney who originally disclosed them, with a certificate of
compliance with the terms of this Protective Order.

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8.

Modification of Protective Order. Except as provided in Paragraph 14,

this Protective Order can only be modified by the Court. If a party seeks to modify
this Protective Order, the party seeking modification shall provide reasonable
notice to the other Parties in this Civil Action that the party seeks to modify the
Protective Order.
(i)

Nothing in this Protective Order shall prevent any
disclosure if the party designating the information as
confidential consents to such disclosure in writing; and

(ii)

Failure by a party to challenge the confidentiality of any
document or information at the time of receipt thereof
shall not preclude a subsequent challenge thereto.

9.

Disclosure of Confidential Material in Court Filings. In the event a

party wishes to disclose any Confidential Material in any court filing, or any
documents containing Confidential Material attached thereto, such pleading or
court filing shall be filed pursuant to the Local Rules.
10.

Disclosure of Confidential Material at Hearings or Trial. If any party

intends to disclose Confidential Material as an exhibit or as evidence during a
hearing, at trial, or during any appeal, the party must provide reasonable notice to
the other Parties in this Civil Action. The Parties shall make reasonable efforts to
contact the individual whose Confidential Material is at issue. Thereafter, the

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Parties shall attempt to resolve the issue of continued confidentiality of the
Confidential Material. If they are unable to resolve the dispute, the Parties may
present the issue to the Court for resolution. The proponent of continued
confidentiality will have the burden of persuasion that the document or material
should be withheld from the public record.
11.

Redacted Documents. This Protective Order limits only the disclosure

of Confidential Material and does not control, or in any way limit, the use or
disclosure of documents from which Confidential Material has been redacted or
documents that do not contain Confidential Material.
12.

Inadvertent Production. The production or disclosure of an attorney-

client privileged, attorney work product, or other protected document or
information medium (“Protected Material”) shall not be deemed a waiver of the
privilege, work product, or other protection or immunity from discovery by the
producing party in this or any subsequent state or federal proceeding pursuant to
Federal Rule of Evidence 502 regardless of the circumstances of disclosure. If any
party becomes aware of the production or disclosure of Protected Material by any
other party, that party shall provide prompt written notice of such production or
disclosure. Upon providing or receiving notice of such inadvertent production, a
party in possession of inadvertently disclosed material shall handle it in a manner
consistent with Federal Rule of Civil Procedure 26.

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13.

Obligations on Conclusion of Litigation.
(a)

Order Remains in Effect. Unless otherwise agreed or ordered,
this Order shall remain in force after dismissal or entry of final
judgment not subject to further appeal.

(b)

Return of Confidential Material. Within 90 days after
termination of this action, counsel shall (i) destroy all copies of
Confidential Material and shall provide written certification of
such destruction to the producing party, or (ii) return all such
documents or material to counsel for the producing party.

14.

Persons Bound. This Protective Order may be amended to add as

Parties to this Protective Order additional defendants that appear in the case
provided that (a) their counsel executes and files a copy of this Agreement with the
Court, and (b) no existing Party to the Agreement objects within five (5) business
days of that filing. If this Protective Order is amended to add such additional
defendants, those such additional defendants shall be treated as “Parties” for
purposes of this Protective Order. This Protective Order shall take effect when
entered and shall be binding upon all counsel and their law firms, the Parties, and
persons made subject to this Protective Order by its terms.

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DATED this 12th day of June, 2018.

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AGREED:

/s/ Matt J. Kelly
Matt J. Kelly
Margaret C. Weamer
TARLOW STONECIPHER
WEAMER & KELLY, PLLC
1705 West College Street
Bozeman, MT 59715-4913
Telephone: [phone]
[e-mail]
[e-mail]

/s/ William J. Mattix
William J. Mattix
Crowley Fleck PLLP
490 N. 31st
Billings, MT 59101
Telephone: [phone]
Facsimile: +1.406.256.8526
[e-mail]
Joshua L. Fuchs
Texas State Bar No. 24029559
Nicole M. Perry
Texas State Bar No. 24056367
JONES DAY
717 Texas Street
Suite 3300
Houston, TX 77002-2712
Telephone: [phone]
Facsimile: +1.832.293.3600
[e-mail]
[e-mail]

Travis W. Kinzler
COK KINZLER PLLP
35 N. Bozeman Avenue
P.O. Box 1105
Bozeman, MT 59771-1105
Telephone: [phone]
[e-mail]
Daniel P. Buckley
BUCKLEY LAW OFFICE, P.C.
125 W. Mendenhall, Suite 201
Bozeman, MT 59715
Telephone: [phone]
[e-mail]

Charlotte H. Taylor
JONES DAY
51 Louisiana Ave. NW
Washington, DC 20001-2113
Telephone: [phone]
Facsimile: [phone]
[e-mail]

ATTORNEYS FOR PLAINTIFFS
STAN AND RAINY WAGNER

ATTORNEYS FOR DEFENDANTS
SUMMIT AIR AMBULANCE, LLC
AND REACH AIR MEDICAL
SERVICES, LLC

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/s/ Kimerly A. Beatty _________
Kimberly A. Beatty
BROWNING, KALECZYC, BERRY
& HOVEN, P.C.
800 North Last Chance Gulch
Ste. 101
PO Box 1697
Helena, MT 59824
[phone]
[phone] - Facsimile
[e-mail]
Amir Shlesinger
REED SMITH LLP
355 South Grand Avenue, Suite 2900
Los Angeles, CA 90071
[phone]
[phone] – Facsimile
[e-mail]
Martin J. Bishop
Brian Hendricks
REED SMITH LLP
10 South Wacker Drive, 40th Floor
Chicago, IL 60606
[phone]
[phone] – Facsimile
[e-mail]
[e-mail]
ATTORNEYS FOR HEALTH CARE
SERVICE CORPORATION d/b/a
BLUE CROSS AND BLUE SHIELD
OF MONTANA

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