ABC v. DEF

Filing 78

ORDER: IT IS THEREFORE ORDERED THAT: 1. The Court finds that the interests of justice significantly outweigh the need for confidentiality with respect to the patient-identifying information that OPWDD will be producing in response to the Relator's subpoena. 2. OPWDD is ordered to produce its response to Relator's subpoena without redactions, with the documents labeled as "CONDFIDENTIAL" pursuant to the Court's Protective Order filed on April 6, 20 22, and subject to the protections set forth in that order, a copy of which is attached to this order. 3. The parties are directed to comply scrupulously with the Court's Protective Order for all purposes in litigation of Relator' ;s case, including, but not limited to, with respect to any patient-identifying information that is produced in response to Relator's subpoena to OPWDD. 4. With respect to any filing in this case in which information including patient-identifying information is included, the parties can seek the Court's approval to seal the portion of the filing that contains the patient-identifying information. (Signed by Magistrate Judge Andrew E. Krause on 8/3/2022) (tg)

Case 7:18-cv-08892-KMK-AEK Document 78 Filed 08/03/22 Page 1 of 9

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
-----------------------------------------------------------------------X
UNITED STATES OF AMERICA, ex rel. STEPHANIE :
MUNFORD,
Plaintiff,

:

- against MARANATHA HUMAN SERVICES, INC., and
HENRY ALFONSO COLEY,

:

:

18 Civ. 8892 (KMK) (AEK)
ORDER

:

Defendants.

:

------------------------------------------------------------------------X
THE HONORABLE ANDREW E. KRAUSE, U.S.M.J.:
WHEREAS, on July 6, 2022, Relator Stephanie Munford served notice of a subpoena to the New
York State Office for People With Developmental Disabilities ("OPWDD") on the parties to the litigation;
and
WHEREAS, on July 6, 2022, OPWDD accepted service of the subpoena; and
WHEREAS, a copy of the subpoena was filed on July 8, 2022, as an attachment to Relator's letter
to the Court that was filed on that date; and
WHEREAS, an additional copy of the subpoena was served by Relator on all parties by mail on
July 18, 2022; and
WHEREAS, OPWDD has indicated that there are emails responsive to the subpoena from
OPWDD to Maranatha Human Services, Inc. ("Maranatha") that attach packets of information regarding
particular individuals (1) who were referred for potential placement with respect to facilities and
programs for which Maranatha provided services, and (2) who were discussed in responses from
Maranatha to OPWDD regarding Maranatha's consideration of the individuals referred by OPWDD for
potential placement; and
WHEREAS, Maranatha alleges that Relator was terminated for alleged failure to fill vacant beds
at Maranatha, among other reasons; and

Case 7:18-cv-08892-KMK-AEK Document 78 Filed 08/03/22 Page 2 of 9

WHEREAS, Relator alleges that the purported ground for her termination based on vacancies is
pretextual; and
WHEREAS, the purported vacancy ground for termination is therefore a heavily contested issue
in the litigation regarding Relator's retaliation case; and
WHEREAS, if the patient-identifying information is redacted from the emails produced by
OPWDD it will not be possible to match up the referrals sent by OPWDD for particular vacancies at
Maranatha with the response(s) back from Maranatha with Maranatha's findings about the
appropriateness of the referred individual for placement in the particular vacancy, which is highly relevant
to the vacancy issue; and
WHEREAS, therefore for purposes of obtaining relevant information from OPWDD in response
to Relator's subpoena on this major issue in controversy in this litigation it is necessary for OPWDD to
produce the emails and attachments to the emails in unredacted form; and
WHEREAS, OPWDD has indicated that in order to produce these emails and attachments
without redaction of patient-identifying information, OPWDD would need an order from the Court
pursuant to New York State Mental Hygiene Law ("NYS MHL") Section 33.13(c)(1) stating that "the
interests of justice significantly outweigh the need for confidentiality"; and
WHEREAS, on April 6, 2022, the Court entered a Confidentiality Stipulation and Protective
Order ("Protective Order") in Relator's case that provides extensive protections for confidential
information in this case, including "information protected by the Health Insurance Portability and
Accountability Act of 1996 ("HIPAA"), as amended by the Health Information Technology for Economic
and Clinical Health Act ("HITECH Act"), including all applicable regulations and guidance issued by the
Secretary of the United States Department of Health and Human Services (collectively "HIPAA rules"),
including, specifically, 42 C.F.R. Part 2 and 45 C.F.R. 164.512(e)(1)(ii)(B), 164.512(e)(1)(v), as well as
all state laws and regulations regarding the privacy and security of personal information (collectively with
the HIPAA Rules, "Privacy and Security Rules")"; and
WHEREAS, the Protective Order provides that "[t]his Protective Order constitutes a Qualified
Protective Order, as that term is defined in the Privacy and Security Rules;" and

!2

Case 7:18-cv-08892-KMK-AEK Document 78 Filed 08/03/22 Page 3 of 9

WHEREAS, the Protective Order provides, among other things, that patient-identifying
information will be designated "CONFIDENTIAL INFORMATION"; and
WHEREAS, the Protective Order provides that such information "will be held and used by the
person receiving such information solely for use in connection with the action;" and
WHEREAS, the Protective Order provides that documents designated as "CONFIDENTIAL"
cannot be disclosed to any person except the Court and Court personnel, attorneys representing parties in
the proceedings and staff for the attorneys, consultants, experts, deponents, stenographers before whom a
deposition is taken, the parties or their employees (for purposes of the litigation) and "[w]itnesses or
potential witnesses contacted by counsel in good faith, but only for the purpose of obtaining evidence or
testimony for any deposition, hearing, trial or other proceeding in this litigation"; and
WHEREAS, the Protective Order provides that "[a]ny Personally Identifying Information
("PHI"), . . . shall be maintained by the receiving party in a manner that is secure"; and
WHEREAS, if OPWDD has to redact the patient-identifying information, OPWDD will likely
have to pay a vendor to perform that task, which will be costly and time-consuming for the agency; and
WHEREAS, OPWDD does not oppose this order;
IT IS THEREFORE ORDERED THAT:
1.

The Court finds that the interests of justice significantly outweigh the need for

confidentiality with respect to the patient-identifying information that OPWDD will be producing in
response to the Relator's subpoena.
2.

OPWDD is ordered to produce its response to Relator's subpoena without redactions,

with the documents labeled as "CONDFIDENTIAL" pursuant to the Court's Protective Order filed on
April 6, 2022, and subject to the protections set forth in that order, a copy of which is attached to this
order.
3.

The parties are directed to comply scrupulously with the Court's Protective Order for all

purposes in litigation of Relator's case, including, but not limited to, with respect to any patientidentifying information that is produced in response to Relator's subpoena to OPWDD.

!3

Case 7:18-cv-08892-KMK-AEK Document 78 Filed 08/03/22 Page 4 of 9

4.

With respect to any filing in this case in which information including patient-identifying

information is included, the parties can seek the Court's approval to seal the portion of the filing that
contains the patient-identifying information.
Dated: August 3, 2022
________________________________
UNITED STATES MAGISTRATE JUDGE
ANDREW E. KRAUSE

!4

Case 7:18-cv-08892-KMK-AEK Document 78 Filed 08/03/22 Page 5 of 9

--\JN¼TEDSTATES-DfSfRl(;f-OOUR:1'-SOUTHERN DISTRICT OF NEW YORK.

--

-------

-----------------X
UNITED STATES OF AMERICA. u rel STEPHANIE
MUNFORD,.
Plaintiff,

.MARANATIIA HUMAN SERVICES,. INC-. and
HENRY ALFONSO COLEY,.

•

_ . . . . ......... ,.........--•-·---------X
CONflDENTIAUTY STIPUL.4.TION AND PROPOSED PROTECTIVE ORDER
\\11:IEREAS,. Re!ator and Defendant M ~ Human Senices,. Inc. ('"'Mm:amuba") (the
~ g n e d parties; having agreed to the following renns of a.mfidenmility with respect to

ORDERED that the following restrictions and procedures shall apply to the infmmatkm
and docmnmts exchanged by the undersigned parties in connedion 11,1;ith the pre-mm phase of

I.

Counsel for the undersigned parties may designme my document or i n f ~

in ~ide or in part, a s ~ if counsel determ~ in good faith. that such designation is
to protect the interests of the client in mfommtioo that is proprietary.. a trade secret, or
otherwise sensitive non-public information f'"Con{idential lnfonnation"). Information and
documents designmed by an undersigned party as confidential will be stamped

Case 7:18-cv-08892-KMK-AEK Document 78 Filed 08/03/22 Page 6 of 9

limitations below~ of information protected by the Health

Pmmbilliy and

~ t y Act of 1996 ("HlPA..\i. as amended by the Health lnfo.mmtioo Technology for
&ooomic and Clinical Health Act ("HTfECH Act'). incl~ all applicable regu!miom and
guidance~ by the Sea-dmy of the United Smtes Departmmt oflieahh and Humm~

(collectivdy "HIPAA Ruld'1 mdudin& specifically,, 42 C.F.R. Part 2 and 45 C.F.R.
§§l64.512(e)(l)fti)(B). 164.512(eX1)(v). as well as all mm b:ws and regulations~ the
priwcy and Ralrity of personal mfot:mation (collecti\'-cly with the HIPAA R ~ "Priwcy and
Security Rub~). This Protective O r d e r ~ a Qualified Protective Order,. as that term is

defined in the 'Priv-acy and Security Rules.
2.

The Confidential Infm:mation disclosed will be held and used by the person

J.

in the event either of t h e ~ parties challenges the othet- ~gned

party~s designation of confidentiality.~ for the undersigned parties shall make a good faith
etlbrt to .resolve the dispute. and in t h e ~ of a resol~ the challenging party may seek

resohrtion by the Court. Nothing in this Protecti~·e Order constitutes an admission by either of
the undesigned parties nm Confide:mim Inf01lllation disclosed in this case is relevant or
admissible. Each undemgned party reserves the right to object to the ~or admisslmlityofthe

Conf~ lnformadon.

(a)

The Court and· Court personnd;

(h)

Attorneys representing any party to this proceeding, employees of such
attorneys or law firms with which such attome),-sareassoci.rted;. and other
professional and non-professional persormel providing offiee seniees to

Case 7:18-cv-08892-KMK-AEK Document 78 Filed 08/03/22 Page 7 of 9

--- -------~su-dl att0t:1~ llr-m.wihm:S (inclmfmg bun:mt nmtred ffi offiec
staff and Otitside copying~) but only for purposes oftms Jiti~;
(e)

Consui~ adv~ apem and tbci:r' employ=s retained o.r a:multed
by any party or counsel, but only for purposes of this litigation;

(e)

An officer before whom a depositio.n is
including steoogmphic
reporte:rs. v i d ~ and a n y ~ ~ deriall, or other
personnel of such officer;

(t)

The paTtie$ o.r any offieers, directors, o.r employees t:be:m)f, but only for
ofthis litigation; and

(g)

WitnesS!eS or potential "'imesses
by counsel in good faith, bm
only for the purpose o f ~ evidena:o.rtestimony for any depositioD;,
hearing. trim or other proceeding in this litigation.

The undersigned pmties shoold meet and comer if any production requires a designation of"'For

Attmneys• o.r Experts" Eyes Only.~

5.

Prior to disclosing« disphtying the Confidential lnfmmmion to a n y ~

coonsel for the undersigned nmst:

c.

Require each such person to sign an agreemmt to be bound by this Order in the

form attached as Exhibit A.

""CONFIDENTIAL''• shall not constitute a waiver of the right to designate such doownent m
information as Confidential l.n.funnatlon. lfro-d~ t h e ~

or information shall

Case 7:18-cv-08892-KMK-AEK Document 78 Filed 08/03/22 Page 8 of 9

thereafter bt~Confidential mfotmatimnubjecti.trall the tams: of dm Sdpu1mioo and
Onkr.
7.

Any Pem:mally Idemifying lnf~on f'Pllj (e.g., soda) secmity mm~

t'immcial account m.tm~

a m t ~ that may be med for identity theft)

~ i n ~ sbaJJ be rmuntained by the ~:ring party in a mmmer that is secure.
8.

Pmswmt to federa,1 Rule of Evidence 5021' the produdion of privileged or v,l.Xk

product privileged~ or «m:mnmicati~ dectronicaUy stored imbmmlion

or

other infonnatioo,, \vhether inadvert= or otbawise. shall not constitute a v,lliver of the privilege
or protection ftom discavery in this case or in any other fedeml or s t . a t e ~ This Omer
shall b e ~ to ~idetbe maximum protection allowed by Fedeml Rule of Evidence
S02(d). Nothing conmmed herein is intended to or slmJl serve to limit a party"s right to conduct a

review ofd ~ ESI or information (mcmding metadata) for r e l ~ responsiveness

and/or segreption ofprivileged and/or~ infonmmon before production.
9.

Notwithstanding the designation of information as ~NFIDENTIAL" in

discovery, there is oo pesumption that such informa:rum shall be filed v,ith the Court under seal

The undersigned pa.mes shall follow the Comt*s procedures for requests for filing under SC31.
10.

At the conclusion of litigation, Confidential Information and any copies thereof

shall be promptly (and in oo event later tmm 30 days after entry of fiml judgment no kmger

subject to further appeal) rem:med to the producing party or certilied as destroyed. except that tbe

undersigned pa.mes• counsel shall be permitted to retain their working file on the condition that
those f'tles will remain protected.

11.·

Nothing herein smill precrudc the undersigned parties from disclosing material -

dcslgrmcd to be Confidential Infmmation i f ~ required by bw or pursuant to a valid

Case 7:18-cv-08892-KMK-AEK Document 78 Filed 08/03/22 Page 9 of 9

- ~ n Moreover. notmng herdn matt ~ooe eimer pmty from 1ntrodnclng andlorrajmg
upon d ~ identified as Coor~ mthe proseeution m defense of dm maua-. including

SO STIPULATED AND AGREED.
Dated: _ _ _ _ _ 2022
\Vhite PJams. New York

SOORDERED:

4/6/22