Leventis v. Safeco Insurance Company of America

Filing 130

CONFIDENTIALITY ORDER. Signed by Honorable Joseph F Anderson, Jr on 09/10/2010. (bshr, )

L e v e n t i s v. Safeco Insurance Company of America

D o c . 130

UNITED STATES DISTRICT COURT D IS T R IC T OF SOUTH CAROLINA C O L U M B IA DIVISION L E I G H J. LEVENTIS and CHRISTOPHER L E V E N T IS ) ) ) P l a in tif f , ) ) vs. ) ) FIRST NATIONAL INSURANCE COMPANY) O F AMERICA, ) ) D e f e n d a n t/C o u n ter c laim a n t, ) ) vs. ) ) C H R IS T O P H E R LEVENTIS, CAROLINA ) C A R E PLAN, INC., MEDICAL MUTUAL ) O F OHIO, PITTS RADIOLOGY ) A S S O C IA T E S , P.A. , RICHLAND ) C O U N T Y EMS and PALMETTO HEALTH ) E M E R G E N C Y PHYSICIANS, ) ) C o u n t e rc la im Defendants. ) _______________________________________) F IR S T NATIONAL INSURANCE ) C O M P A N Y OF AMERICA, ) ) T h ird -P a rty Plaintiff, ) ) vs. ) ) L E IG H J. LEVENTIS and PALMETTO ) H E A L T H RICHLAND, ) ) T h i rd - P a r ty Defendants. ) _______________________________________) C .A . NO.: 3:09-1561-JFA

C O N F ID E N T I A L I T Y ORDER

W h e re as the parties to this action ("parties"), have stipulated that certain discovery

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m aterial is and should be treated as confidential, and have requested that the court enter a c o n f id e n tia lity order; and whereas the parties recognize that during the course of discovery, e a c h party may seek documents and information concerning patient privacy, patient health in f o r m a tio n , personally identifiable financial information, confidential healthcare services, p o lic yh o ld e r information, and other private and confidential information about the parties a n d non-parties that would be subject to protection from public disclosure under the Health In s u ra n c e Portability and Accountability Act of 1996 ("HIPAA"), and if disclosed and made a v a il a b le to the public in the absence of a protective order, such disclosure would violate p a tie n t privacy rights under federal and state law; and whereas, in order that the parties may o b tain information in this case relevant to the claim or defense of any party, it is necessary to make such documents and information available to counsel of record and others while p ro te c tin g both the parties and non-parties against unnecessary disclosure of private and c o n f i d e n t ia l information under HIPAA; and whereas the parties wish to prevent the u n n e c es s a ry and/or unlawful disclosure of such information, while insuring that they can o b tain and pursue discovery with a minimum of delay and expense; and whereas the court h a s determined that the terms set forth herein are appropriate to protect the respective in te re sts of the parties, the public, and the court; accordingly, it is this the 10th day of S e p te m b e r, 2010, ORDERED: 1. S c o p e . All documents produced in the course of discovery, all responses to

d is c o v e ry requests and all deposition testimony and deposition exhibits and any other

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m a te ria ls which may be subject to discovery (hereinafter collectively "documents") shall be s u b je c t to this Order concerning confidential information as set forth below. 2. Q u a lif ie d Protective Order. The parties are entitled to a "qualified protective The "good cause" for keeping these

o r d e r " under 45 C.F.R. § 164.512(e)(1)(iv)-(v).

d o c u m e n ts and information confidential includes the need to comply with federal law, to p re se rv e the rights of non-party patients and insureds, and the need to protect the parties from u n d u e litigation related to the disclosure of such private and protected information. 3. F o r m and Timing of Designation. Confidential documents shall be so

d e sig n a te d by placing or affixing the word "CONFIDENTIAL" on the document in a manner w h ich will not interfere with the legibility of the document and which will permit complete re m o v a l of the confidential designation. Documents shall be designated confidential prior to , or contemporaneously with, the production or disclosure of the documents. Inadvertent o r unintentional production of documents without prior designation as confidential shall not b e deemed a waiver, in whole or in part, of the right to designate documents as confidential as otherwise allowed by this Order. 4. D o c u m e n ts Which May be Designated Confidential. Any party may designate

d o c u m e n t s as confidential but only after review of the documents by an attorney who has, in good faith, determined that the documents contain information protected from disclosure b y statute, sensitive personal information, trade secrets, or confidential research, d e v e lo p m e n t, or commercial information. The certification shall be made concurrently with

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th e disclosure of the documents, using the form attached hereto as Attachment A which shall b e executed subject to the standards of Rule 11 of the Federal Rules of Civil Procedure. In f o rm a tio n or documents which are available in the public sector may not be designated as c o n f id e n ti a l. Furthermore, notwithstanding any other provision of this paragraph or

p a ra g ra p h 3 above, the Parties agree that documents containing confidential information that w o u ld be subject to protection from public disclosure under HIPAA-including patient health in f o rm a tio n or information related to confidential healthcare services-shall be treated as c o n f id e n tial regardless of whether the document contains any confidentiality markings. This p a ra g ra p h also applies to discovery responses or deposition transcripts as set forth in P a ra g ra p h 6. 5. D o c u m e n t s which may be Protected by Privilege. This matter involves a

d is p u te between insurers of a mutual insured. There are certain documents which may be relev an t to the dispute in this action, but are otherwise privileged by way of attorney work p ro d u c t, attorney client communications, or matters which were contemplated in anticipation o f litigation in the underlying suit which formed the basis of this dispute. It is agreed and O rd e re d that the production of any such material will not be deemed a waiver of any p riv ile g e that may exist; and that the production of any such material that is marked as c o n f id e n tia l shall be treated as such; and the production of such material shall not be used a s evidence of waiver of any privilege by any third party or party to this agreement.

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6.

D e p o s i tio n s and Discovery Responses.

All discovery responses and

d e p o sitio n s (or portions of depositions) that would be subject to protection under this Order m a y be designated confidential and thereby obtain the protections accorded other confidential d o cu m en ts. Confidentiality designations for depositions shall be made either on the record o r by written notice to the other party within seven days of receipt of the transcript. Such d e sig n a tio n shall be specific as to the portions to be protected. Unless otherwise agreed, that p o rtio n of the deposition that contains information that would be subject to protection from p u b lic disclosure under HIPAA shall be treated as confidential during the seven-day period f o llo w in g receipt of the transcript. The deposition of any witness (or any portion of such d e p o sitio n ) that encompasses confidential information shall be taken only in the presence of p e rs o n s who are qualified to have access to such information. 7. a. P ro te c tio n of Confidential Material.

G e n e ra l Protections. Documents designated confidential under this Order shall not

b e used or disclosed by the parties or counsel for the parties or any other persons identified b e lo w (paragraph 6(b)) for any purposes whatsoever other than preparing for and litigating th is action. Confidential documents and the information contained therein shall be used for n o other purpose except the customary business purposes of the party producing such m a te ria ls , and shall not, without leave of this Court, be disclosed to any person or entity other th a n as provided in paragraph 6(b) below. No person receiving such documents shall, d ire c tly or indirectly, transfer, disclose, or communicate in any way the contents of the

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d o cu m en ts to any person other than those specified in paragraph 6(b). b. L im ite d Third Party Disclosures. The parties and counsel for the parties shall not

d is c lo s e or permit the disclosure of any documents designated confidential under the terms o f this Order to any other person or entity except as set forth in subparagraphs (1)-(6) below, a n d then only after the person to whom disclosure is to be made has executed an a c k n o w le d g m e n t (in the form set forth at Attachment B hereto), that he or she has read and u n d e rs ta n d s the terms of this Order and is bound by it. Subject to these requirements, the f o llo w in g categories of persons may be allowed to review documents which have been d esig n ated CONFIDENTIAL pursuant to this Order: (1 ) c o u n se l and employees of counsel for the parties who have responsibility for the

p re p a ra tio n and trial of the lawsuit; (2) p a rties and employees of a party to this Order but only to the extent counsel shall

c e rtify that the specifically named individual party or employee's assistance is necessary to th e conduct of the litigation in which the information is disclosed, provided, however, that c o n f id e n tia l information protected under HIPAA may be disclosed to a party or an employee o f a party pursuant to this subparagraph only if such party was the health care provider for th e patient(s) whose health information appears in the document and only after the redaction o f any and all of the following identifying information: (i) the name of any patient(s), (ii) any p h ys ic a l address of any patient(s), (iii) any telephone number of any patient(s), (iv) any S o c ia l Security Number of any patient(s), (iv) any date of birth of any patient(s), and (v) any

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o th e r personally identifiable health or financial information that would be subject to p ro te c tio n from public disclosure under HIPAA and that could be used to identify an in d iv id u a l who is the subject of the information; (3 ) c o u rt reporters engaged for depositions and those persons, if any, specifically engaged

f o r the limited purpose of making photocopies of documents; (4) c o n s u lta n t s, investigators, or experts (hereinafter referred to collectively as "experts")

e m p lo ye d by the parties or counsel for the parties to assist in the preparation and trial of the law su it; (5 ) o th e r persons only upon consent of the producing party or upon order of the court and

o n such conditions as are agreed to or ordered; and, (6 ) s o le ly with respect to confidential information protected under HIPAA, (i) h e a lth care professionals, to the extent he or she is the health care provider for

th e patient(s) whose health information appears in the document; (ii) and (iii) in f o r m a tio n . c. C o n tro l of Documents. Counsel for the parties shall take reasonable efforts to a n y party, to the extent it produced the document containing the health a n y patient, to the extent his or her health information appears in the document;

p r e v e n t unauthorized disclosure of documents designated as confidential pursuant to the te rm s of this Order. Counsel shall maintain a record of those persons, including employees

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o f counsel, who have reviewed or been given access to the documents along with the o rig in a ls of the forms signed by those persons acknowledging their obligations under this O rde r. d. C o p ie s. All copies, duplicates, extracts, summaries or descriptions (hereinafter

re f erre d to collectively as "copies"), of documents designated as confidential under this Order o r any portion of such a document, shall be immediately affixed with the designation "C O N F ID E N T IA L " if the word does not already appear on the copy. All such copies shall b e afforded the full protection of this Order. 8. F ilin g of Confidential Materials. In the event a party seeks to file any material

th a t is subject to protection under this Order with the court, that party shall take appropriate a c t io n to insure that the documents receive proper protection from public disclosure in c lu d in g : (1) filing a redacted document with the consent of the party who designated the d o cu m ent as confidential; (2) where appropriate (e.g., in relation to discovery and evidentiary m o tio n s ), submitting the documents solely for in camera review; or (3) where the preceding m e a su re s are not adequate, seeking permission to file the document under seal pursuant to the procedural steps set forth in Local Civil Rule 5.03, DSC, or such other rule or procedure a s may apply in the relevant jurisdiction. Absent extraordinary circumstances making prior c o n su lta tio n impractical or inappropriate, the party seeking to submit the document to the c o u rt shall first consult with counsel for the party who designated the document as c o n f id e n tia l to determine if some measure less restrictive than filing the document under seal

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m a y serve to provide adequate protection. This duty exists irrespective of the duty to consult o n the underlying motion. Nothing in this Order shall be construed as a prior directive to the C le rk of Court to allow any document be filed under seal. The parties understand that d o c u m e n ts may be filed under seal only with the permission of the court after proper motion p u rs u a n t to Local Civil Rule 5.03. Furthermore, any Party who wishes to file with the Court a document containing c o n f id e n tia l information protected under HIPAA must redact any and all of the following id e n tif yin g information: (a) (b) (c ) (d) (e) (f ) th e name of any patient(s); an y physical address of any patient(s); any telephone number of any patient(s); a n y Social Security Number of any patient(s); a n y date of birth of any patient(s); and a n y other personally identifiable health or financial information that w o u ld be subject to protection from public disclosure under HIPAA a n d that could be used to identify an individual who is the subject of the in f o r m a tio n . P r io r to disclosure at trial or at a hearing where such confidential materials or information are at issue, the Parties may seek further protections against public disclosure from the Court b a se d on the provisions of HIPAA providing for such protection.

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9.

G re a te r Protection of Specific Documents. No party may withhold information

f ro m discovery on the ground that it requires protection greater than that afforded by this O rd e r unless the party moves for an Order providing such special protection. 10. C h a llen g e s to Designation as Confidential. Any confidential designation is

s u b je c t to challenge. The following procedures shall apply to any such challenge. a. T h e burden of proving the necessity of a confidential designation remains with the

p a rty asserting confidentiality. b. A party who contends that documents designated confidential are not entitled to

c o n f id e n tia l treatment shall give written notice to the party who affixed the designation of th e specific basis for the challenge. The party who so designated the documents shall have f if te e n (15) days from service of the written notice to determine if the dispute can be resolved w ith o u t judicial intervention and, if not, to move for an Order confirming the confidential d e s ig n a tio n . c. N o tw ith sta n d in g any challenge to the designation of documents as confidential, all

m a ter ial previously designated confidential shall continue to be treated as subject to the full p r o te c tio n s of this Order until one of the following occurs: (1 ) th e party who claims that the documents are confidential withdraws such

d e sig n a tio n in writing; (2 ) th e party who claims that the documents are confidential fails to move timely

f o r an Order designating the documents as confidential as set forth in paragraph 10(b) above;

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or (3) the court rules that the documents should no longer be designated as

c o n f id e n tia l information. d. C h a lle n g e s to the confidentiality of documents may be made at any time and are not

w a iv e d by the failure to raise the challenge at the time of initial disclosure or designation. 11. a. T re a tm e n t on Conclusion of Litigation.

O rd e r Remains in Effect. All provisions of this Order restricting the use of documents

d e s i g n a t e d confidential shall continue to be binding after the conclusion of the litigation u n le s s otherwise agreed or ordered. b. R e tu rn of Confidential Documents. Within thirty (30) days after the conclusion of the

litig a tio n , including conclusion of any appeal, all documents treated as confidential under this O rd e r, including copies as defined above (paragraph 6(d)) and all notes, extracts and/or data ta k e n from such documents, shall be returned to the producing party unless: (1) the document h a s been entered as evidence or filed (unless introduced or filed under seal); (2) the parties s tip u la te to destruction in lieu of return; or (3) as to documents containing the notations, s u m m a tio n s , or other mental impressions of the receiving party, that party elects destruction. W ith in that 30-day period, each party shall verify in writing the complete destruction or re tu rn to counsel for the producing party of all such materials. Notwithstanding the above re q u ire m e n ts to return or destroy documents, counsel may retain attorney work product in c lu d in g an index which refers or relates to information designated confidential so long as

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th a t work product does not duplicate verbatim substantial portions of the text of confidential d o cu m en ts. This work product continues to be confidential under the terms of this Order. A n attorney may use his or her work product in a subsequent litigation provided that its use d o e s not disclose the confidential documents. 12. O rd e r Subject to Modification. This Order shall be subject to modification on

m o tio n of any party or any other person who may show an adequate interest in the matter to in ter v e n e for purposes of addressing the scope and terms of this Order. The Order shall not, h o w e v e r, be modified until the parties shall have been given notice and an opportunity to be h e a rd on the proposed modification. 13. N o Judicial Determination. This Order is entered based on the representations

a n d agreements of the parties and for the purpose of facilitating discovery. Nothing herein s h a ll be construed or presented as a judicial determination that any specific document or item o f information designated as CONFIDENTIAL by counsel is subject to protection under R u l e 26(c) of the Federal Rules of Civil Procedure or otherwise until such time as a d o c u m e n t-s p e c if ic ruling shall have been made. 14. This Order shall take effect when entered and shall be binding upon: (1)

c o u n s e l who signed below and their respective law firms; and (2) their respective clients. IT IS SO ORDERED.

S ep tem b er 10, 2010 C o lu m b ia , South Carolina 12

J o s e p h F. Anderson, Jr. U n ite d States District Judge

UNITED STATES DISTRICT COURT D IS T R IC T OF SOUTH CAROLINA C O L U M B IA DIVISION L E I G H J. LEVENTIS and CHRISTOPHER L E V E N T IS ) ) ) P l a in tif f , ) ) vs. ) ) FIRST NATIONAL INSURANCE COMPANY) O F AMERICA, ) ) D e f e n d a n t/C o u n ter c laim a n t, ) ) vs. ) ) C H R IS T O P H E R LEVENTIS, CAROLINA ) C A R E PLAN, INC., MEDICAL MUTUAL ) O F OHIO, PITTS RADIOLOGY ) A S S O C IA T E S , P.A. , RICHLAND ) C O U N T Y EMS and PALMETTO HEALTH ) E M E R G E N C Y PHYSICIANS, ) ) C o u n t e rc la im Defendants. ) _______________________________________) F IR S T NATIONAL INSURANCE ) C O M P A N Y OF AMERICA, ) ) T h ird -P a rty Plaintiff, ) ) vs. ) ) L E IG H J. LEVENTIS and PALMETTO ) H E A L T H RICHLAND, ) ) T h i rd - P a r ty Defendants. ) _______________________________________) C .A . NO.: 3:09-1561-JFA

ATTACHMENT A TO C O N F ID E N T I A L I T Y ORDER

C E R T I F I C A T I O N BY COUNSEL OF DESIGNATION O F INFORMATION AS CONFIDENTIAL

Documents produced herewith whose bates numbers are listed below or are listed o n the attached index have been marked as CONFIDENTIAL subject to the C o n f id e n tia lity Order entered in this action which Order is dated _____________. By signing below, I am certifying that I have personally reviewed the marked d o c u m e n ts and believe, based on that review, that they are properly subject to protection u n d er the terms of Paragraph 3 of the Confidentiality Order. C h e c k and complete one of the two options below. G I am a member of the Bar of the United States District Court for the District o f South Carolina. My District Court Bar number is __________. I am not a member of the Bar of the United States District Court for the D is tric t of South Carolina but am admitted to the bar of one or more states. The state in which I conduct the majority of my practice is _ _ _ _ _ _ _ _ _ _ _ _ _ _ where my Bar number is ___________________.

G

I understand that by completing this certification I am submitting to the ju ris d ic tio n of the United States District Court for the District of South Carolina as to any m a tte r relating to this certification.

D a te : ________________________

_________________________ S ig n a tu re of Counsel _________________________ P r in te d Name of Counsel

UNITED STATES DISTRICT COURT D IS T R IC T OF SOUTH CAROLINA C O L U M B IA DIVISION L E I G H J. LEVENTIS and CHRISTOPHER L E V E N T IS ) ) ) P l a in tif f , ) ) vs. ) ) FIRST NATIONAL INSURANCE COMPANY) O F AMERICA, ) ) D e f e n d a n t/C o u n ter c laim a n t, ) ) vs. ) ) C H R IS T O P H E R LEVENTIS, CAROLINA ) C A R E PLAN, INC., MEDICAL MUTUAL ) O F OHIO, PITTS RADIOLOGY ) A S S O C IA T E S , P.A. , RICHLAND ) C O U N T Y EMS and PALMETTO HEALTH ) E M E R G E N C Y PHYSICIANS, ) ) C o u n t e rc la im Defendants. ) _______________________________________) F IR S T NATIONAL INSURANCE ) C O M P A N Y OF AMERICA, ) ) T h ird -P a rty Plaintiff, ) ) vs. ) ) L E IG H J. LEVENTIS and PALMETTO ) H E A L T H RICHLAND, ) ) T h i rd - P a r ty Defendants. ) _______________________________________) C .A . NO.: 3:09-1561-JFA

ATTACHMENT B TO C O N F ID E N T I A L I T Y ORDER

A C K N O W L E D G M E N T OF UNDERSTANDING AND A G R E E M E N T TO BE BOUND

The undersigned hereby acknowledges that he or she has read the Confidentiality O rd e r dated ____________________, in the above captioned action, understands the te rm s thereof, and agrees to be bound by such terms. The undersigned submits to the ju risd ictio n of the United States District Court for the District of South Carolina in m a tte rs relating to the Confidentiality Order and understands that the terms of said Order o b lig a te him/her to use discovery materials designated CONFIDENTIAL solely for the p u rp o s e s of the above-captioned action, and not to disclose any such confidential in f o rm a tio n to any other person, firm or concern. T h e undersigned acknowledges that violation of the Stipulated Confidentiality O rd e r may result in penalties for contempt of court. N ame: __________________ J o b Title: ________________________ E m p l o ye r : _________________________ B u s in e ss Address: _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _

Date: _______________

____________________________ S ign ature

UNITED STATES DISTRICT COURT D IS T R IC T OF SOUTH CAROLINA C O L U M B IA DIVISION L E I G H J. LEVENTIS and CHRISTOPHER L E V E N T IS ) ) ) P l a in tif f , ) ) vs. ) ) FIRST NATIONAL INSURANCE COMPANY) O F AMERICA, ) ) D e f e n d a n t/C o u n ter c laim a n t, ) ) vs. ) ) C H R IS T O P H E R LEVENTIS, CAROLINA ) C A R E PLAN, INC., MEDICAL MUTUAL ) O F OHIO, PITTS RADIOLOGY ) A S S O C IA T E S , P.A. , RICHLAND ) C O U N T Y EMS and PALMETTO HEALTH ) E M E R G E N C Y PHYSICIANS, ) ) C o u n t e rc la im Defendants. ) _______________________________________) F IR S T NATIONAL INSURANCE ) C O M P A N Y OF AMERICA, ) ) T h ird -P a rty Plaintiff, ) ) vs. ) ) L E IG H J. LEVENTIS and PALMETTO ) H E A L T H RICHLAND, ) ) T h i rd - P a r ty Defendants. ) _______________________________________) C .A . NO.: 3:09-1561-JFA

ATTACHMENT C TO C O N F ID E N T I A L I T Y ORDER

C E R T I F I C A T I O N OF COUNSEL OF NEED FOR ASSISTANCE OF PARTY/EMPLOYEE

Pursuant to the Confidentiality Order entered in this action, most particularly the p ro v is io n s of Paragraph 6.b.2., I certify that the assistance of _______________________ is reasonably necessary to the conduct of this litigation and that this assistance requires th e disclosure to this individual of information which has been designated as C O N F ID E N T IA L . I have explained the terms of the Confidentiality Order to the individual named a b o v e and will obtain his or her signature on an "Acknowledgment of Understanding and A g re e m e n t to be Bound" prior to releasing any confidential documents to the named in d iv id u a l and I will release only such confidential documents as are reasonably n e c es s a ry to the conduct of the litigation. T h e individual named above is: G G A named party; A n employee of named party ___________________________________. This employee's job title is ______________________________________ a n d work address is ______________________________________.

D a te : _____________________

_________________________ S ign ature