Healy v. The Elevance Health Companies Inc

Filing 11

ORDER GRANTING 9 PROPOSED PROTECTIVE ORDER. Signed by Judge Mary K. Dimke. (LTR, Case Administrator)

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1 FILED IN THE U.S. DISTRICT COURT EASTERN DISTRICT OF WASHINGTON 2 Nov 21, 2024 3 SEAN F. MCAVOY, CLERK 4 5 UNITED STATES DISTRICT COURT 6 EASTERN DISTRICT OF WASHINGTON 7 CORNELIUS HEALY, individually, Plaintiff, 8 9 10 11 v. ELEVANCE HEALTH COMPANIES, INC., (f/k/a Anthem, Inc.) a Foreign Profit Corporation, 12 No. 2:24-CV-00322-MKD ORDER GRANTING PROPOSED PROTECTIVE ORDER ECF No. 9 Defendant. 13 The parties have submitted a Proposed Protective Order to the Court. ECF 14 No. 9. The Court finds good cause under Fed. R. Civ. P. 26(c) to issue an order to 15 protect certain categories of information produced by a party in discovery in this 16 matter to prevent annoyance, embarrassment, oppression, or undue burden or 17 expense. 18 Accordingly, IT IS HEREBY ORDERED: 19 1. 20 ORDER - 1 The parties’ Proposed Protective Order, ECF No. 9, is GRANTED. PROTECTIVE ORDER 1 2 1. PURPOSES AND LIMITATIONS 3 Discovery in this action is likely to involve production of confidential, 4 proprietary, or private information for which special protection may be warranted. 5 Accordingly, the parties hereby stipulate to and petition the court to enter the 6 following Stipulated Protective Order. This agreement does not confer blanket 7 protection on all disclosures or responses to discovery. The protection it affords 8 from public disclosure and use extends only to the limited information or items that 9 are entitled to confidential treatment under the applicable legal principles, and it 10 does not presumptively entitle parties to file confidential information under seal. 11 2. “CONFIDENTIAL” MATERIAL 12 “Confidential” material shall include the following documents and tangible 13 things produced or otherwise exchanged that implicates common law and statutory 14 privacy and/or confidentiality interests, such as: medical records, personnel records 15 of current or former employees of Defendant, non-public personal information 16 such as banking information and social security numbers, and trade secrets and 17 commercial or financial information that is either privileged or confidential. 18 3. SCOPE 19 The protections conferred by this agreement cover not only confidential 20 material (as defined above), but also (1) any information copied or extracted from ORDER - 2 1 confidential material; (2) all copies, excerpts, summaries, or compilations of 2 confidential material; and (3) any testimony, conversations, or presentations by 3 parties or their counsel that might reveal confidential material. 4 However, the protections conferred by this agreement do not cover 5 information that is in the public domain or becomes part of the public domain 6 through trial or otherwise. 7 4. 8 ACCESS TO AND USE OF CONFIDENTIAL MATERIAL 4.1 Basic Principles. A receiving party may use confidential material that 9 is disclosed or produced by another party or by a non-party in connection with this 10 case only for prosecuting, defending, or attempting to settle this litigation. 11 Confidential material may be disclosed only to the categories of persons and under 12 the conditions described in this agreement. Confidential material must be stored 13 and maintained by a receiving party at a location and in a secure manner that 14 ensures that access is limited to the persons authorized under this agreement. 15 4.2 Disclosure of “CONFIDENTIAL” Information or Items. Unless 16 otherwise ordered by the court or permitted in writing by the designating party, a 17 receiving party may disclose any confidential material only to: 18 (a) the receiving party’s counsel of record in this action, as well as 19 employees of counsel to whom it is reasonably necessary to disclose the 20 information for this litigation; ORDER - 3 1 (b) the officers, directors, and employees (including in house 2 counsel) of the receiving party to whom disclosure is reasonably necessary 3 for this litigation, unless the parties agree that a particular document or 4 material produced is for Attorney’s Eyes Only and is so designated; 5 (c) experts and consultants to whom disclosure is reasonably 6 necessary for this litigation and who have signed the “Acknowledgment and 7 Agreement to Be Bound” (Exhibit A); 8 (d) the court, court personnel, and court reporters and their staff; 9 (e) copy or imaging services retained by counsel to assist in the 10 duplication of confidential material, provided that counsel for the party 11 retaining the copy or imaging service instructs the service not to disclose any 12 confidential material to third parties and to immediately return all originals 13 and copies of any confidential material; 14 (f) during their depositions, witnesses in the action to whom 15 disclosure is reasonably necessary and who have signed the 16 “Acknowledgment and Agreement to Be Bound” (Exhibit A), unless 17 otherwise agreed by the designating party or ordered by the court. Pages of 18 transcribed deposition testimony or exhibits to depositions that reveal 19 confidential material must be separately bound by the court reporter and may 20 not be disclosed to anyone except as permitted under this agreement; ORDER - 4 1 (g) the author or recipient of a document containing the 2 information or a custodian or other person who otherwise possessed or knew 3 the information. 4 4.3 Filing Confidential Material. Before filing confidential material or 5 discussing or referencing such material in court filings, the filing party shall confer 6 with the designating party to determine whether the designating party will remove 7 the confidential designation, whether the document can be redacted, or whether a 8 motion to seal or stipulation and proposed order is warranted. During the meet and 9 confer process, the designating party must identify the basis for sealing the specific 10 confidential information at issue, and the filing party shall include this basis in its 11 motion to seal, along with any objection to sealing the information at issue. 12 5. 13 DESIGNATING PROTECTED MATERIAL 5.1 Exercise of Restraint and Care in Designating Material for Protection. 14 Each party or non-party that designates information or items for protection under 15 this agreement must take care to limit any such designation to specific material that 16 qualifies under the appropriate standards. The designating party must designate for 17 protection only those parts of material, documents, items, or oral or written 18 communications that qualify, so that other portions of the material, documents, 19 items, or communications for which protection is not warranted are not swept 20 unjustifiably within the ambit of this agreement. ORDER - 5 1 Mass, indiscriminate, or routinized designations are prohibited. Designations 2 that are shown to be clearly unjustified or that have been made for an improper 3 purpose (e.g., to unnecessarily encumber or delay the case development process or 4 to impose unnecessary expenses and burdens on other parties) expose the 5 designating party to sanctions. 6 If it comes to a designating party’s attention that information or items that it 7 designated for protection do not qualify for protection, the designating party must 8 promptly notify all other parties that it is withdrawing the mistaken designation. 9 5.2 Manner and Timing of Designations. Except as otherwise provided in 10 this agreement (see, e.g., second paragraph of section 5.2(b) below), or as 11 otherwise stipulated or ordered, disclosure or discovery material that qualifies for 12 protection under this agreement must be clearly so designated before or when the 13 material is disclosed or produced. 14 (a) Information in documentary form: (e.g., paper or electronic 15 documents and deposition exhibits, but excluding transcripts of depositions 16 or other pretrial or trial proceedings), the designating party must affix the 17 word “CONFIDENTIAL” to each page that contains confidential material. If 18 only a portion or portions of the material on a page qualifies for protection, 19 the producing party also must clearly identify the protected portion(s) (e.g., 20 by making appropriate markings in the margins). ORDER - 6 1 (b) Testimony given in deposition or in other pretrial proceedings: 2 the parties and any participating non-parties must identify on the record, 3 during the deposition or other pretrial proceeding, all protected testimony, 4 without prejudice to their right to so designate other testimony after 5 reviewing the transcript. Any party or non-party may, within fifteen days 6 after receiving the transcript of the deposition or other pretrial proceeding, 7 designate portions of the transcript, or exhibits thereto, as confidential. If a 8 party or non-party desires to protect confidential information at trial, the 9 issue should be addressed during the pre-trial conference. 10 (c) Other tangible items: the producing party must affix in a 11 prominent place on the exterior of the container or containers in which the 12 information or item is stored the word “CONFIDENTIAL.” If only a 13 portion or portions of the information or item warrant protection, the 14 producing party, to the extent practicable, shall identify the protected 15 portion(s). 16 5.3 Inadvertent Failures to Designate. If timely corrected, an inadvertent 17 failure to designate qualified information or items does not, standing alone, waive 18 the designating party’s right to secure protection under this agreement for such 19 material. Upon timely correction of a designation, the receiving party must make 20 reasonable efforts to ensure that the material is treated in accordance with the ORDER - 7 1 provisions of this agreement. 2 6. 3 CHALLENGING CONFIDENTIALITY DESIGNATIONS 6.1 Timing of Challenges. Any party or non-party may challenge a 4 designation of confidentiality at any time. Unless a prompt challenge to a 5 designating party’s confidentiality designation is necessary to avoid foreseeable, 6 substantial unfairness, unnecessary economic burdens, or a significant disruption 7 or delay of the litigation, a party does not waive its right to challenge a 8 confidentiality designation by electing not to mount a challenge promptly after the 9 original designation is disclosed. 10 6.2 Meet and Confer. The parties must make every attempt to resolve any 11 dispute regarding confidential designations without court involvement. Any 12 motion regarding confidential designations or for a protective order must include a 13 certification, in the motion or in a declaration or affidavit, that the movant has 14 engaged in a good faith meet and confer conference with other affected parties in 15 an effort to resolve the dispute without court action. The certification must list the 16 date, manner, and participants to the conference. A good faith effort to confer 17 requires a face-to-face meeting or a telephone conference. 18 6.3 Judicial Intervention. If the parties cannot resolve a challenge without 19 court intervention, the designating party may file and serve a motion to retain 20 confidentiality. The burden of persuasion in any such motion shall be on the ORDER - 8 1 designating party. Frivolous challenges, and those made for an improper purpose 2 (e.g., to harass or impose unnecessary expenses and burdens on other parties) may 3 expose the challenging party to sanctions. All parties shall continue to maintain 4 the material in question as confidential until the court rules on the challenge. 5 7. 6 IN OTHER LITIGATION 7 PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED If a party is served with a subpoena or a court order issued in other litigation 8 that compels disclosure of any information or items designated in this action as 9 “CONFIDENTIAL,” that party must: 10 11 (a) promptly notify the designating party in writing and include a copy of the subpoena or court order; 12 (b) promptly notify in writing the party who caused the subpoena or order 13 to issue in the other litigation that some or all of the material covered by the 14 subpoena or order is subject to this agreement. Such notification shall include a 15 copy of this agreement; and 16 (c) cooperate with respect to all reasonable procedures sought to be 17 pursued by the designating party whose confidential material may be affected. 18 8. 19 20 UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL If a receiving party learns that, by inadvertence or otherwise, it has disclosed confidential material to any person or in any circumstance not authorized under ORDER - 9 1 this agreement, the receiving party must immediately (a) notify in writing the 2 designating party of the unauthorized disclosures, (b) use its best efforts to retrieve 3 all unauthorized copies of the protected material, (c) inform the person or persons 4 to whom unauthorized disclosures were made of all the terms of this agreement, 5 and (d) request that such person or persons execute the “Acknowledgment and 6 Agreement to Be Bound” that is attached hereto as Exhibit A. 7 9. 8 PROTECTED MATERIAL 9 INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE When a producing party gives notice to receiving parties that certain 10 inadvertently produced material is subject to a claim of privilege or other 11 protection, the obligations of the receiving parties are those set forth in Federal 12 Rule of Civil Procedure 26(b)(5)(B). This provision is not intended to modify 13 whatever procedure may be established in an e-discovery order or agreement that 14 provides for production without prior privilege review. The parties agree to the 15 entry of a non-waiver order under Fed. R. Evid. 502(d) as set forth herein. 16 10. NON TERMINATION AND RETURN OF DOCUMENTS 17 Within 60 days after the termination of this action, including all appeals, 18 each receiving party must return all confidential material to the producing party, 19 including all copies, extracts and summaries thereof. Alternatively, the parties 20 may agree upon appropriate methods of destruction. ORDER - 10 1 Notwithstanding this provision, counsel is entitled to retain one archival 2 copy of all documents produced in discovery, documents filed with the court, trial, 3 deposition, and hearing transcripts, correspondence, deposition and trial exhibits, 4 expert reports, attorney work product, and consultant and expert work product, 5 even if such materials contain confidential material. 6 The confidentiality obligations imposed by this agreement shall remain in 7 effect until a designating party agrees otherwise in writing or a court orders 8 otherwise. 9 IT IS FURTHER ORDERED that pursuant to Fed. R. Evid. 502(d), the 10 production of any documents, electronically stored information (ESI) or 11 information, whether inadvertent or otherwise, in this proceeding shall not, for the 12 purposes of this proceeding or any other federal or state proceeding, constitute a 13 waiver by the producing party of any privilege applicable to those documents, 14 including the attorney-client privilege, attorney work-product protection, or any 15 other privilege or protection recognized by law. This Order shall be interpreted to 16 provide the maximum protection allowed by Fed. R. Evid. 502(d). The provisions 17 of Fed. R. Evid. 502(b) do not apply. Nothing contained herein is intended to or 18 shall serve to limit a party’s right to conduct a review of documents, ESI or 19 information (including metadata) for relevance, responsiveness and/or segregation 20 of privileged and/or protected information before production. Information ORDER - 11 1 produced in discovery that is protected as privileged or work product shall be 2 immediately returned to the producing party. 3 4 IT IS SO ORDERED. The District Court Executive is directed to file this order and provide copies to the parties. 5 DATED November 21, 2024. s/Mary K. Dimke MARY K. DIMKE UNITED STATES DISTRICT JUDGE 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 ORDER - 12 1 EXHIBIT A 2 ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND 3 4 5 6 7 8 9 10 11 12 13 14 I, ____________________________________ [print or type full name], of ___________________________________ [print or type full address], declare under penalty of perjury that I have read in its entirety and understand the Stipulated Protective Order that was issued by the United States District Court for the Eastern District of Washington on November 21, 2024, in the case of Healy v. The Elevance Health Companies, Inc., Case No. 2:24-cv-00322. I agree to comply with and to be bound by all the terms of this Stipulated Protective Order and I understand and acknowledge that failure to so comply could expose me to sanctions and punishment in the nature of contempt. I solemnly promise that I will not disclose in any manner any information or item that is subject to this Stipulated Protective Order to any person or entity except in strict compliance with the provisions of this Order. 15 16 17 18 19 I further agree to submit to the jurisdiction of the United States District Court for the Eastern District of Washington for the purpose of enforcing the terms of this Stipulated Protective Order, even if such enforcement proceedings occur after termination of this action. Date: 20 ORDER - 13 1 2 SIGNATURE 3 4 PRINTED NAME 5 CITY AND STATE WHERE SWORN/SIGNED 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 ORDER - 14

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