Chaudhry v. Smith ( 2020 )

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 9 EASTERN DISTRICT OF CALIFORNIA 10 PERVAIZ A. CHAUDHRY, et al., Case No. 1:16-cv-01243-SAB 11 Plaintiffs, ORDER ENTERING STIPULATED 12 PROTECTIVE ORDER v. 13 (ECF No. 123) SONIA ANGELL, et al., 14 Defendants. 15 16 17 STIPULATED PROTECTIVE ORDER 18 Under Federal Rule of Civil Procedure 26(c) and Local Rule 141.1, the parties and Fresno 19 Community Hospital and Medical Center, dba Community Regional Medical Center (CRMC), 20 by and through their counsel of record, stipulate to and request entry of a protective order as 21 follows: 22 1. LOCAL RULE 141.1 STATEMENT 23 In accordance with the provisions of Local Rule 141.1(c), the parties and CRMC assert the 24 following: 25 (1) The information eligible for a protective order in this case is CRMC’s peer review 26 file that was the subject of Defendants’ motion to compel compliance with subpoena (see ECF 27 Nos. 117-120) and resulting December 7, 2020 Order (ECF No. 122). / / / 1 (2) A particularized need exists as to CRMC’s peer review file because the file contains 2 confidential and personal medical information, and contains information that is otherwise 3 confidential, and intended to be kept confidential, under California Evidence Code § 1157. 4 (3) A court order is needed to ensure the privacy and confidentiality of the peer review 5 file is enforceable and maintained after this litigation has ended while, if necessary, permitting 6 the parties to use relevant and probative material contained within the peer review file at trial as 7 already determined by this Court in its December 7, 2020 Order. 8 2. PURPOSES AND LIMITATIONS 9 This civil-rights action under 42 U.S.C. § 1983 arises from the investigation conducted and 10 the report published by the California Department of Public Health (DPH) concerning the April 11 2, 2012 open-heart surgery of patient Perez that Plaintiff Dr. Chaudhry performed at Fresno 12 Community Regional Medical Center (CRMC). Based on DPH’s investigation, the published 13 report found that Dr. Chaudhry left the open-heart surgery prior to the closing of the chest and 14 prior to stabilization of the patient in violation of the hospital’s medical-staff bylaws. Dr. 15 Chaudhry and his medical practice, Valley Cardiac Surgery Medical Group, filed this lawsuit 16 alleging that Defendants, employees of DPH, conducted an inadequate investigation and 17 published the report with known inaccuracies and stigmatizing information, in violation of their 18 due process rights under the Fourteenth Amendment. CRMC is not a party to this lawsuit. 19 On October 5, 2020, Defendants issued a subpoena and notice to consumer for CRMC to 20 produce the peer review file concerning the April 2, 2012 surgery Dr. Chaudhry performed. 21 CRMC timely objected to the subpoena and produced a privilege log. On November 4, 2020, 22 Defendants moved to compel CRMC’s compliance with the subpoena, which CRMC opposed. 23 On December 2, 2020, the Court held a hearing on the motion to compel compliance, and 24 counsel for CRMC appeared and presented oral argument. On December 7, 2020, the Court 25 issued an order granting in part and denying in part Defendants’ motion to compel compliance. 26 (See ECF No. 122.) Specifically, the Court sustained CRMC’s objections on the ground of 27 attorney-client privilege as to the August 4, 2012, September 6, 2012, and September 13, 2012 1 other objections and required disclosure of the peer review file pertaining to the April 2, 2012 2 surgery subject to protective order. 3 This Stipulated Protective Order shall govern the use and disclosure, if necessary, of 4 material contained within CRMC’s peer review file pertaining to the April 2, 2012 surgery that 5 Dr. Chaudhry performed on patient Perez. 6 3. DEFINITIONS & SCOPE 7 3.1 “Confidential” information or items is defined as information (regardless of how it is 8 generated, stored or maintained) or tangible things that qualify for protection under Federal Rule 9 of Civil Procedure 26(c) and for which public disclosure is likely to result in particularized harm, 10 or is privileged under law, and/or violates privacy or official information interests recognized by 11 law, or is otherwise entitled to protection. 12 3.2 The parties and CRMC agree that CRMC’s entire peer review file will be deemed 13 “Confidential” for purposes of this Stipulated Protective Order. 14 3.3 The protections conferred by this Stipulated Protective Order cover not only 15 Confidential material (as defined above), but also (1) any information copied from Confidential 16 material; (2) all copies, excerpts, summaries, or compilations of Confidential material that reveal 17 the source of the Confidential material or that reveal specific information entitled to 18 confidentiality as a matter of law; and (3) any testimony, conversations, or presentations by 19 parties or their counsel that might reveal Confidential material. However, the protections 20 conferred by this Stipulated Protective Order do not cover the following information: (a) any 21 information that is in the public domain at the time of disclosure or becomes part of the public 22 domain after its disclosure as a result of publication not involving a violation of this order, 23 including becoming part of the public record through trial or otherwise; and (b) any information 24 known to the parties prior to the disclosure or obtained by the parties after the disclosure from a 25 source who obtained the information lawfully and under no obligation of maintaining 26 confidentiality. 27 3.4 Any use of Confidential material at trial shall be governed by a separate agreement 1 before any Confidential material is sought to be used and/or disclosed at trial. If the parties and 2 CRMC are unable to agree concerning the disclosure of Confidential material at trial, the parties 3 and CRMC agree to adhere to and be bound by Magistrate Judge Boone’s procedures for 4 Informal Telephonic Conferences regarding Discovery Disputes (see 5 http://www.caed.uscourts.gov/caednew/index.cfm/judges/all-judges/50161/) to resolve their 6 dispute. 7 3.5 The Confidential documents, material, and their contents may be used by the parties 8 and their counsel only in this litigation and may not be used in separate proceedings or actions at 9 this time or in the future without first being obtained through proper discovery procedures or 10 court orders in those separate proceedings or actions. 11 3.6 The Confidential documents and their contents may not be disclosed, copied, 12 distributed, shown, described, or read to any person or entity (including, but not limited to, media 13 representatives) by any party or their counsel, representatives or agents, other than (a) the parties 14 to this litigation; (b) the parties’ attorneys, paralegals, and legal office staff in this litigation; (c) 15 the consultants requested by the parties’ attorneys to furnish expert or litigation support services 16 in this litigation; (d) court reporters and their staff, and Professional Vendors to whom disclosure 17 is reasonably necessary for this litigation, and (e) the Court in this action, for purposes of this 18 litigation and trial. Any individual who is shown or provided Confidential material and who is 19 not a signatory to this Stipulated Protective Order is required to sign the “Acknowledgement and 20 Agreement to be Bound” (Exhibit A), agreeing to abide by the provisions of this Stipulated 21 Protective Order. 22 3.7 This section does not affect CRMC’s obligation and right to withhold or redact the 23 names and medical information of third-party patients, unrelated to the April 2, 2012 surgery of 24 patient Perez, contained within the Confidential material or as the parties may otherwise agree. 25 4. DURATION 26 4.1 Even after final disposition of this litigation, the confidentiality obligations imposed 27 by this Stipulated Protective Order shall remain in effect until CRMC agrees otherwise in writing 1 dismissal of all claims and defenses in this action, with or without prejudice; and (2) final 2 judgment herein after the completion and exhaustion of all appeals, rehearings, remands, trials, 3 or reviews of this action, including the time limits for filing any motions or applications for 4 extension of time pursuant to applicable law. 5 5. UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL 6 5.1 If any party or CRMC learns that, by inadvertence or otherwise, it has disclosed 7 Confidential material to any person or in any circumstance not authorized under this Stipulated 8 Protective Order, the party must immediately (a) notify CRMC in writing of the unauthorized 9 disclosures, (b) use its best efforts to retrieve all unauthorized copies of the Confidential 10 material, (c) inform the person or persons to whom unauthorized disclosures were made of all the 11 terms of this Stipulated Protective Order, and (d) request such person or persons to immediately 12 return or destroy all copies of the Confidential material and to execute a declaration under 13 penalty of perjury stating that it has done so. 14 6. INADVERTENT PRODUCTION OF PRIVILEGED MATERIAL 15 6.1 When CRMC gives notice to the parties that certain inadvertently produced material 16 is subject to a claim of attorney-client privilege (and not covered by the Court’s December 7, 17 2020 Order, ECF No. 122), the obligations of the parties are those set forth in Federal Rule of 18 Civil Procedure 26(b)(5)(B). Pursuant to Federal Rule of Evidence 502(d) and (e), insofar as the 19 parties and CRMC reach an agreement on the effect of disclosure of a communication or 20 information covered by the attorney-client privilege or work product protection, the parties and 21 CRMC may incorporate their agreement into this Stipulated Protective Order through addendum. 22 7. MISCELLANEOUS 23 7.1 Right to Further Relief. Nothing in this Stipulated Protective Order abridges the right 24 of any person to seek its modification by the Court in the future. 25 7.2 Right to Assert Other Objections. By stipulating to the entry of this Stipulated 26 Protective Order, CRMC and the parties do not waive any right it otherwise would have to object 27 to disclosing or producing any information or item on any ground not addressed in this Stipulated Protective Order. Similarly, CRMC and the parties do not waive any right to object on 1 any ground to the use or introduction of any Confidential material covered by this Stipulated 2 Protective Order at trial. 3 7.3 Filing Confidential Material. Unless CRMC agrees or the Court otherwise orders, no 4 party may file in the public record in this action any Confidential material. 5 8. RETURN OF CONFIDENTIAL MATERIAL 6 8.1 Within ninety days after the final disposition of this action, as defined in Section 4, 7 upon written notification served by CRMC, the parties must return all Confidential material to 8 CRMC or destroy such material. As used in this subdivision, “all Confidential material” includes 9 all copies, abstracts, compilations, summaries, and any other format reproducing or capturing 10 any of the Confidential material. Whether the Confidential material is returned or destroyed, the 11 party must submit a written certification to CRMC by the ninety-day deadline that (1) identifies 12 (by category, where appropriate) all the Confidential material that was returned or destroyed and 13 (2) affirms that the party has not retained any copies, abstracts, compilations, summaries or any 14 other format reproducing or capturing any of the Confidential material. 15 9. REMEDIES 16 9.1 Any party or CRMC believing that this Stipulated Protective Order is being violated 17 may move for a Court order of enforcement. The motion shall be subject to all local rules 18 governing motions concerning discovery disputes, including but not limited to meet and confer 19 requirements. Said motion may be brought at any time up to final entry of judgment in this 20 matter. 21 IT IS SO STIPULATED. 22 Dated: December 18, 2020 Respectfully Submitted, 23 WHITE CANEPA LLP 24 25 /s/ Karen J. Ray (as authorized 12/18/20) WILLIAMS M. WHITE 26 KAREN J. RAY Attorneys for Non-Party Witness Fresno Comm. 27 Hosp. & Med. Ctr. 1 2 Dated: December 18, 2020 XAVIER BECERRA Attorney General of California 3 PETER A. MESHOT Supervising Deputy Attorney General 4 5 /s/ Diana Esquivel DIANA ESQUIVEL 6 Deputy Attorney General Attorneys for Defendants Angell, Campbell, and 7 Lopez 8 Dated: December 18, 2020 YARRA LAW GROUP 9 /s/ H. Ty Kharazi (as authorized 12/18/20) 10 H. TY KHARAZI Attorneys for Plaintiffs 11 12 Dated: December 18, 2020 THORNTON DAVIDSON, P.C. 13 /s/ Thornton Davidson (as authorized 12/18/20) 14 THORNTON DAVISON Attorneys for Plaintiffs 15 16 /// 17 /// 18 /// 19 /// 20 /// 21 /// 22 /// 23 /// 24 /// 25 /// 26 /// 27 /// /// 1 ORDER ENTERING STIPULATED PROTECTIVE ORDER 2 Pursuant to the stipulation of the parties, IT IS HEREBY ORDERED that: 3 1. The above stipulated protective order is entered; 4 2. The parties are advised that pursuant to the Local Rules of the United States 5 District Court, Eastern District of California, any documents which are to be filed 6 under seal will require a written request which complies with Local Rule 141; 7 3. The party making a request to file documents under seal shall be required to show 8 good cause for documents attached to a nondispositive motion or compelling 9 reasons for documents attached to a dispositive motion, Pintos v. Pacific Creditors 10 Ass’n, 605 F.3d 665, 677-78 (9th Cir. 2009); and 11 4. If a party’s request to file Protected Material under seal is denied by the Court, 12 then the previously filed material shall be immediately accepted by the court and 13 become information in the public record and the information will be deemed filed 14 as of the date that the request to file the Protected Information under seal was 15 made. 16 17 IT IS SO ORDERED. OF. ee 1g | Dated: _December 21, 2020_ Oe 19 UNITED STATES MAGISTRATE JUDGE 20 21 22 23 24 25 26 27 28