North American Company for Life and Health Insurance v. Swall ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 NORTH AMERICAN COMPANY FOR Case No. 1:20-cv-00384-NONE-SAB LIFE AND HEALTH INSURANCE, 12 ORDER ENTERING STIPULATED Plaintiff, PROTECTIVE ORDERS 13 v. (ECF No. 15) 14 MICHELLE SWALL, 15 Defendant. 16 17 18 STIPULATED HIPPA PROTECTIVE ORDER 19 The Court finds that good cause has been shown for entry of a HIPAA protective order 20 governing the confidentiality of documents produced and information exchanged related to this 21 case, discovery requests and responses, and deposition testimony. For the purpose of protecting 22 the interests of the parties in the above-captioned matter against improper use and disclosure of 23 protected health information submitted or produced in connection with this matter, IT IS 24 THEREFORE ORDERED: 25 (A) DEFINITIONS. 26 “HIPAA” means the Health Insurance Portability and Accountability Act of 1996, 27 codified primarily at 18, 26 & 42 U.S.C. (2003). “PHI” means protected health information, as that term is used in HIPAA and the Privacy 1 Standards and defined in 45 C.F.R. §§ 160 & 164 (2003). Without limiting the definition and 2 merely for purposes of providing relevant examples, PHI includes, but is not limited to, health 3 information, including demographic information, relating to either: the past, present, or future 4 physical or mental condition of an individual; the provision of care to an individual; and the 5 payment for care provided to an individual that identifies the individual or which reasonably 6 could be expected to identify the individual. 7 “Privacy Standards” means the Standards for Privacy of Individually Identifiable Health 8 Information. See 45 C.F.R. §§ 160 & 164 (2003). 9 “Covered entities” means those entities defined by 45 C.F.R. § 160.103 (2003). 10 (B) TERMS AND LIMITATIONS. 11 1. It may be necessary during the course of this litigation for the Parties to produce, 12 receive, subpoena, and transmit the PHI of Phillip Swall. 13 2. The Parties and covered entities are authorized to disclose PHI of Phillip Swall to the 14 Parties or attorneys who have filed an appearance in this litigation. 15 3. The Parties agree not to use or disclose the PHI released for this litigation for any 16 other purpose or in any other proceeding. 17 4. The Parties and their attorneys are permitted to use the PHI in any manner that is 18 reasonably connected with this litigation. This includes, but is not limited to, 19 disclosures to the Parties, their attorneys of record, the attorneys’ firms (i.e., 20 attorneys, support staff, agents, consultants), the Parties’ insurers, experts, 21 consultants, court personnel, court reporters, copy services, trial consultants, jurors, 22 venire members, and other entities involved in the litigation process. 23 5. This order shall not control or limit the use of what would otherwise be considered 24 PHI that comes into the possession of any Party or any Party’s attorney from a source 25 other than a covered entity. 26 6. The Parties agree to store all PHI while it is in their possession according to the 27 Privacy Standards. 1 appeals, all Parties that obtained PHI during the course of this litigation dispose of 2 that PHI pursuant to the Privacy Standards. 3 STIPULATED GENERAL PROTECTIVE ORDER 4 1. PURPOSE AND LIMITS OF THIS ORDER 5 Discovery in this action is likely to involve confidential, proprietary, or private 6 information requiring special protection from public disclosure and from use for any purpose 7 other than this litigation. Thus, the Court enters this Protective Order. This Order does not confer 8 blanket protections on all disclosures or responses to discovery, and the protection it gives from 9 public disclosure and use extends only to the specific material entitled to confidential treatment 10 under the applicable legal principles. This Order does not automatically authorize the filing 11 under seal of material designated under this Order. Instead, the parties must comply with L.R. 12 141 if they seek to file anything under seal. This Order does not govern the use at trial of 13 material designated under this Order. 14 2. DESIGNATING PROTECTED MATERIAL 15 2.1 Over-Designation Prohibited. Any party or non-party who designates information 16 or items for protection under this Order as “CONFIDENTIAL,” “HIGHLY CONFIDENTIAL – 17 ATTORNEY EYES ONLY,” or “HIGHLY CONFIDENTIAL – SOURCE CODE” (a 18 “designator”) must only designate specific material that qualifies under the appropriate 19 standards. To the extent practicable, only those parts of documents, items, or oral or written 20 communications that require protection shall be designated. Designations with a higher 21 confidentiality level when a lower level would suffice are prohibited. Mass, indiscriminate, or 22 routinized designations are prohibited. Unjustified designations expose the designator to 23 sanctions, including the Court’s striking all confidentiality designations made by that designator. 24 Designation under this Order is allowed only if the designation is necessary to protect material 25 that, if disclosed to persons not authorized to view it, would cause competitive or other 26 recognized harm. Material may not be designated if it has been made public, or if designation is 27 otherwise unnecessary to protect a secrecy interest. If a designator learns that information or 1 level of protection initially asserted, that designator must promptly notify all parties that it is 2 withdrawing the mistaken designation. 3 2.2 Manner and Timing of Designations. Designation under this Order requires the 4 designator to affix the applicable legend (“CONFIDENTIAL,” “HIGHLY CONFIDENTIAL – 5 ATTORNEY EYES ONLY,” or “HIGHLY CONFIDENTIAL – SOURCE CODE”) to each page 6 that contains protected material. For testimony given in deposition or other proceeding, the 7 designator shall specify all protected testimony and the level of protection being asserted. It may 8 make that designation during the deposition or proceeding, or may invoke, on the record or by 9 written notice to all parties on or before the next business day, a right to have up to 21 days from 10 the deposition or proceeding to make its designation. 11 2.2.1 A party or non-party that makes original documents or materials available 12 for inspection need not designate them for protection until after the inspecting party has 13 identified which material it would like copied and produced. During the inspection and 14 before the designation, all material shall be treated as HIGHLY CONFIDENTIAL – 15 ATTORNEY EYES ONLY. After the inspecting party has identified the documents it 16 wants copied and produced, the producing party must designate the documents, or 17 portions thereof, that qualify for protection under this Order. 18 2.2.2 Parties shall give advance notice if they expect a deposition or other 19 proceeding to include designated material so that the other parties can ensure that only 20 authorized individuals are present at those proceedings when such material is disclosed or 21 used. The use of a document as an exhibit at a deposition shall not in any way affect its 22 designation. Transcripts containing designated material shall have a legend on the title 23 page noting the presence of designated material, and the title page shall be followed by a 24 list of all pages (including line numbers as appropriate) that have been designated, and 25 the level of protection being asserted. The designator shall inform the court reporter of 26 these requirements. Any transcript that is prepared before the expiration of the 21-day 27 period for designation shall be treated during that period as if it had been designated 1 the expiration of the 21-day period, the transcript shall be treated only as actually 2 designated. 3 2.3 Inadvertent Failures to Designate. An inadvertent failure to designate does 4 not, standing alone, waive protection under this Order. Upon timely assertion or 5 correction of a designation, all recipients must make reasonable efforts to ensure that the 6 material is treated according to this Order. 7 3. CHALLENGING CONFIDENTIALITY DESIGNATIONS 8 All challenges to confidentiality designations shall proceed under L.R. 251. 9 4. ACCESS TO DESIGNATED MATERIAL 10 4.1 Basic Principles. A receiving party may use designated material only for this 11 litigation. Designated material may be disclosed only to the categories of persons and under the 12 conditions described in this Order. 13 4.2 Disclosure of CONFIDENTIAL Material Without Further Approval. Unless 14 otherwise ordered by the Court or permitted in writing by the designator, a receiving party may 15 disclose any material designated CONFIDENTIAL only to: 16 4.2.1 The receiving party’s outside counsel of record in this action and employees 17 of outside counsel of record to whom disclosure is reasonably necessary; 18 4.2.2 The officers, directors, and employees of the receiving party to whom 19 disclosure is reasonably necessary, and who have signed the Agreement to Be Bound 20 (Exhibit A); 21 4.2.3 Experts retained by the receiving party’s outside counsel of record to whom 22 disclosure is reasonably necessary, and who have signed the Agreement to Be Bound 23 (Exhibit A); 24 4.2.4 The Court and its personnel; 25 4.2.5 Outside court reporters and their staff, professional jury or trial consultants, 26 and professional vendors to whom disclosure is reasonably necessary, and who have 27 signed the Agreement to Be Bound (Exhibit A); 1 reasonably necessary and who have signed the Agreement to Be Bound (Exhibit A); and 2 4.2.7 The author or recipient of a document containing the material, or a custodian 3 or other person who otherwise possessed or knew the information. 4 4.3 Disclosure of HIGHLY CONFIDENTIAL – ATTORNEY EYES ONLY and 5 HIGHLY CONFIDENTIAL – SOURCE CODE Material Without Further Approval. 6 Unless permitted in writing by the designator, a receiving party may disclose material designated 7 HIGHLY CONFIDENTIAL – ATTORNEY EYES ONLY or HIGHLY CONFIDENTIAL – 8 SOURCE CODE without further approval only to: 9 4.3.1 The receiving party’s outside counsel of record in this action and employees 10 of outside counsel of record to whom it is reasonably necessary to disclose the 11 information; 12 4.3.2 The Court and its personnel; 13 4.3.3 Outside court reporters and their staff, professional jury or trial consultants, 14 and professional vendors to whom disclosure is reasonably necessary, and who have 15 signed the Agreement to Be Bound (Exhibit A); and 16 4.3.4 The author or recipient of a document containing the material, or a custodian 17 or other person who otherwise possessed or knew the information. 18 4.4 Procedures for Approving or Objecting to Disclosure of HIGHLY 19 CONFIDENTIAL – ATTORNEY EYES ONLY or HIGHLY CONFIDENTIAL – 20 SOURCE CODE Material to In-House Counsel or Experts. Unless agreed to in writing by 21 the designator: 22 4.4.1 A party seeking to disclose to in-house counsel any material designated 23 HIGHLY CONFIDENTIAL – ATTORNEY EYES ONLY must first make a written 24 request to the designator providing the full name of the in-house counsel, the city and 25 state of such counsel’s residence, and such counsel’s current and reasonably foreseeable 26 future primary job duties and responsibilities in sufficient detail to determine present or 27 potential involvement in any competitive decision-making. In-house counsel are not 1 CODE. 2 4.4.2 A party seeking to disclose to an expert retained by outside counsel of 3 record any information or item that has been designated HIGHLY CONFIDENTIAL – 4 ATTORNEY EYES ONLY or HIGHLY CONFIDENTIAL – SOURCE CODE must first 5 make a written request to the designator that (1) identifies the general categories of 6 HIGHLY CONFIDENTIAL – ATTORNEY EYES ONLY or HIGHLY 7 CONFIDENTIAL – SOURCE CODE information that the receiving party seeks 8 permission to disclose to the expert, (2) sets forth the full name of the expert and the city 9 and state of his or her primary residence, (3) attaches a copy of the expert’s current 10 resume, (4) identifies the expert’s current employer(s), (5) identifies each person or entity 11 from whom the expert has received compensation or funding for work in his or her areas 12 of expertise (including in connection with litigation) in the past five years, and (6) 13 identifies (by name and number of the case, filing date, and location of court) any 14 litigation where the expert has offered expert testimony, including by declaration, report, 15 or testimony at deposition or trial, in the past five years. If the expert believes any of this 16 information at (4) - (6) is subject to a confidentiality obligation to a third party, then the 17 expert should provide whatever information the expert believes can be disclosed without 18 violating any confidentiality agreements, and the party seeking to disclose the 19 information to the expert shall be available to meet and confer with the designator 20 regarding any such confidentiality obligations. 21 4.4.3 A party that makes a request and provides the information specified in 22 paragraphs 4.4.1 or 4.4.2 may disclose the designated material to the identified in-house 23 counsel or expert unless, within seven days of delivering the request, the party receives a 24 written objection from the designator providing detailed grounds for the objection. 25 4.4.4 All challenges to objections from the designator shall proceed under L.R. 26 251. 27 5. SOURCE CODE 1 designate it as HIGHLY CONFIDENTIAL – SOURCE CODE if it is, or includes, confidential, 2 proprietary, or trade secret source code. 3 5.2 Location and Supervision of Inspection. Any HIGHLY CONFIDENTIAL – 4 SOURCE CODE produced in discovery shall be made available for inspection, in a format 5 allowing it to be reasonably reviewed and searched, during normal business hours or at other 6 mutually agreeable times, at an office of the designating party’s counsel or another mutually 7 agreeable location. The source code shall be made available for inspection on a secured 8 computer in a secured room, and the inspecting party shall not copy, remove, or otherwise 9 transfer any portion of the source code onto any recordable media or recordable device. The 10 designator may visually monitor the activities of the inspecting party’s representatives during 11 any source code review, but only to ensure that there is no unauthorized recording, copying, or 12 transmission of the source code. 13 5.3 Paper Copies of Source Code Excerpts. The inspecting party may request paper 14 copies of limited portions of source code that are reasonably necessary for the preparation of 15 court filings, pleadings, expert reports, other papers, or for deposition or trial. The designator 16 shall provide all such source code in paper form, including Bates numbers and the label 17 “HIGHLY CONFIDENTIAL – SOURCE CODE.” 18 5.4 Access Record. The inspecting party shall maintain a record of any individual who 19 has inspected any portion of the source code in electronic or paper form, and shall maintain all 20 paper copies of any printed portions of the source code in a secured, locked area. The inspecting 21 party shall not convert any of the information contained in the paper copies into any electronic 22 format other than for the preparation of a pleading, exhibit, expert report, discovery document, 23 deposition transcript, or other Court document. Any paper copies used during a deposition shall 24 be retrieved at the end of each day and must not be left with a court reporter or any other 25 unauthorized individual. 26 6. PROSECUTION BAR 27 Absent written consent from the designator, any individual who receives access to HIGHLY 1 CODE information shall not be involved in the prosecution of patents or patent applications 2 concerning the field of the invention of the patents-in-suit for the receiving party or its acquirer, 3 successor, predecessor, or other affiliate during the pendency of this action and for one year after 4 its conclusion, including any appeals. “Prosecution” means drafting, amending, advising on the 5 content of, or otherwise affecting the scope or content of patent claims or specifications. These 6 prohibitions shall not preclude counsel from participating in reexamination or inter partes review 7 proceedings to challenge or defend the validity of any patent, but counsel may not participate in 8 the drafting of amended claims in any such proceedings. 9 7. PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED IN 10 OTHER LITIGATION 11 7.1 Subpoenas and Court Orders. This Order in no way excuses noncompliance with a 12 lawful subpoena or court order. The purpose of the duties described in this section is to alert the 13 interested parties to the existence of this Order and to give the designator an opportunity to 14 protect its confidentiality interests in the court where the subpoena or order issued. 15 7.2 Notification Requirement. If a party is served with a subpoena or a court order 16 issued in other litigation that compels disclosure of any information or items designated in this 17 action as CONFIDENTIAL, HIGHLY CONFIDENTIAL – ATTORNEY EYES ONLY, or 18 HIGHLY CONFIDENTIAL – SOURCE CODE, that party must: 19 7.2.1 Promptly notify the designator in writing. Such notification shall include a 20 copy of the subpoena or court order; 21 7.2.2 Promptly notify in writing the party who caused the subpoena or order to 22 issue in the other litigation that some or all of the material covered by the subpoena or 23 order is subject to this Order. Such notification shall include a copy of this Order; and 24 7.2.3 Cooperate with all reasonable procedures sought by the designator whose 25 material may be affected. 26 7.3 Wait For Resolution of Protective Order. If the designator timely seeks a protective order, 27 the party served with the subpoena or court order shall not produce any information designated 1 HIGHLY CONFIDENTIAL – SOURCE CODE before a determination by the court where the 2 subpoena or order issued, unless the party has obtained the designator’s permission. The 3 designator shall bear the burden and expense of seeking protection of its confidential material in 4 that court. 5 8. UNAUTHORIZED DISCLOSURE OF DESIGNATED MATERIAL 6 If a receiving party learns that, by inadvertence or otherwise, it has disclosed designated material 7 to any person or in any circumstance not authorized under this Order, it must immediately (1) 8 notify in writing the designator of the unauthorized disclosures, (2) use its best efforts to retrieve 9 all unauthorized copies of the designated material, (3) inform the person or persons to whom 10 unauthorized disclosures were made of all the terms of this Order, and (4) use reasonable efforts 11 to have such person or persons execute the Agreement to Be Bound (Exhibit A). 12 9. INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE 13 PROTECTED MATERIAL 14 When a producing party gives notice that certain inadvertently produced material is subject to a 15 claim of privilege or other protection, the obligations of the receiving parties are those set forth 16 in Federal Rule of Civil Procedure 26(b)(5)(B). This provision is not intended to modify 17 whatever procedure may be established in an e-discovery order that provides for production 18 without prior privilege review pursuant to Federal Rule of Evidence 502(d) and (e). 19 10. FILING UNDER SEAL 20 Without written permission from the designator or a Court order, a party may not file in the 21 public record in this action any designated material. A party seeking to file under seal any 22 designated material must comply with L.R. 141. Filings may be made under seal only pursuant to 23 a court order authorizing the sealing of the specific material at issue. The fact that a document 24 has been designated under this Order is insufficient to justify filing under seal. Instead, parties 25 must explain the basis for confidentiality of each document sought to be filed under seal. 26 Because a party other than the designator will often be seeking to file designated material, 27 cooperation between the parties in preparing, and in reducing the number and extent of, requests 1 seal pursuant to L.R. 141 is denied by the Court, then the receiving party may file the material 2 in the public record unless (1) the designator seeks reconsideration within four days of the 3 denial, or (2) as otherwise instructed by the Court. 4 11. FINAL DISPOSITION 5 Within 60 days after the final disposition of this action, each party shall return all designated 6 material to the designator or destroy such material, including all copies, abstracts, compilations, 7 summaries, and any other format reproducing or capturing any designated material. The 8 receiving party must submit a written certification to the designator by the 60-day deadline that 9 (1) identifies (by category, where appropriate) all the designated material that was returned or 10 destroyed, and (2) affirms that the receiving party has not retained any copies, abstracts, 11 compilations, summaries, or any other format reproducing or capturing any of the designated 12 material. This provision shall not prevent counsel from retaining an archival copy of all 13 pleadings, motion papers, trial, deposition, and hearing transcripts, legal memoranda, 14 correspondence, deposition and trial exhibits, expert reports, attorney work product, and 15 consultant and expert work product, even if such materials contain designated material. Any such 16 archival copies remain subject to this Order. 17 EXHIBIT A 18 AGREEMENT TO BE BOUND 19 I, _____________________________ [print or type full name], of 20 _________________ [print or type full address], declare under penalty of perjury that I have 21 read in its entirety and understand the Protective Order that was issued by the United States 22 District Court for the Eastern District of California on _______ [date] in the case of North 23 American Company for Life and Health Insurance v. Michelle Swall, Case No. 1:20-cv-00384- 24 NONE-SAB. I agree to comply with and to be bound by all the terms of this Protective Order, 25 and I understand and acknowledge that failure to so comply could expose me to sanctions and 26 punishment for contempt. I solemnly promise that I will not disclose in any manner any 27 information or item that is subject to this Protective Order to any person or entity except in strict 1 I further agree to submit to the jurisdiction of the United States District Court for the Eastern 2 District of California for the purpose of enforcing this Order, even if such enforcement 3 proceedings occur after termination of this action. 4 I hereby appoint __________________________ [print or type full name] of 5 _______________________________________ [print or type full address and telephone 6 number] as my California agent for service of process in connection with this action or any 7 proceedings related to enforcement of this Order. 8 Date: ___________________________ 9 City and State where sworn and signed: _________________________________ 10 Printed name: ____________________ 11 [printed name] 12 Signature: _______________________ 13 [signature] 14 /// 15 /// 16 /// 17 /// 18 /// 19 /// 20 /// 21 /// 22 /// 23 /// 24 /// 25 /// 26 /// 27 /// wOAOe □□□ □□□ MMIVUO eIe VI A 1 ORDER ENTERING STIPULATED PROTECTIVE ORDERS 2 Pursuant to the stipulation of the parties, IT IS HEREBY ORDERED that: 3 1. The above stipulated protective orders are 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 18 | Dated: _ September 15, 2020 9 UNITED STATES MAGISTRATE JUDGE 20 21 22 23 24 25 26 27 28