Mazik v. Kaiser Permanente, Inc. ( 2023 )

1 DIMITRI D. PORTNOI (S.B. # 282871) POLLOCK COHEN LLP dportnoi@omm.com Christopher K. Leung, CA Bar No. 210325 2 KYLE M. GROSSMAN (S.B. #313952) Adam Pollock (pro hac vice) 3 kgrossman@omm.com 201 Spear Street, Suite 1100 O’MELVENY & MYERS LLP San Francisco, CA 94105 4 400 S. Hope Street, 18th Floor Tel: (415) 825-8500 Los Angeles, California 90071 Email: Adam@PollockCohen.com 5 Telephone: (213) 430-6000 Facsimile: (213) 430-6407 LAW OFFICE OF JEREMY L. FRIEDMAN 6 Jeremy L. Friedman, CA Bar No. 142659 7 Attorneys for Defendants Kaiser Foundation 2801 Sylhowe Road Health Plan, Inc.; Kaiser Foundation Oakland, CA 94610 8 Hospitals; The Permanente Medical Group, Tel: (510) 530-9060 Inc.; Southern California Permanente Medical Email: jlfried@comcast.net 9 Group; and Colorado Permanente Medical Group, P.C. Attorneys for Plaintiff-Relator, Jeffrey Mazik 10 11 12 13 UNITED STATES DISTRICT COURT 14 EASTERN DISTRICT OF CALIFORNIA 15 16 UNITED STATES OF AMERICA et al. ex rel. Case No. 2:19-cv-0559-DAD-KJN 17 JEFFREY MAZIK, JOINT STIPULATION AND 18 Plaintiffs, PROTECTIVE ORDER GOVERNING TREATMENT OF PROTECTED 19 v. MATERIAL 20 KAISER FOUNDATION HEALTH PLAN, 21 INC. et al., 22 Defendants. 23 24 25 26 27 28 1 1. PURPOSES AND LIMITATIONS 2 Disclosure and discovery activity in this action is likely to involve production of 3 confidential information, proprietary information, Personally Identifiable Information, Protected 4 Health Information, and certain other private information for which special protection from public 5 disclosure and from use for any purpose other than prosecuting this action may be warranted. 6 Accordingly, the Parties hereby stipulate to and petition the Court to enter the following Stipulated 7 Protective Order. The Parties acknowledge that this Stipulated Protective Order does not confer 8 blanket protections on all disclosures or responses to discovery and that the protection it affords 9 from public disclosure and use extends only to the limited information or items that are entitled to 10 confidential treatment under the applicable legal principles. 11 The Parties further acknowledge, as set forth in Section 13.3, below, that this Stipulated 12 Protective Order does not entitle them to file confidential information under seal; Civil Local Rule 13 141 sets forth the procedures that must be followed and the standards that will be applied when a 14 Party seeks permission from the Court to file material under seal. 15 2. DEFINITIONS 16 2.1 Challenging Party: a Party that challenges the designation of information or items 17 under this Stipulated Protective Order. 18 2.2 Counsel (without qualifier): Outside Counsel and House Counsel (as well as their 19 support staff). 20 2.3 Designating Party: a Party or Non-Party that designates information or items that it 21 produces in disclosures or in responses to discovery as “CONFIDENTIAL,” “ATTORNEYS’ 22 EYES ONLY,” or “HIGHLY CONFIDENTIAL.” 23 2.4 Disclosures or Discovery Material: any and all produced materials, including 24 documents, data, information, electronically-stored information (“ESI”) and tangible things in the 25 broadest sense contemplated by the Federal Rules of Civil Procedure, and shall include all written, 26 oral, recorded, electronic, or graphic material, however produced or reproduced, including, but not 27 limited to all written or printed matter of any kind, computer data of any kind, graphic or manual 28 records or representations of any kind, and electronic, or mechanical records produced or provided 1 in the course of this action by the Parties subject to this Stipulated Protective Order, and Non- 2 Parties subject to this Stipulated Protective Order, including materials obtained by Relator, 3 deposition testimony and exhibits thereto, deposition transcripts or videos, and answers and 4 responses to interrogatories, answers and responses to requests for production or admissions, and 5 answers and responses to other discovery requests and subpoenas. 6 2.5 Expert: a person with specialized knowledge or experience in a matter pertinent to 7 the litigation of this action who has been retained by a Party or its Counsel to serve as an expert 8 witness or as a consultant in this action. 9 2.6 House Counsel: attorneys who are employees of a Party to this action. 10 2.7 Non-Party: any natural person, partnership, corporation, association, or other legal 11 entity that is not named as a Party to this action and is not otherwise owned, operated or controlled, 12 in whole or in part, by a Party to this action. 13 2.8 Outside Counsel: attorneys and personnel from outside law firms that the Parties 14 have engaged to represent or advise in this action and have appeared in this action. 15 2.9 Party: any party to this action, including all of its officers, directors, employees, 16 consultants, retained experts, and Outside Counsel, including their support staff. 17 2.10 Personally Identifiable Information or PII: Social Security numbers, tax 18 identification numbers, birth dates, and financial account numbers for which redacted filings are 19 permitted by Rule 5.2 of the Federal Rules of Civil Procedure. 20 2.11 Producing Party: a Party or Non-Party that produces Disclosures or Discovery 21 Material in this action. 22 2.12 Protected Health Information or PHI: certain individually identifiable health 23 information (defined as health information that is connected to a patient’s name, address, Social 24 Security number, or other identifying number, including HIC number) that may be subject to the 25 Privacy Act, 5 U.S.C. § 552a, to the provisions of 45 C.F.R. §§ 164.102-164.534, to the provisions 26 of 42 U.S.C. § 1306, or for which there may be no waiver by the patient to disclose the information 27 to a person who or entity which is not a Party to the above-captioned action. The Parties or Non- 28 Parties may produce PHI in accordance with this Stipulated Protective Order pursuant to their 1 obligations to make disclosures under Federal Rule of Civil Procedure 26(a) and in response to 2 discovery requests in this action. All individually identifiable health information shall be designated 3 “CONFIDENTIAL” and may be used and/or disclosed in accordance with the terms of this 4 Stipulated Protective Order and 45 C.F.R. § 164.512(e)(1)(v). 5 2.13 Professional Vendors: persons or entities that provide litigation support services 6 (e.g., photocopying, videotaping, translating, preparing exhibits or demonstrations, and organizing, 7 storing, or retrieving data in any form or medium) and their employees and subcontractors. 8 2.14 Proprietary Information: information not already publicly available that constitutes: 9 (a) any information subject to protection under the Privacy Act, 5 U.S.C. § 552a, or the Trade 10 Secrets Act, 18 U.S.C. § 1905; (b) trade secret or other confidential research, development, or 11 commercial information entitled to protection under Federal Rule of Civil Procedure 26(c)(1)(G); 12 or (c) any other information subject to a sealing in the above-captioned action pursuant to Civil 13 Local Rule 141. 14 2.15 Protected Material: any Disclosures or Discovery Material that is designated as 15 “CONFIDENTIAL,” “ATTORNEYS’ EYES ONLY,” or “HIGHLY CONFIDENTIAL.” 16 2.16 Receiving Party: a Party that receives Disclosures or Discovery Material from a 17 Producing Party. 18 2.17 Information designated as “CONFIDENTIAL” pursuant to this Stipulated 19 Protective Order (hereinafter “Confidential Information”) includes Disclosures or Discovery 20 Material that contains PII, PHI, or Proprietary Information, and shall be treated in accordance with 21 Paragraph 7.2 and other paragraphs of this Stipulated Protective Order. 22 2.18 Information designated as “ATTORNEYS’ EYES ONLY” pursuant to this 23 Stipulated Protective Order (hereinafter “Attorneys’ Eyes Only Information”) includes Disclosures 24 or Discovery Material that (a) constitutes Proprietary Information and (b) the Designating Party 25 believes in good faith to be extremely confidential and/or extremely sensitive in nature, and shall 26 be treated in accordance with Paragraph 7.3 and other paragraphs of this Stipulated Protective 27 Order. 28 2.19 Information designated as “HIGHLY CONFIDENTIAL” pursuant to this Stipulated 1 Protective Order (hereinafter “Highly Confidential Information”) includes Disclosures or 2 Discovery Material that (a) constitutes Proprietary Information, (b) the Designating Party believes 3 in good faith to be extremely confidential and/or extremely sensitive in nature, and (c) relates to 4 the Medicare Advantage bid process or other competitively sensitive information, and shall be 5 treated in accordance with Paragraph 7.4 and other paragraphs of this Stipulated Protective Order. 6 3. SCOPE 7 The Court finds that this Stipulated Protective Order is a “qualified protective order” within 8 the meaning of 45 C.F.R. § 164.512(e)(1)(v). The protections conferred by this Stipulated 9 Protective Order cover not only Protected Material (as defined in Paragraph 2.15), but also (1) any 10 information copied or extracted from Protected Material; (2) all copies, excerpts, summaries, or 11 compilations of Protected Material; and (3) any testimony, conversations, or presentations by 12 Parties, Non-Parties, or their Counsel that might reveal Protected Material. However, the 13 protections conferred by this Stipulated Protective Order do not cover the following information: 14 (a) any information that is in the public domain at the time of disclosure to a Receiving Party or 15 becomes part of the public domain after its disclosure to a Receiving Party as a result of publication 16 not involving a violation of this Stipulated Protective Order, including becoming part of the public 17 record through trial or otherwise; and (b) any information known to the Receiving Party prior to 18 the disclosure or obtained by the Receiving Party after the disclosure from a source who obtained 19 the information lawfully and under no obligation of confidentiality to the Designating Party. Any 20 use of Protected Material at trial shall be governed by a separate agreement or order that the Parties 21 will propose for the Court’s consideration. 22 4. DURATION 23 Even after final disposition of the litigation of this action, the confidentiality obligations 24 imposed by this Stipulated Protective Order shall continue to be binding upon all persons or entities 25 who are subject to the terms hereof (including former employees of any Party or Non-Party who 26 received Confidential Information, Attorneys’ Eyes Only Information, or Highly Confidential 27 Information) until a Designating Party agrees otherwise in writing or a Court order otherwise 28 directs. For purposes of this Stipulated Protective Order, final disposition shall be deemed to be the 1 later of (1) dismissal of all claims and defenses in this action, with or without prejudice; and (2) 2 final 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. The Court shall retain continuing jurisdiction in order 5 to enforce the terms of this Stipulated Protective Order. 6 5. DESIGNATING PROTECTED MATERIAL 7 5.1 Exercise of Restraint and Care in Designating Material for Protection. Each Party 8 or Non-Party that designates information or items for protection under this Stipulated Protective 9 Order must take care to limit any such designation to specific material that qualifies under the 10 appropriate standards. 11 5.2 Manner and Timing of Designations. Except as otherwise provided in this Stipulated 12 Protective Order, such as the inadvertent disclosure exceptions provided in Paragraph 5.4, or as 13 otherwise stipulated or ordered, Disclosures or Discovery Material that qualifies for protection 14 under this Stipulated Protective Order must be clearly so designated before the material is disclosed 15 or produced. Designation in conformity with this Stipulated Protective Order requires: 16 (a) Documents. 17 (1) for information in documentary form that allows endorsements or similar 18 designation on the image (e.g., paper or electronic documents, but excluding transcripts of 19 depositions or other pretrial or trial proceedings), the Producing Party shall mark each page of a 20 document asserted to contain Confidential Information, Attorneys’ Eyes Only Information, or 21 Highly Confidential Information. The Producing Party shall affix the legend “CONFIDENTIAL” 22 for those documents that contain Confidential Information as defined in Paragraph 2.17. The 23 Producing Party shall affix the legend “ATTORNEYS’ EYES ONLY” for those documents that 24 contain Attorneys’ Eyes Only Information as defined in Paragraph 2.18. The Producing Party shall 25 affix the legend “HIGHLY CONFIDENTIAL” for those documents that contain Highly 26 Confidential Information as defined in Paragraph 2.19. 27 (2) for electronic information that is provided in native form or a format that is not 28 amenable to visible endorsement on the image, the designation of Confidential Information shall 1 be made by affixing the legend “CONFIDENTIAL” on the slip-sheet for the document, the 2 designation of Attorneys’ Eyes Only Information shall be made by affixing the legend 3 “ATTORNEYS’ EYES ONLY” on the slip-sheet for the document, and the designation of Highly 4 Confidential Information shall be made by affixing the legend “HIGHLY CONFIDENTIAL” on 5 the slip-sheet for the document. The metadata for the document shall also reflect its confidential 6 status. The media on which the Confidential Information, Attorneys’ Eyes Only Information, or 7 Highly Confidential Information is provided (e.g., CD, DVD, external hard drive) also shall be and 8 remain plainly labeled with “CONFIDENTIAL,” “ATTORNEYS’ EYES ONLY,” and/or 9 “HIGHLY CONFIDENTIAL,” as appropriate (unless and until the protection of the data within 10 the media is removed). Any copying or transferring of electronic files that are designated as 11 Confidential Information, Attorneys’ Eyes Only Information, or Highly Confidential Information 12 must be done in a manner that maintains the protection for all copies. 13 (b) Interrogatory Answers and Responses to Requests for Production or Admission. The 14 Producing Party shall designate Confidential Information contained in interrogatory answers or 15 responses to requests for production or admission by placing before the answer or response: “The 16 following response is ‘CONFIDENTIAL.’” The Producing Party shall designate Attorneys’ Eyes 17 Only Information contained in interrogatory answers or responses to requests for production or 18 admission by placing before the answer or response: “The following response is ‘ATTORNEYS’ 19 EYES ONLY.’” The Producing Party shall designate Highly Confidential Information contained 20 in interrogatory answers or responses to requests for production or admission by placing before the 21 answer or response: “The following response is ‘HIGHLY CONFIDENTIAL.’” Only that part of 22 the answer or response that contains Confidential Information, Attorneys’ Eyes Only Information, 23 or Highly Confidential Information shall be so designated and the Producing Party shall highlight 24 the Confidential Information, Attorneys’ Eyes Only Information, or Highly Confidential 25 Information to show what specific information constitutes Confidential Information, Attorneys’ 26 Eyes Only Information, or Highly Confidential Information. 27 (c) Deposition Testimony. Subject to the requirements of Paragraphs 7.2-7.4 below, 28 during a deposition, the parties may show deponents Disclosures or Discovery Material that has 1 been designated as Confidential Information, Attorneys’ Eyes Only Information, or Highly 2 Confidential Information. Portions of testimony at a deposition may be designated by any Party or 3 Non-Party as Confidential Information, Attorneys’ Eyes Only Information, or Highly Confidential 4 Information by indicating on the record at the deposition that the testimony is confidential and 5 subject to the provisions of this Stipulated Protective Order and the reasons for the assertion. 6 Additionally and alternatively, any Party or Non-Party may also designate information disclosed at 7 a deposition as Confidential Information, Attorneys’ Eyes Only Information, or Highly 8 Confidential Information by notifying all counsel in writing within thirty (30) calendar days of 9 receipt of the official deposition transcript or copy thereof (or written notification that the transcript 10 is available), listing the specific pages and lines of the transcript and/or any exhibits that should be 11 treated as Confidential Information, Attorneys’ Eyes Only Information, or Highly Confidential 12 Information. After a Party or Non-Party designates a portion of a deposition transcript as 13 Confidential Information, the front of the original and each copy of the deposition transcript shall 14 be marked: “This deposition transcript includes CONFIDENTIAL INFORMATION SUBJECT TO 15 PROTECTIVE ORDER.” After a Party or Non-Party designates a portion of a deposition transcript 16 as Attorneys’ Eyes Only Information, the front of the original and each copy of the deposition 17 transcript shall be marked: “This deposition transcript includes ATTORNEYS’ EYES ONLY 18 INFORMATION SUBJECT TO PROTECTIVE ORDER.” After a Party or Non-Party designates 19 a portion of a deposition transcript as Highly Confidential Information, the front of the original and 20 each copy of the deposition transcript shall be marked: “This deposition transcript includes 21 HIGHLY CONFIDENTIAL INFORMATION SUBJECT TO PROTECTIVE ORDER.” If such 22 deposition was videotaped, both the recording storage medium (i.e., CD or DVD) and its container 23 shall also be labeled: “This deposition transcript includes CONFIDENTIAL INFORMATION 24 SUBJECT TO PROTECTIVE ORDER,” “This deposition transcript includes ATTORNEYS’ 25 EYES ONLY INFORMATION SUBJECT TO PROTECTIVE ORDER,” and/or “This deposition 26 transcript includes HIGHLY CONFIDENTIAL INFORMATION SUBJECT TO PROTECTIVE 27 ORDER,” as appropriate. Only those portions of the deposition transcript that are designated as 28 containing Confidential Information, Attorneys’ Eyes Only Information, or Highly Confidential 1 Information shall be governed by this Stipulated Protective Order. 2 (d) Pre-Production Inspection. A Party or Non-Party that makes original documents or 3 materials available for inspection need not designate them for protection until after the inspecting 4 Party has indicated which material it would like copied and produced. During the inspection and 5 before the designation, all of the material made available for inspection shall be deemed “HIGHLY 6 CONFIDENTIAL.” After the inspecting Party has identified the documents it wants copied and 7 produced, the Producing Party must determine which documents, or portions thereof, qualify for 8 protection under this Order. Then, before producing the specified documents, the Producing Party 9 must affix the “CONFIDENTIAL,” “ATTORNEYS’ EYES ONLY,” or “HIGHLY 10 CONFIDENTIAL” legend to each page of a document containing Protected Material. 11 5.3 Documents or Information Obtained From Non-Parties. Documents or information 12 produced by a Non-Party or testimony provided by a Non-Party may be designated by the Non- 13 Party as Confidential Information, Attorneys’ Eyes Only Information, or Highly Confidential 14 Information in accordance with all of the terms and conditions of this Stipulated Protective Order. 15 5.4 Failures to Designate. A failure to designate qualified information or items does not, 16 standing alone, waive the Designating Party’s right to secure protection under this Stipulated 17 Protective Order for such material. Upon correction of a designation, the Receiving Party must 18 make reasonable efforts to assure that the material is treated in accordance with the provisions of 19 this Stipulated Protective Order. In the event that Disclosures or Discovery Material are or have 20 been produced without being marked “CONFIDENTIAL,” “ATTORNEYS’ EYES ONLY,” or 21 “HIGHLY CONFIDENTIAL,” the Designating Party may notify the Receiving Party of the 22 appropriate confidentiality designation and produce a metadata overlay, new hard copy, images, or 23 slip-sheets, as applicable, reflecting the appropriate confidentiality designation. Upon receipt of 24 any such reproductions, the Receiving Party shall thereafter preserve such reproduced Disclosures 25 or Discovery Material in accordance with this Stipulated Protective Order, including preserving the 26 material in compliance with Paragraphs 7.2-7.4 of this Stipulated Protective Order. If prior to 27 receiving such notice from the Designating Party, the Receiving Party has disclosed Confidential 28 Information, Attorneys’ Eyes Only Information, or Highly Confidential Information to a Non-Party 1 not identified in Paragraphs 7.2-7.4, the Receiving Party shall promptly take reasonable steps to 2 retrieve all copies of the Confidential Information, Attorneys’ Eyes Only Information, or Highly 3 Confidential Information from the Non-Party and notify the Non-Party that the material remains 4 subject to this Stipulated Protective Order. The Receiving Party shall notify the Designating Party 5 of this disclosure and the efforts to recover the Confidential Information, Attorneys’ Eyes Only 6 Information, or Highly Confidential Information. 7 5.5. Proprietary Information. For Documents containing Proprietary Information 8 designated as Confidential, Attorneys’ Eyes Only, or Highly Confidential, the production of 9 documents in this case by a Party or Non-Party shall not be construed as waiving or diminishing 10 the interests of the Party or Non-Party in and rights to the confidentiality of Proprietary Information. 11 5.6. PII, PHI, and Proprietary Information. Parties, Outside Counsel, and Non-Parties 12 that receive information exchanged in this action have a responsibility to protect information 13 containing PII, PHI, and Proprietary Information in accordance with this Stipulated Protective 14 Order and applicable law even if the information is not designated as Confidential Information. 15 6. CHALLENGING CONFIDENTIALITY DESIGNATIONS 16 6.1 Timing of Challenges. Any Party may challenge a designation of Disclosures or 17 Discovery Material as Confidential Information, Attorneys’ Eyes Only Information, or Highly 18 Confidential Information at any time. A Party does not waive its right to challenge a confidentiality 19 designation by electing not to mount a challenge promptly after the original designation is 20 disclosed. 21 6.2 Meet and Confer. The Challenging Party shall initiate the dispute resolution process 22 by providing written notice of each designation that it is challenging and describing the basis for 23 each challenge. To avoid ambiguity as to whether a challenge has been made, the written notice 24 must recite that the challenge to confidentiality is being made in accordance with this specific 25 paragraph of the Stipulated Protective Order. The Challenging and Designating Parties shall 26 attempt to resolve each challenge in good faith through a prompt meet and confer. In conferring, 27 the Challenging Party must explain the basis for its belief that the confidentiality designation was 28 not proper and must give the Designating Party an opportunity to review the designated material, 1 to reconsider the circumstances, and, if no change in designation is offered, to explain the basis for 2 the chosen designation. A Challenging Party may proceed to the next stage of the challenge process 3 only if it has engaged in this meet and confer process first or establishes that the Designating Party 4 is unwilling to participate in the meet and confer process in a timely manner. 5 6.3 Judicial Intervention. The Challenging Party may file a motion challenging a 6 confidentiality designation at any time if there is good cause for doing so, including a challenge to 7 the designation of a deposition transcript or any portions thereof. Any motion brought pursuant to 8 this provision must be accompanied by a competent declaration affirming that the movant has 9 complied with the meet and confer requirements imposed by the preceding paragraph. The burden 10 of persuasion in any such challenge proceeding shall be on the Designating Party. The Parties shall 11 refrain from making frivolous challenges and those made for an improper purpose (e.g., to harass 12 or impose unnecessary expenses and burdens on other parties). Unless the Designating Party has 13 waived the confidentiality designation, all Parties and Non-Parties shall continue to afford the 14 material in question the level of protection to which it is entitled under the Producing Party’s 15 designation until the Court rules on the challenge. If it is determined that the material in question 16 should no longer be designated as Confidential Information, Attorneys’ Eyes Only Information, or 17 Highly Confidential Information, or if the Designating Party at any time withdraws the designation, 18 the Designating Party shall promptly provide all other Parties with a metadata overlay, replacement 19 documents, files, or information free from any markings or designations as Confidential 20 Information, Attorneys’ Eyes Only Information, or Highly Confidential Information, as 21 appropriate. The replacement versions shall be provided in the same format as the information that 22 is to be replaced, unless otherwise agreed to by the Parties or Non-Parties. The presumptive time 23 for providing the replacement information shall be fifteen (15) calendar days from the Court’s 24 ruling or the Designating Party’s withdrawal of the designation. 25 7. ACCESS TO AND USE OF PROTECTED MATERIAL 26 7.1 Basic Principles. A Receiving Party may use Protected Material that is disclosed or 27 produced by another Party or by a Non-Party in connection with this action only for prosecuting, 28 defending, or attempting to settle this action. Such Protected Material may be disclosed only to the 1 categories of persons and under the conditions described in this Stipulated Protective Order. When 2 the action has been terminated, a Receiving Party must comply with the provisions of Section 14 3 below. Protected Material must be stored and maintained by a Receiving Party at a location and in 4 a secure manner that ensures that access is limited to the persons authorized under this Stipulated 5 Protective Order. 6 7.2 Disclosure of Confidential Information or Items. Unless otherwise ordered by the 7 Court or permitted in writing by the Designating Party, a Receiving Party may disclose any 8 information or item designated “CONFIDENTIAL” only to: 9 (a) the Receiving Party’s Outside Counsel in this action, as well as associated personnel 10 assisting counsel in this action to whom it is reasonably necessary to disclose the information for 11 the litigation of this action, such as paralegals, contract attorneys, litigation support, information 12 technology, information or records management, investigative, secretarial, or clerical personnel, as 13 well as associated personnel assisting counsel in this action to whom it is reasonably necessary to 14 disclose the information for the litigation of this action, provided that each is advised of the terms 15 of this Stipulated Protective Order and his or her obligation under the Stipulated Protective Order 16 to keep the Protected Material confidential; 17 (b) the officers, directors, and employees (including House Counsel) of the Receiving 18 Party to whom disclosure is reasonably necessary for the litigation of this action, provided that each 19 is first advised of the terms of this Stipulated Protective Order and his or her obligation under the 20 Stipulated Protective Order to keep the Protected Material confidential; 21 (c) Experts of the Receiving Party to whom disclosure is reasonably necessary for the 22 litigation of this action and who have signed the “Acknowledgment and Agreement to Be Bound” 23 (Exhibit A); 24 (d) the Court and its personnel; 25 (e) court reporters, their staff, and Professional Vendors to whom disclosure is 26 reasonably necessary for the litigation of this action and who have signed the “Acknowledgment 27 and Agreement to Be Bound” (Exhibit A); 28 (f) any Non-Party witness (i.e., a witness who is not an agent or representative of or 1 employed by a Party to this action) who is preparing to testify or who testifies at a deposition or 2 hearing in this action concerning documents or information designated as subject to this Stipulated 3 Protective Order, and legal counsel retained by such Non-Party witness, provided that such Non- 4 Party witness is first advised of the terms of this Stipulated Protective Order and his or her 5 obligation under this Stipulated Protective Order to keep the Protected Material confidential and 6 who has signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A); 7 (g) any Non-Party individual interviewed by a Party’s legal counsel in connection with 8 this action, provided that any such Non-Party is first advised of the terms of this Stipulated 9 Protective Order and his or her obligation under this Stipulated Protective Order to keep the 10 Protected Material confidential and who has signed the “Acknowledgment and Agreement to Be 11 Bound” (Exhibit A); 12 (h) the author or recipient of a document, with respect to that document; 13 (i) a current employee of a Designating Party or of an affiliate of a Designating Party, 14 with respect to information or items produced by that Designating Party, during testimony of such 15 person at a deposition or hearing; and 16 (j) any private mediators and their employees used in this action, provided that each is 17 first advised of the terms of this Stipulated Protective Order and his or her obligation under the 18 Stipulated Protective Order to keep the Protected Material confidential. 19 The procedures for maintaining the confidentiality of Confidential Information during 20 any hearing or trial in this action shall be determined by the Parties and the Court in advance of the 21 hearing or trial. 22 7.3 Disclosure of Attorneys’ Eyes Only Information or Items. Unless otherwise ordered 23 by the Court or permitted in writing by the Designating Party, a Receiving Party may disclose any 24 information or item designated “ATTORNEYS’ EYES ONLY” only to: 25 (a) those persons described in sub-paragraphs (a), (c), (d), (e), (i), and (j) of Paragraph 26 7.2 of this Stipulated Protective Order; 27 (b) House Counsel from the Receiving Party not otherwise covered in paragraph 7.3(a) 28 of this Stipulated Protective Order who have responsibilities in connection with litigating this 1 action, provided that such persons (i) are first advised of the terms of this Stipulated Protective 2 Order and their obligation under this Stipulated Protective Order to keep the Protected Material 3 confidential, (ii) have signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A), and 4 (iii) shall view “ATTORNEYS’ EYES ONLY” documents only remotely on a server hosted by the 5 Receiving Party’s Outside Counsel and its vendors and may not copy, download, or otherwise 6 receive or possess such documents; and 7 (c) those persons described in sub-paragraph (h) of Paragraph 7.2 of this Stipulated 8 Protective Order not otherwise covered in Paragraph 7.3(a) of this Stipulated Protective Order, 9 provided that such persons (i) do not retain copies of the materials designated “ATTORNEYS’ 10 EYES ONLY,” (ii) are first advised of the terms of this Stipulated Protective Order and his or her 11 obligation under this Stipulated Protective Order to keep the “ATTORNEYS’ EYES ONLY” 12 documents confidential, and (iii) have signed the “Acknowledgment and Agreement to Be Bound” 13 (Exhibit A). 14 The procedures for maintaining the confidentiality of Attorneys’ Eyes Only Information 15 during any hearing or trial in this action shall be determined by the Parties and the Court in advance 16 of the hearing or trial. 17 7.4 Disclosure of Highly Confidential Information or Items. Unless otherwise ordered 18 by the Court or permitted in writing by the Designating Party, a Receiving Party may disclose any 19 information or item designated “HIGHLY CONFIDENTIAL” only to: 20 (a) those persons described in sub-paragraphs (a), (c), (d), (e), (i), and (j) of Paragraph 21 7.2 of this Stipulated Protective Order; 22 (b) House Counsel; and 23 (c) those persons described in sub-paragraph (h) of Paragraph 7.2 of this Stipulated 24 Protective Order not otherwise covered in Paragraph 7.4(a) of this Stipulated Protective Order, 25 provided that such persons (i) do not retain copies of the materials designated “HIGHLY 26 CONFIDENTIAL,” (ii) are first advised of the terms of this Stipulated Protective Order and his or 27 her obligation under this Stipulated Protective Order to keep the “HIGHLY CONFIDENTIAL” 28 documents confidential, and (iii) have signed the “Acknowledgment and Agreement to Be Bound” 1 (Exhibit A). 2 The procedures for maintaining the confidentiality of Highly Confidential Information 3 during any hearing or trial in this action shall be determined by the Parties and the Court in advance 4 of the hearing or trial. 5 8. PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED IN OTHER 6 LITIGATION 7 If a Party is served with a subpoena or a court order issued in other litigation that compels 8 disclosure of any information or items designated in this action as “CONFIDENTIAL,” 9 “ATTORNEYS’ EYES ONLY,” or “HIGHLY CONFIDENTIAL,” that Party must: 10 (a) promptly notify in writing the Designating Party. Such notification shall include a 11 copy of the subpoena or court order; 12 (b) promptly notify in writing the party who caused the subpoena or order to issue in the 13 other litigation that some or all of the material covered by the subpoena or order is subject to this 14 Stipulated Protective Order. Such notification shall include a copy of this Stipulated Protective 15 Order; and 16 (c) cooperate with respect to all reasonable procedures sought to be pursued by the 17 Designating Party whose Protected Material may be affected. 18 If the Designating Party timely seeks a protective order, the Party served with the subpoena 19 or court order shall not produce any information designated in this action as “CONFIDENTIAL,” 20 “ATTORNEYS’ EYES ONLY,” or “HIGHLY CONFIDENTIAL,” before a determination by the 21 court from which the subpoena or order issued, unless the Party has obtained the Designating 22 Party’s permission. The Designating Party shall bear the burden and expense of seeking protection 23 in that court of its Protected Material – and nothing in these provisions should be construed as 24 authorizing or encouraging a Receiving Party in this action to disobey a lawful directive from 25 another court. 26 9. A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE PRODUCED IN THIS 27 LITIGATION 28 (a) The terms of this Order are applicable to information produced by a Non-Party in this 1 action and designated as “CONFIDENTIAL,” “ATTORNEYS’ EYES ONLY,” or “HIGHLY 2 CONFIDENTIAL.” Such information produced by Non-Parties in connection with this litigation 3 is protected by the remedies and relief provided by this Stipulated Protective Order. Nothing in 4 these provisions should be construed as prohibiting a Non-Party from seeking additional 5 protections. 6 (b) In the event that a Party is required, by a valid discovery request, to produce a Non- 7 Party’s confidential information in its possession, and the Party is subject to an agreement with the 8 Non-Party not to produce the Non-Party’s confidential information, then the Party shall: 9 (1) promptly notify in writing the Party that requested the information and the Non- 10 Party that some or all of the information requested is subject to a confidentiality agreement with a 11 Non-Party; 12 (2) promptly provide the Non-Party with a copy of the Stipulated Protective Order in 13 this litigation, the relevant discovery request(s), and a reasonably specific description of the 14 information requested; and 15 (3) make the information requested available for inspection by the Non-Party. 16 (c) If the Non-Party fails to object or seek a protective order from this Court within 17 fourteen (14) calendar days of receiving the notice and accompanying information, the Receiving 18 Party may produce the Non-Party’s confidential information responsive to the discovery request. 19 If the Non-Party timely seeks a protective order, the Receiving Party shall not produce any 20 information in its possession or control that is subject to the confidentiality agreement with the 21 Non-Party before a determination by the Court. Absent a Court order to the contrary, the Non-Party 22 shall bear the burden and expense of seeking protection in this Court of its Protected Material. 23 10. UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL 24 If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed Protected 25 Material to any person or in any circumstance not authorized under this Stipulated Protective Order, 26 the Receiving Party must immediately (a) notify in writing the Designating Party of the 27 unauthorized disclosures, providing with such notice the identity of the person to whom the 28 Protected Material was disclosed and, upon request of the Designating Party, details concerning the 1 circumstances of the disclosure, (b) use its best efforts to retrieve all unauthorized copies of the 2 Protected Material, (c) inform the person or persons to whom unauthorized disclosures were made 3 of all the terms of this Order, and (d) request such person or persons to execute the 4 “Acknowledgment and Agreement to Be Bound” (Exhibit A). 5 11. INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE PROTECTED 6 MATERIAL 7 When a Producing Party gives notice to Receiving Parties that certain inadvertently 8 produced material is subject to a claim of privilege or other protection, the obligations of the 9 Receiving Parties are those set forth in Federal Rule of Civil Procedure 26(b)(5)(B). This Section 10 is not intended to modify the agreement between the Parties pursuant to Federal Rule of Evidence 11 502(d) that is established in the Parties’ “Joint Stipulation and Order re: Non-Waiver of Privilege 12 and Protected Material.” 13 12. GOOD CAUSE STATEMENT 14 12.1 Particularized Need. The parties jointly contend that there is a particularized need 15 as to documents containing confidential information, Personally Identifiable Information, Protected 16 Health Information, and proprietary information, because of the privacy and pecuniary interests at 17 stake. This includes the personal information of third party patients, proprietary information related 18 to the Medicare Advantage bid process, and other competitively sensitive information. Because of 19 these sensitive interests, this proposed order is being presented for the court’s approval instead of 20 resorting to a private agreement between the parties. 21 13. MISCELLANEOUS 22 13.1 Right to Further Relief. Nothing in this Stipulated Protective Order abridges the 23 right of any person to seek its modification by the Court in the future. 24 13.2 Right to Assert Other Objections. By stipulating to the entry of this Stipulated 25 Protective Order, no Party waives any right it otherwise would have to object to disclosing or 26 producing any information or item on any ground not addressed in this Stipulated Protective Order. 27 Similarly, no Party waives any right to object on any ground to use in evidence of any of the 28 material covered by this Stipulated Protective Order. 1 13.3 Filing Protected Material. Without written permission from the Designating Party 2 or a Court order secured after appropriate notice to all interested persons, a Party may not file in 3 the public record in this action any Protected Material. In the absence of such permission or order, 4 a Party may nonetheless utilize Protected Material in Court filings, but it must seek to file the 5 portions containing such Protected Material under seal in compliance with Civil Local Rule 141. 6 13.4 Use of Party’s Own Confidential Information. Nothing in this Stipulated Protective 7 Order shall restrict the right of any Party to use its own Confidential Information, Attorneys’ Eyes 8 Only Information, or Highly Confidential Information for any purpose whatsoever, but if any such 9 use results in a disclosure that causes the Confidential Information, Attorneys’ Eyes Only 10 Information, or Highly Confidential Information to lose its designation as Confidential Information, 11 Attorneys’ Eyes Only Information, or Highly Confidential Information, then it shall no longer be 12 subject to any protection under this Protective Order. Nothing in this Stipulated Protective Order, 13 however, affects the protections afforded to such Personally Identifiable Information and/or 14 Protected Health Information under applicable federal, state, or local laws. 15 14. FINAL DISPOSITION 16 Within sixty (60) calendar days after the final disposition of this action, as defined in Section 17 4, each Receiving Party must return all Protected Material to the Producing Party or destroy such 18 material. As used in this Section, “all Protected Material” includes all copies, abstracts, 19 compilations, summaries, and any other format reproducing or capturing any of the Protected 20 Material. Regardless of whether the Protected Material is returned or destroyed, the Receiving Party 21 must submit a written certification to the Producing Party (and, if not the same person or entity, to 22 the Designating Party) by the sixty (60) calendar day deadline that (1) identifies (by category, where 23 appropriate) all the Protected Material that was returned or destroyed and (2) affirms that the 24 Receiving Party has not retained any copies, abstracts, compilations, summaries or any other format 25 reproducing or capturing any of the Protected Material. In the course of disposing of information 26 in its possession under this provision, the Receiving Party will also take reasonable steps to notify 27 persons to whom it distributed Protected Material pursuant to this Stipulated Protective Order that 28 such information should be returned to the Receiving Party or destroyed by the person possessing 1 the information with written confirmation to the Receiving Party. Notwithstanding this Section, 2 Counsel are entitled to retain an archival copy of all pleadings, motion papers, trial, deposition, and 3 hearing transcripts, legal memoranda, correspondence, deposition and trial exhibits, expert reports, 4 attorney work product, and consultant and expert work product, even if such materials contain 5 Protected Material. 6 7 IT IS SO STIPULATED. 8 Dated: January 11, 2023 Respectfully submitted, 9 10 By: /s/ Dimitri D. Portnoi DIMITRI D. PORTNOI 11 KYLE M. GROSSMAN 12 Attorneys for Defendants Kaiser Foundation Health Plan, Inc.; Kaiser 13 Foundation Hospitals; The Permanente 14 Medical Group, Inc.; Southern California Permanente Medical Group; 15 and Colorado Permanente Medical Group, P.C. 16 17 Dated: January 11, 2023 Respectfully submitted 18 By: /s/ Adam Pollock (as authorized 1/11/23) 19 ADAM POLLOCK 20 Attorney for Plaintiff-Relator, Jeffrey 21 Mazik 22 23 24 25 26 27 28 1 ORDER The court has reviewed the parties’ stipulated protective order. (See ECF No. 96.) The 3 stipulation comports with the relevant authorities and the court’s applicable local rule. See L.R. 141.1. The court APPROVES the protective order, subject to the following clarification. The ‘ Local Rules state that once an action is closed, “unless otherwise ordered, the court will not retain ° jurisdiction over enforcement of the terms of any protective order filed in that action.” L.R. 6 141.1(f); see also, e.g., MD Helicopters, Inc. v. Aerometals, Inc., 2017 WL 495778 (E.D. Cal., 7 | Feb. 03, 2017) (noting that courts in the district generally do not agree to retain jurisdiction for 8 || disputes concerning protective orders after closure of the case). Thus, the court will not retain ju- 9 || risdiction over this protective order once the case is closed. 10 |} Dated: January 17, 2023 Foci) Aharon mazi.559 KENDALL J. NE UNITED STATES MAGISTRATE JUDGE 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 19 CASE NO. 2:19-CV.0559-DAD-KIN 1 EXHIBIT A 2 ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND 3 I, _____________________________ [print or type full name], of 4 _____________________________ [print or type full address], declare under penalty of perjury 5 that I have read in its entirety and understand the Stipulated Protective Order that was issued by 6 the United States District Court for the Eastern District of California on [date] in the case of 7 United States ex rel. Mazik v. Kaiser Foundation Health Plan, Inc., et al., Case No. 2:19-cv- 8 00559-DAD-KJN. I agree to comply with and to be bound by all the terms of this Stipulated 9 Protective Order and I understand and acknowledge that failure to so comply could expose me to 10 sanctions and punishment in the nature of contempt. I solemnly promise that I will not disclose in 11 any manner any information or item that is subject to this Stipulated Protective Order to any 12 person or entity except in strict compliance with the provisions of this Order. 13 I further agree to submit to the jurisdiction of the United States District Court for the 14 Eastern District of California for the purpose of enforcing the terms of this Stipulated Protective 15 Order, even if such enforcement proceedings occur after termination of this action. 16 I hereby appoint _____________________________ [print or type full name] of 17 _____________________________ [print or type full address and telephone number] as my 18 California agent for service of process in connection with this action or any proceedings related to 19 enforcement of this Stipulated Protective Order. 20 21 Date: _____________________________ 22 City and State where sworn and signed: _____________________________ 23 Printed name: _____________________________ 24 Signature: _____________________________ 25 26 27 28