In re: Out of Network Substance Use Disorder Claims against UnitedHealthcare, No. 8:2019cv02075 - Document 61 (C.D. Cal. 2020)
Court Description: ORDER GRANTING AMENDED PROTECTIVE ORDER 59 by Magistrate Judge Douglas F. McCormick. (See order for details.) (es)
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In re: Out of Network Substance Use Disorder Claims against UnitedHealthcare Doc. 61 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA, SOUTHERN DIVISION 9 re: Out of Network Substance Use 10 In Disorder Claims Against 11 UnitedHealthcare 12 13 14 15 16 17 18 19 CASE NO. 8:19-CV-02075-JVS-DFM Assigned to Judge James V. Selna Consolidated with: 8:19-cv-02082 8:19-cv-02084 8:19-cv-02086 8:19-cv-02088 8:20-cv-00136 8:20-cv-00138 8:20-cv-00341 8:19-cv-02083 8:19-cv-02085 8:19-cv-02087 8:19-cv-02372 8:20-cv-00137 8:20-cv-00340 8:20-cv-00356 ORDER GRANTING AMENDED PROTECTIVE ORDER [Discovery document referred to Magistrate Judge Douglas F. McCormick] FAC Filed: Mar. 19, 2020 Band 1 Bellwether Trial: Sept. 14, 2021 20 21 22 23 24 25 26 27 28 [PROPOSED] ORDER GRANTING AMENDED PROTECTIVE ORDER CASE NO. 8:19-CV-02075-JVS-DFM Dockets.Justia.com 1 Pursuant to Rule 26(c) and 45 C.F.R. § 164.512(e)(1), good cause appearing 2 therefore, and at the request and stipulation of the parties to the consolidated action 3 In re: Out of Network Substance Use Disorder Claims Against UnitedHealthcare, 4 Case No. 8:19-CV-02075-JVS-DFM, IT IS HEREBY ORDERED: 5 1. Good Cause Statement. This case involves allegations by Plaintiffs 6 that Defendants engaged in unfair, unreasonable, illegal, incomplete and systematic 7 polices, practices and decisions regarding the mental health and substance use 8 disorder treatment services that Plaintiffs rendered to Defendants’ insureds. The 9 parties agree that discovery in this action is likely to involve the disclosure of 10 protected health information (“PHI”) under the Health Insurance Portability and 11 Accountability Act of 1996 (“HIPAA”), including Substance Abuse Information 12 under 42 C.F.R. Part 2, by reference to other publicly available information, or 13 through verification of such identification by another person (“Protected Substance 14 Abuse Information”), as well as information that may not constitute PHI or 15 Substance Abuse Information but is nonetheless confidential, proprietary, trade 16 secret, sensitive, or private. 17 2. In this Stipulation and Protective Order, the words set forth below 18 shall have the following meanings: 19 a) “Proceeding” means the above-entitled proceeding, In re: Out of 20 Network Substance Use Disorder Claims Against 21 UnitedHealthcare, Case No. 8:19-cv-02075-JVS(DFM) 22 b) “Court” means the Hon. James V. Selna, or any other judge to 23 which this Proceeding may be assigned, including Court staff 24 participating in such proceedings. 25 c) “Confidential” means information (regardless of how it is 26 generated, stored or maintained) or tangible things the party 27 designating or producing it reasonably believes contains or 28 reflects information subject to protection, including without 1 [PROPOSED] ORDER GRANTING AMENDED PROTECTIVE ORDER CASE NO. 8:19-CV-02075-JVS-DFM 1 limitation: (1) information protected under the federal Health 2 Insurance Portability and Accountability Act and the California 3 Medical Information Act, (2) information in the nature of a trade 4 secret or other research, investigation, development, commercial 5 or operational information of a confidential or proprietary nature; 6 (3) financial, marketing, planning, strategic, investigative, or other 7 internal information, data, analyses, or specifications of a 8 proprietary, confidential or competitive nature; (4) information 9 deemed confidential or non-public by any regulatory body; (5) 10 information otherwise protected by law from disclosure; and/or 11 (6) any other information with respect to which there is a 12 compelling need for confidentiality. Documents designated as 13 “Confidential” shall be limited to documents that have not been 14 made public, which the disclosing party in good faith believes 15 will, if disclosed, have the effect of causing harm to its business 16 or competitive position; or in the case of individuals, shall be 17 limited to documents that reveal personal information, such as 18 contact information, social security numbers, or Protected Health 19 Information (as defined in 45 CFR §§ 160.103 and 164.501). 20 d) “Confidential Materials” means any Documents, Testimony or 21 Information as defined below designated as “Confidential” 22 pursuant to the provisions of this Stipulation and Protective Order. 23 e) “Confidential.” 24 25 “Designating Party” means the Party that designates Materials as f) “Disclose” or “Disclosed” or “Disclosure” means to reveal, 26 divulge, give, or make available Materials, or any part thereof, or 27 any information contained therein. 28 g) “Documents” means (i) any “Writing,” “Original,” and 2 [PROPOSED] ORDER GRANTING AMENDED PROTECTIVE ORDER CASE NO. 8:19-CV-02075-JVS-DFM 1 “Duplicate” as those terms are defined by California Evidence 2 Code Sections 250, 255, and 260, which have been produced in 3 discovery in this Proceeding by any person, and (ii) any copies, 4 reproductions, or summaries of all or any part of the foregoing. h) 5 “Highly Confidential – Attorneys’ Eyes Only” means information 6 (regardless of how it is generated, stored or maintained) or 7 tangible things the party designating or producing it reasonably 8 believes contains or reflects information subject to protection, 9 including without limitation: highly confidential personal or 10 commercial information, such as trade secrets, financial 11 information, business strategy, or other information, disclosure of 12 which would be especially detrimental or harmful to the 13 Disclosing Party or its business. 14 i) “Information” means the content of Documents or Testimony. 15 j) “Testimony” means all depositions, declarations or other testimony taken or used in this Proceeding. 16 17 3. The Designating Party shall have the right to designate as 18 “Confidential” or “Highly Confidential – Attorneys’ Eyes Only” any Documents, 19 Testimony or Information that the Designating Party in good faith believes to 20 contain non-public information that is entitled to confidential treatment under 21 applicable law. 22 4. The entry of this Stipulation and Protective Order does not alter, 23 waive, modify, or abridge any right, privilege or protection otherwise available to 24 any Party with respect to the discovery of matters, including but not limited to any 25 Party’s right to assert the attorney-client privilege, the attorney work product 26 doctrine, or other privileges, or any Party’s right to contest any such assertion. 27 28 5. Protected Health Information: a) All parties and counsel in this action (including all plaintiffs’ 3 [PROPOSED] ORDER GRANTING AMENDED PROTECTIVE ORDER CASE NO. 8:19-CV-02075-JVS-DFM 1 counsel, regardless of the particular individual(s) they represent) 2 are authorized to receive, subpoena, and transmit protected health 3 information to the extent and subject to the conditions set forth 4 herein. b) 5 All "covered entities," as defined in 45 C.F.R. § 160.103, are 6 authorized to disclose protected health information in this action 7 to the extent and subject to the conditions set forth herein. c) 8 Nothing in this Order authorizes counsel to obtain medical records or protected health information through means other than 9 10 formal discovery requests, subpoenas, depositions, patient 11 authorizations, or other lawful processes. d) 12 This Order does not control or limit the use of protected health 13 information that comes into possession of any party or any party's 14 counsel from source other than a covered entity as defined in 45 15 C.F.R. § 160.103. 16 6. Any Documents, Testimony or Information to be designated as 17 “Confidential” or “Highly Confidential – Attorneys’ Eyes Only” must be clearly so 18 designated before the Document, Testimony or Information is Disclosed or 19 produced. The parties may agree that the case name and number are to be part of 20 the “Confidential” or “Highly Confidential – Attorneys’ Eyes Only” designation. 21 The “Confidential” or “Highly Confidential – Attorneys’ Eyes Only” designation 22 should not obscure or interfere with the legibility of the designated Information. 23 a) For Documents (apart from transcripts of depositions or other 24 pretrial or trial proceedings), the Designating Party must affix the 25 legend “Confidential” or “Highly Confidential – Attorneys’ Eyes 26 Only” on each page of any Document containing such designated 27 Confidential Material. 28 b) For Testimony given in depositions the Designating Party may 4 [PROPOSED] ORDER GRANTING AMENDED PROTECTIVE ORDER CASE NO. 8:19-CV-02075-JVS-DFM 1 either: 2 i. identify on the record, before the close of the deposition, all 3 “Confidential” or “Highly Confidential – Attorneys’ Eyes 4 Only” Testimony, by specifying all portions of the Testimony 5 that qualify as “Confidential” or “Highly Confidential – 6 Attorneys’ Eyes Only;” or ii. designate the entirety of the Testimony at the deposition as 7 8 “Confidential” or “Highly Confidential – Attorneys’ Eyes 9 Only” (before the deposition is concluded), so long as within 10 30 days following receipt of the deposition transcript the 11 Designating Party identifies specific portions of the Testimony 12 as to which protection is sought. If the Designating Party fails 13 to identify specific portions of the Testimony within such time, 14 the Testimony will not be considered “Confidential” or 15 “Highly Confidential – Attorneys’ Eyes Only.” 16 iii. In circumstances where portions of the deposition Testimony 17 are designated for protection, the transcript pages containing 18 “Confidential” Information may be separately bound by the 19 court reporter, who must affix to the top of each page the 20 legend “Confidential,” as instructed by the Designating Party. 21 c) For Information produced in some form other than Documents, 22 and for any other tangible items, including, without limitation, 23 compact discs or DVDs, the Designating Party must affix in a 24 prominent place on the exterior of the container or containers in 25 which the Information or item is stored the legend “Confidential.” 26 If only portions of the Information or item warrant protection, the 27 Designating Party, to the extent practicable, shall identify the 28 “Confidential” or “Highly Confidential – Attorneys’ Eyes Only” 5 [PROPOSED] ORDER GRANTING AMENDED PROTECTIVE ORDER CASE NO. 8:19-CV-02075-JVS-DFM portions. 1 2 7. The inadvertent production by any of the undersigned Parties or non- 3 Parties to the Proceedings of any Document, Testimony or Information during 4 discovery in this Proceeding without a “Confidential” or “Highly Confidential – 5 Attorneys’ Eyes Only” designation, shall be without prejudice to any claim that 6 such item is “Confidential” or “Highly Confidential – Attorneys’ Eyes Only” and 7 such Party shall not be held to have waived any rights by such inadvertent 8 production. In the event that any Document, Testimony or Information that is 9 subject to a “Confidential” designation is inadvertently produced without such 10 designation, the Party that inadvertently produced the document shall give written 11 notice of such inadvertent production, together with a further copy of the subject 12 Document, Testimony or Information designated as “Confidential” or “Highly 13 Confidential – Attorneys’ Eyes Only”(the “Inadvertent Production Notice”). Upon 14 receipt of such Inadvertent Production Notice, the Party that received the 15 inadvertently produced Document, Testimony or Information shall promptly 16 destroy the inadvertently produced Document, Testimony or Information and all 17 copies thereof, or, at the expense of the producing Party, return such together with 18 all copies of such Document, Testimony or Information to counsel for the 19 producing Party and shall retain only the “Confidential” or “Highly Confidential – 20 Attorneys’ Eyes Only” designated Materials. Should the receiving Party choose to 21 destroy such inadvertently produced Document, Testimony or Information, the 22 receiving Party shall notify the producing Party in writing of such destruction 23 within ten (10) days of receipt of written notice of the inadvertent production. This 24 provision is not intended to apply to any inadvertent production of any Information 25 protected by attorney-client or work product privileges. 26 8. In the event that counsel for a Party receiving Documents, Testimony 27 or Information in discovery designated as “Confidential” or “Highly Confidential – 28 Attorneys’ Eyes Only” objects to such designation with respect to any or all of such 6 [PROPOSED] ORDER GRANTING AMENDED PROTECTIVE ORDER CASE NO. 8:19-CV-02075-JVS-DFM 1 items, said counsel shall advise counsel for the Designating Party, in writing, of 2 such objections, the specific Documents, Testimony or Information to which each 3 objection pertains, and the specific reasons and support for such objections (the 4 “Designation Objections”). Counsel for the Designating Party shall have thirty (30) 5 days from receipt of the written Designation Objections to either (a) agree in 6 writing to de-designate Documents, Testimony or Information pursuant to any or all 7 of the Designation Objections and/or (b) file a motion with the Court seeking to 8 uphold any or all designations on Documents, Testimony or Information addressed 9 by the Designation Objections (the “Designation Motion”). Pending a resolution of 10 the Designation Motion by the Court, any and all existing designations on the 11 Documents, Testimony or Information at issue in such Motion shall remain in 12 place. The Designating Party shall have the burden on any Designation Motion of 13 establishing the applicability of its “Confidential” or “Highly Confidential – 14 Attorneys’ Eyes Only” designation. In the event that the Designation Objections 15 are neither timely agreed to nor timely addressed in the Designation Motion, then 16 such Documents, Testimony or Information shall be de-designated in accordance 17 with the Designation Objection applicable to such material. 18 9. Access to and/or Disclosure of Confidential Materials designated as 19 “Confidential” shall be permitted only to the following persons: 20 a) The Court. 21 b) Attorneys of record in the Proceeding and their affiliated 22 attorneys, paralegals, clerical and secretarial staff employed by 23 such attorneys who are actively involved in the Proceedings and 24 are not employees of any Party. In-house counsel to the 25 undersigned Parties and the paralegal, clerical and secretarial staff 26 employed by such counsel. Provided, however, that each non- 27 lawyer given access to Confidential Materials shall be advised 28 that such Materials are being Disclosed pursuant to, and are 7 [PROPOSED] ORDER GRANTING AMENDED PROTECTIVE ORDER CASE NO. 8:19-CV-02075-JVS-DFM 1 subject to, the terms of this Stipulation and Protective Order and 2 that they may not be Disclosed other than pursuant to its terms. 3 c) Those officers, directors, partners, members, employees and 4 agents of all non-designating Parties that counsel for such Parties 5 deems necessary to aid counsel in the prosecution and defense of 6 this Proceeding; provided, however, that prior to the Disclosure of 7 Confidential Materials to any such officer, director, partner, 8 member, employee or agent, counsel for the Party making the 9 Disclosure shall deliver a copy of this Stipulation and Protective 10 Order to such person, shall explain that such person is bound to 11 follow the terms of such Order, and shall secure the signature of 12 such person on a statement in the form attached hereto as Exhibit 13 A. 14 d) hearings, or any other proceeding). 15 16 Court reporters in this Proceeding (whether at depositions, e) Any deposition, trial or hearing witness in the Proceeding who 17 previously has had access to the Confidential Materials, or who is 18 currently or was previously an officer, director, partner, member, 19 employee or agent of an entity that has had access to the 20 Confidential Materials. 21 f) Any deposition or non-trial hearing witness in the Proceeding 22 who previously did not have access to the Confidential Materials; 23 provided, however, that each such witness given access to 24 Confidential Materials shall be advised that such Materials are 25 being Disclosed pursuant to, and are subject to, the terms of this 26 Stipulation and Protective Order and that they may not be 27 Disclosed other than pursuant to its terms. 28 g) Mock jury participants, provided, however, that prior to the 8 [PROPOSED] ORDER GRANTING AMENDED PROTECTIVE ORDER CASE NO. 8:19-CV-02075-JVS-DFM 1 Disclosure of Confidential Materials to any such mock jury 2 participant, counsel for the Party making the Disclosure shall 3 deliver a copy of this Stipulation and Protective Order to such 4 person, shall explain that such person is bound to follow the terms 5 of such Order, and shall secure the signature of such person on a 6 statement in the form attached hereto as Exhibit A. 7 h) Outside experts or expert consultants consulted by the 8 undersigned Parties or their counsel in connection with the 9 Proceeding, whether or not retained to testify at any oral hearing; 10 provided, however, that prior to the Disclosure of Confidential 11 Materials to any such expert or expert consultant, counsel for the 12 Party making the Disclosure shall deliver a copy of this 13 Stipulation and Protective Order to such person, shall explain its 14 terms to such person, and shall secure the signature of such person 15 on a statement in the form attached hereto as Exhibit A. It shall 16 be the obligation of counsel, upon learning of any breach or 17 threatened breach of this Stipulation and Protective Order by any 18 such expert or expert consultant, to promptly notify counsel for 19 the Designating Party of such breach or threatened breach. 20 i) Any other person that the Designating Party agrees to in writing. 21 Confidential Information designated as “Highly Confidential - 22 Attorneys’ Eyes Only” (hereinafter “Attorneys’ Eyes Only 23 Material”) shall be disclosed only to the persons listed in 24 subparagraphs 9(a), (d), (g), and (i) above, unless otherwise 25 agreed or ordered. 26 For the purposes of subparagraph 9(b), Attorneys’ Eyes Only Material may not be 27 shown to any member or employee of any law firm or other entity or individual 28 who has been, is currently, or will be in the foreseeable future involved in the 9 [PROPOSED] ORDER GRANTING AMENDED PROTECTIVE ORDER CASE NO. 8:19-CV-02075-JVS-DFM 1 negotiation of contracts on behalf of any of the Parties to this Agreement, unless the 2 person authored the document or is identified on the face of the document as a 3 previous recipient. Additionally, for the purposes of subparagraph 9(b), Attorneys' 4 Eyes Only Material may be shown to in-house litigation counsel for the Parties, 5 provided that any in-house litigation counsel to whom Attorneys' Eyes Only 6 Material is shown is not and will not in the foreseeable future be involved in the 7 negotiation of contracts between the Parties, and does not share the documents, or 8 the contents thereof, with any of the Parties’ directors, officers, agents, or 9 employees who negotiate contracts between the Parties. 10 Attorneys’ Eyes Only Material may be shown to persons under subparagraph 11 9(e) and (f) if the witness is an employee of the party who produced the information 12 designated as “Highly Confidential – Attorneys’ Eyes Only”, if the witness is 13 identified on the face of the document as a previous recipient, or if the party who 14 produced the information as "Highly Confidential - Attorneys' Eyes Only" consents 15 before such designated information is disclosed to the witness. 16 10. Confidential Materials shall be used by the persons receiving them 17 only for the purposes of preparing for, conducting, participating in the conduct of, 18 and/or prosecuting and/or defending the Proceeding, and not for any business or 19 other purpose whatsoever. 20 11. Any Party to the Proceeding (or other person subject to the terms of 21 this Stipulation and Protective Order) may ask the Court, after appropriate notice to 22 the other Parties to the Proceeding, to modify or grant relief from any provision of 23 this Stipulation and Protective Order. 24 12. Entering into, agreeing to, and/or complying with the terms of this 25 Stipulation and Protective Order shall not: 26 a) Operate as an admission by any person that any particular 27 Document, Testimony or Information marked “Confidential” or 28 “Highly Confidential – Attorneys’ Eyes Only” contains or reflects 10 [PROPOSED] ORDER GRANTING AMENDED PROTECTIVE ORDER CASE NO. 8:19-CV-02075-JVS-DFM 1 trade secrets, proprietary, confidential or competitively sensitive 2 business, commercial, financial or personal information; or b) 3 Prejudice in any way the right of any Party (or any other person 4 subject to the terms of this Stipulation and Protective Order): 5 i. to seek a determination by the Court of whether any particular 6 Confidential Material should be subject to protection as 7 “Confidential” or “Highly Confidential – Attorneys’ Eyes 8 Only” under the terms of this Stipulation and Protective Order; 9 or ii. to seek relief from the Court on appropriate notice to all other 10 11 Parties to the Proceeding from any provision(s) of this 12 Stipulation and Protective Order, either generally or as to any 13 particular Document, Material or Information. 14 13. Any Party to the Proceeding who has not executed this Stipulation and 15 Protective Order as of the time it is presented to the Court for signature may 16 thereafter become a Party to this Stipulation and Protective Order by its counsel’s 17 signing and dating a copy thereof and filing the same with the Court, and serving 18 copies of such signed and dated copy upon the other Parties to this Stipulation and 19 Protective Order. 20 14. Any Information that may be produced by a non-Party witness in 21 discovery in the Proceeding pursuant to subpoena or otherwise may be designated 22 by such non-Party as “Confidential” or “Highly Confidential – Attorneys’ Eyes 23 Only” under the terms of this Stipulation and Protective Order, and any such 24 designation by a non-Party shall have the same force and effect, and create the same 25 duties and obligations, as if made by one of the undersigned Parties hereto. Any 26 such designation shall also function as consent by such producing Party to the 27 authority of the Court in the Proceeding to resolve and conclusively determine any 28 motion or other application made by any person or Party with respect to such 11 [PROPOSED] ORDER GRANTING AMENDED PROTECTIVE ORDER CASE NO. 8:19-CV-02075-JVS-DFM 1 designation, or any other matter otherwise arising under this Stipulation and 2 Protective Order. 3 15. In the event any Confidential Information is or was used in any pretrial 4 or discovery proceeding in this action, it shall not lose its confidentiality through 5 such use. All pleadings, motions, oral discovery, and written discovery in this 6 Action which contain or discuss Confidential Information shall be presented only to 7 persons authorized to receive such Confidential Information under this Protective 8 Order. 9 16. If any person subject to this Stipulation and Protective Order who has 10 custody of any Confidential Materials receives a subpoena or other process 11 (“Subpoena”) from any government or other person or entity demanding production 12 of Confidential Materials, the recipient of the Subpoena shall promptly give notice 13 of the same by electronic mail transmission, followed by either express mail or 14 overnight delivery to counsel of record for the Designating Party, and shall furnish 15 such counsel with a copy of the Subpoena. Upon receipt of this notice, the 16 Designating Party may, in its sole discretion and at its own cost, move to quash or 17 limit the Subpoena, otherwise oppose production of the Confidential Materials, 18 and/or seek to obtain confidential treatment of such Confidential Materials from the 19 subpoenaing person or entity to the fullest extent available under law. The recipient 20 of the Subpoena may not produce any Documents, Testimony or Information 21 pursuant to the Subpoena prior to the date specified for production on the 22 Subpoena. 23 17. Nothing in this Stipulation and Protective Order shall be construed to 24 preclude either Party from asserting in good faith that certain Confidential Materials 25 require additional protection. The Parties shall meet and confer to agree upon the 26 terms of such additional protection. 27 18. If, after execution of this Stipulation and Protective Order, any 28 Confidential Materials submitted by a Designating Party under the terms of this 12 [PROPOSED] ORDER GRANTING AMENDED PROTECTIVE ORDER CASE NO. 8:19-CV-02075-JVS-DFM 1 Stipulation and Protective Order is Disclosed by a non-Designating Party to any 2 person other than in the manner authorized by this Stipulation and Protective Order, 3 the non-Designating Party responsible for the Disclosure shall bring all pertinent 4 facts relating to the Disclosure of such Confidential Materials to the immediate 5 attention of the Designating Party. 6 19. This Stipulation and Protective Order is entered into without prejudice 7 to the right of any Party to knowingly waive the applicability of this Stipulation and 8 Protective Order to any Confidential Materials designated by that Party. If the 9 Designating Party uses Confidential Materials in a non-Confidential manner, then 10 the Designating Party shall advise that the designation no longer applies. 11 20. A Party that seeks to file under seal any Protected Material must 12 comply with Civil Local Rule 79-5. Protected Material may only be filed under seal 13 pursuant to a court order authorizing the sealing of the specific Protected Material 14 at issue. If a Party’s request to file Protected Material under seal is denied by the 15 court, then the Receiving Party may file the information in the public record unless 16 otherwise instructed by the court. 17 21. This Protective Order shall be considered a Qualified Protective Order 18 complying with 45 C.F.R. § 164.512(e)(l)(v)(A) and (B) and authorizing disclosure 19 of protected health information pursuant to 45 C.F.R. § 164.512(e)(l)(iv)(A). 20 Notwithstanding state or federal law limiting a Producing Party's authority to 21 disclose protected health information, the Producing Party is permitted to release 22 protected health information in its possession in response to a discovery request, 23 provided that such a request otherwise complies with the requirements of the 24 California Code of Civil Procedure. The parties may not use or disclose 25 Confidential Health Information produced in this action for any purpose in any 26 other action. Confidential Health Information shall be subject to all other provisions 27 of this Protective Order. 28 22. The Parties shall meet and confer regarding the procedures for use of 13 [PROPOSED] ORDER GRANTING AMENDED PROTECTIVE ORDER CASE NO. 8:19-CV-02075-JVS-DFM 1 Confidential Materials at trial and shall move the Court for entry of an appropriate 2 order. 3 23. In the event additional parties join or are joined in this action, they 4 shall not have access to Confidential Information until the newly joined party has 5 executed and filed with the Court its agreement to be fully bound by this Protective 6 Order. 7 24. Nothing in this Stipulation and Protective Order shall affect the 8 admissibility into evidence of Confidential Materials, or abridge the rights of any 9 person to seek judicial review or to pursue other appropriate judicial action with 10 respect to any ruling made by the Court concerning the issue of the status of 11 Protected Material. 12 25. This Stipulation and Protective Order shall continue to be binding after 13 the conclusion of this Proceeding and all subsequent proceedings arising from this 14 Proceeding, except that a Party may seek the written permission of the Designating 15 Party or may move the Court for relief from the provisions of this Stipulation and 16 Protective Order. To the extent permitted by law, the Court shall retain jurisdiction 17 to enforce, modify, or reconsider this Stipulation and Protective Order, even after 18 the Proceeding is terminated. 19 26. All Confidential or Highly Confidential – Attorneys’ Eyes Only 20 Documents or information, whether or not subject to the provisions of HIPAA, 21 shall be returned or destroyed upon the conclusion of this litigation, either through 22 the settlement of the case, the dismissal of the case, or the entry of a Final Order 23 (i.e., an Order not subject to further appeal). Those Confidential or Highly 24 Confidential – Attorneys’ Eyes Only Documents or information that are subject to 25 HIPAA shall also be returned or destroyed upon the conclusion of this litigation, 26 either through the settlement of the case, the dismissal of the case, or the entry of a 27 Final Order (i.e., an Order not subject to further appeal), as required by 45 C.F.R. § 28 164.512(e)(1)(v). 14 [PROPOSED] ORDER GRANTING AMENDED PROTECTIVE ORDER CASE NO. 8:19-CV-02075-JVS-DFM 1 27. After this Stipulation and Protective Order has been signed by counsel 2 for all Parties, it shall be presented to the Court for entry. Counsel agree to be 3 bound by the terms set forth herein with regard to any Confidential Materials that 4 have been produced before the Court signs this Stipulation and Protective Order. 5 28. The Parties and all signatories to the Certification attached hereto as 6 Exhibit A agree to be bound by this Stipulation and Protective Order pending its 7 approval and entry by the Court. In the event that the Court modifies this 8 Stipulation and Protective Order, or in the event that the Court enters a different 9 Protective Order, the Parties agree to be bound by this Stipulation and Protective 10 Order until such time as the Court may enter such a different Order. It is the Parties’ 11 intent to be bound by the terms of this Stipulation and Protective Order pending its 12 entry so as to allow for immediate production of Confidential Materials under the 13 terms herein. 14 29. This Protective Order may be amended or modified only by further 15 order of the Court upon written stipulation of the Parties or, if the Parties have a 16 disagreement regarding potential amendment or modification, by application to the 17 Court. The obligations imposed by the Protective Order shall survive the 18 termination of this action. 19 30. This Order is entered pursuant to Federal Rule of Evidence 502(d) and 20 (e). Inadvertent production of materials that the Producing Party later claims in 21 good faith should not have been produced because of a privilege, including but not 22 limited to the attorney-client privilege or work product doctrine (“Inadvertently 23 Produced Privileged Information”), will not by itself constitute a waiver of any 24 applicable privilege. When a Producing Party gives notice to Receiving Parties that 25 certain inadvertently produced material is subject to a claim of privilege or other 26 protection, the obligations of the Receiving Parties are those set forth in this Order 27 and in Federal Rule of Civil Procedure 26(b)(5)(B). Within a reasonable period of 28 time after a Producing Person discovers (or upon receipt of notice from another 15 [PROPOSED] ORDER GRANTING AMENDED PROTECTIVE ORDER CASE NO. 8:19-CV-02075-JVS-DFM 1 Party) that it has produced Inadvertently Produced Privileged Information, the 2 Producing Person shall request the return of such Inadvertently Produced Privileged 3 Information by identifying in writing the materials inadvertently produced and the 4 basis for withholding such materials from production. If a Producing Party requests 5 the return of Inadvertently Produced Privileged Information pursuant to this 6 paragraph, the Receiving Party must immediately take all commercially reasonable 7 steps to return or destroy the Inadvertently Produced Privileged Information (and 8 copies thereof) and shall take all commercially reasonable steps to sequester or 9 destroy any work product that incorporates the Inadvertently Produced Privileged 10 Information. If the Receiving Party disputes the privilege claim, it must notify the 11 Producing Person of the dispute and the basis therefore in writing within ten (10) 12 days of receipt of the Producing Person’s notification. Other than for an in camera 13 review in connection with seeking a determination by the Court, the Receiving 14 Party may not use or disclose any Inadvertently Produced Privileged Information 15 until the dispute is resolved. The Parties will thereafter meet and confer regarding 16 the disputed privilege claim. If the Parties cannot resolve their dispute, either Party 17 may seek a determination from the Court regarding whether the privilege applies. 18 The Producing Person must preserve the Inadvertently Produced Privileged 19 Information and the Receiving Party may not use the Inadvertently Produced 20 Privileged Information for any purpose until the dispute is resolved. This provision 21 is not intended to modify whatever procedure may be established in an e-discovery 22 order that provides for production without prior privilege review. 23 24 FOR GOOD CAUSE SHOWN, IT IS SO ORDERED. 25 26 27 DATED: August 17, 2020 _______________________________ HON. DOUGLAS F. MCCORMICK United States Magistrate Judge 28 16 [PROPOSED] ORDER GRANTING AMENDED PROTECTIVE ORDER CASE NO. 8:19-CV-02075-JVS-DFM 1 EXHIBIT A 2 ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND 3 4 I, _____________________________ [full name], of _________________ 5 [full address], declare under penalty of perjury that I have read in its entirety and 6 understand the Stipulated Protective Order that was issued by the United States 7 District Court for the Central District of California on [________] in the case of In 8 re: Out of Network Substance Use Disorder Claims Against UnitedHealthcare, 9 Case No. 8:19-cv-02075-JVS(DFM). I agree to comply with and to be bound by all 10 the terms of this Stipulated Protective Order and I understand and acknowledge that 11 failure to so comply could expose me to sanctions and punishment in the nature of 12 contempt. I solemnly promise that I will not disclose in any manner any information 13 or item that is subject to this Stipulated Protective Order to any person or entity 14 except in strict compliance with the provisions of this Order. 15 I further agree to submit to the jurisdiction of the United States District Court 16 for the Central District of California for the purpose of enforcing the terms of this 17 Stipulated Protective Order, even if such enforcement proceedings occur after 18 termination of this action. I hereby appoint __________________________ [full 19 name] of _______________________________________ [full address and 20 telephone number] as my California agent for service of process in connection 21 with this action or any proceedings related to enforcement of this Stipulated 22 Protective Order. 23 24 Date: ______________________________________ City and State where signed: _________________________________ 25 Printed Name: _____________________________ 26 Signature: ________________________________ 27 28 17 [PROPOSED] ORDER GRANTING AMENDED PROTECTIVE ORDER CASE NO. 8:19-CV-02075-JVS-DFM
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