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3 4 5 6 7 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON 8 AT SEATTLE
9 10 CAROLINE ANGULO, et al., CASE NO. C22-0915JLR 11 Plaintiffs, ORDER v. 12 PROVIDENCE HEALTH & 13 SERVICES WASHINGTON, et al., 14 Defendants. 15 I. INTRODUCTION 16 Before the court is the parties’ joint motion requesting that the court enter either 17 Plaintiffs Caroline Angulo, Eric Keller, Isabel Lindsey, and Charles Lindsey’s 18 (collectively, “Plaintiffs”) or Defendant Providence Health & Services Washington’s 19 (“Providence”) proposed protective order. (Joint Statement (Dkt. # 67); Pls’ Prop. Order 20 (Dkt. # 67-5); Providence’s Prop. Order (Dkt. # 67-4).) The parties indicate that they 21 reached agreement on the terms of a protective order with seven exceptions. (See Joint 22 1 Statement at 3-10; see also infra §§ II.A-G.) The court has reviewed the parties’ joint 2 submissions and directs the parties to enter a proposed stipulated protective order
3 consistent with this order. 5 The court reviews each of the parties’ disputed proposed revisions to the Western 6 District of Washington’s model protective order and resolves the disputes. 7 A. Scope 8 The parties have agreed to add a paragraph to the model order’s “Scope”
9 paragraph (Section 3) that explicitly places certain material beyond the scope of the 10 protective order. (See Pls’ Prop. Order at 2-3; Providence’s Prop. Order at 2-3.) 11 However, the parties disagree about some of the language in that paragraph. 12 Providence’s proposed order provides that certain material will be exempt from 13 the order “except as required by [the Health Insurance Portability and Accountability Act
14 (‘HIPAA’)], RCW Ch. 70.02, or other statutory or regulatory privacy protections.” 15 (Providence’s Prop. Order at 2-3.) Providence’s proposed order further exempts material 16 “lawfully and properly” in the public domain. (Id.) Providence argues that both clauses 17 are necessary to comply with its obligations to protect its patients’ protected healthcare 18 information (“PHI”).1 (Joint Statement at 3-4.) Plaintiffs’ proposed order does not
19 20 1 HIPAA and its implementing regulations define the information within their ambit as “protected health information,” while Washington’s Uniform Health Care Information Act 21 (“UHCIA”) refers to “health care information.” Compare 45 C.F.R. § 160.103 (defining “protected health information” as individually identifiable health information”), with RCW 22 70.02.010(17) (defining “health care information” as “any information . . . that identifies or can 1 include either of these phrases. (See Pls’ Prop. Order at 2-3; see generally Joint 2 Statement (raising specific arguments regarding the “lawfully and properly” language but
3 not the patient privacy laws clause).) 4 The court agrees with Providence that the spirit of its proposed revision to this 5 section regarding compliance with state and federal patient privacy laws is necessary to 6 ensure it complies with its obligations to protect PHI, but finds Providence’s wording too 7 vague. Instead, the court concludes that Providence’s objectives are accomplished if this 8 clause is limited to HIPAA, RCW CH. 70.02, and each statute’s implementing
9 regulations. 10 Plaintiffs contend that Providence’s “lawfully and properly” language would 11 impose an undue burden on them to determine whether information entered the public 12 domain unlawfully or unproperly. (See Joint Statement at 3.) Providence argues that this 13 language is necessary to allow it “to designate as confidential information/documents that
14 become public in violation of the protective order or were improperly or unlawfully 15 acquired or disclosed.” (Id.) The court agrees with Plaintiffs that the “lawfully and 16 properly” language would impose an undue burden on a party seeking to introduce 17 material that was already in the public domain, and further finds it unnecessary to 18 accomplish Providence’s objectives; information or documents that become public in
19 violation of the order will be subject to the procedures set forth in Sections 8 and 9 of the 20 21
readily be associated with the identity of a patient and directly relates to the patient’s health 22 care”). Here, the court refers to both categories as “PHI.” 1 parties’ protective order. (See, e.g., Providence’s Prop. Order at 10-11.) The parties 2 must file a protective order that does not include “lawfully and properly.”
3 Therefore, the second paragraph in Section 3 of the parties’ protective order shall 4 state, “However, except as required by HIPAA, RCW Ch. 70.02, or either statute’s 5 implementing regulations, the protections conferred by this agreement do not cover 6 information that (a) is in the public domain through trial or otherwise . . . .” The 7 remainder of that section shall reflect the parties’ agreed-upon language. (See id. at 2-3; 8 Pls’ Prop. Order at 2-3.)
9 B. Basic Principles Regarding Access to and Use of Confidential Material and Non-Termination and Return of Confidential Material 10 Plaintiffs propose changes to Sections 4.1 (“Basic Principles Regarding Access to 11 and Use of Confidential Material”) and 10 (“Non-Termination and Return of Confidential 12 Material”) of this District’s model protective order that would allow the parties or class 13 members to use confidential materials obtained here for collateral litigation in which the 14 parties “have an interest” (Joint Statement at 4) and in subsequent, related, or derivative 15 actions (id. at 10.) Providence opposes both changes, arguing both would violate their 16 patients’ privacy interests under federal law. (Id. at 4-5, 10.) The court agrees with 17 Providence and declines to enter an order allowing any party to use this discovery in 18 collateral or subsequent proceedings, or for any reason other than the present litigation. 19 HIPAA typically prevents a covered entity from disclosing PHI without first 20 providing the patient with notice and an opportunity to object to the disclosure. See 45 21 C.F.R. § 164.512. A covered entity may nevertheless disclose PHI without prior notice 22 1 in discovery where a qualifying protective order is in place. See, e.g., Ehrlich v. Union 2 Pac. R.R. Co., 302 F.R.D. 620, 628 (D. Kan. 2014); In re Nat’l Hockey League Players’
3 Concussion Injury Litig, 120 F. Supp. 3d 942, 953 (D. Minn. 2015); 45 C.F.R. 4 § 164.512(e)(1)(ii)(B), (e)(1)(v). A protective order satisfies HIPAA’s requirements if it 5 (1) prohibits the parties from using or disclosing the PHI for any purpose other than the 6 litigation for which the information was requested and (2) requires the return or 7 destruction of the PHI at the conclusion of the litigation. 45 C.F.R. § 164.512(1)(e)(v); In 8 re Nat’l Hockey League, 120 F. Supp. 3d at 953. Were the court to enter a protective
9 order with Plaintiffs’ proposed revisions to Sections 4.1 and 10, the protective order 10 would not comply with HIPAA; any disclosure of PHI would require compliance with 11 HIPAA’s notice procedures. 12 Moreover, the Ninth Circuit has not adopted a policy that permits collateral 13 litigants automatic access to confidential information produced during discovery in
14 another action. See Foltz v. State Farm Mut.
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3 4 5 6 7 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON 8 AT SEATTLE
9 10 CAROLINE ANGULO, et al., CASE NO. C22-0915JLR 11 Plaintiffs, ORDER v. 12 PROVIDENCE HEALTH & 13 SERVICES WASHINGTON, et al., 14 Defendants. 15 I. INTRODUCTION 16 Before the court is the parties’ joint motion requesting that the court enter either 17 Plaintiffs Caroline Angulo, Eric Keller, Isabel Lindsey, and Charles Lindsey’s 18 (collectively, “Plaintiffs”) or Defendant Providence Health & Services Washington’s 19 (“Providence”) proposed protective order. (Joint Statement (Dkt. # 67); Pls’ Prop. Order 20 (Dkt. # 67-5); Providence’s Prop. Order (Dkt. # 67-4).) The parties indicate that they 21 reached agreement on the terms of a protective order with seven exceptions. (See Joint 22 1 Statement at 3-10; see also infra §§ II.A-G.) The court has reviewed the parties’ joint 2 submissions and directs the parties to enter a proposed stipulated protective order
3 consistent with this order. 5 The court reviews each of the parties’ disputed proposed revisions to the Western 6 District of Washington’s model protective order and resolves the disputes. 7 A. Scope 8 The parties have agreed to add a paragraph to the model order’s “Scope”
9 paragraph (Section 3) that explicitly places certain material beyond the scope of the 10 protective order. (See Pls’ Prop. Order at 2-3; Providence’s Prop. Order at 2-3.) 11 However, the parties disagree about some of the language in that paragraph. 12 Providence’s proposed order provides that certain material will be exempt from 13 the order “except as required by [the Health Insurance Portability and Accountability Act
14 (‘HIPAA’)], RCW Ch. 70.02, or other statutory or regulatory privacy protections.” 15 (Providence’s Prop. Order at 2-3.) Providence’s proposed order further exempts material 16 “lawfully and properly” in the public domain. (Id.) Providence argues that both clauses 17 are necessary to comply with its obligations to protect its patients’ protected healthcare 18 information (“PHI”).1 (Joint Statement at 3-4.) Plaintiffs’ proposed order does not
19 20 1 HIPAA and its implementing regulations define the information within their ambit as “protected health information,” while Washington’s Uniform Health Care Information Act 21 (“UHCIA”) refers to “health care information.” Compare 45 C.F.R. § 160.103 (defining “protected health information” as individually identifiable health information”), with RCW 22 70.02.010(17) (defining “health care information” as “any information . . . that identifies or can 1 include either of these phrases. (See Pls’ Prop. Order at 2-3; see generally Joint 2 Statement (raising specific arguments regarding the “lawfully and properly” language but
3 not the patient privacy laws clause).) 4 The court agrees with Providence that the spirit of its proposed revision to this 5 section regarding compliance with state and federal patient privacy laws is necessary to 6 ensure it complies with its obligations to protect PHI, but finds Providence’s wording too 7 vague. Instead, the court concludes that Providence’s objectives are accomplished if this 8 clause is limited to HIPAA, RCW CH. 70.02, and each statute’s implementing
9 regulations. 10 Plaintiffs contend that Providence’s “lawfully and properly” language would 11 impose an undue burden on them to determine whether information entered the public 12 domain unlawfully or unproperly. (See Joint Statement at 3.) Providence argues that this 13 language is necessary to allow it “to designate as confidential information/documents that
14 become public in violation of the protective order or were improperly or unlawfully 15 acquired or disclosed.” (Id.) The court agrees with Plaintiffs that the “lawfully and 16 properly” language would impose an undue burden on a party seeking to introduce 17 material that was already in the public domain, and further finds it unnecessary to 18 accomplish Providence’s objectives; information or documents that become public in
19 violation of the order will be subject to the procedures set forth in Sections 8 and 9 of the 20 21
readily be associated with the identity of a patient and directly relates to the patient’s health 22 care”). Here, the court refers to both categories as “PHI.” 1 parties’ protective order. (See, e.g., Providence’s Prop. Order at 10-11.) The parties 2 must file a protective order that does not include “lawfully and properly.”
3 Therefore, the second paragraph in Section 3 of the parties’ protective order shall 4 state, “However, except as required by HIPAA, RCW Ch. 70.02, or either statute’s 5 implementing regulations, the protections conferred by this agreement do not cover 6 information that (a) is in the public domain through trial or otherwise . . . .” The 7 remainder of that section shall reflect the parties’ agreed-upon language. (See id. at 2-3; 8 Pls’ Prop. Order at 2-3.)
9 B. Basic Principles Regarding Access to and Use of Confidential Material and Non-Termination and Return of Confidential Material 10 Plaintiffs propose changes to Sections 4.1 (“Basic Principles Regarding Access to 11 and Use of Confidential Material”) and 10 (“Non-Termination and Return of Confidential 12 Material”) of this District’s model protective order that would allow the parties or class 13 members to use confidential materials obtained here for collateral litigation in which the 14 parties “have an interest” (Joint Statement at 4) and in subsequent, related, or derivative 15 actions (id. at 10.) Providence opposes both changes, arguing both would violate their 16 patients’ privacy interests under federal law. (Id. at 4-5, 10.) The court agrees with 17 Providence and declines to enter an order allowing any party to use this discovery in 18 collateral or subsequent proceedings, or for any reason other than the present litigation. 19 HIPAA typically prevents a covered entity from disclosing PHI without first 20 providing the patient with notice and an opportunity to object to the disclosure. See 45 21 C.F.R. § 164.512. A covered entity may nevertheless disclose PHI without prior notice 22 1 in discovery where a qualifying protective order is in place. See, e.g., Ehrlich v. Union 2 Pac. R.R. Co., 302 F.R.D. 620, 628 (D. Kan. 2014); In re Nat’l Hockey League Players’
3 Concussion Injury Litig, 120 F. Supp. 3d 942, 953 (D. Minn. 2015); 45 C.F.R. 4 § 164.512(e)(1)(ii)(B), (e)(1)(v). A protective order satisfies HIPAA’s requirements if it 5 (1) prohibits the parties from using or disclosing the PHI for any purpose other than the 6 litigation for which the information was requested and (2) requires the return or 7 destruction of the PHI at the conclusion of the litigation. 45 C.F.R. § 164.512(1)(e)(v); In 8 re Nat’l Hockey League, 120 F. Supp. 3d at 953. Were the court to enter a protective
9 order with Plaintiffs’ proposed revisions to Sections 4.1 and 10, the protective order 10 would not comply with HIPAA; any disclosure of PHI would require compliance with 11 HIPAA’s notice procedures. 12 Moreover, the Ninth Circuit has not adopted a policy that permits collateral 13 litigants automatic access to confidential information produced during discovery in
14 another action. See Foltz v. State Farm Mut. Auto. Ins. Co., 331 F.3d 1122, 1131-32 (9th 15 Cir. 2003). Instead, where collateral litigants seek access to discovery materials subject 16 to a protective order, they must move to modify the protective order and “demonstrate the 17 relevance of the protected discovery to the collateral proceedings and its general 18 discoverability therein.” Id. (discussing the issuing court and collateral court’s
19 involvement in determining whether such access should be granted). By allowing use of 20 discovery in collateral litigation in their proposed protective order, Plaintiffs effectively 21 seek an end-run around the procedures set forth in Foltz because they would be allowed 22 to share and use confidential health information without seeking leave to modify the 1 protective order and obtaining a relevancy determination from this court. See id. at 1132; 2 see also HDT Bio Corp. v. Emcure Pharms., Ltd., Case No. C22-0334JLR, 2022 WL
3 4131589, at *1 (W.D. Wash. Sept. 9, 2022) (relying on Foltz’s reasoning to enter 4 non-sharing protective orders). 5 Accordingly, the court declines to adopt Plaintiffs’ proposed revisions to Sections 6 4.1 and 10 of this District’s model protective order. The parties shall enter a proposed 7 stipulated protective order with the versions of Sections 4.1 and 10 proposed by 8 Providence.
9 C. Disclosure of Confidential Material to Deposition Witnesses 10 Plaintiffs propose diverting from the requirement in Section 4.2(f) of the model 11 order that witnesses sign the “Acknowledgment and Agreement to Be Bound” before 12 receiving confidential material during a deposition. (See Joint Statement at 5.) Plaintiffs 13 argue that a verbal acknowledgment is “less unwieldy” and preferable in Zoom
14 depositions and for lay witnesses. (Id.) Providence disagrees, arguing the revision “is 15 vague and fails to ensure that a witness clearly understands” their obligations under the 16 protective order. (See id. at 5-6.) The court agrees with Providence and orders the 17 parties to enter a proposed stipulated protective order that maintains the model order’s 18 signature requirement in Section 4.2(f).
19 D. Filing Confidential Material 20 Plaintiffs propose replacing Section 4.3 (“Filing Confidential Material”) of the 21 model order with a procedure that eliminates the meet-and-confer requirement imposed 22 by the model order and allows any party to file materials marked “Confidential” under 1 seal so long as no party has attempted to challenge the materials’ confidential status. (See 2 Joint Statement at 5.) Providence argues that this revision would allow the parties to
3 circumvent the procedures for filing documents under seal outlined in this District’s local 4 rules and instead proposes the parties’ protective order maintains the model order’s 5 procedures for filing confidential material. (See id.); see also Local Rules W.D. Wash. 6 LCR 5(g). Because of the “strong presumption of public access to the court’s files,” see 7 Local Rules W.D. Wash. LCR 5(g), the court declines to adopt Plaintiffs’ proposed 8 changes to Section 4.3. The parties shall enter a proposed stipulated protective order that
9 maintains the procedures for filing confidential information under seal set forth in Section 10 4.3 of the model order. 11 E. Compliance with State and Federal Health Care Information Laws 12 The parties vigorously dispute the language in their proposed protective order that 13 should govern the use of PHI. (See Joint Statement at 7-10.) Plaintiffs propose using
14 portions of a sample HIPAA protective order from the United States District Court for the 15 Northern District of Illinois. (See id. at 4; Pls.’ Prop. Order at 7.) Plaintiffs’ proposed 16 language includes a blanket authorization for the use and disclosure of PHI in connection 17 with the lawsuit. (See Pls’ Prop. Order at 4-5.) Providence proposes the addition of two 18 subsections to the model order, requiring parties seeking discovery of PHI to comply with
19 the UHCIA and HIPAA. (See Providence’s Prop. Order at 5 (creating new Section 4.4 20 requiring compliance with UHCIA and new Section 4.5 requiring compliance with 22 1 Providence argues that its proposed language complies with both the UHCIA’s 2 requirement that a party seeking PHI in discovery must provide advanced notice to the
3 patient and provider and with HIPAA’s requirements for qualifying protective orders. 4 (See Joint Statement at 7-8 (first citing RCW 70.02.060; and then citing 45 C.F.R. 5 § 164.512(e)(1)(ii)); see also supra § II.B.) Providence argues that Plaintiffs’ proposed 6 language fails to comply with these requirements and eliminates the language from the 7 Northern District of Illinois’s model order required by HIPAA. (Joint Statement at 8-10.) 8 The court agrees that Providence’s proposed subsections requiring compliance
9 with the UHCIA and HIPAA are best suited to ensure proposed class members’ privacy 10 interests are protected in this litigation. Accordingly, the court orders the parties to enter 11 a protective order with Sections 4.4 and 4.5 of Providence’s Proposed Order. 12 F. Inadvertent Production of Privileged or Otherwise Protected Material 13 Plaintiffs propose adding an additional section to the model order specifying that
14 inadvertent disclosures will not constitute waivers of privilege or other protection. (Pls’ 15 Prop. Order at 9.) Providence opposes the addition as unnecessary because Section 9 of 16 the model order already sets forth procedures following inadvertent production of 17 privileged information and enters a non-waiver order. (See Joint Statement at 10.) 18 Plaintiffs do not address this argument. (See id.) The court agrees with Providence that
19 Section 9 of the model order succinctly and thoroughly protects inadvertent privileged 20 disclosures and Plaintiffs’ addition is unnecessary. The court therefore orders the parties 21 to enter a stipulated protective order that does not include Plaintiffs’ proposed Section 11. 22 2 For the foregoing reasons, the court ORDERS the parties to file a proposed
3 stipulated protective order that complies with this order no later than April 20, 2023. 4 Specifically, the parties shall file a proposed stipulated protective order that conforms 5 with Providence’s Proposed Protective Order (Dkt. # 67-4) EXCEPT that Section 3 6 (“Scope”) of the proposed stipulated protective order shall use the language prescribed by 7 the court (see supra § II.A). 8 Dated this 13th day of April, 2023.
9 A 10 United States District Judge 12 13 14 15 16 17 18 19 20 21 22