California Surgery Center, Inc. v. Unitedhealthcare, Inc.

Opinion

cScYhLilVl@IAgr JsOmO.c o (mSBN: 308236) sjoo@grsm.com 633 West Fifth Street, 52nd Floor Los Angeles, CA 90071 Telephone: (213) 576-5000 Facsimile: (213) 680-4470 Attorneys for Defendants UNITEDHEALTHCARE, INC. and GARY L. TYSCH (SBN: 128389) gltysch@pacbell.net 16133 Ventura Boulevard, Suite 580 Encino, CA 91436 Telephone: (818) 995-9555 Facsimile: (818) 995-9550 Attorneys for Plaintiffs CALIFORNIA SURGERY CENTER, INC. and UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA CALIFORNIA SURGERY CENTER, ) CASE NO. 2:19-cv-02309-DDP INC. and CALIFORNIA SPINE AND ) (AFMx) PAIN INSTITUTE, ) District Judge: Hon. Dean D. ) Pregerson Plaintiff, ) Magistrate Judge: Hon. Alexander F. ) MacKinnon vs. ) UNITEDHEALTHCARE, INC.; ) UNITEDHEALTHCARE INSURANCE ) REVISED STIPULATION AND COMPANY; and DOES 1-20, inclusive, ) [PROPOSED] PROTECTIVE ) ORDER Defendants. ) ) ) DISCOVERY MATTER ) ) ) ) ) ) SURGERY CENTER, INC. and CALIFORNIA SPINE AND PAIN INSTITUTE (collectively referred to as “Plaintiffs”) and Defendants UNITEDHEALTHCARE, INC. and UNITEDHEALTHCARE INSURANCE COMPANY (collectively referred to as “UHC”) (Plaintiffs and UHC are together referred to as “the Parties”), by and through their counsel of record, that in order to facilitate the exchange of information and documents which may be subject to confidentiality limitations on disclosure due to federal laws, state laws, and privacy rights, the Parties stipulate as follows: 1. In this Stipulation and Protective Order, the words set forth below shall have the following meanings: a. “Proceeding” means the above-entitled proceeding, United States District Court for the Central District of California Case No. 2:19-cv- 02309-DDP (AFMx); b. “Court” means District Judge Dean D. Pregerson, Magistrate Judge Alexander F. MacKinnon, or any other Judge to which this Proceeding may be assigned, including Court staff participating in such proceedings. c. “Confidential” means any information which is in the possession of a Designating Party who believes in good faith that such information is entitled to confidential treatment under applicable law, including any patient health information required to be kept confidential under any state or federal law, including 45 C.F.R. Parts 160 and 164 promulgated pursuant to the Health Insurance Portability and Accountability Act of 1996 (see 45 C.F.R. §§ 164.501 & 160.103). d. “Confidential Materials” means any Documents, Testimony or Information as defined below designated as “Confidential” pursuant to the provisions of this Stipulation and Protective Order and includes, but is not limited to, materials designated as “Attorney-Eyes Only”. “Attorney-Eyes Only” means any Confidential Materials which information should not be disclosed to anyone other than a Party’s attorney. f. “Designating Party” means the Party that designates Materials as “Confidential” or “Attorney-Eyes Only”. g. “Disclose” or “Disclosed” or “Disclosure” means to reveal, divulge, give, or make available Materials, or any part thereof, or any information contained therein. h. “Documents” means (i) any “Writing,” “Original,” and “Duplicate” as those terms are defined by California Evidence Code Sections 250, 255, and 260, which have been produced in discovery in this Proceeding by any person, and (ii) any copies, reproductions, or summaries of all or any part of the foregoing. i. “Information” means the content of Documents or Testimony. j. “Testimony” means all depositions, declarations or other testimony taken or used in this Proceeding. 2. The Designating Party shall have the right to designate as “Confidential” any Documents, Testimony or Information that the Designating Party in good faith believes to contain non-public information that is entitled to confidential treatment under applicable law. 3. The Designating Party shall have the right to designate as “Attorney- Eyes Only” any Confidential Materials that the Designating Party in good faith believes to contain non-public information that is entitled to confidential treatment under applicable law and that which should not be seen by any person other than a Party’s attorney. 4. The entry of this Stipulation and Protective Order does not alter, waive, modify, or abridge any right, privilege or protection otherwise available to any Party with respect to the discovery of matters, including but not limited to any Party’s right to assert the attorney-client privilege, the attorney work product doctrine, or other privileges, or any Party’s right to contest any such assertion. “Confidential” or “Attorney-Eyes Only” must be clearly so designated before the Document, Testimony or Information is Disclosed or produced. The parties may agree that the case name and number are to be part of the “Confidential” or “Attorney-Eyes Only” designation. The “Confidential” or “Attorney-Eyes Only” designation should not obscure or interfere with the legibility of the designated Information. a. For Documents (apart from transcripts of depositions or other pretrial or trial proceedings), the Designating Party must affix the legend “Confidential” and/or redact or obscure all confidential information on each page of any Document containing such designated Confidential Material. b. For Testimony given in depositions the Designating Party may either: i. identify on the record, before the close of the deposition, as “Confidential” Testimony, by specifying all portions of the Testimony that qualify as “Confidential;” or ii. designate the entirety of the Testimony at the deposition as “Confidential” (before the deposition is concluded) with the right to identify more specific portions of the Testimony as to which protection is sought within 30 days following receipt of the deposition transcript. In circumstances where portions of the deposition Testimony are designated for protection, the transcript pages containing “Confidential” Information may be separately bound by the court reporter, who must affix to the top of each page the legend “Confidential,” as instructed by the Designating Party. c. For Information produced in some form other than Documents, and for any other tangible items, including, without limitation, compact discs or DVDs, the Designating Party must affix in a prominent place on the exterior of the container or containers in which the Information or item is the Information or item warrant protection, the Designating Party, to the extent practicable, shall identify the “Confidential” or “Attorney-Eyes Only” portions. 6. The inadvertent production by any of the undersigned Parties or non- Parties to the Proceedings of any Document, Testimony or Information during discovery in this Proceeding without a “Confidential” or “Attorney-Eyes Only” designation, shall be without prejudice to any claim that such item is “Confidential” or “Attorney-Eyes Only” and such Party shall not be held to have waived any rights by such inadvertent production. In the event that any Document, Testimony or Information that is subject to a “Confidential” or “Attorney-Eyes Only” designation is inadvertently produced without such designation, the Party that inadvertently produced the document shall give written notice of such inadvertent production within twenty (20) days of discovery of the inadvertent production, together with a further copy of the subject Document, Testimony or Information designated as “Confidential” or “Attorney-Eyes Only” (the “Inadvertent Production Notice”). Upon receipt of such Inadvertent Production Notice, the Party that received the inadvertently produced Document, Testimony or Information shall promptly destroy the inadvertently produced Document, Testimony or Information and all copies thereof, or, at the expense of the producing Party, return such together with all copies of such Document, Testimony or Information to counsel for the producing Party and shall retain only the “Confidential” or “Attorney-Eyes Only” designated Materials. Should the receiving Party choose to destroy such inadvertently produced Document, Testimony or Information, the receiving Party shall notify the producing Party in writing of such destruction within ten (10) days of receipt of written notice of the inadvertent production. This provision is not intended to apply to any inadvertent production of any Information protected by attorney-client or work product privileges. In the event that this provision conflicts with any applicable law regarding waiver of confidentiality through the inadvertent production of 7. In the event that counsel for a Party receiving Documents, Testimony or Information in discovery designated as “Confidential” or “Attorney-Eyes Only” objects to such designation with respect to any or all of such items, said counsel shall advise counsel for the Designating Party, in writing, of such objections, the specific Documents, Testimony or Information to which each objection pertains, and the specific reasons and support for such objections (the “Designation Objections”). Counsel for the Designating Party shall have thirty (30) days from receipt of the written Designation Objections to either (a) agree in writing to de- designate Documents, Testimony or Information pursuant to any or all of the Designation Objections and/or (b) file a motion with the Court seeking to uphold any or all designations on Documents, Testimony or Information addressed by the Designation Objections (the “Designation Motion”). Pending a resolution of the Designation Motion by the Court, any and all existing designations on the Documents, Testimony or Information at issue in such Motion shall remain in place. The Designating Party shall have the burden on any Designation Motion of establishing the applicability of its “Confidential” or “Attorney-Eyes Only” designation. In the event that the Designation Objections are neither timely agreed to nor timely addressed in the Designation Motion, then such Documents, Testimony or Information shall be de-designated in accordance with the Designation Objection applicable to such material. 8. Access to and/or Disclosure of Confidential Materials designated as “Confidential” shall be permitted only to the following persons: a. the Court; b. (1) Attorneys of record in the Proceedings and their affiliated attorneys, paralegals, clerical and secretarial staff employed by such attorneys who are actively involved in the Proceedings and are not employees of any Party. (2) In-house counsel to the undersigned Parties and the paralegal, clerical and secretarial staff employed by such counsel. Provided, however, that each non- are being Disclosed pursuant to, and are subject to, the terms of this Stipulation and Protective Order and that they may not be Disclosed other than pursuant to its terms; c. those officers, directors, partners, members, employees and agents of all non-designating Parties that counsel for such Parties deems necessary to aid counsel in the prosecution and defense of this Proceeding; provided, however, that prior to the Disclosure of Confidential Materials to any such officer, director, partner, member, employee or agent, counsel for the Party making the Disclosure shall deliver a copy of this Stipulation and Protective Order to such person, shall explain that such person is bound to follow the terms of such Order, and shall secure the signature of such person on a statement in the form attached hereto as Exhibit A; d. court reporters in this Proceeding (whether at depositions, hearings, or any other proceeding); e. any deposition, trial or hearing witness in the Proceeding who previously has had access to the Confidential Materials, or who is currently or was previously an officer, director, partner, member, employee or agent of an entity that has had access to the Confidential Materials; f. any deposition or non-trial hearing witness in the Proceeding who previously did not have access to the Confidential Materials; provided, however, that each such witness given access to Confidential Materials shall be advised that such Materials are being Disclosed pursuant to, and are subject to, the terms of this Stipulation and Protective Order and that they may not be Disclosed other than pursuant to its terms; g. mock jury participants, provided, however, that prior to the Disclosure of Confidential Materials to any such mock jury participant, counsel for the Party making the Disclosure shall deliver a copy of this Stipulation and Protective Order to such person, shall explain that such person is bound to follow statement in the form attached hereto as Exhibit A; h. outside experts or expert consultants consulted by the undersigned Parties or their counsel in connection with the Proceeding, whether or not retained to testify at any oral hearing; provided, however, that prior to the Disclosure of Confidential Materials to any such expert or expert consultant, counsel for the Party making the Disclosure shall deliver a copy of this Stipulation and Protective Order to such person, shall explain its terms to such person, and shall secure the signature of such person on a statement in the form attached hereto as Exhibit A. It shall be the obligation of counsel, upon learning of any breach or threatened breach of this Stipulation and Protective Order by any such expert or expert consultant, to promptly notify counsel for the Designating Party of such breach or threatened breach; i. third party witnesses whether or not they will testify at any oral hearing; provided, however, that prior to the Disclosure of Confidential Materials to any such third party witness, counsel for the Party making the Disclosure shall deliver a copy of this Stipulation and Protective Order to such person, shall explain its terms to such person, and shall secure the signature of such person on a statement in the form attached hereto as Exhibit A; and j. any other person that the Designating Party agrees to in writing. 9. Access to and/or Disclosure of Confidential Materials designated as “Attorney-Eyes Only” shall be permitted only to the following persons: (1) Attorneys of record in the Proceedings and their affiliated attorneys, paralegals, clerical and secretarial staff employed by such attorneys who are actively involved in the Proceedings and are not employees of any Party. (2) In-house counsel to the undersigned Parties and the paralegal, clerical and secretarial staff employed by such counsel. Provided, however, that each non-lawyer given access to Confidential Materials and are subject to, the terms of this Stipulation and Protective Order and that they may not be Disclosed other than pursuant to its terms. 10. Confidential Materials shall be used by the persons receiving them only for the purposes of preparing for, conducting, participating in the conduct of, and/or prosecuting and/or defending the Proceeding, and not for any business or other purpose whatsoever. 11. Any Party to the Proceeding (or other person subject to the terms of this Stipulation and Protective Order) may ask the Court, after appropriate notice to the other Parties to the Proceeding, to modify or grant relief from any provision of this Stipulation and Protective Order. 12. Entering into, agreeing to, and/or complying with the terms of this Stipulation and Protective Order shall not: a. operate as an admission by any person that any particular Document, Testimony or Information marked “Confidential” or “Attorney-Eyes Only” contains or reflects trade secrets, proprietary, confidential or competitively sensitive business, commercial, financial or personal information; or b. prejudice in any way the right of any Party (or any other person subject to the terms of this Stipulation and Protective Order): i. to seek a determination by the Court of whether any particular Confidential Material should be subject to protection as “Confidential” or “Attorney-Eyes Only” under the terms of this Stipulation and Protective Order; or ii. to seek relief from the Court on appropriate notice to all other Parties to the Proceeding from any provision(s) of this Stipulation and Protective Order, either generally or as to any particular Document, Material or Information. / / / / Protective Order as of the time it is presented to the Court for signature may thereafter become a Party to this Stipulation and Protective Order by its counsel’s signing and dating a copy thereof and filing the same with the Court, and serving copies of such signed and dated copy upon the other Parties to this Stipulation and Protective Order. 14. Any Information that may be produced by a non-Party witness in discovery in the Proceeding pursuant to subpoena or otherwise may be designated by such non-Party as “Confidential” or “Attorney-Eyes Only” under the terms of this Stipulation and Protective Order, and any such designation by a non-Party shall have the same force and effect, and create the same duties and obligations, as if made by one of the undersigned Parties hereto. Any such designation shall also function as a consent by such producing Party to the authority of the Court in the Proceeding to resolve and conclusively determine any motion or other application made by any person or Party with respect to such designation, or any other matter otherwise arising under this Stipulation and Protective Order. 15. If any person subject to this Stipulation and Protective Order who has custody of any Confidential Materials receives a subpoena or other process (“Subpoena”) from any government or other person or entity demanding production of Confidential Materials, the recipient of the Subpoena shall promptly give notice of the same by electronic mail transmission, followed by either express mail or overnight delivery to counsel of record for the Designating Party, and shall furnish such counsel with a copy of the Subpoena. Upon receipt of this notice, the Designating Party may, in its sole discretion and at its own cost, move to quash or limit the Subpoena, otherwise oppose production of the Confidential Materials, and/or seek to obtain confidential treatment of such Confidential Materials from the subpoenaing person or entity to the fullest extent available under law. The recipient of the Subpoena may not produce any Documents, Testimony or Information pursuant to the Subpoena prior to the date specified for production on 16. Nothing in this Stipulation and Protective Order shall be construed to preclude either Party from asserting in good faith that certain Confidential Materials require additional protection. The Parties shall meet and confer to agree upon the terms of such additional protection. 17. If, after execution of this Stipulation and Protective Order, any Confidential Materials submitted by a Designating Party under the terms of this Stipulation and Protective Order is Disclosed by a non-Designating Party to any person other than in the manner authorized by this Stipulation and Protective Order, the non-Designating Party responsible for the Disclosure shall bring all pertinent facts relating to the Disclosure of such Confidential Materials to the immediate attention of the Designating Party. 18. This Stipulation and Protective Order is entered into without prejudice to the right of any Party to knowingly waive the applicability of this Stipulation and Protective Order to any Confidential Materials designated by that Party. If the Designating Party uses Confidential Materials in a non-Confidential manner, then the Designating Party shall advise that the designation no longer applies. 19. The Parties shall meet and confer regarding the procedures for use of Confidential Materials during the Proceeding and shall seek the entry of an appropriate order, if necessary. 20. Nothing in this Stipulation and Protective Order shall affect the admissibility into evidence of Confidential Materials, or abridge the rights of any person to seek judicial review or to pursue other appropriate judicial action with respect to any ruling made by the Court concerning the issue of the status of Protected Material. 21. This Stipulation and Protective Order shall continue to be binding after the conclusion of this Proceeding and all subsequent proceedings arising from this Proceeding, except that a Party may seek the written permission of the Designating Party or may move the Court for relief from the provisions of this retain jurisdiction to enforce, modify, or reconsider this Stipulation and Protective Order, even after the Proceeding is terminated. 22. Upon written request made within thirty (30) days after the settlement or other termination of the Proceeding, the undersigned Parties shall have thirty (30) days to either (a) promptly return to counsel for each Designating Party all Confidential Materials and all copies thereof (except that counsel for each Party may maintain in its files, in continuing compliance with the terms of this Stipulation and Protective Order, all work product, and one copy of each pleading filed with the Court [and one copy of each deposition together with the exhibits marked at the deposition)]*, (b) agree with counsel for the Designating Party upon appropriate methods and certification of destruction or other disposition of such Confidential Materials, or (c) as to any Documents, Testimony or other Information not addressed by sub-paragraphs (a) and (b), file a motion seeking a Court order regarding proper preservation of such Materials. To the extent permitted by law the Court shall retain continuing jurisdiction to review and rule upon the motion referred to in sub-paragraph (c) herein. *[The bracketed portion of this provision shall be subject to agreement between counsel for the Parties in each case.] 23. After this Stipulation and Protective Order has been signed by counsel for all Parties, it shall be presented to the Court for entry. Counsel agree to be bound by the terms set forth herein with regard to any Confidential Materials that have been produced before the Court signs this Stipulation and Protective Order. 24. The Parties and all signatories to the Certification attached hereto as Exhibit A agree to be bound by this Stipulation and Protective Order pending its approval and entry by the Court. In the event that the Court modifies this Stipulation and Protective Order, or in the event that the Court enters a different Protective Order, the Parties agree to be bound by this Stipulation and Protective Order until such time as the Court may enter such a different Order. It is the pending its entry so as to allow for immediate production of Confidential Materials under the terms herein. 25. The Court may only enter a protective order upon a showing of good cause. See Kamakana v. City and County of Honolulu, 447 F.3d 1172, 1176 (9th Cir. 2006). Here, good cause exists for the entry of a protective order because the information in this matter contained in the Documents involves patient personal health information, which is protected by the Health Insurance Portability and Accountability Act (HIPAA) and the right to privacy. A protective order is therefore necessary to ensure the confidential information is protected. 26. This Stipulation and Protective Order does not govern the use of confidential information at trial. Use of confidential information at trial shall be governed by orders of the trial judge. 27. Under Seal Filings: Parties shall make every effort to limit the number and volume of under seal filings. In most circumstances, parties should seek to file under seal only the specific portions or exhibits or documents for which there is a valid basis for filing under seal. Requests to file memoranda of points and authorities under seal are disfavored. Pursuant to Local Rule 79-5.2.2, except in sealed civil cases, “no document may be filed under seal without prior approval by the Court.” When seeking the Court’s approval for an under-seal filing, the submitting party shall comply with the procedures established in Local Rule 79- 5.2.2(a). Because documents filed under seal are only visible on CM/ECF or Pacer to Court personnel and the party that filed the document, a party electronically filing a document under seal may not rely on the Court’s CM/ECF System to effect service as provided in Local Rule 5-3.2.1. Therefore, documents filed electronically under seal must be served in accordance with Federal Rule of Civil Procedure 5. / / / / 1 This Stipulation and Protective Order may be executed in counterparts. 2 Dated: February 4, 2020 GORDON REES SCULLY

4 By: Sylvia Joo 5 Courtney C. Hill Sylvia Joo 6 Attorneys for Defendants 4 UNITEDHEALTHCARE, INC. and UNITEDHEALTHCARE 8 INSURANCE COMPANY 9 Dated: February 4, 2020 LAW OFFICES OF GARY L. TYSCH 10 ul By: /4s/Gary L. Tysch Gary L. Tysch 12 Attorney for Plaintiffs CALIFORNIA SURGERY = 13 CENTER, INC. AND CALIFORNIA SPINE AND PAIN 15 Filer’s Attestation: Pursuant to Local Rule 5-4.3.4(a)(2)(i) regarding signatures, I, 16 Sylvia Joo, hereby attest that all other signatories listed concur in the content of

2 17 || this document and have authorized its filing.

18 /s/ Sylvia Joo 19 ylvia Joo 21 GOOD CAUSE APPEARING, the Court hereby approves this Stipulation 22 and Protective Order. 23 IT IS SO ORDERED. ° 24 25 Dated: 2/18/2020 Alexander F. MacKinnon 26 United States Magistrate Judge 27 28

1A.

I hereby acknowledge that I, ____________[NAME], ___________________ [POSITION AND EMPLOYER], am about to receive Confidential Materials supplied in connection with the Proceeding, Central District of California Case No. 2:19-cv-02309-DDP (AFMx). I certify that I understand that the Confidential Materials are provided to me subject to the terms and restrict- ions of the Stipulation and Protective Order filed in this Proceeding. I have been given a copy of the Stipulation and Protective Order; I have read it, and I agree to be bound by its terms. I understand that Confidential Materials, as defined in the Stipulation and Protective Order, including any notes or other records that may be made regarding any such materials, shall not be Disclosed to anyone except as expressly permitted by the Stipulation and Protective Order. I will not copy or use, except solely for the purposes of this Proceeding, any Confidential Materials obtained pursuant to this Protective Order, except as provided therein or otherwise ordered by the Court in the Proceeding. I further understand that I am to retain all copies of all Confidential Materials provided to me in the Proceeding in a secure manner, and that all copies of such Materials are to remain in my personal custody until termination of my participation in this Proceeding, whereupon the copies of such Materials will be returned to counsel who provided me with such Materials. I declare under penalty of perjury, under the laws of the United States of America that the foregoing is true and correct. Executed this _____ day of _________, 20__, at _________________. DATED: BY: Signature Title Address -City, State, Zip Telephone Number