Mazik v. Kaiser Permanente, Inc.

Opinion

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

14 UNITED STATES DISTRICT COURT 15 EASTERN DISTRICT OF CALIFORNIA 16 17 UNITED STATES OF AMERICA et al. ex rel. Case No. 2:19-cv-0559-DAD-KJN 18 JEFFREY MAZIK, JOINT STIPULATION AND ORDER 19 Plaintiffs, RE: NON-WAIVER OF PRIVILEGE 20 AND PROTECTED MATERIAL v. 21 KAISER FOUNDATION HEALTH PLAN, 22 INC., et al., 23 Defendants. 24

27 28 1 The Parties have jointly stipulated, seeking an Order regarding producing privileged 2 material and protected trial-preparation material. 3 GOOD CAUSE STATEMENT 4 The Parties recognize that, in this action, each Party (and potentially third parties) will 5 review and disclose large quantities of information and documents through the discovery process. 6 As a result, information and documents produced to another Party could include materials that 7 could have been withheld in whole or in part upon the basis of a privilege or protection, and thus 8 not subject to disclosure in discovery. The Parties desire that discovery proceed in an expeditious 9 and efficient manner without waiver of any privilege or the protection afforded to trial-preparation 10 material. Therefore, it is the intent of the Parties that the requirements set forth in Federal Rule of 11 Evidence 502(b) shall not apply to any determination of waiver under this Order. Instead, the 12 Parties set forth below the concrete directives intended to supplant the test set forth in Rule 502(b). 13 The concrete directives supplanting Rule 502(b)(1) and (2) are set forth in Paragraph 9 and the 14 concrete directives supplanting Rule 502(b)(3) are set forth in Paragraph 15. Good cause existing 15 for entry of this Protective Order, it is, pursuant to the Court’s authority under Rule 502(d) of the 16 Federal Rules of Evidence and with the consent of the Parties, ORDERED as follows: 17 DEFINITIONS 18 1. “Material” means and includes all items listed in Fed. R. Civ. P. 34(a)(l)(A) and (B), 19 including, but not limited to, paper documents, electronically-stored information, deposition 20 testimony, and discovery responses produced in this action. 21 2. “Protected Material” means Material that is subject to any claim of privilege that 22 may lawfully be asserted without limitation and work-product protections, including common 23 interest and protections afforded by Fed. R. Civ. P. 26(b). 24 3. “Producing Party” means either a Party or a third-party producing Material in this 25 action. 26 4. “Receiving Party” means the Party or Parties receiving the Material from the 27 Producing Party or third-party in this action. The use of the singular “Receiving Party” includes the 28 plural “Receiving Parties.” 1 GENERAL PROVISIONS 2 5. This Order applies to the attorney-client privilege, work-product protections, 3 including protections afforded by Fed. R. Civ. P. 26(b), Governmental privileges (including without 4 limitation deliberative process, investigatory files, and official privileges), trial-preparation 5 materials, and all privileges that may lawfully be asserted, without limitation. 6 6. This Order governs Material produced by a Producing Party in this action. 7 7. Subject to Paragraph 8, the production of Protected Material in this action does not 8 constitute a waiver of any privilege or protection in this action or any other federal or state 9 proceeding. This Order shall be interpreted to provide the maximum protection allowed by Rule 10 502(d) of the Federal Rules of Evidence. 11 8. The Parties agree that disclosure need not be “inadvertent” as that term is used in 12 Rule 502(b), but agree that all productions, designations, and requests for return of Protected 13 Material will be made in good faith. Accordingly, the Producing Party shall exercise good faith to 14 prevent the disclosure of Protected Material and shall not request the return of Protected Material 15 it produced knowing it to be privileged. 16 9. The Producing Party shall not file any motion or other pleading or action to dismiss, 17 remove, or disqualify the Receiving Party, any attorney or other person employed or retained by 18 the Receiving Party, or any third-party who received, reviewed, used, or disseminated Protected 19 Material from any actions, including but not limited to this action, due to the receipt, review, use, 20 or dissemination of Protected Material produced by the Producing Party prior to the receipt of 21 written notice in accordance with Paragraph 14. 22 10. Experts for a Receiving Party may review any material produced by a Producing 23 Party, but experts shall be bound by any notice from a Producing Party under this Order to the same 24 extent as the Receiving Party who has retained the expert. 25 11. Nothing in this Order prohibits a Producing Party from withholding from production 26 any Material covered by any privilege or other protection properly claimed. 27 12. If any Party has cause to believe that a violation of this Order has occurred or is 28 about to occur, it shall have the right to petition this Court for appropriate relief. 1 13. Any Party may seek modification of this Order for good cause – including but not 2 limited to any circumstance created or exacerbated by the terms of this Order that may result in an 3 unreasonable burden being imposed on any Party – at any time, but the provisions of this Order 4 shall continue to be binding after the termination of this action, whether by settlement, judgment, 5 or other disposition or conclusion and all appeals therefrom, unless otherwise ordered. The Parties 6 agree to promptly meet and discuss joint modification of this Order should any specific provision 7 become overly burdensome upon implementation. 8 SPECIFIC PROVISIONS 9 14. If the Producing Party determines it has produced Protected Material, the Producing 10 Party shall serve written notice upon the Receiving Party’s counsel of record within ten (10) 11 business days of discovering the disclosure. This notice shall provide information sufficient to meet 12 the requirements of Fed. R. Civ. P. 26(b)(5) and shall at a minimum identify for each claim of 13 privilege or protection: the Protected Material, by bates number, that it is recalling; the privilege or 14 protection asserted; and the basis for the invocation of the privilege or protection. The notice shall 15 ask that the Receiving Party take reasonable steps to either return, sequester, or destroy the 16 Protected Material. Additionally, the Producing Party must, together with the notice, provide a 17 redacted copy of the Protected Material (“Redacted Material”), eliminating information that it 18 considers privileged or protected, unless the Producing Party claims that the entirety of the 19 Protected Material is privileged or protected. 20 15. Upon receipt of the written notice, the Receiving Party shall promptly take 21 reasonable steps to return, sequester, or destroy all copies of the Protected Material and, beginning 22 on the date of receipt of the written notice, shall not review, refer to, quote, cite, rely upon, or 23 otherwise use the Protected Material unless agreed in writing by the Producing Party or authorized 24 by the Court pursuant to Paragraph 16. Within ten (10) business days of the date of the written 25 notice, the Receiving Party shall notify the Producing Party in writing that it has taken reasonable 26 steps to return, sequester, or destroy all copies of the Protected Material. Within ten (10) business 27 days of the date of the written notice, the Producing Party shall, in turn, provide a privilege log 28 entry for the Protected Material so that the Receiving Party may properly evaluate the privilege or 1 protection asserted and decide whether to challenge the designation. Nothing herein prevents the 2 Receiving Party from reviewing, referring to, quoting, citing, relying upon, or otherwise using the 3 Redacted Material. 4 16. If the Receiving Party has not reviewed the Protected Material prior to receiving 5 written notice from the Producing Party, it may not review the Protected Material for any purpose, 6 including to challenge the privilege or protection asserted in the Producing Party’s notice. If the 7 Receiving Party has reviewed the Protected Material prior to receiving written notice from the 8 Producing Party, it may rely on information gathered from its previous review to challenge the 9 privilege or protection asserted in the Producing Party’s notice. If the Receiving Party disputes the 10 privilege or protection asserted in the Producing Party’s notice, the Receiving Party must notify the 11 Producing Party’s counsel of record of its objection within ten (10) business days of receiving the 12 Producing Party’s notice. The Parties must then promptly attempt to resolve the dispute. If the 13 Parties are unable to resolve the dispute, the Receiving Party may, after providing reasonable notice 14 to the Producing Party, challenge the assertion of privilege or protection before the Court, along 15 with a copy of the Protected Material, under seal in accordance with Civil Local Rule 141. The 16 Parties shall, where appropriate, submit such portions of documents under seal in accordance with 17 Civil Local Rule 141 so as to maintain any privilege or protection claim. The Producing Party bears 18 the burden of proving the privilege or protection claim. In the event that the Court denies the 19 Receiving Party’s motion, the Receiving Party shall take reasonable steps to return or destroy all 20 copies of the Protected Material within fifteen (15) business days of the Court’s order. 21 17. If the Receiving Party determines that the Producing Party has produced Protected 22 Material, the Receiving Party shall notify the Producing Party and shall not refer to, quote, cite, 23 rely upon, or otherwise use the Protected Material until the Producing Party has had an opportunity 24 to serve written notice on the Receiving Party in accordance with Paragraph 14. Material is not 25 presumed to be Protected Material and the Receiving Party is not obligated to perform the 26 notification requirements of this paragraph solely because material contains a legend such as 27 “attorney-client privilege,” “attorney work product,” “privileged,” “deliberative process privilege,” 28 or another similar privilege assertion in the header, footer, signature block, or elsewhere in the 1 material and does not contain any other indicia of privilege. This Paragraph does not in any way 2 prevent the Producing Party from later identifying any document as Protected Material or 3 requesting the return, sequestration, or destruction of Protected Material in accordance with 4 Paragraph 14. 5 18. If the Receiving Party has disclosed Protected Material – either identified in the 6 Producing Party’s notice in accordance with Paragraph 14 or that the Receiving Party determines 7 has been produced in accordance with Paragraph 17 – to a third-party before receiving the notice 8 or making such a determination, the Receiving Party shall promptly take reasonable steps to retrieve 9 all copies of the Protected Material from the third-party, notify the third-party that either the 10 Producing Party is claiming that the material is privileged or protected or that the Receiving Party 11 has made this determination, and inform the third-party that the material must not be further 12 disclosed or used. The Receiving Party shall notify the Producing Party of this disclosure and the 13 efforts to recover the Protected Material, provided, however, that the Receiving Party shall not be 14 required to disclose information protected as attorney work product. 15 16 IT IS SO STIPULATED. 17 18 19 20 21 22 23 24 25 26 27 28 1 Dated: January 11, 2023 Respectfully submitted,

2 By: /s/ Dimitri D. Portnoi 3 DIMITRI D. PORTNOI KYLE M. GROSSMAN 4 Attorneys for Defendants Kaiser 5 Foundation Health Plan, Inc.; Kaiser Foundation Hospitals; The Permanente 6 Medical Group, Inc.; Southern 7 California Permanente Medical Group; and Colorado Permanente Medical 8 Group, P.C.

9 Dated: January 11, 2023 Respectfully submitted 10

11 By: /s/ Adam Pollock (as authorized 1/11/23) ADAM POLLOCK 12 Attorney for Plaintiff-Relator, Jeffrey 13 Mazik 14

22 23

24 25 26 27 28 1 ORDER 2 The court recognizes the parties’ stipulation (see ECF No. 95) and generally approves of 3 || the agreed upon procedures. The scope and effect of the agreement will be considered at such 4 || time that a dispute arises subject to the stipulation and the parties’ briefing on the specific matter. 5 || As with the concurrently issued protective order (see ECF No. 96), the court will not retain 6 || jurisdiction to hear disputes under this agreement once the case is closed. L.R. 141.1(f); see also, 7 || e.g., MD Helicopters, Inc. v. Aerometals, Inc., 2017 WL 495778 (E.D. Cal., Feb. 03, 2017) 8 || (noting that courts in the district generally do not agree to retain jurisdiction for disputes 9 || concerning protective orders after closure of the case). 10 IT IS SO ORDERED. 11 || Dated: January 17, 2023 Aectl Aharon 13 KENDALL J. NE vnavi.559 UNITED STATES MAGISTRATE JUDGE 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 JOINT STIP. RE: NON-WAIVER 7 OF PRIVILEGE AND PROTECTED MATERIAL