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Eden Surgical Center v. Centric Group

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA


August 24, 2011

EDEN SURGICAL CENTER, PLAINTIFF,
v.
CENTRIC GROUP, IN ITS CAPACITY AS ADMINISTRATOR OF THE CENTRIC GROUP HEALTH BENEFIT PLAN, AND CENTRIC GROUP HEALTH BENEFIT PLAN, DEFENDANTS.

The opinion of the court was delivered by: Margaret A. Nagle United States Magistrate Judge

PROTECTIVE ORDER ENTERED PURSUANT TO THE PARTIES' STIPULATION

Pursuant to Rule 26(c) of the Federal Rules of Civil Procedure and based on the Stipulated Protective Order ("Stipulation") entered by and between plaintiff Eden Surgical Center ("Plaintiff") and defendants Centric Group, LLC and Centric Group Health Benefit Plan ("Defendants"), filed on August 1, 2011, the terms of the protective order to which the parties have agreed are adopted as a protective order of this Court (which generally shall govern the pretrial phase of this action except to the extent, as set forth below, that those terms have been substantially modified by the Court's amendment of Paragraphs 3, 6(c), 8, 9, 11, and 15 of, and Exhibit A to, the Stipulation.

The parties are expressly cautioned that the designation of any document,*fn1 transcript of, or exhibit to, depositions, interrogatory answer, response to requests for admissions, and other written, recorded, or graphic material, including all copies, excerpts, abstracts, or summaries therefore (collectively, "Litigation Material") as "CONFIDENTIAL" or other designation(s) used by parties, does not, in and of itself, create any entitlement to file such Litigation Material, in whole or in part, under seal. Accordingly, reference to this Protective Order or to the parties' designation of any Litigation Material as "CONFIDENTIAL," or other designation(s) used by parties is wholly insufficient to warrant a filing under seal.

There is a strong presumption that the public has a right of access to judicial proceedings and records in civil cases. In connection with non-dispositive motions, good cause must be shown to support a filing under seal. The parties have endeavored, in Paragraph 3 of their Stipulation, to make a prospective showing of good cause. The Court has stricken that paragraph, because a specific showing of good cause or compelling reasons (see below) for filing under seal, with proper evidentiary support and legal justification, must be made with respect to each item of Litigation Material sought to be filed under seal. The parties' mere designation of any Litigation Material as "CONFIDENTIAL," or other designation(s) used by partiesdoes not - without the submission of competent evidence, in the form of a declaration or declarations, establishing that the Litigation Material sought to be filed under seal qualifies as confidential, privileged, or otherwise protectable - constitute good cause.

Further, if sealing is requested in connection with a dispositive motion or trial, then compelling reasons, as opposed to good cause, for the sealing must be shown, and the relief sought shall be narrowly tailored to serve the specific interest to be protected. See Pintos v. Pacific Creditors Ass'n, 605 F.3d 665, 677-79 (9th Cir. 2010). For each item of Litigation Material sought to be filed or introduced under seal in connection with a dispositive motion or trial, the party seeking protection must articulate compelling reasons, supported by specific facts and legal justification, for the requested sealing order. Again, competent evidence supporting the application to file Litigation Material under seal must be provided by declaration.

Any Litigation Material that is not confidential, privileged, or otherwise protectible in its entirety will not be filed under seal if the confidential portions can be redacted. If the Litigation Material can be redacted, then a redacted version for public viewing, omitting only the confidential, privileged, or otherwise protectible portions of the document, shall be filed. Any application that seeks to file Litigation Material under seal in their entirety should include an explanation of why redaction is not feasible.

Notwithstanding any other provision of this Protective Order, in the event that this case proceeds to trial, all Litigation Material discussed or introduced into evidence at trial will become public and available to all members of the public, including the press, unless sufficient cause is shown in advance of trial to proceed otherwise.

STIPULATION

1. This Protective Order (the "Order") shall govern the use, handling, and disclosure of all Litigation Material produced, filed with the Court, served, or obtained by any party or non-party in this action (collectively, "Person(s)").

2. Any Person shall have the right, before disclosure to other parties, to designate as "CONFIDENTIAL" Litigation Material it produces or provides that an attorney on behalf of the party in good faith believes constitutes, reflects, or discloses its confidential information; commercial information; personal, private information of third parties; or other proprietary or highly confidential information. For purposes of this Order, Litigation Material that may be designated as "CONFIDENTIAL" shall be limited to non-public information and documents that relate to: (i) Plan documents and related Plan and claim information; (ii) pricing of the medical services at issue; and (iii) personal, private information of third parties.

3.OMITTED BY THE COURT

4. All Litigation Material designated as "CONFIDENTIAL" and all information derived therefrom, shall be referred to in this Order as "Designated Material" and shall be handled in strict accordance with the terms of this Order. Absent an order by the Court, such Designated Material shall be used by the parties to this action solely in connection with this action or any appeal therefrom, and not for any other purpose, except as required by law, and such Designated Material shall not be disclosed to anyone except as provided herein. Designated Material may be disclosed only under the circumstances and to the persons specifically provided for in this Order or any subsequent court order, or with the explicit written consent of the designating Person with respect to specifically identified Designated Material.

5. Nothing contained herein shall prevent any Person from disclosing its own Designated Material or information contained therein as it deems appropriate; provided, however, that such disclosure shall not affect in any way the obligations of persons receiving Designated Material pursuant to this Order, unless such material meets the criteria set forth in paragraph 16 of this Order. Further, based on such disclosures, any other party may seek to change the designation of such material pursuant to paragraph 14 of this Order.

6. Litigation Material designated as "CONFIDENTIAL" or information derived therefrom may be disclosed, shown, or made available, or communicated in any way only to the following persons:

a. qualified persons taking testimony involving Designated Material, and necessary stenographic, videographic, and clerical personnel thereof;

b. experts or consultants and their staff who are employed for the purposes of this litigation, provided that the provisions of Paragraph 9 of this Order are complied with prior to disclosure of any Designated Material to such an expert or consultant;

c. the Court and its personnel, to whom the provisions of Paragraphs 9 and 10 of this Order shall not apply;

d. officers, directors and employees of the parties, but only to the extent necessary to participate in, assist in and monitor the progress of this action and for no other purpose, and provided that the provisions of Paragraph 9 of this Order are complied with prior to disclosure of any Designated Material to such officers, directors and employees;

e. third parties specifically retained to assist outside counsel in copying, imaging, and/or coding of documents, but for that purpose only, provided that all such documents are kept and maintained in a separate and secure place and that the third party retained to copy, image, or code confidential documents is not currently performing any services, either as an employee, consultant, or otherwise for any competitor of any party to this action or for one having any interest adverse to any party to this action;

f. witnesses deposed in this action or who are called as witnesses at any hearing in this action, but only as set forth in Paragraph 11 of this Order.

7. Designated Material shall be so designated by marking or stamping such material "CONFIDENTIAL" at such time as the material is disclosed. Making Litigation Material available for inspection shall not constitute a waiver of any claim of confidentiality, and all Litigation Material provided for inspection shall be treated as though designated as "CONFIDENTIAL" from the time of inspection until those documents are produced.

8. Any deposition testimony may be classified as Designated Material by indicating on the record at the deposition, or within twenty (20) court days after receipt of the transcript of such deposition, that the examination or testimony discloses Designated Material under the terms of this Order. The specific portions of the original deposition transcript, of the exhibits, and of all copies of exhibits thereto that contain Designated Material shall be identified by the designating Person by letter to all other parties, and if and when filed with the Court, the confidential portions of such transcripts shall be filed pursuant to Paragraph 17 of this Order.

9. Subject to the disclosure limitations set forth in Paragraph 6 and except for persons described in Paragraph 6 subparts (a), (c), (e), and (f) of this Order, all persons to whom Designated Material is disclosed or by whom Designated Material is used, including parties, non-parties, and their representatives, shall be informed of and agree to be bound by the terms of this Order and shall take all necessary precautions to prevent any disclosure or use of Designated Material other than as authorized by this Order.

a. Subject to the disclosure limitations set forth in Paragraph 6, and prior to dissemination of Designated Material to any person, other than persons described in Paragraph 6 subparts (a), (c), (e), and (f) of this Order, the disclosing party shall: (i) obtain from such person a written acknowledgment, substantially in the form of Exhibit A annexed hereto, that such person has reviewed a copy of this Order, will comply with its terms in all respects, and will submit to the jurisdiction of this Court for adjudication of any dispute about whether such person has complied with the terms of this Order; (ii) maintain a copy of this acknowledgment evidencing that such person has executed the undertaking set out herein; and (iii) upon request, subject to the rules regarding expert disclosures, provide a copy of this acknowledgment to the Person whose Designated Material it discloses.

b. Individuals who are authorized to review Designated Material pursuant to this Order shall hold the Designated Material and its contents in confidence and shall not divulge the Designated Material or its contents, either verbally or in writing except as expressly permitted by this Order, unless authorized to do so by a further Order of this Court or as specifically required by law.

10. All Litigation Material designated "CONFIDENTIAL" shall be kept in secure facilities, and access to those facilities shall be permitted only to those persons set forth in Paragraph 6 of this Order.

11. Witnesses deposed in this action or who are called as witnesses at any deposition or hearing in this action may be shown Designated Material, but only in preparation for, or during, the deposition or hearing, and only under the following circumstances:

a. The witness is identified as a originator, signatory, author, addressee, or recipient of the original or a copy of the Designated Material or is in a position that he or she would logically review or receive such Designated Material in the course of his or her employment;

b. The witness is otherwise entitled under this Order to see the Designated Material; or

c. The designating Person has given prior permission for the witness to see the Designated Material and has notified all other parties that the designating Person has waived confidentiality of the Designated Material as to this witness.

12. A designating Person who inadvertently fails to mark Designated Material as "CONFIDENTIAL" at the time of the production shall have seven (7) court days from discovery of the oversight to correct its failure. Such correction and notice thereof shall be made in writing, accompanied by substitute copies of each Litigation Material appropriately marked as "CONFIDENTIAL." Within five

(5) court days of receipt of the substitute copies, the receiving party shall return or destroy the previously undesignated materials and all copies thereof that such party has in its custody.

13. If Designated Material is disclosed to any person or entity other than in the manner authorized herein, the party responsible for the disclosure must immediately bring all pertinent facts relating to such disclosure to the attention of all interested parties and the Court, without prejudice to other rights and remedies of the designating Person, and shall make every effort to prevent further disclosure by it or by the person who was the recipient of such information.

14. If at any time during the pendency or trial of this action, counsel for any party claims that Designated Material is not appropriately so designated, objecting counsel shall follow the procedures set forth in United States District Court Central District of California Local Rules 37-1 though 37-4. The parties acknowledge that there are no time restrictions on the assertion of such rights or procedures other than as set forth in the rules themselves.

15. If any person receives a subpoena or other lawful process (referred to in this paragraph as a subpoena) requesting or directing that party to produce to a third-party (including, without limitation, a governmental agency) any Designated Material, the person receiving the subpoena shall immediately give notice to the designating Person of the fact of the subpoena and a summary of the documents requested in the subpoena so as to enable the designating Person to attempt to intervene or otherwise object to the production of the Designated Material. Nothing in these provisions should be construed as authorizing or encouraging a subpoenaed party in this action to disobey a lawful directive from another court.

16. Notwithstanding any other provision of this Order to the contrary, the confidentiality obligations of this Order shall not apply or shall cease to apply to any information that:

a. at the time of disclosure hereunder was already in the public domain by publication or otherwise;

b. since the time of disclosure hereunder has become, through no act or failure on the part of the receiving party, part of the public domain by publication or otherwise; or

c. after disclosure hereunder, was acquired by the receiving party from a third party lawfully possessing the same and having no obligation to the designating Person hereunder.

17. Without express written permission from the designating Party or a court order secured after appropriate notice to all interested persons, a Party may not file in the public record of this litigation any Designated Material. A Party that seeks to file under seal any Designated Material must comply with Civil Local Rule 79-5.

18. Upon the termination of this proceeding, this Order shall continue to be binding upon the parties hereto, and upon all persons to whom Designated Material has been disclosed or communicated, and this Court shall retain jurisdiction to enforce this Order.

19. Subject to final order of the Court upon completion of any matters relating to this case, within twenty (20) calendar days after entry of any final and unappealable judgment in this litigation, any and all Designated Material shall be returned to the designating Person or, at the option of the designating Person, destroyed, provided, however, that counsel for each party shall be permitted to retain and archive Designated Material that is contained in pleadings, other court filings or deposition transcripts (including exhibits thereto). If Designated Material is destroyed pursuant to this paragraph, the party destroying such Designated Material shall certify in writing to the designating Person that such destruction has taken place.

20. This Order is being entered without prejudice to the right of any party to move to the Court for modification of, or relief from, any of its terms.

21. When any third party produces documents or testimony pursuant to a request from a party in this matter, such third parties may designate their documents or testimony as "CONFIDENTIAL" pursuant to this Order. In addition, within ten (10) court days of the receipt of any third-party documents or testimony, any of the parties may designate such documents or testimony as "CONFIDENTIAL" pursuant to this Order.

IT IS SO ORDERED.

EXHIBIT A

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

CASE NO.: 2:10-cv-7024-RGK (MANx)

ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND BY PROTECTIVE ORDER

EDEN SURGICAL CENTER, Plaintiff, v. CENTRIC GROUP, in its capacity as Administrator of the CENTRIC GROUP HEALTH BENEFIT PLAN, and CENTRIC GROUP HEALTH BENEFIT PLAN, Defendants.

My name is _________________________. My home address is _______________________________________________________. I am employed as (state position) _________________________ at (state name and address of employer) 1. I have read the Protective Order ("Order"), and a copy of it has been given to me. I understand the provisions of the Order, and I agree to comply with and to be bound by its provisions. 2. I further agree to submit to the jurisdiction of the Court for adjudication of any dispute regarding my compliance with the terms of the Order. I declare under penalty of perjury under the law of the United States of America that the foregoing is true and correct. Executed this ______ day of ___________________, 20____ at_______________________. __________________________ (Signature)


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