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Eden Surgical Center v. Centric Group

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, ...


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