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Josef K. v. California Physicians' Service

United States District Court, N.D. California

September 23, 2019

Josef K., et al., Plaintiffs,
California Physicians' Service, et al., Defendants.



         The Court is in receipt of the parties’ letter briefs regarding plaintiffs’ request for discovery in the form of five interrogatories to defendant Maximus Federal Services, Inc. (“Maximus”). (Dkt. Nos. 81, 83.) Specifically, plaintiffs request discovery regarding Maximus’ overturn rates, the identities of the physician-reviewers who performed the relevant medical reviews in this case, and the overturn rates for those particular physician-reviewers. (Dkt. No. 81 at 2-3.)

         Having carefully reviewed the letter briefs and related papers, and for the reasons stated below, the Court Grants plaintiffs’ request for leave to propound the proposed interrogatories.

         With respect to interrogatories 1 through 3, Maximus has represented that, “[s]hould the Court assume for purposes of discovery that M[aximus] is a fiduciary of the plan, ” Maximus is willing to provide plaintiffs with the requested information. (Dkt. No. 83 at 4.) At this juncture, the Court need not take a position on whether Maximus is in fact a fiduciary. Given the pending legal claim, information regarding Maximus’ overturn rates is relevant and proportional to the needs of the case. See Fed. R. Civ. P. 26.

         As to interrogatories 4 and 5, the Court finds that information regarding the identities and overturn rates of the physician-reviewers who performed the review at issue is likewise relevant and proportional to the needs of the case. In their first amended complaint, plaintiffs allege that Maximus breached its fiduciary duty by performing a “cursory, incomplete, and/or biased” review of plaintiff E.K.’s claim. (Dkt. No. 46 ¶¶ 102-104.) Thus, the manner in which the review was conducted is at the crux of plaintiffs’ fiduciary duty claim. Plaintiffs therefore are entitled to the requested information about the individuals who performed this review.[1]

         Accordingly, plaintiffs’ request for leave to propound the proposed interrogatories is Granted. Further, the Court Adopts the proposed amended protective order, attached hereto as Exhibit A

         This Order terminates Dkt. No. 81.

         It Is So Ordered.

         EXHIBIT A

         Complaint Filed: October 18, 2018

         First Amended Complaint Filed: March 5, 2019

         Jeremy A. Meier SBN 139849, Willis M. Wagner, SBN 310900, Alicia R. Intriago, SBN 320102, GREENBERG TRAURIG, LLP Attorneys for Defendant, MAXIMUS FEDERAL SERVICES, INC.



         Disclosure and discovery activity in this action are likely to involve production of confidential, proprietary, or private information for which special protection from public disclosure and from use for any purpose other than prosecuting this litigation may be warranted. Accordingly, the parties hereby stipulate to and petition the court to enter the following Stipulated Protective Order. The parties acknowledge that this Order does not confer blanket protections on all disclosures or responses to discovery and that the protection it affords from public disclosure and use extends only to the limited information or items that are entitled to confidential treatment under the applicable legal principles. The parties further acknowledge, as set forth in Section 12.3, below, that this Stipulated Protective Order does not entitle them to file confidential information under seal; Civil Local Rule 79-5 sets forth the procedures that must be followed and the standards that will be applied when a party seeks permission from the court to file material under seal.

         The parties acknowledge that information produced in this case, regardless of its designation under this Order, may contain personal and health information subject to the protections of, inter alia, the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”), the applicable requirements of the Standards for Privacy of Individually Identifiable Health Information and its implementing regulations issued by the U.S. Department of Health and Human Services (45 C.F.R. Parts 160-64; HIPAA Privacy Regulations), and California Civil Code §§ 56 et seq., and 1798.82 et seq. (collectively “Privacy Laws”), which protect the confidentiality of individually identifiable personal and health information. The parties agree to take all measures necessary to comply with the requirements of the Privacy Laws and any other applicable laws governing the privacy of personal and health information. Such measures include, but are not limited to, the development, implementation, maintenance, and use of appropriate administrative, technical, and physical safeguards, in compliance with the Privacy Laws and applicable state and federal laws, to preserve the integrity, confidentiality, and availability of Protected Material. The parties expressly agree that the citations to the Privacy Laws in this paragraph are for convenience only and that it remains the obligation of each party to the action to understand and comply with the obligations imposed by the Privacy Laws and any other potentially applicable state and federal law. Accordingly, to expedite the flow of information, to facilitate the prompt resolution of disputes over confidentiality of discovery materials, to adequately protect information the parties are entitled to keep confidential, to ensure that the parties are permitted reasonable necessary uses of such material in preparation for and in the conduct of trial, to address their handling at the end of the litigation, and serve the ends of justice, a protective order for such information is justified in this matter. It is the intent of the parties that information will not be designated as confidential for tactical reasons and that nothing be so designated without a good faith belief that it has been maintained in a confidential, non-public manner, and there is good cause why it should not be part of the public record of this case.

         2. DEFINITIONS

         2.1 Challenging Party: a Party or Non-Party that challenges the designation of information or items under this Order.

         2.2 “CONFIDENTIAL” Information or Items: information (regardless of how it is generated, stored or maintained) or tangible things that qualify for protection under Federal Rule of Civil Procedure 26(c), including but not limited to information protected by the Privacy Laws.

         2.3 “HIGHLY CONFIDENTIAL AEO” Information or Items: Any CONFIDENTIAL Information may be designated by the Designating Party as attorney eyes only by marking it “HIGHLY CONFIDENTIAL AEO.” A Designating Party may designate CONFIDENTIAL Information as “HIGHLY CONFIDENTIAL AEO” if the Designating Party believes in good faith that the CONFIDENTIAL Information contains, constitutes, reveals, or reflects trade secrets or personal information, or other information of a high degree of commercial or personal sensitivity and/or would provide a competitive advantage to its competitors, or of which the disclosure to another party or non-party would create a substantial risk of serious injury to the designating party, party or non-party that could not be avoided by less restrictive means.

         2.3 Counsel (without qualifier): Outside Counsel of Record and House Counsel (as well as their support staff).

         2.4 Designating Party: a Party or Non-Party that designates information or items that it produces in disclosures or in responses to discovery as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL AEO”.

         2.5 Disclosure or Discovery Material: all items or information, regardless of the medium or manner in which it is generated, stored, or maintained (including, among other things, testimony, transcripts, and tangible things), that are produced or generated in disclosures or responses to discovery in this matter.

         2.6 Expert: a person with specialized knowledge or experience in a matter pertinent to the litigation who has been retained by a Party or its counsel to serve as an expert witness or as a consultant in this action.

         2.7 House Counsel: attorneys who are employees of a party to this action. House Counsel does not include Outside Counsel of Record or any other outside counsel.

         2.8 Non-Party: any natural person, partnership, corporation, association, or other legal entity not named as a Party to this action.

         2.9 Outside Counsel of Record: attorneys who are not employees of a party to this action but are retained to represent or advise a party to this action and have appeared in this action on behalf of that party or are affiliated with a law firm which has appeared on behalf of that party.

         2.10 Party: any party to this action, including all of its officers, directors, employees, consultants, retained experts, and Outside Counsel of Record (and their support staffs).

         2.11 Producing Party: a Party or Non-Party that produces Disclosure or Discovery Material in this action.

         2.12 Professional Vendors: persons or entities that provide litigation support services (e.g., photocopying, videotaping, translating, preparing exhibits or demonstrations, and organizing, storing, or retrieving data ...

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