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United States ex rel. Luke v. Healthsouth Corp.

United States District Court, D. Nevada

October 23, 2017

UNITED STATES OF AMERICA, ex rel., Joshua Luke, Plaintiff,
v.
HEALTHSOUTH CORPORATION, HEALTHSOUTH OF HENDERSON INC., KENNETH BOWMAN, JERRY GRAY, and JAYA PATEL, Defendants.

          THORNDAL, ARMSTRONG, DELK, BALKENBUSH & EISINGER THORNDAL, ARMSTRONG, DELK, BALKENBUSH & EISINGER Attorneys for Plaintiff-Relator Joshua Luke.

          PISANELLI BICE, PLLC JAMES J. PISANELLI ESQ. NORTON ROSE FULBRIGHT U.S. LLP R. JEFFREY LAYNE, ESQ. Attorneys for Defendants HealthSouth Corp. And HealthSouth of Henderson, Inc.

          BRADLEY ARANT BOULT CUMMINGS LLP KIMBERLY BESSIERE MARTIN, ESQ. Attorneys for Defendants Jaya Patel, Kenneth Bowman, and Jerry Gray.

          STIPULATED PROTECTIVE ORDER

         IT IS HEREBY STIPULATED AND AGREED, by and between Plaintiff/Relator Joshua Luke (“Relator”), and Defendants HealthSouth Corporation, HealthSouth of Henderson Inc., Kenneth Bowman, Jerry Gray, and Jaya Patel (“Defendants”) (collectively, the “Parties”), through their undersigned counsel and subject to the approval of the Court, that the Parties have reached an agreement on the terms of this Protective Order (“Order”), and the Court being fully advised and for good cause shown, hereby enters the following ORDER:

         1. The purpose of this Order is to expedite the exchange of discovery material between the Parties; to facilitate the prompt resolution of disputes over confidentiality; to adequately protect material that is entitled to be kept confidential, including but not limited to Protected Health Information (“PHI”) governed by the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”); to ensure that confidentiality is afforded to all material so entitled; and to prevent the disclosure of materials deemed confidential to persons or entities other than those involved in the prosecution or defense of this action. This Order is necessary to protect the Parties and other persons from potential annoyance and embarrassment, as well as to safeguard business, proprietary, and patient medical information. The Parties understand that it is reasonably anticipated that there may be confidential patient PHI, and other private and commercially-sensitive documents regarding Defendants' business, including but not limited to medical and billing records disclosed in this case. The Parties agree that the disclosure of Confidential Information (as defined below) to the public or individuals not allowed by Paragraph 8 of this Order is not necessary, and that the privacy interests in such Confidential Information substantially outweigh the public's right to access that information. If the Confidential Information were known in the general community, such information could lead to embarrassment, humiliation, injury, and/or unfair business or competitive advantage. Accordingly, good cause exists for the issuance of a protective order.

         2. The following terms and conditions shall govern the handling of documents, depositions, deposition exhibits, interrogatory responses, responses to requests for admission, and any other information or material produced, given, or exchanged by and among the Parties and any non-parties (including without limitation any non-party that seeks to intervene or to object to any of the proceedings in this action) in connection with discovery in this action:

a. “Confidential” shall be construed broadly to include all information, documents and materials that contain information that, if known in the general community, could lead to embarrassment, humiliation, injury, and/or unfair business or competitive advantage;
b. “Trade Secrets” shall mean those secrets, including the inventions, ideas or compilations, useful formulae, plans, processes, programs, tools, techniques, mechanisms, compounds, or devices that are not generally known or readily accessible to the public that are represented to be trade secrets and which Defendants take reasonable steps to safeguard from disclosure;
c. “PHI” shall mean Protected Health Information, as that term is defined within the meaning of 45 C.F.R. § 160.103;
d. “Confidential Information” shall include all documents that include (1) Trade Secrets, (2) PHI, or (3) other information that is otherwise considered to be Confidential;
e. “Discovery Material” shall include all material or information produced or received by either party in this action in response to any request for admission, request for production, interrogatory, or at a deposition, or in response to any subpoena to a third party or via informal discovery means (e.g., through the voluntary disclosure by a third party);
f. “Producing Party” shall mean the party (including a non-party) that is producing Discovery Materials in response to a request for admission, request for production of documents, an interrogatory, in response to a question at a deposition, or in response to a subpoena (or in the case of a third-party subpoena, any party to the action);
g. “Receiving Party” shall mean the party in receipt of Discovery Materials in response to a request for admission, request for production of documents, an interrogatory, a question at a deposition, or in response to a subpoena.

         3. The Parties acknowledge that some of the Discovery Material produced or received in this case may contain PHI. Because it is expected that such information will be exchanged among the Parties, the Parties agree to enter into this Order consistent with the standards of 45 C.F.R. § 164.512(e).

         4. Confidential Information, or information derived therefrom, shall be used solely for purposes of this action and shall not be used for any other purpose, including, without limitation, any business, competitive, or commercial purpose, and Confidential Information containing PHI shall not be disclosed to anyone except as provided herein and consistent with HIPAA regulation 45 C.F.R. 164.512(e)(1)(v) governing the use and disclosure of PHI.

         5. Any Producing Party or other named Party to this action may designate any Discovery Material as “Confidential” under the terms of this Order and Fed.R.Civ.P. 26(c), if such Party in good faith reasonably believes that such Discovery Material contains Confidential Information.

         6. The designation of Discovery Material as “Confidential” for purposes of this Order shall be made in the following manner by any Party to this action or Producing Party:

a. In the case of documents or other materials that may include Trade Secrets, PHI (apart from depositions or other pretrial testimony), or other Confidential Information, or any parts thereof: by affixing the legend “Confidential” to each page containing any Confidential Information, except that in the case of multi-page documents bound together by staple or other permanent binding, the words “Confidential” need only be stamped on the first page of the document in order for the entire document to be treated as Confidential Information unless otherwise indicated by the Producing Party; provided that the failure to designate a document as “Confidential” does not constitute a waiver of such claim, and a Producing Party may so designate a document after such document has been produced, with the effect that such document is thereafter subject to the protections of this Order;
b. Disclosure of Discovery Material by a Party in receipt of documents that are later designated by a Producing Party as Confidential Information shall not be construed as a violation of this Order. Upon notice by a Producing Party that previously produced documents contain Confidential Information, the Receiving Party shall (1) make no further disclosure of such designated document or information contained therein, except as allowed under this Order; (2) take reasonable steps to notify any persons who were provided copies of such designated document of the terms of this Order; and (3) take reasonable steps to reclaim any such designated document in the possession of any person not permitted access to such information under the terms of this Order;
c. In the case of depositions or other pretrial testimony, or any parts thereof: (i) by a statement on the record, by counsel, at the time of such disclosure; or (ii) by written notice, sent to all Parties within thirty (30) business day after receiving a copy of the transcript thereof, and in both of the foregoing instances, by directing the court reporter that the appropriate confidentiality legend be affixed to the first page and all portions of the original and all copies of the transcript containing any Confidential Information.

         7. All copies of any documents containing Confidential Information shall constitute and be treated as protected under this Order. Any person making, or causing to be made, copies of any Confidential Information shall make certain that each such copy bears the appropriate stamp pursuant to the requirements of this Order. The Parties agree that copies of Confidential Information shall not be made unless the copies bear the appropriate stamp as set forth in this Order. To the extent that Relator has made copies of any Confidential Information in Relator's possession, Relator agrees that he will affix the appropriate confidentiality stamp outlined in this document to such copies.

         8. Discovery Material designated as “Confidential” may be disclosed, revealed, summarized, described, characterized, or otherwise communicated or made available in whole or in part only to the following persons:

a. Subject to paragraph 9, outside counsel for any Party in this action whose law firm has entered an appearance in this action or any counsel representing the United States or the various named States, including Attorneys General for these parties, and regular and temporary employees and service vendors of such counsel (including outside copying and litigation ...

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