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Mingus v. Blue Cross And Blue Shield of Kansas, Inc.

United States District Court, D. Kansas

September 11, 2017

ROY MINGUS, Plaintiff,
v.
BLUE CROSS AND BLUE SHIELD OF KANSAS, INC., Defendant.

          Sean M. McGivern, GRAYBILL & HAZLEWOOD, LLCATTORNEYS FOR PLAINTIFF

          Gregory P. Goheen, McANANY, VAN CLEAVE & PHILLIPS, P.A ATTORNEYS FOR DEFENDANT

          PROTECTIVE ORDER

          K. GARY SEBELIUS, U.S. MAGISTRATE JUDGE.

         The parties agree that during the course of discovery it may be necessary to disclose certain confidential information relating to the subject matter of this action. They agree that certain categories of such information should be treated as confidential, protected from disclosure outside this litigation, and used only for purposes of prosecuting or defending this action and any appeals. The parties jointly request entry of this proposed Protective Order to limit the disclosure, dissemination, and use of certain identified categories of confidential information.

         The Parties assert in support of their request that protection of the identified categories of confidential information is necessary because this action concerns the propriety of Defendant's handling of certain health insurance claims involving mental health and substance abuse conditions. Accordingly, the Plaintiff is expected to request confidential, and non-public documents and information regarding the Defendant's business operations, and financial condition, including Defendant's debt collection practices. Defendant expects to request documents and information relating to medical treatments and services received by Plaintiff, medical necessity of services received by Plaintiff, and documents related to Plaintiff's benefits, including those which are protected under the Health Insurance Portability and Accountability Act of 1996, as codified at 42 U.S.C. 1320d through d-8 and KSA 65-5601 et seq. (“HIPAA”). The Defendant considers its proprietary information, employment personnel records, student records, and employee compensation records to be confidential, and the Plaintiff considers his personal financial, personnel, medical, and compensation information to be confidential. To expedite discovery and permit discovery to proceed without the delay occasioned by possible disputes regarding claims of confidentiality, the Parties wish to produce documents subject to the protective provisions set forth below. Based on the foregoing, the parties assert good cause exists for entry of a Protective Order.

         Pursuant to Federal Rule of Civil Procedure 26(c), and in order to protect the parties from disclosure of proprietary or confidential information, the parties hereto stipulate and agree, and it is hereby ORDERED AND DECREED that:

1. Scope. All documents and materials produced in the course of discovery of this case, including initial disclosures, responses to discovery requests, all deposition testimony and exhibits, and information derived directly therefrom (hereinafter collectively “documents”), are subject to this Order concerning Confidential Information as set forth below. As there is a presumption in favor of open and public judicial proceedings in the federal courts, this Order will be strictly construed in favor of public disclosure and open proceedings wherever possible.
2. Definition of Confidential Information. As used in this Order, “Confidential Information” is defined as information that the producing party designates in good faith has been previously maintained in a confidential manner and should be protected from disclosure and use outside the litigation because its disclosure and use is restricted by statute or could potentially cause harm to the interests of disclosing party or nonparties. For purposes of this Order, the parties will limit their designation of Confidential Information to the following categories of information or documents:
(a) Medical records regarding the Plaintiff, and any other current or former employees, applicants or insureds of Defendant;
(b) All Protected Health Information (“PHI”) as defined in 45 C.F.R. 160.103 (without formal designation); 42 C.F.R., Part 2; and KSA 65-5601
(c) Personal information regarding Plaintiff, and any current or former employees of Defendant, including, but not limited to, personal financial and medical information;
(d) Any identifying information regarding Defendant's patients/consumers;
(d) Non-public confidential information and documents regarding the Defendant's business operations, including, but not limited to, information about the Defendant's financial condition, and policies and procedures.

         Information or documents that are available to the public may not be designated as Confidential Information.

         3.Form and Timing of Designation.The producing party may designate documents as containing Confidential Information and therefore subject to protection under this Order by marking or placing the words “CONFIDENTIAL” (hereinafter “the marking”) on the document and on all copies in a manner that will not interfere with the legibility of the document. As used in this Order, “copies” includes electronic images, duplicates, extracts, summaries or descriptions that contain the Confidential Information. The marking will be applied prior to or at the time of the documents are produced or disclosed. Applying the marking to a document does not mean that the document has any status or protection by statute or otherwise except to the extent and for the purposes of this Order. Copies that are made of any designated documents must also bear the marking, except that indices, electronic databases, or lists of documents that do not contain substantial portions or images of the text of marked documents and do not otherwise disclose the substance of the Confidential Information are not required to be marked. By marking a designated document as confidential, the designating attorney thereby certifies that the document contains Confidential Information as defined in this Order. Inadvertent failure to designate any document or material as containing Confidential Information will not constitute a waiver of an otherwise valid claim of confidentiality pursuant to this Order, so long as a claim of confidentiality is asserted within seven (7) days after discovery of the inadvertent failure.

         4. Depositions. Deposition testimony will be deemed confidential only if designated as such when the deposition is taken or within a reasonable time period after receipt of the deposition transcript. Such designation must be specific as ...


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