United States of America ex rel. Michael Daugherty, Plaintiff-Relator,
Bostwick Laboratories and David Bostwick Defendants.
Jennifer M. Verkamp (0067198), Frederick M. Morgan, Jr. (0027687), James F. Keller (0059295), Morgan Verkamp LLC, Cincinnati, OH, Attorneys for Relator.
W. Jeffrey Sefton (0075671) Keating Muething & Klekamp PLL, Cincinnati, Ohio.
Michael S. Gardener, Matthew D. Levitt, Stefanie Giuliano Abhar Mintz Levin Cohn Ferris Glovsky and Popeo, P.C. Boston, MA.
Hope S. Foster Mintz Levin Cohn Ferris Glovsky and Popeo, P.C. Washington, DC, Attorneys for Defendant Bostwick Laboratories.
Christopher L. Muzzo, Esq. THE FURNIER LAW GROUP LLC Cincinnati, Ohio.
Stephen A. Miller, Esq. Calli J. Varner, Esq. COZEN O'CONNOR Philadelphia, PA Attorneys for Defendant David Bostwick.
S. ARTHUR SPIEGEL, Magistrate Judge.
It is ordered that the following terms and provisions will govern the production and use of certain documents, information, and evidence ("Produced Material") to be produced by the Parties (Defendant Bostwick Laboratories, Defendant David Bostwick, and Relator are referred to herein collectively as the "Parties") or any third party in connection with the above-captioned action (each, a "Producing Person"):
1. "Confidential Information" is that Produced Material which the Parties reasonably believe in good faith constitutes either (a) personal health or personal financial information of individuals, or personal information contained in an employee's personnel file; and/or (b) trade secrets or other confidential research, development or commercial information subject to confidential treatment under Rule 26(c)(l)(G), Fed. R. Civ. P.
Pursuant to the HIPAA Privacy Rule, a covered entity such as Bostwick Laboratories is permitted to disclose protected health information in the course of a judicial proceeding if certain "satisfactory assurances" are received. This Protective Order hereby provides Bostwick Laboratories or any other covered entity compelled to produce documents in this litigation with the requisite satisfactory assurances under HIPAA. See 45 C.F.R. § 164.512(e)(1)(iv). In accordance with the HIPAA Privacy Rule, this Protective Order allows for the disclosure and receipt of a patient's protected health information, in the possession of a covered entity, for the limited purpose of this litigation, including at depositions, hearings, or other judicial proceedings in this litigation. In accordance with the HIPAA Privacy Rule, this Protective Order specifically prohibits the Parties from using or disclosing the protected health information for any purpose other than this litigation for which such information was requested. 45 C.F.R. §164.512(e)(1)(v)(A). Also in accordance with the HIPAA Privacy Rule, the protected health information disclosed to any persons listed in Paragraphs 5 and 6 of this Protective Order, including all copies made, shall be destroyed at the conclusion of this litigation. 45 C.F.R. § 164.512(e)(1)(v)(B).
This Protective Order also permits and authorizes the Parties to disclose individually identifying health, personal and financial information of nonparty patients during discovery in this case. The Court further finds that it is not possible to identify and contact all nonparty patients whose names or other personal, identifying information may be produced and that removal or deletion of all such information is not practical or feasible. Therefore, the Court hereby authorizes and ORDERS, to the extent a court order is necessary under state law, that the Parties are permitted to disclose individually identifying health, personal, and financial information, records and data regarding nonparty patients during discovery in this case, including information otherwise privileged or confidential under state law.
2. "Confidential - Attorneys' Eyes Only Information" is that Produced Material which is so designated by the Producing Person, which designation may be used only for the following types of Confidential Information that is dated after July 1, 2011:
(1) Sensitive confidential business or financial information and records, reflecting pricing agreements or pricing proposals dated after July 1, 2011, which were offered to actual or potential customers or obtained from suppliers, distributors, or private payors; and
(2) Competitive business information, including non-public financial or marketing analyses or comparisons of competitors' products or services and strategic planning.
3. All documents containing Confidential Information or Confidential - Attorneys' Eyes Only Information shall be clearly labeled as either "Confidential Information" or "Confidential - Attorneys' Eyes Only Information" by the Producing Person. To the extent that only portions of a document contain Confidential - Attorneys' Eyes Only Information, the Producing Person shall clearly identify the portions that do not contain information subject to the Attorneys' Eyes Only designation. Electronic information may be designated by labeling the disk or other media containing the designated information as "Confidential Information" or "Confidential - Attorneys' Eyes Only Information."
Interrogatory answers or other responses to written discovery and information contained therein may be designated by means of a statement at the conclusion of each answer specifying the "Confidential Information" or "Confidential - Attorneys' Eyes Only Information" contained therein or by other means that clearly indicate what portion of the answer or information is to be designated and by labeling the front of any set of interrogatory answers or other responses to written ...