Tal Dagan MD PC v. Resolutions Billing & Consulting, Inc.

Background

Tal Dagan MD PC and Resolutions Billing and Consulting, Inc. jointly requested a protective order under Federal Rule of Civil Procedure 26(c). They sought protection for nonpublic and sensitive information that might be disclosed during discovery. The court found good cause for an appropriately tailored confidentiality order governing the pretrial phase of the case.

Order

The order applies to the parties and their representatives, officers, agents, experts, consultants, employees, attorneys, third parties providing discovery, and others with notice of the order. Violations may subject a person to contempt.

A producing party may designate only material it reasonably and in good faith believes contains certain previously undisclosed information, including financial information; information about ownership or control of a nonpublic company; business, product-development, or marketing plans; personal or intimate information; or another category later given confidential status by the court. The order explains how confidential material and deposition testimony must be marked and allows a producing party to correct an earlier failure to designate material as confidential.

Confidential discovery material may be disclosed only to listed recipients, including the parties and their insurers, case counsel and support staff, certain health-care-related entities, outside vendors, mediators or arbitrators, specified people connected to a document, potential witnesses, experts and specialized advisers, deposition stenographers, and the court. Some recipients must first receive the order and sign a nondisclosure agreement.

Filing, sealing, and health information

The order does not determine that any particular discovery material is actually confidential. It preserves the court’s discretion over whether to provide confidential treatment to material submitted in connection with a motion or other proceeding. A party filing confidential material must publicly file a redacted version and file the unredacted version under seal as required by the court’s rules. No document may be filed under seal without a further order addressing the specific material. A sealing request must be supported by an affidavit or affidavits and a memorandum of law addressing the applicable standards, including the standard discussed in Lugosch v. Pyramid Co. of Onondaga.

The order states that the litigation is likely to involve protected health information under the Health Insurance Portability and Accountability Act. It does not authorize outside counsel to obtain medical records or protected health information except through the federal discovery rules, subpoenas, depositions, patient authorization, or another lawful method.

Use, return, and enforcement

Recipients may use confidential discovery material only to prosecute or defend this action and related appeals, not for another purpose or litigation. The order permits production in response to a lawful subpoena or other compulsory process, subject to notice requirements. People with access must take reasonable precautions against unauthorized or accidental disclosure.

Within 60 days after the final disposition of the action, including appeals, recipients generally must return or destroy the confidential material and certify that they have not retained copies or other reproductions. Case attorneys may keep specified archival materials, which remain subject to the order. The order survives the end of the litigation, and the court retains jurisdiction to enforce it and impose contempt sanctions.