Molly C. v. Oxford Health Insurance, Inc.

Nature of the Order

The parties jointly requested a protective order under Federal Rule of Civil Procedure 26(c) covering nonpublic and competitively sensitive information that might be disclosed during discovery. The court found good cause for an appropriately limited order governing the pretrial phase of the case and entered the parties’ stipulated agreement.

Confidentiality Categories

The order permits a producing party to designate only information that it reasonably and in good faith believes is confidential. Listed examples include previously undisclosed financial information, information about ownership or control of a nonpublic company, business plans, product-development or marketing information, and personal or intimate information about an individual.

A producing party may use the more restrictive “Highly Confidential – Attorneys’ Eyes Only” designation for extremely sensitive information whose disclosure to another party or nonparty would create a substantial risk of serious harm that less restrictive measures could not avoid.

Disclosure and Use Restrictions

People subject to the order may not disclose designated material except as the order permits. “Confidential” material may be shared with the parties, their insurers and insurer counsel, case counsel and assigned staff, outside vendors, certain mediators or arbitrators, specified document-related recipients, potential witnesses, experts or consultants, deposition stenographers, and the court. Some recipients must first review the order and sign a nondisclosure agreement.

“Highly Confidential – Attorneys’ Eyes Only” material may generally be disclosed to case counsel and assigned staff, outside vendors, certain mediators or arbitrators, specified document-related recipients, experts when reasonably necessary for the litigation, deposition stenographers, and the court. The order does not permit parties themselves to receive this category merely because they are parties.

Designated material may be used only to prosecute or defend this action and related appeals, not for business, commercial, competitive, or other litigation purposes. The order does not waive objections to discovery, privilege, or other protections, and it does not decide whether any evidence will be admissible at trial.

Protected Health Information

The order recognizes that discovery may include protected health information covered by federal health-privacy regulations. Before producing such information about absent putative class members, the defendant must redact individually identifying information to the extent practicable, including names, addresses, birth dates, Social Security numbers, and member or subscriber identification numbers. The parties agreed that the health-plan name, treatment dates and locations, and benefit-coverage determination dates would not be redacted before production because they may be relevant to evaluating the case. Such information is to receive the “Highly Confidential – Attorneys’ Eyes Only” protections.

Sealing, Challenges, and Mistaken Disclosure

A party filing designated material under seal must simultaneously file a letter brief and supporting declaration explaining on a particularized basis why continued sealing is justified. The court retains discretion over whether to maintain confidentiality for material submitted in connection with motions or other proceedings, and the order states that material introduced at trial is unlikely to remain sealed.

Parties may object to confidentiality designations or request additional disclosure limits before trial. If the parties cannot resolve the issue promptly, they must present the dispute to the court under the court’s individual practices. A recipient that makes an unauthorized disclosure must notify the producing party, try to retrieve the copies, inform the recipients of the order, and request that they sign nondisclosure agreements.

Duration and Disposition

Within 60 days after final disposition of the action, including appeals, recipients must return or destroy designated material unless the producing party permits destruction instead of return. Recipients must certify that they kept no copies or other reproductions, although specifically retained attorneys may keep archival copies of certain case-related materials, which remain subject to the order.

The order survives termination of the litigation. The court retains jurisdiction over persons subject to it as needed to enforce the order or impose contempt sanctions. The court’s action was entry of the stipulated protective order; the opinion does not resolve the parties’ underlying claims.