Rowe, M.D., M.H.A., L.L.C. v. Cigna Health and Life Insurance Company

Background

The parties agreed that discovery in the case was likely to involve confidential business information and confidential patient information, including personal identifiers. The order states that discovery of health information was involved and that the order was intended to provide protection qualifying as a protective order under the Health Insurance Portability and Accountability Act, or HIPAA. The parties also agreed to keep discovery materials confidential and to return or destroy them under the order’s terms.

Confidentiality Categories

The order establishes three principal categories of protected material:

- Confidential Health Information: Information identifying a patient or subscriber, or relating to the person’s health, health care, services, supplies, or payment for health care. Examples include medical bills, claims forms, medical records, test results, invoices, explanations of benefits, and related summaries or communications. The order describes circumstances in which information is not considered confidential health information after specified identifiers are removed or redacted. It also requires the parties to produce documents responding to discovery requests without redaction while allowing the documents to be designated under the order. - Confidential material: Information containing trade secrets, competitively sensitive technical, marketing, financial, sales, or other business information; private or confidential personal information; information received from third parties in confidence; or information the producing party believes in good faith is entitled to protection under Federal Rule of Civil Procedure 26(c)(1)(G). - Attorneys’ Eyes Only material: Confidential material containing highly sensitive trade secrets or business information. The producing party must mark each page containing that information with an appropriate “ATTORNEYS’ EYES ONLY” designation.

Use and Disclosure Limits

Protected materials may be used only to prosecute or defend this action. They may not be used for business, commercial, competitive, personal, or other purposes. The order limits disclosure to specified people, including outside and relevant in-house counsel, certain support personnel, qualified experts and consultants, the court and its personnel, certain deponents, litigation vendors, and defined representatives of the parties.

Experts, consultants, and certain vendors must sign a nondisclosure agreement. Disclosure of confidential health information to outside experts, consultants, or vendors is also conditioned on a qualifying business-associate agreement between the disclosing party and the vendor. Attorneys’ Eyes Only material may not be disclosed to the parties, except that the order permits access by in-house counsel and certain staff as specified in the order.

Depositions and Challenges

For depositions involving protected material, a party generally has 30 days after receiving the transcript to designate portions as confidential health information, confidential, or Attorneys’ Eyes Only. During that period, disclosure is restricted under the order.

A receiving party may object in writing to a confidentiality designation. The designating party must respond within 14 days with particularized grounds. If there is no timely response, the designation becomes void under the order. If the dispute remains unresolved after the parties confer in good faith, it may be submitted to the court, and the material remains treated as originally designated while the dispute is pending.

Court Filings and Sealing

A designation under the order alone is not enough to file material under seal. A party seeking to do so must file a motion to seal and, under the court’s individual practices, a letter brief and supporting declaration explaining on a particularized basis why continued sealing is justified. The order states that the court retains discretion over confidential treatment of discovery material submitted with motions or other proceedings and is unlikely to seal or otherwise protect material introduced at trial merely because it was previously designated confidential.

When filing confidential discovery material or papers revealing it, the parties must publicly file a redacted copy and file the unredacted copy under seal, while providing unredacted courtesy copies to the court and opposing counsel. Disclosure of protected material during trial or a hearing requires notice to the producing party and must occur as directed by the court. The order does not itself rule that any information will be sealed or that an in-camera presentation will be permitted.

Other Provisions and Disposition

The order establishes procedures for subpoenas and other compulsory requests for protected material. It also provides that certain inadvertent disclosures do not waive confidentiality, privilege, or work-product protection, subject to the order and applicable federal rules. Publicly available information, information already properly known to the receiving party, and information obtained from another lawful nonconfidential source are not treated as confidential material under the order.

The order preserves the parties’ rights, defenses, objections, and privileges and does not prevent a party from seeking modification or relief from its terms. It remains effective after the case ends unless modified by the court or by a written stipulation filed with the court. After the litigation concludes, including appeals, covered persons must return or destroy protected materials as specified, and each party must provide a compliance certification within 21 days of the event concluding the litigation.

Judge Paul G. Gardephe entered the stipulated discovery confidentiality order on April 18, 2023.