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Gilmour v. Humana Health Plan of Texas, Inc.

United States District Court, S.D. Texas, Galveston Division

January 9, 2018

Neil Gilmour, Trustee, et al. Plaintiffs
v.
Humana Health Plan of Texas, Inc. and Humana Insurance Company Defendants

          Richard G. Foster [1] Southern District Bar No. 5907 Texas Bar No. 07295100 Raj S. Aujla Southern District No. 1215554 Texas Bar No. 24064846 Lisa P. Alcantar Southern District No. 1093319 Texas Bar No. 24069284 Porter, Rogers, Dahlman & Gordon, P.C. COUNSEL FOR DEFENDANTS

          Walter J. Cicack Texas Bar No. 04250535, Jeremy M. Masten Texas Bar No. 24083454, Hawash Cicack & Gaston LLP, COUNSEL FOR PLAINTIFFS

          AGREED PROTECTIVE ORDER

          GEORGE C. HANKS, JR. UNITED STATES DISTRICT JUDGE

         Plaintiff Neil Gilmour, Trustee for Victory Medical Center Craig Ranch, LP, Victory Medical Center Landmark, LP, Victory Medical Center Mid-Cities, LP, Victory Medical Center Piano, LP, Victory Medical Center Southcross, LP, and Victory Parent Company, LLC; and Plaintiff Victory Medical Beaumont, LP, and Plaintiff Victory Surgical Hospital East Houston LP (collectively, "Plaintiffs") together with Defendants Humana Health Plan of Texas, Inc. and Humana Insurance Company (collectively "Defendants") hereby enter into this Agreed Protective Order ("Protective Order") pursuant to Rule 26(c) of the Federal Rules of Civil Procedure. Unless modified pursuant to the terms contained in this Protective Order, once entered by the Court, this Protective Order shall remain in effect through the conclusion of this litigation.

         In order to ensure the privacy of patient/insured/member medical records, patient/insured/member claims information and other information that the parties have determined might contain sensitive business information, trade secrets, and other information that would cause competitive harm if disclosed, the parties have agreed to the conditions set forth in this Protective Order to maintain the confidentiality of such information. Accordingly, this Court hereby orders as follows:

         1. This Protective Order shall apply to all documents and deposition testimony related to documents disclosed or obtained during the course of discovery in this action. Such information includes, but is not limited to any and all patient claims file materials and patient medical information exchanged by the parties in discovery.

         2. All documents produced or exchanged in the course of this litigation containing Confidential Information, and all deposition testimony related to those documents or Confidential Information, shall be treated as confidential by the attorneys and all persons granted access thereto and shall be used solely for the purpose of preparation and trial of this litigation and for no other purpose whatsoever, and shall not be disclosed to any person except in accordance with the terms hereof.

         3. Confidential Information, as used herein, means Patient Health Information, Patient Identifying Information, any other protected health information as that term is defined by the Standards for Privacy of Individually Identifiable Health Information, 45 C.F.R. parts 160 and 164, and any other information of any type, kind or character which is designated as "Confidential" by any of the supplying or receiving parties, whether it be a document, information contained in a document, information revealed during a deposition, information revealed in an interrogatory answer or otherwise. In designating information as "Confidential, " a party will make such designation only as to that information that it in good faith believes contains Confidential Information. Information or material which is available to the public, including catalogues, advertising materials, and the like shall not be "Confidential." This definition shall apply no matter how such information is revealed including, but not limited to, through document production, during a deposition, or through an interrogatory and no matter what form it takes, including, but not limited to, documents, writings, e-mails, photographs, drawings, films, computer diskettes, maps, and videotapes (or video compilations thereof).

         4. Patient Health Information, as used herein, shall have the same scope and definition as set forth in 45 C.F.R. § 160.103. Without limiting the generality of the foregoing, Patient Health Information includes, but is not limited to, health information, including demographic information, relating to: past, present, or future physical or mental health or condition of an individual; the provision of health care to an individual; or the past, present, or future payment for the provision of health care to an individual, which identifies or reasonably could be expected to identify the individual. It also includes, but is not limited to, medical bills, claims forms, charges sheets, medical records, medical charts, test results, notes, dictation, invoices, itemized billing statements, remittance advice forms, explanations of benefits, checks, notices, and requests, and includes all notes, summaries, compilations, extracts, abstracts or oral communications that are based on or derived from patient health information to the extent such material identifies or reasonably could be expected to identify the individual.

         5. Patient Identifying Information, as used herein, means information referred to and identified in 45 C.F.R. § 164.514(b), including, but not limited to: name; address;[1] names of relatives; name of employers; all elements of dates; telephone numbers; fax numbers; electronic mail addresses; social security numbers; medical record numbers; health plan beneficiary numbers; account numbers; certificate/license numbers; Internet Protocol (IP) address numbers; biometric identifiers; full face photographic images; or any other unique identifying numbers, characteristic, or code of any patient.

         6. Subject to the Federal Rules of Civil Procedure pertaining to discovery and subject to any objection that may otherwise be made, the parties are to respond to discovery requests throughout this litigation by producing documents and information in response to such a request notwithstanding the fact that such documents or information may include patient medical records or other Confidential Information.

         7. Additionally, the parties and their attorneys and any future parties and their attorneys in the above-captioned matter, and any "covered entities" as that term is defined in 45 C.F.R. § 160.103 are hereby authorized to receive, subpoena, disclose, and transmit Confidential Information to the extent and subject to the conditions outlined herein.

         8. Confidential Information shall not be disclosed or made available by the receiving party to persons other than Qualified Persons unless otherwise agreed to in writing by the parties hereto or by order of the Court.

         9. "Qualified Persons, " as used herein means:

(a) The parties' agents, representatives, employees, and in-house ...

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