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Ciccio v. Smiledirectclub, LLC

United States District Court, M.D. Tennessee, Nashville Division

December 9, 2019

DR. JOSEPH CICCIO, et al., Plaintiffs,
v.
SMILEDIRECTCLUB, LLC, et al., Defendants.

          Trauger Judge.

          PROTECTIVE ORDER

          Joe B. Brown United States Magistrate Judge.

         This matter is before the court on Plaintiffs' Motion for Entry of Protective Order. By Order dated December 26, 2019, the Motion was GRANTED in part and DENIED in part. For good cause shown, discovery in the above-captioned litigation (“Proceeding”) SHALL be governed by the following Protective Order. The Parties shall serve a copy of this Protective Order simultaneously with any discovery request made to a third party. The terms of this Protective Order are as follows:

         1. Applicability.

         This Protective Order is applicable to all plaintiffs and defendants, any additional parties joined in this Proceeding (collectively, the “Parties”), and any third-parties required to respond to discovery in this Proceeding, for the sole purpose of facilitating discovery in the Proceeding and protecting the confidentiality and other interests of the Parties and third-parties throughout the course of this Proceeding. This Order authorizes the disclosure of information protected by the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”), as amended by the Health Information Technology for Economic and Clinical Health Act (the “HITECH Act”), including all applicable regulations and guidance issued by the Secretary of the United States Department of Health and Human Services (collectively, the “HIPAA Rules”), including specifically 42 C.F.R. Part 2 and 45 C.F.R. §§ 164.512(e)(1)(ii)(B), 164.512(e)(1)(v), as well as all state laws and regulations regarding the privacy and security of personal information (collectively with the HIPAA Rules, the “Privacy and Security Rules”). This Order constitutes a Qualified Protective Order, as that term is defined in the Privacy and Security Rules. The parties are expressly prohibited from using or disclosing information protected by the Privacy and Security Rules obtained pursuant to this Order for any purpose other than this Proceeding.

         2. Scope of Use.

         All “Confidential, ” “Confidential-Attorneys' Eyes Only, ” and “Confidential-Outside Counsel Only” information produced or exchanged in the course of this Proceeding shall be used solely for the purpose of prosecuting or defending this Proceeding, including mediation, trial preparation, trial, and appeal, and for no other purpose whatsoever and shall not be disclosed to any person except in accordance with the terms of this Protective Order.

         3. Designation of Information.

         Any document, data, testimony, interrogatory answer, response to a request to admit, exhibit, and other information produced, served or otherwise disclosed to or by any Party or third party during the Proceeding as “Confidential, ” “Confidential-Attorneys' Eyes Only, ” or “Confidential-Outside Counsel Only” (collectively “Confidential Material”) shall be treated in the manner that is consistent with the definitions and procedures set forth in this Protective Order. Any party or third-party designating information as Confidential Material shall make a good faith determination of the designation chosen among the below 3.a-3.c prior to producing such information. Documents previously produced shall be retroactively designated by notice in writing by Bates number or such other means that will allow for the identification of such documents. The unintentional failure by a Party or third party to designate specific documents or materials as containing Confidential Material shall not be deemed a waiver in whole or in part of a claim of confidentiality as to such documents or materials. Upon notice to each Party of such failure to designate, each Party shall cooperate to restore the confidentiality of the inadvertently disclosed information.

a. “Confidential” Designation. A Party or third party may designate as “Confidential” any Confidential Material that it reasonably and in good faith believes contains any trade secret, other personal information of any Party or third party, or other confidential research, development, or commercial information, as referenced in Fed.R.Civ.P. 26(c)(1)(G), provided that the Confidential Material has been subject to efforts to maintain confidentiality that are reasonable under the circumstances.
b. “Confidential-Attorneys' Eyes Only” Designation. A Party or third party may designate as “Confidential-Attorneys' Eyes Only” any Confidential Material that it reasonably and in good faith believes is of such a commercially or competitively sensitive nature that disclosure to persons other than those listed in paragraph 11 could reasonably be expected to result in injury.
c. “Confidential-Outside Counsel Only” Designation. A Party or third party may designate as “Confidential-Outside Counsel Only” any Confidential Material that it reasonably and in good faith believes is of such a commercially or competitively sensitive nature that disclosure to persons other than those listed in paragraph 12 could reasonably be expected to result in injury.

         4. Confidential Health Information.

         The Parties desire to ensure the privacy of patient/customer medical records, patient/customer claims information, and other information that the Parties have determined might contain sensitive personal health information (“Confidential Health Information”). Confidential Health Information is intended to encompass any patient health information protected by any state or federal law, including, but not limited to, “Protected Health Information, ” as defined below, and agree that any Confidential Health Information shall be deemed “Confidential” and any such information concerning a third party shall be deemed “Confidential-Attorneys' Eyes Only” and, as such, subject to the terms of this Protective Order.

Protected Health Information

         Without limiting the generality of the foregoing, Protected Health Information includes, but is not limited to, health information, including demographic information, relating to: the 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, explanation of benefits, checks, notices, and requests, and includes all notes, summaries, compilations, extracts, abstracts or oral communications that are based on or derived from Protected Health Information, regardless of form or format. Protected Health Information also includes information that contains the following identifiers of a patient/customer or of a relative, employer, or household member of a patient/customer:

i. names;
ii. all geographic subdivisions smaller than a State, including street address, city, county, precinct, and zip code;
iii. all elements of dates (except year) for dates directly related to an individual, including birth date, admission date, discharge date, age, and date of death;
iv. telephone numbers;
v. fax numbers;
vi. electronic mail addresses;
vii. social security numbers;
viii. medical record numbers;
ix. health plan beneficiary ...

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