STIPULATED PROTECTIVE ORDER

PATRICK J. WALSH, Magistrate Judge.

I. PRELIMINARY MATTERS

A. PURPOSES AND LIMITATIONS

Discovery in this action is likely to involve the production of confidential, proprietary, or private information for which special protection from public disclosure and from use for any purpose other than completing this litigation may be warranted. Accordingly, the parties hereby stipulate to and petition the Court to enter the following Stipulated Protective Order. The parties acknowledge that this Order does not confer blanket protections on all disclosures or responses to discovery and that the protection it affords from public disclosure and use extends only to the limited information or items that are entitled to confidential treatment under the applicable legal principles. The parties further acknowledge, as set forth in Paragraph 24, below, that this Stipulated Protective Order does not entitle them to file confidential information under seal; Civil Local Rule 79-5 sets forth the procedures that must be followed and the standards that will be applied when a party seeks permission from the court to file material under seal.

B. GOOD CAUSE STATEMENT

This action may involve confidential and proprietary information, including highly sensitive confidential patient health information produced in the litigation underlying the present coverage dispute. Such confidential and proprietary information may consist of, among other things, confidential business or financial information, information regarding confidential business practices, information generally unavailable to the public, or which may be privileged or otherwise protected from disclosure under state or federal statutes, court rules, case decisions, or common law. Accordingly, to expedite the flow of information, to facilitate the prompt resolution of disputes over confidentiality of discovery materials, to adequately protect information the parties are entitled to keep confidential to ensure that the parties are permitted reasonable necessary uses of such material in preparation for and in the conduct of trial, to address their handling at the end of the litigation, and serve the ends of justice, a protective order for such information is justified in this matter. It is the intent of the parties that information will not be designated as confidential for tactical reasons and that nothing be so designated without a good faith belief that it has been maintained in a confidential, non-public manner, and there is good cause why it should not be part of the public record of this case.

II. DEFINITIONS

1. As used herein, "Protected Material" means documents, electronically stored information, or other tangible things that contain "Protected Health Information" or "Confidential Information," as defined in Paragraphs 3 and 4 below.

2. "Document" shall mean all items listed in Federal Rule of Civil Procedure 34(a)(1)(A) & (B).

3. "Protected Health Information" or "PHI" includes certain individually identifiable health information (defined as health information that is connected to a patient's name, address, Social Security number or other identifying number, including HIC number) that may be subject to the provisions of the Privacy Act, 5 U.S.C. § 552a, the provisions of 45 C.F.R. §§ 164.102-164.534, the provisions of 42 U.S.C. § 1306, or for which there may be no waiver by the patient to produce the records to an entity outside one of the Parties.

i. The Court finds that this Order is a "qualified protective order" within the meaning of 45 C.F.R. § 164.512(e)(1)(v).

ii. The parties may produce PHI in accordance with this Protective Order pursuant to their obligations to make disclosures under Federal Rule of Civil Procedure 26(a) and in response to discovery requests in this litigation. All patient identifiable information is designated "confidential" and may be used and/or disclosed in accordance with the terms of this Protective Order and 45 C.F.R. § 164.512(e)(1)(v).

4. "Confidential Information" shall mean information not already publicly available that constitutes: (i) any information subject to protection under the Privacy Act, 5 U.S.C. § 552a, (ii) personal or financial information, including information that would properly be redacted from any public court filing pursuant to Federal Rule of Civil Procedure 5.2, or (iii) financial, trade secret, or other confidential or proprietary research, development, or commercial information, the disclosure of which to third parties may be harmful to the party producing this information.

5. "Litigation" is understood to include all appellate proceedings or the expiration of time to commence such appellate proceedings related to this action.

III. DESIGNATION OF PROTECTED MATERIAL

6. Documents. The parties shall produce responsive documents containing Protected Material to other parties to this litigation by designating the documents as "confidential" in the following manner:

a) For documents produced in paper or an electronic form that allows endorsements or similar designation on the image, the parties shall mark each page of the document asserted to contain Protected Material as "CONFIDENTIAL." The parties may also use "CONFIDENTIAL — PHI" for documents that contain Protected Health Information.

b) For electronic information that is provided in native form or a format that is not amenable to visible endorsement on the image, the designation of Protected Material shall be made by branding the slip-sheet for the document, in the lower-right corner, with either "CONFIDENTIAL" or "CONFIDENTIAL — PHI" as appropriate. Any copying or transferring of files that are designated as Protected Material must be done in a manner that maintains the protection for all copies.

7. Interrogatory Answers and Responses to Requests for Admission. The parties shall designate Protected Material contained in interrogatory answers or responses to requests for admissions by placing within the answer or response: "The following response is CONFIDENTIAL."

8. Protected Material in Depositions. Subject to the requirements of Paragraph 15 below, during a deposition the parties may show deponents documents or other discovery material that has been designated as Protected Material. Information disclosed at a deposition may be designated by any party as Protected Material by indicating on the record at the deposition that the testimony is confidential and subject to the provisions of this Protective Order. Additionally, and alternatively, any party may also designate information disclosed at a deposition as Protected Material by notifying all counsel in writing within thirty (30) days of receipt of the official deposition transcript or copy thereof (or written notification that the transcript is available), listing the specific pages and lines of the transcript and/or any exhibits that should be treated as Protected Material. The entire deposition transcript (including any exhibits not previously produced in discovery in the litigation) shall be treated as Protected Material under this Protective Order until the expiration of the above-referenced 30-day period for designation, except that the deponent (and his or her counsel, if any) may review the transcript of his or her own deposition during the 30-day period subject to this Protective Order upon executing the required Acknowledgement attached to this Order. Only those portions of the deposition transcript that are designated as containing Protected Material shall be governed by this Order. Nothing in this Order restricts the use of any portion of a deposition transcript that has not been designated as Protected Material.

9. Documents or Information Obtained from Third Parties. Documents or information produced by a non-party may be designated as Protected Material by the non-party. Further, the documents or information produced by a non-party shall be treated as Protected Material, whether or not they are designated as such, for sixty (60) days after receipt of the documents or information to allow a party to review the material for PHI or Confidential Information. In the event a party believes that documents or information produced by a non-party contain Protected Material, the party may designate the documents or information as Protected Material in accordance with the provisions of this Protective Order within sixty (60) days after receipt of the documents or information. If no party timely designates Protected Material within a non-party production, none of the documents or information will be treated as Protected Material, unless designated as Protected Material by the non-party or unless later designated as Protected Material in accordance with Paragraph 10 ("No Waiver").

10. No Waiver. The failure to designate any documents or other discovery material as Protected Material in accordance with the terms of this Order shall not constitute a waiver of a party's assertion that the materials are Protected Materials. In the event that discovery material is or has been produced without having been previously marked "CONFIDENTIAL" the Producing Party may notify the receiving party of the appropriate confidentiality designation and produce new hard copy, images, or slip-sheets as applicable (see Paragraph 6 above) reflecting the appropriate confidentiality designation. Upon receipt of any such discovery material, the receiving party shall thereafter preserve such discovery material in accordance with this Protective Order.

IV. CHALLENGES TO DESIGNATIONS UNDER THIS PROTECTIVE ORDER

11. Any party may object to a designation of a document or other discovery material produced as Protected Material at any time by giving written notice (including via email) to counsel for the designating party, identifying the document or other discovery material, or portions thereof, to which the objection is directed, and providing a short statement of the reasons for the objection. The parties shall begin a meet and confer and shall initiate the dispute resolution process under Local Rule 37.1 et seq. The parties shall make a good faith attempt to resolve the dispute. If the parties are unable to resolve the dispute, then the party disputing the designation may seek a court order to overturn the designation. The burden of persuasion in any such challenge proceeding shall be on the Designating Party. Frivolous challenges, and those made for an improper purpose (e.g. to harass or impose unnecessary expenses and burdens on other parties) may expose the Challenging Party to sanctions. Similarly, frivolous designations and those made for an improper purpose may expose the Designating Party to sanctions. Unless the Designating Party has waived or withdrawn the confidentiality designation, all parties shall continue to afford the material in question the level of protection to which it is entitled under the Producing Party's designation until the Court Rules on the challenge.

12. If the Court rules that the document or other discovery material should no longer be designated as Protected Material or if the designating party at any time withdraws the designation, the designating party shall promptly provide all other parties in the litigation with replacement documents, files, or information free from any markings or designations as Protected Material.

V. DISCLOSURES, USE, AND HANDLING OF PROTECTED MATERIAL

13. The parties may use Protected Material only for the purposes of this litigation and shall disclose Protected Material only in accordance with the terms of this Protective Order.

14. The parties and their counsel are responsible for employing reasonable measures, consistent with this Protective Order, to control access to and secure distribution of Protected Material.

15. Disclosure of Protected Material. Except as otherwise provided in this Protective Order, documents and other discovery materials designated as Protected Material shall only be disclosed to the following persons:

a) Counsel of record for the parties in this litigation and associated personnel necessary to assist counsel in this action, such as paralegals, litigation support, information technology, information or records management, investigative, secretarial, or clerical personnel, provided that each is first advised of the terms of this Protective Order;

b) The parties and their officers or employees, including in-house counsel, whose assistance is reasonably necessary to assist counsel in this action, provided that each is first advised of the terms of this Protective Order;

c) Experts or consultants retained in good faith for the purposes of this litigation, including both consulting and testifying experts, who have first signed the "Acknowledgement and Agreement to Comply with Protective Order" in the form attached hereto as Exhibit A;

d) The Court and court personnel;

e) Court reporters, videographer service, translation service, photocopy service, document management service, records management service, graphics service or such other litigation assistance service designated by a party or party's legal counsel in this litigation who have first signed the attached "Acknowledgement and Agreement to Comply with Protective Order";

f) Any private mediators used in this Action and their employees who have first signed the attached "Acknowledgement and Agreement to Comply with Protective Order";

g) Any non-party witness who is called to testify at a deposition or hearing in this litigation concerning documents or information designated as subject to this Protective Order or who otherwise will be shown or given access to documents or information designated as subject to the Protective Order during the deposition or hearing, provided that any such person or entity is advised of the terms of this Protective Order and has first signed the attached "Acknowledgement and Agreement to Comply with Protective Order," or provided that the Court, upon the request of any party, otherwise permits the disclosure of Protected Material to the individual. If any such witness refuses to sign the attached "Acknowledgement and Agreement to Comply with Protective Order," the parties may disclose Protected Material to the witness at the deposition or hearing without permission of the Court; and

h) Any individuals interviewed in good faith by any of the parties for the purposes of this litigation who have first signed the "Acknowledgement and Agreement to Comply with Protective Order," provided that the parties take reasonable steps to prevent the individuals being interviewed from making or retaining any copies of any Protected Material.

16. Counsel for the parties shall maintain, in their respective offices or storage facilities, all copies of the executed "Acknowledgement and Agreement to Comply with Protective Order" forms, as well as a list of all individuals who have signed the forms.

17. Persons receiving Protected Material pursuant to the terms of this Protective Order are prohibited from disclosing it to any person except in conformance with this Protective Order.

18. Protected Material in Open Court. The procedures for use of Protected Material during any hearing or the trial of this matter shall be determined by the parties and the Court in advance of the hearing or trial. This Protective Order does not apply to trial proceedings.

19. Protected Material in Court Filings. This paragraph is not intended to provide confidential treatment to motions, briefs, or other filed documents that are based generally on information contained in confidential materials, unless such motions, briefs, or court filings specifically disclose the substance of Protected Material. The parties shall presume that all Protected Material is to be kept from public view and, when filed with the Court, must be (1) filed under seal and/or (2) redacted from any filing that is publicly available, in accordance with the terms of this Paragraph 19 and the procedures set forth in Local Rule 79-5.2.2.

20. Subpoenaed or Other Compulsory Production of Protected Material. If any party or person who has received Protected Material is asked to produce such information by a subpoena or other compulsory process for purposes of use in a separate legal action, the party or person receiving such a request shall promptly inform the designating party that such request has been made and shall allow the designating party at least ten (10) days to seek appropriate relief or protection from the proper court to prevent the production.

21. Use of Party's Own Protected Material. Nothing in this Protective Order shall restrict the right of any party to use its own Protected Material for any purpose whatsoever.

22. Disclosure to Party's Employee. Nothing in this Protective Order shall limit the ability of a party to disclose any Protected Material to its author or to anyone identified on the face or in the meta-data of the document as a recipient.

23. Inadvertent Disclosure of Protected Material. If a party in receipt of Protected Material ("receiving party") discovers that it, or a person to whom it has disclosed Protected Material in accordance with this Protective Order, has inadvertently disclosed Protected Material subject to this Protective Order to any person not authorized under this Protective Order, the receiving party must: (a) notify in writing the designating party of the inadvertent disclosure, providing with such notice the identity of the person to whom the Protected Material was disclosed and, upon request of the designating party, details concerning the circumstances of the disclosure, (b) use its best efforts to retrieve all copies of any Protected Material, (c) inform the person to whom the inadvertent disclosure was made that the documents or information are Protected Material subject to this Protective Order and request that the person who received the inadvertent disclosure agree to be bound by the terms of this Protective Order by executing the attached "Acknowledgement and Agreement to Comply with Protective Order."

24. Disclosure of Privileged Information. Pursuant to Federal Rule of Evidence 502(d) and Federal Rule of Civil Procedure 26(b)(5)(B), the production of a privileged or work-product-protected document, whether inadvertent or otherwise, is not a waiver of privilege or protection from discovery in this case or in any other federal or state proceeding. Regardless of the steps taken to prevent disclosure, if a party produces information that it later discovers, or in good faith later asserts, to be privileged or otherwise protected from disclosure, the party receiving the privileged or protected information may not argue that the Producing Party waived the privilege or protection. If a receiving party discovers that it is in receipt of a document or ESI that it reasonably believes contains privileged information, it shall notify the Producing Party, and identify the document in question, within ten (10) business days of such discovery.

Upon discovery by a Producing Party (whether by notice from the receiving party, or otherwise) that it did or may have produced privileged information, the Producing Party shall, within ten (10) business days of such discovery, request the return of such privileged information by sending a written notification ("Clawback Letter") to the receiving party, which shall identify the documents or ESI in question by Bates number or otherwise and the basis on which the privileged information should have been withheld from production. The requirements in this paragraph apply equally to instances in which a Producing Party discovers during a deposition that it did or may have produced privileged information. For purposes of this provision, "discovery" shall mean "actual notice." Production of privileged information alone is insufficient to constitute actual notice.

Upon receipt of a Clawback Letter, the receiving party shall promptly make reasonable efforts to destroy or delete all documents or ESI containing privileged information identified in the letter, and all reproductions or summaries thereof, regardless of whether the receiving party plans to challenge the claim of privilege. The receiving party shall follow these procedures regardless of whether a document is comprised fully or partially of privileged information. The Producing Party shall, within ten (10) business days of the date of the Clawback Letter, reproduce any document or ESI that is comprised only partially of privileged information with the privileged information redacted.

If a receiving party disagrees with a claim of privilege set forth in a Clawback Letter, it shall notify the Producing Party and provide the basis for disputing the privilege claim in writing. The Producing Party must preserve the information claimed to be privileged or otherwise protected until the claim is resolved. Thereafter, the parties shall meet and confer in a good faith attempt to resolve the dispute. In the event that the parties do not resolve their dispute, the receiving party may bring a motion for a determination of whether a privilege applies. If such a motion is made, the Producing Party shall submit to the Court, under seal and for in camera review, a copy of the disputed privileged information in connection with its motion papers. The Producing Party shall comply with Civil Local Rule 79-5 upon submitting this Protected Material. An in camera submission to the Court shall not constitute a waiver of any privilege or protection. Any motion to determine whether a privilege applies shall be filed no later than thirty (30) days after the parties reach an impasse. All documents and ESI identified in any Clawback Letter shall be included in the privilege log(s) produced by the parties. The obligations of the parties set forth in this section apply irrespective of the care taken by the Producing Party to prevent disclosure.

VI. DISPOSITION OF PROTECTED MATERIAL AT THE CONCLUSION OF THIS LITIGATION

25. Except as provided in this Protective Order, within 90 days of the conclusion of this litigation, including appeals, the parties shall (a) destroy or delete all items designated as Protected Material and certify in writing that the items have been destroyed or deleted, or (b) return them to the designating party, depending upon the designating party's stated reasonable preference, except materials that exist on back-up tapes or similar systems. Materials that exist on back-up tapes, systems, or similar storage need not be immediately deleted or destroyed, and, instead, such materials should be overwritten and destroyed in the normal course of business. Until they are overwritten in the normal course of business, the receiving party will take reasonable steps to limit access, if any, to the persons necessary to conduct routine IT and cybersecurity functions. In the course of disposing of information in its possession under this paragraph, the receiving party also will take reasonable steps to notify persons to whom it distributed Protected Material pursuant to this Order that such information should be returned to the receiving party or destroyed by the person possessing the information with written confirmation to receiving party.

26. Notwithstanding the above provision, counsel for the parties are entitled to retain an archival copy of all pleadings, affidavits, motion papers, trial, transcripts, legal memoranda, correspondence, deposition and trial exhibits, expert reports, briefs, other papers filed with the Court, and any other parts of the trial record, as well as notes and other documents constituting the work product of litigation counsel, even if these items contain or reflect Protected Material, so long as the these items remain clearly marked to reflect that the information contained therein is Protected Material subject to this Protective Order.

VII. GENERAL PROVISIONS

27. All documents containing Confidential Information or Protected Health Information that the parties previously produced to one another prior to the entry of this Protective Order, including all materials designated as confidential pursuant to the parties' Confidentiality and Common Interest Agreement dated July 3, 2018, shall be deemed Protected Material subject to this Order. The parties reserve the right to designate documents produced to one another prior to the entry of this Protective Order as Confidential Information under the terms of this Order.

28. This Protective Order does not constitute a ruling on the question of whether any particular document or information is properly discoverable or admissible and does not constitute any ruling on any potential objection to the discoverability of any document or information.

29. For good cause shown, any party may seek to modify or supplement the terms of this Protective Order by first attempting to obtain the consent of the other parties. The parties shall attempt to resolve the issue of any such modification or supplementation among themselves through good faith efforts before seeking judicial intervention. If the parties are not able to reach an agreement, the party seeking the modification or supplementation may file an appropriate motion with the Court upon notice to the other parties.

30. Even after the final disposition of this litigation, the confidentiality obligations imposed by this Order shall remain in effect until the Designating Party agrees otherwise in writing or a court order otherwise directs. Final disposition shall be deemed to be the later of (1) dismissal of all claims and defenses in this Action, with or without prejudice; and (2) final judgment herein after the completion and exhaustion of all appeals, rehearings, remands, trials or reviews of this Action, including the time limits for filing any motions or applications for extension of time pursuant to applicable law. Until final disposition, this Court shall retain continuing jurisdiction in order to enforce the terms of this Order.

IT IS SO ORDERED.