The opinion
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
NORMAN MAURICE ROWE, M.D., M.H.A., Civil Action No.: 1:22-cv-09571-PGG
L.L.C. and EAST COAST PLASTIC
SURGERY, P.C., Document electronically filed
Plaintiffs,
v. STIPULATED DISCOVERY
CONFIDENTIALITY ORDER
CIGNA HEALTH AND LIFE INSURANCE
COMPANY,
Defendant.
It appearing that discovery in the above-captioned action is likely to involve the disclosure
by the parties of confidential business information and confidential patient information, including
personal identifiers; and it appearing further that legitimate interests warrant that such information
remain confidential and that there is a substantial risk that clearly defined and serious injury or
harm to the parties’ legitimate proprietary interests will result should this Order not be entered;
and it appearing further that the discovery of confidential health information is implicated in this
action, and this Stipulation and Order is accordingly intended to provide protection sufficient to
constitute a Qualified Protective Order under the Health Insurance Portability and Accountability
Act of 1996 (“HIPAA”) and the regulations promulgated under its aegis (see 45 C.F.R. §
160.512(e)(1)(ii)); and the parties having agreed to keep materials produced in discovery
confidential and to return or destroy such materials in accordance with the terms set forth in this
Order; and good cause having been shown for entry of this Order pursuant to 45 C.F.R. §
164.514(b)(2)(i) and Rule 26(c)(1)(G) of the Federal Rules of Civil Procedure;
IT IS on this 18th day of April , 2023, ORDERED as follows:
1. With respect to information relating to any patient discovered or exchanged in this
litigation that identifies an individual or subscriber in any manner and/or relates to the past, present,
or future care, services, or supplies relating to the physical or mental health or condition of such
individual or subscriber, the provision of health care to such individual or subscriber, or the past,
present, or future payment for the provision of health care to such individual or subscriber, the
parties shall designate that information as “CONFIDENTIAL HEALTH INFORMATION.” The
term “Confidential Health Information” specifically includes “protected health information” as
such term is defined by the Standards for Privacy of Individually Identifiable Health Information,
45 CFR parts 160 and 164, promulgated pursuant to HIPAA. See 45 C.F.R. § 160.103 (defining
“individually identifiable health information” and “protected health information”). “Confidential
Health Information” includes, but is not limited to, medical bills, claims forms, charge sheets,
medical records, medical charts, test results, notes, dictation, invoices, itemized billing statements,
remittance advice forms, explanations of benefits, checks, notices, and requests. “Confidential
Health Information” also includes all notes, summaries, compilations, extracts, abstracts, or oral
communications that contain, are based on, or are derived from, Confidential Health Information.
“Confidential Health Information” does not include any document or information that has all of
the following identifiers of the individual or subscriber or of the relatives, employers, or household
members of the individual or subscriber removed or redacted pursuant to Rule 26(c)(1)(G) of the
Federal Rules of Civil Procedure:
(a) names;
(b) all geographic subdivisions smaller than a State, including
street address, city, county, precinct, zip code, and their equivalent
area codes, except for the initial three digits of a zip code if,
according to the current publicly available data from the Bureau of
the Census, (i) the geographic unit formed by combining all zip
codes with the same three initial digits contains more than 20,000
people, and (ii) the initial three digits of a zip code for all such
geographic units containing 20,000 or fewer people is changed to
000;
(c) all elements of dates (except year) for dates directly related
to an individual, including birth date, admission dates, discharge
dates and date of death, and all ages over 89, and all elements of
dates (including year) indicative of such age, except that such ages
and elements may be aggregated into a single category of age 90 or
older;
(d) telephone numbers;
(e) fax numbers;
(f) electronic mail addresses;
(g) social security numbers;
(h) medical record numbers;
(i) health plan beneficiary numbers;
(j) account numbers;
(k) certificate/license numbers;
(l) vehicle identifiers and serial numbers, including license
plate numbers;
(m) device identifiers and serial numbers;
(n) web universal resource locators (“URLs”);
(o) internet protocol (“IP”) address numbers;
(p) biometric identifiers, including finger and voice prints;
(q) full face photographic images and any comparable images,
and:
(r) any other unique identifying number, characteristic, or code
except as permitted for a code utilized to re-identify de-identified
data that complies with 45 C.F.R. § 164.514(c).
Notwithstanding the foregoing sentence, the parties shall produce documents in response to
discovery requests of another party in this litigation without redaction, designating such documents
as further set forth herein.
2. Any party to this litigation and any third-party shall have the right to designate as
“Confidential” and subject to this Order any information, document, or thing, or portion of any
document or thing: (a) that contains trade secrets or competitively sensitive technical, marketing,
financial, sales or other confidential business information, or (b) that contains private or
confidential personal information, or (c) that contains information received in confidence from
third parties, or (d) that the producing party otherwise believes in good faith to be entitled to
protection under Rule 26(c)(1)(G). Any party to this litigation or any third party covered by this
Order who produces or discloses any Confidential material, including without limitation any
information, document, thing, interrogatory answer, admission, pleading, or testimony, shall mark
the same with the following or similar legend: “CONFIDENTIAL” or “CONFIDENTIAL –
SUBJECT TO DISCOVERY CONFIDENTIALITY ORDER” (hereinafter “Confidential”).
3. Any party to this litigation and any third-party shall have the right to designate as
“Attorneys’ Eyes Only” and subject to this Order any information, document, or thing, or portion
of any document or thing that (a) otherwise qualifies as Confidential material pursuant to the terms
of this Order, and (b) contains highly-sensitive trade secrets or business information. To designate
any information within a document as Attorneys’ Eyes Only, the producing party shall mark every
page of the document in which such information appears with the following or similar legend:
“ATTORNEYS’ EYES ONLY” or “ATTORNEYS’ EYES ONLY – SUBJECT TO DISCOVERY
CONFIDENTIALITY ORDER”. The parties agree to make good faith determinations that any
information designated as Attorneys’ Eyes Only reasonably warrants that designation, as well as
protection under Rule 26(c).
4. All material designated Confidential Health Information, Confidential, and/or
Attorneys’ Eyes Only shall be used by the receiving party solely for purposes of the prosecution
or defense of this action, shall not be used by the receiving party for any business, commercial,
competitive, personal or other purpose, and shall not be disclosed by the receiving party to anyone
other than those individuals set forth in Paragraphs 5 and 6 unless and until the restrictions herein
are removed either by written agreement of counsel for the parties or by order of the Court.
5. Confidential material, the contents of Confidential material, Confidential
Information and Confidential Health Information, may be disclosed only to the following
individuals under the following conditions:
(a) Outside counsel (herein defined as any attorney at the
parties’ outside law firms) and relevant in-house counsel for
the parties;
(b) Outside experts or consultants retained by outside counsel
for purposes of this action, provided they have signed a non-
disclosure agreement in the form attached hereto as Exhibit
A and further provided that disclosure of Confidential Health
Information to outside experts and/or consultants shall only
be permitted where the disclosing party and the vendor are
parties to a Business Associate contract compliant with 45
C.F.R. § 164.504(e)(2),(3), & (5);
(c) Secretarial, paralegal, clerical, duplicating and data
processing personnel of the foregoing;
(d) The Court and court personnel;
(e) Any deponent may be shown or examined on any
information, document or thing designated Confidential if it
appears that the witness authored or received a copy of it,
was involved in the subject matter described therein or is
employed by the party who produced the information,
document or thing, or if the producing party consents to such
disclosure;
(f) Vendors retained by or for the parties to assist in preparing
for pretrial discovery, trial and/or hearings including, but not
limited to, court reporters, litigation support personnel, jury
consultants, individuals to prepare demonstrative and
audiovisual aids for use in the courtroom or in depositions or
mock jury sessions, as well as their staff, stenographic, and
clerical employees whose duties and responsibilities require
access to such materials, provided they have signed a non-
disclosure agreement in the form attached hereto as Exhibit
A and further provided, however, that disclosure of
Confidential Health Information to a vendor shall only be
permitted where the disclosing party and the vendor are
parties to a Business Associate contract compliant with 45
C.F.R. § 164.504(e)(2),(3), & (5); and
(g) The parties. In the case of parties that are corporations or
other business entities, “party” shall mean executives who
are required to participate in decisions with reference to this
lawsuit and employees who are witnesses or potential
witnesses in the matter.
6. Attorneys’ Eyes Only material may be disclosed only to the following individuals
under the following conditions:
(a) Outside counsel (herein defined as any attorney at the
parties’ outside law firms) and relevant in-house counsel for
the parties;
(b) Outside experts or consultants retained by outside counsel
for purposes of this action, provided they have signed a non-
disclosure agreement in the form attached hereto as Exhibit
A;
(c) Secretarial, paralegal, clerical, duplicating and data
processing personnel of the foregoing;
(d) The Court and court personnel;
(e) Any deponent may be shown or examined on any
information, document or thing designated Attorneys’ Eyes
Only if it appears that the witness authored or received a
copy of it, was involved in the subject matter described
therein or is employed by the party who produced the
information, document or thing, or if the producing party
consents to such disclosure; and
(f) Vendors retained by or for the parties to assist in preparing
for pretrial discovery, trial and/or hearings including, but not
limited to, court reporters, litigation support personnel, jury
consultants, individuals to prepare demonstrative and
audiovisual aids for use in the courtroom or in depositions or
mock jury sessions, as well as their staff, stenographic, and
clerical employees whose duties and responsibilities require
access to such materials provided they have signed a non-
disclosure agreement in the form attached hereto as Exhibit
A.
7. Attorneys’ Eyes Only material may not be disclosed to the parties. In the case of
parties that are corporations or other business entities, “party” shall mean officers, employees and
agents of the entity, with the exception of in-house counsel and their staff as set forth in Paragraph
6(a) and (c), above.
8. Confidential Health Information, Confidential material, and Attorneys’ Eyes Only
material shall be used only by individuals permitted access to such material under Paragraphs 5
and 6 above. Confidential Health Information, Confidential material, and Attorneys’ Eyes Only
material, copies thereof, and the information contained therein, shall not be disclosed in any
manner to any other individual, until and unless (a) outside counsel for the party asserting
confidentiality waives the claim of confidentiality and, with respect to Confidential Health
Information, there exists a valid authorization by the individual to whom it relates that complies
with the requirements of 45 C.F.R. § 164.508(6), or (b) the Court orders such disclosure.
9. With respect to any depositions that involve a disclosure of Confidential Health
Information, Confidential material, or Attorneys’ Eyes Only material of a party to this action, such
party shall have until thirty (30) days after receipt of the deposition transcript within which to
inform all other parties that portions of the transcript are to be designated Confidential Health
Information, Confidential, or Attorneys’ Eyes Only, which period may be extended by agreement
of the parties. During this period, no such deposition transcript shall be disclosed, and no
individual attending such a deposition shall disclose the contents of the deposition, to any
individual other than the individuals described in Paragraph 5 (as to Confidential Health
Information and Confidential material) and Paragraph 6 (as to Attorneys’ Eyes Only material).
Upon being informed that certain portions of a deposition are to be designated as Confidential
Health Information, Confidential, or Attorneys’ Eyes Only all parties shall immediately cause each
copy of the transcript in its custody or control to be appropriately marked and limit disclosure of
that transcript in accordance with Paragraphs 5 and 6.
10. If counsel for a party receiving documents or information designated as
Confidential Health Information, Confidential, or Attorneys’ Eyes Only hereunder objects to such
designation of any or all of such items, the following procedure shall apply:
(a) Counsel for the objecting party shall serve on the designating
party or third party a written objection to such designation, which
shall describe with particularity the documents or information in
question and shall state the grounds for objection. Counsel for the
designating party or third party shall respond in writing to such
objection within 14 days, and shall state with particularity the
grounds for asserting that the document or information is
Confidential Health Information, Confidential, or Attorneys’ Eyes
Only. If no timely written response is made to the objection, the
challenged designation will be deemed to be void. If the designating
party or nonparty makes a timely response to such objection
asserting the propriety of the designation, counsel shall then confer
in good faith in an effort to resolve the dispute.
(b) If a dispute as to a Confidential Health Information,
Confidential, or Attorneys’ Eyes Only designation of a document or
item of information cannot be resolved by agreement, the parties
shall submit the dispute to the Court for resolution. The document
or information that is the subject of the filing shall be treated as
originally designated pending resolution of the dispute.
11. A party seeking to file any documents and/or things under seal shall file a motion
to seal. Designation under this Order alone is not a sufficient basis to seek to seal.
12. In accordance with paragraph 2 of this Court’s Individual Practices, any party filing
documents under seal must simultaneously file with the Court a letter brief and supporting
declaration justifying – on a particularized basis – the continued sealing of such documents. The
parties should be aware that the Court will unseal documents if it is unable to make “specific, on
the record findings . . . demonstrating that closure is essential to preserve higher values and is
narrowly tailored to serve that interest.” Lugosch v. Pyramid Co. of Onondaga, 435 F.3d 110, 120
(2d Cir. 2006).
13. The Court also retains discretion whether to afford confidential treatment to any
Discovery Material designated as Confidential and submitted to the Court in connection with any
motion, application, or proceeding that may result in an order and/or decision by the Court. All
persons are hereby placed on notice that the Court is unlikely to seal or otherwise afford
confidential treatment to any Discovery Material introduced in evidence at trial, even if such
material has previously been sealed or designated as Confidential.
14. In filing Confidential Discovery Material with this Court, or filing portions of any
pleadings, motions, or other papers that disclose such Confidential Discovery Material
(“Confidential Court Submission”), the Parties shall publicly file a redacted copy of the
Confidential Court Submission via the Electronic Case Filing System. The Parties shall file an
unredacted copy of the Confidential Court Submission under seal with the Clerk of this Court, and
the Parties shall serve this Court and opposing counsel with unredacted courtesy copies of the
Confidential Court Submission.
15. If the need arises during trial or at any hearing before the Court for a party to
disclose Confidential Health Information, Confidential material, or Attorneys’ Eyes Only material,
it may do so only after giving notice to the producing party and as directed by the Court. Nothing
herein constitutes a ruling that any information will be sealed or that an in camera presentation
will be permitted.
16. If, at any time, any person, other than the party who originally produced
Confidential Health Information, Confidential material, or Attorneys’ Eyes Only material receives
a subpoena or other compulsory process by any court, administrative agency, legislative body, or
other person or entity commanding production of such materials, the person to whom the subpoena
or request is directed shall, except where prohibited by law, reasonably provide written notice to
the party who produced such materials. The party who produced such materials then shall have
the burden of defending against or objecting to such request. The person to whom the subpoena
or request is directed shall not take any position concerning the propriety of such subpoena or
request, or the discoverability of the information sought thereby. Unless otherwise ordered by a
Court or required by a government subpoena, the person to whom the subpoena or request is
directed shall comply with the request only if the party who produced the materials does not timely
seek, or is unsuccessful in seeking, an order modifying or quashing the request.
17. To the extent consistent with applicable law, the inadvertent or unintentional
disclosure of Confidential Health Information, Confidential material, or Attorneys’ Eyes Only
material that should have been but was not designated as such at the time it was disclosed shall not
be deemed a waiver in whole or in part of a party’s claim of confidentiality, either as to the specific
information, document or thing disclosed or as to any other material or information concerning the
same or related subject matter. Such inadvertent or unintentional disclosure may be rectified by
notifying counsel for all parties to whom the material was disclosed, in writing and within a
reasonable time after disclosure, that the material should have been designated Confidential Health
Information, Confidential, or Attorneys’ Eyes Only. Such notice shall constitute a valid
designation of the information, document or thing as Confidential Health Information,
Confidential, or Attorneys’ Eyes Only under this Discovery Confidentiality Order. Provided,
however, Confidential Health Information shall be treated in accordance with this Order without
regard to any designation or claim of protection at the time of production.
18. When the inadvertent or mistaken disclosure of any information, document or thing
protected by privilege or work-product immunity is discovered by the producing party and brought
to the attention of the receiving party, the receiving party’s treatment of such material shall be in
accordance with Federal Rule of Civil Procedure 26(b)(5)(B). Such inadvertent or mistaken
disclosure of such information, document or thing shall not by itself constitute a waiver by the
producing party of any claims of privilege or work-product immunity. However, nothing herein
restricts the right of the receiving party to challenge the producing party’s claim of privilege, if
appropriate, within a reasonable time after receiving notice of the inadvertent or mistaken
disclosure by filing an appropriate application with the Court.
19. No information that is in the public domain or that is already known by the
receiving party through proper means, or that is or becomes available to a party from a source
other than the party asserting confidentiality that is rightfully in possession of such information on
a non-confidential basis, shall be deemed or considered to be Confidential material under this
Discovery Confidentiality Order.
20. No person, firm, corporation, or other entity subject to this Order shall give, show,
disclose, make available, or communicate Confidential Health Information, Confidential, or
Attorneys’ Eyes Only information to any person, firm, corporation, or other entity not expressly
authorized by this Order to receive such Confidential Health Information, Confidential, or
Attorneys’ Eyes Only information.
21. This Discovery Confidentiality Order is with reservation and without waiver of all
rights, defenses, objections and privileges any party may possess and shall not deprive any party
of its right to object to discovery by any other party or on any permitted ground. This Discovery
Confidentiality Order is being entered without prejudice to the right of any party to move the Court
for modification or for relief from any of its terms.
22. This Discovery Confidentiality Order shall survive the termination of this action
and shall remain in full force and effect unless modified by an order of this Court or by the written
stipulation of the parties filed with the Court.
23. Upon final conclusion of this litigation, including any appeals, each party or other
individual subject to the terms hereof shall be under an obligation to assemble and to return to the
originating source all originals and unmarked copies of documents and things containing
Confidential Health Information, Confidential, or Attorneys’ Eyes Only information and to
destroy, should such source so request, all copies of such materials that contain and/or constitute
attorney work product as well as excerpts, summaries and digests revealing such Confidential
Health Information. Confidential, or Attorneys’ Eyes Only material; provided, however, that
counsel may retain complete copies of all transcripts and pleadings including any exhibits attached
thereto for archival purposes, subject to the provisions of this Discovery Confidentiality Order
and, as to Confidential Health Information, the requirements of HIPAA and 45 C.F.R. §
164.504(e)(2)(ii)(J), imposed on Business Associates to preserve the privacy of those transcripts
and pleadings. Each party shall be required, within 21 days of the entry of any final order,
disposition, agreement, or other event triggering the conclusion of this litigation, to provide a
certification indicating compliance with this paragraph. To the extent a party requests the return
of such material from the Court after the final conclusion of the litigation, including the exhaustion
of all appeals therefrom and all related proceedings, the party shall file a motion seeking such
relief.
CONSENTED TO BY:
By: s/ Jason R. Halpin s/ Brendan J. Kearns
Jason R. Halpin, Esq. Brendan J. Kearns, Esq.
GIBBONS P.C. LEWIN & BAGLIO, LLP
One Gateway Center 1100 Shames Drive
Newark, NJ 07102-5310 Westbury, NY 11590
Tel: (973) 596-4500 Tel.: 516-467-9881
Fax: (973) 639-6399 bkearns @ lewinbaglio.com
jhalpin @ gibbonslaw.com Attorneys for Plaintiff
Attorneys for Defendant 2125.COM.133
Cigna Health and Life Insurance Company
Dated: April 13, 2023 April 13, 2023
IT IS SO ORDERED.
Dated: April 18, 2023 Larstopbe-
Hon. Paul G. Gardephe U.S.D.J.
13
EXHIBIT A
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
NORMAN MAURICE ROWE, M.D., M.H.A., Civil Action No.: 1:22-cv-09571-PGG
L.L.C. and EAST COAST PLASTIC
SURGERY, P.C., Document electronically filed
Plaintiffs,
v. AGREEMENT TO BE BOUND BY
DISCOVERY CONFIDENTIALITY
CIGNA HEALTH AND LIFE INSURANCE ORDER
COMPANY,
Defendant.
I, _______________________________, being duly sworn, state that:
1. My address is _______________________________________________.
2. My present employer is ___________________________ and the address of my
present employment is _______________________________________________.
3. My present occupation or job description is _______________________.
4. I have carefully read and understood the provisions of the Discovery
Confidentiality Order in this case signed by the Court, and I will comply with all provisions of the
Discovery Confidentiality Order which are incorporated by reference in this Agreement.
5. I will hold in confidence and not disclose to anyone not qualified under the
Discovery Confidentiality Order any Confidential Health Information, Confidential Material,
Attorneys’ Eyes Only material or any words, summaries, abstracts, or indices of these materials or
information disclosed to me.
6. I will limit use of Confidential Health Information, Confidential Material, and
Attorneys’ Eyes Only material disclosed to me solely for purpose of this action.
7. No later than the final conclusion of the case, I will return all Confidential Health
Information, Confidential Material, Attorneys’ Eyes Only material and summaries, abstracts, and
indices thereof which come into my possession, and documents or things which I have prepared
relating thereto, to counsel for the party for whom I was employed or retained.
I declare under penalty of perjury that the foregoing is true and correct.
Dated: __________________ _______________________________________
Name