M.A. v. United Behavioral Health

• Decision Date: 23 May 2023
• Docket Number: 2:20-cv-00894-DAK-JCB
• Parties: M.A., individually and on behalf of E.H., a minor, Plaintiffs, v. UNITED BEHAVIORAL HEALTH; OPTUMHEALTH BEHAVIORAL SOLUTIONS, INC.; and MOTION PICTURE INDUSTRY HEALTH PLAN, Defendants.
• Court: U.S. District Court — District of Utah

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M.A., individually and on behalf of E.H., a minor, Plaintiffs, v. UNITED BEHAVIORAL HEALTH; OPTUMHEALTH BEHAVIORAL SOLUTIONS, INC.; and MOTION PICTURE INDUSTRY HEALTH PLAN, Defendants.

No. 2:20-cv-00894-DAK-JCB

United States District Court, D. Utah

May 23, 2023

DALE A. KIMBALL DISTRICT JUDGE

MEMORANDUM DECISION AND ORDER

JARED C. BENNETT UNITED STATES MAGISTRATE JUDGE

District Judge Dale A. Kimball referred this case to Magistrate Judge Jared C. Bennett under 28 U.S.C. § 636(b)(1)(A).^[1] Before the court is Defendants United Behavioral Health; OptumHealth Behavioral Solutions, Inc. (collectively, “UBH”); and Motion Picture Industry Health Plan's (“Plan”) (together with UBH, “Defendants”) motion for a protective order to maintain the confidentiality designations Defendants placed on certain documents produced in discovery.^[2]Based upon the analysis set forth below the court grants Defendants' motion.

Background

This action arises out of a health care coverage dispute regarding the denial of coverage for mental health care provided to Plaintiff E.H.^[3]Plaintiffs M.A. and E.H. (collectively “Plaintiffs”) assert causes of action against Defendants for: (1) recovery of Plan benefits under the Employee Retirement Income Security Act (“ERISA”),^[4] and (2) violation of the Mental Health Parity and Addiction Equity Act (“MHPAEA”).^[5]

On November 29, 2021, Plaintiffs served Defendants with requests for admission, interrogatories, and requests for production of documents. In response, Defendants served written objections and responses and produced documents. Defendants designated some of those documents as “Confidential Information” under the stipulated protective order entered in this case.^[6]

On October 7, 2022, Plaintiffs sent a letter to Defendants challenging the confidentiality designations Defendants placed on certain documents (collectively, “Disputed Documents).^[7] The Disputed Documents consist of: (1) a Mental Health Parity Comparison conducted by Defendants; (2) the Milliman Care Guidelines for Subacute/Skilled Nursing Facility Care, which are held by non-party Anthem and subject to a third-party licensing agreement with MCG Health, LLC (“MCG”); and (3) UBH Clinical Technology Assessments.^[8]On November 11, 2022, Defendants sent a response letter to Plaintiffs, in which Defendants indicated that they maintained their original position regarding the confidentiality designations placed on the Disputed Documents and intended to move for a protective order to maintain those designations.^[9] Defendants subsequently filed the motion for protective order before the court.^[10]Plaintiffs oppose Defendants' motion.^[11]

Once Defendants' motion was briefed, the court ordered them to submit the Disputed documents for an in camera review.^[12]After Defendants submitted the Disputed Documents, the court held oral argument on Defendants' motion.^[13]At the conclusion of the hearing, the court ordered the parties to submit supplemental briefing on the following issues: (1) whether the court needs to address the extent to which any of the Disputed Documents must be disclosed under the mandatory disclosure provisions of ERISA and MHPAEA; (2) if the court is required to address that issue, whether the mandatory disclosure provisions preclude the court from permitting Defendants to designate the Disputed Documents as “Confidential Information” and (3) the proper balancing test for confidentiality and the limits the court should impose on what the parties may do with the information and documents to which they may be entitled. The parties subsequently filed their supplemental briefs as ordered by the court.^[14]

Legal Standards

Defendants' motion is governed by Fed.R.Civ.P. 26(c)(1)(G), which provides:

A party or any person from whom discovery is sought may move for a protective order in the court where the action is pending .... The court may, for good cause, issue an order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense, including . . . requiring that a trade secret or other confidential research, development, or commercial information not be revealed or be revealed only in a specified way ....^[15]

“Where a party seeks a protective order to maintain confidentiality designations of trade secrets or other confidential commercial information, the court must weigh ‘the risk of disclosure to competitors against the risk that a protective order will impair prosecution or defense of the claims.'”^[16]The party seeking a protective order “must satisfy a three-factor test by first, establishing the ‘information sought is a trade secret or other confidential research, development, or commercial information' and second, demonstrating that its disclosure ‘might be harmful.'”^[17]“Lastly, the moving party must show the harm from disclosure ‘outweighs the need for access.'”^[18]If the party seeking a protective order “satisfies these three requirements, the burden ‘shifts to the party seeking unrestricted disclosure to establish that such disclosure is relevant and necessary.'”^[19]

Analysis

Below the court first concludes that the balancing test set forth above is the proper standard to apply to Defendants' motion. Thereafter, the court applies the balancing test and concludes that Defendants are permitted to retain the confidentiality designations placed on the Disputed Documents. Therefore, the court grants Defendants' motion for protective order.^[20]

I. The Balancing Test Set Forth Above Is the Proper Standard to Apply to Defendants' Motion.

Defendants argue that the balancing test outlined above is the proper standard to apply to their motion.^[21]In response, Plaintiffs contend that the balancing test is not applicable because the mandatory disclosure provisions contained in ERISA and MHPAEA control, and, consequently, the Disputed Documents are publicly available. Plaintiffs further argue that the relevant statutory and regulatory provisions do not contain language allowing Defendants to designate as confidential information that is subject to mandatory disclosure.^[22]Plaintiffs maintain that the lack of a confidentiality provision in the statutory and regulatory language is evidence that Congress and federal regulators determined that information subject to mandatory disclosure is not permitted to be treated as confidential. As shown below, Plaintiff's arguments fail, and, therefore, the court applies the balancing test to Defendants' motion.

Plaintiffs are correct in arguing that the mandatory disclosure provisions of ERISA and MHPAEA do not have language concerning confidentiality of any information produced under those provisions.^[23]However, those provisions also lack any language mandating public release of the information,^[24]and the court struggles to believe that Congress intended to suspend copyright laws for a swath of otherwise copyright-protected material by implication through ERISA, especially where a construction of ERISA and copyright laws are capable of co-existing without doing violence to either's language.^[25]“The lack of provisions addressing confidentiality and public availability is neither ambiguous nor irrational.”^[26]“The broadest group with rights of access to this information consists of current and potential participants or beneficiaries.”^[27]“In other words, even if the [D]isputed [D]ocuments are subject to mandatory production, they are not publicly available. Instead, they are available only to an exclusive and definable group of people-potential and current plan participants and beneficiaries.”^[28]

Because the Disputed Documents have already been produced to Plaintiffs, the sole remaining issue is “the designation of [the Disputed Documents] as confidential, not their discoverability.”^[29]In considering that issue, the court employs the balancing test referenced above because “[n]othing about the language or structure of the mandatory disclosure provisions of ERISA or [MPHAEA] eliminates the need to balance the competing interests at stake when evaluating the appropriateness of confidentiality designations.”^[30]

II. Defendants Are Permitted to Retain the Confidentiality Designations Placed on the Disputed Documents.

For Defendants to maintain the confidentiality designations placed on the Disputed Documents under the balancing test, Defendants must: (A) “establish the confidential nature of the [D]isputed [D]ocuments;” (B) “demonstrate harm might result from disclosure;” and (C) “show the risk of such harm outweighs Plaintiffs' interest in disclosure.”^[31]Once those three requirements are satisfied, the burden shifts to Plaintiffs to (D) demonstrate that unrestricted disclosure of the Disputed Documents is relevant and necessary.^[32]As shown below, Defendants satisfy the requirements of the balancing test for the Disputed Documents, and Plaintiffs fail to carry their burden to show that unrestricted disclosure of the Disputed Documents is necessary.

A. Defendants Have Established That the Disputed Documents Are Confidential.

Defendants must first show that the Disputed Documents contain “‘trade secret or other confidential research development, or commercial information.'”^[33]Along with their motion, Defendants submitted the declarations of: (1) Conor Bagnell, Senior Vice President, Product Management and Strategic Alliances at MCG;^[34](2) Janice Spinner, M.D., Chief Medical Officer for the Plan;^[35]and (3) Jeffrey Meyerhoff, M.D., Senior National Medical Director for UBH.^[36]Those declarations adequately demonstrate that the Disputed Documents contain commercially sensitive, proprietary, and confidential information from Defendants and non-parties MCG and Anthem.^[37]Additionally, Defendants provide sufficient...