This case was last updated from Los Angeles County Superior Courts on 04/20/2019 at 17:00:10 (UTC).

PEOPLE OF THE STATE OF CALIFORNIA ET AL VS IV SOLUTIONS INC

Case Summary

On 05/21/2018 a Property - Other Property Fraud case was filed by PEOPLE OF THE STATE OF CALIFORNIA against IV SOLUTIONS INC in the jurisdiction of Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California.

Case Details Parties Dockets

 

Case Details

  • Case Number:

    ****7186

  • Filing Date:

    05/21/2018

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Property - Other Property Fraud

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Stanley Mosk Courthouse

  • County, State:

    Los Angeles, California

 

Party Details

Plaintiff and Petitioner

PEOPLE OF THE STATE OF CALIFORNIA

Petitioners

ILWU-PMA WELFARE PLAN

PEOPLE OF THE STATE OF CALIFORNIA

Defendants and Respondents

IV SOLUTIONS INC.

SADOW RENEE

VARASTEHPOUR ALIZERA

DOES 1 THROUGH 400

Court Documents

Court documents are not available for this case.

 

Docket Entries

  • 03/29/2019
  • at 08:30 AM in Department 34; Hearing on Demurrer - without Motion to Strike - Held

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  • 03/29/2019
  • Notice of Case Management Conference; Filed by Clerk

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  • 03/29/2019
  • Minute Order ( (Hearing on Demurrer - without Motion to Strike)); Filed by Clerk

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  • 03/22/2019
  • Reply (REPLY IN SUPPORT OF DEMURRER); Filed by IV Solutions, Inc., a California Corporation (Defendant); Alizera Varastehpour (Defendant)

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  • 03/18/2019
  • Opposition (to Defendants' Demurrer to Complaint); Filed by ILWU-PMA Welfare Plan (Plaintiff)

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  • 02/28/2019
  • Proof of Service (not Summons and Complaint); Filed by Renee Sadow (Defendant)

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  • 02/28/2019
  • Answer (Renee Sadow's answer to plaintiff's complaint); Filed by Renee Sadow (Defendant)

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  • 02/21/2019
  • at 2:31 PM in Department 34; Non-Appearance Case Review

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  • 02/15/2019
  • Demurrer - without Motion to Strike; Filed by IV Solutions, Inc., a California Corporation (Defendant); Alizera Varastehpour (Defendant)

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  • 02/06/2019
  • Notice of Related Case; Filed by People of the State of California (Plaintiff); ILWU-PMA Welfare Plan (Plaintiff)

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5 More Docket Entries
  • 11/16/2018
  • Minute Order ((Nunc Pro Tunc Order)); Filed by Clerk

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  • 11/09/2018
  • at 08:30 AM in Department 34; Ex-Parte Proceedings

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  • 11/09/2018
  • Proof of Personal Service; Filed by People of the State of California (Plaintiff)

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  • 11/09/2018
  • Minute Order ((Ex-Parte Proceedings for Order Unsealing Complaint and Permit...)); Filed by Clerk

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  • 11/09/2018
  • Order (Granting Ex Parte Application for order unsealing complaint and permitting service of complaint on defendants Pursuant to Insurance Code Section 1871.7(e)(2)); Filed by People of the State of California (Plaintiff); ILWU-PMA Welfare Plan (Plaintiff)

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  • 11/09/2018
  • Declaration in Support of Ex Parte Application; Filed by People of the State of California (Plaintiff); ILWU-PMA Welfare Plan (Plaintiff)

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  • 11/09/2018
  • Ex Parte Application (for order Unsealing); Filed by People of the State of California (Plaintiff); ILWU-PMA Welfare Plan (Plaintiff)

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  • 08/10/2018
  • Order; Filed by Commissioner

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  • 08/10/2018
  • Stipulation; Filed by Commissioner

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  • 05/21/2018
  • Complaint; Filed by People of the State of California (Plaintiff); ILWU-PMA Welfare Plan (Plaintiff)

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Tentative Rulings

Case Number: BC707186    Hearing Date: March 17, 2020    Dept: 76

THE COURT WAIVES THE REQUIREMENT FOR ADVANCE NOTICE OF TELEPHONIC APPEARANCE UNDER CRC 3.670(h) FOR THIS MATTER.  THE COURT ENCOURAGES COUNSEL TO APPEAR TELEPHONICALLY.  COUNSEL WISHING TO SUBMIT ON THIS TENTATIVE SHOULD CONTACT THE STAFF OF DEPARTMENT 76 TO DO SO.

DISCUSSION:

Motion To Bifurcate

Defendants IV Solutions, Inc. and Alireza Varastehpour move to bifurcate the statute of limitations defense to be tried before any other issues. Defendants argue that adjudication of the affirmative defense based on the application of the applicable statute of limitations could potentially dispose of the need to litigate any other issues in this case or, at a minimum, significantly reduce the issues remaining to be tried.

The Court has the discretion to order bifurcation in furtherance of convenience, the ends of justice, the economy and efficiency of handling the litigation, or to avoid prejudice. CCP §§ 598, 1048(b).

CCP § 597, cited by Defendant, give the Court discretion (“may”) to first try a statute of limitations defense or other defense not involving the merits of the plaintiff’s cause of action but constituting a bar:

When the answer pleads that the action is barred by the statute of limitations, . . ., or sets up any other defense not involving the merits of the plaintiff’s cause of action but constituting a bar or ground of abatement to the prosecution thereof, the court may, either upon its own motion or upon the motion of any party, proceed to the trial of the special defense or defenses before the trial of any other issue in the case, and if the decision of the court, or the verdict of the jury, upon any special defense so tried (other than the defense of another action pending) is in favor of the defendant pleading the same, judgment for the defendant shall thereupon be entered and no trial of other issues in the action shall be had unless that judgment shall be reversed on appeal or otherwise set aside or vacated; . . .

CCP § 597.

Plaintiff argues that the first and third causes of action for fraud are each subject to a three-year statute of limitations. Ins. Code § 1871.7(l)(1)(“An action pursuant to this section may not be filed more than three years after the discovery of the facts constituting the grounds for commencing the action”); CCP § 338(d)( “An action for relief on the ground of fraud or mistake. The cause of action in that case is not deemed to have accrued until the discovery, by the aggrieved party, of the facts constituting the fraud or mistake.”) and the second cause of action for violation of B & P Code § 17200 is subject to a four year statute of limitations.

Both statutes of limitations set forth in Ins. Code § 1871.7(l)(1) and CCP § 338(d) recognize the application of the discovery rule in their language. Additionally, the B & P Code § 17200 statute of limitation is also subject to the discovery rule.

a. [4:1581] Delayed discovery rule may apply: Aryeh v. Canon Business Solutions, Inc.

Banke & Segal, Cal. Prac. Guide Civ. Pro. Before Tr. Stat. of Limitations, § 4:1581, The Rutter Group.

Defendants’ argue that Zenith Healthcare, Plaintiff’s agent to administer the health plan, knew of the facts on which Plaintiff’s claims are based well over three years before the filing of this action on May 21, 2018, because it received “Investigative Summary” documents which pre-date the May 22, 2015 report, and each of the Investigative Summaries set forth some of the purported “findings” set forth in the May 22, 2015 report, which in turn forms the factual basis for Plaintiff’s claims.

As Defendants note, an agent’s knowledge is imputed to the principal for purposes of the accrual of the statute of limitations

A principal is deemed to have notice of whatever its agent has notice of and should reasonably communicate to the principal. (Civ. Code, § 2332; see McKenney v. Ellsworth (1913) 165 Cal. 326, 329 [132 P. 75].) “[T]he principal is chargeable with, and is bound by the knowledge of, or notice to, [its] agent, received while the agent is acting within the scope of [its] authority, and which is in reference to a matter over which [its] authority extends. [Citations.]” (Trane Co. v. Gilbert (1968) 267 Cal.App.2d 720, 727 [73 Cal. Rptr. 279].) “One who acts through an agent will be presumed to know all that the latter learns concerning the transaction, whether it is actually communicated to the principal or not. There is no difference in this respect between actual and constructive notice. It is of no avail that the agent failed to communicate to his principal what he had ascertained.” (Shapiro v.  [*367] Equitable Life Assur. Soc. (1946) 76 Cal.App.2d 75, 87 [172 P.2d 725].) Included among the types of information that may be imputed from agent to principal are facts used to determine the date of accrual of a statute of limitations. (Santillan v. Roman Catholic Bishop of Fresno (2008) 163 Cal.App.4th 4, 11 [77 Cal. Rptr. 3d 343].)

Baxter v. State Teachers' Retirement System (2017) 18 Cal.App.5th 340, 366-367.

“‘[W]hen a plaintiff reasonably should have discovered facts for purposes of the accrual of a ca[u]se of action or application of the delayed discovery rule is generally a question of fact, properly decided as a matter of law only if the evidence (or, in this case, the allegations in  the complaint and facts properly subject to judicial notice) can support only one reasonable conclusion.’ [Citations.]”

Rosas v. BASF Corp. (2015) 236 Cal.App.4th 1378, 1394.

If the jury hears the bifurcated issue of the statute of limitations defense limited to what information Zenith received in those Investigative Summary documents prior to CHC’s May 22, 2015 written report, and whether the information contained in the Investigative Summary documents was sufficient such that Zenith, as Plaintiff’s agent, knew or should have known of Defendants’ fraudulent claims before May 22, 2015, this may dispose of the first and third causes of action and a large portion of the second cause of action. As Defendants note, the Complaint was filed in this action on May 21, 2018—only two days before the three-year statute of limitations expired.

Moreover, once the evidence of these Investigative Summary documents is considered for purposes of the statute of limitations issue, it appears that the Investigate Summary documents need not be considered in a second liability phase (if necessary) because, according to Defendants, the findings in the Investigative Summaries set forth virtually all of the findings in the May 22, 2015 Investigative Report. If so, then only the findings of the May 22, 2015 Investigative Report need be considered by the jury in the second phase pertaining to Defendants’ liability.

In this regard, it would be in furtherance of convenience, the ends of justice, the economy and efficiency of handling the litigation to bifurcate the statute of limitations issue.

Accordingly, the motion to bifurcate is GRANTED as to the statute of limitations defense limited to what information Zenith received in those Investigative Summary documents prior to CHC’s May 22, 2015 written report, and whether the information contained in the Investigative Summary documents was sufficient such that Zenith, as Plaintiff’s agent, knew or should have known of Defendants’ fraudulent claims before May 22, 2015.

Application To Seal

Defendants did not timely file a motion to seal. A Supplemental Brief was served by mail on March 6, 2020, which is only six court days prior to the purported hearing date.

Defendants IV Solutions, Inc. and Alireza Varastehpour move to seal the following documents lodged in support of the motion to bifurcate:

1. Exhibit 2 to the Declaration of Eric Levinrad in support of the Motion to Bifurcate, conditionally filed under seal on January 3, 2020 ("Confidential Document No. 1").

2. Exhibit 4 to the Declaration of Eric Levinrad in support of the Motion to Bifurcate, conditionally filed under seal on January 3, 2020 ("Confidential Document No. 2").

3. Supplemental Declaration of Eric Levinrad in support of the Motion to Bifurcate, conditionally filed under seal on February 4, 2020 ("Confidential Document No. 33,);

4. Exhibit 5 to the Supplemental Declaration of Eric Levinrad in support of the Motion to Bifurcate, conditionally filed under seal on February 4, 2020 ("Confidential Document No. 4").

A motion seeking an order sealing the record must be accompanied by “a declaration containing facts sufficient to justify the sealing.” CRC Rule 2.551(b)(1)(bold emphasis and underlining added). Per CRC Rule 2.550(d), a court may order that a record be filed under seal “only if it expressly finds facts that establish” all of the following:

(Bold emphasis added.)

CRC Rule 2.550(e) provides:

(1) An order sealing the record must:

(A) Specifically state the facts that support the findings;

(B) Direct the sealing of only those documents and pages, or, if reasonably practicable, portions of those documents and pages, that contain the material that needs to be placed under seal. All other portions of each document or page must be included in the public file.

“A request to seal a document must be filed publicly and separately from the object of the request. It must be supported by a factual declaration or affidavit explaining the particular needs of the case.” In re Marriage of Lechowick (1998) 65 Cal.App.4th 1406, 1416 (bold emphasis and underlining added).

The fact that the documents sought to be sealed were designed confidential subject to protective order is, by itself, insufficient to justify sealing.

Unless confidentiality is required by law, court records are presumed to be open.” CRC Rule 2.550(c)(bold emphasis and underlining added). The trial court cannot rely solely on an agreement or stipulation of the parties as the basis for permitting records to be filed under seal. (Citations omitted.)” Savaglio v. Wal-Mart Stores, Inc. (2007) 149 Cal.App.4th 588, 600 (bold emphasis and underlining added).

Here, Defendants indicate that the personal identifying information including health and medical information is protected by the Health Insurance Portability and Accountability Act of 1992 (“HIPAA”)—45 C.F.R. § 160.103—and California’s Confidentiality of Medical Information Act (“CMIA”)—Civ. Code § 56.05(j). It does not appear that either statute requires confidentiality in the context of court filings.

While information protected by HIPAA cannot be disclosed by a provider of health care, health care service plan or contractor without authorization, HIPAA does not preclude this Court from ordering disclosure. Disclosure of protected health information is not prohibited when in response to a court order:

Through HIPAA, “Congress expressed its concern for protecting the integrity and confidentiality of personal medical records, and for preventing the unauthorized use or disclosure of such records.” (Citation omitted.) “Responding to the congressional mandate, DHHS [United States Department of Health and Human Services] promulgated comprehensive regulations to protect the privacy of personal medical records” (citation omitted), including part 164 of title 45 of the Code of Federal Regulations (2005) which “governs the management and disclosure of medical records by ‘covered entities’” and “prohibits the disclosure of protected health information without an authorization” (citation omitted). An exception for disclosure of protected health information is contained in 45 Code of Federal Regulations part 164.512(e)(1)(i) (2003), which permits disclosure of “‘protected health information in the course of any judicial or administrative proceeding’” when it does so “‘[i]n response to an order of a court or administrative tribunal, provided that the covered entity discloses only the protected health information expressly authorized by such order.’” (Citation omitted.) 

Lee v. Superior Court (2009) 177 Cal.App.4th 1108, 1135-36 (bold emphasis and italics in original).

To the extent not preempted by HIPAA, California's Confidentiality of Medical Information Act, Cal. Civ. Code §§ 56 et seq., also provides that covered entities may disclose medical records pursuant to a court order. See Cal. Civ. Code § 56.10(b)(1).” Rhodes v. County of Placer (E.D. Cal. Jan. 13, 2011) 2011 U.S. Dist. LEXIS 6248, * 13.

Petitioner's deposition testimony indicates he has access to his patients' records at Cedars through the Internet. Nevertheless, he insists that he cannot access patient records within the custody and control of Cedars except for legitimate medical reasons and that he may be subject to penalties under the state Confidentiality of Medical Information Act (CMIA) (Civ. Code, § 56 et seq.) and the federal Health Insurance Portability and Accountability Act of 1996 (HIPAA) (42 U.S.C. § 1320 et seq.) if he accesses records to comply with the discovery order in this case. As real parties in interest point out, producing redacted postoperative orders in response to the trial court's discovery order violates neither CMIA nor HIPAA, both of which allow disclosure of medical information pursuant to a court order without patient authorization. (See Civ. Code, §§ 56.05, subd. (j) [CMIA protects individually [*198]  identifiable medical information], 56.10, subds. (a) & (b)(1) [disclosure compelled by court order permitted]; 45 C.F.R. § 164.512(e)(1)(i) (2013) [disclosure authorized by court order permitted].) In light of these provisions, petitioner's concerns appear to be unjustified.

Snibbe v. Superior Court (2014) 224 Cal.App.4th 184, 197-98.

The [Confidentiality of Medical Information Act] “was originally enacted … ‘to provide for the confidentiality of individually identifiable medical information, while permitting certain reasonable and limited uses of that information.’ [Citation.]” (Heller v. Norcal Mutual Ins. Co. (1994) 8 Cal.4th 30, 38 [32 Cal. Rptr. 2d 200, 876 P.2d 999].) By its express terms, the CMIA recognizes that its confidentiality mandate is not absolute. Rather, section 56.10 enumerates numerous instances where disclosure of confidential information is either mandatory or permissive. In particular, subdivision (c)(14) of section 56.10 (subdivision (c)(14)) states: “(c) A provider of health care or a health care service plan may disclose medical information as follows [¶] … [¶] (14) The information may be disclosed when the disclosure is otherwise specifically authorized by law … .” (§ 56.10, subd. (c)(14).) The City is correct in describing subdivision (c)(14) as a “catchall provision” as it “serves as the residuary clause in section 56.10. It legitimizes a myriad of situations the Legislature may not have cared to spell out, by establishing the principle of permissive disclosure when specifically authorized by law.” (Shaddox v. Bertani (2003) 110 Cal.App.4th 1406, 1414 [2 Cal. Rptr. 3d 808] (Shaddox).)

McNair v. City and County of San Francisco (2016) 5 Cal.App.5th 1154, 1165 (bold emphasis added).

(a) A provider of health care, health care service plan, or contractor shall not disclose medical information regarding a patient of the provider of health care or an enrollee or subscriber of a health care service plan without first obtaining an authorization, except as provided in subdivision (b) or (c).

(b) A provider of health care, a health care service plan, or a contractor shall disclose medical information if the disclosure is compelled by any of the following:

(1) By a court pursuant to an order of that court.

(2) By a board, commission, or administrative agency for purposes of adjudication pursuant to its lawful authority.

(3) By a party to a proceeding before a court or administrative agency pursuant to a subpoena, subpoena duces tecum, notice to appear served pursuant to Section 1987 of the Code of Civil Procedure, or any provision authorizing discovery in a proceeding before a court or administrative agency.

. . .

Civ Code § 56.10(a) & (b)(bold emphasis added).

Accordingly, moving party must demonstrate by way of a factual declaration or affidavit that all of the CRC Rule 2.550(d) requirements for sealing have been met.

 

¿ CRC Rule 2.550(d) factors:

In terms of the overriding interest requirement of a closure or sealing order, NBC Subsidiary identifies two separate elements. The first element requires the identification of an overriding interest. (NBC Subsidiary (KNBC-TV), Inc. v. Superior Court, supra, 20 Cal.4th at pp. 1217–1218; see In re Providian Credit Card Cases, supra, 96 Cal.App.4th at p. 298, fn. 3.) Defendant has identified such a potential overriding interest—a binding contractual agreement not to disclose.

. . .

We agree with defendant that its contractual obligation not to disclose can constitute an overriding interest within the meaning of rule 243.1(d). (Publicker Industries, Inc. v. Cohen, supra, 733 F.2d at p. 1073; NBC Subsidiary (KNBC-TV), Inc. v. Superior Court, supra, 20 Cal.4th at p. 1222, fn. 46.)

Universal City Studios, Inc. v. Superior Court (2003) 110 Cal.App.4th 1273, 1283.

Here, the stipulated protective order designating Confidential Health/Identifying Material as Confidential, as well as the privacy interests embodied in HIPAA and CMIA constitute an overriding interest that overcomes the right of public access to the record.

This requirement is satisfied.

It is logical (and uncontroversial) that the overriding interest of confidentiality supports sealing the record.

This requirement is satisfied.

Although moving party has identified an overriding interest, that, by itself, is insufficient to justify a sealing order.

We have been unable to find any appellate court decision which construes Publicker to permit sealing of court documents merely upon the agreement of the parties without a specific showing of serious injury. We therefore, with respect, reject defendant’s broad reading of the citation to Publicker in footnote 46 of NBC Subsidiary.

. . .  [*1283]  . . . [O]nce it is established there is a potential overriding interest, the party seeking closure or sealing must prove prejudice to that interest is substantially probable. ( NBC Subsidiary (KNBC-TV), Inc. v. Superior Court, supra, 20 Cal.4th at p. 1222.)

In terms of the overriding interest requirement of a closure or sealing order, NBC Subsidiary identifies two separate elements. The first element requires the identification of an overriding interest. ( NBC Subsidiary (KNBC-TV), Inc. v. Superior Court, supra, 20 Cal.4th at pp. 1217–1218; see In re Providian Credit Card Cases, supra, 96 Cal.App.4th at p. 298, fn. 3.) Defendant has identified such a potential overriding interest—a binding contractual agreement not to disclose. The second element of the overriding interest analysis is there must be a substantial probability that it will be prejudiced absent closure or sealing. ( NBC Subsidiary (KNBC-TV), Inc. v. Superior Court, supra, 20 Cal.4th at p. 1218; Pack v. Kings County Human Services Agency (2001) 89 Cal.App.4th 821, 832 [107 Cal. Rptr. 2d 594].) As we will note, defendant has not shown a substantial probability any such interest in the present case will be prejudiced—the second element of overriding interest analysis identified in NBC Subsidiary. This analysis has now been promulgated by the Judicial Council as one of the findings that must be returned before a sealing order can be entered. (Rule 243.1(d)(3) [“A substantial probability exists that the overriding interest will be prejudiced if the record is not sealed ….”].)

Universal City Studios, Inc., supra, 110 Cal.App.4th at 1282-83 (bold emphasis and underlining added).

Moving party has not presented admissible evidence that the overriding interest will be prejudiced if the record is not sealed. The Declaration of Eric Levinrad does not articulate a specific showing of serious injury, nor that there is a substantial probability of prejudice, if the record is not sealed. The Levinrad Declaration does not address this factor at all, as is required by CRC Rule 2.551(b)(1). Even the Supplemental Brief only states in conclusory terms: “The public dissemination of Plan Members' names and medical history would invade their privacy and cause embarrassment and distress to them without providing any meaningful benefit to the public, and therefore should remain confidential pursuant to the Protective Order entered by this Court.” This generalization is not a given. Indeed, not every disclosure of a medical fact would cause embarrassment and distress. There is no evidence demonstrating a substantial probability that the overriding interest will be prejudiced absent sealing.

In delineating the injury to be prevented, specificity is essential. [Citation.] Broad allegations of harm, bereft of specific examples or articulated reasoning, are insufficient.” ( In re Cendant Corp., supra, 260 F.3d at p. 194 .) We have been unable to find any appellate court decision which construes Publicker to permit sealing of court documents merely upon the agreement of the parties without a specific showing of serious injury. We therefore, with respect, reject defendant’s broad reading of the citation to Publicker in footnote 46 of NBC Subsidiary.

Universal City Studios, Inc., supra, 110 Cal.App.4th at 1280-82 (bold emphasis and underlining added).

While prejudice may seem logical or even self-evident with regard to health information, Rules of Court 2.550 and 2.551 require at least a prima facie showing of prejudice, which has not been provided here. This requirement is not satisfied. At any rate, even if the Court were to infer prejudice, the request for sealing is not narrowly tailored, and less restrictive means for protection have not been addressed, as discussed below.

The proposed sealing does not appear to be narrowly tailored, as the entire exhibits are sought to be seal, rather than the portions thereof as to which a privacy interest has been shown.

This requirement is not satisfied.

Moving party has not addressed why redaction would be insufficient to achieve the overriding interest. For purposes of this motion to bifurcate, there is no reason why redaction of names would be a less restrictive means to achieve the overriding interest of confidentiality. In fact, ¶ 13 of the Stipulated Protective Order recognizes that redaction of Protected Health Information and any other private and Confidential Material may be redacted without the need for a sealing order. Declaration of Eric Levinrad, ¶ 2, Exh. 1.

As such, the motion to seal is DENIED. Within 10 days of this order, Defendants are ordered to file versions of the following exhibits which redact information from which persons may be identified:

1. Exhibit 2 to the Declaration of Eric Levinrad in support of the Motion to Bifurcate, conditionally filed under seal on January 3, 2020 ("Confidential Document No. 1").

2. Exhibit 4 to the Declaration of Eric Levinrad in support of the Motion to Bifurcate, conditionally filed under seal on January 3, 2020 ("Confidential Document No. 2").

3. Supplemental Declaration of Eric Levinrad in support of the Motion to Bifurcate, conditionally filed under seal on February 4, 2020 ("Confidential Document No. 33,);

4. Exhibit 5 to the Supplemental Declaration of Eric Levinrad in support of the Motion to Bifurcate, conditionally filed under seal on February 4, 2020 ("Confidential Document No. 4").