PH2\734774.1

IN THE UNITED STATES DISTRICT COURT 

FOR THE EASTERN DISTRICT OF PENNSYLVANIA 

THE CHESTER COUNTY HOSPITAL : CIVIL ACTION 

 : NO. 02-2746 

 v. : 

 : 

INDEPENDENCE BLUE CROSS, : 

QCC INSURANCE COMPANY, : 

KEYSTONE HEALTH PLAN EAST, and : 

KEYSTONE MERCY HEALTH PLAN : 

ORDER

AND NOW, this _______ day of _____________ 2003, upon consideration of Plaintiff 

The Chester County Hospital’s Opposition to Aetna Inc.’s Motion to Intervene and for a 

Protective Order, it is hereby ORDERED and DECREED that: 

1. Aetna Inc.’s Motion to Intervene is GRANTED; and 

2. Aetna Inc.’s Motion for a Protective Order as it relates to the proposed restriction 

 on the law firm Duane Morris LLP is DENIED. 

 

BY THE COURT: 

___________________________________ 

CHARLES B. SMITH 

UNITED STATES MAGISTRATE JUDGE 

Case 2:02-cv-02746-JP Document 61 Filed 06/06/2003 Page 1 of 8
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PH2\734774.1

IN THE UNITED STATES DISTRICT COURT 

FOR THE EASTERN DISTRICT OF PENNSYLVANIA 

THE CHESTER COUNTY HOSPITAL : CIVIL ACTION 

 : NO. 02-2746 

 v. : 

 : 

INDEPENDENCE BLUE CROSS, : 

QCC INSURANCE COMPANY, : 

KEYSTONE HEALTH PLAN EAST, and : 

KEYSTONE MERCY HEALTH PLAN : 

ORDER

AND NOW, this _______ day of _____________ 2003, upon consideration of Plaintiff 

The Chester County Hospital’s Cross Motion to Compel the Return of Documents, it is hereby 

ORDERED and DECREED that Plaintiff’s Cross Motion is GRANTED. It is further 

ORDERED and DECREED that Aetna’s counsel shall immediately return the documents and all 

copies, if any, bates numbered CCH 0029260 through CCH 0029265, to Counsel for Plaintiff. 

BY THE COURT: 

___________________________________ 

CHARLES B. SMITH 

UNITED STATES MAGISTRATE JUDGE 

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PH2\734774.1

IN THE UNITED STATES DISTRICT COURT 

FOR THE EASTERN DISTRICT OF PENNSYLVANIA 

THE CHESTER COUNTY HOSPITAL : CIVIL ACTION 

 : NO. 02-2746 

 v. : 

 : 

INDEPENDENCE BLUE CROSS, : 

QCC INSURANCE COMPANY, : 

KEYSTONE HEALTH PLAN EAST, and : 

KEYSTONE MERCY HEALTH PLAN : 

PLAINTIFF THE CHESTER COUNTY HOSPITAL’S OPPOSITION TO AETNA INC.’S

MOTION TO INTERVENE AND FOR A PROTECTIVE ORDER, AND PLAINTIFF’S 

CROSS MOTION TO COMPEL THE RETURN OF DOCUMENTS 

Plaintiff, The Chester County Hospital (the “Hospital”), by its attorneys, respectfully 

submits this Opposition to Aetna Inc.’s (“Aetna”) Motion to Intervene and for a Protective Order 

(the “Motion”) as it relates to the proposed restriction on the law firm Duane Morris LLP 

(“Duane Morris”). The Hospital also respectfully submits this Cross Motion to Compel the 

Return of Documents, seeking the return of certain inadvertently disclosed documents currently 

in the possession of Aetna’s counsel. 

Introduction

The Court’s January 24, 2003 Protective Order (the “Order”) defines the category “highly 

confidential” as information or the contents of any document which satisfies the definition of 

“confidential information,” and “(a) which the Disclosing Entity contends is either proprietary or 

a trade secret, or (b) which reveals health care provider reimbursement rates or the negotiation of 

such reimbursement rates with health care providers.” See Order at ¶ 7. 

On May 30, 2003, the Hospital filed a Motion to Modify the Protective Order (the 

“Motion to Modify”) to extend the protections of the Order to insurers, including Aetna (the 

“Insurers”), and limit disclosure of category (a) material designated “highly confidential” by 

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PH2\734774.1

insurers to Defendant Independence Blue Cross (“IBC”) in-house counsel who are not involved 

in making competitive business decisions. The Hospital also sought a modification to the Order 

restricting disclosure of category (b) material designated by insurers as “highly confidential” to 

outside counsel. 

Additionally, the Motion to Modify sought to extend the protections of paragraph 10(a) 

of the Order to the insurers. This paragraph restricts access to information designated as highly 

confidential to a limited number of Duane Morris attorneys who have entered their appearance in 

this case and who have agreed to the restrictions in paragraph 10(a) concerning their practice. 

Thus, the Hospital is not wholly opposed to Aetna’s Motion. It is, however, opposed to Aetna’s 

Motion to the extent Aetna seeks to preclude the entire Duane Morris law firm from having 

access to its highly confidential information.1

 

Argument 

1. Aetna’s Motion Should Be Denied as it Relates to the Proposed Restriction 

on the Entire Duane Morris Law Firm. 

Failing to cite a single case where similar protection was ordered, Aetna moves for a 

complete restriction against Duane Morris from having access to its highly confidential 

information. In so moving, Aetna bears the burden of demonstrating that good cause exists for 

such an order and must be specific about the harm it will suffer absent the relief it seeks; broad 

allegations of harm are not sufficient to meet its burden. Pansy v. Borough of Stroudsburg, 23 

F.3d 772, 786-787 (3d Cir. 1994) (citations omitted). Aetna fails to meet its burden, however, 

 

1

 Aetna argues that the Hospital intended to produce to IBC certain documents concerning Aetna 

without any confidentiality designation. See Aetna Inc.’s Motion at 5. In fact, the purpose of the 

May 22, 2003 letter from Lewis Olshin to James Crumlish was to give Aetna an opportunity to 

review these documents and file an appropriate motion prior to production to IBC. Production of 

the documents has not occurred pending the resolution of the outstanding motions related to the 

Order. 

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PH2\734774.1

because absent the relief it seeks – precluding Duane Morris from its highly confidential 

information – Aetna will not suffer the specific harm it alleges – disclosure of confidential 

information to The Hospital and Health System Association of Pennsylvania (“HAP”). Indeed, 

there is no basis to grant the broad relief requested by Aetna and deprive the Hospital of having 

its counsel participate in this case. 

Currently, paragraph 10(a) of the Order restricts the disclosure of highly confidential 

information to “outside counsel for the parties who have filed an entry of appearance in this 

matter and who agree not to represent the Delaware Valley Health Care Council of The Hospital 

and Health System Association of Pennsylvania... in the contract negotiations by IBC of health 

care provider reimbursement rates...” This protection was ordered by the Court to protect IBC 

from the situation Aetna alleges in its motion, namely the disclosure of highly confidential 

information to David Loder, a Duane Morris attorney and General Counsel for HAP. See Aetna 

Inc.’s Motion at Ex. A. In fact, in its Motion to Modify, the Hospital agreed that this protection 

should extend to the insurers. 

While courts have restricted attorney access to proprietary information subject to a 

protective order, they have not done so with blanket restrictions like the one Aetna seeks against 

Duane Morris. Rather, courts have narrowly restricted access to those attorneys who are not 

involved in making competitive business decisions. See Ball Memorial Hospital, Inc., et al. v. 

Mutual Hospital Ins., Inc., 784 F.2d 1325, 1345-46 (7th Cir. 1986) (restricting access to prices 

bid by hospitals to obtain contracts with Blue Cross Blue Shield of Indiana, “unquestionably 

sensitive trade secrets,” to trial counsel only); U.S. v. Dentsply Int'l, Inc., 187 F.R.D. 152, 159-

62 (D. Del. 1999) (prohibiting disclosure of confidential information to in-house counsel 

involved in competitive decision making); Motorola Inc. v. Interdigital Tech. Corp., 1994 U.S. 

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PH2\734774.1

Dist. Lexis 20714, *10-13 (D. Del. 1994) (erecting a “Chinese Wall” between in-house counsel 

involved in litigation from other in-house counsel to avoid disclosure of plaintiff’s confidential 

information during defendant’s future patent prosecutions); Carpenter Tech. Corp. v. Armco., 

Inc., 132 F.R.D. 24, 27-28 (E.D. Pa. 1990) (granting protective order against one in-house 

attorney involved in competitive decision making while denying protective order against another 

in-house attorney not so involved). 

Under the Hospital’s proposed modifications to the Order, access to highly confidential 

information will be restricted to those outside counsel who enter an appearance in this case – 

which David Loder has not – and who agree to the representation restrictions. This proposed 

protection is consistent with the aforementioned cases that have considered similar issues. It is 

therefore inappropriate to exclude the entire Duane Morris law firm from access to Aetna’s 

highly confidential information. 

2. Confidential Documents Inadvertently Disclosed to Aetna Should Be 

Returned. 

By letters dated May 28 and May 29, 2003, the Hospital’s counsel forwarded documents 

concerning Aetna to Mr. Crumlish to give Aetna an opportunity to review them and file an 

appropriate motion. See Letters from Lewis Olshin to James Crumlish dated May 28 and May 

29, 2003, attached as Ex. A. Inadvertently included in these documents were documents bates 

numbered CCH 0029260 through CCH 0029265, which “contain IBC’s confidential and 

proprietary information.” See Aetna Inc.’s Motion at n.5. By letter dated June 4, 2003, the 

Hospital’s counsel requested that Mr. Crumlish return the inadvertently produced documents. 

See Letter from Lewis Olshin to James Crumlish dated June 4, 2003, attached as Ex. B. 

Despite recognizing that these documents contain “IBC’s confidential and proprietary 

information,” and despite a request from counsel, Mr. Crumlish has not returned the documents 

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to the Hospital’s counsel, but rather he “has retained exclusive control over these documents.”

Id. Mr. Crumlish should return these documents to the Hospital’s counsel given his recognitio

that they are confidential. The Hospital respectfully requests that the Court order Mr. Crumlis

to immediately return the documents and all copies, if any, bates numbered CCH 0029260 

through CCH 0029265. See Gould v. A&M Battery & Tire Service, et al., 1996 U.S. Dist. Lex

12161 (M.D. Pa. 1996) (granting motion for protective order and to compel return of privilege

documents inadvertently produced); Herman Goldner, Co., v. Cimco Lewis Indus., 58 Pa. D.&

C.4th 173 (2002) (ordering return of inadvertently disclosed privileged documents). 

Conclusion 

For all of the foregoing reasons, The Chester County Hospital respectfully opposes Ae

Inc.’s Motion as it relates to the proposed restriction on the Duane Morris law firm, and 

respectfully moves the Court for an Order granting its Cross Motion to Compel the Return of 

Documents. 

 Respectfully Submitted, 

 

 _______________________________ 

 Lewis R. Olshin 

 Wayne A. Mack 

 Seth A. Goldberg 

 Duane Morris LLP 

 One Liberty Place 

 Philadelphia, Pennsylvania 19103-7396 

 

 Richard A. Feinstein 

 Daniel A. Kotchen 

Boies Schiller & Fle ner LLP

Case 2:02-cv-02746-JP Document 61 Filed 06/06/2003 Page 7 of 8
CERTIFICATE OF SERVICE

 I, Lewis R. Olshin, Esquire, hereby certify that a true and correct copy of the foregoing

Plaintiff The Chester County Hospital’s Opposition to Aetna, Inc.’s Motion to Intervene and F

A Protective Order, and Plaintiff’s Cross Motion to Compel the Return of Documents with 

Exhibits, has been served on June 6, 2003, upon the following counsel of record as follows: 

 Via Hand Delivery:

 Paul S. Diamond, Esquire 

 Thomas A. Leonard, Esquire 

 Obermayer, Rebmann, Maxwell & Hippel, LLP 

 One Penn Center, 19th Floor 

 1617 John F. Kennedy Boulevard 

 Philadelphia, PA 19103 

 Counsel for Defendants

 Via Federal Express:

 John DeQ. Briggs, III, Esquire 

 Howrey Simon Arnold & White, LLP 

 1299 Pennsylvania Avenue, NW 

 Washington, DC 20004-2402 

 Counsel for Defendants

 _______________________________ 

 Lewis R. Olshin, Esq. 

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