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Reilley D. Keating, OSB No. 073762

reilley.keating@stoel.com

Stephen H. Galloway, OSB No. 093602

stephen.galloway@stoel.com

STOEL RIVES LLP

760 SW Ninth Avenue, Suite 3000

Portland, OR 97205

Telephone: (503) 224-3380

Facsimile: (503) 220-2480

Attorneys for Defendants

UNITED STATES DISTRICT COURT

DISTRICT OF OREGON

EUGENE DIVISION

THE UNITED STATES OF AMERICA, ex 

rel. MICHAEL T. BROOKS,

Relator,

v.

TRILLIUM COMMUNITY HEALTH 

PLAN, INC., AGATE RESOURCES, INC., 

and LANE INDIVIDUAL PRACTICE 

ASSOCIATION, INC.,

Defendants.

Case No.: 6:14-cv-01424-MC

DEFENDANTS’ MOTION TO 

ENFORCE PROTECTIVE ORDER

LOCAL RULE 7-1(a) CERTIFICATION

Pursuant to LR 7-1(a), counsel for defendants Trillium Community Health Plan, Inc. 

(“Trillium”), Agate Resources, Inc. (“Agate”), and Lane Individual Practice Association, Inc. 

(“LIPA”) (collectively “Defendants”) certify that they attempted to confer with relator Michael 

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T. Brooks (“Relator”) by sending him two emails requesting to schedule a conferral call. Both 

times, Relator responded without addressing the conferral request. Defendants therefore threat 

this Motion as opposed.

MOTION

Pursuant to Fed. R. Civ. P. 37(b)(2) and the Court’s inherent powers to enforce its 

Orders, Defendants hereby move that the Court impose appropriate discovery sanctions based on 

Relator’s failure to comply with this Court’s Protective Order (Dkt. 57). Specifically, 

Defendants seek an order compelling Relator to (1) return or destroy all of Defendants’ 

confidential documents in his possession, custody, or control, (2) return all of Defendants’ 

documents in Relator’s possession, custody, or control that contain protected health information 

(“PHI”) under the Health Insurance Portability and Accountability Act (“HIPAA”), and (3) 

certify to this Court that he has complied with the above orders.

This Motion is supported by the following Memorandum of Law and the Declaration of 

Stephen H. Galloway (“Galloway Dec.”), filed herewith.

MEMORANDUM OF LAW

I. INTRODUCTION

When Agate terminated Relator’s employment more than seven years ago, he took with 

him numerous confidential records, many containing PHI, that he claimed were relevant to his 

whistleblower claims. In order to safeguard both the confidentiality of the documents and the 

health information of Agate’s customers, Defendants sought a Protective Order, which the Court 

entered on January 20, 2016. The Protective Order requires Relator to return all PHI and return

or destroy all confidential documents at the conclusion of the lawsuit. Although this lawsuit (and 

all appeals) concluded as of June 6, 2018, Relator had filed numerous other actions against Agate 

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asserting similar whistleblower allegations that were then-pending. In recognition that the 

documents potentially could have been relevant to the claims asserted in those other actions, 

Defendants did not demand return of the documents at the conclusion of this case.

Now, however, all of Relator’s lawsuits are concluded, and Defendants have demanded 

that Relator abide by the terms of the Protective Order and either return or destroy Defendants’ 

confidential information and PHI. Instead of complying with that Order, Relator has threatened 

to disclose the protected information to various parties, including the press, and recently 

suggested that he already may have disclosed the documents to an unnamed third party. 

Defendants therefore respectfully request that the Court order that Relator comply with the terms 

of the Protective Order, immediately return or destroy all of Defendants’ confidential documents,

and return all of Defendants’ PHI.

II. FACTS

Relator worked as a database administrator for Agate from 2005 to 2013. He was 

terminated in 2013 and, on September 3, 2014, filed this qui tam action under seal asserting 

violations of various federal laws, including the False Claims Act, 31 U.S.C. § 3721 et seq. 

(“FCA”). (See Dkt. 3.) During this proceeding, Relator’s counsel acknowledged that Relator 

had retained possession of a large quantity of Defendants’ documents and information, including 

many documents containing PHI. (Dkt. 51 ¶ 6.) Relator has never provided copies or detailed 

the scope of the documents he retained. (Galloway Dec. ¶ 2.)

On January 20, 2016, this Court entered the Protective Order over Relator’s objection. 

(Dkt. 57.) It expressly applies to all documents with any “connection with Relator's employment 

with and/or originating from Trillium, Agate or any of Trillium's or Agate's employees, officers,

directors, corporate parents, subsidiaries, divisions, successors, predecessors or affiliates.” (Dkt. 

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57 ¶ 1.) All such documents are presumed to be Confidential, and the Protective Order restricts 

the use and disclosure of those documents to purposes related to the litigation. (Id. ¶ 3, 7-9, 13.) 

The Protective Order also restricts the use of documents containing PHI, prohibiting their use 

“for any purpose other than prosecuting or defending this action.” (Id. ¶ 5(c).)

The Protective Order further requires that all Confidential documents be returned to 

Defendants “[w]ithin forty-five (45) days after the final termination of this litigation, upon

written request by the designating party.” (Id. ¶ 15.) For documents containing PHI, Relator is 

“required to either return to the Covered Entity from whom or which such PHI was obtained or 

to destroy the PHI (including all copies made thereof), immediately upon (and in no event longer 

than 45 days from) the conclusion of this action.” (Id. ¶ 5(d).) “Further, upon conclusion of this 

action, Relator is required to return to Defendants the PHI (including all copies made thereof) in 

Relator’s possession, custody or control in connection with Relator's employment with and/or 

originating from” Defendants. (Id.) This Court retained jurisdiction to enforce the terms of the 

Order. (Id. ¶ 19.)

This action concluded on June 6, 2018, when the Ninth Circuit issued its mandate 

dismissing Relator’s appeal. (Dkt. 90.) At that time, however, several other actions that Relator 

had filed against Agate remained pending. Specifically, Relator had filed a lawsuit against Agate 

in the District of Oregon that asserted a variety of whistleblower retaliation, employment 

discrimination and other related claims against Agate. (See Brooks v. Agate Resources, Inc., 

District of Oregon Case No. 6:15-cv-00983-MK (the “Employment Lawsuit”).) Relator also 

filed a complaint with the U.S. Department of Labor alleging violations of the whistleblower 

protection provisions of the Affordable Care Act (“ACA”) and the Sarbanes-Oxley Act of 2002 

(“SOX”), Case No. 2016-SOX-00037 (the “First DOL Action”). That case was summarily

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dismissed by the Administrative Law Judge on March 6, 2017, but Relator had appealed that 

dismissal to the Administrative Review Board (ARB Case No. 2017-033), which was pending 

when this case concluded. Then, on July 3, 2018, about a month after this case concluded and 

while the ARB appeal in the First DOL Action remained pending, Relator filed a second 

complaint with the U.S. Department of Labor, again asserting allegations of the whistleblower 

protection provisions of the ACA and SOX, Case No. 2018-SOX-00046 (the “Second DOL 

Action”). 

Recognizing that the documents subject to the Protective Order in this case potentially 

could be relevant in those other actions—should Relator have proceeded beyond the pleading 

stage—Defendants did not demand that Relator return or destroy the Confidential documents

while those other actions remained pending. (Galloway Dec. ¶ 3.) However, each of those 

actions is now concluded. The ARB affirmed the dismissal of the First DOL Action by order 

dated March 25, 2019. (Id. ¶ 4, Ex. 1.) The ARB affirmed the dismissal of the Second DOL 

Action by order dated April 21, 2020. (Id. ¶ 5, Ex. 2.) And the Ninth Circuit affirmed the 

District of Oregon’s order and judgment dismissing the Employment Lawsuit with prejudice by 

order dated November 5, 2020. (Id. ¶ 6, Ex. 3.) The Ninth Circuit’s mandate issued on 

November 27, 2020. (Id., Ex. 4.) Relator also filed a premature petition for writ of certiorari to 

the U.S. Supreme Court in which he described some records of college students and medical 

treatment they received, potentially disclosing PHI. (Id. ¶ 7.)1

Just recently, as Relator’s litigious pursuits against Agate drew to a close, Relator began 

making threats to disclose the confidential information in his possession to third parties, and 

1 Because this petition potentially disclosed PHI, Defendants are not submitting a copy, 

but it can be provided in camera upon request.

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even went so far as to suggest that he has provided confidential documents to a third party. (Id. ¶ 

8, Exs. 5-6.) It is unclear whether Relator has actually disclosed such information to any third 

party (or if so, to whom). But by letter dated October 9, 2020, counsel for Defendants has 

demanded that Relator return or confirm that he has destroyed all of the confidential information 

(including copies thereof) in his possession. (Id. ¶ 9, Ex. 7.) Counsel for Defendants also has 

demanded that Relator (1) return or confirm the destruction of any confidential information in 

the possession of a third party to whom Relator may have disclosed such information and (2) 

require such third party to certify that the third party will agree to and abide by the terms of the 

Protective Order. (Id.) Counsel for Defendants further informed Relator that if he refused to 

comply with these demands, Defendants would seek an order from this Court enforcing the 

Protective Order. (Id.) Relator did not respond to the demand. (Id.)

III. ARGUMENT

Pursuant to Fed. R. Civ. P. 37(b)(2)(A), whenever a party “fails to obey an order” related 

to discovery, the Court may impose sanctions to enforce its Order. The rule further provides a 

non-exhaustive list of potential discovery sanctions that include “treating as contempt of court 

the failure to obey any order.” Fed. R. Civ. P. 37(b)(2)(A).

“A court has power to adjudge in civil contempt any person who willfully disobeys a 

specific and definite order requiring him to do or to refrain from doing an act.” Shuffler v. 

Heritage Bank, 720 F.2d 1141, 1146 (9th Cir. 1983) (citing In re Baum, 606 F.2d 592, 593 (5th 

Cir.1979)). “A person fails to act as ordered by the court when he fails to take ‘all the reasonable 

steps within [his] power to insure compliance with the [court’s] order [ ].” Id. at 1146-47 

(quoting Sekaquaptewa v. MacDonald, 544 F.2d 396, 406 (9th Cir. 1976)). “Sanctions for civil 

contempt can be imposed . . . to compel or coerce obedience to a court order . . . .” Id. at 1147 

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(citing Shillitani v. United States, 384 U.S. 364, 370-71, 86 S.Ct. 1531, 1535-36, 16 L.Ed.2d 622 

(1966)).

Here, the Court explicitly ordered Relator to return all Confidential documents, including 

those containing PHI, upon Defendants’ request at the conclusion of this action. The action has 

long been concluded and Defendants have requested the return of the Confidential information, 

but Relator has failed to comply with the Court’s Order.

IV. CONCLUSION

For the reasons above, Defendants respectfully request that the Court grant their Motion 

to Enforce Protective Order and order Relator to return or destroy all of Defendants’ confidential 

documents in his possession, custody, or control and certify to the Court that he has complied 

with the Order.

DATED: December 22, 2020.

STOEL RIVES LLP

/s/ Stephen H. Galloway 

REILLEY D. KEATING, OSB No. 073762

reilley.keating@stoel.com

STEPHEN H. GALLOWAY, OSB No. 

093602

stephen.galloway@stoel.com

Telephone: (503) 224-3380

Attorneys for Defendants

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CERTIFICATE OF SERVICE

I hereby certify that on December 22, 2020, I filed a copy of foregoing document with the 

Clerk of the Court for the United States District Court– District of Oregon by using the CM/ECF 

system. Participants in this Case No. 6:14-cv-01424-MC who are registered CM/ECF users will 

be served by the CM/ECF system. 

 mailing with postage prepaid

 overnight delivery

 Email

 notice of electronic filing using the CM/ECF system

Michael T. Brooks

32713 Vintage Way

Coburg, OR 97408

DATED: December 22, 2020.

STOEL RIVES LLP

/s/ Stephen H. Galloway

Reilley D. Keating, OSB No. 073762

reilley.keating@stoel.com

Stephen H. Galloway, OSB No. 093602

stephen.galloway@stoel.com

STOEL RIVES LLP

760 SW Ninth Avenue, Suite 3000

Portland, OR 97205

Telephone: (503) 224-3380

Facsimile: (503) 220-2480

Attorneys for Defendants

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