108309923.2 0061542-00016 

Stephen H. Galloway

760 SW Ninth Avenue, Suite 3000

Portland, OR 97205

D. 503.294.9369

stephen.galloway@stoel.com

October 9, 2020

VIA EMAIL & FIRST-CLASS MAIL

Michael T. Brooks 

32713 Vintage Way 

Coburg, Oregon 97408 

mibrooks@mac.com 

Re: HIPAA Protected Health Information

Dear Mr. Brooks: 

From the outset of your legal actions against Agate Resources, Inc. (“Agate”), you have made 

clear that you are in possession of numerous company records that contain Agate customers’ 

protected health information (“PHI”), as that term is defined in the Health Insurance Portability 

and Accountability Act (“HIPAA”). As you know, in your prior action brought as a relator 

under the False Claims Act, District of Oregon Case No. 6:14-cv-01424-AA (the “FCA Action”), 

the District Court entered a Protective Order that limits PHI you obtained from Agate to use in 

that case and prohibits disclosure of all confidential information, including PHI, to anyone 

except select persons, including court staff, counsel, and witnesses. (Protective Order, enclosed, 

¶ 8.) If PHI or other confidential information is provided to any person authorized by the 

Protective Order, that person is required to sign the Declaration of Compliance attached to the 

Protective Order as Exhibit A. (Protective Order ¶ 10.) 

The Protective Order further requires that you return or destroy all confidential material and PHI 

within 45 days after the conclusion of that action. (Protective Order ¶¶ 5(d), 15.) The FCA 

Action concluded on June 6, 2018, when the Ninth Circuit Court of Appeals dismissed your 

appeal for lack of prosecution. (Case No. 17-35620, Dkt. 23.) Although the FCA Action 

concluded, Agate previously did not demand the return or destruction of the PHI and other 

confidential documents in your possession in case those documents might be relevant to the 

whistleblower retaliation claims in your other federal lawsuit against Agate, District of Oregon

Case No. 6:15-cv-00983-MK, which is currently on appeal in the Ninth Circuit, Case No. 19-

35547. 

However, in a recent email, a copy of which is enclosed with this letter, you stated that you had 

provided copies of some “records” “to the usual third party that will make everything public if I 

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Michael T. Brooks 

October 9, 2020 

Page 2 

108309923.2 0061542-00016 

or a member if my family is harmed in any way.” You further stated that you did not believe 

these records were subject to the Protective Order. The Protective Order, however, prohibits 

disclosure of any documents that you obtained from Agate during your employment, regardless 

of whether they contain PHI. (Protective Order ¶ 3 (confidential documents include “[a]ll

documents and information in Relator’s (including his attorney’s or agent’s) possession, custody 

or control that were obtained in 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”).)

Based on your representation that you have disclosed confidential documents to a third party, 

Agate demands that this third party execute the Declaration of Compliance attached to the 

Protective Order as Exhibit A to ensure that he or she agrees to abide by the Protective Order’s 

terms. Also, pursuant to paragraphs 5(d) and 15 of the Protective Order, Agate demands that you 

return or confirm the destruction of all of the confidential information in your possession and in 

the possession of any third party to whom you have provided such information, including all 

copies thereof. If you refuse to take these actions, Agate will be forced to seek to enforce the 

terms of the Protective Order by filing a motion, if necessary, in the District Court. 

Please let me know by October 30, 2020 if you will agree to provide the Declaration of 

Compliance and return or destroy the confidential information as required by the Protective 

Order.

Very truly yours, 

Stephen H. Galloway 

Enclosures 

cc: Reilley D. Keating

Rachel C. Lee

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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 RlVES LLP 

900 SW Fifth Avenue, Suite 2600 

Portland, OR 97204 

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, 

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

Plaintiff, 

v. 

TRILLIUM COMMUNITY HEALTH 

PLAN, INC. and AGATE RESOURCES, 

INC., 

Defendants. 

PROTECTIVE ORDER 

WHEREAS, relator Michael T. Brooks ("Relator"), acting on behalf of the United States 

of America ("United States"), has alleged that he is in possession of documents and information 

belonging to defendant Trillium Community Health Plan, Inc. ("Trillium") and defendant Agate 

Resources, Inc. ("Agate") (Trillium and Agate collectively referred to as "Defendants"), which 

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EXHIBIT A 

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he retained during or at the conclusion of his employment and prior to the filing of the Complaint 

in this qui tam action; 

WHEREAS, documents and information currently in Relator's possession and/or that 

have been or may be sought, produced, exhibited by, or otherwise'in the possession of the parties 

to this action contain or may contain protected health information ("PHI"), as defined by 45 

C.F.R. § 160.103 and subject to the Health Insurance Portability and Accountability Act 

("HIP AA"), and/or may contain confidential or private information that is subject to protection 

under Fed. R. Civ. P. 26(c); and 

WHEREAS, the Court finds that good cause exists to protect the confidential nature of 

the information, including any PHI, contained in the documents and in any interrogatory 

responses, responses to requests for admission or deposition testimony that may be served in 

discovery; 

The Court being duly advised, IT IS HEREBY ORDERED as follows: 

1. This Order governs the use, handling and disclosure of (1) all documents, 

testimony, or information produced or given in this action and (2) all documents and information 

in the possession, custody or control of Relator in 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, succ.essors, predecessors or affiliates. 

2. Any party producing or filing documents or other materials in this action may 

designate such materials and the information contained therein subject to this Order by typing or 

stamping on the front of the document, or on the portion(s) of the document for which 

confidential treatment is designated, "Confidential" if the paiiy has a reasonable and good faith 

belief the material contains a trade secret, PHI, or other confidential, private or proprietary 

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information. If a producing party believes in good faith that, despite the provisions of this Order, 

there is a substantial risk of identifiable harm if particular documents it designates as 

"Confidential" are disclosed to all other parties or non-parties to this action, the producing party 

may designate those particular documents as "Confidential - Attorneys' Eyes Only." In any 

dispute over the designation of materials as confidential, the designating party shall have the 

burden of proving that the materials contain trade secrets, PHI, or other confidential, private or 

proprietary information. In any dispute over the designation of materials as confidential, the 

designating party shall have the burden of proving that the materials are confidential as described 

above. 

3. AH documents and information in Relator's (including his attorney's or agent's) 

possession, custody or control that were obtained in 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 shall be 

deemed Confidential unless a different designation is mutually agreed to by the Parties. If the 

parties cannot agree upon the proper designation of any document deemed Confidential under 

this paragraph, such dispute shall be resolved pursuant to paragraph 6 with Defendants as the 

designating parties. 

4. If a party files under seal any document subject to this Order, or any motions, 

briefs, pleadings, deposition transcripts, or other papers that incorporate documents or 

information subject to this Order, the party seeking to preserve the secrecy of any such document 

or information must make the showing required by Fed. R. Civ. P. 26 and Foltz v. State Farm 

JV!ut. Automobile Ins. Co., 331F.3d1122 (9th Cir. 2003), in order to maintain the Order as to 

such document or information. Before seeking to maintain the protection of documents filed 

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with the Court, a party must assess whether redaction is a viable alternative to complete 

nondisclosure. If any party seeks to file any documents, subject to this Order, those documents 

must be marked as "Confidential" or "Confidential-Attorneys' Eyes Only," filed under seal and 

comply with the requirements of Civil Local Rules 3-7 and 26-4. 

5. This action includes allegations relating to the billing of Medicare and Medicaid 

services, and thus involves the provision of health care to and on the behalf of non-parties. As a 

result, there is the potential that the parties will request the production and disclosure of PHI 

from each other or third-parties as it relates to the issues and claims in this action, and Relator 

has alleged that he currently possesses Defendants' documents, which may contain PHI. 

(a) HIPAA, Pub. L. No. 104-191, 110 Stat. 1936 (1996) limits certain entities' 

authority to disclose PHI. 

(b) This Order is intended to authorize disclosure of PHI in accordance with 

the HIPAA privacy regulations, see 45 C.F.R. § 164.512(e). The parties and their 

attorneys shall be permitted to use or disclose PHI subject to this Order for purposes of 

prosecuting or defending this action including any appeals of this case. This includes, but 

is not necessarily limited to, disclosure to their attorneys, experts, consultants, court 

personnel, court reporters, copy services, trial consultants, and other entities or persons 

involved in the litigation process, including health oversight agencies and public health 

authorities as provided by 45 C.F.R. § 146.5020). Prior to the disclosure of PHI to any 

such person, the party or the party's attorney shall inform each such person that the 

information is PHI, that it may not be used or disclosed for any purpose other than this 

action, and shall take all other reasonable steps to ensure that persons receiving PHI do 

not use or disclose such information for any purpose other than prosecuting or defending 

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this action. 

( c) The parties are EXPRESSLY PROHIBITED from using or disclosing 

PHI subject to this Order for any purpose other than prosecuting or defending this action. 

( d) Any person or entity who receives PHI subject to this Order 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. See 45 C.F.R. §§ 164.502(b); 

164.512(e)(l)(v). 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 

' 

Trillium, Agate or any of Trillium's or Agate's employees, officers, directors, corporate 

parents, subsidiaries, divisions, successors, predecessors or affiliates. 

( e) This Order does not control or limit the use of PHI that comes into the 

possession of the parties or their attorneys from a source other than a Covered Entity. 

(f) Nothing in this Order authorizes the parties or their attorneys to obtain 

PHI through means other than formal discovery requests, subpoenas, depositions, patient 

authorization, or other lawful process. 

6. In the event that any party to this litigation disagrees at any point in these 

proceedings with any designation made under this Order, the parties shall first try to resolve such 

dispute in good faith on an informal basis. If a paiiy provides a written objection to the 

designating party as to the designation of material as confidential, the designating party shall 

submit a motion to the court within twenty one (21) days of such objection, or the material will 

not be subject to this Order. If a motion is timely filed by the designating party, the designated 

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document or information shall continue to be treated as "Confidential or "ConfidentialAttorneys' Eyes Only" subject to the provisions of this Protective Order, pending a ruling by the 

Court. 

7. All documents, transcripts, or other materials subject to this Order shall not be 

used, directly or indirectly, by any person for any business, commercial or competitive purposes 

or for any purpose whatsoever other than solely for the preparation and trial of this action in 

accordance with the provisions of this Order. 

8. Except with the prior written consent of the party asserting confidential treatment 

or pursuant to court order, any document or materials designated "Confidential" under this Order 

or otherwise subject to this Order, and any information contained in, or derived from, any such 

materials may not be disclosed other than in accordance with this Order and may not be 

disclosed to any person other than: 

(a) the Court (including any appellate courts), including any Court personnel, 

jurors, officers, clerks or staff; 

(b) Parties to this litigation, including the United States; 

( c) Counsel for the parties (including counsel for the United States), whether 

retained counsel or in-house counsel and employees of counsel, or outside contractors 

assigned to assist such counsel in the preparation of this litigation, provided that prior to 

receiving any PHI, any such outside contractors execute a written agreement containing 

the terms required of a business associate agreement to comply with the requirements of 

45 C.P.R. 164.314(a) and 45 CPR 164.504(e)(5), regardless of whether a business 

associate agreement is required under 45 CPR 164.308(b) or 164.502(e); 

( d) Witnesses expected to be deposed or testify in court or by affidavit in this 

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litigation, or a stipulation of the parties that such witnesses need to know such 

information; 

( e) Present or former employees of the producing party in connection with 

their depositions in this action; 

(f) Experts or consultants specifically retained as consultants or expert 

witnesses in connection with this litigation; 

(g) Any stenographers, court reporters or other persons involved in taking, 

transcribing or videotaping testimony in this action; and 

(h) Mediators, special masters or other third parties appointed by the Court or 

jointly retained by the parties for settlement purposes or resolution of discovery or other 

disputes, including such persons' staff. 

9. Except with prior written consent of the party asserting "Confidential-Attorneys' 

Eyes Only" treatment or pursuant to court order, any document or materials given "ConfidentialAttorneys' Eyes Only" treatment under this Order, and any information contained in or derived 

from any such materials, may only be disclosed to persons identified in Paragraphs 8(a), (c), (f), 

(g) and (h). 

10. Documents subject to this Order shall not be made available to any person 

designated in subparagraphs 8( d), ( e) and (f) unless he or she has first read this Order and agrees 

to be bound by its terms, and sign the attached Declaration of Compliance. 

11. The parties and their attorneys shall take allnecessary and proper steps to 

preserve the confidentiality of, and to protect the rights of the party asserting confidential 

treatment with respect to, any confidential information designated by said party in accordance 

with this Order. 

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12. If documents or information subject to this Order is disclosed to any person other 

than in a manner authorized by this Order, the party responsible for the disclosure must 

immediately upon learning of the disclosure bring all pertinent facts relating to such disclosure to 

the attention of the party asserting confidential treatment and make every effort to prevent further 

disclosure by the responsible party or by the person who was the recipient of such information. 

13. Use of any information or documents labeled "Confidential" or "ConfidentialAttorneys' Eyes Only" and/or subject to this Order, including all information derived therefrom, 

shall be restricted solely to the litigation of this case and shall not be used by any party for any 

business, commercial, or competitive purpose. 

14. This Order has been entered to facilitate discovery and the production of relevant 

evidence in this action and to govern the use and disclosure of documents and information 

subject to this Order, including but not limited to documents and information already in Relator's 

possession, custody or control. Neither the entry of this Order, nor the designation of any 

information, document, or the like as "Confidential" or "Confidential-Attorneys' Eyes Only," 

nor the failure to make such designation, shall constitute evidence with respect to any issue in 

this action. 

15.. Withinforty-five (45) days after the final termination of this litigation, upon 

written request by the designating party, all documents, transcripts, or other materials subject to 

this Order, including any extracts, summaries or compilations taken therefrom, but excluding any 

materials which in the good faith judgment of counsel are work product materials, shall be 

returned to the individual or entity having produced or furnished same; except that all PHI must 

be returned in accordance with the terms set forth in paragraph 5( d) above. 

16. Nothing set forth herein prohibits the use in this litigation of any information· 

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designated "Confidential" or "Confidential-Attorneys' Eyes Only." 

17. Nothing herein shall affect or restrict the rights of any party with respect to its 

own documents or to the information obtained or developed independently of documents, 

transcripts and materials afforded confidential treatment pursuant to this Order. 

18. The Court may for good cause modify this Order or grant any party relief 

therefrom. 

19. The obligations imposed by this Order shall survive the termination of this 

Action, and the Court shall retain jurisdiction of this action after its conclusion for the purpose of 

enforcing the terms of this Order .. 

20. This Order shall not constitute a waiver of any party's or nonparty's right to 

oppose any discovery request or object to the admissibility of any document; testimony or other 

information. 

21. Nothing in this Order shall prejudice any party from seeking amendments to 

expand or restrict the rights of access to and use of confidential information or PHI, or other 

modifications, subject to order by the Court. 

IT IS SO ORDERED this 

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The Honorable AnnAiken 

U.S. Chief District Court Judge 

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EXIDBITA 

DECLARATION OF COMPLIANCE 

I, , declare as follows: 

1. My address is ____________________ _ 

2. My present employer is _________________ _ 

3. My present occupation or job description is ------------

4 I have received a copy of the Protective Order entered in this action on 

------' 2014. 

5. I have carefully read and understand the provisions of this Protective Order. 

6. I will comply with all provisions of this Protective Order. 

7. I will hold in confidence, and will not disclose to anyone not qualified under the 

Protective Order, any information, documents or other materials produced subject to this 

Protective Order. 

8. I will use such information, documents or other materials produced subject to this 

Protective Order only for purposes of this present action. 

9. Within forty-five (45) days after the final termination of this litigation, upon 

written request by the designating paiiy, I will return and deliver all information, documents or 

other materials produced subject to this Protective Order, and all documents or things which I 

have prepared relating thereto, which documents are the subject of the Protective Order, to my 

counsel in this action, or to counsel for the party by whom I am employed or retained or from 

whom I received the documents. 

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10. I hereby submit to the jurisdiction of this Court for the purposes of enforcing the 

Protective Order in this Action. 

I declare under penalty of perjury under the laws of the United States that the following is 

tr,ue and correct. 

Executed this __ day of ______ , 20_ at _______ _ 

QUALIFIED PERSON 

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From: Mike Brooks

To: Galloway, Stephen

Cc: Keating, Reilley; Lee, Rachel C.; Holland, Darise

Subject: Re: Brooks v. Agate Resources; Ninth Circuit Case No. 19-35547 [SR-ACTIVE.FID3130539]

Date: Friday, September 4, 2020 6:20:46 PM

I want to be Clear about this. These records were sent to the US Supreme Court snd to the

usual third party that will make everything public if I or a member if my family is harmed in

any way. As far as I can determine, none of these were covered under Aiken’s gag order and

she would have no say. Trillium and Centene, and I have Elizabeth McClarey’s records

showing Centene has been paying you and giving you directions, so just drop the Agate

Resources garbage right now. Trillium executives, Russo, Aiken, and Stoel Rives defamed

never and wrecked my health. You need to understand that this isn’t a game you will be

allowed to win. Evil will not prevail. God knows you horrible monsters harmed innocent

children, minorities, the aged, the sick, the poor, and it is God’s work to see you stopped. It’s

over. Get right with God or suffer the consequences.

Mike

Sent from my iPhone

On Sep 4, 2020, at 5:57 PM, Mike Brooks <mibrooks@mac.com> wrote:

Did not receive the DVD? There is something wrong. I was unaware that there

were any DVD’s with the filing to the Ninth Circuit. The sealed exhibits went to

the US Supreme Court and I am excluding you and everyone else from that data.

It is records of foreign nationals. If you request them, I will feel obliged to send

that information to the governments of those foreign nationals, mainly students,

Mike Brooks

Sent from my iPhone

On Sep 4, 2020, at 5:36 PM, Galloway, Stephen

<stephen.galloway@stoel.com> wrote:

Dear Mr. Brooks,

On or about August 28, we received your (1) Answer Defense Motion to

Exclude Evidence; and (2) letter to the Ninth Circuit, which it docketed as

a motion to seal three DVDs. We have not received copies of the DVDs or

the exhibits contained on them.

As we have expressed to you multiple times now, we do not object to you

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filing medical records or protected health information under seal, but if

you are going to rely on such exhibits, we are entitled to copies. That is

especially true where, as here, some of the documents at issue appear to

be Agate’s own billing records. Please let me know if you will provide us

with copies of the three DVDs referenced in your letter, and if not,

whether you oppose a motion to strike those exhibits.

Thank you for your attention to this matter. I look forward to your

response.

Regards,

Stephen H. Galloway | Of Counsel

STOEL RIVES LLP | 760 SW Ninth Avenue, Suite 3000 | Portland, OR 97205

Direct: (503) 294-9369 | Mobile: (503) 367-6832

stephen.galloway@stoel.com | Bio | vCard | www.stoel.com

This email may contain material that is confidential, privileged, and/or attorney

work product for the sole use of the intended recipient. Any unauthorized

review, use, or distribution is prohibited and may be unlawful.

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