Allstate Insurance Company v. Shah, MD

1 JONATHAN W. CARLSON Nevada Bar No. 10536 TODD W. BAXTER Admitted Pro Hac Vice GREGORY S. MASON Admitted Pro Hac Vice McCORMICK, BARSTOW, SHEPPARD, WAYTE & CARRUTH LLP 8337 West Sunset Road, Suite 350 Las Vegas, Nevada 89113 Telephone: (702) 949-1100 Facsimile: (702) 949-1101 [email protected] [email protected] [email protected] ERON Z. CANNON Nevada Bar No. 8013 FAIN ANDERSON VANDERHOEF ROSENDAHL O’HALLORAN SPILLANE PLLC 701 5th Avenue #4750 Seattle, Washington 98104 Telephone: (206) 749-0094 Facsimile: (206) 749-0194 [email protected] Attorneys for Plaintiffs/Counterdefendants 15 UNITED STATES DISTRICT COURT 16 DISTRICT OF NEVADA ALLSTATE INSURANCE COMPANY, CASE NO. 2:15-cv-01786-APG-DJA ALLSTATE PROPERTY & CASUALTY INSURANCE COMPANY, ALLSTATE STIPULATION AND ORDER TO INDEMNITY COMPANY, and ALLSTATE SUBSTITUTE REDACTED EXHIBITS FIRE & CASUALTY INSURANCE AND TO SEAL CONFIDENTIAL COMPANY, EXHIBITS IN SUPPORT OF 20 ALLSTATE’S RESPONSE TO RADAR Plaintiffs, PARTIES’ MOTION FOR SUMMARY 21 JUDGMENT v. RUSSELL J. SHAH, MD, DIPTI R. SHAH, MD, RUSSELL J. SHAH, MD, LTD., DIPTI R. SHAH, MD, LTD., and RADAR MEDICAL GROUP, LLP dba UNIVERSITY URGENT CARE, DOES 1-100, and ROES 101-200, 26 Defendants.

AND RELATED CLAIMS STIPULATION AND ORDER TO SUBSTITUTE REDACTED EXHIBITS AND TO SEAL CONFIDENTIAL EXHIBITS IN SUPPORT OF ALLSTATE’S RESPONSE TO RADAR 2 PARTIES’ MOTION FOR SUMMARY JUDGMENT 3 Plaintiffs/Counterdefendants ALLSTATE INSURANCE COMPANY, ALLSTATE PROPERTY & CASUALTY COMPANY, ALLSTATE INDEMNITY COMPANY, and ALLSTATE FIRE & CASUALTY COMPANY (hereinafter collectively referred to as “Allstate”), and Defendants and Counterclaimant RUSSELL J. SHAH, M.D., DIPTI R. SHAH, M.D., RUSSELL J. SHAH, M.D., LTD., DIPTI R. SHAH, M.D., LTD., and RADAR MEDICAL GROUP, LLP d/b/a UNIVERSITY URGENT CARE (hereinafter collectively referred to as the “Radar Parties”), by and through their respective counsel of record stipulate and agree as follows: 10 1. On April 10, 2023, the Honorable Court issued an Order (ECF No. 556) denying without prejudice Allstate’s Motion For Leave (ECF No. 550) to: 1. Redact Their Response to Radar Parties’ Motion for Summary Judgment (ECF No. 460); and 2. File Under Seal Exhibits in Support of Allstate’s Response to Radar Parties’ Motion for Summary Judgment on Allstate’s Causes of Action in the First Amended Complaint (ECF No. 460) (hereinafter, the “Motion for Leave”). The Court, in denying Allstate’s Motion for Leave, granted Allstate leave to file a renewed Motion to Seal associated with its Response (ECF No. 547) to the Radar Parties’ Motion for Summary Judgment on Allstate’s Causes of Action in its First Amended Complaint (ECF No. 460).

18 2. In consideration of the Court’s Order, the parties met and conferred and reached an agreement as to (i) redactions of Allstate’s Response (ECF No. 547) and certain exhibits submitted in support of the Response, and (ii) confidential exhibits to seal that were submitted in support of Allstate’s Response.

22 3. The parties hereby stipulate to the substitution of Allstate’s Response (ECF No. 547) containing redactions of confidential and/or protected business and/or financial information of the parties and/or private health information of non-parties. The redacted Response is being publicly- filed with the Court.

26 4. The parties hereby stipulate to the substitution of Allstate’s Appendix of Exhibits to Allstate’s Response to Radar Parties’ Motion for Summary Judgment (ECF No. 550-1, Exhibits 1- the parties and/or private health information of non-parties in lieu of sealing the entirety of the following exhibits: 3 a. Exhibit 1: The parties agree that it is appropriate to redact (i) medical information of a non-party, (ii) private business and financial information of the Radar Parties, including information in relation to the Radar Parties’ profit and loss statements, income, salary, and expenses, and (iii) patient/claimant names. As a result, a redacted copy of Exhibit 1 is being publicly-filed with the Court; 8 b. Exhibit 2: The parties agree that it is appropriate to redact (i) private business and financial information of the Radar Parties, including dollar amounts discussed in relation to the Radar Parties’ charges and lien reductions, and (ii) patient/claimant names. As a result, a redacted copy of Exhibit 2 is being publicly-filed with the Court; 12 c. Exhibit 3: The parties agree that it is appropriate to redact patient/claimant names. As a result, a redacted copy of Exhibit 3 is being publicly-filed with the Court; 15 d. Exhibit 4: The parties agree that it is appropriate to redact (i) private business and financial information of the Radar Parties, including dollar amounts discussed in relation to the Radar Parties’ charges and lien reductions, and (ii) patient/claimant names. As a result, a redacted copy of Exhibit 4 is being publicly-filed with the Court; 19 e. Exhibit 6: The parties agree that it is appropriate to redact patient/claimant names. As a result, a redacted copy of Exhibit 6 is being publicly-filed with the Court; 22 f. Exhibit 8: The parties agree that it is appropriate to redact patient/claimant names. As a result, a redacted copy of Exhibit 8 is being publicly-filed with the Court; 25 g. Exhibit 22: The parties agree that it is appropriate to redact private business and financial information of the Radar Parties, including their Tax ID number and dollar amounts billed and paid in relation to Radar Parties’ treatment of the patient/claimants involved in 1 h. Exhibit 25: The parties agree that it is appropriate to redact patient/claimant names. As a result, a redacted copy of Exhibit 25 is being publicly-filed with the Court; 4 i. Exhibit 28: The parties agree that it is appropriate to redact (i) private business and financial information of the Radar Parties, including dollar amounts and percentages discussed in relation to the Radar Parties’ charges and lien reductions, and (ii) patient/claimant names. As a result, a redacted copy of Exhibit 28 is being publicly-filed with the Court; 8 j. Exhibit 30: The parties agree that it is appropriate to redact patient/claimant names. As a result, a redacted copy of Exhibit 30 is being publicly-filed with the Court; 11 k. Exhibit 31: The parties agree that it is appropriate to redact patient/claimant names. As a result, a redacted copy of Exhibit 31 is being publicly-filed with the Court.

14 5. The parties hereby stipulate and agree that the following exhibits to Allstate’s Response to the Radar Parties’ Motion for Summary Judgment should be sealed and that redacting these exhibits is not feasible under the circumstances given the extent of confidential information discussed or contained in them as described below, see, e.g., Ansara v. Maldonado, No. 2:19-cv- 01394-GMN-VCF, 2022 WL 17253803, at *3 (D. Nev. Nov. 1, 2022): 19 a. Exhibit 9: The parties agree that the excerpts of deposition testimony from patient/claimant A.G. should be sealed as said testimony contains private and confidential medical/health information of the deponent. As a result, the parties request that Exhibit 9 be sealed.

22 b. Exhibit 10: The parties agree that the excerpts of deposition testimony from patient/claimant G.P. should be sealed as said testimony contains private and confidential medical/health information of the deponent. As a result, the parties request that Exhibit 10 be sealed.

25 c. Exhibit 11: The parties agree that the excerpts of deposition testimony from patient/claimant C.D. should be sealed as said testimony contains private and confidential medical/health information of the deponent. As a result, the parties request that Exhibit 11 be sealed.

1 d. Exhibit 12: The parties agree that the excerpts of deposition testimony from patient/claimant G.V. should be sealed as said testimony contains private and confidential medical/health information of the deponent. As a result, the parties request that Exhibit 12 be sealed.

4 e. Exhibit 13: The parties agree that the excerpts of deposition testimony from patient/claimant Y.W. should be sealed as said testimony contains private and confidential medical/health information of the deponent. As a result, the parties request that Exhibit 13 be sealed.

7 f. Exhibit 14: The parties agree that the excerpts of deposition testimony from patient/claimant R.W. should be sealed as said testimony contains private and confidential medical/health information of the deponent. As a result, the parties request that Exhibit 14 be sealed.

10 g. Exhibit 15: The parties agree that it is appropriate to seal excerpts from the deposition of Peter Grant, M.D. and Dr. Grant’s accompanying expert report as said testimony and document contain (i) private business and financial information of the Radar Parties, including dollar amounts discussed in relation to the Radar Parties’ charges, (ii) patient/claimant names, and (iii) details concerning confidential patient medical records/health information and patient testimony. As a result, the parties request that Exhibit 15 be sealed.

16 h. Exhibit 16: The parties agree that it is appropriate to seal excerpts from the deposition of Kurt Miller, M.D. and Dr. Miller’s accompanying expert report as said testimony and document contain (i) private business and financial information of the Radar Parties, including dollar amounts discussed in relation to the Radar Parties’ charges, (ii) patient/claimant names, and (iii) details concerning confidential patient medical records/health information and patient testimony. As a result, the parties request that Exhibit 16 be sealed.

22 i. Exhibit 17: The parties agree that it is appropriate to seal excerpts from the deposition of Dean Nickles, M.D. and Dr. Nickles’ accompanying expert reports as said testimony and documents contain (i) private business and financial information of the Radar Parties, including dollar amounts discussed in relation to the Radar Parties’ charges, (ii) patient/claimant names, and (iii) details concerning confidential patient medical records/health information and patient testimony. As a result, the parties request that Exhibit 17 be sealed.

1 j. Exhibit 18: The parties agree that it is appropriate to seal excerpts from the deposition of Leslie Dorfman, M.D. and Dr. Dorfman’s accompanying expert report as said testimony and document contain (i) private business and financial information of the Radar Parties, including dollar amounts discussed in relation to the Radar Parties’ charges, (ii) patient/claimant names, and (iii) details concerning confidential patient medical records/health information and patient testimony. As a result, the parties request that Exhibit 18 be sealed.

7 k. Exhibit 19: The parties agree that it is appropriate to seal excerpts from the deposition of Richard Ofstein, M.D. and Dr. Ofstein’s accompanying expert report as said testimony and document contain (i) private business and financial information of the Radar Parties, including dollar amounts discussed in relation to the Radar Parties’ charges, (ii) patient/claimant names, and (iii) details concerning confidential patient medical records/health information and patient testimony. As a result, the parties request that Exhibit 19 be sealed.

13 l. Exhibit 21: The parties agree that medical records of non-party claimants should be sealed as said medical records and related documents contain private and confidential medical/health information of non-parties. As a result, the parties request that Exhibit 21 be sealed.

16 m. Exhibit 23: The parties agree that proprietary business and financial information of the Radar Parties and private information related to non-parties should be sealed. As a result, the parties request that Exhibit 23 be sealed.

19 n. Exhibit 27: The parties agree that Aaron Patterson’s Declaration and its corresponding attachments contain proprietary information as to the claim handling process of Allstate as well as confidential medical/health information of non-party claimants. As a result, the parties request that Exhibit 27 be sealed.

23 6. The parties stipulate and agree that Exhibits 5, 7, 20, 24, 26, 29, and 32 to Allstate’s Response to the Radar Parties’ Motion for Summary Judgment do not require redaction and do not need to be sealed; and thus, they will be publicly-filed.

26 7. If necessary or required by this Court, the parties respectfully request that this Stipulation be treated as a joint motion.

1 8. The parties maintain that compelling reasons exist to justify redacting the Response and sealing/redacting Exhibits to the Response, beyond treatment of the information as confidential pursuant to the terms of the Stipulated Confidentiality Agreement and Protective Order (ECF No. 39). See, e.g., Kamakana v. City & Cnty. of Honolulu, 447 F.3d 1172, 1178 (9th Cir. 2006).

5 Specifically, and as noted above: 6 a. The Response and exhibits contain or reference private information related to non-parties to this case for which redaction and/or sealing is warranted, see, e.g., Ansara v. Maldonado, No. 2:19-cv-01394-GMN-VCF, 2022 WL 17253803, at *3 (D. Nev. Nov. 1, 2022); Cox v. Lewis, No. 2:20-cv-01792-JCM-BNW, 2022 WL 10632379, at *2 (D. Nev. Oct. 18, 2022); Brodsky v. Baca, No. 3:14-cv-00641-RCJ-WGC, 2015 WL 6962867, at *1 (D. Nev. Nov. 10, 2015); 11 b. The Response and exhibits contain confidential business and financial information related to the Radar Parties for which redaction and/or sealing is warranted, see, e.g., Boca Park Marketplace Syndications Group, LLC v. Ross Dress for Less, Inc., 2:16-cv-01197-RFB- PAL, 2018 WL 1524432, at *5 (D. Nev. Mar. 28, 2018); Koninklijke Philips N.V. v. Elec-Tech Int’l Co., No. 14-cv-02737-BLF, 2015 WL 581574, at *2 (N.D. Cal. Feb. 10, 2015); and/or 16 c. The Response and exhibits contain confidential business information related to Allstate for which redaction and/or sealing is warranted, see, e.g., In re Google Location History 18 Litig., 514 F. Supp. 3d 1147, 1162 (N.D. Cal. 2021); Koninklijke Philips N.V., 2015 WL 581574, at *2.

20 9. The Court has previously recognized that similar information found in exhibits attached to the parties’ briefing on summary judgment is appropriately subject to redaction. See generally Order, filed Feb. 28, 2023 (ECF No. 507); see also Order, filed Apr. 10, 2023 (ECF No. 556) (permitting the Radar Parties to redact their Motion for Summary Judgment and to seal/redact exhibits supporting their Motion for Summary Judgment). Such ruling aligns with prior rulings by the Court. See Order, filed Sept. 20, 2016 (ECF No. 67); Order, filed Apr. 4, 2017 (ECF No. 133); Order, filed Apr. 4, 2017 (ECF No. 134); Order Grant. Mots. Seal, filed Jan. 2, 2018 (ECF No. 217).

27 10. For these reasons, the parties respectfully request that the Court approve this 1 a. Enter an Order redacting Allstate’s Response (ECF No. 547) to the Radar Parties’ Motion for Summary Judgment (ECF No. 460); 3 b. Enter an Order redacting Exhibits 1, 2, 3, 4, 6, 8, 22, 25, 28, 30, and 31 to Allstate’s Response (ECF No. 547) to the Radar Parties’ Motion for Summary Judgment (ECF No. 460); and 6 c. Enter an Order sealing Exhibits 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 21, 23, and 27 to Allstate’s Response (ECF No. 547) to the Radar Parties’ Motion for Summary Judgment (ECF No. 460).

9 IT IS SO STIPULATED.

10 Dated: May 1, 2023 Dated: May 1, 2023 McCORMICK, BARSTOW, SHEPPARD, BAILEY KENNEDY WAYTE & CARRUTH, LLP By: /s/ Todd W. Baxter By: /s/ Joshua P. Gilmore JONATHAN W. CARLSON, ESQ.

DENNIS L, KENNEDY, ESQ.

14 TODD W. BAXTER, ESQ.

JOSEPH A. LIEBMAN, ESQ.

GREGORY S. MASON, ESQ.

JOSHUA P. GILMORE, ESQ.

15 8337 West Sunset Road, Suite 350 TAYLER D. BINGHAM, ESQ.

Las Vegas, Nevada 89113 8984 Spanish Ridge Avenue Las Vegas, Nevada 89148 ERON Z. CANNON, ESQ.

Attorneys for Defendants and 17 JENNIFER M. SMITROVICH, ESQ.

Counterclaimant FAIN ANDERSON VANDERHOEF 18 ROSENDAHL O’HALLORAN SPILLANE, PLLC 19 701 Fifth Avenue, Suite 4750 Seattle, Washington 98104 20 Attorneys for Plaintiffs/Counterdefendants 22 ORDER 23 Based on the parties’ Stipulation, including the specific factual findings for overcoming the public’s presumptive right of access to judicial records; the standards for seeking to seal or redact documents attached to a dispositive motion pursuant to the Ninth Circuit’s directives in Kamakana v. City and County of Honolulu, 447 F.3d 1172 (9th Cir. 2006), and Ctr. for Auto Safety v. Chrysler Group, LLC, 809 F.3d 1092 (9th Cir. 2016); upon balancing the competing interests of the public 1 IT IS ORDERED that the above Stipulation is GRANTED.

2 IT IS FURTHER ORDERED that compelling reasons exist to redact Allstate’s Response || ECF No. 560 ) to the Radar Parties’ Motion for Summary Judgment (ECF No. 460).

4 IT IS FURTHER ORDERED that compelling reasons exist to redact Exhibits 1, 2, 3, 4, 6, || 8, 22, 25, 28, 30, and 31 to Allstate’s Response (ECF No. 560) to the Radar Parties’ Motion for || Summary Judgment (ECF No. 460).

7 IT IS FURTHER ORDERED that compelling reasons exist to seal Exhibits 9, 10, 11, 12, || 13, 14, 15, 16, 17, 18, 19, 21, 23, and 27 to Allstate’s Response (ECF No. 561 ) to the Radar Parties’ || Motion for Summary Judgment (ECF No. 460).

IT IS FURTHER ORDERED that Allstate must file unredacted versions of Exhibits 1, 2, 3, 4, 6, |18, 22, 25, 28, 30, and 31 under seal on or before May 30, 2023.

13 IT IS FURTHER ORDERED that the Clerk of Court is kindly directed to STRIKE Allstate's ||Response (ECF No. 547) because it has been replaced by ECF No. 560 and STRIKE Allstate's Exhibits in Support of its Response (ECF No. 548).

16 IT IS FURTHER ORDERED that Allstate's Sealed Response (ECF No. 549) shall remain under ||seal.

18 || IT IS FURTHER ORDERED that Allstate's Sealed Exhibit (ECF No. 561) shall remain under seal.

Qe 23 >< < 0) DANIEL J. ALBREGTS 24 UNITED STATES MAGISTRATE JUDGE DATED: May 8, 2023 Were 9 Case No. 2:15-cv-01786-APG-DJA JONATHAN W. CARLSON Nevada Bar No. 10536 TODD W. BAXTER Admitted Pro Hac Vice GREGORY S. MASON Admitted Pro Hac Vice McCORMICK, BARSTOW, SHEPPARD, WAYTE & CARRUTH LLP 8337 West Sunset Road, Suite 350 Las Vegas, Nevada 89113 Telephone: (702) 949-1100 Facsimile: (702) 949-1101 [email protected] [email protected] [email protected] ERON Z. CANNON Nevada Bar No. 8013 FAIN ANDERSON VANDERHOEF ROSENDAHL O’HALLORAN SPILLANE PLLC 701 5th Avenue #4750 Seattle, Washington 98104 Telephone: (206) 749-0094 Facsimile: (206) 749-0194 [email protected] Attorneys for Plaintiffs/Counterdefendants 15 UNITED STATES DISTRICT COURT 16 DISTRICT OF NEVADA ALLSTATE INSURANCE COMPANY, CASE NO. 2:15-cv-01786-APG-DJA ALLSTATE PROPERTY & CASUALTY INSURANCE COMPANY, ALLSTATE INDEX OF ALL EXHIBITS TO INDEMNITY COMPANY, and ALLSTATE ALLSTATE’S RESPONSE TO RADAR FIRE & CASUALTY INSURANCE PARTIES’ MOTION FOR SUMMARY COMPANY, JUDGMENT [Docs 460, 461] Plaintiffs, v. RUSSELL J. SHAH, MD, DIPTI R. SHAH, MD, RUSSELL J. SHAH, MD, LTD., DIPTI R. SHAH, MD, LTD., and RADAR MEDICAL GROUP, LLP dba UNIVERSITY URGENT CARE, DOES 1-100, and ROES 101-200, 26 Defendants.

AND RELATED CLAIMS 1 TABLE OF CONTENTS Ex. Numbering No. Document Description Sequence Excerpts of Dipti Shah Transcript, Volume 1; Advertisement (Ex 6 to D. Shah depo); photo of 000001- 1 sign (Ex 8 to D. Shah); photo of sign (Ex 9 to D. 000043 Shah) depo REDACTED Excerpts of Dipti Shah Transcript Volume 2 000044- REDACTED 000058 Excerpts of Dipti Shah Transcript Volume 3 000059- 10 REDACTED 000066 11 Excerpts of Dipti Shah Transcript, Volume 4 4 000067- REDACTED 12 000076 Excerpts of Russell Shah Transcript, Volume 1 5 000077- 000094 14 Excerpts of Russell Shah Transcript, Volume 2 6 000095- REDACTED 15 000105 Excerpts of Russell Shah Transcript, Volume 3 7 000106- 000110 17 Excerpts of Russell Shah Transcript, Volume 4 8 000111- REDACTED 18 000114 Excerpts of Amanda Golden Transcript 9 FILED UNDER SEAL 000115- 000122 20 Excerpts of Gwendolyn Polzin Transcript 10 000123- FILED UNDER SEAL 21 000134 Excerpts of Cynthia Dumas Transcript 11 000135- FILED UNDER SEAL 000149 Excerpts of Giuliano Vecchione Transcript 12 000150- FILED UNDER SEAL 24 000154 Excerpts of Jacqueline Wagoner Transcript 13 000155- FILED UNDER SEAL 000158 Excerpts of Reid Wilke Transcript 14 000159- FILED UNDER SEAL 27 000163 Ex. Numbering No. Document Description Sequence Excerpts of Dr. Peter Grant Transcript; Excerpts of Dr. Peter Grant Transcript re: report 000164- 15 identification; Excerpts of Dr. Peter Grant’s 000220 report FILED UNDER SEAL 5 VOLUME 2 6 Excerpts of Dr. Kurt Miller’s Transcript; excerpts of Dr. Miller’s transcript re report 000221- 16 identification; Dr. Miller’s Report 000250 FILED UNDER SEAL Excerpts of Dr. Dean Nickles’ Transcript; 000251- 9 excerpts re report identification; Dr. Nickles’ 000275 report; excerpts of supplemental report 10 FILED UNDER SEAL 11 Excerpts of Dr. Leslie Dorfman’s Transcript 000276- FILED UNDER SEAL 000311 Excerpts of Dr. Richard Ofstein’s Excerpts of 000312- 13 Dr. Richard Ofstein’s Transcript re: report 000326 19 identification; excerpts of report; Dr. Ofstein’s 14 report Transcript FILED UNDER SEAL Excerpts of Dr. Gary Stanton’s Transcript 000327- 20 000332 17 Selected RADAR records from Defendants’ 21 discovery responses 000333- 18 FILED UNDER SEAL 000389 Defendant RADAR’s First Supplemental Responses to 19 Plaintiffs’ First Set of Interrogatories with Table of 000390- 22 Amounts Billed and Amounts Paid to Defendants 000420 20 REDACTED VOLUME 3 Selected lien reduction letter exhibits from Dr. 23 Dipti Shah’s February 5, 2020 deposition. 000421- FILED UNDER SEAL 000431 000432- Excerpts of John Griffith’s Transcript, Volume 1 24 000485 26 Excerpts of John Griffith’s Transcript, Volume 2 000486- 25 REDACTED 000492 27 Excerpts of Gina Accola’s Transcript, Volume 1 000493- 26 000513 Ex. Numbering No. Document Description Sequence Declaration of Aaron Patterson dated 3/8/23 000514- 27 FILED UNDER SEAL 000577 Dipti Shah, Deposition Transcript taken 000578- 28 2/5/2020 000589 REDACTED 5 Excerpts of Melissa Hanpft’s Transcript, 8/17/2018 000590- 29 000610 6 Excerpts of Melissa Hanpft’s Transcript, 6/12/2019 000611- 30 REDACTED 000630 Excerpts of Dipti Shah Transcript, 4/1/2014 in case 000631- 31 Damron v Roger Cross, et al., Case No. A-13-680333 000641 REDACTED 9 Declaration Todd W. Baxter 32 000642- 10 000648 003246-001559 8975606.1