Xerox Seeks Protective Order to Stop Destruction of Documents Ordered by State

Court roomAt the end of July, Xerox, Texas Medicaid’s disgraced former claims administrator, filed for a protective order with the Travis County District Court.  The stated reason for the order is because the Office of the Attorney General has apparently demanded the company destroy documents that it has in its possession that it needs to defend itself.  A copy of the order or communication from the OAG to Xerox is not available for review.

OAG demanding Xerox to destroy records relating to OAG demands

Per the Xerox filing, the documents, both electronic and otherwise, are those compiled by the company in response to Civil Investigative Demands (CIDs) from the OAG about Xerox’s Medicaid orthodontic prior authorization process.  Also the company is wants to protect solicitor-client privileged documents it has on TMHP servers that on August 1st were taken over by HHSC.

Here is what Xerox says in its motion:

Over the last two years, Xerox has cooperated and fully complied with the State’s civil investigative demands that required Xerox to collect and produce materials relating to its operation of the State Medicaid program and specifically the State’s orthodontia prior authorization program. The State knew that in order to respond to its pre-suit requests, Xerox would collect those materials from servers and electronic storage devices operated by the Texas Medicaid & Healthcare Partnership (“TMHP”), the name given to the program operations under Xerox’s contracts with the Texas Health and Human Services Commission (“HHSC”). But now, after taking action on those contracts and suing Xerox for more than a billion dollars, the State demands that Xerox return or destroy the documents that Xerox collected in compliance with the State’s investigative demands— at great expense to Xerox. The State makes these demands to return or destroy these materials even though the materials at issue contain information and documents indisputably relevant to this lawsuit…. Xerox also seeks a Court order protecting additional privileged materials, including attorney-client communications and attorney work product that reside on servers that will soon be in the possession and under the exclusive control of the HHSC.

Proposed protection order about limiting distribution of confidential information

However, the protection order proposed by Xerox attorneys which is an exhibit to the motion doesn’t mention anything about these circumstances.  Instead the order is about limiting the production of confidential information during the course of the litigation on behalf of both Xerox and HHSC which have already reached an agreement about this per the document.   The only mention of  document destruction is after litigation.

This is the preamble to the proposed protection order:

WHEREAS, discovery and briefing in this case will likely involve the production or disclosure of confidential information, including documents and information defined as “Confidential Information” by the following agreements between Defendant and the Texas Health & Human Services Commission (“HHSC”):

i. Texas Medicaid Claims/Primary Care Case Management Administrative Services Agreement;
ii. Medicaid/Children with Special Health Care Needs Services Program Claims Processing, Primary Care Case Management and Pharmacy Claims and Rebate Administration Agreement; and
iii. Data Use and Business Associate Agreement Between Health and Human Services Commission and Xerox State Healthcare, LLC (collectively, the “HHSC Contracts”).

WHEREAS, the parties also recognize it may be necessary during the course of this litigation to produce or disclose Protected Health Information (as defined herein) of Medicaid recipients, as well as Protected Health Information as to other individuals; and

WHEREAS, the parties seek a protective order limiting disclosure of Confidential Information and Protected Health Information …

Having considered the parties’ agreements and concluded that it is in the interest of justice to issue this Agreed Protective Order (this “Order”), the Court hereby ORDERS:

The filing is available here and contains copies of the OAG’s Civil Investigative Demands made on the company relating to the orthodontic prior authorization process.

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