Stout v. Hartford Life and Accident Insurance Company et al

Filing 38

PROTECTIVE ORDER. Signed by Magistrate Judge Jacqueline Scott Corley on 9/25/2012. (ahm, COURT STAFF) (Filed on 9/25/2012)

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1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE NORTHERN DISTRICT OF CALIFORNIA 8 9 10 KATHLEEN A. STOUT, Northern District of California United States District Court 11 Plaintiff, 12 Case No.: 11-6186 CW (JSC) PROTECTIVE ORDER v. 13 14 15 HARTFORD LIFE AND ACCIDENT INSURANCE COMPANY, et al., Defendants. 16 17 18 1. PURPOSES AND LIMITATIONS 19 Disclosure and discovery activity in this action are likely to involve production of 20 confidential, proprietary, or private information for which special protection from public 21 disclosure and from use for any purpose other than prosecuting this litigation may be warranted. 22 Accordingly, the Court issues this Protective Order. This Order does not confer blanket 23 protections on all disclosures or responses to discovery, and the protection it affords from public 24 disclosure and use extends only to the limited information or items that are entitled to 25 confidential treatment under the applicable legal principles. As set forth in Section 12.3, below, 26 this Protective Order does not entitle the parties to file confidential information under seal; Civil 27 Local Rule 79-5 and General Order 62 set forth the procedures that must be followed and the 28 standards applied when a party seeks permission from the court to file material under seal. 1 2 3 4 2. DEFINITIONS 2.1 Challenging Party: a Party or Non-Party that challenges the designation of information or items under this Order. 2.2 “CONFIDENTIAL” Information or Items: information (regardless of how it is 5 generated, stored or maintained) or tangible things that qualify for protection under Federal Rule 6 of Civil Procedure 26(c). 7 8 9 10 Northern District of California United States District Court 11 2.3 Counsel (without qualifier): Outside Counsel of Record and House Counsel (as well as their support staff). 2.4 Designating Party: a Party or Non-Party that designates information or items that it produces in disclosures or in responses to discovery as “CONFIDENTIAL.” 2.5 Disclosure or Discovery Material: all items or information, regardless of the 12 medium or manner in which it is generated, stored, or maintained (including, among other 13 things, testimony, transcripts, and tangible things), that are produced or generated in disclosures 14 or responses to discovery in this matter. 15 2.6 Expert: a person with specialized knowledge or experience in a matter pertinent to 16 the litigation who has been retained by a Party or its counsel to serve as an expert witness or as a 17 consultant in this action. 18 19 20 21 22 2.7 House Counsel: attorneys who are employees of a party to this action. House Counsel does not include Outside Counsel of Record or any other outside counsel. 2.8 Non-Party: any natural person, partnership, corporation, association, or other legal entity not named as a Party to this action. 2.9 Outside Counsel of Record: attorneys who are not employees of a party to this 23 action but are retained to represent or advise a party to this action and have appeared in this 24 action on behalf of that party or are affiliated with a law firm which has appeared on behalf of 25 that party. 26 27 2.10 Party: any party to this action, including all of its officers, directors, employees, consultants, retained experts, and Outside Counsel of Record (and their support staffs). 28 2 2.11 1 2 Producing Party: a Party or Non-Party that produces Disclosure or Discovery Material in this action. 2.12 3 Professional Vendors: persons or entities that provide litigation support services 4 (e.g., photocopying, videotaping, translating, preparing exhibits or demonstrations, and 5 organizing, storing, or retrieving data in any form or medium) and their employees and 6 subcontractors. 2.13 7 8 Protected Material: any Disclosure or Discovery Material that is designated as “CONFIDENTIAL.” Producing Party. 11 Northern District of California 2.14 10 United States District Court 9 Receiving Party: a Party that receives Disclosure or Discovery Material from a 3. SCOPE The protections conferred by this Order cover not only Protected Material (as defined 12 13 above), but also (1) any information copied or extracted from Protected Material; (2) all copies, 14 excerpts, summaries, or compilations of Protected Material; and (3) any testimony, 15 conversations, or presentations by Parties or their Counsel that might reveal Protected Material. 16 However, the protections conferred by this Order do not cover the following information: (a) any 17 information that is in the public domain at the time of disclosure to a Receiving Party or 18 becomes part of the public domain after its disclosure to a Receiving Party as a result of 19 publication not involving a violation of this Order, including becoming part of the public record 20 through trial or otherwise; and (b) any information known to the Receiving Party prior to the 21 disclosure or obtained by the Receiving Party after the disclosure from a source who obtained the 22 information lawfully and under no obligation of confidentiality to the Designating Party. Any 23 use of Protected Material at trial shall be governed by a separate agreement or order. 24 4. 25 DURATION Even after final disposition of this litigation, the confidentiality obligations imposed by 26 this Order shall remain in effect until a Designating Party agrees otherwise in writing or a court 27 order otherwise directs. Final disposition shall be deemed to be the later of (1) dismissal of all 28 claims and defenses in this action, with or without prejudice; and (2) final judgment herein after 3 1 the completion and exhaustion of all appeals, rehearings, remands, trials, or reviews of this 2 action, including the time limits for filing any motions or applications for extension of time 3 pursuant to applicable law. 4 5. 5 DESIGNATING PROTECTED MATERIAL 5.1 Exercise of Restraint and Care in Designating Material for Protection. Each Party 6 or Non-Party that designates information or items for protection under this Order must take care 7 to limit any such designation to specific material that qualifies under the appropriate standards. 8 The Designating Party must designate for protection only those parts of material, documents, 9 items, or oral or written communications that qualify – so that other portions of the material, Northern District of California documents, items, or communications for which protection is not warranted are not swept 11 United States District Court 10 unjustifiably within the ambit of this Order. 12 Mass, indiscriminate, or routinized designations are prohibited. Designations that are 13 shown to be clearly unjustified or that have been made for an improper purpose (e.g., to 14 unnecessarily encumber or retard the case development process or to impose unnecessary 15 expenses and burdens on other parties) expose the Designating Party to sanctions. 16 If it comes to a Designating Party’s attention that information or items that it designated 17 for protection do not qualify for protection, the Designating Party must promptly notify all other 18 Parties that it is withdrawing the mistaken designation. 19 5.2 Manner and Timing of Designations. Except as otherwise provided in this Order 20 (see, e.g., second paragraph of section 5.2(a) below), or as otherwise stipulated or ordered, 21 Disclosure or Discovery Material that qualifies for protection under this Order must be clearly so 22 designated before the material is disclosed or produced. 23 24 Designation in conformity with this Order requires: (a) for information in documentary form (e.g., paper or electronic documents, but 25 excluding transcripts of depositions or other pretrial or trial proceedings), that the Producing 26 Party affix the legend “CONFIDENTIAL” to each page that contains protected material. If only 27 a portion or portions of the material on a page qualifies for protection, the Producing Party also 28 must clearly identify the protected portion(s) (e.g., by making appropriate markings in the 4 1 margins). A Party or Non-Party that makes original documents or materials available for inspection 2 material it would like copied and produced. During the inspection and before the designation, all 5 of the material made available for inspection shall be deemed “CONFIDENTIAL.” After the 6 inspecting Party has identified the documents it wants copied and produced, the Producing Party 7 must determine which documents, or portions thereof, qualify for protection under this Order. 8 Then, before producing the specified documents, the Producing Party must affix the 9 “CONFIDENTIAL” legend to each page that contains Protected Material. If only a portion or 10 portions of the material on a page qualifies for protection, the Producing Party also must clearly 11 Northern District of California need not designate them for protection until after the inspecting Party has indicated which 4 United States District Court 3 identify the protected portion(s) (e.g., by making appropriate markings in the margins). (b) for testimony given in deposition or in other pretrial or trial proceedings, that 12 13 the Designating Party identify on the record, before the close of the deposition, hearing, or other 14 proceeding, all protected testimony. 15 (c) for information produced in some form other than documentary and for any 16 other tangible items, that the Producing Party affix in a prominent place on the exterior of the 17 container or containers in which the information or item is stored the legend 18 “CONFIDENTIAL.” If only a portion or portions of the information or item warrant protection, 19 the Producing Party, to the extent practicable, shall identify the protected portion(s). 5.3 20 Inadvertent Failures to Designate. If timely corrected, an inadvertent failure to 21 designate qualified information or items does not, standing alone, waive the Designating Party’s 22 right to secure protection under this Order for such material. Upon timely correction of a 23 designation, the Receiving Party must make reasonable efforts to assure that the material is 24 treated in accordance with the provisions of this Order. 25 6. 26 CHALLENGING CONFIDENTIALITY DESIGNATIONS 6.1 Timing of Challenges. Any Party or Non-Party may challenge a designation of 27 confidentiality at any time. Unless a prompt challenge to a Designating Party’s confidentiality 28 designation is necessary to avoid foreseeable, substantial unfairness, unnecessary economic 5 1 burdens, or a significant disruption or delay of the litigation, a Party does not waive its right to 2 challenge a confidentiality designation by electing not to mount a challenge promptly after the 3 original designation is disclosed. 4 6.2 Meet and Confer. The Challenging Party shall initiate the dispute resolution for each challenge. To avoid ambiguity as to whether a challenge has been made, the written 7 notice must recite that the challenge to confidentiality is being made in accordance with this 8 specific paragraph of the Protective Order. The parties shall attempt to resolve each challenge in 9 good faith and must begin the process by conferring directly (in voice to voice dialogue; other 10 forms of communication are not sufficient) within 14 days of the date of service of notice. In 11 Northern District of California process by providing written notice of each designation it is challenging and describing the basis 6 United States District Court 5 conferring, the Challenging Party must explain the basis for its belief that the confidentiality 12 designation was not proper and must give the Designating Party an opportunity to review the 13 designated material, to reconsider the circumstances, and, if no change in designation is offered, 14 to explain the basis for the chosen designation. A Challenging Party may proceed to the next 15 stage of the challenge process only if it has engaged in this meet and confer process first or 16 establishes that the Designating Party is unwilling to participate in the meet and confer process in 17 a timely manner. 18 6.3 Judicial Intervention. If the Parties cannot resolve a challenge without court 19 intervention, the Designating Party shall file and serve a motion to retain confidentiality under 20 Civil Local Rule 7 (and in compliance with Civil Local Rule 79-5 and General Order 62, if 21 applicable) within 21 days of the initial notice of challenge or within 14 days of the parties 22 agreeing that the meet and confer process will not resolve their dispute, whichever is earlier. 23 Each such motion must be accompanied by a competent declaration affirming that the movant 24 has complied with the meet and confer requirements imposed in the preceding paragraph. 25 Failure by the Designating Party to make such a motion including the required declaration 26 within 21 days (or 14 days, if applicable) shall automatically waive the confidentiality 27 designation for each challenged designation. In addition, the Challenging Party may file a 28 motion challenging a confidentiality designation at any time if there is good cause for doing so, 6 1 including a challenge to the designation of a deposition transcript or any portions thereof. Any 2 motion brought pursuant to this provision must be accompanied by a competent declaration 3 affirming that the movant has complied with the meet and confer requirements imposed by the 4 preceding paragraph. 5 The burden of persuasion in any such challenge proceeding shall be on the Designating 6 Party. Frivolous challenges, and those made for an improper purpose (e.g., to harass or impose 7 unnecessary expenses and burdens on other parties) may expose the Challenging Party to 8 sanctions. Unless the Designating Party has waived the confidentiality designation by failing to 9 file a motion to retain confidentiality as described above, all parties shall continue to afford the Northern District of California material in question the level of protection to which it is entitled under the Producing Party’s 11 United States District Court 10 designation until the court rules on the challenge. 12 7. 13 ACCESS TO AND USE OF PROTECTED MATERIAL 7.1 Basic Principles. A Receiving Party may use Protected Material that is disclosed or 14 produced by another Party or by a Non-Party in connection with this case only for prosecuting, 15 defending, or attempting to settle this litigation. Such Protected Material may be disclosed only 16 to the categories of persons and under the conditions described in this Order. When the litigation 17 has been terminated, a Receiving Party must comply with the provisions of section 13 below 18 (FINAL DISPOSITION). 19 Protected Material must be stored and maintained by a Receiving Party at a location and 20 in a secure manner that ensures that access is limited to the persons authorized under this Order. 21 7.2 Disclosure of “CONFIDENTIAL” Information or Items. Unless otherwise 22 ordered by the court or permitted in writing by the Designating Party, a Receiving Party may 23 disclose any information or item designated “CONFIDENTIAL” only to: 24 (a) the Receiving Party’s Outside Counsel of Record in this action, as well as 25 employees of said Outside Counsel of Record to whom it is reasonably necessary to disclose the 26 information for this litigation and who have signed the “Acknowledgment and Agreement to Be 27 Bound” that is attached hereto as Exhibit A; 28 (b) the officers, directors, and employees (including House Counsel) of the 7 1 Receiving Party to whom disclosure is reasonably necessary for this litigation and who have 2 signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A); (c) Experts (as defined in this Order) of the Receiving Party to whom disclosure is 3 4 reasonably necessary for this litigation and who have signed the “Acknowledgment and 5 Agreement to Be Bound” (Exhibit A); 6 (d) the court and its personnel; 7 (e) court reporters and their staff, professional jury or trial consultants, mock 8 jurors, and Professional Vendors to whom disclosure is reasonably necessary for this litigation 9 and who have signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A); 10 (f) during their depositions, witnesses in the action to whom disclosure is Northern District of California United States District Court 11 reasonably necessary and who have signed the “Acknowledgment and Agreement to Be Bound” 12 (Exhibit A), unless otherwise agreed by the Designating Party or ordered by the court. Pages 13 of transcribed deposition testimony or exhibits to depositions that reveal Protected Material must 14 be separately bound by the court reporter and may not be disclosed to anyone except as 15 permitted under this Protective Order. (g) the author or recipient of a document containing the information or a 16 17 custodian or other person who otherwise possessed or knew the information. 18 8. 19 20 PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED IN OTHER LITIGATION If a Party is served with a subpoena or a court order issued in other litigation that compels 21 disclosure of any information or items designated in this action as “CONFIDENTIAL,” that 22 Party must: 23 24 (a) promptly notify in writing the Designating Party. Such notification shall include a copy of the subpoena or court order; 25 (b) promptly notify in writing the party who caused the subpoena or order to issue 26 in the other litigation that some or all of the material covered by the subpoena or order is subject 27 to this Protective Order. Such notification shall include a copy of this Protective Order; and 28 (c) cooperate with respect to all reasonable procedures sought to be pursued by the 8 1 Designating Party whose Protected Material may be affected. If the Designating Party timely seeks a protective order, the Party served with the 2 3 subpoena or court order shall not produce any information designated in this action as 4 “CONFIDENTIAL” before a determination by the court from which the subpoena or order 5 issued, unless the Party has obtained the Designating Party’s permission. The Designating Party 6 shall bear the burden and expense of seeking protection in that court of its confidential material – 7 and nothing in these provisions should be construed as authorizing or encouraging a Receiving 8 Party in this action to disobey a lawful directive from another court. 9 9. 10 A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE PRODUCED IN THIS LITIGATION (a) Northern District of California United States District Court 11 The terms of this Order are applicable to information produced by a Non- 12 Party in this action and designated as “CONFIDENTIAL.” Such information produced by Non- 13 Parties in connection with this litigation is protected by the remedies and relief provided by this 14 Order. Nothing in these provisions should be construed as prohibiting a Non-Party from seeking 15 additional protections. (b) 16 In the event that a Party is required, by a valid discovery request, to 17 produce a Non-Party’s confidential information in its possession, and the Party is subject to an 18 agreement with the Non-Party not to produce the Non-Party’s confidential information, then the 19 Party shall: 1. promptly notify in writing the Requesting Party and the Non-Party that 20 21 some or all of the information requested is subject to a confidentiality agreement with a Non- 22 Party; 23 2. promptly provide the Non-Party with a copy of the Protective Order in this 24 litigation, the relevant discovery request(s), and a reasonably specific description of the 25 information requested; and 26 27 28 3. make the information requested available for inspection by the Non-Party. (c) If the Non-Party fails to object or seek a protective order from this court within 14 days of receiving the notice and accompanying information, the Receiving Party may 9 1 produce the Non-Party’s confidential information responsive to the discovery request. If the 2 Non-Party timely seeks a protective order, the Receiving Party shall not produce any information 3 in its possession or control that is subject to the confidentiality agreement with the Non-Party 4 before a determination by the court.1 Absent a court order to the contrary, the Non-Party shall 5 bear the burden and expense of seeking protection in this court of its Protected Material. 6 10. UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed Protected 7 8 Material to any person or in any circumstance not authorized under this rotective Order, the 9 Receiving Party must immediately (a) notify in writing the Designating Party of the Northern District of California unauthorized disclosures, (b) use its best efforts to retrieve all unauthorized copies of the 11 United States District Court 10 Protected Material, (c) inform the person or persons to whom unauthorized disclosures were 12 made of all the terms of this Order, and (d) request such person or persons to execute the 13 “Acknowledgment and Agreement to Be Bound” that is attached hereto as Exhibit A. 14 11. 15 INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE PROTECTED MATERIAL When a Producing Party gives notice to Receiving Parties that certain inadvertently 16 17 produced material is subject to a claim of privilege or other protection, the obligations of the 18 Receiving Parties are those set forth in Federal Rule of Civil Procedure 26(b)(5)(B). This 19 provision is not intended to modify whatever procedure may be established in an e-discovery 20 order that provides for production without prior privilege review. Pursuant to Federal Rule of 21 Evidence 502(d) and (e), insofar as the parties reach an agreement on the effect of disclosure of a 22 communication or information covered by the attorney-client privilege or work product 23 protection, the parties may incorporate their agreement in a stipulated protective order submitted 24 to the court. 25 // 26 // 27 28 1 The purpose of this provision is to alert the interested parties to the existence of confidentiality rights of a Non-Party and to afford the Non-Party an opportunity to protect its confidentiality interests in this court. 10 1 12. 12.1 2 3 MISCELLANOUS Right to Further Relief. Nothing in this Order abridges the right of any person to seek its modification by the court in the future. 12.2 4 Right to Assert Other Objections. As the parties have not stipulated to the entry of 5 this Protective Order, no Party waives any right it otherwise would have to object to disclosing or 6 producing any information or item on any ground not addressed in this Protective Order. 7 Similarly, no Party waives any right to object on any ground to use in evidence of any of the 8 material covered by this Protective Order. 12.3 9 Filing Protected Material. Without written permission from the Designating Party Northern District of California or a court order secured after appropriate notice to all interested persons, a Party may not file in 11 United States District Court 10 the public record in this action any Protected Material. A Party that seeks to file under seal any 12 Protected Material must comply with Civil Local Rule 79-5 and General Order 62. Protected 13 Material may only be filed under seal pursuant to a court order authorizing the sealing of the 14 specific Protected Material at issue. Pursuant to Civil Local Rule 79-5 and General Order 62, a 15 sealing order will issue only upon a request establishing that the Protected Material at issue is 16 privileged, protectable as a trade secret, or otherwise entitled to protection under the law. If a 17 Receiving Party's request to file Protected Material under seal pursuant to Civil Local Rule 79- 18 5(d) and General Order 62 is denied by the court, then the Receiving Party may file the 19 information in the public record pursuant to Civil Local Rule 79-5(e) unless otherwise instructed 20 by the court. 21 13. 22 FINAL DISPOSITION Within 60 days after the final disposition of this action, as defined in paragraph 4, each 23 Receiving Party must return all Protected Material to the Producing Party or destroy such 24 material. As used in this subdivision, “all Protected Material” includes all copies, abstracts, 25 compilations, summaries, and any other format reproducing or capturing any of the Protected 26 Material. Whether the Protected Material is returned or destroyed, the Receiving Party must 27 submit a written certification to the Producing Party (and, if not the same person or entity, to the 28 Designating Party) by the 60 day deadline that (1) identifies (by category, where appropriate) all 11 1 the Protected Material that was returned or destroyed and (2) affirms that the Receiving Party 2 has not retained any copies, abstracts, compilations, summaries or any other format reproducing 3 or capturing any of the Protected Material. Notwithstanding this provision, Counsel are entitled 4 to retain an archival copy of all pleadings, motion papers, trial, deposition, and hearing 5 transcripts, legal memoranda, correspondence, deposition and trial exhibits, expert reports, 6 attorney work product, and consultant and expert work product, even if such materials contain 7 Protected Material. Any such archival copies that contain or constitute Protected Material 8 remain subject to this Protective Order as set forth in Section 4 (DURATION). 9 10 IT IS SO ORDERED. Northern District of California United States District Court 11 12 13 Dated: September 25, 2012 _________________________________ JACQUELINE SCOTT CORLEY UNITED STATES MAGISTRATE JUDGE 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 12