Celina Whinery v. Life Insurance Company of North America et al

Filing 32

PROTECTIVE ORDER by Magistrate Judge Alicia G. Rosenberg re Stipulation for Protective Order 31 . (san)

1
2
3
4
5
6
7
UNITED STATES DISTRICT COURT

8

CENTRAL DISTRICT OF CALIFORNIA

9
10

CELINA WHINERY,
Plaintiff,

11
12

Case No.: CV10-09312-PA-AGR
CONFIDENTIALITY AGREEMENT
AND PROTECTIVE ORDER

v.

LIFE INSURANCE COMPANY OF
13 NORTH AMERICA; and CITIGROUP
LIFE INSURANCE BENEFIT PLAN,
14
15

Honorable Percy Anderson
Filing Date:
December 3, 2010

Defendants.

16
17

CONFIDENTIALITY AGREEMENT AND AGREED PROTECTIVE ORDER

18
19

WHEREAS, Defendants, LIFE INSURANCE COMPANY OF NORTH

20

AMERICA and CITIGROUP LIFE INSURANCE BENEFIT PLAN ("the Plan"),

21

have agreed to produce certain materials pursuant to the parties agreement to be

22
23
24
25

used for pretrial discovery in connection with this lawsuit, which these
Defendants consider to be highly confidential, privileged and to contain trade
secrets, proprietary information, and private and personal information regarding

26
27

third parties;

28

713877.1

1
[PROPOSED] PROTECTIVE ORDER
USDC CDCA Case # CV 10-9312-PA-AGR)

1

WHEREAS, Neither the proposal of nor the entry of the Agreed Protective

2

Order shall be considered as or work as a waiver by Life Insurance Company of

3

North America the Plan their argument that discovery in this matter is governed

4
5

by the Employee Retirement Income Security Act of 1974, as amended

6

("ERISA"), 29 U.S.C. § 1132, et seq. As such, it is Defendants’ argument that, to

7

the extent discovery is permitted in ERISA matters, Defendants expressly reserve

8
9
10
11

their right, and expressly do not waive or compromise their right, to object to any
information derived from or during discovery that was not included within the
Administrative Record at the time the Life Insurance Company of North America

12
13
14

rendered a decision.
WHEREAS, the Defendants, LIFE INSURANCE COMPANY OF NORTH

15
16

AMERICA and the Plan are producing the information as agreed to by the

17

parties, and seeking that this material be subject to the limitations set forth in this

18

Protective Agreement;

19
20
21

IT IS HEREBY ORDERED that a Protective Order be entered pursuant to
Federal Rule of Civil Procedure 26 (C) as follows:

22
23 DEFINITIONS
24
25

(a)

“Protected Material” shall mean the following documents and

information produced by LIFE INSURANCE COMPANY OF NORTH AMERICA

26
27 and the Plan in Response to Plaintiff’s Interrogatories, Requests for Production and
28

713877.1

2
[PROPOSED] PROTECTIVE ORDER
USDC CDCA Case # CV 10-9312-PA-AGR)

1 Requests for Admissions, marked as “CONFIDENTIAL” or “CONFIDENTIAL
2 SUBJECT TO PROTECTIVE ORDER”:
3

1.

LINA's responses to interrogatories sets one and two:

5

2.

LINA's responses to request for production of documents sets one, two

6

and three;

4

7

3.

LINA's responses to requests for admissions, set one;

9

4.

The Plan's responses to interrogatories set one;

10

5.

The Plan's responses to request for production of documents, set two;

6.

Any deposition testimony transcripts and testimony relating to the

8

11
12
13

Protected Material;

14

7.

15
16

Any written discovery propounded or depositions noticed subsequent to

the entry of this Protective Order and calling for the production of Protected

17

Material.

18

(b)

19

“Qualified Person” as used herein means:
(1) Counsel of Record for the parties in this litigation, and any
attorneys, paralegals, legal secretaries or other support staff who are
regularly employed by, or associated with, the office of a Counsel of
Record, who have received specific authority from that Counsel of
Record to view documents or other information designated as
“Protected Material” for purpose of this litigation; Actual or potential
independent experts or consultants retained by any party to this
litigation. Before disclosure of Protected Material to any person under
this Confidentiality Agreement and Agreed Protective Order, each such
person shall be provided with a copy of this Confidentiality Agreement
and Agreed Protective Order and shall execute a Non-Disclosure
Agreement (Exhibit A). The original version of each signed NonDisclosure Agreement shall be maintained by the counsel who retained

20
21
22
23
24
25
26
27
28

713877.1

3
[PROPOSED] PROTECTIVE ORDER
USDC CDCA Case # CV 10-9312-PA-AGR)

the expert, for production to opposing counsel upon request after
termination of this lawsuit and exhaustion of all appeals, or on good
cause shown. The parties agree that this section is not intended, and
may not be used, to circumvent any disclosure rules concerning opinion
witnesses , trial witnesses, expert witnesses, or consultants;

1
2
3
4

(2)

5

Parties (Plaintiff and Named Defendant(s));

(3) Any other person may be designated as a “Qualified
Person” by Order of this Court, after notice and hearing.

6
7
8

STIPULATED TERMS
1.

9

All Protected Material shall be governed by the provisions of this

10 Confidentiality Agreement and Agreed Protective Order.
11

2.

Protected Material shall be labeled with any combination of the words

12
13 and/or

terms

“CONFIDENTIAL”

or

“CONFIDENTIAL

SUBJECT

TO

14 PROTECTIVE ORDER”.
15
3.
Protected Material and the information contained therein shall not be
16
17 disclosed or made available to person other than Qualified Persons, except as stated
18 in this paragraph. Protected Material shall be restricted in circulation to Qualified
19
Persons described in the Definitions section of this document. The viewing of
20
21 material or copies of documents produced under this Confidentiality Agreement and
22 Agreed Protective Order may be made, or exhibits prepared by, independent copy
23
services for the purposes of this litigation.
24
4.
Each party’s outside counsel shall maintain a log of all copies of
25
26 Protected Material which are delivered to any one or more Qualified Persons outside
27
28

713877.1

4
[PROPOSED] PROTECTIVE ORDER
USDC CDCA Case # CV 10-9312-PA-AGR)

1 the office of the counsel of record, as described in the Definitions section of this
2 document, or to independent copy services.
3

5.

Nothing herein shall prevent disclosure outside the terms of the

4
5 Confidentiality Agreement and Agreed Protective Order if each party designating the
6 information as Protected Material consents to such disclosure or if the Court, after
7

notice to all parties, orders such disclosure.

8
9

6.

Nothing in this Confidentiality Agreement and Agreed Protective Order

10 shall be construed as preventing or prohibiting a party from seeking additional
11
protection from the Court against disclosure of classified information, including an
12
13 order that such information may not be disclosed, or that it may be disclosed only in
14 a designated way.
15
7. If a receiving party disagrees with a producing party’s designation of any
16
17 Protected Material, the receiving party may request in writing that the producing
18 party re-designate such Protected Material. If the producing party does not re19
designate the Protected Material, the receiving party may request the Court to order
20
21 the re-designation of such Protected Material. It is the producing party’s burden to
22 prove good cause for any such designation challenged by the receiving party.
23
8.
All pleadings, and all motions, briefs and other papers intended to be
24
25 filed with the Court, including copies to be served on counsel, that include, in whole
26
or in part, Protected Material shall be preceded by a request by way of Motion to the
27
28 Court that the Protected Material be permitted to be filed under seal. If the Court

713877.1

5
[PROPOSED] PROTECTIVE ORDER
USDC CDCA Case # CV 10-9312-PA-AGR)

1 refuses to file the Protected Material under seal, the Protected Material may not be
2 filed with the Court.
3

9.

No person to whom any Protected Material is disclosed may use the

4
5 Protected Material for any purpose other than discovery in this action, preparation
6 for trial of this action, the trial of this action or settlement or appeal of this action.
7

No person to whom any Protected Material is disclosed may use, exchange, loan or

8
9 in any manner disclose the Protected Material to anyone beyond the provisions of
10 this Confidentiality Agreement and Agreed Protective Order.
11
10. After the final termination of this action, the provisions hereof relating
12
13 to the secrecy and confidentiality of the Protected Material and information
14 contained therein shall continue to be binding.
15
11. Within thirty (30) days of conclusion of this litigation, or any appeal
16
17 thereof, all Protected Material in the possession of any Qualified Person shall be
18 returned to the party which produced the Protected Material, including any
19
documents which have been provided any testifying expert, consulting expert, or
20
21 other person who obtained Protected Materials, except as this Court may otherwise
22 order.
23
24

12.

The parties further agree that prior to their production; the personally

25 identifying information on all documents containing any such personally identifying
26 information shall be redacted.
27
28

713877.1

6
[PROPOSED] PROTECTIVE ORDER
USDC CDCA Case # CV 10-9312-PA-AGR)

1

13.

This Confidentiality Agreement and Agreed Protective Order may be

2 modified by agreement of counsel for the parties, provided that any such agreement
3

is memorialized in the form of a stipulation that shall be field with the Clerk and

4
5 made a part of the record in this action.
6
7

14.

This Confidentiality Agreement and Agreed Protective Order shall be

without prejudice to the right of any party to contest the admissibility of the

8
9 Protected Material. Nothing contained herein shall be construed as a waiver of any
10 objection that might be raised as to the admissibility at trial of any evidence.
11
15. Any party designating any person as a Qualified Person shall have the
12
13 duty to reasonably ensure that such person observes the terms of this Confidentiality
14 Agreement and Agreed Protective Order and shall be responsible upon breach of
15
such duty for the failure of any such person to observe the terms of this Protective
16
17 Agreement.
18
19
20

16.

This Confidentiality Agreement and Agreed Protective Order may be

executed in counter-parts by counsel for the parties and maintain its full and binding

21 force and effect.
22
23
24 Date: August 1, 2011
25

By:

________________

Hon. Alicia G. Rosenberg
United States Magistrate Judge

26
27
28

713877.1

7
[PROPOSED] PROTECTIVE ORDER
USDC CDCA Case # CV 10-9312-PA-AGR)

1
2
EXHIBIT A

3
4

UNITED STATES DISTRICT COURT

5
6

CELINA WHINERY,

7

Plaintiff,

8
9
10
11

Case No.: CV10-09312-PA-AGR

v.
LIFE INSURANCE COMPANY
OF NORTH AMERICA; and
CITIGROUP LIFE INSURANCE
BENEFIT PLAN,

12

District Judge: Hon. Percy
Anderson
Magistrate Judge: Hon. Alicia G.
Rosenberg
Filing Date: December 3, 2010

Defendants.

13
NON-DISCLOSURE AGREEMENT

14
15
16
17
18

I, ______________________________, have reviewed the Confidentiality
Agreement and Agreed Protective Order entered by the Court in the above-styled
matter, and I have had an opportunity to review it and seek independent counsel

19
20
21
22

about its contents. Having read the Confidentiality Agreement and Agreed
Protective Order, understanding its contents, including the obligations and duties
it imposes upon me, and agreeing to abide by it, I voluntarily, knowingly, and by

23
24

my own hand execute this Non-Disclosure Agreement, which obligates me to

25

adhere to the terms of the Confidentiality Agreement and Agreed Protective

26

Order.

27
28

EXECUTED this _____ day of ______________, 2011.

713877.1

8
[PROPOSED] PROTECTIVE ORDER
USDC CDCA Case # CV 10-9312-PA-AGR)

1

CERTIFICATE OF SERVICE
Celina Whinery v. Life Insurance Company of North America; et al.
U.S.D.C. Central District of California Case No.: CV-10-09312-PA-AGR

2
3

At the time of service I was over 18 years of age and not a party to this action.
I am employed by WILSON, ELSER, MOSKOWITZ, EDELMAN & DICKER
4 LLP. My business address is 525 Market Street, 17th Floor, San Francisco,
California 94105. My business telephone number is [phone]; my business
5 fax number is [phone]. On this date I served the following document(s):
6

[PROPOSED] PROTECTIVE ORDER

7 on the person or persons listed below, through their respective attorneys of record in
this action, by placing true copies thereof in sealed envelopes or packages addressed
8 as shown below by the following means of service:
9

:

By United States Mail. I placed the envelope(s) for collection and mailing,
following our ordinary business practices. I am readily familiar with this
business’s practice for collecting and processing correspondence for mailing.
On the same day that correspondence is placed for collection and mailing, it is
deposited in the ordinary course of business with the United States Postal
Service, in a sealed envelope with postage fully prepaid.

:

By Overnight Delivery. I enclosed the documents in an envelope or package
provided by an overnight delivery carrier and address to the persons at the
addresses below. I placed the envelope or package for collection and
overnight delivery at an office or a regularly utilized drop box of the overnight
delivery carrier.

:

By Messenger Service. I served the documents by placing them in an
envelope or package addressed to the persons at the addresses listed below
and provided them to a professional messenger service for service.

:

By Fax Transmission. Based on an agreement of the parties to accept service
by fax transmission, I faxed the documents to the persons at the fax numbers
listed below. No error was reported by the fax machine that I used. A copy of
the record of the fax transmission, which was printed out, is attached.

:

By Electronic Service. Based on a court order or an agreement of the parties
to accept service by electronic transmission, I caused the documents to be sent
to the persons at the electronic notification addresses listed below.

10
11
12
13
14
15
16
17
18
19
20
21
22
23
24

Glenn R. Kantor, Esq.
Brent Dorian Brehm, Esq.
Kantor & Kantor
19839 Nordhoff Street
Northridge, CA 91324

Tel: [phone]
Fax: [phone]
Attorneys for Plaintiff, Celina
Whinery

25

I declare under penalty of perjury under the laws of the State of California
that the foregoing is true and correct to the best of my knowledge. EXECUTED on
26 July 28, 2011 at San Francisco, California.
27

/s/ Liza H. Cachero
Liza H. Cachero

28

713877.1

9
[PROPOSED] PROTECTIVE ORDER
USDC CDCA Case # CV 10-9312-PA-AGR)