Rosalie Vaccarino v. Midland National Life Insurance Company et al

Filing 31

PROTECTIVE ORDER by Magistrate Judge Margaret A. Nagle re Stipulation for Protective Order 28 (ec)

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1 7 Robert S. Gianelli (SBN 82116) Email: Lotte Colbert (SBN 207157) Email: Jully C. Pae (SBN 233565) Email: GIANELLI & MORRIS, A Law Corporation 626 Wilshire Blvd., Suite 800 Los Angeles, CA 90017 Telephone: +1 213 489 1600 Facsimile: +1 213 489 1611 8 Attorneys for Plaintiff Rosalie Vaccarino 9 Robert D. Phillips, Jr. (SBN 82639) Email: Kathy J. Huang (SBN 240677) Email: REED SMITH LLP 355 South Grand Avenue, Suite 2900 Los Angeles, CA 90071-1514 Telephone: +1 213 457 8000 Facsimile: +1 213 457 8080 2 3 4 5 6 REED SMITH LLP A limited liability partnership formed in the State of Delaware 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 Attorneys for Defendant Midland National Life Insurance Company UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA ROSALIE VACCARINO, on behalf of herself and all others similarly situated; ) ) ) ) Plaintiff, ) ) vs. ) ) MIDLAND NATIONAL LIFE ) INSURANCE COMPANY; and DOES 1- ) 100, Inclusive, ) ) ) Defendant. ) ) No.: 2:11-CV-05858-CAS (MANx) PROTECTIVE ORDER ENTERED PURSUANT TO THE PARTIES’ STIPULATION Compl. Filed: June 17, 2011 Compl. Removed: July 15, 2011 Trial Date: None Set Honorable Christina A. Snyder 28 –1– PROTECTIVE ORDER 1 Pursuant to Rule 26(c) of the Federal Rules of Civil Procedure and based on the 2 parties’ Stipulated Protective Order Regarding Confidential and Trade Secret 3 Information (“Stipulation”) filed on September 1, 2011, the terms of the protective 4 order to which the parties have agreed are adopted as a protective order of this Court 5 (which generally shall govern the pretrial phase of this action) except to the extent, as 6 set forth below, that those terms have been substantively modified by the Court’s 7 amendment of Paragraphs 1, 8, 12, 13, 15, and 17 of, and Exhibit A to, the 8 Stipulation. 9 The parties are expressly cautioned that the designation of any information, REED SMITH LLP A limited liability partnership formed in the State of Delaware 10 document, or thing as “CONFIDENTIAL,” “Confidential Information,” or other 11 designation(s) used by the parties, does not, in and of itself, create any entitlement to 12 file such information, document, or thing, in whole or in part, under seal. 13 Accordingly, reference to this Protective Order or to the parties’ designation of any 14 information, document, or thing as “CONFIDENTIAL,” “Confidential Information,” 15 or other designation(s) used by the parties, is wholly insufficient to warrant a filing 16 under seal. 17 There is a strong presumption that the public has a right of access to judicial 18 proceedings and records in civil cases. In connection with non-dispositive motions, 19 good cause must be shown to support a filing under seal. The parties apparently have 20 endeavored, through the good cause statement set forth in their Stipulation, to make a 21 prospective showing of good cause. The Court has stricken their good cause 22 statement, because a specific showing of good cause or compelling reasons (see 23 below) for filing under seal, with proper evidentiary support and legal 24 justification, must be made with respect to each document or item designated as 25 “CONFIDENTIAL,” “Confidential Information,” or other designation(s) used by the 26 parties, which a party seeks to have filed under seal. The parties mere designation of 27 any information, document, or thing as “CONFIDENTIAL,” “Confidential 28 Information,” or other designation(s) used by the parties, does not -- without the –2– PROTECTIVE ORDER 1 submission of competent evidence, in the form of a declaration or declarations, 2 establishing that the material sought to be filed under seal qualifies as 3 confidential, privileged, or otherwise protectable -- constitute good cause. Further, if sealing is requested in connection with a dispositive motion or trial, 4 5 then compelling reasons, as opposed to good cause, for the sealing must be shown, 6 and the relief sought shall be narrowly tailored to serve the specific interest to be 7 protected. See Pintos v. Pacific Creditors Ass’n, 605 F.3d 665, 677-79 (9th Cir. 8 2010). For each item or type of information, document, or thing sought to be filed or 9 introduced under seal in connection with a dispositive motion or trial, the party REED SMITH LLP A limited liability partnership formed in the State of Delaware 10 seeking protection must articulate compelling reasons, supported by specific facts and 11 legal justification, for the requested sealing order. Again, competent evidence 12 supporting the application to file documents under seal must be provided by 13 declaration. Any document that is not confidential, privileged, or otherwise protectable in its 14 15 entirety will not be filed under seal if the confidential portions can be redacted. If 16 documents can be redacted, then a redacted version for public viewing, omitting only 17 the confidential, privileged, or otherwise protectable portions of the document, shall 18 be filed. Any application that seeks to file documents under seal in their entirety 19 should include an explanation of why redaction is not feasible. Notwithstanding any other provision of this Protective Order, in the event that 20 21 this case proceeds to trial, all information, documents, and things discussed or 22 introduced into evidence at trial will become public and available to all members of 23 the public, including the press, unless sufficient cause is shown in advance of trial to 24 proceed otherwise. 25 TERMS OF THE PROTECTIVE ORDER 26 27 28 1. [OMITTED BY THE COURT] –3– PROTECTIVE ORDER 1 2. For purposes of this Protective Order, “Confidential Information” shall mean 2 3 DEFINITION OF “CONFIDENTIAL INFORMATION” the following types of documents and information: (a) 4 information that constitutes a trade secret including, without limitation, 5 information, materials, and/or other documents reflecting non-public business or 6 financial strategies, and/or confidential competitive information which, if disclosed, 7 could result in prejudice or harm to the disclosing party; 8 (b) non-public financial or actuarial projections, analyses, or studies; 9 (c) non-public communications with regulators, Departments of Insurance, REED SMITH LLP A limited liability partnership formed in the State of Delaware 10 or other governmental bodies that are intended to be kept confidential and/or are 11 protected from disclosure by statute or regulation; and 12 (d) policyholder-specific information. 13 2.1 Any copies or reproductions, excerpts, summaries, or other documents or 14 media that contain or incorporate Confidential Information as defined above shall also 15 be treated as Confidential Information pursuant to this Protective Order. 2.2 16 Nothing in this Protective Order shall be construed as requiring Midland 17 to produce any personal or identifying information regarding any individual, nor any 18 other policyholder information that is protected from disclosure under applicable state 19 or federal law. 20 3. 21 MARKING DOCUMENTS “CONFIDENTIAL” The Designating Party shall designate Confidential Information by stamping 22 any document or material produced to a Party with the legend “CONFIDENTIAL” or 23 by informing the Parties of the designation in writing at the time of production. Any 24 such stamp or designation shall not, in any manner, cover up, overlap upon, obscure or 25 otherwise conceal any text, picture, drawing, graph, or other communication or 26 depiction in the document. As reasonably practicable, to the extent that a document or 27 other material contains both Confidential Information and non-confidential 28 information, the Designating Party shall clearly delineate the particular portions that –4– PROTECTIVE ORDER 1 constitute Confidential Information and the remaining portions of the document or 2 material shall be deemed not to be Confidential Information. 3 4. DESIGNATING DEPOSITIONS “CONFIDENTIAL” 4 With respect to any deposition, confidential treatment may be invoked by 5 designating testimony as “Confidential” on the record at the deposition, or by serving 6 such designations within 30 days after receipt of the final transcript of the deposition. 7 All deposition transcripts shall be treated as Confidential Information for 30 days 8 following receipt of the final transcript, unless the Parties otherwise agree. 9 5. Material designated by a Party or non-party, or by counsel for a Party or non- REED SMITH LLP 10 A limited liability partnership formed in the State of Delaware USE OF “CONFIDENTIAL” MATERIAL 11 party, as Confidential Information under this Protective Order shall be used by 12 persons receiving it only for the purposes of the litigation or settlement of this Action. 13 Any person in possession of Confidential Information must exercise reasonable care 14 with regard to its storage, custody and use to ensure that the confidential nature of the 15 same is maintained. 16 6. INADVERTENT PRODUCTION OF CONFIDENTIAL MATERIAL: 17 NO WAIVER 18 If at any time prior to the trial of this Action, a Party or non-party realizes that 19 previously undesignated documents or other material should be designated as 20 Confidential Information, the Party or non-party may so designate by advising the 21 Parties in writing. The designated documents or material will thereafter be treated as 22 Confidential Information pursuant to this Protective Order. Upon receipt of such 23 designation in writing, the Parties and all other persons subject to this Protective 24 Order shall take reasonable and appropriate action to notify any and all recipients of 25 the material about the protected status of the newly designated Confidential 26 Information and to retrieve the newly designated Confidential Information from any 27 person who is not permitted by this Protective Order to have Confidential Information. 28 /// –5– PROTECTIVE ORDER 1 2 7. “QUALIFIED PERSONS” Confidential Information may be disclosed only to the following “Qualified 3 Persons”: 4 (a) the Court, including attorneys, employees, judges, secretaries, special 5 masters, stenographic reporters, staff, transcribers, and all other personnel necessary to 6 assist the Court in its function and whose duties require access to Confidential 7 Information; 8 9 (b) the Parties and counsel of record for the Parties, including all partners and associate attorneys of such counsel’s law firms who are assisting in the conduct of REED SMITH LLP A limited liability partnership formed in the State of Delaware 10 the Action, as well as any other counsel and support personnel of such counsel who 11 are assisting counsel of record for the Parties in connection with the Action, and all 12 clerks, employees, independent contractors, consultants, investigators, paralegals, 13 assistants, secretaries, staff and stenographic, computer, audio-visual, and clerical 14 employees, and agents thereof, operating under the supervision of such partners or 15 associate attorneys in connection with the Action; 16 (c) litigation support services personnel, including outside copying services, 17 court reporters, stenographers, or companies engaged in the business of supporting 18 computerized or electronic discovery or trial preparation, retained by a Party or its 19 counsel in connection with the Action; 20 (d) consulting or testifying experts, including associated personnel necessary 21 to assist experts in the Action, provided that such expert or consultant is not employed 22 by, or a consultant to, a competitor of the Party or non-party whose Confidential 23 Information is to be disclosed; 24 25 (e) any person who created or authored such Confidential Information and any persons to whom the Confidential Information has been previously disclosed; 26 (f) auditors and insurers of the Parties; 27 (g) any mediators or arbitrators, including their necessary staff, engaged by 28 the Parties for settlement purposes in the Action; and –6– PROTECTIVE ORDER (h) 1 Witnesses at depositions or other proceedings in the Action, where 2 counsel for the examining Party believes in good faith that disclosure is necessary to 3 develop the testimony of such witnesses. 4 8. DESIGNATIONS TO BE MADE IN GOOD FAITH The Parties agree to limit their designation of Confidential Information solely to 5 designation under this Protective Order. No Party receiving Confidential Information 8 shall be under any obligation to object to the designation of any document at the time 9 such designation is made or at any time thereafter. No Party shall, by failure to object, 10 REED SMITH LLP documents, information, and things that they, in good faith, believe qualify for such 7 A limited liability partnership formed in the State of Delaware 6 be found to have acquiesced or agreed to such designation or be barred from objecting 11 to such designation at any time. 12 9. EXECUTING THE NON-DISCLOSURE AGREEMENT Each person to whom Confidential Information is disclosed, except the persons 13 14 identified in ¶¶ 7 (a), (b), (c) (e), and (g) above, shall execute a non-disclosure 15 agreement in the form annexed hereto as Exhibit A before receiving Confidential 16 Information. Copies of the executed Exhibit A shall be retained by any Party 17 disclosing Confidential Information to such person, and counsel for any Party to the 18 Action that receives Confidential Information from a Designating Party shall obtain 19 and retain a copy of all such executed agreements pertaining to any such persons who 20 obtain Confidential Information directly or indirectly from such Party to the Action. 21 Counsel for the receiving Party shall be responsible for ensuring compliance with the 22 non-disclosure agreement by all persons to whom it provides Confidential Information 23 directly or indirectly. 24 10. 25 CHALLENGING “CONFIDENTIAL” DESIGNATIONS A Party objecting to the designation of any material as Confidential Information 26 shall give written notice to the Designating Party. Within 14 days of receipt of the 27 written objection, the Designating Party shall serve a letter on the objecting Party, in 28 accordance with Local Rule 37-1, responding to the objection and requesting a –7– PROTECTIVE ORDER 1 conference to meet and confer in good faith to attempt to resolve the dispute without 2 resort to Court intervention. If, after complying with the procedures set forth in Local 3 Rule 37-1, the objecting Party and the Designating Party cannot resolve their dispute, 4 the Designating Party, within 21 days after the good faith conference, or such other 5 time period as may be agreed to by the Parties, must file a motion with the Court to 6 continue the designation of the material as Confidential Information. The Designating 7 Party has the burden of establishing that the document is entitled to protection. 8 Provided that the Designating Party makes an application to the Court within the time 9 period set forth above, any material so designated shall remain Confidential REED SMITH LLP A limited liability partnership formed in the State of Delaware 10 Information, and shall be subject to all of the restrictions on its disclosure and use set 11 forth in this Protective Order until such time as the Court determines otherwise. 12 11. INADVERTENT PRODUCTION OF PRIVILEGED OR OTHER 13 PROTECTED INFORMATION 14 Inadvertent production or other disclosure of documents or information subject 15 to work-product immunity, the attorney-client privilege, or other legal privilege that 16 protects information from discovery shall not constitute a waiver of the immunity, 17 privilege, or other protection, provided that the producing Party or non-party notifies 18 each receiving Party in writing in a reasonably prompt manner after it confirms such 19 inadvertent production. The written notice shall identify the inadvertently produced 20 document(s), and describe the basis for requesting the return or destruction of each 21 inadvertently produced document. Upon receipt of the written notice, each receiving 22 Party and non-party shall promptly comply with the request and return or destroy such 23 documents. If the producing and receiving parties do not agree that the document is 24 entitled to protection, they shall follow the procedures in the paragraph above for 25 challenging “Confidential” designations. Any Party or non-party having received 26 privileged or protected information produced inadvertently is expected to comply with 27 the requirements of this paragraph as soon as it is known or should be known that the 28 document and information contained therein is privileged and/or protected. The –8– PROTECTIVE ORDER 1 Parties and any non-parties shall have the benefit of all limitations on waiver afforded 2 by Federal Rule of Evidence 502 and Federal Rule of Civil Procedure 26(b)(5)(B). 3 Any inadvertent disclosure of privileged information shall not operate as a waiver in 4 any other federal or state proceeding, and the Parties’ agreement regarding the effect 5 of inadvertent disclosure of privileged information shall be binding on non-parties. 6 12. SUBPOENA FOR CONFIDENTIAL INFORMATION If any Party has obtained Confidential Information under the terms of this 7 8 Protective Order and receives a request to produce such Confidential Information by 9 subpoena or other compulsory process commanding the production of such REED SMITH LLP A limited liability partnership formed in the State of Delaware 10 Confidential Information, such Party shall promptly (within 3 business days) notify 11 the Designating Party, including in such notice the date set for the production of such 12 subpoenaed information and, unless prohibited by applicable law, enclosing a copy of 13 the subpoena (or other form of process), and shall object to the process or subpoena 14 and not produce or disclose the Confidential Information until any dispute between the 15 requesting party and the Designating Party is resolved by the parties or a court 16 order has been entered that requires such production or disclosure. Nothing in 17 these provisions should be construed as authorizing or encouraging a party to 18 disobey a lawful directive from another court. 19 13. FILING CONFIDENTIAL INFORMATION All documents or things filed with the Court that comprise or contain 20 21 Confidential Information, or that refer to or in any way disclose Confidential 22 Information (including pleadings, motions,or other submissions), shall be submitted 23 for filing under seal in accordance with the Local Rules, particularly Local Rule 79- 24 5.1. 25 14. NO LIMITATION ON USE OF OWN INFORMATION 26 Nothing herein shall impose any restriction on the use or disclosure by a Party 27 of its own information or of information that lawfully came into the possession of the 28 Party independent of any disclosure of information in this litigation. Nothing –9– PROTECTIVE ORDER 1 contained in this Protective Order shall be construed as preventing any Party or non- 2 party from seeking greater protections or confidentiality for particular Confidential 3 Information. 4 15. USE OF CONFIDENTIAL INFORMATION AT TRIAL The Parties shall disclose any exhibits containing Confidential Information that 5 6 they intend to introduce at trial, and the Parties shall be prepared at the Final Pretrial 7 Conference to address with the Court how such exhibits shall be used at trial and 8 what protection, if any, from disclosure is warranted. 9 16. ORDER SURVIVES TRIAL REED SMITH LLP A limited liability partnership formed in the State of Delaware 10 This Order shall be binding throughout and after final adjudication of this 11 action, including, but not limited to, final adjudication of any appeals and petitions for 12 extraordinary writs. Nothing in this Protective Order shall be construed to contradict 13 any provision of law. 14 17. 15 FINAL TERMINATION Upon final termination of this Action, including any and all appeals, counsel for 16 each Party shall, upon request of the Designating Party, return all Confidential 17 Information to the party that produced the information, including any copies, excerpts 18 and summaries thereof, including all copies provided to Qualified Persons, except 19 those persons described in ¶ 7(a), or shall destroy the same at the option of the 20 receiving Party, and shall purge all such information from all machine-readable media 21 on which it resides, including with respect to Qualified Persons. Notwithstanding the 22 foregoing, counsel for each Party may retain all pleadings, briefs, memoranda, 23 discovery responses, deposition transcripts, deposition exhibits, expert reports, 24 motions, and other documents filed with the Court that refer to or incorporate 25 Confidential Information, and will continue to be bound by this Protective Order with 26 respect to all such retained information. Further, attorney work-product materials that 27 contain Confidential Information need not be destroyed, but, if they are not destroyed, 28 the person in possession of the attorney work-product will continue to be bound by – 10 – PROTECTIVE ORDER 1 this Protective Order with respect to all such retained information. 2 18. 3 MODIFYING THIS ORDER Nothing in this Protective Order shall be construed to prohibit the Parties from 4 agreeing to modify any provision of this Protective Order or seeking relief from the 5 Court. Nor shall anything in this Protective Order or any Party’s compliance herewith 6 be construed as a waiver of any Party’s rights under applicable law. 7 8 IT IS SO ORDERED. 9 REED SMITH LLP A limited liability partnership formed in the State of Delaware 10 Dated: September 23, 2011 11 12 13 ___________________________________ MARGARET A. NAGLE UNITED STATES MAGISTRATE JUDGE 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 – 11 – PROTECTIVE ORDER 1 2 3 4 5 EXHIBIT A 6 UNITED STATES DISTRICT COURT 7 CENTRAL DISTRICT OF CALIFORNIA 8 9 ROSALIE VACCARINO, on behalf of herself and all others similarly situated; AGREEMENT TO BE BOUND BY PROTECTIVE ORDER ENTERED PURSUANT TO THE PARTIES’ STIPULATION REED SMITH LLP A limited liability partnership formed in the State of Delaware 10 Plaintiff, 11 12 13 14 No.: 2:11-CV-05858-CAS (MANx) vs. MIDLAND NATIONAL LIFE INSURANCE COMPANY; and DOES 1-100, Inclusive, 15 Defendant. 16 Compl. Filed: June 17, 2011 Compl. Removed: July 15, 2011 Trial Date: None Set Honorable Christina A. Snyder 17 18 19 I, the undersigned, hereby declare that I have read the attached Protective Order 20 Entered Pursuant to the Parties’ Stipulation entered in the above-captioned Action. I 21 understand the terms of, will comply with, and agree to be bound by all of the 22 provisions of the Protective Order Entered Pursuant to the Parties’ Stipulation. 23 24 DATED: Signature 25 26 Print Name 27 28 – 12 – PROTECTIVE ORDER

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