Eddie L Cressy v. OM Financial Life Insurance Company et al

Filing 66

STIPULATED PROTECTIVE ORDER REGARDING CONFIDENTIAL INFORMATION by Magistrate Judge Jacqueline Chooljian re Stipulation for Protective Order 60 . [CROSS-REFERENCING ERRORS CORRECTED IN PARAGRAPH 6, PAGE 5, LINES 22, 24] (NOTE: CHANGES MADE BY COURT) (rp)

1
2
3
4
5
6
7
8
9

REED SMITH LLP

A limited liability partnership formed in the State of Delaware

10
11
12
13
14
15
16

Robert D. Phillips, Jr. (SBN 82639)
[e-mail]
Brett B. Goodman (SBN 260899)
[e-mail]
REED SMITH LLP
355 South Grand Avenue, Suite 2900
Los Angeles, CA 90071-1514
Telephone: [phone]
Linda B. Oliver (SBN 166720)
[e-mail]
REED SMITH LLP
101 Second Street, Suite 1800
San Francisco, CA 94105-3659
Telephone: [phone]
Frank A. Taylor (Pro Hac Vice)
[e-mail]
Julie H. Firestone (Pro Hac Vice)
[e-mail]
Jessica J. Stomski (Pro Hac Vice)
[e-mail]
BRIGGS & MORGAN, P.A.
2000 IDS Center
80 South 8th Street
Minneapolis, MN 55402
Telephone: [phone]
Attorneys for Defendant Fidelity & Guaranty Life Insurance Company, formerly
known as OM Financial Life Insurance Company
(Additional Counsel Listed on Signature Page)

17

UNITED STATES DISTRICT COURT

18

CENTRAL DISTRICT OF CALIFORNIA

19

WESTERN DIVISION

20

EDDIE L. CRESSY,
Plaintiff,

21
22
23
24

vs.
OM FINANCIAL LIFE INSURANCE
COMPANY, et al.,
Defendant.

No.: LACV 11-5871-JAK (JCx)
STIPULATED PROTECTIVE
ORDER REGARDING
CONFIDENTIAL INFORMATION
[CROSS-REFERENCING ERRORS
CORRECTED IN PARAGRAPH 6,
PAGE 5, LINES 22, 24]

25
26
27
28

Pursuant to the Stipulation of the Parties, good cause appearing therein,
IT IS HEREBY ORDERED, as follows:
No.: LACV 11-5871-JAK (JCx)
–1–
PROTECTIVE ORDER REGARDING CONFIDENTIAL INFORMATION

1
2

Designation of Discovery Material as Confidential
1.

The term “Discovery Material” includes, but is not limited to, the

3

following materials: documents, tangible things, deposition testimony and transcripts

4

thereof, interrogatory responses, responses to requests for admissions, or responses to

5

requests for production that are (a) served or produced by a party to the above-

6

captioned action “(Action”), or (b) produced by a non-party to this Action pursuant to

7

a subpoena or other request, formal or informal.

8
9

REED SMITH LLP

A limited liability partnership formed in the State of Delaware

10
11

2.

The terms “document” and “electronically stored information” (“ESI”)

are defined as provided in Federal Rule of Civil Procedure 34(a)(1)(A). A draft or
non-identical copy shall be considered a separate document.
3.

A party or non-party may designate Discovery Material as “confidential”

12

using the procedures in Paragraph 4, below, but may only use this confidential

13

designation when the Discovery Material is or contains confidential or proprietary

14

information, which may include but is not limited to: personal, personnel, financial,

15

compensation, trade secrets, competitively sensitive, proprietary, customer, client,

16

investor, or other non-public information. This itemized list is not exhaustive and the

17

parties may supplement or amend this list in good faith.

18

4.

19

follows:

20

a.

The process for designating Discovery Material as “confidential” is as

Except as noted below at Paragraph 4(b), Discovery Material shall be

21

designated as confidential by affixing the appropriate stamp with the word

22

“CONFIDENTIAL” on each page of the document (in a manner that will not interfere

23

with legibility) before copies thereof are delivered to another party.

24

b.

ESI that is produced in its native format shall be designated as

25

confidential by affixing the appropriate stamp with the word “CONFIDENTIAL” on

26

the medium containing the ESI (including, e.g., tapes, CDs and DVDs) before copies

27

are delivered to another party and on any corresponding placeholder provided in static

28

format.
No.: LACV 11-5871-JAK (JCx)
–2–
PROTECTIVE ORDER REGARDING CONFIDENTIAL INFORMATION

1

c.

Interrogatory responses, responses to requests for admission, or responses

2

to requests for production may be designated as confidential by typing, writing or

3

affixing the appropriate stamp with the word “CONFIDENTIAL ” immediately in

4

front of the interrogatory responses, responses to requests for admission, or responses

5

to requests for production before copies thereof are served on another party.

6

d.

Portions of depositions may be designated as confidential after

record within 14 days after notice by the court reporter of the completion and

9

availability of the deposition transcription. A party or non-party designating a portion

10

REED SMITH LLP

transcription, provided written notice of such designation is given to all counsel of

8

A limited liability partnership formed in the State of Delaware

7

of any deposition transcript as confidential must identify the page and line number of

11

the designated testimony in the deposition in the transcript in the written notice to the

12

other parties and any non-parties who are the subject of the designated testimony. A

13

party or non-party designating audio/video-cassettes (or other storage media)

14

containing deposition testimony as confidential (not otherwise transcribed) shall note

15

the start time and end time of the designated testimony in the video in the written

16

notice to the other parties and any non-parties who are the subject of the designated

17

testimony.

18

e.

Deposition testimony, transcripts, and audio/video recordings conducted

19

during pretrial discovery in this Action shall be presumptively treated as confidential

20

for a period of 14 days after transmission of such deposition, testimony, transcript, or

21

audio/video recordings to allow time for the deponent, a party, or any non-parties who

22

are the subject of the testimony to notify the parties or non-parties of a confidential

23

designation. Any portion of deposition testimony, transcript, and audio/video

24

recordings which is not designated as confidential within 14 days after transmission of

25

such deposition testimony, transcript, or audio/video recordings shall not be treated as

26

confidential.

27
28
No.: LACV 11-5871-JAK (JCx)
–3–
PROTECTIVE ORDER REGARDING CONFIDENTIAL INFORMATION

1
2

Authorized Use of Confidential Discovery Material
5.

All persons obtaining access to Discovery Material produced in this

3

Action may use such Discovery Material for the purpose of this Action only and not

4

for any other purposes. Provided, however, nothing in this Protective Order shall

5

limit or restrict a party’s right to use Discovery Material or any information properly

6

and lawfully obtained independent of discovery in this Action in any manner that the

7

party deems appropriate.

8
9

REED SMITH LLP

A limited liability partnership formed in the State of Delaware

10

6.

Discovery Material designated as “CONFIDENTIAL – SUBJECT TO

PROTECTIVE ORDER” may be disclosed only to the following entities or persons:
a.

The Court and Court personnel, including secretarial or other clerical

11

personnel, stenographers or other persons involved in taking, transcribing, or

12

recording testimony in this Action, and jurors;

13

b.

A court of competent jurisdiction in a proceeding by a party made in

14

connection with this Action (e.g., a subpoena, FOIA request, or similar discovery

15

request made to obtain Discovery Material for use in this Action) provided that the

16

party disclosing the Discovery Material designated confidential submits same with a

17

motion requesting leave to file it under seal;

18

c.

A court of competent jurisdiction in a proceeding brought by counsel in

19

this Action to recover costs or fees owed to counsel by his or her client incurred in

20

connection with this Action, or by counsel in this Action to defend against any action

21

for malpractice or negligence arising out of this Action, provided that the party

22

disclosing the Discovery Material designated confidential submits same with a motion

23

requesting leave to file it under seal;

24

d.

The parties, the parties’ employees, the parties’ inside counsel including

25

persons to whom it is necessary to disclose to prosecute or defend this Action, such as

26

litigation assistants, paralegals, and secretarial or other clerical personnel;

27
28
No.: LACV 11-5871-JAK (JCx)
–4–
PROTECTIVE ORDER REGARDING CONFIDENTIAL INFORMATION

1

e.

The parties’ outside counsel to whom it is necessary to disclose to

2

prosecute or defend this Action including litigation assistants, paralegals, and

3

secretarial or other clerical personnel;

4

f.

Defendants’ insurers and their counsel;

5

g.

Without waiving the right to object to the admission of testimony or

hearing, or trial (“Witness”) and the Witness’s counsel so long as such disclosure is

8

made during the course of the deposition, hearing, or trial AND provided that the

9

Witness, based upon the document itself, testimony already provided, or other

10

REED SMITH LLP

documents, any person providing testimony in the Action during a deposition,

7

A limited liability partnership formed in the State of Delaware

6

evidence, appears to have knowledge of the contents of the document or the events,

11

transactions, discussions, or data reflected in the document;

12

h.

Any potential fact witness and their counsel that a party believes, in good

13

faith, may provide testimony at a deposition, hearing, or trial in this Action, in

14

advance of their testimony and in the course of assisting their preparation to testify;

15
16
17

i.

With respect to any specific Discovery Material, any person who created,

received or had previously seen that specific document;
j.

Consultants and experts, including principals and employees of the firm

18

with which consultants or experts are associated, or litigation support services,

19

including outside vendors, court reporters, or companies engaged in the business of

20

supporting computerized or electronic discovery or trial preparation, retained by a

21

party for the purpose of assisting that party in this Action.

22

Persons described in Paragraphs 6.d. and 6.e., above, shall be deemed bound by

23

the terms of this Order upon its entry by the Court.

24

confidential Discovery Material to any person identified in Paragraphs 6.g.–j., counsel

25

shall provide such person with a copy of this Protective Order and obtain from them

26

an executed Confidentiality Agreement in the form attached hereto as Exhibit A. All

27

such Confidentiality Agreements shall be retained by counsel disclosing confidential

Prior to disclosing any

28
No.: LACV 11-5871-JAK (JCx)
–5–
PROTECTIVE ORDER REGARDING CONFIDENTIAL INFORMATION

1

Discovery Material and shall be subject to in camera review by the Court if good

2

cause for review is demonstrated by opposing counsel.

3

7.

Nothing in this Protective Order shall prevent any party from using or

4

disclosing either its own documents or information that it has obtained by means other

5

than discovery in connection with this action. It shall not be necessary for the Court

6

to modify this Protective Order in order to permit a producing party voluntarily to

7

make available in another action documents, information or other things that it

8

produces in this action.

9

REED SMITH LLP

A limited liability partnership formed in the State of Delaware

10

Inadvertent Disclosure or Production of Confidential Discovery Material
8.

If Discovery Material designated confidential is disclosed to any person

11

other than in the manner authorized by this Order, the party responsible for the

12

disclosure shall, immediately upon learning of the disclosure, inform all other parties

13

or non-parties of all pertinent facts relating to such disclosure and shall make every

14

effort to retrieve the confidential Discovery Material and to prevent the occurrence of

15

any further disclosure unauthorized by this Order.

16

9.

Inadvertent production of or failure to designate any Discovery Material

17

as confidential shall not be deemed a waiver of the producing party’s or non-party’s

18

claim of confidentiality as to such information, and the producing party or non-party

19

may thereafter designate such Discovery Material as confidential as provided in

20

Paragraphs 4 and 10.

21

10.

If, after the exercise of due care, confidential Discovery Material is

22

inadvertently not labeled as such by the producing party, the producing party may

23

subsequently request of the receiving party that the receiving party accept substitute,

24

properly labeled copies and that the receiving party thereafter treat said Discovery

25

Material as confidential pursuant to this Order. If the receiving party refuses such a

26

request, then the parties shall comply with Local Rule 37 in preparing and filing a

27

joint stipulation to resolve the dispute. In such circumstances, the receiving party

28
No.: LACV 11-5871-JAK (JCx)
–6–
PROTECTIVE ORDER REGARDING CONFIDENTIAL INFORMATION

1

shall presumptively treat the Discovery Material as confidential pursuant to this Order

2

pending the Court’s ruling.

3

11.

Inadvertent production of any Discovery Material designated as

protected from disclosure by any applicable privilege including, without limitation,

6

the attorney-client privilege, accountant-client privilege, self-evaluative privilege or

7

attorney work-product doctrine, and no party shall be held to have waived any rights

8

by such inadvertent production.

9

pursuant to this Paragraph with respect to any Discovery Material then in the custody

10

REED SMITH LLP

confidential shall be without prejudice to any claim that such Discovery Material is

5

A limited liability partnership formed in the State of Delaware

4

of another party, the producing party may request of the receiving party that the

11

receiving party return or destroy such Material. If the receiving party refuses such a

12

request, then the producing party may file a motion with the Court seeking an order

13

directing the receiving party to return or destroy such Material. Both parties may use

14

such Material for the purposes of arguing this motion.

15
16

If the claim of inadvertent production is made

Disclosure of Confidential Discovery Material Via Court Filings
12.

If Discovery Material designated as confidential is included in any papers

17

to be filed with the Court, such papers shall be filed with a motion requesting leave to

18

file them under seal.

19
20

Challenges to Designations
13.

A party may object to the designation of particular Discovery Material

21

as confidential by giving written notice to the designating party or non-party. The

22

parties shall address such a dispute in accordance with Local Rule 37. While the joint

23

stipulation is pending, the Discovery Material at issue shall be treated as confidential

24

under the terms of this Protective Order until the Court rules on the motion. The party

25

designating the Discovery Material as confidential shall bear the burden of

26

establishing that the Discovery Materials are confidential. Nothing in this Protective

27

Order precludes any party from challenging a designation on any other ground.

28
No.: LACV 11-5871-JAK (JCx)
–7–
PROTECTIVE ORDER REGARDING CONFIDENTIAL INFORMATION

1
2

Efforts by Non-Parties to Obtain Confidential Discovery Material
14.

If any party has obtained Discovery Material under the terms of this

the production of confidential Discovery Material, such party shall notify the

5

producing party or producing non-party no later than 10 days following receipt of the

6

subpoena and shall include a copy of the subpoena or compulsory process and identify

7

the deadline for the production of the confidential Discovery Material, so that the

8

producer may file a motion for a protective order or to quash the subpoena or

9

compulsory process. In the event the producer files such a motion, the subpoenaed

10

REED SMITH LLP

Protective Order and receives a subpoena or other compulsory process commanding

4

A limited liability partnership formed in the State of Delaware

3

party shall not produce any confidential Discovery Material in response to the

11

subpoena without the prior written consent of the producer unless in response to an

12

order of a court of competent jurisdiction, or unless a failure to produce immediately

13

the confidential Discovery Material would likely subject the subpoenaed party to

14

sanctions.

15

15.

The parties will not object to the producing party or non-party having a

16

reasonable opportunity to appear in the litigation or process commanding disclosure of

17

such confidential Discovery Material for the sole purpose of seeking to prevent or

18

restrict disclosure thereof.

19
20

Use of Confidential Discovery Material at Trial and Hearings
16.

The parties shall comply with Local Rule 79, and all other applicable

21

law, in submitting confidential material to the Court.

22

Material as “confidential” they shall do so only if there are compelling reasons for

23

requesting that such Material be filed under seal pursuant to applicable law. By so

24

designating, a party represents that compelling reasons exist and shall provide those

25

reasons when, and if necesssary to justify a request to file documents under seal.

26
27

17.

When a party designates

Nothing in this Protective Order shall prevent counsel from referencing

material designated as “CONFIDENTIAL” in oral arguments.

28
No.: LACV 11-5871-JAK (JCx)
–8–
PROTECTIVE ORDER REGARDING CONFIDENTIAL INFORMATION

1
2

Termination of Action
18.

Within 60 days of the conclusion of this Action, any producing party or

counsel’s copies of Discovery Material filed with the Court and outside counsel’s file

5

copies of papers prepared in connection with this Action), which request shall be

6

honored. Upon request, a party shall confirm in writing that Discovery Material has

7

been destroyed. Nothing in this paragraph shall limit the rights, if any, of any party or

8

non-party to object to and move the Court for an order permitting the retention of any

9

Discovery Material. To the extent any person retains copies of certain Discovery

10

REED SMITH LLP

non-party may request that another destroy any Discovery Material (other than outside

4

A limited liability partnership formed in the State of Delaware

3

Material pursuant to the terms of this Paragraph, such information shall continue to be

11

subject to the protections provided by this Order. In addition, all obligations and

12

restrictions in this Order regarding the use by any person of information or knowledge

13

obtained from Discovery Materials shall continue even after such Discovery Materials

14

are returned or destroyed.

15
16

Miscellaneous
19.

This Protective Order shall not affect the right of any party or non-party

17

to oppose production of Discovery Material on any ground permitted by the Federal

18

Rules of Civil Procedure, including any applicable privilege.

19

Protective Order shall not affect the scope of discovery by any party.

20
21

20.

This Protective Order may be modified by the Court at any time for good

cause shown following notice to all parties and an opportunity for them to be heard.

22
23

IT IS SO ORDERED this 28th day of March, 2012.

24
25
26

Moreover, the

/s/
Hon. Jacqueline Chooljian
United States Magistrate Judge

27
28
No.: LACV 11-5871-JAK (JCx)
–9–
PROTECTIVE ORDER REGARDING CONFIDENTIAL INFORMATION

1

EXHIBIT “A” TO PROTECTIVE ORDER

2

EDDIE L. CRESSY V. OM FINANCIAL LIFE INSURANCE COMPANY ET AL.

3

UNITED STATES DISTRICT COURT, CENTRAL DISTRICT OF CALIFORNIA
CASE NO. 2:11-CV-05871-JAK-JC

4

DECLARATION RE PROTECTIVE ORDER

5
6

I,

7

1.

8

contents.

9

2.

, hereby declare:
I have reviewed the foregoing Protective Order, and am familiar with its

As a condition to being permitted access to material designated as

REED SMITH LLP

A limited liability partnership formed in the State of Delaware

10

“CONFIDENTIAL” in the above-captioned matter, I agree to be bound by the terms

11

and conditions of the Protective Order and promise to comply with the Protective

12

Order.

13

3.

As a further condition to being permitted access to material designated as

14

“CONFIDENTIAL” in the above-captioned matter, I agree on behalf of myself and, to

15

the extent applicable, my employer, to submit to personal jurisdiction in California

16

before the above-entitled Court for purposes of any dispute arising from the Protective

17

Order, including its enforcement.

18

4.

If I am signing on behalf of a firm of third-party contractors, court

19

reporters, videographers, or outside litigation consultants, I further state that I have

20

authority to sign on behalf of my firm, and that I will make sure that all firm personnel

21

who work on this litigation are made aware of this Protective Order and the firm’s

22

responsibilities hereunder.

23

I declare under penalty of perjury under the laws of the State of California that

24

the foregoing is true and correct. Executed this ____ day of ____________, _____ at

25

______________________.

26
27
28

____________________________________
_
[signature]
____________________________________
_
[printed name]
No.: LACV 11-5871-JAK (JCx)
– 10 –
PROTECTIVE ORDER REGARDING CONFIDENTIAL INFORMATION