U S Bank National Association v. PHL Variable Insurance Company

Filing 44

ORDER APPROVING AMENDED STIPULATED PROTECTIVE ORDER by Magistrate Judge Ralph Zarefsky. Re Amended Stipulation for Protective Order 41 . (Note: Changes have been made to the proposed order). (ib)

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1 2 3 4 5 6 7 8 9 10 11 12 13 KHAI LEQUANG (SBN 202922) klequang@orrick.com MELANIE D. PHILLIPS (SBN 245584) mphillips@orrick.com ORRICK, HERRINGTON & SUTCLIFFE LLP 777 South Figueroa Street Suite 3200 Los Angeles, California 90017 Telephone: 213-629-2020 Facsimile: 213-612-2499 STEPHEN G. FORESTA (admitted pro hac vice) sforesta@orrick.com PHILIPP SMAYLOVSKY(admitted pro hac vice) psmaylovsky@orrick.com ORRICK, HERRINGTON & SUTCLIFFE LLP 51 WEST 52ND ST NEW YORK, NY 10019 Telephone: 212-506-5000 Facsimile: 212-506-5151 Attorneys for Plaintiff U.S. BANK NATIONAL ASSOCIATION, AS SECURITIES INTERMEDIARY FOR LIMA ACQUISITION LP 14 UNITED STATES DISTRICT COURT 15 CENTRAL DISTRICT OF CALIFORNIA 16 WESTERN DIVISION 17 18 20 U.S. BANK NATIONAL ASSOCIATION, a national association, as securities intermediary for LIMA ACQUISITION LP, 21 Plaintiff, 19 22 23 24 v. PHL VARIABLE INSURANCE COMPANY, a Connecticut corporation, Case No. CV11-09517 ODW(RZx) [PROPOSED] ORDER APPROVING AMENDED STIPULATED PROTECTIVE ORDER NOTE: CHANGES HAVE BEEN MADE TO THIS DOCUMENT Defendant. 25 26 27 28 STIPULATED PROTECTIVE ORDER CV11-09517 ODW(RZX) 1 The parties’ Amended Stipulated Protective Order Governing the Production 2 and Exchange of Confidential Information (the “Protective Order”) is before the 3 Court. The Court having read the order and good cause appearing therefore, the 4 Court hereby enters the following Protective Order: 5 1. Statement of Good Cause: In the course of litigating and taking 6 discovery in the above-captioned action (the “Action”), the parties, or third parties 7 in connection with the Action, may need to produce competitively sensitive, 8 confidential, and proprietary business information and/or private personal, medical, 9 or financial information (collectively, “Confidential Information”), including the 10 11 following categories of Confidential Information: (a) commercially sensitive and proprietary internal marketing 12 materials, financial, actuarial, valuation or pricing projections, 13 including mortality, reserve, and premium funding analyses that 14 reflect past, current or future experience or actions relating to 15 the cost of insurance disputes at issue in this Action, and/or 16 information otherwise recognized by laws and regulations such 17 as The California Public Records Act, West’s Ann. Cal. Gov. 18 Code § 6254 (d)), as being excepted from disclosure under 19 public access laws, and deserving of treatment as Confidential 20 Information; 21 (b) non-public communications with governmental or non- 22 governmental regulators, including but not limited to state 23 departments of insurance, Securities Exchange Commission, and 24 Financial Industry Regulatory Authority (FINRA, f/k/a NASD) 25 that are intended to be kept confidential and/or are protected 26 from disclosure by statute or regulation; 27 28 (c) non-public personal identifying information (including names, addresses, social security numbers and dates of birth), and health -1- STIPULATED PROTECTIVE ORDER CV11-09517 ODW(RZX) 1 and financial information relating to policies affected by the cost 2 of insurance adjustments at issue in this Action, the disclosure of 3 which would potentially violate state and federal privacy laws, 4 including but not limited to The California Insurance 5 Information and Privacy Protection Act, Cal. Ins. Code § 791, et 6 seq., The California Public Records Act, West’s Ann. Cal. Gov. 7 Code § 6254 (c), The California Financial Information 8 Protection Act, Cal. Fin. Code § 4050, et seq., The Gramm- 9 Leach-Bliley Act, 15 U.S.C. 6801, et seq., as well as local Court 10 rules (see, e.g., Central Dist. of Cal. General Order No. 10-07, 11 Sec. IV(E), (H)); 12 (d) agreements subject to provisions of confidentiality and 13 documents that reveal the confidential terms of such 14 agreements; 15 (e) documents that reveal confidential financial information about a 16 party’s business or commercial information about a party’s 17 business that is not available to the public or its competitors, 18 which if disclosed could place the party at a competitive 19 disadvantage; and 20 (f) commercially sensitive and proprietary, confidential information 21 that constitutes, discusses or reflects trade secrets entitled to 22 protection under various laws and regulations, including but not 23 limited to California’s Uniform Trade Secret Act. 24 Confidential Information shall include the contents and all copies, excerpts, 25 extracts, and summaries of documents, testimony, and information, designated by 26 the parties as such, provided that such designation has not been successfully 27 challenged and finally revoked pursuant to paragraph 9 herein. 28 2. This Protective Order shall, pursuant to Fed. R. Civ. P. 26(c), limit the -2- STIPULATED PROTECTIVE ORDER CV11-09517 ODW(RZX) 1 copying, dissemination, and filing of Confidential Information to be produced or 2 provided by any party and their respective counsel or by any non-party in the course 3 of discovery in this matter, and shall govern the handling of documents and all 4 other information produced by or between the parties to the Action or by third 5 parties in connection with the Action, including all documents, information, and 6 testimony produced or provided pursuant to interrogatories, depositions, requests 7 for production of documents, subpoenas, requests for admissions, or other requests 8 for disclosures (whether formal or informal), and all information provided, 9 submitted, or exhibited by the parties hereto or third parties in connection with any 10 evidentiary hearings or other proceedings conducted during the course of the 11 Action. 12 3. 13 As used herein: (a) “Producing Party” shall mean the parties to this Action and any 14 third-parties producing “Confidential Information” in connection 15 with depositions, document production, or otherwise, or the 16 party asserting the confidentiality privilege, as the case may be. 17 (b) “Receiving Party” shall mean the party to this Action and/or any 18 non-party receiving “Confidential Information” in connection 19 with depositions, document production, or otherwise. 20 (c) “Qualified Person” shall mean any person authorized to receive 21 or review Confidential Information pursuant to paragraph 6 22 herein. 23 4. Any party, subpoenaed non-party, or other third party whose 24 information may be disclosed in connection with this Action may designate 25 documents produced, testimony given, or other information exchanged in 26 connection with this action as “Confidential” either by notation on the document, 27 statement on the record of the deposition, designation pursuant to paragraph 8 or 10 28 or 14 herein, or written advice to the respective undersigned counsel for the parties -3- STIPULATED PROTECTIVE ORDER CV11-09517 ODW(RZX) 1 hereto. Electronic documents and information, if any, shall be designated as 2 “confidential” by any of the foregoing methods or pursuant to a procedure to be 3 agreed upon by the parties. 4 5. All Confidential Information shall be used solely in connection with 5 this Action, and no person receiving such Confidential Information shall, directly or 6 indirectly, use, transfer, disclose, or communicate in any way the Confidential 7 Information to any person other than Qualified Persons. Any other use or 8 disclosure is prohibited. The receipt of Confidential Information by persons or 9 entities as defined in paragraph 5(f) below shall not prevent such person or entity 10 from serving as an expert or consultant in connection with the action entitled 11 Martin Fleisher v. Phoenix Life Insurance Company, No. CV 11-8405 (CM) 12 (S.D.N.Y.) (the “Fleisher Action”), or prevent such person or entity from receiving 13 information, including Confidential Information, in connection with the Fleisher 14 Action. 15 6. Except with the prior written consent of the Producing Party or by 16 order of the Court, Confidential Information shall not be furnished, shown or 17 disclosed to any person or entity except to: 18 (a) 19 20 the parties in this action, including employees of the parties who are assisting in this action; (b) counsel for the parties to this action and their associated 21 attorneys, paralegals and other professional personnel (including 22 support staff) who are directly assisting such counsel in the 23 preparation of this action for trial or other proceeding herein, 24 and are under the supervision or control of such counsel; 25 (c) copying, imaging, computer services and/or litigation support 26 services who are bound to protect Confidential Information 27 either by their services contract with counsel or the Receiving 28 Party or by execution of the confidentiality agreement attached -4- STIPULATED PROTECTIVE ORDER CV11-09517 ODW(RZX) 1 2 hereto as Exhibit A; (d) 3 4 any agreed-upon or ordered mediator and that mediator’s personnel; (e) persons whom counsel of record for a party believes (i) are 5 likely to be called to give testimony, through deposition, 6 affidavit, or at trial, on matters relating to Confidential 7 Information or (ii) possess information reasonably necessary and 8 relevant for the prosecution or defense of the Action; provided, 9 however, that such information is furnished, shown or disclosed 10 11 in accordance with paragraph 7 herein; (f) expert witnesses or consultants retained by the parties or their 12 counsel to furnish technical or expert opinions, services, or 13 assistance in connection with this action or to give testimony 14 with respect to the subject matter of this action at the trial of this 15 action or other proceeding herein; provided, however, that such 16 Confidential Information is furnished, shown or disclosed in 17 accordance with paragraph 7 herein; 18 (g) the Court and court personnel, provided that the Confidential 19 Information is filed in accordance with paragraph 11 herein or 20 otherwise disclosed in accordance with paragraph 12 herein; 21 (h) an officer before whom a deposition is taken, including 22 stenographic reporters and videographers and any necessary 23 secretarial, clerical or other personnel of such officer, provided 24 that the Confidential Information is furnished, shown or 25 disclosed in accordance with paragraph 13 herein; 26 (i) trial and deposition witnesses, provided that the Confidential 27 Information is furnished, shown or disclosed in accordance with 28 paragraphs 12 and 13, respectively, herein; and -5- STIPULATED PROTECTIVE ORDER CV11-09517 ODW(RZX) 1 2 (j) 7. any other person agreed to by the parties. Before any disclosure of Confidential Information is made to any 3 person pursuant to paragraph 6(e) or 6(f) herein, such person must execute a 4 confidentiality agreement in the form of Exhibit A attached hereto. Counsel shall 5 maintain the executed confidentiality agreements required by this Protective Order. 6 Counsel for the party obtaining the executed Exhibit A from an expert under 7 paragraph 6(f) shall supply a copy of Exhibit A to counsel for the other party at the 8 time such expert is disclosed pursuant to Rule 26 of the Federal Rules of Civil 9 Procedure. 10 8. Any document or information that may contain Confidential 11 Information that has been inadvertently produced without identification as to its 12 confidential nature may be so designated by the party asserting the confidentiality 13 privilege by written notice to the undersigned counsel for the Receiving Party 14 identifying the document or information as “Confidential” within a reasonable time 15 following the discovery that the document or information has been produced 16 without such designation. Any party receiving such improperly-designated 17 documents shall retrieve such documents from persons not entitled to receive those 18 documents. 19 9. With respect to objections to designations of documents and 20 information as “Confidential,” a party shall not be obligated to challenge the 21 propriety of a designation as “Confidential” at the time made, and a failure to do so 22 shall not preclude a subsequent challenge thereto. In the event that any party to this 23 Action disagrees at any stage of these proceedings with the designation by the 24 Producing Party of any information as “Confidential,” or the designation of any 25 person as a Qualified Person, the parties shall first try to resolve such dispute in 26 good faith on an informal basis. If the dispute cannot be resolved, the party that 27 disagrees with the designation may seek appropriate relief from the Court on an 28 expedited schedule to be established by the Court that provides the opposing party -6- STIPULATED PROTECTIVE ORDER CV11-09517 ODW(RZX) 1 with the opportunity to file a response. Pending the resolution of such motion by 2 the Court and any subsequent appeal therefrom, the parties agree to treat the 3 information that is the subject of the motion in accordance with the Producing 4 Party’s designation. The Producing Party shall at all times carry the initial burden 5 of establishing that the contested information merits a “Confidential” designation. 6 10. All depositions, the information disclosed therein, and the transcripts 7 thereof shall presumptively be treated as Confidential Information and subject to 8 this Protective Order during the deposition and for a period of thirty (30) days after 9 a transcript of said deposition is received by counsel for each of the parties. At or 10 before the end of such thirty-day period, the deposition shall be classified 11 appropriately by notifying all of the parties in writing of the specific pages and lines 12 of the transcript which should be treated as Confidential Information thereafter. 13 11. A Receiving Party who seeks to file with the Court any deposition 14 transcripts, exhibits, answers to interrogatories, and other documents which have 15 previously been designated as comprising or containing Confidential Information, 16 and any pleading, brief or memorandum which reproduces, paraphrases or discloses 17 Confidential Information, shall follow the procedures of this Court for filing 18 documents conditionally under seal so as to prevent the disclosure of Confidential 19 Information to persons other than Qualified Persons, including Local Rule 79-5. 20 The party who designated the documents “Confidential” may file supplemental 21 materials with the Court to support the application to file under seal filed by the 22 Receiving Party. 23 12. Should the need arise for any of the parties to disclose Confidential 24 Information during any hearing or trial before the Court, including through 25 argument or the presentation of evidence, such party may do so only after taking 26 such steps as the Court, upon motion of the disclosing party, shall deem necessary 27 to preserve the confidentiality of such Confidential Information. 28 13. Any deposition witness who is not otherwise a Qualified Person and -7- STIPULATED PROTECTIVE ORDER CV11-09517 ODW(RZX) 1 who will be given access to Confidential Information shall, prior thereto, be 2 provided with a copy of this Protective Order and counsel shall make reasonable 3 efforts to have such person execute a confidentiality agreement in the form of 4 Exhibit A attached hereto. If unable to obtain an executed confidentiality 5 agreement from such person, counsel shall immediately and prior to the deposition 6 provide notice to counsel for the other party. Counsel for the party obtaining the 7 executed Exhibit A shall supply a copy to counsel for the other party. 8 Alternatively, counsel for the parties may agree that Confidential Information is 9 adequately protected by such person’s existing obligations to maintain the 10 confidentiality of such information. Nothing herein, however, shall prevent any 11 counsel of record from utilizing Confidential Information in the examination or 12 cross-examination of any person who is indicated on the document as being an 13 author, source or recipient of the Confidential Information, irrespective of which 14 party produced such information. 15 14. Subject to the provisions of this Protective Order, a party may 16 designate as Confidential Information any document, information, or deposition 17 testimony produced or given by any non-party to this case, or any portion thereof, 18 where such information has not already been designated as “Confidential” by that 19 non-party if the document, information, or deposition testimony constitutes 20 Confidential Information as defined herein. 21 15. This Protective Order and the procedures herein shall not affect the 22 rights of the parties to object to discovery on any grounds, nor shall it relieve the 23 parties of the necessity of proper response or objection to discovery requests. 24 16. In the event that the Receiving Party is requested or required (by oral 25 questions, interrogatories, requests for information or documents in a legal 26 proceeding, subpoena, civil investigative demand, other similar process, or rule of 27 law) to disclose any Confidential Information in another action or proceeding, the 28 Receiving Party shall provide the Producing Party with prompt written notice of -8- STIPULATED PROTECTIVE ORDER CV11-09517 ODW(RZX) 1 any such request or requirement so that the Producing Party may seek a protective 2 order or other appropriate remedy and/or waive compliance with the provisions of 3 this Protective Order, provided, however, that nothing in this Protective Order shall 4 be interpreted to obligate the Receiving Party to seek such a protective order or 5 other remedy. Unless the Producing Party waives the protections of this Protective 6 Order, the Receiving Party will not disclose any Confidential Information except 7 pursuant to the order of a court of competent jurisdiction directing the disclosure of 8 such Confidential Information. 9 10 11 17. (a) Inadvertent Disclosure Consistent with Federal Rule of Civil Procedure 26(b)(5)(B) and Federal 12 Rule of Evidence 502, in the event a Producing Party inadvertently discloses 13 information subject to the attorney-client privilege, attorney work product doctrine, 14 or other applicable privilege or immunity, such inadvertent disclosure shall not 15 constitute or be deemed a waiver or forfeiture of any claim of privilege or work 16 product protection that the Producing Party would otherwise be entitled to assert 17 with respect to the inadvertently disclosed information and its subject matter, 18 provided the Producing Party took reasonable steps to prevent disclosure and also 19 took reasonable steps to rectify the error. The Producing Party shall be deemed to 20 have taken reasonable steps to rectify the error of the disclosure if, within ten (10) 21 calendar days from the date that the inadvertent disclosure was discovered or 22 brought to the attention of the Producing Party, the Producing Party informs the 23 Receiving Party that privileged information has been disclosed, and instructs the 24 Receiving Party to promptly return, destroy, delete, render inaccessible or disable 25 all copies of the inadvertently disclosed documents. 26 (b) Post-Disclosure Actions 27 The Receiving Party must return or destroy the specified documents and all 28 altered or unaltered hard and electronic copies in the Receiving Party’s possession -9- STIPULATED PROTECTIVE ORDER CV11-09517 ODW(RZX) 1 within ten (10) calendar days of the Producing Party’s instruction. The Receiving 2 Party must promptly certify that the documents have been returned or destroyed. 3 The Receiving Party will not be required to return or destroy any CD-ROM or other 4 form of electronic production containing both inadvertently disclosed privileged 5 documents and non-privileged documents until the Producing Party has provided a 6 CD-ROM or other form of electronic production containing all such non-privileged 7 documents. If a Receiving Party discovers clearly privileged documents, the 8 Receiving Party must notify the Producing Party of its receipt of privileged 9 materials within seven (7) calendar days of its discovery, regardless of whether the 10 Receiving Party intends to contest the privilege. The Receiving Party must take 11 reasonable steps to retrieve any privileged information that was disclosed or 12 distributed and prevent any further dissemination of the information. The 13 Receiving Party must also inform the Producing Party, in writing, of all pertinent 14 facts relating to any such disclosures or distributions. 15 If the Receiving Party opposes the asserted claim of privilege or work 16 product protection, the Receiving Party shall, no later than ten (10) calendar days 17 after returning or destroying the information as outlined above, send a Local Rule 18 37-1 letter requesting a discovery conference, and after the Parties’ Conference, 19 promptly serve its portion of a joint stipulation, as contemplated by Local Rule 37- 20 2, on the Producing Party. The Receiving Party shall not use or disclose the 21 information until the claim is resolved. Upon a determination by the Court that the 22 specified information is not protected by the applicable privilege, the Producing 23 Party shall bear the costs of replacing the information into any programs or 24 databases from which it was removed or destroyed. The Producing Party must 25 preserve the information until the claim is resolved. 26 27 28 (c) Notice Notice required in the above subparagraphs must be in writing and must be served on all counsel unless it is an oral notice delivered at a deposition. If the - 10 - STIPULATED PROTECTIVE ORDER CV11-09517 ODW(RZX) 1 notice is delivered orally a deposition, the notifying Party must follow up with a 2 written notice within five (5) business days. All requests and notifications must be 3 specific enough to identify and locate the privileged information. 4 18. In the event anyone shall violate or threaten to violate any terms of this 5 Protective Order, the aggrieved party may immediately apply to the Court to obtain 6 relief, including, without limitation, injunctive relief against such person. The 7 existence, if any, of an adequate remedy at law shall not preclude the applying party 8 from obtaining such relief. 9 19. This Protective Order shall continue to be binding after the conclusion 10 of this litigation except (a) that there shall be no restriction on documents that are 11 used as exhibits in Court (unless such exhibits were filed under seal); and (b) that a 12 party may seek the written permission of the Producing Party or further order of the 13 Court with respect to dissolution or modification of any provision of the Protective 14 Order. The provisions of this Protective Order shall, absent prior written consent of 15 both parties, continue to be binding after the conclusion of this action. The Court 16 expressly retains jurisdiction over this Action for enforcement of the provisions of 17 this Protective Order following the final resolution of the Action. 18 20. Nothing herein shall be deemed to waive any privilege recognized by 19 law, or shall be deemed an admission as to the admissibility in evidence of any 20 facts or documents revealed in the course of disclosure. 21 21. Within sixty (60) days after entry of an order, judgment or decree 22 finally disposing of this Action, all Confidential Information produced or 23 designated and all reproductions thereof, shall be returned to the Producing Party or 24 shall be destroyed, at the option of the Producing Party. In the event that any party 25 chooses to destroy physical objects and documents, such party shall certify in 26 writing within sixty (60) days of the final termination of this litigation that it has 27 undertaken its best efforts to destroy such physical objects and documents, and that 28 such physical objects and documents have been destroyed to the best of its - 11 - STIPULATED PROTECTIVE ORDER CV11-09517 ODW(RZX) 1 knowledge. Notwithstanding anything to the contrary, counsel of record for the 2 parties may retain all pleadings, motion papers, discovery responses, deposition 3 transcripts, deposition and trial exhibits, legal memoranda, correspondence, work 4 product and attorney-client communications that include or are derived from 5 Confidential Information. This Protective Order shall not be interpreted in a 6 manner that would violate any applicable cannons of ethics or codes of professional 7 responsibility. Nothing in this Protective Order shall prohibit or interfere with the 8 ability of counsel for any party, or of experts specially retained for this case, to 9 represent any individual, corporation, or other entity adverse to any party or its 10 11 affiliate(s) in connection with any other matters. 22. This Protective Order is entered into without prejudice to the right of 12 either party to seek relief from, or modification of, this Protective Order or any 13 provisions thereof by properly noticed motion to the Court or to challenge any 14 designation of confidentiality as inappropriate under applicable law. 15 23. This Protective Order may be changed by further order of this Court, 16 and is without prejudice to the rights of a party to move for relief from any of its 17 provisions, or to seek or agree to different or additional protection for any particular 18 material or information. 19 20 21 22 23 24. When serving any subpoena in this Action on a non-party to the Action, a copy of this Protective Order shall be included with the subpoena. 25. This Protective Order shall be binding upon any future party to the Action. 26. This Protective Order may be executed in counterparts, each of which 24 shall be deemed an original, but all of which taken together shall constitute one and 25 the same document. 26 26. This protective order does not govern material submitted in connection 27 with dispositive motions or at trial. If any party desires protection for such 28 material, that party shall apply separately to the judicial officer who will preside at - 12 - STIPULATED PROTECTIVE ORDER CV11-09517 ODW(RZX) 1 those proceedings. 2 3 Dated: May 21_, 2012 By: Hon. Ralph Zarefsky United States Magistrate Judge 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 - 13 - STIPULATED PROTECTIVE ORDER CV11-09517 ODW(RZX) 1 EXHIBIT A 2 UNITED STATES DISTRICT COURT 3 CENTRAL DISTRICT OF CALIFORNIA 4 WESTERN DIVISION 5 6 7 8 11 AGREEMENT TO PROTECT CONFIDENTIAL INFORMATION Plaintiff, 9 10 Case No. CV11-09517 ODW(RZx) U.S. BANK NATIONAL ASSOCIATION, a national association, as securities intermediary for LIMA ACQUISITION LP, v. PHL VARIABLE INSURANCE COMPANY, a Connecticut corporation, Defendant. 12 13 14 15 I, , state that: 16 17 1. I have received a copy of the Stipulated Protective Order Governing 18 the Production and Exchange of Confidential Information (the “Protective 19 Order”) entered in the above-entitled action. 20 21 22 23 24 2. I have carefully read and understand the provisions of the Protective Order. 3. I will comply with and agree to be bound by all of the provisions of the Protective Order. 4. I will hold in confidence, will not disclose to anyone not qualified 25 under the Protective Order, and will use only for purposes of this action, any 26 Confidential Information that is disclosed to me. 27 28 5. I will return all Confidential Information that comes into my possession, and documents or things that I have prepared relating thereto, to -1- STIPULATED PROTECTIVE ORDER CV11-09517 ODW(RZX) 1 counsel for the party by whom I am employed or retained, or to counsel from 2 whom I received the Confidential Information. 3 4 6. I hereby submit to the jurisdiction of this court for the purpose of enforcement of the Protective Order in this action. 5 6 7 Executed on _______________ (Date) ____________________________ (Signature) 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -2- STIPULATED PROTECTIVE ORDER CV11-09517 ODW(RZX)

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