XL Specialty Insurance Company et al v. A.P. Moller-Maersk A/S et al

Filing 28

AMENDED PROTECTIVE ORDER by Magistrate Judge Alka Sagar. re Amended Stipulation for Protective Order 27 . (afe)

JOSHUA E. KIRSCH (179110)
GIBSON ROBB & LINDH LLP
2 201 Mission Street, Suite 2700
San Francisco, California 94105
3 Telephone: [phone]
Facsimile: [phone]
4 Email:
[e-mail]
1

Attorneys for Plaintiff
XL SPECIALTY INSURANCE
6 COMPANY
5

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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)
XL SPECIALTY INSURANCE
COMPANY, a Delaware corporation, )
)
)
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Plaintiff,
)
)
)
v.
)
)
A.P. MOLLER-MAERSK A/S,
)
trading as MAERSK LINE, a foreign )
corporation; MAERSK LINE,
)
LIMITED, a corporation; and
)
MAERSK INC., a corporation,
)
)
)
Defendants.
)
)
)

Case No. CV14-0427-CAS (Asx)
[PROPOSED] AMENDED
PROTECTIVE ORDER
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1.

PURPOSES AND LIMITATIONS
Disclosure and discovery activity in this litigation are likely to involve

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production of confidential, proprietary, or private information for which special

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protection from public disclosure and from use for any purpose other than

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prosecuting this litigation may be warranted. Accordingly, for good cause the

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parties hereby stipulate to and petition the court to enter the following Stipulated

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Protective Order. The parties acknowledge that this Order does not confer blanket
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protections on all disclosures or responses to discovery and that the protection it

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affords from public disclosure and use extends only to the limited information or

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items that are entitled to confidential treatment under the applicable legal

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principles.

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2.

2.1

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2.2

"CONFIDENTIAL" Information or Items: information (regardless of

how it is generated, stored or maintained) or tangible things that qualify for
protection under Federal Rule of Civil Procedure 26(c).
2.3

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Challenging Party: a Party or Non-Party that challenges the

designation of information or items under this Order.

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DEFINITIONS

Counsel (without qualifier): Outside Counsel of Record and House

Counsel (as well as their support staff).
2.4

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Designating Party: a Party or Non-Party that designates information

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or items that it produces in disclosures or in responses to discovery as

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"CONFIDENTIAL."
2.5

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Disclosure or Discovery Material: all items or information, regardless

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of the medium or manner in which it is generated, stored, or maintained (including,

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among other things, testimony, transcripts, and tangible things), that are produced

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or generated in disclosures or responses to discovery in this matter.
2.6

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Expert: a person with specialized knowledge or experience in a

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matter pertinent to the litigation who has been retained by a Party or its counsel to

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serve as an expert witness or as a consultant in this litigation.
2.7

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House Counsel: attorneys who are employees of a party to this

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litigation. House Counsel does not include Outside Counsel of Record or any other

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outside counsel.

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2.8

Non-Party: any natural person, partnership, corporation, association,

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or other legal entity not named as a Party to this litigation.

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///
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2.9

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Outside Counsel of Record: attorneys (as well as their support staff)

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who are not employees of a party to this litigation but are retained to represent or

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advise a party to this litigation and have appeared in this litigation on behalf of that

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party or are affiliated with a law firm which has appeared on behalf of that party.

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2.10 Party: any party to this litigation, including all of its officers,

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directors, employees, consultants, retained experts, and Outside Counsel of Record

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(and their support staffs).
2.11 Producing Party: a Party or Non-Party that produces Disclosure or

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Discovery Material in this litigation.

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2.12 Professional Vendors: persons or entities that provide litigation

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support services (e.g., photocopying, videotaping, translating, preparing exhibits or

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demonstrations, and organizing, storing, or retrieving data in any form or medium)

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and their employees and subcontractors.
2.13 Protected Material: any Disclosure or Discovery Material that is

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designated as "CONFIDENTIAL." The specific document covered by this

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protective order is a "Sales and Purchase Agreement" dated November 1, 2010,

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and any similar materials that may contain commercially sensitive information.
2.14 Receiving Party: a Party that receives Disclosure or Discovery

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Material from a Producing Party.

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3.

SCOPE

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The protections conferred by this Stipulation and Order cover not only

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Protected Material (as defined above), but also (1) any information copied or

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extracted from Protected Material; (2) all copies, excerpts, summaries, or

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compilations of Protected Material; and (3) any testimony, conversations, or

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presentations by Parties or their Counsel that might reveal Protected Material.

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However, the protections conferred by this Stipulation and Order do not cover the

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following information: (a) any information that is in the public domain at the time

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of disclosure to a Receiving Party or becomes part of the public domain after its
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disclosure to a Receiving Party as a result of publication not involving a violation

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of this Order, including becoming part of the public record through trial or

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otherwise; and (b) any information known to the Receiving Party prior to the

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disclosure or obtained by the Receiving Party after the disclosure from a source

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who obtained the information lawfully and under no obligation of confidentiality to

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the Designating Party. Any use of Protected Material at trial shall be governed by

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the trial judge's orders.

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4.

DURATION
Even after final disposition of this litigation, the confidentiality obligations

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imposed by this Order shall remain in effect until a Designating Party agrees

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otherwise in writing or a court order otherwise directs. Final disposition shall be

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deemed to be the later of (1) dismissal of all claims and defenses in this litigation,

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with or without prejudice; and (2) final judgment herein after the completion and

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exhaustion of all appeals, rehearings, remands, trials, or reviews of this litigation,

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including the time limits for filing any motions or applications for extension of

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time pursuant to applicable law.

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5.

DESIGNATING PROTECTED MATERIAL

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5.1

Exercise of Restraint and Care in Designating Material for Protection.

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Each Party or Non-Party that designates information or items for protection

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under this Order must take care to limit any such designation to specific material

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that qualifies under the appropriate standards. The Designating Party must

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designate for protection only those parts of material, documents, items, or oral or

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written communications that qualify - so that other portions of the material,

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documents, items, or communications for which protection is not warranted are not

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swept unjustifiably within the ambit of this Order.

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Mass, indiscriminate, or routinized designations are prohibited. Designations

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that are shown to be clearly unjustified or that have been made for an improper

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purpose (e.g., to unnecessarily encumber or retard the case development process or
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to impose unnecessary expenses and burdens on other parties) may expose the

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Designating Party to sanctions.

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If it comes to a Designating Party's attention that information or items that it

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designated for protection do not qualify for protection, that Designating Party must

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promptly notify all other Parties that it is withdrawing the mistaken designation.

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5.2

Manner and Timing of Designations.

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Except as otherwise provided in this Order (see, e.g., second paragraph of

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section 5.2(a) below), or as otherwise stipulated or ordered, Disclosure or

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Discovery Material that qualifies for protection under this Order must be clearly so

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designated before the material is disclosed or produced.
Designation in conformity with this Order requires:
(a) for information in documentary form (e.g., paper or electronic

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documents, but excluding transcripts of depositions or other pretrial or trial

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proceedings), that the Producing Party affix the legend "CONFIDENTIAL" to each

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page that contains protected material. If only a portion or portions of the material

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on a page qualifies for protection, the Producing Party also must clearly identify

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the protected portion(s) (e.g., by making appropriate markings in the margins). A

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Party or Non-Party that makes original documents or materials available for

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inspection need not designate them for protection until after the inspecting Party

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has indicated which material it would like copied and produced. During the

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inspection and before the designation, all of the material made available for

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inspection shall be deemed "CONFIDENTIAL." After the inspecting Party has

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identified the documents it wants copied and produced, the Producing Party must

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determine which documents, or portions thereof, qualify for protection under this

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Order. Then, before producing the specified documents, the Producing Party must

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affix the "CONFIDENTIAL" legend to each page that contains Protected Material.

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If only a portion or portions of the material on a page qualifies for protection, the

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Producing Party also must clearly identify the protected portion(s) (e.g., by making
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appropriate markings in the margins).
(b) for testimony given in deposition or in discovery proceedings, that

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the Designating Party identify on the record, before the close of the deposition,

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hearing, or other proceeding, all protected testimony.
(c) for information produced in some form other than documentary

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and for any other tangible items, that the Producing Party affix in a prominent

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place on the exterior of the container or containers in which the information or item

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is stored the legend "CONFIDENTIAL." If only a portion or portions of the

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information or item warrant protection, the Producing Party, to the extent

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practicable, shall identify the protected portion(s).

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5.3

Inadvertent Failures to Designate.

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If timely corrected, an inadvertent failure to designate qualified information

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or items does not, standing alone, waive the Designating Party's right to secure

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protection under this Order for such material. Upon timely correction of a

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designation, the Receiving Party must make reasonable efforts to assure that the

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material is treated in accordance with the provisions of this Order.

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6.

CHALLENGING CONFIDENTIALITY DESIGNATIONS

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6.1

Timing of Challenges.

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Any Party or Non-Party may challenge a designation of confidentiality at

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any time during discovery proceedings. All challenges must be consistent with the

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Court's scheduling, pretrial, and other orders. Unless a prompt challenge to a

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Designating Party's confidentiality designation is necessary to avoid foreseeable,

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substantial unfairness, unnecessary economic burdens, or a significant disruption

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or delay of the litigation, a Party does not waive its right to challenge a

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confidentiality designation by electing not to mount a challenge promptly after the

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original designation is disclosed.

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6.2

Meet and Confer.

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The parties shall comply with Local Rule 37-1. The Challenging Party shall
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initiate the dispute resolution process by providing written notice of each

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designation it is challenging and describing the basis for each challenge. To avoid

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ambiguity as to whether a challenge has been made, the written notice must recite

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that the challenge to confidentiality is being made in accordance with this specific

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paragraph of the Protective Order. The parties shall attempt to resolve each

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challenge in good faith and must begin the process by conferring directly (in voice

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to voice dialogue; other forms of communication are not sufficient) within 14 days

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of the date of service of notice. In conferring, the Challenging Party must explain

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the basis for its belief that the confidentiality designation was not proper and must

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give the Designating Party an opportunity to review the designated material, to

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reconsider the circumstances, and, if no change in designation is offered, to explain

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the basis for the chosen designation. A Challenging Party may proceed to the next

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stage of the challenge process only if it has engaged in this meet and confer

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process first or establishes that the Designating Party is unwilling to participate in

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the meet and confer process in a timely manner.

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6.3

Judicial Intervention.

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If the Parties cannot resolve a challenge without court intervention, the

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Designating Party shall file and serve a motion to retain confidentiality under Civil

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Local Rule 7 (and in compliance with Civil Local Rule 79-5, if applicable) within

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21 days of the initial notice of challenge or within 14 days of the parties agreeing

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that the meet and confer process will not resolve their dispute, whichever is earlier.

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Each such motion must be accompanied by a competent declaration affirming that

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the movant has complied with the meet and confer requirements imposed in the

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preceding paragraph. Failure by the Designating Party to make such a motion

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including the required declaration within 21 days (or 14 days, if applicable) shall

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automatically waive the confidentiality designation for each challenged

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designation. In addition, the Challenging Party may file a motion challenging a

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confidentiality designation at any time if there is good cause for doing so,
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including a challenge to the designation of a deposition transcript or any portions

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thereof. Any motion brought pursuant to this provision must be accompanied by a

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competent declaration affirming that the movant has complied with the meet and

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confer requirements imposed by the preceding paragraph.

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The burden of persuasion in any such challenge proceeding shall be on the

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Designating Party. Frivolous challenges, and those made for an improper purpose

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(e.g., to harass or impose unnecessary expenses and burdens on other parties) may

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expose the Challenging Party to sanctions. Unless the Designating Party has

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waived the confidentiality designation by failing to file a motion to retain

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confidentiality as described above, all parties shall continue to afford the material

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in question the level of protection to which it is entitled under the Producing

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Party's designation until the court rules on the challenge.

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7.

ACCESS TO AND USE OF PROTECTED MATERIAL

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7.1

Basic Principles.

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A Receiving Party may use Protected Material that is disclosed or produced

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by another Party or by a Non-Party in connection with this case only for

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prosecuting, defending, or attempting to settle this litigation. Such Protected

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Material may be disclosed only to the categories of persons and under the

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conditions described in this Order. When the litigation has been terminated, a

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Receiving Party must comply with the provisions of section 13 below (FINAL

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DISPOSITION).

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Protected Material must be stored and maintained by a Receiving Party at a

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location and in a secure manner that ensures that access is limited to the persons

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authorized under this Order.

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Notwithstanding the above, the Parties expressly acknowledge that it may be

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necessary for a Receiving Party to use Protected Material in foreign proceedings,

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including London arbitration proceedings, and the parties agree that the terms of

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this protective order shall govern the Protected Materials in such foreign
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proceedings, even where this Court lacks jurisdiction to enforce this protective

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order.

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7.2

Disclosure of "CONFIDENTIAL" Information or Items.

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Unless otherwise ordered by the court or permitted in writing by the

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Designating Party, a Receiving Party may disclose any information or item

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designated "CONFIDENTIAL" only to:
(a) the Receiving Party's Outside Counsel of Record in this litigation,

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as well as employees of said Outside Counsel of Record to whom it is reasonably

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necessary to disclose the information for this litigation and who have signed the

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"Acknowledgment and Agreement to Be Bound" that is attached hereto as Exhibit

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A;
(b) the officers, directors, and employees (including House Counsel)

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of the Receiving Party to whom disclosure is reasonably necessary for this

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litigation and who have signed the "Acknowledgment and Agreement to Be

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Bound" (Exhibit A);
(c) Experts (as defined in this Order) of the Receiving Party to whom

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disclosure is reasonably necessary for this litigation and who have signed the

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"Acknowledgment and Agreement to Be Bound" (Exhibit A);

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(d) the court and its personnel;

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(e) court reporters and their staff;

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(f) professional jury or trial consultants, mock jurors, and

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Professional Vendors to whom disclosure is reasonably necessary for this litigation

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and who have signed the "Acknowledgment and Agreement to Be Bound" (Exhibit

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A);

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(g) during their depositions, witnesses in the litigation to whom

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disclosure is reasonably necessary and who have signed the "Acknowledgment and

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Agreement to Be Bound" (Exhibit A), unless otherwise agreed by the Designating

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Party or ordered by the court. Pages of transcribed deposition testimony or exhibits
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to depositions that reveal Protected Material must be separately bound by the court

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reporter and may not be disclosed to anyone except as permitted under this

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Stipulated Protective Order.

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(h) the author or recipient of a document containing the information

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or a custodian or other person who otherwise possessed or knew the information.

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(i) the Receiving Party's foreign counsel, as well as employees of said

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foreign counsel, to whom it is reasonably necessary to disclose the information for

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use in any foreign proceedings, including London arbitration proceedings; and
(j) the Owners of the vessel M/V MAERSK WESTPORT and/or their

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counsel of record, in any foreign proceedings, including London arbitration

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proceedings, between a Receiving Party and the Owners.

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8.

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PRODUCED IN OTHER LITIGATION

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PROTECTED MATERIAL SUBPOENAED OR ORDERED

If a Party is served with a subpoena or a court order issued in other litigation

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that compels disclosure of any information or items designated in this litigation as

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"CONFIDENTIAL," that Party must:

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(a) promptly notify in writing the Designating Party. Such notification shall
include a copy of the subpoena or court order;

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(b) promptly notify in writing the party who caused the subpoena or order to

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issue in the other litigation that some or all of the material covered by the subpoena

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or order is subject to this Protective Order. Such notification shall include a copy

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of this Stipulated Protective Order; and

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(c) cooperate with respect to all reasonable procedures sought to be pursued

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by the Designating Party whose Protected Material may be affected.

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If the Designating Party timely seeks a protective order, the Party served with the

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subpoena or court order shall not produce any information designated in this

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litigation as "CONFIDENTIAL" before a determination by the court from which

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the subpoena or order issued, unless the Party has obtained the Designating Party's
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permission. The Designating Party shall bear the burden and expense of seeking

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protection in that court of its confidential material - and nothing in these provisions

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should be construed as authorizing or encouraging a Receiving Party in this

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litigation to disobey a lawful directive from another court.

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9.

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PRODUCED IN THIS LITIGATION

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A NON-PARTY'S PROTECTED MATERIAL SOUGHT TO BE

(a) The terms of this Order are applicable to information produced by a

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Non-Party in this litigation and designated as "CONFIDENTIAL." Such

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information produced by Non-Parties in connection with this litigation is protected

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by the remedies and relief provided by this Order. Nothing in these provisions

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should be construed as prohibiting a Non-Party from seeking additional

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protections.

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(b) In the event that a Party is required, by a valid discovery request, to

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produce a Non-Party's confidential information in its possession, and the Party is

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subject to an agreement with the Non-Party not to produce the Non-Party's

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confidential information, then the Party shall:
(1) promptly notify in writing the Requesting Party and the

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Non-Party that some or all of the information requested is subject to a

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confidentiality agreement with a Non-Party;
(2) promptly provide the Non-Party with a copy of the Stipulated

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Protective Order in this litigation, the relevant discovery request(s), and a

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reasonably specific description of the information requested; and
(3) make the information requested available for inspection by the

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Non-Party.
(c) If the Non-Party fails to object or seek a protective order from this court

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within 14 days of receiving the notice and accompanying information, the

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Receiving Party may produce the Non-Party's confidential information responsive

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to the discovery request. If the Non-Party timely seeks a protective order, the
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Receiving Party shall not produce any information in its possession or control that

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is subject to the confidentiality agreement with the Non-Party before a

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determination by the court. Absent a court order to the contrary, the Non-Party

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shall bear the burden and expense of seeking protection in this court of its

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Protected Material.

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10.

UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL

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If a Receiving Party learns that, by inadvertence or otherwise, it has

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disclosed Protected Material to any person or in any circumstance not authorized

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under this Stipulated Protective Order, the Receiving Party must immediately (a)

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notify in writing the Designating Party of the unauthorized disclosures, (b) use its

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best efforts to retrieve all unauthorized copies of the Protected Material, (c) inform

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the person or persons to whom unauthorized disclosures were made of all the terms

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of this Order, and (d) request such person or persons to execute the

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"Acknowledgment and Agreement to Be Bound" that is attached hereto as Exhibit

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A.

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11.

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PROTECTED MATERIAL

INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE

When a Producing Party gives notice to Receiving Parties that certain

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inadvertently produced material is subject to a claim of privilege or other

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protection, the obligations of the Receiving Parties are those set forth in Federal

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Rule of Civil Procedure 26(b)(5)(B). This provision is not intended to modify

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whatever procedure may be established in an e-discovery order that provides for

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production without prior privilege review. Pursuant to Federal Rule of Evidence

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502(d) and (e), insofar as the parties reach an agreement on the effect of disclosure

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of a communication or information covered by the attorney-client privilege or

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work product protection, the parties may incorporate their agreement in the

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stipulated protective order submitted to the court.

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12.

MISCELLANEOUS

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12.1 Right to Further Relief.

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Nothing in this Order abridges the right of any person to seek its

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modification by the court in the future.

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12.2 Right to Assert Other Objections.

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By stipulating to the entry of this Protective Order no Party waives any right

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it otherwise would have to object to disclosing or producing any information or

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item on any ground not addressed in this Stipulated Protective Order. Similarly, no

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Party waives any right to object on any ground to use in evidence of any of the

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material covered by this Protective Order.

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12.3 Filing Protected Material.

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Without written permission from the Designating Party, a Party may not file

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in the public record in this litigation any Protected Material except after following

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with the procedures for filing under seal in compliance with Civil Local Rule 79-5.

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Protected Material may only be filed under seal pursuant to a court order

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authorizing the sealing of the specific Protected Material at issue.

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13.

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FINAL DISPOSITION
Within 60 days after the final disposition of this litigation, as defined in

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paragraph 4, each Receiving Party must return all Protected Material to the

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Producing Party or destroy such material. As used in this subdivision, "all

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Protected Material" includes all copies, abstracts, compilations, summaries, and

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any other format reproducing or capturing any of the Protected Material. Whether

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the Protected Material is returned or destroyed, the Receiving Party must submit a

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written certification to the Producing Party (and, if not the same person or entity, to

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the Designating Party) by the 60 day deadline that (1) identifies (by category,

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where appropriate) all the Protected Material that was returned or destroyed and (2)

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affirms that the Receiving Party has not retained any copies, abstracts,

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compilations, summaries or any other format reproducing or capturing any of the

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Protected Material. Notwithstanding this provision, Counsel are entitled to retain
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an archival copy of all pleadings, motion papers, trial, deposition, and hearing

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transcripts, legal memoranda, correspondence, deposition and trial exhibits, expert

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reports, attorney work product, and consultant and expert work product, even if

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such materials contain Protected Material. Any such archival copies that contain or

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constitute Protected Material remain subject to this Protective Order as set forth in

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Section 4 (DURATION).

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IT IS SO ORDERED.

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August 1
Dated: ____________, 2014

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/s/
_____________________________
Hon. Alka Sagar
United States Magistrate Judge

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EXHIBIT A

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EXHIBIT A

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ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND

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I, _____________________________ [print or type full name], of _________________ [print or

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type full address], declare under penalty of perjury that I have read in its entirety and understand

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the Stipulated Protective Order that was issued by the United States District Court for the Central

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District of California on _____________ [date] in the case of XL Specialty Insurance Co. v. A.P.

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Moller-Maersk, et al., case no. 2:14-cv-00427 CAS-ASx. I agree to comply with and to be bound

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by all the terms of this Stipulated Protective Order and I understand and acknowledge that failure

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to so comply could expose me to sanctions and punishment in the nature of contempt. I solemnly

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promise that I will not disclose in any manner any information or item that is subject to this

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Stipulated Protective Order to any person or entity except in strict compliance with the

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provisions of this Order.

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I further agree to submit to the jurisdiction of the United States District Court for the Central

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District of California for the purpose of enforcing the terms of this Stipulated Protective Order,

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even if such enforcement proceedings occur after termination of this litigation.

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I hereby appoint __________________________ [print or type full name] of

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_______________________________________ [print or type full address and telephone

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number] as my California agent for service of process in connection with this litigation or any

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proceedings related to enforcement of this Stipulated Protective Order.

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Date: ______________________________________

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City and State where sworn and signed: _________________________________

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Printed name: _______________________________

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Signature: __________________________________