Film Allman, LLC v. New York Marine and General Insurance Company

Filing 42

STIPULATED PROTECTIVE ORDER 39 by Magistrate Judge Karen L. Stevenson. *Refer to Order for details.* (es)

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1 2 3 4 5 6 7 8 9 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA 10 FILM ALLMAN, LLC, a Georgia limited liability company, 11 Plaintiff, 12 vs. 13 NEW YORK MARINE and 14 GENERAL INSURANCE COMPANY, INC., a New York 15 corporation, and DOES 1-10, 16 Defendants. ) ) ) ) ) ) ) ) ) ) ) ) ) ) CASE NO. 2:14-cv-07069-ODW (KLS) STIPULATED PROTECTIVE ORDER 17 18 Pursuant to Rule 26(c) of the Federal Rules of Civil Procedure and 19 based on the parties’ Stipulated Protective Order (“Stipulation”) filed on 20 October 6, 2015, the terms of the protective order to which the parties have 21 agreed are adopted as a protective order of this Court (which generally shall 22 govern the pretrial phase of this action) except to the extent, as set forth 23 below, that those terms have been modified by the Court’s amendment of 24 paragraphs 1, 2, 5, 9, 12, and 18 of the Stipulation. 25 \\ 26 \\ 27 \\ 28 \\ 1 AGREED TERMS OF THE PROTECTIVE ORDER AS ADOPTED 1 AND MODIFIED BY THE COURT1 2 3 1. 4 The parties requested that the Court issue a protective order and they 5 agree that good cause exists for a protective order because it would allow them to 6 exchange privileged and otherwise confidential information in a manner that will 7 ensure that it maintains its privileged status and will not be filed in the public 8 record without appropriate protections. The parties further agree that good cause 9 for such an order exists because, in the absence of a protective order in this action, 10 the parties may not be able to obtain relevant information and documents from 11 third-parties who are subject to confidentiality agreements entered in and/or 12 protective orders issued in other actions. The request was made on the grounds 13 that: a. 14 The First Amended Complaint asserts claims relating to several 15 insurance claims that Plaintiff submitted to Defendant relating to third-party claims 16 filed against Plaintiff (the “underlying claims”). Various documents and other 17 information relevant to the issues in those underlying claims involve and/or relate 18 to information protected by the attorney-client privilege and work product 19 doctrines with respect to parties asserting the underlying claims and others, but, 20 because of the tri-partite relationship between an insurer, defense counsel, and an 21 insured, that may not be privileged with respect to the parties to this action; and b. Defendant recently took the deposition of a third-party who 22 23 advised the parties that certain information and documents potentially relevant to 24 this action are subject to a confidentiality agreement and/or protective order in a 25 separate action previously filed against Plaintiff and, therefore, the third-party 26 1 The Court’s generally indicated in 27 bold typeface, additions to the agreed terms of the Protective Order are the text being deleted. and the Court’s deletions are indicated by lines through 28 2 1 could not provide that information unless it were produced pursuant to an equally 2 strong protective order entered in this action. 3 2. The terms of the stipulated protective order requested by the parties 4 here shall govern the production, use and dissemination by all parties to this action 5 of: (1) any “Confidential Information” produced by a party during discovery in 6 this action; (2) any “Confidential Information” produced by a third-party witness 7 during discovery in this action; and (3) any “Confidential Information” produced 8 to or received by any consulting and/or expert witnesses during discovery in this 9 action. 10 3. For purposes of this protective order, “Confidential Information” 11 means information of any type, kind or character that is designated as 12 “Confidential” and/or “Attorneys’ Eyes Only” by the producing or receiving 13 parties, including any third party (“Designating Party” or “Designating Parties”), 14 whether it be a document, information contained in a document, information 15 revealed during a deposition, information revealed in a written discovery response 16 or otherwise. 17 4. Any person may designate as “Confidential Information” any material 18 produced in the course of discovery proceedings only when: (1) such designating 19 person in good faith believes that such material contains information that is 20 privileged under the attorney-client privilege and/or work product doctrines as set 21 forth in Paragraph 1(a); or (2) such designating person in good faith believes that 22 such material contains information that is subject to a confidentiality agreement 23 entered and/or protective order issued in another action. A Designating Party will 24 make only such designation as to that information that it in good faith believes 25 contains Confidential Information. If any party objects to the designation of 26 discovery material as Confidential and the objection cannot be resolved by 27 agreement of counsel, the discovery material shall be treated as designated and 28 subject to this protective order unless otherwise ordered by the Court upon motion 3 1 made by the objecting party in accordance with the provisions of Local Rules 37-1, 2 et seq. The Designating Party shall bear the burden of proof on any such motion. 3 5. Any person may also designate as “CONFIDENTIAL – 4 ATTORNEYS’ EYES ONLY” any material produced in the course of discovery 5 proceedings herein when such designating person in good faith believes that such 6 material is subject to a similar “Attorneys’ Eyes Only” provision set forth in a 7 protective order issued in another action. Any material designated as 8 “CONFIDENTIAL – ATTORNEYS’ EYES ONLY” shall be treated as if it were 9 Confidential Information and receive all the protections otherwise afforded to 10 Confidential Information under the terms of this order. In addition to such 11 protections, material designated as “CONFIDENTIAL – ATTORNEYS’ EYES 12 ONLY” shall not be disclosed by the recipient to anyone other than the attorneys 13 of record in this action, the court and court personnel, the paralegals and staff of 14 the attorneys of record in this action, and any consulting or testifying experts 15 retained by the parties and whose engagement might require review of such 16 material. If a Designating Party designates any material as “CONFIDENTIAL – 17 ATTORNEYS’ EYES ONLY” as described above, any other party may challenge 18 such designation if they have a reasonable basis for doing so. If such designation is 19 challenged, the Designating Party shall have the burden of demonstrating that such 20 designation is necessary to protect an important privacy interest that is not 21 otherwise protected by the documents designation as “Confidential.” 22 6. However, nothing shall be regarded as Confidential Information or 23 “CONFIDENTIAL – ATTORNEYS’ EYES ONLY” if it is information that: a. Is in the public domain at the time of designation, including, 24 25 26 without limitation, as evidenced by a written document; b. Becomes part of the public domain through no fault of any 27 party receiving the Confidential Information, including, without limitation, 28 as evidenced by a written document; or 4 c. 1 Any party receiving the Confidential Information lawfully 2 receives such information at a later date from a third party without 3 restriction as to disclosure, provided such third party has the right to make 4 the disclosure to the receiving party. 5 7. This order is intended to provide a mechanism by which any party 6 may elect to provide information regarded as confidential. Nothing herein shall be 7 construed as requiring any party to produce information regarded as confidential 8 and any party may elect (in lieu of or in addition to utilizing the terms of this order) 9 to object to the production of any confidential information or to exercise any other 10 appropriate remedies with respect to a request for production of such information. 8. Nothing herein shall: (1) preclude a producing party from seeking 11 12 and obtaining, on an appropriate showing, such additional protection with respect 13 to the confidentiality of documents or information as it may deem appropriate; (2) 14 preclude any party from objecting to the discoverability of any documents or 15 information on appropriate grounds; (3) preclude any party from objecting to the 16 admissibility of any documents or information; (4) limit a party’s use of its own 17 documents or any documents obtained outside the discovery process in this action; 18 or (5) limit a party’s use of public information. 19 9. Any Confidential Information produced that is not marked 20 “ATTORNEYS’ EYES ONLY” by a party or third-party witness shall be 21 disclosed only to: (a) the Court and its personnel under seal, pursuant to the 22 procedures mandated by Local Rule 79-5.1 and the Court’s procedures; (b) the 23 parties and their respective outside counsel of record (including support staff as 24 reasonably necessary); (c) outside stenographic court reporters and language 25 translators (including support staff as reasonably necessary), and (d) the additional 26 individuals listed in items (i) through (vii) below, provided that such additional 27 individuals have read this Protective Order and signed an Undertaking in the form 28 attached hereto as Exhibit 1, which shall be retained in the files of outside 5 1 counsel: 2 (i) in-house attorneys (including support staff as reasonably necessary) of 3 the parties who are responsible for and/or are working directly in 4 defense of this action. 5 (ii) corporate representatives of the parties (i.e., the officers, directors, or 6 employees of the parties) who have been charged with the 7 responsibility for making business decisions dealing directly with the 8 litigation of this action); 9 (iii) technical personnel of each side who needs to be consulted by outside 10 counsel, in the discretion of such counsel, in preparation for 11 proceedings in this action; 12 (iv) outside experts and outside consultants retained in this action; 13 (v) a deponent or other witness in this action who authored, received or 14 saw a document or thing marked “CONFIDENTIAL,” or who is 15 otherwise familiar with the Confidential Information, but only to the 16 extent of the person’s familiarity with the Confidential Information; 17 (vi) paralegals, stenographic, clerical employees and translators associated 18 with the individuals enumerated in (i)- (v) above, but only as party of 19 a disclosure to said individuals in accordance with this Protective 20 Order; and 21 (vii) such other individuals as the parties may stipulate or as may be 22 ordered by the Court . 10. Confidential Information shall be revealed by the parties only to the 23 24 persons permitted access to it pursuant to paragraph 9 above and shall not be 25 disclosed by any party to persons other than those specified in paragraph 9. All 26 Confidential Information shall be used by the parties solely for the purposes of this 27 action. 28 6 USE OF CONFIDENTIAL INFORMATION AT DEPOSITIONS 1 2 3 11. Confidential Information shall be used in deposition only in a manner 4 calculated to preserve the confidentiality of such documents or information and in 5 accordance with the following procedures: 6 a. which Confidential Information is used or discussed; 7 8 This order shall be made an exhibit to any deposition during b. If any Confidential Information is to be marked as an exhibit, such 9 exhibit shall be marked “CONFIDENTIAL 10 INFORMATION – SUBJECT TO PROTECTIVE ORDER” by 11 the Court Reporter and attached under seal; 12 c. If any document designated as “CONFIDENTIAL – 13 ATTORNEYS’ EYES ONLY” is marked as an exhibit, all such 14 documents shall be separately compiled by the Court reporter 15 and shall be delivered to counsel in a separately bound volume 16 marked “EXHIBITS - CONFIDENTIAL – ATTORNEYS’ 17 EYES ONLY”; 18 d. Unless permission is elsewhere granted in this order, no 19 deponent shall be permitted to retain copies of Confidential 20 Information; 21 e. Unless otherwise agreed by counsel at the time a deposition is 22 taken, deposition testimony and transcripts shall be treated as 23 though designated Confidential in their entirety until the 24 expiration of 30 days after receipt of the transcript, by which 25 time specific designations, if any, must be made; 26 f. Any Court Reporter or other person taking or preparing 27 transcripts of any deposition during which Confidential 28 Information was introduced or disclosed shall be advised of the 7 terms of this order and agree to be bound thereby. 1 2 FILING OF CONFIDENTIAL INFORMATION 3 4 5 12. Any pleadings, motions, briefs, declarations, stipulations, exhibits or 6 other written submissions to the Court in this litigation that contain, reflect, 7 incorporate or refer to any discovery material that has been designated as 8 “Confidential” or “ATTORNEYS’ EYES ONLY” shall be submitted for filing 9 with an application, in accordance with the requirements of Local Rule 79-5 10 and the presiding judge’s separate provisions, that provides the requisite 11 showing, based on competent evidence, of “good cause” or “compelling 12 reasons,” for a Court order to seal. The party seeking to file the unredacted 13 discovery material designated as “Confidential” or “ATTORNEYS’ EYES 14 ONLY” shall submit an application, along with a proposed order, seeking the 15 Court’s permission to file the documents containing the discovery material under 16 seal in accordance with the foregoing provisions. 13. Should a need arise during the trial or any hearing before the Court for 17 18 a party to cause Confidential Information to be disclosed, it may do so only after 19 appropriate in camera inspection or other safeguards are requested of the Court or 20 are otherwise ordered by the Court. 14. This protective order is without prejudice to the right of any party or 21 22 third-party witness to move for an order further restricting disclosure or use of any 23 Confidential Information. 24 15. In the event of any accidental or inadvertent disclosure of Confidential 25 Information by a party other than in a manner authorized by this protective order, 26 counsel shall immediately notify opposing counsel of all of the pertinent facts and 27 make every effort to further prevent unauthorized disclosure including, retrieving 28 all copies of Confidential Information from the recipients thereof and securing the 8 1 agreement of those recipients not to further disseminate the Confidential 2 Information in any form. Compliance with the foregoing shall not prevent a party 3 from seeking further relief from the Court. Inadvertent production of material 4 subject to the attorney-client privilege, work product immunity or other applicable 5 privilege or immunity shall not constitute waiver of any privilege or immunity 6 provided that the producing party notifies the receiving party in writing promptly 7 after discovery of such inadvertent production. Such inadvertently produced 8 material shall be returned to the producing party upon request. No use shall be 9 made of such material during deposition or at trial, nor shall such material be 10 shown to anyone who has not already been given access to it subsequent to the 11 request for its return. 16. The parties shall maintain any Confidential Information in a secure 12 13 and safe place and exercise at least the same degree of care in handling the 14 Confidential Information as is exercised by a party with respect to its own 15 confidential information of a similar nature, but in no event less than due care. 17. This protective order is valid throughout the course of this action 16 17 (defined to include all proceedings herein, appeals and/or remands) and shall 18 survive the termination of the action. Upon final termination of the action, all 19 copies of documents containing Confidential Information shall be destroyed within 20 sixty (60) days, with the exception of one archival copy of pleadings, 21 correspondence, work product, discovery responses, depositions, deposition 22 exhibits, Court exhibits and documents included in submissions to the Court that 23 may be retained by outside counsel. 18. This protective order shall not prevent either party from moving for an 24 25 order that Confidential Information is not, in fact, confidential, provided that, prior 26 to making such a motion, the parties shall meet and confer to attempt to resolve 27 any differences over the designation. On such a motion, the party asserting 28 confidentiality shall bear the burden and expense of proving that the Confidential 9 1 Information in question is protected under Fed. R. Civ. P. 26(c) or on some other 2 basis or, as the case may be, is necessary under the circumstances. A party shall 3 not be obligated to challenge the propriety of a designation of Confidential 4 Information at the time made, and failure to do so shall not preclude subsequent 5 challenge. 19. 6 Nothing in this protective order shall preclude either party from 7 disclosing or using, in any manner or for any purpose, any information that either 8 was lawfully in its possession prior to being designated Confidential Information in 9 this action or was obtained from a third party having the apparent right to disclose 10 such information. 11 20. This protective order does not create any contractual obligations 12 between the parties. 13 14 IT IS SO ORDERED: 15 16 Dated: October 20, 2015 17 18 19 20 ________________________________________ KAREN L. STEVENSON UNITED STATES MAGISTRATE JUDGE 21 22 23 24 25 26 27 28 10 1 “EXHIBIT 1” 2 3 UNITED STATES DISTRICT COURT 4 CENTRAL DISTRICT OF CALIFORNIA 5 6 FILM ALLMAN, LLC, a Georgia 7 limited liability company, Plaintiff, 8 9 vs. 10 NEW YORK MARINE and GENERAL INSURANCE INC., a New York 11 COMPANY,and DOES 1-10, corporation, 12 Defendants. 13 ) ) ) ) ) ) ) ) ) ) ) ) ) ) CASE NO. 2:14-cv-07069-ODW-RZ CONFIDENTIALITY AGREEMENT PURSUANT TO A PROTECTIVE ORDER 14 15 16 I am authorized by _______________ [party name] to review Confidential 17 Information as that term is used in the Protective Order dated ______________, 18 2015, and hereby request access to that Confidential Information for use in this 19 litigation. 20 I have been provided with a copy of the Protective Order dated 21 ___________, 2015 in the above-captioned proceeding. I have read that Protective 22 Order and hereby agree to be bound by all of the limitations regarding disclosure 23 of Confidential Information in that Protective Order. 24 I understand that failure to comply with the terms of that Protective Order 25 may be punishable by contempt of Court and may result in civil liability to any 26 party or person damaged thereby. 27 I consent to the United States District Court for the Central District of 28 California exercising jurisdiction over me for the purpose of enforcing that 11 1 Protective Order or for any contempt proceedings against me arising out of my 2 failure to comply with the terms of that Protective Order. 3 4 Dated: October ___, 2015. 5 6 7 Signature of Person Requesting Access to Confidential Information 8 9 10 Typed Name of Person Requesting Access to Confidential Information 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 12

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