John Gregory Brown v. National Life Insurance Company et al

Filing 52

STIPULATED PROTECTIVE ORDER by Magistrate Judge Gail J. Standish re Stipulation for Protective Order 51 . (ec)

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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 CENTRAL DISTRICT OF CALIFORNIA 9 10 Case No. 2:16-cv-02573-DSF-GJS JOHN GREGORY BROWN, 11 (Honorable Dale S. Fischer) Plaintiff, 12 vs. 13 STIPULATED PROTECTIVE ORDER1 NATIONAL LIFE INSURANCE COMPANY; UNUM LIFE INSURANCE COMPANY OF AMERICA; and DOES 1-100, inclusive, 14 15 16 17 Defendants. SEE CHANGES MADE BY THE COURT IN BOLD Complaint Filed: March 10, 2016 18 19 20 1. 21 22 23 24 25 A. PURPOSES AND LIMITATIONS Discovery in this action is likely to involve production of confidential, proprietary or private information for which special protection from public disclosure and from use for any purpose other than prosecuting this litigation may be warranted. Accordingly, the parties hereby stipulate to and petition the Court to enter the following Stipulated Protective Order. The parties acknowledge that this 26 27 1 28 This Stipulated Protective Order is substantially based on the model protective order provided under Magistrate Judge Gail J. Standish’s Procedures. 1 Order does not confer blanket protections on all disclosures or responses to 2 discovery and that the protection it affords from public disclosure and use extends 3 only to the limited information or items that are entitled to confidential treatment 4 under the applicable legal principles. 5 6 B. GOOD CAUSE STATEMENT 7 This action is likely to involve trade secrets and/or other confidential and 8 proprietary materials, such as underwriting guidelines, claims manuals and 9 procedures, employee evaluation criteria, and financial information for which 10 special protection from public disclosure and from use for any purpose other than 11 prosecution of this action is warranted. Such confidential and proprietary materials 12 and information consist of, among other things, confidential business or financial 13 information, information regarding confidential business practices, or other 14 confidential research, development, or commercial information (including 15 information implicating privacy rights of third parties), information otherwise 16 generally unavailable to the public, or which may be privileged or otherwise 17 protected from disclosure under state or federal statutes, court rules, case decisions, 18 or common law. Accordingly, to expedite the flow of information, to facilitate the 19 prompt resolution of disputes over confidentiality of discovery materials, to 20 adequately protect information the parties are entitled to keep confidential, to ensure 21 that the parties are permitted reasonable necessary uses of such material in 22 preparation for and in the conduct of trial, to address their handling at the end of the 23 litigation, and serve the ends of justice, a protective order for such information is 24 justified in this matter. It is the intent of the parties that information will not be 25 designated as confidential for tactical reasons and that nothing be so designated 26 without a good faith belief that it has been maintained in a confidential, non-public 27 manner, and there is good cause why it should not be part of the public record of this 28 case. 2 1 C. ACKNOWLEDGMENT OF PROCEDURE FOR FILING UNDER SEAL 2 The parties further acknowledge, as set forth in Section 12.3, below, that this 3 Stipulated Protective Order does not entitle them to file confidential information 4 under seal; Local Civil Rule 79-5 sets forth the procedures that must be followed 5 and the standards that will be applied when a party seeks permission from the court 6 to file material under seal. 7 There is a strong presumption that the public has a right of access to judicial 8 proceedings and records in civil cases. In connection with non-dispositive motions, 9 good cause must be shown to support a filing under seal. See Kamakana v. City and 10 County of Honolulu, 447 F.3d 1172, 1176 (9th Cir. 2006), Phillips v. Gen. Motors 11 Corp., 307 F.3d 1206, 1210-11 (9th Cir. 2002), Makar-Welbon v. Sony Electrics, 12 Inc., 187 F.R.D. 576, 577 (E.D. Wis. 1999) (even stipulated protective orders 13 require good cause showing), and a specific showing of good cause or compelling 14 reasons with proper evidentiary support and legal justification, must be made with 15 respect to Protected Material that a party seeks to file under seal. The parties’ mere 16 designation of Disclosure or Discovery Material as CONFIDENTIAL does not— 17 without the submission of competent evidence by declaration, establishing that the 18 material sought to be filed under seal qualifies as confidential, privileged, or 19 otherwise protectable—constitute good cause. 20 Further, if a party requests sealing related to a dispositive motion or trial, then 21 compelling reasons, not only good cause, for the sealing must be shown, and the 22 relief sought shall be narrowly tailored to serve the specific interest to be protected. 23 See Pintos v. Pacific Creditors Ass’n, 605 F.3d 665, 677-79 (9th Cir. 2010). For 24 each item or type of information, document, or thing sought to be filed or introduced 25 under seal in connection with a dispositive motion or trial, the party seeking 26 protection must articulate compelling reasons, supported by specific facts and legal 27 justification, for the requested sealing order. Again, competent evidence supporting 28 the application to file documents under seal must be provided by declaration. 3 Any document that is not confidential, privileged, or otherwise protectable in 1 2 its entirety will not be filed under seal if the confidential portions can be redacted. 3 If documents can be redacted, then a redacted version for public viewing, omitting 4 only the confidential, privileged, or otherwise protectable portions of the document, 5 shall be filed. Any application that seeks to file documents under seal in their 6 entirety should include an explanation of why redaction is not feasible. 7 8 2. DEFINITIONS 9 2.1 Action: This pending federal lawsuit. 10 2.2 Challenging Party: a Party or Non-Party that challenges the 11 12 designation of information or items under this Order. 2.3 “CONFIDENTIAL” Information or Items: information (regardless of 13 how it is generated, stored or maintained) or tangible things that qualify for 14 protection under Federal Rule of Civil Procedure 26(c), and as specified above in 15 the Good Cause Statement. 16 17 18 2.4 Counsel: Outside Counsel of Record and House Counsel (as well as their support staff). 2.5 Designating Party: a Party or Non-Party that designates information or 19 items that it produces in disclosures or in responses to discovery as 20 “CONFIDENTIAL.” 21 2.6 Disclosure or Discovery Material: all items or information, regardless 22 of the medium or manner in which it is generated, stored, or maintained (including, 23 among other things, testimony, transcripts, and tangible things), that are produced or 24 generated in disclosures or responses to discovery in this matter. 25 2.7 Expert: a person with specialized knowledge or experience in a matter 26 pertinent to the litigation who has been retained by a Party or its counsel to serve as 27 an expert witness or as a consultant in this Action. 28 2.8 House Counsel: attorneys who are employees of a party to this Action. 4 1 House Counsel does not include Outside Counsel of Record or any other outside 2 counsel. 2.9 3 4 Non-Party: any natural person, partnership, corporation, association or other legal entity not named as a Party to this action. 2.10 Outside Counsel of Record: attorneys who are not employees of a 5 6 party to this Action but are retained to represent or advise a party to this Action and 7 have appeared in this Action on behalf of that party or are affiliated with a law firm 8 that has appeared on behalf of that party, and includes support staff. 2.11 Party: any party to this Action, including all of its officers, directors, 9 10 employees, consultants, retained experts, and Outside Counsel of Record (and their 11 support staffs). 2.12 Producing Party: a Party or Non-Party that produces Disclosure or 12 13 Discovery Material in this Action. 14 2.13 Professional Vendors: persons or entities that provide litigation 15 support services (e.g., photocopying, videotaping, translating, preparing exhibits or 16 demonstrations, and organizing, storing, or retrieving data in any form or medium) 17 and their employees and subcontractors. 2.14 Protected Material: any Disclosure or Discovery Material that is 18 19 designated as “CONFIDENTIAL.” 2.15 Receiving Party: a Party that receives Disclosure or Discovery 20 21 Material from a Producing Party. 22 23 3. SCOPE 24 The protections conferred by this Stipulation and Order cover not only 25 Protected Material (as defined above), but also (1) any information copied or 26 extracted from Protected Material; (2) all copies, excerpts, summaries, or 27 compilations of Protected Material; and (3) any testimony, conversations, or 28 presentations by Parties or their Counsel that might reveal Protected Material. 5 Any use of Protected Material at trial shall be governed by the orders of the 1 2 trial judge. This Order does not govern the use of Protected Material at trial. 3 4 4. DURATION Once this Action proceeds to trial, information that was designated as 5 6 CONFIDENTIAL or maintained pursuant to this protective order used or introduced 7 as an exhibit at trial becomes public and will be presumptively available to all 8 members of the public, including the press, unless compelling reasons supported by 9 specific factual findings to proceed otherwise are made to the trial judge in advance 10 of the trial. See Kamakana, 447 F.3d at 1180-81 (distinguishing “good cause” 11 showing for sealing documents produced in discovery from “compelling reasons” 12 standard when merits-related documents are part of court record). Accordingly, the 13 terms of this protective order do not extend beyond the commencement of the trial. 14 15 16 5. DESIGNATING PROTECTED MATERIAL 5.1 Exercise of Restraint and Care in Designating Material for Protection. 17 Each Party or Non-Party that designates information or items for protection under 18 this Order must take care to limit any such designation to specific material that 19 qualifies under the appropriate standards. The Designating Party must designate for 20 protection only those parts of material, documents, items or oral or written 21 communications that qualify so that other portions of the material, documents, items 22 or communications for which protection is not warranted are not swept unjustifiably 23 within the ambit of this Order. 24 Mass, indiscriminate or routinized designations are prohibited. Designations 25 that are shown to be clearly unjustified or that have been made for an improper 26 purpose (e.g., to unnecessarily encumber the case development process or to impose 27 unnecessary expenses and burdens on other parties) may expose the Designating 28 Party to sanctions. 6 1 If it comes to a Designating Party’s attention that information or items that it 2 designated for protection do not qualify for protection, that Designating Party must 3 promptly notify all other Parties that it is withdrawing the inapplicable designation. 4 5.2 Manner and Timing of Designations. Except as otherwise provided in 5 this Order (see, e.g., second paragraph of section 5.2(a) and section 5.3 below), or as 6 otherwise stipulated or ordered, Disclosure or Discovery Material that qualifies for 7 protection under this Order must be clearly so designated before the material is 8 disclosed or produced. 9 Designation in conformity with this Order requires: 10 (a) for information in documentary form (e.g., paper or electronic 11 documents, but excluding transcripts of depositions or other pretrial or trial 12 proceedings), that the Producing Party affix at a minimum, the legend 13 “CONFIDENTIAL” (hereinafter “CONFIDENTIAL legend”), to each page that 14 contains protected material. If only a portion of the material on a page qualifies for 15 protection, the Producing Party also must clearly identify the protected portion(s) 16 (e.g., by making appropriate markings in the margins). 17 A Party or Non-Party that makes original documents available for inspection 18 need not designate them for protection until after the inspecting Party has indicated 19 which documents it would like copied and produced. During the inspection and 20 before the designation, all of the material made available for inspection shall be 21 deemed “CONFIDENTIAL.” After the inspecting Party has identified the 22 documents it wants copied and produced, the Producing Party must determine which 23 documents, or portions thereof, qualify for protection under this Order. Then, 24 before producing the specified documents, the Producing Party must affix the 25 “CONFIDENTIAL legend” to each page that contains Protected Material. If only a 26 portion of the material on a page qualifies for protection, the Producing Party also 27 must clearly identify the protected portion(s) (e.g., by making appropriate markings 28 in the margins). 7 (b) for testimony given in depositions, that the Designating Party 1 2 identifies the Disclosure or Discovery Material and related testimony on the 3 record, or identifies all such material and protected testimony within twenty 4 (20) days from the completion of the deposition. (c) for information produced in some form other than documentary and 5 6 for any other tangible items, that the Producing Party affix in a prominent place on 7 the exterior of the container or containers in which the information is stored the 8 legend “CONFIDENTIAL.” If only a portion or portions of the information 9 warrant(s) protection, the Producing Party, to the extent practicable, shall identify 10 the protected portion(s). 5.3 11 Inadvertent Failures to Designate. If timely corrected, an inadvertent 12 failure to designate qualified information or items does not, standing alone, waive 13 the Designating Party’s right to secure protection under this Order for such material. 14 Upon timely correction of a designation, the Receiving Party must make reasonable 15 efforts to assure that the material is treated in accordance with the provisions of this 16 Order. 17 18 19 6. CHALLENGING CONFIDENTIALITY DESIGNATIONS 6.1 Timing of Challenges. Any Party or Non-Party may challenge a 20 designation of confidentiality at any time that is consistent with the Court’s 21 Scheduling Order. 22 23 24 6.2 Meet and Confer. The Challenging Party shall initiate the dispute resolution process under Local Rule 37.1 et seq. 6.3 Once a Designating Party has received written notice of a challenge 25 to a designation of “Confidentiality” and the parties have participated in an in- 26 person or telephonic meet and confer conference regarding the challenge, the 27 Parties shall follow the Magistrate Judge’s Procedures for discovery disputes, 28 including the Pre-Discovery Motion conference call procedure set forth on the 8 1 Court’s web page. If the dispute is not resolved and the Designating Party does 2 not file a motion for protective order within 21 days of the telephonic hearing 3 with the Court, the Designating Party shall be deemed to have waived its right 4 to have the challenged documents or information treated as confidential. In the 5 event that the Designating Party files a motion for protective order to maintain 6 the confidential designation of challenged documents or information, the 7 challenged documents and/or information shall retain their confidential 8 treatment pursuant to this Protective Order unless and until the Court 9 determines that it is not entitled to such treatment. 6.4 10 The burden of persuasion in any such challenge proceeding shall be on 11 the Designating Party. Frivolous challenges, and those made for an improper 12 purpose (e.g., to harass or impose unnecessary expenses and burdens on other 13 parties) may expose the Challenging Party to sanctions. Unless the Designating 14 Party has waived or withdrawn the confidentiality designation, all parties shall 15 continue to afford the material in question the level of protection to which it is 16 entitled under the Producing Party’s designation until the Court rules on the 17 challenge. 18 19 20 7. ACCESS TO AND USE OF PROTECTED MATERIAL 7.1 Basic Principles. A Receiving Party may use Protected Material that is 21 disclosed or produced by another Party or by a Non-Party in connection with this 22 Action only for prosecuting, defending or attempting to settle this Action. Such 23 Protected Material may be disclosed only to the categories of persons and under the 24 conditions described in this Order. When the Action has been terminated, a 25 Receiving Party must comply with the provisions of section 13 below (FINAL 26 DISPOSITION). 27 28 Protected Material must be stored and maintained by a Receiving Party at a location and in a secure manner that ensures that access is limited to the persons 9 1 2 authorized under this Order. 7.2 Disclosure of “CONFIDENTIAL” Information or Items. Unless 3 otherwise ordered by the court or permitted in writing by the Designating Party, a 4 Receiving Party may disclose any information or item designated 5 “CONFIDENTIAL” only to: 6 (a) the Receiving Party’s Outside Counsel of Record in this Action, as 7 well as employees of said Outside Counsel of Record to whom it is reasonably 8 necessary to disclose the information for this Action; 9 (b) the officers, directors, and employees (including House Counsel) of 10 the Receiving Party to whom disclosure is reasonably necessary for this Action; 11 (c) Experts (as defined in this Order) of the Receiving Party to whom 12 disclosure is reasonably necessary for this Action and who have signed the 13 “Acknowledgment and Agreement to Be Bound” (Exhibit A); 14 (d) the court and its personnel; 15 (e) court reporters and their staff; 16 (f) professional jury or trial consultants, mock jurors, and Professional 17 Vendors to whom disclosure is reasonably necessary for this Action and who have 18 signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A); 19 20 (g) the author or recipient of a document containing the information or a custodian or other person who otherwise possessed or knew the information; 21 (h) during their depositions, witnesses, and attorneys for witnesses, in the 22 Action to whom disclosure is reasonably necessary provided: (1) the deposing party 23 requests that the witness sign the form attached as Exhibit 1 hereto; and (2) they will 24 not be permitted to keep any confidential information unless they sign the 25 “Acknowledgment and Agreement to Be Bound” (Exhibit A), unless otherwise 26 agreed by the Designating Party or ordered by the court. Pages of transcribed 27 deposition testimony or exhibits to depositions that reveal Protected Material may 28 be separately bound by the court reporter and may not be disclosed to anyone except 10 1 as permitted under this Stipulated Protective Order; and (i) any mediator or settlement officer, and their supporting personnel, 2 3 mutually agreed upon by any of the parties engaged in settlement discussions. 4 5 8. PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED 6 IN OTHER LITIGATION 7 If a Party is served with a subpoena or a court order issued in other litigation 8 that compels disclosure of any information or items designated in this Action as 9 “CONFIDENTIAL,” that Party must: (a) promptly notify in writing the Designating Party. Such notification 10 11 shall include a copy of the subpoena or court order; (b) promptly notify in writing the party who caused the subpoena or order 12 13 to issue in the other litigation that some or all of the material covered by the 14 subpoena or order is subject to this Protective Order. Such notification shall include 15 a copy of this Stipulated Protective Order; and (c) cooperate with respect to all reasonable procedures sought to be 16 17 pursued by the Designating Party whose Protected Material may be affected. If the Designating Party timely seeks a protective order, the Party served with 18 19 the subpoena or court order shall not produce any information designated in this 20 action as “CONFIDENTIAL” before a determination by the court from which the 21 subpoena or order issued, unless the Party has obtained the Designating Party’s 22 permission. The Designating Party shall bear the burden and expense of seeking 23 protection in that court of its confidential material and nothing in these provisions 24 should be construed as authorizing or encouraging a Receiving Party in this Action 25 to disobey a lawful directive from another court. 26 // 27 // 28 // 11 1 2 3 9. A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE PRODUCED IN THIS LITIGATION (a) The terms of this Order are applicable to information produced by a 4 Non-Party in this Action and designated as “CONFIDENTIAL.” Such information 5 produced by Non-Parties in connection with this litigation is protected by the 6 remedies and relief provided by this Order. Nothing in these provisions should be 7 construed as prohibiting a Non-Party from seeking additional protections. 8 (b) In the event that a Party is required, by a valid discovery request, to 9 produce a Non-Party’s confidential information in its possession, and the Party is 10 subject to an agreement with the Non-Party not to produce the Non-Party’s 11 confidential information, then the Party shall: 12 (1) promptly notify in writing the Requesting Party and the Non-Party 13 that some or all of the information requested is subject to a confidentiality 14 agreement with a Non-Party; 15 (2) promptly provide the Non-Party with a copy of the Stipulated 16 Protective Order in this Action, the relevant discovery request(s), and a reasonably 17 specific description of the information requested; and 18 19 (3) make the information requested available for inspection by the Non-Party, if requested. 20 (c) If the Non-Party fails to seek a protective order from this court within 21 14 days of receiving the notice and accompanying information, the Receiving Party 22 may produce the Non-Party’s confidential information responsive to the discovery 23 request. If the Non-Party timely seeks a protective order, the Receiving Party shall 24 not produce any information in its possession or control that is subject to the 25 confidentiality agreement with the Non-Party before a determination by the court. 26 Absent a court order to the contrary, the Non-Party shall bear the burden and 27 expense of seeking protection in this court of its Protected Material. 28 12 1 10. UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL 2 If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed 3 Protected Material to any person or in any circumstance not authorized under this 4 Stipulated Protective Order, the Receiving Party must immediately (a) notify in 5 writing the Designating Party of the unauthorized disclosures, (b) use its best efforts 6 to retrieve all unauthorized copies of the Protected Material, (c) inform the person or 7 persons to whom unauthorized disclosures were made of all the terms of this Order, 8 and (d) request such person or persons to execute the “Acknowledgment and 9 Agreement to Be Bound” that is attached hereto as Exhibit A. 10 11 11. INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE 12 PROTECTED MATERIAL 13 When a Producing Party gives notice to Receiving Parties that certain 14 inadvertently produced material is subject to a claim of privilege or other protection, 15 the obligations of the Receiving Parties are those set forth in Federal Rule of Civil 16 Procedure 26(b)(5)(B). This provision is not intended to modify whatever 17 procedure may be established in an e-discovery order that provides for production 18 without prior privilege review. 19 20 21 22 23 12. MISCELLANEOUS 12.1 Right to Further Relief. Nothing in this Order abridges the right of any person to seek its modification by the Court in the future. 12.2 Right to Assert Other Objections. By stipulating to the entry of this 24 Protective Order, no Party waives any right it otherwise would have to object to 25 disclosing or producing any information or item on any ground not addressed in this 26 Stipulated Protective Order. Similarly, no Party waives any right to object on any 27 ground to use in evidence of any of the material covered by this Protective Order. 28 12.3 Filing Protected Material. A Party that seeks to file under seal any 13 1 Protected Material must comply with Local Civil Rule 79-5. Protected Material 2 may only be filed under seal pursuant to a court order authorizing the sealing of the 3 specific Protected Material at issue. If a Party’s request to file Protected Material 4 under seal is denied by the court, then the Receiving Party may file the information 5 in the public record unless otherwise instructed by the court. 6 7 13. After the final disposition of this Action, as defined in paragraph 4, within 60 8 9 FINAL DISPOSITION days of a written request by the Designating Party, each Receiving Party must return 10 all Protected Material to the Producing Party or destroy such material. As used in 11 this subdivision, “all Protected Material” includes all copies, abstracts, compilations, 12 summaries, and any other format reproducing or capturing any of the Protected 13 Material. Whether the Protected Material is returned or destroyed, the Receiving 14 Party must submit a written certification to the Producing Party (and, if not the same 15 person or entity, to the Designating Party) by the 60 day deadline that (1) identifies 16 (by category, where appropriate) all the Protected Material that was returned or 17 destroyed and (2) affirms that the Receiving Party has not retained any copies, 18 abstracts, compilations, summaries or any other format reproducing or capturing any 19 of the Protected Material. Notwithstanding this provision, Counsel are entitled to 20 retain an archival copy of all pleadings, motion papers, trial, deposition, and hearing 21 transcripts, legal memoranda, correspondence, deposition and trial exhibits, expert 22 reports, attorney work product, and consultant and expert work product, even if such 23 materials contain Protected Material. Any such archival copies that contain or 24 constitute Protected Material remain subject to this Protective Order as set forth in 25 Section 4 (DURATION). 26 27 14. VIOLATION 28 Any violation of this Order may be punished by appropriate measures including, 14 1 without limitation, contempt proceedings and/or monetary sanctions. 2 3 FOR GOOD CAUSE SHOWN, IT IS SO ORDERED. 4 5 DATED: September 7, 2017 6 7 8 _____________________________________ GAIL J. STANDISH UNITED STATES MAGISTRATE JUDGE 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 15 1 EXHIBIT A 2 ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND 3 4 I, _____________________________ [print or type full name], of 5 _____________________________________________ [print or type full address], 6 declare under penalty of perjury that I have read in its entirety and understand the 7 Stipulated Protective Order that was issued by the United States District Court for 8 the Central District of California on ____________ [date] in the case of John 9 Gregory Brown v. National Life Ins. Co., et al., 2:16-cv-02573-DSF-GJS. I agree to 10 comply with and to be bound by all the terms of this Stipulated Protective Order and 11 I understand and acknowledge that failure to so comply could expose me to 12 sanctions and punishment in the nature of contempt. I solemnly promise that I will 13 not disclose in any manner any information or item that is subject to this Stipulated 14 Protective Order to any person or entity except in strict compliance with the 15 provisions of this Order. 16 I further agree to submit to the jurisdiction of the United States District Court for the 17 Central District of California for enforcing the terms of this Stipulated Protective 18 Order, even if such enforcement proceedings occur after termination of this action. 19 I hereby appoint __________________________ [print or type full name] of 20 _______________________________________ [print or type full address and 21 telephone number] as my California agent for service of process in connection with 22 this action or any proceedings related to enforcement of this Stipulated Protective 23 Order. 24 Date: ______________________________________ 25 City and State where sworn and signed: _________________________________ 26 Printed name: _______________________________ 27 Signature: __________________________________ 28 16

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