Allstate Insurance Company v. Electrolux Home Products, Inc. et al

Filing 40

AGREED CONFIDENTIALITY ORDER [PROTECTIVE ORDER] by Magistrate Judge Rozella A. Oliver re Notice of Lodging 39 (dml)

TUCKER ELLIS LLP
Rebecca M. Biernat SBN 198635
[e-mail]
One Market Plaza
Steuart Tower, Suite 700
San Francisco, CA 94105
Telephone: [phone]
Facsimile: [phone]
Attorneys for Defendant
ELECTROLUX HOME PRODUCTS, INC.

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
ALLSTATE INSURANCE COMPANY ) Case No. 2:16-cv-06514-DSF-RAO
(a/s/o 634-640 Castro Street HOA, et al.), )
) AGREED CONFIDENTIALITY ORDER
)
Plaintiff,
) Judge Dale S. Fischer
) Magistrate Judge Rozella A. Oliver
v.
)
ELECTROLUX HOME PRODUCTS,
)
INC.
)
)
Defendants.
)
)
A party to this action has moved that the Court enter an Agreed
Confidentiality Order. The Court has determined that the terms set forth herein are
appropriate to protect the respective interests of the parties, the public, and the
Court. Accordingly, it is ORDERED:
1.

Scope. All materials produced in the course of discovery, including

initial disclosures, responses to discovery requests, deposition testimony and
exhibits, and information derived directly therefrom (hereinafter collectively
"documents"), shall be subject to this Order concerning Confidential Information
as defined below. This Order is subject to the Local Rules of Court and the Federal
Rules of Civil Procedure on matters of procedure and calculation of time periods.
013742\000280\3610004.1

2.

Confidential Information.

As used in this Order, "Confidential

Information" means: (a) information protected from disclosure by statute; (b)
information that reveals trade secrets; (c) research, development, technical,
commercial or financial information that the party has maintained confidential,
including information related to proprietary licensing, distribution, marketing,
product analyses, design, and manufacturing; (d) medical information concerning
any individual; (e) personal identity information; or (f) personnel or employment
records of a person who is not a party to the case. Information or documents that
are available to the public may not be designated as Confidential Information.
3.

Designation.
A.

A party may designate a document as Confidential Information

for protection under this Order by placing or affixing the words "CONFIDENTIAL
- SUBJECT TO AGREED CONFIDENTIALITY ORDER" on the document and
on all copies in a manner that will not interfere with the legibility of the document.
As used in this Order, "copies" includes electronic images, duplicates, extracts,
summaries or descriptions that contain the Confidential Information. The marking
"CONFIDENTIAL - SUBJECT TO AGREED CONFIDENTIALITY ORDER"
shall be applied prior to or at the time of the documents are produced or disclosed.
Applying

the

marking

"CONFIDENTIAL

-

SUBJECT

TO

AGREED

CONFIDENTIALITY ORDER" to a document does not mean that the document
has any status or protection by statute or otherwise except to the extent and for the
purposes of this Order. Any copies that are made of any documents marked
"CONFIDENTIAL - SUBJECT TO AGREED CONFIDENTIALITY ORDER"
shall be also be so marked, except that indices, electronic databases or lists of
documents that do not contain substantial portions or images of the text of marked
documents and do not otherwise disclose the substance of the Confidential
Information are not required to be marked.

013742\000280\3610004.1

B.

A party may designate a document as Confidential Information

only after review of the document by an attorney or a party appearing pro se who
has in good faith determined that the document contains Confidential Information
as defined in this order.
4.

Depositions.

Unless all parties agree on the record at time the deposition testimony is
taken, all deposition testimony taken in this case shall be treated as Confidential
Information for a period of fourteen days after the conclusion of the deposition.
No later than the fourteenth day after the conclusion of the deposition, a party may
serve a Notice of Designation to all parties of record as to specific portions of the
testimony that are designated Confidential Information, and thereafter those
portions identified in the Notice of Designation shall be protected the terms of this
Order.

The failure to serve a timely Notice of Designation shall waive any

designation of testimony taken in that deposition as Confidential Information.
5.

Protection of Confidential Material.
A.

General Protections. Confidential Information shall not be

used or disclosed by the parties, counsel for the parties or any other persons
identified in subparagraph (b) for any purpose whatsoever other than to prepare for
and to conduct discovery and trial in this action, including any appeal thereof.
B.

Limited Third-Party Disclosures. The parties and counsel for

the parties shall not disclose or permit the disclosure of any Confidential
Information to any third person or entity except as set forth in subparagraphs (1)(6). Subject to these requirements, the following categories of persons may be
allowed to review Confidential Information;
1.

Counsel.

Counsel for the parties and employees of

counsel who have responsibility for the preparation and trial of the
action;

013742\000280\3610004.1

2.

Parties. Individual parties and employees of a party but

only to the extent counsel determines in good faith that the employee's
assistance is reasonably necessary to the conduct of the litigation in
which the information is disclosed;
3.

The Court and its Personnel;

4.

Court Reporters and Recorders. Court reporters and

recorders engaged for depositions;
5.

Contractors. Those persons specifically engaged for the

limited purpose of making copies of documents or organizing or
processing documents;
6.

Consultants and Experts. Consultants, investigators, or

experts employed by the parties or counsel for the parties to assist in
the preparation and trial of this action but only after such persons have
completed

the

certification

contained

in

Attachment

A,

Acknowledgment of Understanding and Agreement to Be Bound; and
7.

Witnesses at Depositions.

During their depositions,

witnesses in this action to whom disclosure is reasonably necessary.
Witnesses shall not retain a copy of documents containing
Confidential Information, except witnesses may receive a copy of all
exhibits marked at their depositions in connection with review of the
transcripts. Pages of transcribed deposition testimony or exhibits to
depositions that are designated as Confidential Information pursuant
to the process set out in this Order must be separately bound by the
court reporter and may not be disclosed to anyone except as permitted
under this Order; and

013742\000280\3610004.1

8.

Others by Consent.

Other persons only by written

consent of the producing party or upon order of the Court and on such
conditions as may be agreed or ordered.
C.

Control of Documents. Counsel for the parties shall make

reasonable efforts to prevent unauthorized or inadvertent disclosure of Confidential
Information. Counsel shall maintain the originals of the forms signed by persons
acknowledging their obligations under this Order for a period of three years after
the termination of the case.
6.

Inadvertent Failure to Designate.

An inadvertent failure to

designate a document as Confidential Information does not, standing alone, waive
the right to so designate the document; provided, however, that a failure to serve a
timely Notice of Designation of deposition testimony as required by this Order,
even if inadvertent, waives any protection for deposition testimony. If a party
designates a document as Confidential Information after it was initially produced,
the receiving party, on notification of the designation, must make a reasonable
effort to assure that the document is treated in accordance with the provisions of
this Order. No party shall be found to have violated this Order for failing to
maintain the confidentiality of material during a time when that material has not
been designated Confidential Information, even where the failure to so designate
was inadvertent and where the material is subsequently designated Confidential
Information.
7.

Filing of Confidential Information. This Order does not, by itself,

authorize the filing of any document under seal. Any party wishing to file a
document designated as Confidential Information in connection with a motion,
brief or other submission to the Court must: (a) provisionally file the document
under seal; (b) file at the same time a public-record version of the document with
the Confidential Information excluded; and (c) move the Court for leave to file the

013742\000280\3610004.1

Confidential Information under seal. That sealing motion must be filed before or
simultaneously with the provisional filing of the Confidential Information under
seal, and must be noticed for presentment promptly thereafter. Any document filed
under seal without such a sealing motion may be stricken by the Court without
notice.

At the hearing on the sealing motion, the party that designated the

document as Confidential Information has the burden of demonstrating the need
for sealing. Any document served on another party and any paper courtesy copy
provided to the Court shall be a complete, unredacted version.
8.

No Greater Protection of Specific Documents.

No party may

withhold information from discovery on the ground that it requires protection
greater than that afforded by this Order unless the party moves for an order
providing such special protection.
9.

Challenges by a Party to Designation as Confidential Information.

The designation of any material or document as Confidential Information is subject
to challenge by any party. The following procedure shall apply to any such
challenge.
A.

Meet and Confer.

A party challenging the designation of

Confidential Information must do so in good faith and must begin the process by
conferring directly with counsel for the designating party.

In conferring, the

challenging party must explain the basis for its belief that the confidentiality
designation was not proper and must give the designating party an opportunity to
review the designated material, to reconsider the designation, and, if no change in
designation is offered, to explain the basis for the designation. The designating
party must respond to the challenge within five (5) business days.
B.

Judicial Intervention.

A party that elects to challenge a

confidentiality designation may file and serve a motion that identifies the
challenged material and sets forth in detail the basis for the challenge. Each such

013742\000280\3610004.1

motion must be accompanied by a competent declaration that affirms that the
movant has complied with the meet and confer requirements of this procedure.
The burden of persuasion in any such challenge proceeding shall be on the
designating party. Until the Court rules on the challenge, all parties shall continue
to treat the materials as Confidential Information under the terms of this Order.
10.

Action by the Court. Applications to the Court for an order relating

to materials or documents designated Confidential Information shall be by motion.
Nothing in this Order or any action or agreement of a party under this Order limits
the Court's power to make orders concerning the disclosure of documents produced
in discovery or at trial.
//
//
11.

Use of Confidential Documents or Information at Trial.

Nothing in this Order shall be construed to affect the admissibility of any
document, material, or information at any trial or hearing. A party that intends to
present or which anticipates that another party may present Confidential
information at a hearing or trial shall bring that issue to the Court's and parties'
attention by motion or in a pretrial memorandum without disclosing the
Confidential Information. The Court may thereafter make such orders as are
necessary to govern the use of such documents or information at trial.
12.

Confidential Information Subpoenaed or Ordered Produced in

Other Litigation.
A.

If a receiving party is served with a subpoena or an order issued

in other litigation that would compel disclosure of any material or document
designated in this action as Confidential Information, the receiving party must so
notify the designating party, in writing, immediately and in no event more than

013742\000280\3610004.1

three court days after receiving the subpoena or order. Such notification must
include a copy of the subpoena or court order.
B.

The receiving party also must immediately inform in writing

the party who caused the subpoena or order to issue in the other litigation that
some or all of the material covered by the subpoena or order is the subject of this
Order. In addition, the receiving party must deliver a copy of this Order promptly
to the party in the other action that caused the subpoena to issue.
C.

The purpose of imposing these duties is to alert the interested

persons to the existence of this Order and to afford the designating party in this
case an opportunity to try to protect its Confidential Information in the court from
which the subpoena or order issued. The designating party shall bear the burden
and the expense of seeking protection in that court of its Confidential Information,
and nothing in these provisions should be construed as authorizing or encouraging
a receiving party in this action to disobey a lawful directive from another court.
The obligations set forth in this paragraph remain in effect while the party has in its
possession, custody or control Confidential Information by the other party to this
case.
13.

Challenges by Members of the Public to Sealing Orders. A party

or interested member of the public has a right to challenge the sealing of particular
documents that have been filed under seal, and the party asserting confidentiality
will have the burden of demonstrating the propriety of filing under seal.
14.

Obligations on Conclusion of Litigation.
A.

Unless otherwise agreed or ordered, this Order shall remain in

force after dismissal or entry of final judgment not subject to further appeal.
B.

Within thirty days after dismissal or entry of final judgment not

subject to further appeal, all Confidential Information and documents marked
"CONFIDENTIAL - SUBJECT TO AGREED CONFIDENTIALITY ORDER"

013742\000280\3610004.1

under this Order, including copies as defined in 3(a), shall be returned to the
producing party unless: (1) the document has been offered into evidence or filed
without restriction as to disclosure; (2) the parties agree to destruction in lieu of
return; or (3) as to documents bearing the notations, summations, or other mental
impressions of the receiving party, that party elects to destroy the documents and
certifies to the producing party that it has done so. Notwithstanding the above
requirements to return or destroy documents, counsel may retain attorney work
product, including an index which refers or relates to Confidential Information
designated so long as that work product does not duplicate verbatim substantial
portions of Confidential Information, and one complete set of all documents filed
with the Court including those filed under seal.

Any retained Confidential

Information shall continue to be protected under this Order. An attorney may use
his or her work product in a subsequent litigation provided that its use does not
disclose or use Confidential Information.
15.

Order Subject to Modification.

This Order shall be subject to

modification by the Court on its own initiative or on motion of a party or any other
person with standing concerning the subject matter.
16.

No Prior Judicial Determination. This Order is entered based on

the representations and agreements of the parties and for the purpose of facilitating
discovery. Nothing herein shall be construed or presented as a judicial
determination that any document or material designated Confidential Information
by counsel or the patties is entitled to protection under the Federal Rules of Civil
Procedure or otherwise until such time as the Court may rule on a specific
document or issue.
17.

Persons Bound.

By the signatures of counsel below, as duly

authorized agents of the respective Parties, this Order shall take effect under the
principles of contract to bind all counsel of record and their law firms, the parties,

013742\000280\3610004.1

and persons made subject to this Order by its terms, even in the absence of a
signature by the Court to this Order.
STIPULATED BY:
DATED: January 31, 2018

Tucker Ellis LLP

By:

DATED: February 2, 2018

/s/Rebecca M. Biernat
Rebecca M. Biernat
[e-mail]
Attorneys for Defendant
ELECTROLUX HOME
PRODUCTS, INC.

de LUCA LEVINE LLC

By:

/s/Patrick A. Hughes
/s/ Patrick A. Hughes
Raymond E. Mack (pro hac vice)
Patrick A. Hughes (pro hac vice)
Attorneys for Plaintiff
ALLSTATE INSURANCE
COMPANY

IT IS SO ORDERED.

DATED: FEBRUARY 6, 2018

HONORABLE ROZELLA A. OLIVER
UNITED STATES MAGISTRATE JUDGE

013742\000280\3610004.1

TUCKER ELLIS LLP
Rebecca M. Biernat SBN 198635
[e-mail]
One Market Plaza
Steuart Tower, Suite 700
San Francisco, CA 94105
Telephone:
415.617.2400
Facsimile:
415.617.2409
Attorneys for Defendant
ELECTROLUX HOME PRODUCTS, INC.
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA

ALLSTATE INSURANCE COMPANY )
(a/s/o 634-640 Castro Street HOA, et al.), )
)
)
Plaintiff,
)
)
v.
)
ELECTROLUX HOME PRODUCTS,
)
INC.
)
)
Defendants.
)
)

Case No. 2:16-cv-06514-DSF-RAO
AGREED CONFIDENTIALITY
ORDER
Judge Dale S. Fischer
Magistrate Judge Rozella A. Oliver

ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND
The undersigned hereby acknowledges that he/she has read the Agreed
Confidentiality Order dated _______________________________ in the abovecaptioned action and attached hereto, understands the terms thereof, and agrees to
be bound by its terms. The undersigned submits to the jurisdiction of the United
States District Court for the Central District of California, in matters relating to the
Agreed Confidentiality Order and understands that the terms of the Agreed
Confidentiality Order obligate him/her to use materials designated as Confidential
Information in accordance with the Order solely for the purposes of the above-

013742\000280\3610004.1

captioned action, and not to disclose any such Confidential Information to any
other person, firm or concern.

The undersigned acknowledges that violation of the Agreed Confidentiality
Order may result in penalties for contempt of court.
Date: ___________________________
Name:

______________________________________

Job Title:

________________________________

Employer: ________________________________
Business Address: __________________________
__________________________
__________________________
Signature:

_____________________________

013742\000280\3610004.1