Paul Bresk v. Unimerica Insurance Company

Filing 28

PROTECTIVE ORDER by Magistrate Judge Suzanne H. Segal re Stipulation for Protective Order 27 . See document for details. (mr)

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1 2 3 4 5 6 7 8 9 UNITED STATES DISTRICT COURT 10 CENTRAL DISTRICT OF CALIFORNIA 11 WESTERN DIVISION 12 PAUL BRESK, Plaintiff, 13 14 15 16 17 vs. UNIMERICA INSURANCE COMPANY, Defendant. ) Case No. 16-08893-ODW(SSx) ) ) PROTECTIVE ORDER ) ) ) ) ) ) ) ) 18 19 20 21 22 23 24 25 26 27 28 [PROPOSED] PROTECTIVE ORDER Case No. 16-08893-ODW(SSx) STIPULATED PROTECTIVE ORDER 1 2 1. PURPOSES AND LIMITATIONS 3 Disclosure and discovery activity in this action are likely to involve production 4 of confidential, proprietary, or private information for which special protection from 5 public disclosure and from use for any purpose other than prosecuting this litigation 6 would be warranted. Accordingly, the parties hereby stipulate to and petition the court 7 to enter the following Stipulated Protective Order. The parties acknowledge that this 8 Order does not confer blanket protections on all disclosures or responses to discovery 9 and that the protection it affords extends only to the limited information or items that 10 are entitled under the applicable legal principles to treatment as confidential. The 11 parties further acknowledge, as set forth in Section 10, below, that this Stipulated 12 Protective Order creates no entitlement to file confidential information under seal; 13 Civil Local Rules 79-5.1 through 79-5.3 set forth the procedures that must be followed 14 and reflects the standards that will be applied when a party seeks permission from the 15 court to file material under seal. 16 2. DEFINITIONS 17 18 19 2.1. Party: any party to this action, including all of its officers, directors, employees, consultants, retained experts, and outside counsel (and their support staff). 2.2. Disclosure or Discovery Material: all items or information, regardless of 20 the medium or manner generated, stored, or maintained (including, among other 21 things, testimony, transcripts, or tangible things) that are produced or generated in 22 disclosures or responses to discovery in this matter. 23 2.3. “Confidential” Information or Items: information (regardless of how 24 generated, stored or maintained) or tangible things that qualify for protection under 25 standards developed under Fed. R. Civ. P. 26(c). 26 2.4. “Highly Confidential – Attorneys’ Eyes Only” Information or Items: 27 extremely sensitive “Confidential Information or Items” whose disclosure to another 28 Party or nonparty would create a substantial risk of serious injury that could not be 2 [PROPOSED] PROTECTIVE ORDER Case No. 16-08893-ODW(SSx) 1 2 3 4 5 6 avoided by less restrictive means. 2.5. Receiving Party: a Party that receives Disclosure or Discovery Material from a Producing Party. 2.6. Producing Party: a Party or non-party that produces Disclosure or Discovery Material in this action. 2.7. Designating Party: a Party or non-party that designates information or 7 items that it produces in disclosures or in responses to discovery as “Confidential” or 8 “Highly Confidential— Attorneys’ Eyes Only.” 9 10 11 12 2.8. Protected Material: any Disclosure or Discovery Material that is designated as “Confidential” or as “Highly Confidential – Attorneys’ Eyes Only.” 2.9. Outside Counsel: attorneys who are not employees of a Party but who are retained to represent or advise a Party in this action. 13 2.10. House Counsel: attorneys who are employees of a Party. 14 2.11. Counsel (without qualifier): Outside Counsel and House Counsel (as well 15 as their support staffs). 16 2.12. Expert: a person with specialized knowledge or experience in a matter 17 pertinent to the litigation who has been retained by a Party or its counsel to serve as an 18 expert witness or as a consultant in this action and who is not a past or current 19 employee of the Party or of a competitor of an opposing Party and who, at the time of 20 retention, is not anticipated to become an employee of Party or of a competitor of an 21 opposing Party. This definition includes a professional jury or trial consultant retained 22 in connection with this litigation. 23 2.13. Professional Vendors: persons or entities that provide litigation support 24 services (e.g., photocopying; videotaping; translating; preparing exhibits or 25 demonstrations; organizing, storing, retrieving data in any form or medium; etc.) and 26 their employees and subcontractors. 27 3. SCOPE 28 The protections conferred by this Stipulation and Order cover not only 3 [PROPOSED] PROTECTIVE ORDER Case No. 16-08893-ODW(SSx) 1 Protected Material (as defined above), but also any information copied or extracted 2 therefrom, as well as all copies, excerpts, summaries, or compilations thereof, plus 3 testimony, conversations, or presentations by parties or counsel to or in court or in 4 other settings that might reveal Protected Material. 5 4. DURATION 6 Even after the termination of this litigation, the confidentiality obligations 7 imposed by this Order shall remain in effect until a Designating Party agrees 8 otherwise in writing or a court order otherwise directs. 9 5. DESIGNATING PROTECTED MATERIAL 10 5.1 Exercise of Restraint and Care in Designating Material for Protection. 11 Each Party or non-party that designates information or items for protection under this 12 Order must take care to limit any such designation to specific material that qualifies 13 under the appropriate standards. A Designating Party must take care to designate for 14 protection only those parts of material, documents, items, or oral or written 15 communications that qualify – so that other portions of the material, documents, 16 items, or communications for which protection is not warranted are not swept 17 unjustifiably within the ambit of this Order. 18 Mass, indiscriminate, or routinized designations are prohibited. Designations 19 that are shown to be clearly unjustified, or that have been made for an improper 20 purpose (e.g., to unnecessarily encumber or retard the case development process, or to 21 impose unnecessary expenses and burdens on other parties), expose the Designating 22 Party to sanctions. 23 If it comes to a Party’s or a non-party’s attention that information or items that 24 it designated for protection do not qualify for protection at all, or do not qualify for the 25 level of protection initially asserted, that Party or non-party must promptly notify all 26 other parties that it is withdrawing the mistaken designation. 27 28 5.2 Manner and Timing of Designations. Except as otherwise provided in this Order (see, e.g., second paragraph of section 5.2(a), below), or as otherwise 4 [PROPOSED] PROTECTIVE ORDER Case No. 16-08893-ODW(SSx) 1 stipulated or ordered, material that qualifies for protection under this Order must be 2 clearly so designated before the material is disclosed or produced, unless the 3 Designating Party is not the Producing Party, in which case the Designating Party may 4 designate the information by reproducing copies with appropriate legends as set forth 5 below within a reasonable time (taking into account the volume of material to review) 6 after receiving the information. 7 Designation in conformity with this Order requires: 8 5.2.a for information in documentary form (apart from transcripts of 9 depositions or other pretrial or trial proceedings), that the Producing Party affix the 10 legend “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES 11 ONLY” on each page that contains protected material. If only a portion or portions of 12 the material on a page qualifies for protection, the Producing Party also must clearly 13 identify the protected portion(s) (e.g., by making appropriate markings in the margins) 14 and must specify, for each portion, the level of protection being asserted (either 15 “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES 16 ONLY”). 17 5.2.b for testimony given in deposition or in other pretrial or trial 18 proceedings, that the Party or non-party offering or sponsoring the testimony identify 19 on the record, before the close of the deposition, hearing, or other proceeding, all 20 protected testimony, and further specify any portions of the testimony that qualify as 21 “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY.” Alternatively, the 22 Party or non-party that sponsors, offers, or gives the testimony may, within 20 days of 23 receiving the transcript of the testimony, identify the specific portions of the testimony 24 as to which protection is sought and specify the level of protection being asserted 25 (“CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES 26 ONLY”). Only those portions of the testimony that are appropriately designated for 27 protection within the 20 days shall be covered by the provisions of this Stipulated 28 Protective Order. 5 [PROPOSED] PROTECTIVE ORDER Case No. 16-08893-ODW(SSx) 1 To the extent practicable, transcript pages containing Protected Material must 2 be separately bound by the court reporter, who must affix on each such page the 3 legend “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES 4 ONLY,” as instructed by the Party or nonparty offering or sponsoring the witness or 5 presenting the testimony. 6 5.2.c for information produced in some form other than documentary, 7 and for any other tangible items, that the Producing Party affix in a prominent place 8 on the exterior of the container or containers in which the information or item is stored 9 the legend “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ 10 EYES ONLY.” If only portions of the information or item warrant protection, the 11 Producing Party, to the extent practicable, shall identify the protected portions, 12 specifying whether they qualify as “Confidential” or as “Highly Confidential – 13 Attorneys’ Eyes Only.” 14 5.3 Inadvertent Failures to Designate. If corrected within three Court days of 15 discovering that a Party or non-party inadvertently failed to designate qualified 16 information or items as “Confidential” or “Highly Confidential – Attorneys’ Eyes 17 Only,” such failure does not, standing alone, waive the Designating Party’s right to 18 secure protection under this Order for such material. If material is appropriately 19 designated as “Confidential” or “Highly Confidential – Attorneys’ Eyes Only” after 20 the material was initially produced, the Receiving Party, on timely notification of the 21 designation, must make reasonable efforts to assure that the material is treated in 22 accordance with the provisions of this Order. The Party or non-party making the 23 correction shall, upon request of any Party, state in writing the date on which the 24 inadvertent failure to designate was discovered. 25 6. CHALLENGING CONFIDENTIALITY DESIGNATIONS 26 6.1 Timing of Challenges. Unless a prompt challenge to a Designating 27 Party’s confidentiality designation is necessary to avoid foreseeable substantial 28 unfairness, unnecessary economic burdens, or a later significant disruption or delay of 6 [PROPOSED] PROTECTIVE ORDER Case No. 16-08893-ODW(SSx) 1 the litigation, a Party does not waive its right to challenge a confidentiality designation 2 by electing not to mount a challenge promptly after the original designation is 3 disclosed. 4 6.2 Meet and Confer. A Party that elects to initiate a challenge to a 5 Designating Party’s confidentiality designation must do so in good faith and must 6 begin the process by conferring directly with counsel for the Designating Party. In 7 conferring, the challenging Party must explain the basis for its belief that the 8 confidentiality designation was not proper and must give the Designating Party an 9 opportunity to review the designated material, to reconsider the circumstances, and, if 10 no change in designation is offered, to explain the basis for the chosen designation. A 11 challenging Party may proceed to the next stage of the challenge process only if it has 12 engaged in this meet and confer process first. 13 6.3 Judicial Intervention. A Party that elects to press a challenge to a 14 confidentiality designation after considering the justification offered by the 15 Designating Party may file and serve a motion under Civil Local Rule 7 (and in 16 compliance with Civil Local Rule 79-5, if applicable) that identifies the challenged 17 material and sets forth in detail the basis for the challenge. Each such motion must be 18 accompanied by a competent declaration that affirms that the movant has complied 19 with the meet and confer requirements imposed in the preceding paragraph and that 20 sets forth with specificity the justification for the confidentiality designation that was 21 given by the Designating Party in the meet and confer dialogue. 22 The burden of persuasion in any such challenge proceeding shall be on the 23 Designating Party. Until the court rules on the challenge, all parties shall continue to 24 afford the material in question the level of protection to which it is entitled under the 25 Producing Party’s designation. 26 7. ACCESS TO AND USE OF PROTECTED MATERIAL 27 28 7.1 Basic Principles. A Receiving Party may use Protected Material that is disclosed or produced by another Party or by a non-party in connection with this case 7 [PROPOSED] PROTECTIVE ORDER Case No. 16-08893-ODW(SSx) 1 only for prosecuting, defending, or attempting to settle this litigation. Such Protected 2 Material may be disclosed only to the categories of persons and under the conditions 3 described in this Order. When the litigation has been terminated (including exhaustion 4 of all appeals and petitions for discretionary review), a Receiving Party must comply 5 with the provisions of section 11, below (FINAL DISPOSITION). 6 Protected Material must be stored and maintained by a Receiving Party at a 7 location and in a secure manner that ensures that access is limited to the persons 8 authorized under this Order. 9 7.2 Disclosure of “CONFIDENTIAL” Information or Items. Unless 10 otherwise ordered by the court or permitted in writing by the Designating Party, a 11 Receiving Party may disclose any information or item designated CONFIDENTIAL 12 only to: 13 7.2.a the Receiving Party’s Outside Counsel of record in this action, as 14 well as employees of said Counsel to whom it is reasonably necessary to disclose the 15 information for this litigation; 16 7.2.b the Receiving Party’s House Counsel of record in this action; 17 7.2.c the officers, directors, and employees of the Receiving Party to 18 whom disclosure is reasonably necessary for this litigation and who have signed the 19 “Agreement to Be Bound by Protective Order” (Exhibit A); 20 7.2.d experts (as defined in this Order) of the Receiving Party to whom 21 disclosure is reasonably necessary for this litigation and who have signed the 22 “Agreement to Be Bound by Protective Order” (Exhibit A); 23 7.2.e the Court and its personnel; 24 7.2.f court reporters, their staffs, and professional vendors to whom 25 disclosure is reasonably necessary for this litigation and who have signed the 26 “Agreement to Be Bound by Protective Order” (Exhibit A); 27 7.2.g during or in preparation for their deposition or other testimony, 28 witnesses in the action to whom disclosure is reasonably necessary. Such witnesses 8 [PROPOSED] PROTECTIVE ORDER Case No. 16-08893-ODW(SSx) 1 shall not be permitted to retain copies unless they have signed the “Agreement to Be 2 Bound by Protective Order” (Exhibit A). Pages of transcribed deposition testimony or 3 exhibits to depositions that reveal Protected Material must be separately bound by the 4 court reporter and may not be disclosed to anyone except as permitted under this 5 Stipulated Protective Order. 7.2.h the author of the document or the original source of the 6 7 information. 7.3 8 Disclosure of “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES 9 ONLY” Information or Items. Unless otherwise ordered by the court or permitted in 10 writing by the Designating Party, a Receiving Party may disclose any information or 11 item designated “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” only 12 to: 7.3.a the Receiving Party’s Outside Counsel of record in this action, as 13 14 well as employees of said Counsel; 15 7.3.b House Counsel of record in this action; 16 7.3.c the Court and its personnel; 17 7.3.d court reporters, their staffs, and professional vendors to whom 18 disclosure is reasonably necessary for this litigation and who have signed the 19 “Agreement to Be Bound by Protective Order” (Exhibit A); 20 7.3.e during or in preparation for their deposition or other testimony, 21 witnesses in the action to whom disclosure is reasonably necessary. Such witnesses 22 shall not be permitted to retain copies unless they have signed the “Agreement to Be 23 Bound by Protective Order” (Exhibit A). Pages of transcribed deposition testimony or 24 exhibits to depositions that reveal Protected Material must be separately bound by the 25 court reporter and may not be disclosed to anyone except as permitted under this 26 Stipulated Protective Order.; and 7.3.f the author of the document or the original source of the 27 28 information. 9 [PROPOSED] PROTECTIVE ORDER Case No. 16-08893-ODW(SSx) 1 2 8. PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED IN OTHER LITIGATION. 3 If a Receiving Party is served with a subpoena or an order issued in other 4 litigation that would compel disclosure of any information or items designated in this 5 action as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ 6 EYES ONLY,” the Receiving Party must so notify the Designating Party, in writing 7 (by mail, if possible) immediately and in no event more than three court days after 8 receiving the subpoena or order. Such notification must include a copy of the 9 subpoena or court order. 10 The Receiving Party also must immediately inform in writing the Party who 11 caused the subpoena or order to issue in the other litigation that some or all the 12 material covered by the subpoena or order is the subject of this Protective Order. In 13 addition, the Receiving Party must deliver a copy of this Stipulated Protective Order 14 promptly to the Party in the other action that caused the subpoena or order to issue. 15 The purpose of imposing these duties is to alert the interested parties to the 16 existence of this Protective Order and to afford the Designating Party in this case an 17 opportunity to try to protect its confidentiality interests in the court from which the 18 subpoena or order issued. The Designating Party shall bear the burdens and the 19 expenses of seeking protection in that court of its confidential material – and nothing 20 in these provisions should be construed as authorizing or encouraging a Receiving 21 Party in this action to disobey a lawful directive from another court. 22 9. UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL 23 If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed 24 Protected Material to any person or in any circumstance not authorized under this 25 Stipulated Protective Order, the Receiving Party must immediately (a) notify in 26 writing the Designating Party of the unauthorized disclosures, (b) use its best efforts 27 to retrieve all copies of the Protected Material, (c) inform the person or persons to 28 whom unauthorized disclosures were made of all the terms of this Order, and (d) 10 [PROPOSED] PROTECTIVE ORDER Case No. 16-08893-ODW(SSx) 1 request such person or persons to execute the “Acknowledgment and Agreement to Be 2 Bound” that is attached hereto as Exhibit A. 3 10. FILING PROTECTED MATERIAL. 4 Without written permission from the Designating Party or a court order secured 5 after appropriate notice to all interested persons, a Party may not file in the public 6 record in this action any Protected Material. A Party that seeks to file under seal any 7 Protected Material must comply with Civil Local Rule 79-5. 8 11. FINAL DISPOSITION. 9 Unless otherwise ordered or agreed in writing by the Producing Party, within 10 sixty days after the final termination of this action (including exhaustion of all appeals 11 and petitions for discretionary review), each Receiving Party must return all Protected 12 Material to the Producing Party. As used in this subdivision, “all Protected Material” 13 includes all copies, abstracts, compilations, summaries or any other form of 14 reproducing or capturing any of the Protected Material. With permission in writing 15 from the Designating Party, the Receiving Party may destroy some or all of the 16 Protected Material instead of returning it. Whether the Protected Material is returned 17 or destroyed, the Receiving Party must submit a written certification to the Producing 18 Party (and, if not the same person or entity, to the Designating Party) by the sixty day 19 deadline that identifies (by category, where appropriate) all the Protected Material that 20 was returned or destroyed and that affirms that the Receiving Party has not retained 21 any copies, abstracts, compilations, summaries or other forms of reproducing or 22 capturing any of the Protected Material. Notwithstanding this provision, Counsel are 23 entitled to retain an archival copy of all pleadings, motion papers, transcripts, legal 24 memoranda, correspondence or attorney work product, even if such materials contain 25 Protected Material. Any such archival copies that contain or constitute Protected 26 Material remain subject to this Protective Order as set forth in Section 4 27 (DURATION), above. Further, nothing herein requires a Party to transmit its attorney 28 work product or otherwise privileged documents or information to any Party or non11 [PROPOSED] PROTECTIVE ORDER Case No. 16-08893-ODW(SSx) 1 party. 2 12. MISCELLANEOUS 3 4 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. 5 12.2 Right to Assert Other Objections. By stipulating to the entry of this 6 Protective Order no Party waives any right it otherwise would have to object to 7 disclosing or producing any information or item on any ground not addressed in this 8 Stipulated Protective Order. Similarly, no Party waives any right to object on any 9 ground to use in evidence of any of the material covered by this Protective Order. 10 IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD. 11 12 DATED: October 10, 2017 13 By: /s/ Peter J. Felsenfeld MISTY A. MURRAY PETER J. FELSENFELD DANIEL K. RYAN Attorneys for Defendant UNIMERICA INSURANCE COMPANY 14 15 16 17 18 19 20 21 HINSHAW & CULBERTSON LLP DATED: October 10, 2017 KANTOR & KANTOR, LLP By: /s/ Corinne Chandler CORINNE CHANDLER GLENN R. KANTOR Attorneys for Plaintiff PAUL BRESK 22 23 FILER’S ATTESTATION 24 I, Peter J. Felsenfeld, am the ECF user whose identification and password are 25 being used to file this Stipulated Protective Order. In compliance with Local Rule 5- 26 1(i)(3), I hereby attest that all party signatories hereto concur in this filing. 27 28 /s/ Peter J. Felsenfeld PETER J. FELSENFELD 12 [PROPOSED] PROTECTIVE ORDER Case No. 16-08893-ODW(SSx) ORDER 1 2 PURSUANT TO STIPULATION, IT IS SO ORDERED. 3 4 5 DATED: 10/11/17 _________________/S/_________________ The Hon. Suzanne H. Segal United States Magistrate Judge 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 13 [PROPOSED] PROTECTIVE ORDER Case No. 16-08893-ODW(SSx) 1 EXHIBIT A 2 ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 I, _________________________ [print or type full name], of ________________________ [print or type full address], declare under penalty of perjury that I have read in its entirety and understand the Stipulated Protective Order that was issued by the United States District Court for the Northern District of California on [date to be inserted] in the case of Bresk v. Unimerica Insurance Company, Case No. 16-08893-ODW(SSx). I agree to comply with and to be bound by all the terms of this Stipulated Protective Order and I understand and acknowledge that failure to so comply could expose me to sanctions and punishment in the nature of contempt. I solemnly promise that I will not disclose in any manner any information or item that is subject to this Stipulated Protective Order to any person or entity except in strict compliance with the provisions of this Order. I further agree to submit to the jurisdiction of the United States District Court for the Northern District of California for the purpose of enforcing the terms of this Stipulated Protective Order, even if such enforcement proceedings occur after termination of this action. I hereby appoint ________ [print or type full name] of ___________________ [print or type full address and telephone number] as my California agent for service of process in connection with this action or any proceedings related to enforcement of this Stipulated Protective Order. Date: _________________________________ City and State where sworn and signed: _________________________________ 25 Printed name: ______________________________ 26 [printed name] 27 28 Signature: __________________________________ [signature] 14 [PROPOSED] PROTECTIVE ORDER Case No. 16-08893-ODW(SSx)

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