Landmark American Insurance Company v. Taisei Construction Corporation et al

Filing 42

PROTECTIVE ORDER by Judge Manuel L. Real, re Stipulation 41 . See document for details. (gk)

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LINCOLN, GUSTAFSON & CERCOS, LLP
ATTORNEYS AT LAW
550 West C Street, Suite 1400
San Diego, California 92101
[phone]/ Fax: [phone]
THOMAS J. LINCOLN, SBN 095131
[e-mail]
JILL S. CHILCOAT, SBN 220070
[e-mail]
AMANDA M. BREMSETH, SBN 303156
[e-mail]
Attorneys for Defendant,
TAISEI CONSTRUCTION CORPORATION

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA – WESTERN DIVISION

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LANDMARK AMERICAN
INSURANCE COMPANY, a
corporation,

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Plaintiff,

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vs.

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TAISEI CONSTRUCTION
CORPORATION, a Delaware
corporation; and DOES 1 through 100
inclusive,

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Defendants.

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Case No.: 2:16-CV-09169 R(PJWx)
PROTECTIVE ORDER
Date Action Filed: December 12, 2016
Trial Date: September 11, 2018

TO ALL PARTIES AND COUNSEL:

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After considering the stipulation filed by Plaintiff LANDMARK

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AMERICAN INSURANCE COMPANY (“Landmark”) and Defendant TAISEI

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CONSTRUCTION CORPORATION (“Taisei”) on June 20, 2018, and good

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cause appearing therefore,

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IT IS HEREBY ORDERED THAT:

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PROTECTIVE ORDER

2:16-CV-09169 R(PJWx)

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1. This Protective Order shall govern all items or information that are

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produced, disclosed, or generated in connection with discovery, including but not

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limited to all initial disclosures, discovery responses, deposition testimony,

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deposition exhibits or other documents, including electronic media, and tangible

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materials of any kind, however communicated, produced in this litigation

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(collectively referred to as “Materials”) that the Parties to this action may

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designate as “CONFIDENTIAL.” As used herein, “Parties” refers to the parties

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to this action (Landmark is inclusive of RSUI Group, Inc. as well as Claims

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Resource Management, Inc.).

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2. The Parties may designate as “CONFIDENTIAL” any Materials or

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information of a proprietary, financial, or competitively sensitive nature;

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Materials or information that is protected against disclosure to any non-Party by

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any applicable privilege, work product protection, or other statutory or common

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law protection, including Materials created or produced in connection with

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Wilshire Vermont Housing Partners v. Taisei, et al., filed in Los Angeles

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Superior Court Case No. BC504178 (the “Underlying Action”); research,

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technical, commercial or financial information that the producing Party has

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maintained as confidential; confidential personal identification information; or

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any confidential insurance information, including, but not limited to, any such

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claims information, by placing in a conspicuous location on the Materials or

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information the word “CONFIDENTIAL” or by informing all Parties in writing

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that a specific group of clearly identified documents (identified by bates number

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or similar designation) are confidential.
3. By agreeing to the procedure set forth in this Protective Order to govern

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how

discoverable

Materials

and

information

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“CONFIDENTIAL,” produced, and handled in this litigation, no Party is waiving

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any applicable privilege, work-product protection, fiduciary duty of loyalty or

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confidentiality, or any statute, rule, or common law provision that prohibits or
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PROTECTIVE ORDER

are

to

be

designated

2:16-CV-09169 R(PJWx)

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restricts disclosure of any documents or other information to any other Party to

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this litigation and/or to any third party. Any Party claiming a right to receive

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documents or other information in discovery in this action must support that

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claimed right independent of the existence or contents of this Protective Order

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and cannot claim to have obtained any such right by virtue of the existence or

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contents of this Protective Order. Nothing contained in this Protective Order shall

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constitute an admission or determination that any Material or information is

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confidential, subject to discovery, or protected from discovery.

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4. All non-public material related to the representation and defense of

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Taisei in the Underlying Action, produced by the Parties in the present action

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shall be presumed “CONFIDENTIAL” pursuant to the terms of this Protective

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Order.

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5. Any Party may also designate as “CONFIDENTIAL” any portion of a

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deposition transcript of its agent or employee, the agent or employee of another

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Party, or of a third party that contains confidential information relating to that

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Party by a statement on the record at the time of the deposition or by written

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designation within forty-five days after the deposition. If no indication on the

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record is made, all Materials and information disclosed during a deposition shall

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be deemed “CONFIDENTIAL” until the expiration of the forty-five day period

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within which any Party may designate the Material or information as

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“CONFIDENTIAL.” Any “CONFIDENTIAL” Material or information that is

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used in the taking of a deposition shall remain subject to the provisions of this

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Protective Order, along with the transcript pages of the deposition testimony that

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discuss the “CONFIDENTIAL” Material or information.

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6. No Materials or information designated as “CONFIDENTIAL” shall be

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furnished, shown or otherwise disclosed to any person, except the following: 1)

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counsel for the Parties and any attorneys, paralegals, assistants, clerks, and

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support staff assisting such counsel; 2) essential employees of a Party, or other
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potential witnesses, with whom it is considered in good faith necessary to consult

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in connection with the prosecution or defense of this case; 3) qualified persons

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taking testimony, including court reporters and videographers; 4) outside

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consultants and experts retained by the Parties to consult and/or assist counsel in

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the preparation and trial of this litigation; 5) the Court, jury, and court personnel;

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6) document processing and hosting vendors, and graphics, translation, design,

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and/or trial consulting services; and 7) any mediator selected by the Parties or

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appointed by the Court to mediate the claims at issue in this litigation and the

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support staff for the mediator. This restriction on the disclosure of

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“CONFIDENTIAL” Material may be modified by court order and does not apply

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where the designating Party has given its written consent to the disclosure.

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7. All Materials or information designated as “CONFIDENTIAL” shall be

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used solely for the prosecution or defense of this litigation, including dispositive

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motions, trial, and any related appellate proceeding. The Parties’ disclosure of

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confidential Materials or information in this litigation is made pursuant to and

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under the protection of this Protective Order and such disclosure shall not be

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deemed a waiver of any privilege, work product, trade secret, or other

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protections. A Party may use for any purpose its own documents and information

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that it produces or discloses in this litigation or obtains outside of this litigation

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and the use of such documents and information shall not be considered a

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violation of this Protective Order.

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8. Before any consultants, experts, mediators, or non-Party witnesses or

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potential witnesses, including any former employees, in this litigation receive or

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review Materials or information designated as “CONFIDENTIAL,” counsel for

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the Party making the disclosure shall provide to the person to whom disclosure is

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planned or proposed a copy of the declaration in the form attached as Exhibit “A”

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to this Protective Order. Counsel for the disclosing Party shall maintain a

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complete and current file of Declarations so executed for at least two (2) years
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after this litigation is finally terminated and shall be made available to counsel for

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any other Party upon a showing that this Protective Order has been violated or

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may have been violated. This paragraph does not apply when showing or

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providing Materials to witnesses at a hearing, trial or deposition, or to any person

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who, as shown on the face of the document, was an author, addressee, or

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recipient of the document, including a recipient of a copy.

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9. Nothing contained in this Protective Order bars or restricts the Parties’

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attorneys from rendering advice to their respective clients with respect to this

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litigation. This Protective Order shall not prevent the use of “CONFIDENTIAL”

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Materials or information in connection with a motion, at a hearing, at trial, or at a

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deposition provided that the Materials shall be disclosed or displayed only upon

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the implementation of reasonable safeguards to preserve their confidential status.

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Any Party submitting evidence designated “CONFIDENTIAL” in connection

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with a motion in this litigation shall lodge such evidence with the Court

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conditionally for filing under seal, publicly file redacted versions of their papers

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which redact any “CONFIDENTIAL” Materials, and serve on the Parties the

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redacted and non-redacted version of the papers. If the Court requires any

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showing beyond the existence of this Protective Order and a “CONFIDENTIAL”

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designation to accept evidence lodged under seal, any Party seeking to have any

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part of the filing maintained under seal shall have the burden of making the

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requisite showing, and shall file any supporting materials with the Court,

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including, but not limited to a motion pursuant to Civil Local Rule 79-5, within

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seven (7) days of the moving Party’s notice of lodgment. If no such showing is

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made, or the Court deems that the attempted showing was insufficient, the

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moving Party may file the evidence and unredacted papers with the Court as part

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of public record. If possible, two (2) days prior to lodging any

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“CONFIDENTIAL” Material or information conditionally under seal, the Party

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intending to lodge the “CONFIDENTIAL” Material or information will endeavor
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to contact the Party that designated the Material as “CONFIDENTIAL” to

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confirm that the Party requires that the Material or information be conditionally

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filed under seal.

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In the event that the Party that designated the Material or information as

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“CONFIDENTIAL” does not require the Material or information to be filed

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under seal, the Party filing the motion may file the motion and supporting

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Material without sealing the “CONFIDENTIAL” Material or information.

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10. The inadvertent or unintentional disclosure of “CONFIDENTIAL”

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Materials or information, regardless of whether the Materials were designated as

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“CONFIDENTIAL” at the time of disclosure, shall not be deemed a waiver of a

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Party’s claim of confidentiality provided that the Party asserting the claim of

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confidentiality informs all other Parties of its claim within a reasonable time after

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learning of the disclosure.

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11. The restrictions set forth in this Protective Order shall not apply to

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Material or information disclosed in a manner that does not violate this Protective

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Order.

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12. Within sixty (60) days of the final termination of this litigation,

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including all appeals, the Parties agree to destroy or return to the producing party

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all copies, including electronic copies, of “CONFIDENTIAL” Materials

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produced in this litigation. This provision shall not apply to copies of the

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pleadings or other court filings, working files, claim files, litigation files, or

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similar material maintained by a Party or its counsel in the ordinary course of

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maintaining and preserving files related to this litigation and shall not apply to

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prevent counsel from retaining “CONFIDENTIAL” Materials necessary to

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comply with the rules of professional conduct. A Party may also maintain copies

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of “CONFIDENTIAL” Materials pursuant to the express written agreement of

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the Party that designated the Materials as “CONFIDENTIAL.”

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13. Any Party may bring a motion to challenge the designation of Material

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or information as “CONFIDENTIAL.” Any Party may also bring a motion to

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challenge the limitations placed upon the use of any particular Material or

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information designated as “CONFIDENTIAL.” The Party that designated the

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Material or information as “CONFIDENTIAL” bears the burden of proving that

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the Material or information is “CONFIDENTIAL” and entitled to the protections

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of this Protective Order. Any Materials or information challenged pursuant to this

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paragraph shall be treated as “CONFIDENTIAL” pending the Court’s ruling on

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the motion brought under this paragraph.

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14. In the event that 1) any Party is served with a subpoena for the

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production of Material or information designated as “CONFIDENTIAL” in this

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litigation and 2) the subpoena was issued by any person or entity that is a party in

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the Underlying Action of Wilshire Vermont Housing Partners v. Taisei, et al.,

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filed in Los Angeles Superior Court Case No. BC504178, it shall be presumed

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that such Material or information is protected from disclosure. This presumption

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is limited to any Materials or information regarding the defense of Taisei in the

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Underlying Action of Wilshire Vermont Housing Partners v. Taisei, et al., filed

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in Los Angeles Superior Court Case No. BC504178. Any person or entity

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seeking the production of Material or information that has been designated as

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“CONFIDENTIAL” in this litigation that is not a party to this litigation shall bear

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the burden of proving that it is entitled to the Material or information after giving

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reasonable notice to the Party that designated the Material or information as

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“CONFIDENTIAL.”

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IT IS SO ORDERED.

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Dated: June 25, 2018

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________________________________
MANUEL L. REAL
UNITED STATES DISTRICT JUDGE

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PROTECTIVE ORDER

2:16-CV-09169 R(PJWx)

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EXHIBIT A –

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DECLARATION REGARDING CONFIDENTIALITY

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA – WESTERN DIVISION

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LANDMARK AMERICAN
INSURANCE COMPANY, a
corporation,

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Plaintiff,
vs.
TAISEI CONSTRUCTION
CORPORATION, a Delaware
corporation; and DOES 1 through 100
inclusive,
Defendants.

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Case No.: 2:16-CV-09169 R(PJWx)
DECLARATION REGARDING
CONFIDENTIALITY
Date Action Filed: December 12, 2016
Trial Date: September 11, 2018

I hereby declare that:

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1. I have been provided with a copy of the Protective Order for the case of

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Landmark American Insurance Company v. Taisei Construction Corporation,

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bearing the case number of 2:16-cv-09169-R-PJW for the United States District

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Court for the Central District of California. I have read the Protective Order,

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understand the terms of the Protective Order, and agree to be bound by the terms

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of the Protective Order.

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2. As required by the terms of the Protective Order, I will not make or

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retain possession of copies of any Materials or information designated

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“CONFIDENTIAL” and I will not use, disclose, make available, or otherwise
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communicate confidential Materials or information in any manner except for the

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purpose of my acting as an expert, consultant, and/or witness in the above-

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entitled litigation.

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3. I acknowledge that my failure to abide by the terms of the Protective

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Order and this Declaration may subject me to penalties if I am found to be in

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contempt of Court.

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I declare under penalty of perjury under the laws of the State of California
and the United States of America that the foregoing is true and correct.

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________________
(Date of Signature)

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(City, State where Signed)

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_____________________
(Signature of Declarant)
_____________________
(Print Name of Declarant)

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