Michael Wiley v. The Prudential Insurance Company of America

Filing 19

PROTECTIVE ORDER by Magistrate Judge Alka Sagar re Stipulation for Protective Order 18 . (See Order for complete details) (afe)

1 Linda M. Lawson (Bar No. 77130)
[e-mail]
2 Cindy Mader (Bar No. 213524)
[e-mail]
3 MESERVE, MUMPER & HUGHES LLP
800 Wilshire Boulevard, Suite 500
4 Los Angeles, California 90017-2611
Telephone: [phone]
5 Facsimile: [phone]
6 Attorneys for Defendant
THE PRUDENTIAL INSURANCE COMPANY
7 OF AMERICA
8

UNITED STATES DISTRICT COURT

9

CENTRAL DISTRICT OF CALIFORNIA

10
11 MICHAEL WILEY,
Plaintiff,

12
vs.

13

14 THE PRUDENTIAL INSURANCE
COMPANY OF AMERICA,
15
Defendant.
16

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Case No. CV 16-9237-DMG (ASx)
[DISCOVERY MATTER]
STIPULATED PROTECTIVE
ORDER AND
CONFIDENTIALITY
AGREEMENT

17
18

1.

PURPOSE AND LIMITATIONS

19

Discovery in this action is likely to involve production of confidential,

20 proprietary, or private information for which special protection from public
21 disclosure and from use for any purpose other than prosecuting this litigation may be
22 warranted.

As evidenced by the signatures of their respective counsel below,

23 Plaintiff Michael Wiley (“Plaintiff”) and The Prudential Insurance Company of
24 America (“Prudential”), collectively “the Parties” herein, hereby stipulate to and
25 petition the Court to enter the following Stipulated Protective Order and
26 Confidentiality Agreement (the “Order”). The Parties acknowledge that this Order
27 does not confer blanket protections on all disclosures or responses to discovery and
28 that the protection it affords from public disclosure and use extends only to the
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Case No. CV 16-9237-DMG (ASx)
STIPULATED PROTECTIVE ORDER AND
CONFIDENTIALITY AGREEMENT

1 limited information or items that are entitled to confidential treatment under the
2 applicable legal principles. The Parties further acknowledge, as set forth in Section
3 12.3, below, that this Stipulated Protective Order does not entitle them to file
4 confidential information under seal; Civil Local Rule 79-5 sets forth the procedures
5 that must be followed and the standards that will be applied when a party seeks
6 permission from the court to file material under seal.
7

(a)

8

This action is likely to involve valuable commercial information, financial, or

GOOD CAUSE STATEMENT

9 proprietary information for which special protection from public disclosure and from
10 use for any purpose other than prosecution of this action is warranted.

Such

11 confidential and proprietary materials and information may consist of, among other
12 things, confidential business or financial information, information regarding
13 confidential business practices, or other confidential research, development, or
14 commercial information (including information implicating privacy rights of third
15 parties), information otherwise generally unavailable to the public, or which may be
16 privileged or otherwise protected from disclosure under state or federal statutes,
17 court rules, case decisions, or common law. Accordingly, to expedite the flow of
18 information, to facilitate the prompt resolution of disputes over confidentiality of
19 discovery materials, to adequately protect information the parties are entitled to keep
20 confidential, to ensure that the parties are permitted reasonable necessary uses of
21 such material in preparation for and in the conduct of trial, to address their handling
22 at the end of the litigation, and serve the ends of justice, a protective order for such
23 information is justified in this matter. It is the intent of the parties that information
24 will not be designated as confidential for tactical reasons and that nothing be so
25 designated without a good faith belief that it has been maintained in a confidential,
26 non-public manner, and there is good cause why it should not be part of the public
27 record of this case.
28
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Case No. CV 16-9237-DMG (ASx)
STIPULATED PROTECTIVE ORDER AND
CONFIDENTIALITY AGREEMENT

1

2.

DEFINITIONS

2

2.1

Action: Michael Wiley v. The Prudential Insurance Company of

3 America, Case No. CV 16-9237-DMG (ASx).
2.2

4

Challenging Party: a Party or Non-Party that challenges the designation

5 of information or items under this Order.
2.3

6

“CONFIDENTIAL” Information or Items: information (regardless of

7 how it is generated, stored or maintained) or tangible things that qualify for
8 protection under Federal Rule of Civil Procedure 26(c), and as specified above in the
9 Good Cause Statement.
2.4

10

Counsel: Outside Counsel of Record and House Counsel (as well as

11 their support staff).
2.5

12

Designating Party: a Party or Non-Party that designates information or

13 items that it produces in disclosures or in responses to discovery as
14 “CONFIDENTIAL.”
2.6

15

Disclosure or Discovery Material: all items or information, regardless of

16 the medium or manner in which it is generated, stored, or maintained (including,
17 among other things, testimony, transcripts, and tangible things), that are produced or
18 generated in disclosures or responses to discovery in this matter.
2.7

19

Expert: a person with specialized knowledge or experience in a matter

20 pertinent to the litigation who has been retained by a Party or its counsel to serve as
21 an expert witness or as a consultant in this Action.
2.8

22

House Counsel: attorneys who are employees of a party to this Action.

23 House Counsel does not include Outside Counsel of Record or any other outside
24 counsel.
2.9

25

Non-Party: any natural person, partnership, corporation, association, or

26 other legal entity not named as a Party to this action.
2.10 Outside Counsel of Record: attorneys who are not employees of a party

27

28 to this Action but are retained to represent or advise a party to this Action and have
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1 appeared in this Action on behalf of that party or are affiliated with a law firm which
2 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,

3

4 employees, consultants, retained experts, and Outside Counsel of Record (and their
5 support staffs).
2.12 Producing Party: a Party or Non-Party that produces Disclosure or

6

7 Discovery Material in this Action.
2.13 Professional Vendors: persons or entities that provide litigation support

8

9 services (e.g., photocopying, videotaping, translating, preparing exhibits or
10 demonstrations, and organizing, storing, or retrieving data in any form or medium)
11 and their employees and subcontractors.
2.14 Protected Material:

12

any Disclosure or Discovery Material that is

13 designated as “CONFIDENTIAL.”
2.15 Receiving Party: a Party that receives Disclosure or Discovery Material

14

15 from a Producing Party.
16
17

3.

18

The protections conferred by this Stipulation and Order cover not only

SCOPE

19 Protected Material (as defined above), but also (1) any information copied or
20 extracted from Protected Material; (2) all copies, excerpts, summaries, or
21 compilations of Protected Material; and (3) any testimony, conversations, or
22 presentations by Parties or their Counsel that might reveal Protected Material. Any
23 use of Protected Material at trial shall be governed by the orders of the trial judge.
24 This Order does not govern the use of Protected Material at trial.
25
26

4.

27

Even after final disposition of this litigation, the confidentiality obligations

DURATION

28 imposed by this Order shall remain in effect until a Designating Party agrees
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1 otherwise in writing or a court order otherwise directs. Final disposition shall be
2 deemed to be the later of (1) dismissal of all claims and defenses in this Action, with
3 or without prejudice; and (2) final judgment herein after the completion and
4 exhaustion of all appeals, rehearings, remands, trials, or reviews of this Action,
5 including the time limits for filing any motions or applications for extension of time
6 pursuant to applicable law.
7
8

5.

DESIGNATING PROTECTED MATERIAL

9

5.1

Exercise of Restraint and Care in Designating Material for Protection.

10 Each Party or Non-Party that designates information or items for protection under
11 this Order must take care to limit any such designation to specific material that
12 qualifies under the appropriate standards. The Designating Party must designate for
13 protection only those parts of material, documents, items, or oral or written
14 communications that qualify so that other portions of the material, documents, items,
15 or communications for which protection is not warranted are not swept unjustifiably
16 within the ambit of this Order.
Mass, indiscriminate, or routinized designations are prohibited. Designations

17

18 that are shown to be clearly unjustified or that have been made for an improper
19 purpose (e.g., to unnecessarily encumber the case development process or to impose
20 unnecessary expenses and burdens on other parties) may expose the Designating
21 Party to sanctions.
If it comes to a Designating Party’s attention that information or items that it

22

23 designated for protection do not qualify for protection, that Designating Party must
24 promptly notify all other Parties that it is withdrawing the inapplicable designation.
5.2

25

Manner and Timing of Designations. Except as otherwise provided in

26 this Order (see, e.g., second paragraph of section 5.2(a) below), or as otherwise
27 stipulated or ordered, Disclosure or Discovery Material that qualifies for protection
28
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1 under this Order must be clearly so designated before the material is disclosed or
2 produced.
3

Designation in conformity with this Order requires:

4

(a) for information in documentary form (e.g., paper or electronic documents,

5 but excluding transcripts of depositions or other pretrial or trial proceedings), that the
6 Producing Party affix at a minimum, the legend “CONFIDENTIAL” (hereinafter
7 “CONFIDENTIAL legend”), to each page that contains protected material. If only a
8 portion or portions of the material on a page qualifies for protection, the Producing
9 Party also must clearly identify the protected portion(s) (e.g., by making appropriate
10 markings in the margins).
A Party or Non-Party that makes original documents available for inspection

11

12 need not designate them for protection until after the inspecting Party has indicated
13 which documents it would like copied and produced. During the inspection and
14 before the designation, all of the material made available for inspection shall be
15 deemed “CONFIDENTIAL.”

After the inspecting Party has identified the

16 documents it wants copied and produced, the Producing Party must determine which
17 documents, or portions thereof, qualify for protection under this Order. Then, before
18 producing the specified documents, the Producing Party must affix the
19 “CONFIDENTIAL legend” to each page that contains Protected Material. If only a
20 portion or portions of the material on a page qualifies for protection, the Producing
21 Party also must clearly identify the protected portion(s) (e.g., by making appropriate
22 markings in the margins).
(b)

23

for testimony given in depositions that the Designating Party identify

24 the Disclosure or Discovery Material on the record, before the close of the deposition
25 all protected testimony.
(c)

26

for information produced in some form other than documentary and for

27 any other tangible items, that the Producing Party affix in a prominent place on the
28 exterior of the container or containers in which the information is stored the legend
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Case No. CV 16-9237-DMG (ASx)
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1 “CONFIDENTIAL.”

If only a portion or portions of the information warrants

2 protection, the Producing Party, to the extent practicable, shall identify the protected
3 portion(s).
(d)

4

All copies of Confidential Information authorized to be reproduced

5 under this Agreement will be treated as though they were originals and the
6 confidentiality of each copy will be maintained in accordance with the terms and
7 conditions hereof. Copies of all documents and other tangible things containing
8 Confidential Information derived from Confidential Information shall also be treated
9 as Confidential Information.
5.3

10

Inadvertent Failures to Designate. If timely corrected, an inadvertent

11 failure to designate qualified information or items does not, standing alone, waive the
12 Designating Party’s right to secure protection under this Order for such material.
13 Upon timely correction of a designation, the Receiving Party must make reasonable
14 efforts to assure that the material is treated in accordance with the provisions of this
15 Order.
16
17

6.

CHALLENGING CONFIDENTIALITY DESIGNATIONS

18

6.1

Timing of Challenges.

Any Party or Non-Party may challenge a

19 designation of confidentiality at any time that is consistent with the Court’s
20 Scheduling Order.
6.2

21

Meet and Confer.

The Challenging Party shall initiate the dispute

22 resolution process under Local Rule 37.1 et seq.
6.3

23

The burden of persuasion in any such challenge proceeding shall be on

24 the Designating Party.

Frivolous challenges, and those made for an improper

25 purpose (e.g., to harass or impose unnecessary expenses and burdens on other
26 parties) may expose the Challenging Party to sanctions. Unless the Designating
27 Party has waived or withdrawn the confidentiality designation, all parties shall
28 continue to afford the material in question the level of protection to which it is
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1 entitled under the Producing Party’s designation until the Court rules on the
2 challenge.
3
4

7.

ACCESS TO AND USE OF PROTECTED MATERIAL

5

7.1

Basic Principles. A Receiving Party may use Protected Material that is

6 disclosed or produced by another Party or by a Non-Party in connection with this
7 Action only for prosecuting, defending, or attempting to settle this Action. Such
8 Protected Material may be disclosed only to the categories of persons and under the
9 conditions described in this Order.

When the Action has been terminated, a

10 Receiving Party must comply with the provisions of section 13 below (FINAL
11 DISPOSITION).
Protected Material must be stored and maintained by a Receiving Party at a

12

13 location and in a secure manner that ensures that access is limited to the persons
14 authorized under this Order.
7.2

15

Disclosure of “CONFIDENTIAL” Information or Items.

Unless

16 otherwise ordered by the court or permitted in writing by the Designating Party, a
17 Receiving

Party

may

disclose

any

information

or

item

designated

18 “CONFIDENTIAL” only to:
(a) the Receiving Party’s Outside Counsel of Record in this Action, as

19

20 well as employees of said Outside Counsel of Record to whom it is reasonably
21 necessary to disclose the information for this Action;
(b) the officers, directors, and employees (including House Counsel) of the

22

23 Receiving Party to whom disclosure is reasonably necessary for this Action;
(c) Experts (as defined in this Order) of the Receiving Party to whom

24

25 disclosure is reasonably necessary for this Action and who have signed the
26 “Acknowledgment and Agreement to Be Bound” (Exhibit A);
27

(d) the court and its personnel;

28

(e) court reporters and their staff;

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(f) professional jury or trial consultants, mock jurors, and Professional

1

2 Vendors to whom disclosure is reasonably necessary for this Action and who have
3 signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A);
(g) the author or recipient of a document containing the information or a

4

5 custodian or other person who otherwise possessed or knew the information;
(h) during their depositions, witnesses ,and attorneys for witnesses, in the

6

7 Action to whom disclosure is reasonably necessary provided: (1) the deposing party
8 requests that the witness sign the form attached as Exhibit 1 hereto; and (2) they will
9 not be permitted to keep any confidential information unless they sign the
10 “Acknowledgment and Agreement to Be Bound” (Exhibit A), unless otherwise
11 agreed by the Designating Party or ordered by the court. Pages of transcribed
12 deposition testimony or exhibits to depositions that reveal Protected Material may be
13 separately bound by the court reporter and may not be disclosed to anyone except as
14 permitted under this Stipulated Protective Order; and
(i) any mediator or settlement officer, and their supporting personnel,

15

16 mutually agreed upon by any of the parties engaged in settlement discussions.
17
18

8.

19

PRODUCED IN OTHER LITIGATION

20

If a Party is served with a subpoena or a court order issued in other litigation

PROTECTED

MATERIAL

SUBPOENAED

OR

ORDERED

21 that compels disclosure of any information or items designated in this Action as
22 “CONFIDENTIAL,” that Party must:
(a) promptly notify in writing the Designating Party. Such notification

23

24 shall include a copy of the subpoena or court order;
(b) promptly notify in writing the party who caused the subpoena or order

25

26 to issue in the other litigation that some or all of the material covered by the
27 subpoena or order is subject to this Protective Order. Such notification shall include
28 a copy of this Stipulated Protective Order; and
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(c) cooperate with respect to all reasonable procedures sought to be

1

2 pursued by the Designating Party whose Protected Material may be affected.
If the Designating Party timely seeks a protective order, the Party served with

3

4 the subpoena or court order shall not produce any information designated in this
5 action as “CONFIDENTIAL” before a determination by the court from which the
6 subpoena or order issued, unless the Party has obtained the Designating Party’s
7 permission. The Designating Party shall bear the burden and expense of seeking
8 protection in that court of its confidential material and nothing in these provisions
9 should be construed as authorizing or encouraging a Receiving Party in this Action to
10 disobey a lawful directive from another court.
11
12

9.

13

PRODUCED IN THIS LITIGATION

14

(a)

A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE
The terms of this Order are applicable to information produced by a

15 Non-Party in this Action and designated as “CONFIDENTIAL.” Such information
16 produced by Non-Parties in connection with this litigation is protected by the
17 remedies and relief provided by this Order. Nothing in these provisions should be
18 construed as prohibiting a Non-Party from seeking additional protections.
(b)

19

In the event that a Party is required, by a valid discovery request, to

20 produce a Non-Party’s confidential information in its possession, and the Party is
21 subject to an agreement with the Non-Party not to produce the Non-Party’s
22 confidential information, then the Party shall:
(1) promptly notify in writing the Requesting Party and the Non-Party

23

24 that some or all of the information requested is subject to a confidentiality agreement
25 with a Non-Party;
(2) promptly provide the Non-Party with a copy of the Stipulated

26

27 Protective Order in this Action, the relevant discovery request(s), and a reasonably
28 specific description of the information requested; and
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(3) make the information requested available for inspection by the

1

2 Non-Party, if requested.
(c) If the Non-Party fails to seek a protective order from this court within 14

3

4 days of receiving the notice and accompanying information, the Receiving Party may
5 produce the Non-Party’s confidential information responsive to the discovery
6 request. If the Non-Party timely seeks a protective order, the Receiving Party shall
7 not produce any information in its possession or control that is subject to the
8 confidentiality agreement with the Non-Party before a determination by the court.
9 Absent a court order to the contrary, the Non-Party shall bear the burden and expense
10 of seeking protection in this court of its Protected Material
11
12

10.

13

If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed

UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL

14 Protected Material to any person or in any circumstance not authorized under this
15 Stipulated Protective Order, the Receiving Party must immediately (a) notify in
16 writing the Designating Party of the unauthorized disclosures, (b) use its best efforts
17 to retrieve all unauthorized copies of the Protected Material, (c) inform the person or
18 persons to whom unauthorized disclosures were made of all the terms of this Order,
19 and (d) request such person or persons to execute the “Acknowledgment and
20 Agreement to Be Bound” that is attached hereto as Exhibit A.
21
22

11.

23

OTHERWISE PROTECTED MATERIAL

24

When a Producing Party gives notice to Receiving Parties that certain

INADVERTENT

PRODUCTION

OF

PRIVILEGED

OR

25 inadvertently produced material is subject to a claim of privilege or other protection,
26 the obligations of the Receiving Parties are those set forth in Federal Rule of Civil
27 Procedure 26(b)(5)(B). This provision is not intended to modify whatever procedure
28 may be established in an e-discovery order that provides for production without prior
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1 privilege review. Pursuant to Federal Rule of Evidence 502(d) and (e), insofar as the
2 parties reach an agreement on the effect of disclosure of a communication or
3 information covered by the attorney-client privilege or work product protection, the
4 parties may incorporate their agreement in the stipulated protective order submitted
5 to the court.
6
7

12.

8

12.1 Right to Further Relief. Nothing in this Order abridges the right of any

MISCELLANEOUS

9 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

10

11 Protective Order no Party waives any right it otherwise would have to object to
12 disclosing or producing any information or item on any ground not addressed in this
13 Stipulated Protective Order. Similarly, no Party waives any right to object on any
14 ground to use in evidence of any of the material covered by this Protective Order.
12.3 Filing Protected Material.

15

If a document containing Confidential

16 Information is filed with the Court in the captioned litigation, it will be filed under
17 seal, but otherwise may be disclosed only to the receiving Party, his/its attorneys and
18 supporting personnel employed by such attorneys. A Party that seeks to file under
19 seal any Protected Material must comply with Civil Local Rule 79-5. Protected
20 Material may only be filed under seal pursuant to a court order authorizing the
21 sealing of the specific Protected Material at issue.

If a Party’s request to file

22 Protected Material under seal is denied by the court, then the Receiving Party may
23 file the information in the public record unless otherwise instructed by the court.
24
25

13.

FINAL DISPOSITION

26

After the final disposition of this Action, as defined in paragraph 4, within 30

27 days of a written request by the Designating Party, each Receiving Party must return
28 all Protected Material to the Producing Party or destroy such material. As used in
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1 this subdivision, “all Protected Material” includes all copies, abstracts, compilations,
2 summaries, and any other format reproducing or capturing any of the Protected
3 Material. Whether the Protected Material is returned or destroyed, the Receiving
4 Party must submit a written certification to the Producing Party (and, if not the same
5 person or entity, to the Designating Party) by the 30 day deadline that (1) identifies
6 (by category, where appropriate) all the Protected Material that was returned or
7 destroyed and (2) affirms that the Receiving Party has not retained any copies,
8 abstracts, compilations, summaries or any other format reproducing or capturing any
9 of the Protected Material. Notwithstanding this provision, Counsel are entitled to
10 retain an archival copy of all pleadings, motion papers, trial, deposition, and hearing
11 transcripts, legal memoranda, correspondence, deposition and trial exhibits, expert
12 reports, attorney work product, and consultant and expert work product, even if such
13 materials contain Protected Material.

Any such archival copies that contain or

14 constitute Protected Material remain subject to this Protective Order as set forth in
15 Section 4 (DURATION).
16
17
18 / / /
19
20 / / /
21
22 / / /
23
24 / / /
25
26 / / /
27
28
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14.

1

Any violation of this Order may be punished by any and all appropriate

2 measures including, without limitation, contempt proceedings and/or monetary
3 sanctions.
4 IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD.
5
Glenn R. Kantor
6 Dated: June 13, 2017
Corinne Chandler
Andrew M. Kantor
7
KANTOR & KANTOR, LLP
8
By: /s/ Corinne Chandler
Corinne Chandler
Attorneys for Plaintiff
MICHAEL WILEY

9
10
11
12 Dated: June 13, 2017
13

Linda M. Lawson
Cindy N. Mader
MESERVE, MUMPER & HUGHES LLP

14
By: /s/ Cindy N. Mader
Cindy N. Mader
Attorneys for Defendant
THE PRUDENTIAL INSURANCE
COMPANY OF AMERICA

15
16
17
18

Filer’s Attestation-Local Rule 5-4.3.4(a)(2)(i)

19

The filing attorney attests that she has obtained concurrence regarding the

20 filing of this document and its content from the signatories to this document.
21
22 FOR GOOD CAUSE SHOWN, IT IS SO ORDERED.
23
DATED: _______________________
June 14, 2017
24
25 _____________________________________
/ s / Alka Sagar
Honorable Alka Sagar
26
United States Magistrate Judge
27
28
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1

EXHIBIT A

2

ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND

3
I, _____________________________ [print or type full name], of

4

5 _________________ [print or type full address], declare under penalty of perjury
6 that I have read in its entirety and understand the Stipulated Protective Order that
7 was issued by the United States District Court for the Central District of California
8 on [date] in the case of Michael Wiley v. The Prudential Insurance Company of
9 America, Case No. CV 16-9327- DMG (ASx). I agree to comply with and to be
10 bound by all the terms of this Stipulated Protective Order and I understand and
11 acknowledge that failure to so comply could expose me to sanctions and punishment
12 in the nature of contempt. I solemnly promise that I will not disclose in any manner
13 any information or item that is subject to this Stipulated Protective Order to any
14 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

15

16 for the Central District of California for the purpose of enforcing the terms of this
17 Stipulated Protective Order, even if such enforcement proceedings occur after
18 termination of this action. I hereby appoint __________________________ [print or
19 type full name] of _______________________________________ [print or type full
20 address and telephone number] as my California agent for service of process in
21 connection with this action or any proceedings related to enforcement of this
22 Stipulated Protective Order.
23 Date: ______________________________________
24 City and State where sworn and signed: _______________________________
25
26 Printed name: _______________________________
27
28 Signature: __________________________________
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