Shea Homes, Inc v. Westchester Surplus Lines Insurance Company et al

Filing 20

PROTECTIVE ORDER by Magistrate Judge Paul L. Abrams re Stipulation for Protective Order 19 . NOTE: CHANGES HAVE BEEN MADE TO THIS DOCUMENT. (ch)

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NOTE: CHANGES HAVE BEEN MADE TO THIS DOCUMENT 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA, WESTERN DIVISION 10 11 SHEA HOMES, INC., a Delaware corporation, 12 Plaintiff, 13 Case assigned to Judge André Birotte PROTECTIVE ORDER vs. 14 Case No. 17-cv-04649-AB-PLAx [Discovery Matter] 15 WESTCHESTER SURPLUS LINES INSURANCE COMPANY, a Georgia 16 corporation, and DOES 1 through 10, 17 Defendant. 18 Trial Date: January 8, 2019 19 20 Having reviewed the Parties’ Stipulation Re Protective Order, and for good 21 cause appearing, the Court hereby enters a Protective Order as follows: 22 1. Definitions. 23 1.1. In this Protective Order, the words set forth below have the following 24 meanings: 25 a. “Confidential Materials” means any Document, Testimony, or 26 Information, as defined below: (i) that is produced for or disclosed to a 27 party (Plaintiff or Defendant); (ii) that the Designating Party reasonably 28 and in good faith believes to be entitled to confidential treatment under [PROPOSED] PROTECTIVE ORDER 1 applicable law, and (iii) that has been designated as “Confidential 2 Material” by the Designating Party in compliance with this Protective 3 Order, and prior to its production. Nothing in this Protective Order 4 shall be construed in any way to control the use, dissemination, 5 publication, or disposition by a party of any Document, Testimony, or 6 Information that legitimately, without breach of confidentiality, are 7 public record or in the public domain, received at any time by that party 8 outside the course of the discovery process in this litigation. b. 9 “Designating Party” means the party that designates Confidential Materials as “Confidential.” 10 c. 11 “Document” or “Documents” means and includes any documents or 12 electronically stored information as contemplated by Federal Rule of 13 Civil Procedure 34(a), including without limitation: (i) all writings as 14 defined in Federal Rule of Evidence 1001(a), all originals as defined in 15 Federal Rule of Evidence 1001(e); and (ii) any copies, reproductions, 16 or summaries of all or any part of the foregoing. 17 d. “Information” means the content of Documents or Testimony. 18 e. “Testimony” means all depositions, declarations or other testimony taken or used in this Proceeding. 19 20 2. Designation of Confidential Material. 21 2.1. All or any part of any Documents, Testimony, or Information may be 22 designated as “Confidential Material,” but must be clearly so designated before it is 23 disclosed or produced. Each party or non-party that designates Documents, 24 Testimony, or Information for protection under this Protective Order must take care 25 to limit any such designation to specific material that qualifies under the appropriate 26 standards, so that other portions for which protection is not warranted are not swept 27 unjustifiably within the ambit of this Order. Mass, indiscriminate, or routine 28 designations are prohibited. The “Confidential” designation should not obscure or 2 [PROPOSED] PROTECTIVE ORDER 1 interfere with the legibility of the Document, Testimony, or Information. a. 2 For Documents (apart from deposition transcripts), the Designating 3 Party must mark the words “CONFIDENTIAL” or “CONFIDENTIAL 4 MATERIAL” on each page of any Document containing Confidential 5 Information or, with respect to any such Document produced natively, 6 in the Document’s file name. b. 7 For Testimony given in depositions the party or non-party offering or 8 sponsoring the testimony shall designate on the record, before the close 9 of the deposition, all Confidential Information. When it is impractical 10 to identify separately each portion of Testimony that is entitled to 11 protection, and when it appears that substantial portions of the 12 Testimony may qualify for protection, the party or non-party that 13 sponsors, offers, or gives the Testimony may invoke on the record 14 (before the deposition is concluded) a right to have up to 30 days after 15 receipt of the transcript to identify in writing the specific portions of the 16 Testimony as to which protection is sought. Only those portions of the 17 Testimony that are appropriately designated for protection within the 18 30 days after receipt of the transcript shall be covered by the provisions 19 of this Protective Order. 20 3. Inadvertent Failure to Designate. 21 3.1. If a party inadvertently produces any Document, Testimony, or 22 Information during discovery that it considers to be “Confidential Material,” in 23 whole or in part, without a “Confidential” designation, it may correct the situation as 24 follows: a. 25 Within twenty days of the discovery of the inadvertent production 26 without “Confidential” designation, and no later than forty-five (45) 27 days prior to trial, the producing party must give written notice to all 28 parties who received the Document, Testimony, or Information that the 3 [PROPOSED] PROTECTIVE ORDER 1 producing party claims it, in whole or in part, is “Confidential 2 Material,” together with a further copy of the subject Document, 3 Testimony, or Information marked “Confidential” as intended by the 4 Designating Party (the “Inadvertent Production Notice”). b. 5 Upon timely receipt of such Inadvertent Production Notice, the party 6 that received the Document, Testimony or Information inadvertently 7 produced without a “Confidential” designation shall promptly destroy 8 the subject Document, Testimony or Information and all copies thereof, 9 or, at the expense of the Designating Party, return them together with 10 all copies, and shall retain only the version marked “Confidential” as 11 intended by the Designating Party. Upon timely receipt of an 12 Inadvertent Production Notice, the receiving party must make 13 reasonable efforts to assure that the material is treated in accordance 14 with the provisions of this Order. c. 15 If timely corrected, an inadvertent failure to designate qualified 16 Documents, Testimony, or Information as “Confidential” does not, 17 standing alone, waive the Designating Party’s right to secure protection 18 under this Order for such material. 19 4. Access to and Use of Confidential Material. 20 4.1. “Confidential Material,” shall be used or disclosed solely for the 21 purposes of preparing for, conducting, participating in the conduct of, and/or 22 prosecuting and/or defending this Proceeding, and in accordance with the provisions 23 of this Protective Order, and shall not be used for any other purpose without further 24 order of the Court. 4.2. 25 “Confidential Material” may be disclosed only to the following 26 persons: 27 a. the Court; 28 b. court reporters in this Proceeding (whether at depositions, hearings or 4 [PROPOSED] PROTECTIVE ORDER other proceeding); 1 c. 2 any mediator or settlement officer, and their supporting personnel, 3 mutually agreed upon by any of the parties engaged in settlement 4 discussions; d. 5 a party’s or non-party’s directors, officers, employees, former 6 employees, representatives and agents in connection with the 7 prosecution, defense, or supervision of this action or in connection with 8 the production of documents or the giving of testimony in this lawsuit; e. 9 auditors, reinsurers, accountants, regulators or retrocessionaires of any 10 party who, in the normal course of business, would have access to or to 11 whom a party has a business obligation to provide such information in 12 connection with this Proceeding; f. 13 counsel of record for the respective parties in this action and counsel 14 for any non-party required to produce documents or give testimony in 15 this lawsuit and secretarial, clerical, litigation support and paralegal 16 personnel regularly employed by such counsel to whom such counsel 17 deems necessary that the confidential information be shown for 18 purposes of this litigation; g. 19 other counsel for the respective parties in this action and their 20 employees, agents, and representatives who are assisting in the 21 prosecution or defense of this action; h. 22 experts and consultants who are employed, retained, or otherwise 23 consulted by counsel or a party for the purpose of analyzing data, 24 conducting studies, or providing opinions to assist, in any way, in this 25 action, provided that access to “Confidential Material” by experts and 26 consultants shall be limited to documents that the experts or consultants 27 reasonably need to review in their roles as experts or consultants, and 28 such access shall be conditioned upon each expert’s and/or consultant’s 5 [PROPOSED] PROTECTIVE ORDER agreement to abide by the terms of this Protective Order; 1 i. 2 the author or recipient of a document containing the information or a 3 custodian or other person who otherwise possessed or knew the 4 information; j. 5 during their depositions, witnesses, and attorneys for witnesses, in the 6 Proceeding to whom disclosure is reasonably necessary provided: 7 (1) the deposing party requests that the witness execute the Non- 8 Disclosure Agreement attached as Exhibit A hereto; and (2) they will 9 not be permitted to keep any confidential information unless they 10 execute the Non-Disclosure Agreement attached as Exhibit A hereto, 11 unless otherwise agreed by the Designating Party or ordered by the 12 court (pages of transcribed deposition testimony or exhibits to 13 depositions that reveal Confidential Material may be separately bound 14 by the court reporter); k. 15 other factual witnesses who agree to comply with and be bound by the 16 requirements of this Protective Order and whose role as a witness is 17 such that they have a genuine need to know the content of the 18 confidential information; 19 l. any other person that the Designating Party agrees to in writing. 20 4.3. Before disclosure of “Confidential Material” to any person in 21 categories h, k, and/or l above, each such person shall be provided with a copy of 22 this Protective Order and shall execute a Non-Disclosure Agreement (Exhibit A). 23 The qualified persons listed above shall not distribute, disclose, or otherwise publish 24 or make available “Confidential Material” to any third person unless consented to in 25 writing by the Designating Party, or permitted to do so by the Court. Storing 26 documents on a Party’s internal electronic document management system is 27 sufficient to comply with the requirements of the Protective Order, regardless of 28 whether other officers, directors or employees of a Party not involved in the Action 6 [PROPOSED] PROTECTIVE ORDER 1 have access to the document management system. 4.4. 2 Without written permission from the Designating Party or a Court order 3 secured after appropriate notice, a party may not file in the public record in this 4 Proceeding any Confidential Material. A party that seeks to file under seal any 5 Confidential Material must comply with L.R. 79-5.1. Good cause must be shown 6 for the under seal filing. 4.5. 7 Nothing in this Protective Order shall preclude any party from 8 disclosing or using, in any manner or for any purpose, any information that is (i) 9 generally available to the public, other than as a result of disclosure by any Party to 10 this Proceeding in violation of this Protective Order; (ii) already lawfully in the 11 Party’s possession prior to its designation as “Confidential” in this Proceeding; (iii) 12 lawfully obtained on a non-confidential basis from a non-party to this Proceeding 13 who, insofar as is known after a reasonable inquiry, is not bound by any obligation 14 of confidentiality with respect to such information; or (iv) developed independently, 15 as evidenced by a written record. 4.6. 16 Upon termination of this lawsuit by judgment, and the expiration of any 17 and all appeals therefrom, or by settlement, all parties shall return to counsel for 18 such producing party all “Confidential Material” received from such party, 19 including all copies, prints, summaries, and other reproductions of such information, 20 in the possession of the parties, their counsel, or retained experts or consultants. As 21 an alternative to returning all or part of such “Confidential Material,” parties may 22 certify to counsel for the producing party that they have destroyed all unreturned 23 “Confidential Material.” Notwithstanding this provision, Counsel and each Party 24 are entitled to retain an archival copy of all pleadings, motion papers, trial, 25 discovery, deposition, hearing transcripts, legal memoranda, correspondence, 26 deposition and trial exhibits, expert reports, attorney work product, and consultant 27 and expert work product, even if such materials contain Confidential Material. This 28 Protective Order and the agreements embodied herein shall survive the termination 7 [PROPOSED] PROTECTIVE ORDER 1 of this action and continue in full force and effect. 2 5. Right to Challenge Designation, Assert Other Objections, and Seek 3 Amendment of this Order. 4 5.1. Complying with the terms of this Protective Order shall not operate as 5 an admission by any person that any particular Document, Testimony, or 6 Information marked “Confidential” contains or reflects information entitled to 7 confidential treatment under applicable law. Any party may seek a determination by 8 the Court as to whether any Document, Testimony, or Information marked 9 “Confidential” should be subject to protection as “Confidential” under the terms of 10 this Protective Order, as follows: a. 11 Unless a prompt challenge to a Designating Party’s confidentiality 12 designation is necessary to avoid foreseeable substantial unfairness, 13 unnecessary economic burdens, or a later significant disruption or delay 14 of the litigation, a party does not waive its right to challenge a 15 confidentiality designation by electing not to mount a challenge 16 promptly after the original designation is disclosed. b. 17 The parties will abide by Central District Local Rule 37 in seeking such 18 a determination. Specifically, counsel for the parties shall confer in a 19 good faith effort to eliminate the necessity for hearing the motion or to 20 eliminate as many of the disputes as possible. It shall be the 21 responsibility of counsel for the moving party to arrange for this 22 conference. If counsel are unable to settle their differences, they shall 23 formulate a joint written stipulation. Following the conference of 24 counsel, counsel for the moving party shall provide counsel for the 25 opposing party with the moving party’s portion of the stipulation. 26 Counsel for the opposing party shall deliver or e-mail to counsel for the 27 moving party the opposing party’s portion of the stipulation within 28 seven (7) days of receipt of the moving party’s draft. After the Joint 8 [PROPOSED] PROTECTIVE ORDER 1 Stipulation is filed, each party may file a supplemental memorandum of 2 law not later than fourteen (14) days prior to the hearing date. c. 3 The burden of persuasion in any such challenge proceeding shall be on 4 the Designating Party. Unless and until the Court rules on the 5 challenge, all parties shall continue to treat the material in question as 6 “Confidential Material.” 5.2. 7 This Protective Order does not preclude any party from moving to have 8 any other information or material designated as confidential in accordance with the 9 rules of this Court. Any such additional information or material designated as 10 confidential shall be treated as “Confidential Material” pursuant to the terms of this 11 Order. 5.3. 12 This Protective Order is entered without prejudice to the right of any 13 party to knowingly waive the applicability of this Protective Order to any 14 Confidential Material designated by that party. However, if the Designating Party 15 uses Confidential Materials in a non-confidential manner, including revealing it to 16 any person other than those designated in Paragraph 5, all such materials shall no 17 longer be designated “Confidential Materials,” and the Designating Party shall 18 promptly advise the other parties that the designation no longer applies. 5.4. 19 No party waives any right it otherwise would have to object to 20 disclosing or producing any Document, Testimony, or Information on any ground 21 not addressed in this Protective Order. Similarly, no party waives any right to object 22 to the admissibility of any of the material covered by this Protective Order. 5.5. 23 The Court may amend this Order to prevent manifest injustice. 24 Additional protective orders also may be entered whenever deemed appropriate by 25 the Court. 26 6. Inadvertent Production of Privileged Matter. 27 6.1. If a producing party inadvertently produces information or documents 28 that it considered privileged, in whole or in part, it may retrieve such information or 9 [PROPOSED] PROTECTIVE ORDER 1 documents or parts thereof as follows: a. 2 Within twenty days of the discovery of the inadvertent production, and 3 no later than forty-five (45) days prior to trial, the producing party must 4 give written notice to all parties who received copies of the produced 5 document that the producing party claims said document, in whole or in 6 part, to be privileged and must state the nature of the privilege; in the 7 event that only part(s) of document(s) are claimed to be privileged, the 8 producing party shall furnish redacted copies of such privileged 9 documents, removing only the part(s) thereof claimed to be privileged, 10 to all parties together with the notice (the “Inadvertent Production of 11 Privileged Materials Notice”). b. 12 Upon receipt of such Inadvertent Production of Privileged Materials 13 Notice, all parties who have received copies of the inadvertently 14 produced document(s) shall promptly return them to the producing 15 party and destroy any other copies thereof except to the extent 16 reasonably necessary to promptly present the information to the court 17 under seal for a determination of the claim pursuant to Fed. R. Civ. P. 18 26(b)(5)(B). c. 19 After service of such notice, no motion to compel the production of the 20 inadvertently produced privileged documents may rely on an allegation 21 that any privilege as to the document was waived solely by virtue of its 22 inadvertent production. 23 24 IT IS SO ORDERED. 25 26 DATED: November 8, 2017 Honorable Paul L. Abrams U.S. MAGISTRATE JUDGE 27 28 10 [PROPOSED] PROTECTIVE ORDER 1 2 EXHIBIT A 3 4 ACKNOWLEDGEMENT AND AGREEMENT TO BE BOUND 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 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 Protective Order that was issued by the United States District Court for the Central District of California on ___________________ [date] in the case of Shea Homes, Inc. v. Westchester Surplus Lines Insurance Co., Case No. 2-17-cv04649-AB-PLA. I agree to comply with and to be bound by all the terms of this 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 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 Central District of California for the purposes of enforcing the terms of this Protective Order, even if such enforcement proceedings occur after termination of this action. 22 Date: _________________________________ 23 City and State where sworn and signed: ___________________________ 24 Printed Name: __________________________ 25 Signature: _____________________________ 26 27 28 11 [PROPOSED] PROTECTIVE ORDER

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