Theresa L. Davis v. State Farm Life Insurance Company

Filing 41

PROTECTIVE ORDER by Magistrate Judge Karen L. Stevenson re Stipulation for Protective Order 39 . (see order for details) (hr)

Daniel C. Girard (SBN 114826)
[e-mail]
Angelica M. Ornelas (SBN 285929)
[e-mail]
Elizabeth A. Kramer (SBN 293129)
[e-mail]
601 California Street, Suite 1400
San Francisco, California 94108
Tel: [phone]
Fax: [phone]
[Additional Counsel on Signature Page]
Attorneys for Plaintiff

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA

THERESA L. DAVIS, Individually and )
)
On Behalf Of All Others Similarly
)
)
Situated,
)
)
Plaintiff,
)
)
vs.
)
)
STATE FARM LIFE INSURANCE
)
COMPANY,
)
)
Defendant.
)

Case No.: 2:17-cv-08773-FMO (KSx)
DISCOVERY MATTER
Honorable Karen L. Stevenson
ORDER GRANTING STIPULATED
PROTECTIVE ORDER1

Pursuant to Rule 26(c) of the Federal Rules of Civil Procedure and based on
the parties’ Proposed Order Granting Stipulated Protective Order (“Stipulation”)
filed on April 10, 2018, the terms of the protective order to which the parties have
1

This proposed Stipulated Protective Order is substantially based on Magistrate Judge Karen L.
Stevenson’s Form Stipulated Protective Order.

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agreed are adopted as a protective order of this Court (which generally shall govern
the pretrial phase of this action) except to the extent, as set forth below, that those
terms have been modified by the Court’s amendment of paragraph 6.2, and
Attachment/Exhibit A to,] the Stipulation.
AGREED TERMS OF THE PROTECTIVE ORDER AS ADOPTED AND
MODIFIED BY THE COURT1
1.

A.

PURPOSES AND LIMITATIONS

Discovery in this action is likely to involve production of confidential, proprietary
or private information for which special protection from public disclosure and from use
for any purpose other than prosecuting this litigation may be warranted. Accordingly, the
parties hereby stipulate to and petition the Court to enter the following Stipulated
Protective Order. The parties acknowledge that this Order does not confer blanket
protections on all disclosures or responses to discovery and that the protection it affords
from public disclosure and use extends only to the limited information or items that are
entitled to confidential treatment under the applicable legal principles. The parties
further acknowledge, as set forth in Section 12.3, below, that this Stipulated Protective
Order does not entitle them to file confidential information under seal; Civil Local Rule
79-5 sets forth the procedures that must be followed and the standards that will be
applied when a party seeks permission from the court to file material under seal.
B.

GOOD CAUSE STATEMENT

This action is likely to involve trade secrets, customer and pricing lists and other
valuable research, development, commercial, financial, technical and/or proprietary
1

The Court’s additions to the agreed terms of the Protective Order are generally indicated in bold
typeface, and the Court’s deletions are indicated by lines through the text being deleted.

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information for which special protection from public disclosure and from use for any
purpose other than prosecution of this action is warranted. Such confidential and
proprietary materials and information consist of, among other things, confidential
business or financial information, information regarding confidential business practices,
or other confidential research, development or commercial information (including
information implicating privacy rights of third parties), information otherwise generally
unavailable to the public, or which may be privileged or otherwise protected from
disclosure under state or federal statutes, court rules, case decisions, or common law.
By way of illustration, the parties anticipate that State Farm may be asked to
produce the following types of information, which State Farm is likely to designate as
confidential: (1) cost of insurance information for its life insurance policy form 86040;
(2) State Farm’s actual or expected mortality experience; (3) pricing of any premiums,
fees or charges related to any policy form; (4) the calculation of any expenses related to
any policy form; (5) actuarial information compiled by State Farm in relation to the
pricing of any policy form; (6) lapse and expiration rates for any policy form; (7) nonpublic financial information; (8) confidential internal draft documents; (9) organizational
charts; (10) employee contact information; (11) confidential competitive business plans;
and (12) information related to current and former customers other than Plaintiff; and
other categories of confidential information not recited here. Plaintiff may be asked to
produce information relating to her personal health or finances, which Plaintiff may
designate as confidential, as well as other categories of confidential information not
recited here.
Accordingly, to expedite the flow of information, to facilitate the prompt
resolution of disputes over confidentiality of discovery materials, to adequately protect
information the parties are entitled to keep confidential, to ensure that the parties are
permitted reasonable necessary uses of such material in preparation for and in the
conduct of trial, to address their handling at the end of the litigation, and serve the ends
of justice, a protective order for such information is justified in this matter. It is the intent
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of the parties that information will not be designated as confidential for tactical reasons
and that nothing be so designated without a good faith belief that it has been maintained
in a confidential, non-public manner, and there is good cause why it should not be part of
the public record of this case.
DEFINITIONS
2.1

Action: Davis v. State Farm Life Insurance Company, Case No.: 2:17-cv-

08773-FMO (KSx).
2.2

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

information or items under this Order.
2.3

“CONFIDENTIAL” Information or Items: information (regardless of how

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

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

support staff).
2.5

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

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

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

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

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

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

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

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

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

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 to
this Action but are retained to represent or advise a party to this Action and have
appeared in this Action on behalf of that party or are affiliated with a law firm that 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,
employees, consultants, retained experts, and Outside Counsel of Record (and their
support staffs).
2.12 Producing Party: a Party or Non-Party that produces Disclosure or
Discovery Material in this Action.
2.13 Professional Vendors: persons or entities that provide litigation support
services (e.g., photocopying, videotaping, translating, preparing exhibits or
demonstrations, and organizing, storing, or retrieving data in any form or medium) and
their employees and subcontractors.
2.14 Protected Material: any Disclosure or Discovery Material that is designated
as “CONFIDENTIAL.”
2.15 Receiving Party: a Party that receives Disclosure or Discovery Material
from a Producing Party.
3.

SCOPE
The protections conferred by this Stipulation and Order cover not only Protected

Material (as defined above) but also (1) any information copied or extracted from
Protected Material; (2) all copies, excerpts, summaries, or compilations of Protected
Material; and (3) any testimony, conversations, or presentations by Parties or their
Counsel that might reveal Protected Material.
Any use of Protected Material at trial shall be governed by the orders of the trial
judge. This Order does not govern the use of Protected Material at trial.
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4.

DURATION
Even after final disposition of this litigation, the confidentiality obligations

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

5.

DESIGNATING PROTECTED MATERIAL
5.1

Exercise of Restraint and Care in Designating Material for Protection.

Each Party or Non-Party that designates information or items for protection under
this Order must take care to limit any such designation to specific material that qualifies
under the appropriate standards. The Designating Party must designate for protection
only those parts of material, documents, items, or oral or written communications that
qualify so that other portions of the material, documents, items, or communications for
which protection is not warranted are not swept unjustifiably within the ambit of this
Order.
Mass, indiscriminate or routinized designations are prohibited. Designations that
are shown to be clearly unjustified or that have been made for an improper purpose (e.g.,
to unnecessarily encumber the case development process or to impose unnecessary
expenses and burdens on other parties) may expose the Designating Party to sanctions.
If it comes to a Designating Party’s attention that information or items that it
designated for protection do not qualify for protection, that Designating Party must
promptly notify all other Parties that it is withdrawing the inapplicable designation.
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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 stipulated or
ordered, Disclosure or Discovery Material that qualifies for protection under this Order
must be clearly so designated before the material is disclosed or produced.
Designation in conformity with this Order requires:
(a) for information in documentary form (e.g., paper or electronic documents
produced in image format, but excluding transcripts of depositions or other pretrial or
trial proceedings), that the Producing Party affix at a minimum, the legend
“CONFIDENTIAL” (hereinafter “CONFIDENTIAL legend”), to each page that contains
protected material. If only a portion of the material on a page qualifies for protection, the
Producing Party must also clearly identify the protected portion(s) (e.g., by making
appropriate markings in the margins).
A Party or Non-Party that makes original documents available for inspection need
not designate them for protection until after the inspecting Party has indicated which
documents it would like copied and produced. During the inspection and before the
designation, all of the material made available for inspection shall be deemed
“CONFIDENTIAL.” After the inspecting Party has identified the documents it wants
copied and produced, the Producing Party must determine which documents, or portions
thereof, qualify for protection under this Order. Then, before producing the specified
documents, the Producing Party must affix the “CONFIDENTIAL legend” to each page
that contains Protected Material. If only a portion of the material on a page qualifies for
protection, the Producing Party also must clearly identify the protected portion(s) (e.g.,
by making appropriate markings in the margins).
(b) for testimony given in depositions that the Designating Party identify the
Disclosure or Discovery Material on the record, before the close of the deposition all
protected testimony.
(c) for information that is produced in an electronic document format that is not
susceptible to the imprinting of a stamp signifying its confidential nature (e.g. native
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format files), the producing Party may label the production media “Confidential” and/or
alter the file name of the native ESI to include “Conf.” and shall inform all recipients in
writing of the designation at the time that the ESI is produced.
(d) for information produced in some form other than documentary and for any
other tangible items, that the Producing Party affix in a prominent place on the exterior
of the container or containers in which the information is stored the legend
“CONFIDENTIAL.” If only a portion or portions of the information warrants protection,
the Producing Party, to the extent practicable, shall identify the protected portion(s).
5.3

Inadvertent Failures to Designate. An inadvertent failure to designate

qualified information or items does not, standing alone, waive the Designating Party’s
right to secure protection under this Order for such material. Upon correction of a
designation, the Receiving Party must make reasonable efforts to assure that the material
is treated in accordance with the provisions of this Order.
6.

CHALLENGING CONFIDENTIAL DESIGNATIONS
6.1

Timing of Challenges. Any Party or Non-Party may challenge a designation

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

Meet and Confer. The Challenging Party shall initiate the dispute resolution

process under Local Rule 37.1, et seq. and consistent with the Court’s pre-motion
discovery procedures
6.3

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

Designating Party. Frivolous challenges, and those made for an improper purpose (e.g.,
to harass or impose unnecessary expenses and burdens on other parties) may expose the
Challenging Party to sanctions. Unless the Designating Party has waived or withdrawn
the confidentiality designation, all parties shall continue to afford the material in
question the level of protection to which it is entitled under the Producing Party’s
designation until the Court rules on the challenge.
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7.

ACCESS TO AND USE OF PROTECTED MATERIAL
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 Action
only for prosecuting, defending or attempting to settle this Action. Such Protected
Material may be disclosed only to the categories of persons and under the conditions
described in this Order. When the Action has been terminated, a Receiving Party must
comply with the provisions of Section 13 below (FINAL DISPOSITION).
Notwithstanding the forgoing, nothing in this Stipulated Protective Order shall
require a party to return or destroy Protected Material if the return or destruction would
violate a duty to retain information imposed by state or federal regulation or statute.
Protected Material must be stored and maintained by a Receiving Party at a
location and in a secure manner that ensures that access is limited to the persons
authorized under this Order.
7.2

Disclosure of “CONFIDENTIAL” Information or Items. Unless otherwise

ordered by the court or permitted in writing by the Designating Party, a Receiving Party
may disclose any information or item designated “CONFIDENTIAL” only to:
(a) the Receiving Party’s Outside Counsel of Record in this Action, as well
as employees of said Outside Counsel of Record to whom it is reasonably necessary to
disclose the information for this Action;
(b) the officers, directors, and employees (including House Counsel) of the
Receiving Party to whom disclosure is reasonably necessary for this Action;
(c) Experts (as defined in this Order) of the Receiving Party to whom
disclosure is reasonably necessary for this Action and who have signed the
“Acknowledgment and Agreement to Be Bound” (Exhibit A);
(d) the court and its personnel;
(e) court reporters and their staff;

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(f) professional jury or trial consultants, mock jurors, and Professional
Vendors to whom disclosure is reasonably necessary for this Action and who have
signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A);
(g) the author or recipient of a document containing the information or a
custodian or other person who otherwise possessed or knew the information;
(h) during their depositions, witnesses, and attorneys for witnesses, in the
Action to whom disclosures is reasonably necessary provided: (1) the deposing party
requests that the witness sign the form attached as Exhibit A hereto; and (2) they will not
be permitted to keep any confidential information unless they sign the
“Acknowledgment and Agreement to Be Bound” (Exhibit A), unless otherwise agreed
by the Designating Party or ordered by the court. Pages of transcribed deposition
testimony or exhibits to depositions that reveal Protected Material may be separately
bound by the court reporter and may not be disclosed to anyone except as permitted
under this Stipulated Protective Order; and
(i) any mediator or settlement officer, and their supporting personnel,
mutually agreed upon by any of the parties engaged in settlement discussions.
8.

PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED IN
OTHER LITIGATION
If a Party is served with a subpoena or a court order issued in other litigation that

compels disclosure of any information or items designated in this Action as
“CONFIDENTIAL,” that Party must:
(a) promptly notify in writing the Designating Party. Such notification shall
include a copy of the subpoena or court order;
(b) promptly notify in writing the party who caused the subpoena or order to issue
in the other litigation that some or all of the material covered by the subpoena or order is
subject to this Protective Order. Such notification shall include a copy of this Stipulated
Protective Order; and
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(c) cooperate with respect to all reasonable procedures sought to be pursued by
the Designating Party whose Protected Material may be affected.
If the Designating Party timely seeks a protective order, the Party served with the
subpoena or court order shall not produce any information designated in this action as
“CONFIDENTIAL” before a determination by the court from which the subpoena or
order issued, unless the Party has obtained the Designating Party’s permission. The
Designating Party shall bear the burden and expense of seeking protection in that court
of its confidential material and nothing in these provisions should be construed as
authorizing or encouraging a Receiving Party in this Action to disobey a lawful directive
from another court.
9.

A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE PRODUCED
IN THIS LITIGATION
(a) The terms of this Order are applicable to information produced by a Non-Party

in this Action and designated as “CONFIDENTIAL.” Such information produced by
Non-Parties in connection with this litigation is protected by the remedies and relief
provided by this Order. Nothing in these provisions should be construed as prohibiting a
Non-Party from seeking additional protections.
(b) In the event that a Party is required, by a valid discovery request, to produce a
Non-Party’s confidential information in its possession, and the Party is subject to an
agreement with the Non-Party not to produce the Non-Party’s confidential information,
then the Party shall:
(1) promptly notify in writing the Requesting Party and the Non-Party that
some or all of the information requested is subject to a confidentiality agreement with a
Non-Party;
(2) promptly provide the Non-Party with a copy of the Stipulated
Protective Order in this Action, the relevant discovery request(s), and a reasonably
specific description of the information requested; and
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(3) make the information requested available for inspection by the NonParty, if requested.
(c) If the Non-Party fails to seek a protective order from this court within 30 days
of receiving the notice and accompanying information, the Receiving Party may produce
the Non-Party’s confidential information responsive to the discovery request. If the NonParty timely seeks a protective order, the Receiving Party shall not produce any
information in its possession or control that is subject to the confidentiality agreement
with the Non-Party before a determination by the court. Absent a court order to the
contrary, the Non-Party shall bear the burden and expense of seeking protection in this
court of its Protected Material.
10.

UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL
If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed

Protected Material to any person or in any circumstance not authorized under this
Stipulated Protective Order, the Receiving Party must immediately (a) notify in writing
the Designating Party of the unauthorized disclosures, (b) use its best efforts to retrieve
all unauthorized copies of the Protected Material or ensure such copies are sequestered,
deleted, or destroyed, (c) inform the person or persons to whom unauthorized disclosures
were made of all the terms of this Order, and (d) request such person or persons to
execute the “Acknowledgment and Agreement to Be Bound” that is attached hereto as
Exhibit A.
11.

INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE
PROTECTED MATERIAL
Protections against the loss of any Attorney-Client Privilege, Work Product

Protection or any other privilege or immunity are set out in a separate Protective Order
under Fed. R. Evid. 502(d) Regarding Disclosure of Information Subject to AttorneyClient Privilege or Work Product Protection.
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12.

MISCELLANEOUS
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.
12.2 Right to Assert Other Objections. By stipulating to the entry of this
Protective Order, no Party waives any right it otherwise would have to object to
disclosing or producing any information or item on any ground not addressed in this
Stipulated Protective Order. Similarly, no Party waives any right to object on any ground
to use in evidence of any of the material covered by this Protective Order.
12.3 Filing Protected Material. A Party that seeks to file under seal any Protected
Material must comply with Local Civil Rule 79-5. Protected Material may only be filed
under seal pursuant to a court order authorizing the sealing of the specific Protected
Material at issue. If a Party’s request to file Protected Material under seal is denied by
the court, then the Receiving Party may file the information in the public record unless
otherwise instructed by the court.
12.4 A Receiving Party who seeks to file Protected Material without seeking to
do so under seal shall provide reasonable notice before doing so to the Producing Party,
so that the Producing Party has a reasonable opportunity to comply with Local Civil
Rule 79-5 in seeking to seal the Protected Material.
13.

FINAL DISPOSITION
After the final disposition of this Action, paragraph 4, within 60 days of a written

request by State Farm, each Receiving Party must return all Protected Material to the
Producing Party or destroy such material. As used in this subdivision, “all Protected
Material” includes all copies, abstracts, compilations, summaries, and any other format
reproducing or capturing any of the Protected Material. Whether the Protected Material
is returned or destroyed, the Receiving Party must submit a written certification to State
Farm (and, if not the same person or entity, to the Designating Party) by the 60 day
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deadline that (1) identifies (by category, where appropriate) all the Protected Material
that was returned or destroyed and (2) affirms that the Receiving Party has not retained
any copies, abstracts, compilations, summaries of any other format reproducing or
capturing any of the Protected Material. Notwithstanding this provision, Counsel are
entitled to retain an archival copy of all pleadings, motion papers, trial, deposition, and
hearing transcripts, legal memoranda, correspondence, deposition and trial exhibits,
expert reports, attorney work product, and consultant and expert work product, even if
such materials contain Protected Material. Any such archival copies that contain or
constitute Protected Material remain subject to this Protective Order as set forth in
Section 4 (DURATION).
14.

VIOLATION
Any violation of this Order may be punished by appropriate measures including,

without limitation, contempt proceedings and/or monetary sanctions.
IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD.
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Dated: April 10, 2018

GIRARD GIBBS LLP
By: /s/ Angelica M. Ornelas
Daniel C. Girard (SBN 114826)
[e-mail]
Angelica M. Ornelas (SBN 285929)
[e-mail]
Elizabeth A. Kramer (SBN 293129)
[e-mail]
601 California Street, Suite 1400
San Francisco, California 94108
Tel: [phone]
Fax: [phone]
Patrick J. Stueve (pro hac vice forthcoming)
[e-mail]
Norman E. Siegel (pro hac vice forthcoming)
[e-mail]
Ethan Lange (pro hac vice)
[e-mail]
STUEVE SIEGEL HANSON LLP
460 Nichols Road, Suite 200
Kansas City, Missouri 64112
Tel: [phone]
Fax: [phone]
John J. Schirger (pro hac vice)
[e-mail]
Matthew W. Lytle (pro hac vice)
[e-mail]
Joseph M. Feierabend (pro hac vice)
[e-mail]
MILLER SCHIRGER, LLC
4520 Main Street, Suite 1570
Kansas City, Missouri 64111
Tel: [phone]
Fax: [phone]

Jeff S. Westerman (SBN 94559)
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[e-mail]
WESTERMAN LAW CORP.
1875 Century Park East, Suite 2200
Los Angeles, CA 90067
Tel: [phone]
Fax: [phone]
Attorneys for Plaintiff
Dated: April 10, 2018

SHEPPARD MULLIN RICHTER AND
HAMPTON LLP

By: /s/ Jeremy A. Root
Jeffrey S. Crowe
[e-mail]
650 Town Center Drive 4th Floor
Costa Mesa, CA 92626
Tel: [phone]
Fax: [phone]
Frank Falzetta
[e-mail]
333 South Hope Street 43rd Floor
Los Angeles, CA 90071-1422
Tel: [phone]
Fax: [phone]

STINSON LEONARD STREET LLP
Jeremy A. Root
[e-mail]
230 West McCarty Street
Jefferson City, MO 65101
Tel: [phone]
Fax: [phone]
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Todd A. Noteboom
[e-mail]
50 South Sixth Street, Suite 2600
Minneapolis, MN 55402
Tel: [phone]
Fax: [phone]
Attorneys for Defendant
ATTESTATION
Pursuant to Local Rule 5-4.3.4(a)(2)(i), the ECF filer attests that the other
signatory listed, on whose behalf the filing is submitted, concurs in this filing’s content
and has authorized this filing.
/s/ Angelica M. Ornelas

FOR GOOD CAUSE SHOWN, IT IS SO ORDERED.
Dated: April 12, 2018

___________________________________
HON. KAREN L. STEVENSON
United States Magistrate Judge

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EXHIBIT A
ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND
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 this Stipulated Protective Order that was
issued by the United States District Court for the Central District of California on [date]
in the case of Davis v. State Farm Life Insurance Company, Case No.: 2:17-cv-08773FMO (KSx). 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 Central District of California for enforcing the terms of this Stipulated Protective
Order, even if such enforcement proceeding occurs 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:
Printed name:
Signature:

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