Aaron Kaufman v. Federal Insurance Company et al

Filing 15

PROTECTIVE ORDER by Magistrate Judge Michael R. Wilner. re Stipulation for Protective Order 14 (vm)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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AARON KAUFMAN,

Case No. CV18-00844-ODW(MRWx)

Plaintiff,
STIPULATED PROTECTIVE ORDER

v.
CHUBB LIMITED, et. al.

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Defendants.

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1.

INTRODUCTION

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1.1

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

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or private information for which special protection from public disclosure and from use

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for any purpose other than prosecuting this litigation may be warranted. Accordingly, the

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parties hereby stipulate to and petition the Court to enter the following Stipulated

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Protective Order. The parties acknowledge that this Order does not confer blanket

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protections on all disclosures or responses to discovery and that the protection it affords

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from public disclosure and use extends only to the limited information or items that are

{L0069599.1 }

PURPOSES AND LIMITATIONS

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STIPULATED PROTECTIVE ORDER

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entitled to confidential treatment under the applicable legal principles. The parties further

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acknowledge, as set forth in Section 12.3, below, that this Stipulated Protective Order

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does not entitle them to file confidential information under seal; Civil Local Rule 79-5

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sets forth the procedures that must be followed and the standards that will be applied

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when a party seeks permission from the court to file material under seal.

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1.2

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Good cause exists to enter into this protective order, because of the following

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GOOD CAUSE STATEMENT

reasons:
(1)

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In response to discovery requests from Federal Insurance Company

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(“Federal”), plaintiff Aaron Kaufman (“Kaufman”) has identified

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certain discovery, deposition, and written materials previously

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identified by California Physicians Service dba Blue Shield of

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California (“Blue Shield”) as “confidential” in the underlying action

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of Kaufman v. California Physicians’ Service dba Blue Shield of

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California, Los Angeles County Superior Court, Case No. BC577827

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(“underlying action”), which remain subject to two protective orders

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entered in that underlying action that does not permit Kaufman to

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disclose “confidential” materials to his insurers in this case. The

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parties are working with Blue Shield’s counsel to stipulate to

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disclosure of these responsive discovery, depositions, and written

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materials designated as “confidential” in the underlying action in this

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action, subject to entry of a Stipulated Protective Order in this action.
(2)

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In response to Federal’s discovery responses in the instant action,

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Kaufman has identified certain attorneys’ fees and costs he has

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incurred in the underlying action, which are subject to the attorney-

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client and attorney work product privileges in the underlying action,

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which shall be the subject of a Stipulated Protective Order in this

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action.

{L0069599.1 }

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STIPULATED PROTECTIVE ORDER

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2.

DEFINITIONS

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2.1

Action: The pending federal lawsuit.

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2.2

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

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information or items under this Order.
2.3

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

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is generated, stored or maintained) or tangible things that qualify for protection under

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Federal Rule of Civil Procedure 26(c), and as specified above in the Good Cause

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Statement.

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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.”
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Disclosure or Discovery Material: All items or information, regardless of the

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medium or manner in which it is generated, stored, or maintained (including, among

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other things, testimony, transcripts, and tangible things), that are produced or generated in

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disclosures or responses to discovery in this matter.

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2.7

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

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pertinent to the litigation who has been retained by a Party or its counsel to serve as an

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expert witness or as a consultant in this Action.

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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.
2.9

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

other legal entity not named as a Party to this Action.

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2.10 Outside Counsel of Record: Attorneys who are not employees of a Party to

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this Action but are retained to represent or advise a party to this Action and have

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appeared in this Action on behalf of that Party or are affiliated with a law firm that has

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appeared on behalf of that Party, and includes support staff.

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{L0069599.1 }

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STIPULATED PROTECTIVE ORDER

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2.11 Party: Any party to this Action, including all of its officers, directors,

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employees, consultants, retained experts, and Outside Counsel of Record (and their

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support staffs).
2.12 Producing Party: A Party or Non-Party that produces Disclosure or

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

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services

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demonstrations, and organizing, storing, or retrieving data in any form or medium) and

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their employees and subcontractors.

photocopying,

videotaping,

translating,

preparing

exhibits

or

2.14 Protected Material: Any Disclosure or Discovery Material that is designated

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(e.g.,

as “CONFIDENTIAL.”
2.15 Receiving Party: A Party that receives Disclosure or Discovery Material

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from a Producing Party.

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3.

SCOPE

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

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Material (as defined above), but also (1) any information copied or extracted from

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Protected Material; (2) all copies, excerpts, summaries, or compilations of Protected

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Material; and (3) any testimony, conversations, or presentations by Parties or their

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Counsel that might reveal Protected Material.
Any use of Protected Material at trial will be governed by the orders of the trial

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judge. This Order does not govern the use of Protected Material at trial.

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4.

DURATION

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Even after final disposition of this litigation, the confidentiality obligations

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imposed by this Order will remain in effect until a Designating Party agrees otherwise in

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writing or a court order otherwise directs. Final disposition will be deemed to be the later

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of (1) dismissal of all claims and defenses in this Action, with or without prejudice; and

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(2) final judgment herein after the completion and exhaustion of all appeals, rehearings,

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{L0069599.1 }

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STIPULATED PROTECTIVE ORDER

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remands, trials, or reviews of this Action, including the time limits for filing any motions

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or applications for extension of time pursuant to applicable law.

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5.

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DESIGNATING PROTECTED MATERIAL
5.1

Exercise of Restraint and Care in Designating Material for Protection.

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Each Party or Non-Party that designates information or items for protection under this

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Order must take care to limit any such designation to specific material that qualifies

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under the appropriate standards. The Designating Party must designate for protection

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only those parts of material, documents, items, or oral or written communications that

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qualify so that other portions of the material, documents, items, or communications for

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which protection is not warranted are not swept unjustifiably within the ambit of this

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Order.

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Mass, indiscriminate, or routinized designations are prohibited. Designations that

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are shown to be clearly unjustified or that have been made for an improper purpose (e.g.,

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to unnecessarily encumber the case development process or to impose unnecessary

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expenses and burdens on other parties) may expose the Designating Party to sanctions.

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If it comes to a Designating Party’s attention that information or items that it

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designated for protection do not qualify for protection, that Designating Party must

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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

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Order (see, e.g., second paragraph of section 5.2(a) below), or as otherwise stipulated or

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ordered, Disclosure or Discovery Material that qualifies for protection under this Order

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must be clearly so designated before the material is disclosed or produced.

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Designation in conformity with this Order requires:

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(a)

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

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but excluding transcripts of depositions or other pretrial or trial proceedings), that the

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Producing Party affix at a minimum, the legend “CONFIDENTIAL” (hereinafter

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“CONFIDENTIAL legend”), to each page that contains protected material. If only a

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portion or portions of the material on a page qualifies for protection, the Producing Party

{L0069599.1 }

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STIPULATED PROTECTIVE ORDER

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also must clearly identify the protected portion(s) (e.g., by making appropriate markings

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in the margins).

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A Party or Non-Party that makes original documents available for inspection need

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not designate them for protection until after the inspecting Party has indicated which

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documents it would like copied and produced. During the inspection and before the

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designation, all of the material made available for inspection will be deemed

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“CONFIDENTIAL.” After the inspecting Party has identified the documents it wants

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copied and produced, the Producing Party must determine which documents, or portions

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thereof, qualify for protection under this Order. Then, before producing the specified

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documents, the Producing Party must affix the “CONFIDENTIAL legend” to each page

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that contains Protected Material. If only a portion or portions of the material on a page

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qualifies for protection, the Producing Party also must clearly identify the protected

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portion(s) (e.g., by making appropriate markings in the margins).

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(b)

for testimony given in depositions that the Designating Party identify the

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Disclosure or Discovery Material on the record, before the close of the deposition all

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protected testimony.

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(c)

for information produced in some form other than documentary and for any

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other tangible items, that the Producing Party affix in a prominent place on the exterior of

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the container or containers in which the information is stored the legend

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“CONFIDENTIAL.” If only a portion or portions of the information warrants protection,

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the Producing Party, to the extent practicable, will identify the protected portion(s).

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5.3

Inadvertent Failures to Designate. If timely corrected, an inadvertent failure

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to designate qualified information or items does not, standing alone, waive the

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Designating Party’s right to secure protection under this Order for such material. Upon

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timely correction of a designation, the Receiving Party must make reasonable efforts to

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assure that the material is treated in accordance with the provisions of this Order.

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{L0069599.1 }

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STIPULATED PROTECTIVE ORDER

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6.

6.1

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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

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CHALLENGING CONFIDENTIALITY DESIGNATIONS

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

process (and, if necessary, file a discovery motion) under Local Rule 37.1 et seq.
6.3

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

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Designating Party. Frivolous challenges, and those made for an improper purpose (e.g., to

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harass or impose unnecessary expenses and burdens on other parties) may expose the

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Challenging Party to sanctions. Unless the Designating Party has waived or withdrawn

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the confidentiality designation, all parties will continue to afford the material in question

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the level of protection to which it is entitled under the Producing Party’s designation until

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the Court rules on the challenge.

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7.

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ACCESS TO AND USE OF PROTECTED MATERIAL
7.1

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

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disclosed or produced by another Party or by a Non-Party in connection with this Action

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only for prosecuting, defending, or attempting to settle this Action. Such Protected

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Material may be disclosed only to the categories of persons and under the conditions

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described in this Order. When the Action has been terminated, a Receiving Party must

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comply with the provisions of section 13 below (FINAL DISPOSITION).

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Protected Material must be stored and maintained by a Receiving Party at a

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location and in a secure manner that ensures that access is limited to the persons

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authorized under this Order.

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7.2

Disclosure of “CONFIDENTIAL” Information or Items. Unless otherwise

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

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may disclose any information or item designated “CONFIDENTIAL” only to:

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(a)

the Receiving Party’s Outside Counsel of Record in this Action, as well as

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employees of said Outside Counsel of Record to whom it is reasonably necessary to

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disclose the information for this Action;

{L0069599.1 }

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STIPULATED PROTECTIVE ORDER

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(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

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is reasonably necessary for this Action and who have signed the “Acknowledgment and

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Agreement to Be Bound” (Exhibit A);

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(d)

the Court and its personnel;

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(e)

court reporters and their staff;

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(f)

professional jury or trial consultants, mock jurors, and Professional Vendors

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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

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Action to whom disclosure is reasonably necessary provided: (1) the deposing party

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requests that the witness sign the form attached as Exhibit A hereto; and (2) they will not

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be permitted to keep any confidential information unless they sign the “Acknowledgment

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and Agreement to Be Bound” (Exhibit A), unless otherwise agreed by the Designating

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Party or ordered by the court. Pages of transcribed deposition testimony or exhibits to

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depositions that reveal Protected Material may be separately bound by the court reporter

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and may not be disclosed to anyone except as permitted under this Stipulated Protective

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Order;

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(i)

any mediator or settlement officer, and their supporting personnel, mutually

agreed upon by any of the parties engaged in settlement discussions; and

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(j)

Federal’s reinsurers and regulators, to the extent required by contract and

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applicable law.

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{L0069599.1 }

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STIPULATED PROTECTIVE ORDER

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8.

PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED IN

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OTHER LITIGATION

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

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compels disclosure of any information or items designated in this Action as

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“CONFIDENTIAL,” that Party must:
(a)

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promptly notify in writing the Designating Party. Such notification will

include a copy of the subpoena or court order;
(b)

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promptly notify in writing the party who caused the subpoena or order to

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issue in the other litigation that some or all of the material covered by the subpoena or

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order is subject to this Protective Order. Such notification will include a copy of this

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Stipulated Protective Order; and
(c)

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cooperate with respect to all reasonable procedures sought to be pursued by

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the Designating Party whose Protected Material may be affected. If the Designating

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Party timely seeks a protective order, the Party served with the subpoena or court order

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will not produce any information designated in this action as “CONFIDENTIAL” before

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a determination by the court from which the subpoena or order issued, unless the Party

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has obtained the Designating Party’s permission. The Designating Party will bear the

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burden and expense of seeking protection in that court of its confidential material and

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nothing in these provisions should be construed as authorizing or encouraging a

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Receiving Party in this Action to disobey a lawful directive from another court.

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9.

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IN THIS LITIGATION

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A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE PRODUCED
(a)

The terms of this Order are applicable to information produced by a Non-

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Party in this Action and designated as “CONFIDENTIAL.” Such information produced

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by Non-Parties in connection with this litigation is protected by the remedies and relief

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provided by this Order. Nothing in these provisions should be construed as prohibiting a

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Non-Party from seeking additional protections.

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{L0069599.1 }

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STIPULATED PROTECTIVE ORDER

(b)

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

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a Non-Party’s confidential information in its possession, and the Party is subject to an

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agreement with the Non-Party not to produce the Non-Party’s confidential information,

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then the Party will:
(1)

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promptly notify in writing the Requesting Party and the Non-Party

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that some or all of the information requested is subject to a confidentiality agreement

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with a Non-Party;
(2)

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Protective Order in this Action, the relevant discovery request(s), and a reasonably
specific description of the information requested; and
(3)

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promptly provide the Non-Party with a copy of the Stipulated

make the information requested available for inspection by the Non-

Party, if requested.
(c)

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If the Non-Party fails to seek a protective order from this court within 14

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days of receiving the notice and accompanying information, the Receiving Party may

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produce the Non-Party’s confidential information responsive to the discovery request. If

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the Non-Party timely seeks a protective order, the Receiving Party will not produce any

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information in its possession or control that is subject to the confidentiality agreement

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with the Non-Party before a determination by the court. Absent a court order to the

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contrary, the Non-Party will bear the burden and expense of seeking protection in this

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court of its Protected Material.

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10.

UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL

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

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Protected Material to any person or in any circumstance not authorized under this

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Stipulated Protective Order, the Receiving Party must immediately (a) notify in writing

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the Designating Party of the unauthorized disclosures, (b) use its best efforts to retrieve

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all unauthorized copies of the Protected Material, (c) inform the person or persons to

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whom unauthorized disclosures were made of all the terms of this Order, and (d) request

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{L0069599.1 }

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STIPULATED PROTECTIVE ORDER

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such person or persons to execute the “Acknowledgment and Agreement to Be Bound”

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that is attached hereto as Exhibit A.

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PROTECTED MATERIAL

INADVERTENT

PRODUCTION

OF

PRIVILEGED

OR

OTHERWISE

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When a Producing Party gives notice to Receiving Parties that certain inadvertently

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produced material is subject to a claim of privilege or other protection, the obligations of

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the Receiving Parties are those set forth in Federal Rule of Civil Procedure 26(b)(5)(B).

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This provision is not intended to modify whatever procedure may be established in an e-

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discovery order that provides for production without prior privilege review. Pursuant to

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Federal Rule of Evidence 502(d) and (e), insofar as the parties reach an agreement on the

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effect of disclosure of a communication or information covered by the attorney-client

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privilege or work product protection, the parties may incorporate their agreement in the

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stipulated protective order submitted to the court.

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12.

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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.

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12.2 Right to Assert Other Objections. By stipulating to the entry of this

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Protective Order no Party waives any right it otherwise would have to object to disclosing

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or producing any information or item on any ground not addressed in this Stipulated

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Protective Order. Similarly, no Party waives any right to object on any ground to use in

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evidence of any of the material covered by this Protective Order.

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12.3 Filing Protected Material. A Party that seeks to file under seal any Protected

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Material must comply with Civil Local Rule 79-5. Protected Material may only be filed

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under seal pursuant to a court order authorizing the sealing of the specific Protected

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Material at issue. If a Party's request to file Protected Material under seal is denied by the

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court, then the Receiving Party may file the information in the public record unless

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otherwise instructed by the court.

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{L0069599.1 }

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STIPULATED PROTECTIVE ORDER

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13.

FINAL DISPOSITION

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After the final disposition of this Action, as defined in paragraph 4, within 60 days

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of a written request by the Designating Party, each Receiving Party must return all

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Protected Material to the Producing Party or destroy such material. As used in this

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subdivision, “all Protected Material” includes all copies, abstracts, compilations,

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summaries, and any other format reproducing or capturing any of the Protected Material.

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Whether the Protected Material is returned or destroyed, the Receiving Party must submit

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a written certification to the Producing Party (and, if not the same person or entity, to the

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Designating Party) by the 60 day deadline that (1) identifies (by category, where

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appropriate) all the Protected Material that was returned or destroyed and (2) affirms that

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the Receiving Party has not retained any copies, abstracts, compilations, summaries or

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any other format reproducing or capturing any of the Protected Material. Notwithstanding

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this provision, Counsel are entitled to retain an archival copy of all pleadings, motion

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papers, trial, deposition, and hearing transcripts, legal memoranda, correspondence,

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deposition and trial exhibits, expert reports, attorney work product, and consultant and

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expert work product, even if such materials contain Protected Material. In addition,

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Federal may retain an archival copy of Protected Material or pleadings, motion papers,

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trial, deposition, and hearing transcripts, legal memoranda, correspondence, deposition

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and trial exhibits, expert reports, attorney work product, and consultant and expert work

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product in its possession, even if such materials contain Protected Material, to the extent

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it is required to do so for regulatory reasons. Any such archival copies that contain or

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constitute Protected Material remain subject to this Protective Order as set forth in

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Section 4 (DURATION).

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14.

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proceedings, financial or evidentiary sanctions, reference to disciplinary authorities, or

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other appropriate action at the discretion of the Court.

Any willful violation of this Order may be punished by civil or criminal contempt

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{L0069599.1 }

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STIPULATED PROTECTIVE ORDER

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Pursuant to Local Rule 5-4.3.4(a)(2), I hereby certify that all of other signatories

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listed, on whose behalf this filing is submitted, concur with the contents of this filing and

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have authorized the filing.

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IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD.

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CWIKLO LAW FIRM

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DATED: October 1, 2018

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/s/ David Peter Cwiklo
David Peter Cwiklo
Attorneys
for Plaintiff
Kaufman

Aaron

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LONDON FISCHER LLP

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DATED: October 1, 2018

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/s/ Elizabeth L. Musser
Richard S. Endres
Elizabeth L. Musser
Attorneys for Defendants Federal
Insurance Company and Chubb
National Insurance Company

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FOR GOOD CAUSE SHOWN, IT IS SO ORDERED.
DATED:_______________
10/1/2018

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__________________________________
HON. MICHAEL R. WILNER
United States Magistrate Judge

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{L0069599.1 }

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STIPULATED PROTECTIVE ORDER

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EXHIBIT A

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ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND

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I, _____________________________ [full name], of _________________ [full

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address], declare under penalty of perjury that I have read in its entirety and understand

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the Stipulated Protective Order that was issued by the United States District Court for the

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Central District of California on [date] in the case of Kaufman v. Chubb Limited, et al.,

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Case No. 2:18-cv-844-ODW-MRW. I agree to comply with and to be bound by all the

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terms of this Stipulated Protective Order and I understand and acknowledge that failure to

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so comply could expose me to sanctions and punishment in the nature of contempt. I

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solemnly promise that I will not disclose in any manner any information or item that is

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subject to this Stipulated Protective Order to any person or entity except in strict

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compliance with the provisions of this Order. I further agree to submit to the jurisdiction

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of the United States District Court for the Central District of California for the purpose of

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enforcing the terms of this Stipulated Protective Order, even if such enforcement

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proceedings

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__________________________ [full name] of ________________________________

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[full address and telephone number] as my California agent for service of process in

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connection with this action or any proceedings related to enforcement of this Stipulated

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Protective Order.

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Date: ______________________________________

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City and State where signed: _________________________________

occur

after

termination

of

this

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Printed name: _______________________________

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Signature: __________________________________

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{L0069599.1 }

action.

I

hereby

appoint