James F. Sweeney v. The Paul Revere Life Insurance Company et al

Filing 28

ORDER RE ENTRY OF STIPULATED PROTECTIVE ORDER 26 by Magistrate Judge Karen L. Stevenson. (see order for details) (hr)

1
2
3
4
5
6
7

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA

8
9
10
11

JAMES F. SWEENEY,
Plaintiff,

12
13
14
15

vs.
THE PAUL REVERE LIFE
INSURANCE COMPANY; UNUM
GROUP AND THE GREAT WEST
LIFE ASSURANCE COMPANY,
Defendants.

16

CASE NO: 2:18-cv-01947-RGK-KS
[PROPOSED] ORDER RE ENTRY
OF STIPULATED PROTECTIVE
ORDER
Discovery C/O: February 15, 2019
Motion C/O: March 1, 2019
Trial: May 14, 2019
Complaint Filed: March 8, 2018

17

The Court, having considered the Stipulated Protective Order submitted by the

18
19

parties hereto, and good causing appearing therefor, hereby orders as follows:

20

1.

21

A.

PURPOSES AND LIMITATIONS

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

22

proprietary, or private information for which special protection from public

23

disclosure and from use for any purpose other than prosecuting this litigation may

24

be warranted. Accordingly, the parties hereby stipulate to and petition the Court to

25

enter the following Stipulated Protective Order. The parties acknowledge that this

26

Order does not confer blanket protections on all disclosures or responses to

27

discovery and that the protection it affords from public disclosure and use extends

28
1
[PROPOSED] ORDER RE STIPULATION RE ENTRY OF PROTECTIVE ORDER

1

only to the limited information or items that are entitled to confidential treatment

2

under the applicable legal principles. The parties further acknowledge, as set forth

3

in Section 12.3, below, that this Stipulated Protective Order does not entitle them to

4

file confidential information under seal; Civil Local Rule 79-5 sets forth the

5

procedures that must be followed and the standards that will be applied when a

6

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

7

B.

8

Designation of documents and information as “CONFIDENTIAL” under this

9

GOOD CAUSE STATEMENT

order is to be made for the purposes of protecting sensitive, confidential, trade

10

secret, private and/or proprietary medical, financial or business information relating

11

to the parties and/or others. Protected Material (defined below) may also include

12

sensitive, confidential, private and personal information that relates to or concerns

13

third parties. Protected Material is information that has not been made public and

14

has been and is the subject of efforts that are reasonable under the circumstances to

15

maintain its secrecy, or information that may be privileged or otherwise protected

16

from disclosure under state or federal statutes, court rules, case decisions, or

17

common law. Accordingly, disclosure of such information to the public would

18

cause harm to the party to whom the information relates. To expedite the flow of

19

information, to facilitate the prompt resolution of disputes over confidentiality of

20

discovery materials, to adequately protect information the parties are entitled to

21

keep confidential, to ensure that the parties are permitted reasonable necessary uses

22

of such material in preparation for and in the conduct of trial, to address their

23

handling at the end of the litigation, and serve the ends of justice, a protective order

24

for such information is justified in this matter. It is the intent of the parties that

25

information will not be designated as confidential for tactical reasons and that

26

nothing be so designated without a good faith belief that it has been maintained in a

27
28
2
[PROPOSED] ORDER RE STIPULATION RE ENTRY OF PROTECTIVE ORDER

1

confidential, non-public manner, and there is good cause why it should not be part

2

of the public record of this case.

3

2.

4

DEFINITIONS
2.1

Action: the action entitled JAMES SWEENEY, Plaintiff V THE PAUL

5

REVERE LIFE INSURANCE COMPANY, UNUM GROUP, ET. AL., Defendants,

6

Case no. 2:18-cv-1947-RGK-KS.

7
8
9

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

10

how it is generated, stored or maintained) or tangible things that qualify for

11

protection under Federal Rule of Civil Procedure 26(c), and as specified above in

12

the Good Cause Statement.

13
14
15

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

16

items that it produces in disclosures or in responses to discovery as

17

“CONFIDENTIAL.”

18

2.6

Disclosure or Discovery Material: all items or information, regardless

19

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

20

among other things, testimony, transcripts, and tangible things), that are produced

21

or generated in disclosures or responses to discovery in this matter.

22

2.7

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

23

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

24

an expert witness or as a consultant in this Action.

25

2.8

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

26

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

27

counsel.

28
3
[PROPOSED] ORDER RE STIPULATION RE ENTRY OF PROTECTIVE ORDER

2.9

1
2

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

3
4

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

5

have appeared in this Action on behalf of that party or are affiliated with a law firm

6

which 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,

7
8

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

9
10

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

11
12

services (e.g., photocopying, videotaping, translating, preparing exhibits or

13

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

14

and their employees and subcontractors.
2.14 Protected Material: any Disclosure or Discovery Material that is

15
16

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

17
18

Material from a Producing Party.

19

3.

20

SCOPE
The protections conferred by this Stipulated Protective Order cover not only

21

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

22

extracted from Protected Material; (2) all copies, excerpts, summaries, or

23

compilations of Protected Material; and (3) any testimony, conversations, or

24

presentations by Parties or their Counsel that might reveal Protected Material.

25

Any use of Protected Material at trial shall be governed by the orders of the trial

26

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

27
28
4
[PROPOSED] ORDER RE STIPULATION RE ENTRY OF PROTECTIVE ORDER

1

4.

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

2
3

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

4

otherwise in writing or a court order otherwise directs. Final disposition shall be

5

deemed to be the later of (1) dismissal of all claims and defenses in this Action,

6

with or without prejudice; and (2) final judgment herein after the completion and

7

exhaustion of all appeals, rehearings, remands, trials, or reviews of this Action,

8

including the time limits for filing any motions or applications for extension of time

9

pursuant to applicable law.

10
11

5.

DESIGNATING PROTECTED MATERIAL
5.1

Exercise of Restraint and Care in Designating Material for Protection.

12

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

13

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

14

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

15

protection only those parts of material, documents, items, or oral or written

16

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

17

or communications for which protection is not warranted are not swept

18

unjustifiably within the ambit of this Order.

19

Mass, indiscriminate, or routinized designations are prohibited. Designations

20

that are shown to be clearly unjustified or that have been made for an improper

21

purpose (e.g., to unnecessarily encumber the case development process or to impose

22

unnecessary expenses and burdens on other parties) may expose the Designating

23

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

24

items that it designated for protection do not qualify for protection, that Designating

25

Party must promptly notify all other Parties that it is withdrawing the inapplicable

26

designation.

27
28
5
[PROPOSED] ORDER RE STIPULATION RE ENTRY OF PROTECTIVE ORDER

1

5.2

Manner and Timing of Designations. Except as otherwise provided in

2

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

3

stipulated or ordered, Disclosure or Discovery Material that qualifies for protection

4

under this Order must be clearly so designated before the material is disclosed or

5

produced.

6
7

Designation in conformity with this Order requires:
(a)

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

8

documents, but excluding transcripts of depositions or other pretrial or trial

9

proceedings), that the Producing Party affix at a minimum, the legend

10

“CONFIDENTIAL” (hereinafter “CONFIDENTIAL legend”), to each page that

11

contains protected material. If only a portion or portions of the material on a page

12

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

13

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

14

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

15

inspection need not designate them for protection until after the inspecting Party has

16

indicated which documents it would like copied and produced. During the

17

inspection and before the designation, all of the material made available for

18

inspection shall be deemed “CONFIDENTIAL.” After the inspecting Party has

19

identified the documents it wants copied and produced, the Producing Party must

20

determine which documents, or portions thereof, qualify for protection under this

21

Order. Then, before producing the specified documents, the Producing Party must

22

affix the “CONFIDENTIAL legend” to each page that contains Protected Material.

23

If only a portion or portions of the material on a page qualifies for protection, the

24

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

25

appropriate markings in the margins).

26
27
28
6
[PROPOSED] ORDER RE STIPULATION RE ENTRY OF PROTECTIVE ORDER

(b)

1

for testimony given in depositions that the Designating Party

2

identify all protected testimony, in writing, within 14 days after the Designating

3

Party’s receipt of the transcript of the deposition.
(c)

4

for information produced in some form other than documentary

5

and for any other tangible items, that the Producing Party affix in a prominent place

6

on the exterior of the container or containers in which the information is stored the

7

legend “CONFIDENTIAL.” If only a portion or portions of the information

8

warrants protection, the Producing Party, to the extent practicable, shall identify the

9

protected portion(s).
5.3

10

Inadvertent Failures to Designate. If timely corrected, an inadvertent

11

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

12

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

13

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

14

efforts to assure that the material is treated in accordance with the provisions of this

15

Order.

16

6.

17

CHALLENGING CONFIDENTIALITY DESIGNATIONS
6.1

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

18

designation of confidentiality at any time that is consistent with the Court’s

19

Scheduling Order.

20
21
22

6.2

Meet and Confer. The Challenging Party shall initiate the dispute

resolution process under Local Rule 37.1 et seq.
6.3

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

23

the Designating Party. Frivolous challenges, and those made for an improper

24

purpose (e.g., to harass or impose unnecessary expenses and burdens on other

25

parties) may expose the Challenging Party to sanctions. Unless the Designating

26

Party has waived or withdrawn the confidentiality designation, all parties shall

27
28
7
[PROPOSED] ORDER RE STIPULATION RE ENTRY OF PROTECTIVE ORDER

1

continue to afford the material in question the level of protection to which it is

2

entitled under the Producing Party’s designation until the Court rules on the

3

challenge.

4

7.

5

ACCESS TO AND USE OF PROTECTED MATERIAL
7.1

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

6

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

7

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

8

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

9

conditions described in this Order. When the Action has been terminated, a

10

Receiving Party must comply with the provisions of section 13 below (FINAL

11

DISPOSITION).

12

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

13

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

14

authorized under this Order.

15

7.2

Disclosure of “CONFIDENTIAL” Information or Items. Unless

16

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

17

Receiving Party may disclose any information or item designated

18

“CONFIDENTIAL” only to:

19

(a)

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

20

as well as employees of said Outside Counsel of Record to whom it is reasonably

21

necessary to disclose the information for this Action;

22
23
24

(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

25

whom disclosure is reasonably necessary for this Action and who have signed the

26

“Acknowledgment and Agreement to be Bound (Exhibit A).

27

(d)

the court and its personnel;

28
8
[PROPOSED] ORDER RE STIPULATION RE ENTRY OF PROTECTIVE ORDER

1

(e)

court reporters and their staff;

2

(f)

professional trial consultants, mock jurors, and Professional

3

Vendors to whom disclosure is reasonably necessary for this Action and who have

4

signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A);
(g)

5
6

the author or recipient of a document containing the information

or a custodian or other person who otherwise possessed or knew the information;
(h)

7

during their depositions, witnesses, and attorneys for witnesses,

8

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

9

deposing party requests that the witness sign the form attached as Exhibit 1 hereto;

10

and (2) they will not be permitted to keep any confidential information unless they

11

sign the “Acknowledgment and Agreement to Be Bound” (Exhibit A), unless

12

otherwise agreed by the Designating Party or ordered by the court. Pages of

13

transcribed deposition testimony or exhibits to depositions that reveal Protected

14

Material may be separately bound by the court reporter and may not be disclosed to

15

anyone except as permitted under this Stipulated Protective Order; and
(i)

16

any mediator or settlement officer, and their supporting

17

personnel, mutually agreed upon by any of the parties engaged in settlement

18

discussions.

19

8.

PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED

20

IN OTHER LITIGATION

21

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

22

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

23

“CONFIDENTIAL,” that Party must:

24
25
26

(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

27
28
9
[PROPOSED] ORDER RE STIPULATION RE ENTRY OF PROTECTIVE ORDER

1

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

2

subpoena or order is subject to this Protective Order. Such notification shall include

3

a copy of this Stipulated Protective Order; and
(c)

4

cooperate with respect to all reasonable procedures sought to be

5

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

6

Designating Party timely seeks a protective order, the Party served with the

7

subpoena or court order shall not produce any information designated in this action

8

as “CONFIDENTIAL” before a determination by the court from which the

9

subpoena or order issued, unless the Party has obtained the Designating Party’s

10

permission. The Designating Party shall bear the burden and expense of seeking

11

protection in that court of its confidential material and nothing in these provisions

12

should be construed as authorizing or encouraging a Receiving Party in this Action

13

to disobey a lawful directive from another court.

14

9.

A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE

15

PRODUCED IN THIS LITIGATION

16

(a)

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

17

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

18

produced by Non-Parties in connection with this litigation is protected by the

19

remedies and relief provided by this Order. Nothing in these provisions should be

20

construed as prohibiting a Non-Party from seeking additional protections.

21

(b)

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

22

produce a Non-Party’s confidential information in its possession, and the Party is

23

subject to an agreement with the Non-Party not to produce the Non-Party’s

24

confidential information, then the Party shall:

25

(1)

promptly notify in writing the Requesting Party and the Non-

26

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

27

agreement with a Non-Party;

28
10
[PROPOSED] ORDER RE STIPULATION RE ENTRY OF PROTECTIVE ORDER

(2)

1

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

2

Protective Order in this Action, the relevant discovery request(s), and a reasonably

3

specific description of the information requested; and
(3)

4
5

make the information requested available for inspection by the

Non-Party, if requested.
(c)

6

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

7

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

8

may produce the Non-Party’s confidential information responsive to the discovery

9

request. If the Non-Party timely seeks a protective order, the Receiving Party shall

10

not produce any information in its possession or control that is subject to the

11

confidentiality agreement with the Non-Party before a determination by the court.

12

Absent a court order to the contrary, the Non-Party shall bear the burden and

13

expense of seeking protection in this court of its Protected Material.

14

10.

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

15
16

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

17

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

18

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

19

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

20

or persons to whom unauthorized disclosures were made of all the terms of this

21

Order, and (d) request such person or persons to execute the “Acknowledgment and

22

Agreement to Be Bound” that is attached hereto as Exhibit A.

23

11.

INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE

24

PROTECTED MATERIAL

25

When a Producing Party gives notice to Receiving Parties that certain

26

inadvertently produced material is subject to a claim of privilege or other

27

protection, the obligations of the Receiving Parties are those set forth in Federal

28
11
[PROPOSED] ORDER RE STIPULATION RE ENTRY OF PROTECTIVE ORDER

1

Rule of Civil Procedure 26(b)(5)(B). This provision is not intended to modify

2

whatever procedure may be established in an e-discovery order that provides for

3

production without prior privilege review. Pursuant to Federal Rule of Evidence

4

502(d) and (e), insofar as the parties reach an agreement on the effect of disclosure

5

of a communication or information covered by the attorney-client privilege or work

6

product protection, the parties may incorporate their agreement in the stipulated

7

protective order submitted to the court.

8

12.

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

9
10

MISCELLANEOUS

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

11
12

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

13

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

14

Stipulated Protective Order. Similarly, no Party waives any right to object on any

15

ground to use in evidence of any of the material covered by this Protective Order.

16

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

17

Protected Material must comply with Civil Local Rule 79-5. Protected Material

18

may only be filed under seal pursuant to a court order authorizing the sealing of the

19

specific Protected Material at issue. If a Party's request to file Protected Material

20

under seal is denied by the court, then the Receiving Party may file the information

21

in the public record unless otherwise instructed by the court.
If a Receiving Party intends to file with the court any Protected Material, the

22
23

Receiving Party shall provide sufficient notice of such intent to the Designating

24

Party to allow the Designating Party time to request the court to seal the Protected

25

Material, and the Receiving Party shall cooperate with the Designating Party’s

26

request for sealing.

27

\\

28
12
[PROPOSED] ORDER RE STIPULATION RE ENTRY OF PROTECTIVE ORDER

1
2

13.

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

3

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

4

return all Protected Material to the Producing Party or destroy such material. As

5

used in this subdivision, “all Protected Material” includes all copies, abstracts,

6

compilations, summaries, and any other format reproducing or capturing any of the

7

Protected Material. Whether the Protected Material is returned or destroyed, the

8

Receiving Party must submit a written certification to the Producing Party (and, if

9

not the same person or entity, to the Designating Party) by the 60 day deadline that

10

(1) identifies (by category, where appropriate) all the Protected Material that was

11

returned or destroyed and (2) affirms that the Receiving Party has not retained any

12

copies, abstracts, compilations, summaries or any other format reproducing or

13

capturing any of the Protected Material. Notwithstanding this provision, Counsel

14

are entitled to retain an archival copy of all pleadings, motion papers, trial,

15

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

16

and trial exhibits, and attorney work product, even if such materials contain

17

Protected Material. Any such archival copies that contain or constitute Protected

18

Material remain subject to this Protective Order as set forth in Section 4

19

(DURATION).

20

14.

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

21

measures including, without limitation, contempt proceedings and/or monetary

22

sanctions.

23
24

IT IS SO ORDERED.

25
26
27
28

Date: November 9, 2018

___________________________________
KAREN L. STEVENSON
UNITED STATES MAGISTRATE JUDGE

13
[PROPOSED] ORDER RE STIPULATION RE ENTRY OF PROTECTIVE ORDER

1

EXHIBIT A

2

ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND

3

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

4

_________________ [print or type full address], declare under penalty of perjury

5

that I have read in its entirety and understand the Stipulated Protective Order that

6

was issued by the United States District Court for the Central District of California

7

in the case entitled James Sweeney Plaintiff, vs. Paul Revere Life Insurance

8

Company, Unum Group, et. al., Defendants, Case no. 2:18-cv-01947 RGK-KS,

9

Central District of California. I agree to comply with and to be bound by all the

10

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

11

failure to so comply could expose me to sanctions and punishment in the nature of

12

contempt. I solemnly promise that I will not disclose in any manner any information

13

or item that is subject to this Stipulated Protective Order to any person or entity

14

except in strict compliance with the provisions of this Order.

15

I further agree to submit to the jurisdiction of the United States District Court

16

for the Central District of California for the purpose of enforcing the terms of this

17

Stipulated Protective Order, even if such enforcement proceedings occur after

18

termination of this action. I hereby appoint __________________________ [print or

19

type full name] of _______________________________________ [print or type

20

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

21

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

22

Stipulated Protective Order.

23

Executed this __ day of ________, 201__ in _________________________

24

by _______________________________.

25

Signature: __________________________________

26
27
28
1
[PROPOSED] ORDER RE STIPULATION RE ENTRY OF PROTECTIVE ORDER