Home Depot U.S.A., Inc. v. Twin City Fire Insurance Company et al

Filing 35

PROTECTIVE ORDER by Magistrate Judge Jacqueline Chooljian: re Stipulation for Protective Order 34 . (See document.) (sbou)

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UNITED STATES DISTRICT COURT

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FOR THE CENTRAL DISTRICT OF CALIFORNIA

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A Law Corporation
300 Tamal Plaza, Suite 215
Corte Madera, CA 94925

JOHNSTON | SMITH

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HOME DEPOT, U.S.A., INC.,

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Plaintiff,

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vs.

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TWIN CITY FIRE INSURANCE
COMPANY, NATIONAL UNION
FIRE INSURANCE COMPANY
OF PITTSBURGH, and DOES 120,

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Defendants.

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A.

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CASE NO. 2:18-cv-03051 DDP (JCx)
PROTECTIVE ORDER
DATE ACTION FILED: 4/11/2018
TRIAL DATE:
None

PURPOSES AND LIMITATIONS

As the parties have represented that discovery in this action is likely to

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involve production of confidential, proprietary, or private information for which

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special protection from public disclosure and from use for any purpose other than

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prosecuting this litigation may be warranted, this Court enters the following

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Protective Order. This Order does not confer blanket protections on all disclosures

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or responses to discovery. The protection it affords from public disclosure and use

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

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treatment under the applicable legal principles. Further, as set forth in Section

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12.3, below, this Protective Order does not entitle the parties to file confidential

Protective Order

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information under seal. Rather, when the parties seek permission from the court to

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file material under seal, the parties must comply with Civil Local Rule 79-5 and

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with any pertinent orders of the assigned District Judge and Magistrate Judge.

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B.

GOOD CAUSE STATEMENT

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In light of the nature of the claims and allegations in this case and the

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parties’ representations that discovery in this case will involve the production of

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confidential records, and in order to expedite the flow of information, to facilitate

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the prompt resolution of disputes over confidentiality of discovery materials, to

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adequately protect information the parties are entitled to keep confidential, to

A Law Corporation
300 Tamal Plaza, Suite 215
Corte Madera, CA 94925

ensure that the parties are permitted reasonable necessary uses of such material in

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JOHNSTON | SMITH

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connection with this action, to address their handling of such material at the end of

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the litigation, and to serve the ends of justice, a protective order for such

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information is justified in this matter. The parties shall not designate any

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information/documents as confidential without a good faith belief that such

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information/documents have been maintained in a confidential, non-public manner,

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and that there is good cause or a compelling reason why it should not be part of the

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public record of this case.

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2.

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DEFINITIONS
2.1

Action: Home Depot, U.S.A., Inc. v. Twin City Fire Insurance

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Company, et al., U.S. District Court, Central District of California, Case No. 2:18-

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cv-03051 DDP (JCx).

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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

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

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

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in the Good Cause Statement.

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Protective Order

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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

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

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“CONFIDENTIAL.”

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2.6

Disclosure or Discovery Material: all items or information, regardless

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

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

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generated in 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

A Law Corporation
300 Tamal Plaza, Suite 215
Corte Madera, CA 94925

JOHNSTON | SMITH

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

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an 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.

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

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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

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

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

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which has appeared on behalf of that party, and includes support staff.

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

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claims administrators, employees, consultants, retained experts, and Outside

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Counsel of Record (and their support staffs).

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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

Protective Order

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

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

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

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Material from a Producing Party.

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3.

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SCOPE
The protections conferred by this Order cover not only Protected Material

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

A Law Corporation
300 Tamal Plaza, Suite 215
Corte Madera, CA 94925

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

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JOHNSTON | SMITH

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

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Parties or their Counsel that might reveal Protected Material, other than during a

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court hearing or at trial.

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Any use of Protected Material during a court hearing or at trial shall be

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governed by the orders of the presiding judge. This Order does not govern the use

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of Protected Material during a court hearing or at trial.

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4.

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

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

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

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

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

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

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

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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.

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

Protective Order

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

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

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

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

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items, or communications for which protection is not warranted are not swept

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unjustifiably within the ambit of this Order.

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Mass, indiscriminate, or routinized designations are prohibited. Designations
purpose (e.g., to unnecessarily encumber the case development process or to

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

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A Law Corporation
300 Tamal Plaza, Suite 215
Corte Madera, CA 94925

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

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JOHNSTON | SMITH

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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

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

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

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

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produced.

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Designation in conformity with this Order requires:
(a)

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

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documents, but excluding transcripts of depositions), that the Producing Party affix

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at a minimum, the legend “CONFIDENTIAL-- USDC, Central District of

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California, Case No. 2:18-cv-03051 DDP (JCx)” (hereinafter “CONFIDENTIAL

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legend”), to each page that contains protected material. If only a portion or

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

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

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markings in the margins).

Protective Order

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

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

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

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before the designation, all of the material made available for inspection shall be

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deemed “CONFIDENTIAL.” After the inspecting Party has identified the

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

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which documents, or portions thereof, qualify for protection under this Order.

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Then, before producing the specified documents, the Producing Party must affix

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

A Law Corporation
300 Tamal Plaza, Suite 215
Corte Madera, CA 94925

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

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JOHNSTON | SMITH

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

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appropriate markings in the margins).

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(b) for testimony given in depositions such designation shall be made

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on the record whenever possible, but a Designating Party may designate portions of

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depositions as containing “CONFIDENTIAL” information after transcription of the

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proceedings; the Designating Party shall have until fifteen (15) days after receipt of

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the deposition transcript to inform the Receiving Party or parties to the action of the

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portions of the transcript designated “CONFIDENTIAL”.

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(c) for information produced in some form other than documentary

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

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

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

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information warrants protection, the Producing Party, to the extent practicable,

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shall identify the protected portion(s).

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5.3

Inadvertent Failures to Designate. If timely corrected, an inadvertent

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

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

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

Protective Order

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reasonable efforts to assure that the material is treated in accordance with the

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provisions of this Order.

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6.

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CHALLENGING CONFIDENTIALITY DESIGNATIONS
6.1

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

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

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Scheduling Order.

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6.2

Meet and Confer. The Challenging Party shall initiate the dispute

resolution process under Local Rule 37-1 et seq.

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6.3

The burden of persuasion in any such challenge proceeding shall be

A Law Corporation
300 Tamal Plaza, Suite 215
Corte Madera, CA 94925

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

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JOHNSTON | SMITH

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

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

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

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

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

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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

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

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

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

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Receiving Party must comply with the provisions of Section 13 below.

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

Protective Order

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Receiving Party may disclose any information or item designated

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

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

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necessary to disclose the information for this Action;
(b) the officers, directors, claims administrators and employees

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(including House Counsel) of the Receiving Party to whom disclosure is

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

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A Law Corporation
300 Tamal Plaza, Suite 215
Corte Madera, CA 94925

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

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JOHNSTON | SMITH

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“Acknowledgment and 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

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Professional Vendors to whom disclosure is reasonably necessary for this Action

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and who have signed the “Acknowledgment and Agreement to Be Bound” (Exhibit

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A);

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(g) the author or recipient of a document containing the information

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

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(h) during their depositions, witnesses, and attorneys for witnesses, in

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

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party requests that the witness sign the “Acknowledgment and Agreement to Be

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Bound” form attached as Exhibit A hereto; and (2) they will not be permitted to

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keep any confidential information unless they sign the “Acknowledgment and

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Agreement to Be Bound” attached as Exhibit A, unless otherwise agreed by the

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Designating Party or ordered by the court. Pages of transcribed deposition

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testimony or exhibits to depositions that reveal Protected Material may be

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Protective Order

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

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as permitted under this Protective Order;
(i) any mediator or settlement officer, and their supporting personnel,

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mutually agreed upon by any of the parties engaged in settlement discussions;
(j) Auditors, regulators, or reinsurers of the Receiving Party to whom

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

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“Acknowledgment and Agreement to Be Bound” (Exhibit A); and
(k) any other person or entity that the Designating Party agrees to in

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writing.
8.

PROTECTED MATERIAL SUBPOENAED OR ORDERED

A Law Corporation
300 Tamal Plaza, Suite 215
Corte Madera, CA 94925

JOHNSTON | SMITH

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PRODUCED IN OTHER LITIGATION

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

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

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“CONFIDENTIAL,” that Party must:
(a) promptly notify in writing the Designating Party. Such

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notification shall include a copy of the subpoena or court order unless prohibited

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by law;

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(b) promptly notify in writing the party who caused the subpoena or

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

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

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include a copy of this 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

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with the subpoena or court order shall not produce any information designated in

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

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

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permission, or unless otherwise required by the law or court order. The

Protective Order

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Designating Party shall bear the burden and expense of seeking protection in that

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court of its confidential material and nothing in these provisions should be

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construed as authorizing or encouraging a Receiving Party in this Action to

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disobey a lawful directive from another court.

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9.

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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

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

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

A Law Corporation
300 Tamal Plaza, Suite 215
Corte Madera, CA 94925

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

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JOHNSTON | SMITH

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should be construed as prohibiting a Non-Party from seeking additional

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protections.

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(b) In the event that a Party is required, by a valid discovery request,

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

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

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confidential information, then the Party shall:
(1) promptly notify in writing the Requesting Party and the

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

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confidentiality agreement with a Non-Party;
(2) promptly provide the Non-Party with a copy of the

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

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specific description of the information requested; and
(3) make the information requested available for inspection by

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the Non-Party, if requested.
(c) If a Non-Party represented by counsel fails to commence the

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process called for by Local Rules 45-1 and 37-1, et seq. within 14 days of

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receiving the notice and accompanying information or fails contemporaneously to

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notify the Receiving Party that it has done so, the Receiving Party may produce the

Protective Order

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

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unrepresented 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

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

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

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

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

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unless otherwise required by the law or court order. Absent a court order to the

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

A Law Corporation
300 Tamal Plaza, Suite 215
Corte Madera, CA 94925

this court of its Protected Material.

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JOHNSTON | SMITH

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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

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disclosed Protected Material to any person or in any circumstance not authorized

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

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

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

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

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

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“Acknowledgment and Agreement to Be Bound” that is attached hereto as Exhibit

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A.

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11.

INADVERTENT PRODUCTION OF PRIVILEGED OR

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OTHERWISE PROTECTED MATERIAL

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When a Producing Party gives notice to Receiving Parties that certain

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

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

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

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

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

Protective Order

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

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

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work product protection, the parties may incorporate their agreement into this

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Protective Order.

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12.

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

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MISCELLANEOUS

person to seek its modification by the Court in the future.

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12.2 Right to Assert Other Objections. No Party waives any right it

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otherwise would have to object to disclosing or producing any information or item

A Law Corporation
300 Tamal Plaza, Suite 215
Corte Madera, CA 94925

on any ground not addressed in this Protective Order. Similarly, no Party waives

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any right to object on any ground to use in evidence of any of the material covered

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by this Protective Order.
12.3 Filing Protected Material. A Party that seeks to file under seal any

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Protected Material must comply with Civil Local Rule 79-5 and with any pertinent

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orders of the assigned District Judge and Magistrate Judge. If a Party's request to

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file Protected Material under seal is denied by the court, then the Receiving Party

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may file the information in the public record unless otherwise instructed by the

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court.

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13.

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FINAL DISPOSITION
The protections provided to all Protected Material under this Order shall not

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terminate upon final disposition (as defined in Section 4), but rather shall survive

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and continue unless otherwise agreed to in writing. Upon final disposition, counsel

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to this litigation 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

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and expert work product, even if such materials contain Protected Material. Any

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such archival copies that contain or constitute Protected Material remain subject to

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this Protective Order as set forth in Section 4.

Protective Order

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Within 60 days of final disposition of this Action, each Receiving Party shall

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return all paper copies of all Protected Material to the Producing Party or destroy

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such material. Relative to the retention by a Receiving Party of Electronically

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Stored Information (“ESI”) containing Protected Material, such ESI may be

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retained electronically pursuant to the terms of that Receiving Party’s document

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retention policies and shall be maintained as confidential pursuant to the terms of

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this Protective Order as set forth in Section 4.
As used in this subdivision, “all Protected Material” includes all copies,

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abstracts, compilations, summaries, and any other format reproducing or capturing

A Law Corporation
300 Tamal Plaza, Suite 215
Corte Madera, CA 94925

any of the Protected Material.

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14.

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

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

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sanctions.

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IT IS SO ORDERED.

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DATED: February 4, 2019

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/s/
Honorable Jacqueline Chooljian
21 United States Magistrate Judge
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Protective Order

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EXHIBIT A

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ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND

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I, _____________________________ [print or type full name], of
that I have read in its entirety and understand the Protective Order that was issued

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by the United States District Court for the Central District of California on

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February 4, 2019 in the case of Home Depot, U.S.A., Inc. v. Twin City Fire

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Insurance Company, et al., U.S. District Court, Central District of California, Case

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No. 2:18-cv-03051 DDP (JCx). I agree to comply with and to be bound by all the

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

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A Law Corporation
300 Tamal Plaza, Suite 215
Corte Madera, CA 94925

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

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JOHNSTON | SMITH

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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

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

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compliance with the provisions of this Order.

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

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

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of this Protective Order, even if such enforcement proceedings occur after

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termination of this action. I hereby appoint __________________________ [print

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or type full name] of _______________________________________ [print or

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

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

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this Protective Order.

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Date: ______________________________________

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City and State where sworn and signed:_____________________________

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Printed name: _______________________________

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Signature: __________________________________

Protective Order

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