Fred Leeds Properties et al v. Philadelphia Indemnity Insurance Company et al

Filing 21

STIPULATED PROTECTIVE ORDER by Magistrate Judge Maria A. Audero. See document for details. (es)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA – WESTERN DIVISION

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FRED LEEDS PROPERTIES and
WHITBOY, LLC,

Case No.: 2:20-cv-06335- SVW-MAA
STIPULATED PROTECTIVE
ORDER

Plaintiffs,

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v.
PHILADELPHIA INDEMNITY
INSURANCE COMPANY; and DOES 1
through 10, inclusive,

Trial Date:
Action Filed:

Defendant.

March 30, 202
June 9, 2020

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1. A. PURPOSES AND LIMITATIONS

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

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proprietary, or private information for which special protection from public disclosure

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and from use for any purpose other than prosecuting this litigation may be warranted.

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Accordingly, the parties hereby stipulate to and petition the Court to enter the following

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Stipulated Protective Order. The parties acknowledge that this Stipulated Protective

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

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and that the protection it affords from public disclosure and use extends only to the

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limited information or items that are entitled to confidential treatment under the
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applicable legal principles. The parties further acknowledge, as set forth in Section 12.3,

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below, that this Stipulated Protective Order does not entitle them to file confidential

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information under seal; Civil Local Rule 79-5 sets forth the procedures that must be

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followed and the standards that will be applied when a party seeks permission from the

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court to file material under seal.

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B.

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This action is likely to involve trade secrets and other valuable commercial,

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financial, technical and/or proprietary information for which special protection from

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public disclosure and from use for any purpose other than prosecution of this action is

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warranted. Such confidential and proprietary materials and information consist of,

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among other things, confidential business or financial information, information

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regarding confidential business practices, or other confidential commercial information

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(including information implicating privacy rights of third parties), information

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otherwise generally unavailable to the public, or which may be privileged or otherwise

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

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common law. Accordingly, to expedite the flow of information, to facilitate the prompt

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resolution of disputes over confidentiality of discovery materials, to adequately protect

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information the parties are entitled to keep confidential, to ensure that the parties are

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permitted reasonable necessary uses of such material in preparation for and in the

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conduct of trial, to address their handling at the end of the litigation, and serve the ends

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of justice, a protective order for such information is justified in this matter. It is the

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intent of the parties that information will not be designated as confidential for tactical

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reasons and that nothing be so designated without a good faith belief that it has been

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maintained in a confidential, non-public manner, and there is good cause why it should

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not be part of the public record of this case.

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GOOD CAUSE STATEMENT

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2.

DEFINITIONS

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2.1

Action: This 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 Stipulated Protective Order.

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2.3

“CONFIDENTIAL” or “ATTORNEYS’ EYES ONLY” Information or

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Items: information (regardless of how it is generated, stored or maintained) or tangible

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things that qualify for protection under Federal Rule of Civil Procedure 26(c), and as

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specified above in the Good Cause Statement.

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2.4

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

support staff).

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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 “CONFIDENTIAL”

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or “ATTORNEYS’ EYES ONLY.”

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2.6

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

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the 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

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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

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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.

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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

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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 which

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

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support staffs).

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2.12 Producing Party: a Party or Non-Party that produces Disclosure or
Discovery Material in this Action.

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2.13 Professional Vendors: persons or entities that provide litigation support

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

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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.

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2.14 Protected Material: any Disclosure or Discovery Material that is designated
as “CONFIDENTIAL” or “ATTORNEYS’ EYES ONLY.”

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2.15 Receiving Party: a Party that receives Disclosure or Discovery Material
from a Producing Party.

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3.

SCOPE

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The protections conferred by this Stipulated Protective Order cover not only

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

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

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

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their Counsel that might reveal Protected Material.

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

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

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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 Stipulated Protective Order shall remain in effect until a Designating

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Party agrees otherwise in writing or a court order otherwise directs. Final disposition

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shall be 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 time

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pursuant to applicable law.

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5.

DESIGNATING PROTECTED MATERIAL

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5.1

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

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this Stipulated Protective Order must take care to limit any such designation to specific

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material that qualifies under the appropriate standards. The Designating Party must

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designate for 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, items, or

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communications for which protection is not warranted are not swept unjustifiably

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within the ambit of this Stipulated Protective Order.

Exercise of Restraint and Care in Designating Material for Protection.

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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

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

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

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

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

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protection under this Stipulated Protective Order must be clearly so designated before

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the material is disclosed or produced.

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Designation in conformity with this Stipulated Protective Order requires:

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

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

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

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“CONFIDENTIAL” (hereinafter “CONFIDENTIAL legend”) or “ATTORNEYS’

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EYES ONLY” (hereinafter “ATTORNEYS’ EYES ONLY legend”), to each page that

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

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

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

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

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deemed “CONFIDENTIAL” or “ATTORNEYS’ EYES ONLY.” After the inspecting

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

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

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Stipulated Protective Order. Then, before producing the specified documents, the

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Producing Party must affix the “CONFIDENTIAL legend” or “ATTORNEYS’ EYES

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ONLY” 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 must

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

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margins).

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(b)

for testimony given in depositions that the Designating Party

identify the Disclosure or Discovery Material on the record, before the close of the
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deposition all protected testimony.

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(c)

for information produced in some form other than documentary and

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

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

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“CONFIDENTIAL” or “ATTORNEYS’ EYES ONLY.” If only a portion or portions

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of the 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 the

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Designating Party’s right to secure protection under this Stipulated Protective Order for

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

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

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of this Stipulated Protective 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 Scheduling

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Order.

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6.2

Meet and Confer. The Challenging Party shall initiate the dispute

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resolution process, which shall comply with under Local Rule 37.1 et seq. and with

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Section 4 of Judge Audero’s Procedures (“Mandatory Telephonic Conference for

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Discovery Disputes”). 1

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6.3

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

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

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Judge Audero’s Procedures are available at https://www.cacd.uscourts.gov/honorable-mariaaudero.
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to 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 shall continue to afford the material in

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

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designation until 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 Stipulated Protective Order. When the Action has been terminated, a

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

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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 Stipulated Protective 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

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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;

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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;
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Experts (as defined in this Order) 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);

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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

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

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

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(g)

the author or recipient of a document containing the information 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 party

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requests that the witness sign the form attached as Exhibit A hereto; and (2) they will

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not be permitted to keep any confidential information unless they sign the

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“Acknowledgment and Agreement to Be Bound” (Exhibit A), unless otherwise agreed

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by the 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 separately

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

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under this Stipulated Protective Order; and

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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.

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7.3 Disclosure of “ATTORNEYS’ EYES ONLY” Information or Items. Unless

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

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Receiving Party may disclose any information or item designated “ATTORNEYS’

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EYES ONLY” 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;

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(b) the court and its personnel; and

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

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custodian or other person who otherwise possessed or knew the information.

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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” or “ATTORNEYS’ EYES ONLY,” that Party must:

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(a)

promptly notify in writing the Designating Party. Such notification

shall include a copy of the subpoena or court order;

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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 Stipulated Protective Order. Such notification shall

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include a copy of this Stipulated Protective Order; and

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(c)

cooperate with respect to all reasonable procedures sought to be

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

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

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

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“CONFIDENTIAL” or “ATTORNEYS’ EYES ONLY” before a determination by the

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Court from which the subpoena or order issued, unless the Party has obtained the

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Designating Party’s permission. The Designating Party shall bear the burden and

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expense of seeking protection in that court of its confidential material and nothing in

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these provisions should be construed as authorizing or encouraging a Receiving Party

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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 Stipulated Protective Order are applicable to

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information produced by a Non-Party in this Action and designated as

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“CONFIDENTIAL” or “ATTORNEYS’ EYES ONLY.” 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 Stipulated Protective Order. Nothing in these provisions should be
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construed as prohibiting a Non-Party from seeking additional protections.

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(b)

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

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

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

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information, then the Party shall:

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(1)

promptly notify in writing the Requesting Party and the Non-

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

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agreement with a Non-Party;

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(2)

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

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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

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(3)

make the information requested available for inspection by

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the Non-Party, if requested.

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(c)

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

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

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Party 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 not

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

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

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

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in this 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 Stipulated Protective

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

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

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11. INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE

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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 protection,

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the obligations of the Receiving Parties are those set forth in Federal Rule of Civil

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Procedure 26(b)(5)(B). This provision is not intended to modify whatever procedure

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may be established in an e-discovery order that provides for production without prior

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privilege review. Pursuant to Federal Rule of Evidence 502(d) and (e), insofar as the

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parties reach an agreement on the effect of disclosure of a communication or

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information covered by the attorney-client privilege or work product protection, the

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parties may incorporate their agreement in the Stipulated Protective Order submitted to

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the Court.

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12.

MISCELLANEOUS
12.1 Right to Further Relief. Nothing in this Stipulated Protective 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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Stipulated Protective Order no Party waives any right it otherwise would have to object

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

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

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

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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. Protected Material may

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only be filed under seal pursuant to a court order authorizing the sealing of the specific
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Protected Material at issue. If a Party's request to file Protected Material under seal is

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denied by the Court, then the Receiving Party may file the information in the public

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record unless otherwise instructed by the Court.

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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

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days 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

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

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must submit a written certification to the Producing Party (and, if not the same person

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or entity, to the Designating Party) by the 60 day deadline that (1) identifies (by

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category, where appropriate) all the Protected Material that was returned or destroyed

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and (2) affirms that the Receiving Party has not retained any copies, abstracts,

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

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Protected Material. Notwithstanding this provision, Counsel are entitled to retain an

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archival copy of all pleadings, motion papers, trial, deposition, and hearing transcripts,

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legal memoranda, correspondence, deposition and trial exhibits, expert reports, attorney

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work product, and consultant and expert work product, even if such materials contain

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

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

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(DURATION).

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14.

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

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monetary sanctions.

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

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IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD.

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Dated: November 13, 2020

JONES TURNER, LLP

Dated: November 13, 2020

/s/ Jeffrey N. Gesell
Jeffrey N. Gesell
Attorneys for Defendant
PHILADELPHIA INDEMNITY INSURANCE
COMPANY
THARPE & HOWELL, LLP

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/s/ Laura J. Becker
Heather M. McKeon
Laura J. Becker
Attorneys for Plaintiffs
FRED LEEDS PROPERTIES and WHITBOY,
LLC

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FOR GOOD CAUSE SHOWN, IT IS SO ORDERED.

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Dated:

11/16/20
Maria A. Audero
United States Magistrate Judge

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EXHIBIT A

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ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND

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I,

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

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have read in its entirety and understand the Stipulated 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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[date] in the case of Fred Leeds Properties, et al. v. Philadelphia Indemnity Insurance

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Company, United States District Court, Central District Case No.: 2:20-cv-06335-

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SVW-MAA. I agree to comply with and to be bound by all the terms of this Stipulated

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Protective Order and I understand and acknowledge that failure to so comply could

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expose me to sanctions and punishment in the nature of contempt. I solemnly promise

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that I will not disclose in any manner any information or item that is subject to this

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Stipulated Protective Order to any person or entity except in strict compliance with the

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provisions of this Stipulated Protective Order.

_____________________________

[print

or

type

full

name],

of

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

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

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

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action. I hereby appoint __________________________ [print or type full name] of

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_______________________________________ [print or type full address and

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telephone number] as my California agent for service of process in connection with this

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action or any proceedings related to enforcement of this Stipulated 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: __________________________________

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