Sunny Misun Kim et al v. Scottsdale Insurance Company et al

Filing 17


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1 2 3 NOTE: CHANGES MADE BY THE COURT 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 SUNNY MISUN KIM, an individual, and Case No. 2:21-CV-02185-ODW-JPR 11 LA 1 REALTY, INC., a California corporation, SUITE 2800 ONE LIBERTY PLACE 1650 MARKET STREET COZEN O’ CONNOR 12 Plaintiffs, STIPULATED PROTECTIVE ORDER 13 v. 14 SCOTTSDALE INSURANCE Insurance 15 COMPANY, an Ohio StockMUTUAL Company, NATIONWIDE 16 INSURANCE COMPANY, an Ohio corporation, and 17 DOES 1 through 20, Defendants. 18 19 20 IT IS HEREBY ORDERED: 21 1. INTRODUCTION 22 1.1 23 Discovery in this action may involve production of confidential, proprietary, or PURPOSES AND LIMITATIONS 24 private information for which special protection from public disclosure and from use 25 for any purpose other than prosecuting this litigation may be warranted. Accordingly, 26 the Parties hereby stipulate to and petition the Court to enter the following Stipulated 27 Protective Order. The Parties acknowledge that this Order does not confer blanket 28 protections on all disclosures or responses to discovery and that the protection it 1 1 affords from public disclosure and use extends only to the limited information or items 2 that are entitled to confidential treatment under the applicable legal principles. The 3 Parties further acknowledge, as set forth in Section 12.3 below, that this Order does 4 not entitle them to file Confidential Information under seal; Civil Local Rule 79-5 sets 5 forth the procedures that must be followed and the standards that will be applied when 6 a Party seeks permission from the Court to file material under seal. 7 1.2 GOOD CAUSE STATEMENT 8 This action is likely to involve trade secrets, customer and pricing lists and 9 other valuable research, development, commercial, financial, technical and/or 10 proprietary information for which special protection from public disclosure and from 11 use for any purpose other than prosecution of this action is warranted. Such 13 things, confidential business or financial information, information regarding SUITE 2800 ONE LIBERTY PLACE 1650 MARKET STREET COZEN O’ CONNOR 12 confidential and proprietary materials and information may consist of, among other 14 confidential business practices, or other confidential research, development, or 15 commercial information (including information implicating privacy rights of third 16 parties), information otherwise generally unavailable to the public, or which may be 17 privileged or otherwise protected from disclosure under state or federal statutes, court 18 rules, case decisions, or common law. Accordingly, 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 keep 21 confidential, to ensure that the parties are permitted reasonable necessary uses of such 22 material, to address their handling at the end of the litigation, and serve the ends of 23 justice, a protective order for such information is justified in this matter. It is the 24 intent of the parties that information will not be designated as confidential for tactical 25 reasons and that nothing be so designated without a good faith belief that it has been 26 maintained in a confidential, non-public manner, and there is good cause why it 27 should not be part of the public record of this case. 28 2. DEFINITIONS 2 1 2.1 Action: Sunny Misun Kim, et al. v. Scottsdale Insurance Company, et al. 2 Case No. 2:21-CV-02185-ODW-JPR. 3 2.2 Challenging Party: a Party or Nonparty that challenges the designation 4 of information or items under this Order. 5 2.3 “CONFIDENTIAL” Information or Items: information (regardless of 6 how it is generated, stored, or maintained) or tangible things that qualify for protection 7 under Federal Rule of Civil Procedure 26(c) and as specified above in the Good Cause 8 Statement. 9 2.4 Counsel: Outside Counsel of Record and House Counsel (as well as their 10 support staff). 11 2.5 Designating Party: a Party or Nonparty that designates information or 13 “CONFIDENTIAL.” SUITE 2800 ONE LIBERTY PLACE 1650 MARKET STREET COZEN O’ CONNOR 12 items that it produces in disclosures or in responses to discovery as 14 2.6 Disclosure or Discovery Material: all items or information, regardless 15 of the medium or manner in which it is generated, stored, or maintained (including, 16 among other things, testimony, transcripts, and tangible things), that are produced or 17 generated in disclosures or responses to discovery in this matter. 18 2.7 Expert: a person with specialized knowledge or experience in a matter 19 pertinent to the litigation who has been retained by a Party or its counsel to serve as 20 an expert witness or as a consultant in this action. 21 2.8 House Counsel: attorneys who are employees of a Party to this Action. 22 House Counsel does not include Outside Counsel of Record or any other outside 23 counsel. 24 2.9 Nonparty: any natural person, partnership, corporation, association, or 25 other legal entity not named as a Party to this action. 26 2.10 Outside Counsel of Record: attorneys who are not employees of a Party 27 to this Action but are retained to represent or advise a Party and have appeared in this 28 3 1 Action on behalf of that Party or are affiliated with a law firm that has appeared on 2 behalf of that Party, including support staff. 3 2.11 Party: any Party to this Action, including all of its officers, directors, 4 employees, consultants, retained experts, and Outside Counsel of Record (and their 5 support staffs). 6 2.12 Producing Party: a Party or Nonparty that produces Disclosure or 7 Discovery Material in this Action. 8 2.13 Professional Vendors: persons or entities that provide litigation support 9 services (for example, photocopying, videotaping, translating, preparing exhibits or 10 demonstrations, and organizing, storing, or retrieving data in any form or medium) 11 and their employees and subcontractors. 2.14 Protected Material: any Disclosure or Discovery Material that is 13 designated as “CONFIDENTIAL.” SUITE 2800 ONE LIBERTY PLACE 1650 MARKET STREET COZEN O’ CONNOR 12 14 2.15 Receiving Party: a Party that receives Disclosure or Discovery Material 15 from a Producing Party. 16 3. SCOPE 17 The protections conferred by this Stipulation and Order cover not only 18 Protected Material (as defined above) but also any information copied or extracted 19 from Protected Material; all copies, excerpts, summaries, or compilations of Protected 20 Material; and any testimony, conversations, or presentations by Parties or their 21 Counsel that might reveal Protected Material. 22 Any use of Protected Material at trial will be governed by the orders of the trial 23 judge. This Order does not govern the use of Protected Material at trial. 24 4. DURATION 25 Once a case proceeds to trial, all the information that was designated as 26 confidential or maintained under this Order becomes public and will be presumptively 27 available to all members of the public, including the press, unless the trial judge finds 28 compelling reasons to proceed otherwise. See Kamakana v. City & Cnty. of Honolulu, 4 1 447 F.3d 1172, 1180-81 (9th Cir. 2006) (distinguishing “good cause” showing for 2 sealing documents produced in discovery from “compelling reasons” needed for 3 merits-related documents). Accordingly, the terms of this Order do not extend beyond 4 the beginning of trial. 5 5. DESIGNATING PROTECTED MATERIAL 6 5.1 Each Party or Nonparty that designates information or items for 7 protection under this Order must take care to limit any such designation to specific 8 material that qualifies under the appropriate standards. The Designating Party must 9 designate for protection only those parts of material, documents, items, or oral or 10 written communications that qualify so that other portions of the material, documents, 11 items, or communications for which protection is not warranted are not swept 13 SUITE 2800 ONE LIBERTY PLACE 1650 MARKET STREET COZEN O’ CONNOR 12 unjustifiably within the ambit of this Order. Mass, indiscriminate, or routinized designations are prohibited. Designations 14 that are shown to be clearly unjustified or that have been made for an improper 15 purpose (for example, to unnecessarily encumber the case-development process or to 16 impose unnecessary expenses and burdens on other parties) may expose the 17 Designating Party to sanctions. 18 If it comes to a Designating Party’s attention that information or items it 19 designated for protection do not qualify for that level of protection, that Designating 20 Party must promptly notify all other Parties that it is withdrawing the inapplicable 21 designation. 22 5.2 Except as otherwise provided in this Order, Disclosure or Discovery 23 Material that qualifies for protection under this Order must be clearly so designated 24 before the material is disclosed or produced. 25 Designation in conformity with this Order requires the following: 26 (a) for information in documentary form (for example, paper or electronic 27 documents but excluding transcripts of depositions or other pretrial or trial 28 proceedings), the Producing Party must affix at a minimum the legend 5 1 “CONFIDENTIAL” to each page that contains Protected Material. If only a portion 2 or portions of the material on a page qualify for protection, the Producing Party must 3 clearly identify the protected portion(s) (for example, by making appropriate 4 markings in the margins). 5 A Party or Nonparty that makes original documents available for inspection 6 need not designate them for protection until after the inspecting Party has indicated 7 which documents it would like copied and produced. During the inspection and 8 before the designation, all material made available for inspection must be treated as 9 “CONFIDENTIAL.” After the inspecting Party has identified the documents it wants 10 copied and produced, the Producing Party must determine which documents, or 11 portions thereof, qualify for protection under this Order. Then, before producing the 13 to each page that contains Protected Material. If only a portion or portions of the SUITE 2800 ONE LIBERTY PLACE 1650 MARKET STREET COZEN O’ CONNOR 12 specified documents, the Producing Party must affix the “CONFIDENTIAL” legend 14 material on a page qualify for protection, the Producing Party also must clearly 15 identify the protected portion(s) (for example, by making appropriate markings in the 16 margins). 17 (b) for testimony given in depositions, the Designating Party must identify the 18 Disclosure or Discovery Material that is protected on the record, before the close of 19 the deposition. 20 (c) for information produced in some form other than documentary and for any 21 other tangible items, the Producing Party must affix in a prominent place on the 22 exterior of the container or containers in which the information is stored the legend 23 “CONFIDENTIAL.” If only a portion or portions of the information warrant 24 protection, the Producing Party, to the extent practicable, must identify the protected 25 portion(s). 26 5.3 If timely corrected, an inadvertent failure to designate qualified 27 information or items does not, standing alone, waive the Designating Party’s right to 28 secure protection under this Order for that material. On timely correction of a 6 1 designation, the Receiving Party must make reasonable efforts to assure that the 2 material is treated in accordance with the provisions of this Order. 3 6. CHALLENGING CONFIDENTIALITY DESIGNATIONS 4 6.1 5 any time consistent with the Court’s scheduling order. 6 6.2 7 if necessary, file a discovery motion) under Local Rule 37. 8 6.3 Any Party or Nonparty may challenge a designation of confidentiality at The Challenging Party must initiate the dispute-resolution process (and, The burden of persuasion in any such proceeding is on the Designating 9 Party. Frivolous challenges, and those made for an improper purpose (for example, 10 to harass or impose unnecessary expenses and burdens on other parties), may expose 11 the Challenging Party to sanctions. Unless the Designating Party has waived or 13 material in question the level of protection to which it is entitled under the Producing SUITE 2800 ONE LIBERTY PLACE 1650 MARKET STREET COZEN O’ CONNOR 12 withdrawn the confidentiality designation, all parties must continue to afford the 14 Party’s designation until the Court rules on the challenge. 15 7. ACCESS TO AND USE OF PROTECTED MATERIAL 16 7.1 A Receiving Party may use Protected Material that is disclosed or 17 produced by another Party or by a Nonparty in connection with this Action only for 18 prosecuting, defending, or attempting to settle this Action. Such Protected Material 19 may be disclosed only to the categories of people and under the conditions described 20 in this Order. When the Action has been terminated, a Receiving Party must comply 21 with the provisions of Section 13 below (FINAL DISPOSITION). 22 Protected Material must be stored and maintained by a Receiving Party at a 23 location and in a manner sufficiently secure to ensure that access is limited to the 24 people authorized under this Order. 25 7.2 Unless otherwise ordered by the Court or permitted in writing by the 26 Designating Party, a Receiving Party may disclose any information or item designated 27 “CONFIDENTIAL” only to the following people: 28 (a) the Receiving Party’s Outside Counsel of Record in this Action, as well as 7 1 employees of that Outside Counsel of Record to whom it is reasonably necessary to 2 disclose the information for this Action; 3 (b) the officers, directors, and employees (including House Counsel) of the 4 Receiving Party to whom disclosure is reasonably necessary for this Action; 5 (c) Experts (as defined in this Order) of the Receiving Party to whom 6 disclosure is reasonably necessary for this Action and who have signed the 7 “Acknowledgment and Agreement to Be Bound” (Exhibit A); 8 (d) the Court and its personnel; 9 (e) court reporters and their staff; 10 (f) professional jury or trial consultants, mock jurors, and Professional Vendors 11 to whom disclosure is reasonably necessary for this Action and who have signed the 13 SUITE 2800 ONE LIBERTY PLACE 1650 MARKET STREET COZEN O’ CONNOR 12 “Acknowledgment and Agreement to Be Bound” (Exhibit A); (g) the author or recipient of a document containing the information or a 14 custodian or other person who otherwise possessed or knew the information; 15 (h) during their depositions, witnesses and attorneys for witnesses to whom 16 disclosure is reasonably necessary, provided that the deposing party requests that the 17 witness sign the form attached as Exhibit A hereto and the witnesses will not be 18 permitted to keep any confidential information unless they sign the form, unless 19 otherwise agreed by the Designating Party or ordered by the Court. Pages of 20 transcribed deposition testimony or exhibits to depositions that reveal Protected 21 Material may be separately bound by the court reporter and may not be disclosed to 22 anyone except as permitted under this Order; and 23 (i) any mediator or settlement officer, and their supporting personnel, mutually 24 agreed on by any of the Parties engaged in settlement discussions or appointed by the 25 Court. 26 8. PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED IN 27 OTHER LITIGATION 28 If a Party is served with a subpoena or a court order issued in other litigation 8 1 that compels disclosure of any information or items designated in this Action as 2 “CONFIDENTIAL,” that Party must: 3 (a) promptly notify in writing the Designating Party. Such notification must 4 include a copy of the subpoena or court order unless prohibited by law; 5 (b) promptly notify in writing the party who caused the subpoena or order to 6 issue in the other litigation that some or all of the material covered by the subpoena 7 or order is subject to this Protective Order. Such notification must include a copy of 8 this Order; and 9 (c) cooperate with respect to all reasonable procedures sought to be pursued 10 by the Designating Party whose Protected Material may be affected. 11 If the Designating Party timely seeks a protective order, the Party served with 13 action as “CONFIDENTIAL” before a determination on the protective-order request SUITE 2800 ONE LIBERTY PLACE 1650 MARKET STREET COZEN O’ CONNOR 12 the subpoena or court order should not produce any information designated in this 14 by the relevant court unless the Party has obtained the Designating Party’s permission. 15 The Designating Party bears the burden and expense of seeking protection of its 16 Confidential Material, and nothing in these provisions should be construed as 17 authorizing or encouraging a Receiving Party in this Action to disobey a lawful 18 directive from another court. 19 9. A NONPARTY’S PROTECTED MATERIAL SOUGHT TO BE PRODUCED 20 IN THIS LITIGATION 21 (a) The terms of this Order are applicable to information produced by a 22 Nonparty in this Action and designated as “CONFIDENTIAL.” Such information is 23 protected by the remedies and relief provided by this Order. Nothing in these 24 provisions should be construed as prohibiting a Nonparty from seeking additional 25 protections. 26 (b) In the event that a Party is required by a valid discovery request to produce 27 a Nonparty’s Confidential Information in its possession and the Party is subject to an 28 9 1 agreement with the Nonparty not to produce the Nonparty’s Confidential Information, 2 then the Party must 3 (1) promptly notify in writing the Requesting Party and the Nonparty 4 that some or all of the information requested is subject to a confidentiality agreement 5 with a Nonparty; 6 (2) promptly provide the Nonparty with a copy of this Order, the relevant 7 discovery request(s), and a reasonably specific description of the information 8 requested; and 9 (3) make the information requested available for inspection by the 10 Nonparty, if requested. 11 (c) If the Nonparty fails to seek a protective order within 21 days of receiving 13 Nonparty’s Confidential Information responsive to the discovery request. If the SUITE 2800 ONE LIBERTY PLACE 1650 MARKET STREET COZEN O’ CONNOR 12 the notice and accompanying information, the Receiving Party may produce the 14 Nonparty timely seeks a protective order, the Receiving Party must not produce any 15 information in its possession or control that is subject to the confidentiality agreement 16 with the Nonparty before a ruling on the protective-order request. Absent a court 17 order to the contrary, the Nonparty must bear the burden and expense of seeking 18 protection of its Protected Material. 19 10. UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL 20 If a Receiving Party learns that by inadvertence or otherwise, it has disclosed 21 Protected Material to any person or in any circumstance not authorized under this 22 Order, the Receiving Party must immediately notify the Designating Party in writing 23 of the unauthorized disclosures, use its best efforts to retrieve all unauthorized copies 24 of the Protected Material, inform the person or people to whom unauthorized 25 disclosures were made of the terms of this Order, and ask that person or people to 26 execute the “Acknowledgment and Agreement to Be Bound” that is attached hereto 27 as Exhibit A. 28 10 1 11. 2 3 INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE PROTECTED MATERIAL When a Producing Party gives notice to Receiving Parties that certain 4 inadvertently produced material is subject to a claim of privilege or other protection, 5 the obligations of the Receiving Parties are those set forth in Federal Rule of Civil 6 Procedure 26(b)(5)(B). 7 12. MISCELLANEOUS 8 12.1 Nothing in this Order abridges the right of any person to seek its 9 modification by the Court. 12.2 By stipulating to the entry of this Order, no Party waives any right it 10 SUITE 2800 ONE LIBERTY PLACE 1650 MARKET STREET COZEN O’ CONNOR 11 otherwise would have to object to disclosing or producing any information or item on 12 any ground not addressed in this Order. Similarly, no Party waives any right to object 13 on any ground to use in evidence of any of the material covered by this Order. 12.3 A Party that seeks to file under seal any Protected Material must comply 14 15 with Civil Local Rule 79-5. Protected Material may be filed under seal only pursuant 16 to a court order authorizing the sealing of the specific Protected Material at issue. If 17 a Party's request to file Protected Material under seal is denied, then the Receiving 18 Party may file the information in the public record unless otherwise instructed by the 19 Court. 20 13. FINAL DISPOSITION 21 After the final disposition of this Action, as defined in paragraph 4, within 60 22 days of a written request by the Designating Party, each Receiving Party must return 23 all Protected Material to the Producing Party or destroy such material. As used in this 24 subdivision, “all Protected Material” includes all copies, abstracts, compilations, 25 summaries, and any other format reproducing or capturing any of the Protected 26 Material. Whether the Protected Material is returned or destroyed, the Receiving 27 Party must submit a written certification to the Producing Party (and, if not the same 28 person or entity, to the Designating Party) by the 60-day deadline that identifies (by 11 1 category, when appropriate) all the Protected Material that was returned or destroyed 2 and affirms that the Receiving Party has not retained any copies, abstracts, 3 compilations, summaries, or any other format reproducing or capturing any of the 4 Protected Material. Notwithstanding this provision, Counsel are entitled to retain an 5 archival copy of all pleadings; motion papers; trial, deposition, and hearing 6 transcripts; legal memoranda; correspondence; deposition and trial exhibits; expert 7 reports; attorney work product; and consultant and expert work product even if such 8 materials contain Protected Material. Any such archival copies that contain or 9 constitute Protected Material remain subject to this Order as set forth in Section 4 10 (DURATION). Any willful violation of this Order may be punished by civil or criminal 13 contempt, financial or evidentiary sanctions, reference to disciplinary authorities, or SUITE 2800 ONE LIBERTY PLACE 1650 MARKET STREET SANCTIONS 12 COZEN O’ CONNOR 11 14. 14 other appropriate action at the discretion of the Court. 15 FOR GOOD CAUSE SHOWN, IT IS SO ORDERED. 16 DATED: July 14, 2021 17 18 19 20 21 BY: _____________________________________ Honorable Jean P. Rosenbluth United States Magistrate Judge 22 23 24 25 26 27 28 12 1 EXHIBIT A 2 ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND 3 4 I, _____________________________ [full name], of _________________ 5 [full address], declare under penalty of perjury that I have read in its entirety and 6 understand the Stipulated Protective Order that was issued by the U.S. District Court 7 for the Central District of California on [date] in the case of Sunny Misun Kim, et al. 8 v. Scottsdale Insurance Company, et al. Case No. 2:21-CV-02185-ODW-JPR. I agree 9 to comply with and to be bound by all terms of this Stipulated Protective Order, and 10 I understand and acknowledge that failure to so comply could expose me to sanctions 11 and punishment, including contempt. I solemnly promise that I will not disclose in 13 to any person or entity except in strict compliance with the provisions of this Order. SUITE 2800 ONE LIBERTY PLACE 1650 MARKET STREET COZEN O’ CONNOR 12 any manner any information or item that is subject to this Stipulated Protective Order 14 I further agree to submit to the jurisdiction of the U.S. District Court for the 15 Central District of California for the purpose of enforcing the terms of this Stipulated 16 Protective Order, even if such enforcement proceedings occur after termination of this 17 action. I hereby appoint __________________________ [full name] of 18 _______________________________________ [full address and telephone 19 number] as my California agent for service of process in connection with this action 20 or any proceedings related to enforcement of this Stipulated Protective Order. 21 Date: ______________________________________ 22 City and State where signed: ___________________________________________ 23 Printed name: _______________________________________________________ 24 Signature: __________________________________________________________ 25 26 27 28 13

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