Andy Hoang v. Berkshire Life Insurance Company of America

Filing 17


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1 2 3 4 5 6 7 8 9 10 UNITED STATES DISTRICT COURT 11 CENTRAL DISTRICT OF CALIFORNIA 12 13 ANDY HOANG, 14 15 16 17 Plaintiff, vs. BERKSHIRE LIFE INSURANCE COMPANY OF AMERICA, Defendant. 18 19 20 21 22 ) ) Case No. 5:17-cv-00175 SJO (SPx) ) ) ) STIPULATED PROTECTIVE ) ORDER ) ) ) ) ) ) ) ) ) ) ) ) ) ) 23 24 25 26 27 28 {04000778.1} STIPULATED PROTECTIVE ORDER 1 1. A. PURPOSES AND LIMITATIONS 2 Disclosure and discovery activity in this action are likely to involve production 3 of confidential, proprietary, or private information for which special protection from 4 public disclosure and from use for any purpose other than prosecuting this litigation 5 may be warranted. Accordingly, the parties hereby stipulate to and petition the court to 6 enter the following Stipulated Protective Order. The parties acknowledge that this Order 7 does not confer blanket protections on all disclosures or responses to discovery and that 8 the protection it affords from public disclosure and use extends only to the limited 9 information or items that are entitled to confidential treatment under the applicable legal 10 principles. The parties further acknowledge, as set forth in Section 12.3, below, that this 11 Stipulated Protective Order does not entitle them to file confidential information under 12 seal; Civil Local Rule 79-5 sets forth the procedures that must be followed and the 13 standards that will be applied when a party seeks permission from the court to file 14 material under seal. 15 B. GOOD CAUSE STATEMENT 16 This action is likely to involve trade secrets, customer and pricing lists, and other 17 valuable research, development, commercial, financial, technical and/or proprietary 18 information for which special protection from public disclosure and from use for any 19 purpose other than prosecution of this action is warranted. Such confidential and 20 proprietary materials and information consist of, among other things, confidential 21 business or financial information, information regarding confidential business practices, 22 or other confidential research, development, or commercial information (including 23 information implicating privacy rights of third parties), information otherwise generally 24 unavailable to the public, or which may be privileged or otherwise protected from 25 disclosure under state or federal statutes, court rules, case decisions, or common law. 26 Accordingly, to expedite the flow of information, to facilitate the prompt resolution of 27 disputes over confidentiality of discovery material, to adequately protect information 28 the parties are entitled to keep confidential, to ensure that the parties are permitted {04000778.1} 2 STIPULATED PROTECTIVE ORDER 1 reasonable necessary uses of such material in preparation for and in the conduct of trial, 2 to address their handling at the end of the litigation, and serve the ends of justice, a 3 protective order for such information is justified in this matter. It is the intent of the 4 parties that information will not be designated without a good faith belief that it has 5 been maintained in a confidential, non-public manner, and there is good cause why it 6 should not be part of the public record of this case. 7 2. DEFINITIONS 8 2.1 Action: the above captioned pending federal lawsuit. 9 2.2 Challenging Party: a Party or Non-Party that challenges the designation 10 11 of information or items under this Order. 2.3 “CONFIDENTIAL” Information or Items: information (regardless of how 12 it is generated, stored or maintained) or tangible things that qualify for protection under 13 Federal Rule of Civil Procedure 26(c), and as specified above in the Good Cause 14 Statement. 15 16 17 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 18 items that it produces in disclosures or in responses to discovery as 19 “CONFIDENTIAL.” 20 2.6 Disclosure or Discovery Material: all items or information, regardless of 21 the medium or manner in which it is generated, stored, or maintained (including, among 22 other things, testimony, transcripts, and tangible things), that are produced or generated 23 in disclosures or responses to discovery in this matter. 24 2.7 Expert: a person with specialized knowledge or experience in a matter 25 pertinent to the litigation who has been retained by a Party or its counsel to serve as an 26 expert witness or as a consultant in this Action. 27 28 2.8 House Counsel: attorneys who are employees of a party to this Action. House Counsel does not include Outside Counsel of Record or any other outside {04000778.1} 3 STIPULATED PROTECTIVE ORDER 1 counsel. 2.9 2 3 Non-Party: any natural person, partnership, corporation, association, or other legal entity not named as a Party to this Action. 4 2.10 Outside Counsel of Record: attorneys who are not employees of a party to 5 this Action but are retained to represent or advise a party to this Action and have 6 appeared in this Action on behalf of that party or are affiliated with a law firm which 7 has appeared on behalf of that party. 8 2.11 Party: any party to this Action, including all of its officers, directors, 9 employees, consultants, retained experts, and Outside Counsel of Record (and their 10 support staffs). 2.12 Producing Party: 11 12 a Party or Non-Party that produces Disclosure or Discovery Material in this Action. 13 2.13 Professional Vendors: persons or entities that provide litigation support 14 services (e.g., photocopying, videotaping, translating, preparing exhibits or 15 demonstrations, and organizing, storing, or retrieving data in any form or medium) and 16 their employees and subcontractors. 2.14 Protected Material: 17 18 any Disclosure or Discovery Material that is designated as “CONFIDENTIAL.” 2.15 Receiving Party: a Party that receives Disclosure or Discovery Material 19 20 from a Producing Party. 21 3. SCOPE 22 The protections conferred by this Stipulation and Order cover not only Protected 23 Material (as defined above), but also (1) any information copied or extracted from 24 Protected Material; (2) all copies, excerpts, summaries, or compilations of Protected 25 Material; and (3) any testimony, conversations, or presentations by Parties or their 26 Counsel that might reveal Protected Material. 27 28 Any use of Protected Material at trial shall be governed by the orders of the trial judge. This Order does not govern the use of Protected Material at trial. {04000778.1} 4 STIPULATED PROTECTIVE ORDER 1 4. DURATION 2 Even after final disposition of this litigation, the confidentiality obligations 3 imposed by this Order shall remain in effect until a Designating Party agrees otherwise 4 in writing or a court order otherwise directs. Final disposition shall be deemed to be the 5 later of (1) dismissal of all claims and defenses in this Action, with or without prejudice; 6 and (2) final judgment herein after the completion and exhaustion of all appeals, 7 rehearings, remands, trials, or reviews of this Action, including the time limits for filing 8 any motions or applications for extension of time pursuant to applicable law. 9 5. 10 DESIGNATING PROTECTED MATERIAL 5.1 Exercise of Restraint and Care in Designating Material for Protection. 11 Each Party or Non-Party that designates information or items for protection under this 12 Order must take care to limit any such designation to specific material that qualifies 13 under the appropriate standards. The Designating Party must designate for protection 14 only those parts of material, documents, items, or oral or written communications that 15 qualify so that other portions of the material, documents, items, or communications for 16 which protection is not warranted are not swept unjustifiably within the ambit of this 17 Order. 18 Mass, indiscriminate, or routinized designations are prohibited. Designations that 19 are shown to be clearly unjustified or that have been made for an improper purpose 20 (e.g., to unnecessarily encumber or retard the case development process or to impose 21 unnecessary expenses and burdens on other parties) expose the Designating Party to 22 sanctions. 23 If it comes to a Designating Party’s attention that information or items that it 24 designated for protection do not qualify for protection that Designating Party must 25 promptly notify all other Parties that it is withdrawing the inapplicable designation. 26 5.2 Manner and Timing of Designations. Except as otherwise provided in this 27 Order (see, e.g., second paragraph of section 5.2(a) below), or as otherwise stipulated 28 or ordered, Disclosure or Discovery Material that qualifies for protection under this {04000778.1} 5 STIPULATED PROTECTIVE ORDER 1 2 Order must be clearly so designated before the material is disclosed or produced. Designation in conformity with this Order requires: 3 (a) for information in documentary form (e.g., paper or electronic documents, 4 but excluding transcripts of depositions or other pretrial or trial proceedings), that the 5 Producing Party affix the legend “CONFIDENTIAL” to each page that contains 6 protected material. If only a portion or portions of the material on a page qualifies for 7 protection, the Producing Party also must clearly identify the protected portion(s) (e.g., 8 by making appropriate markings in the margins). 9 A Party or Non-Party that makes original documents or materials available for 10 inspection need not designate them for protection until after the inspecting Party has 11 indicated which material it would like copied and produced. During the inspection and 12 before the designation, all of the material made available for inspection shall be deemed 13 “CONFIDENTIAL.” After the inspecting Party has identified the documents it wants 14 copied and produced, the Producing Party must determine which documents, or portions 15 thereof, qualify for protection under this Order. Then, before producing the specified 16 documents, the Producing Party must affix the “CONFIDENTIAL” legend to each page 17 that contains Protected Material. If only a portion or portions of the material on a page 18 qualifies for protection, the Producing Party also must clearly identify the protected 19 portion(s) (e.g., by making appropriate markings in the margins). 20 (b) for testimony given in deposition or in other pretrial or trial proceedings, 21 that the Designating Party identify on the record, before the close of the deposition, 22 hearing, or other proceeding, all protected testimony. 23 (c) for information produced in some form other than documentary and for 24 any other tangible items, that the Producing Party affix in a prominent place on the 25 exterior of the container or containers in which the information or item is stored the 26 legend “CONFIDENTIAL.” If only a portion or portions of the information or item 27 warrant protection, the Producing Party, to the extent practicable, shall identify the 28 protected portion(s). {04000778.1} 6 STIPULATED PROTECTIVE ORDER 5.3 1 Inadvertent Failures to Designate. If timely corrected, an inadvertent 2 failure to designate qualified information or items does not, standing alone, waive the 3 Designating Party’s right to secure protection under this Order for such material. Upon 4 timely correction of a designation, the Receiving Party must make reasonable efforts to 5 assure that the material is treated in accordance with the provisions of this Order. 6 6. CHALLENGING CONFIDENTIALITY DESIGNATIONS 6.1 7 Timing of Challenges. Any Party or Non-Party may challenge a 8 designation of confidentiality at any time that is consistent with the Court’s Scheduling 9 Order. 6.2 10 11 Meet and Confer. The Challenging Party shall initiate the dispute resolution process under Local Rule 37.1 et seq. 6.3 12 Judicial Intervention. The burden of persuasion in any such challenge 13 proceeding shall be on the Designating Party. Frivolous challenges, and those made for 14 an improper purpose (e.g., to harass or impose unnecessary expenses and burdens on 15 other parties) may expose the Challenging Party to sanctions. Unless the Designating 16 Party has waived or withdrawn the confidentiality designation, all parties shall continue 17 to afford the material in question the level of protection to which it is entitled under the 18 Producing Party’s designation until the Court rules on the challenge. 19 7. 20 ACCESS TO AND USE OF PROTECTED MATERIAL 7.1 Basic Principles. A Receiving Party may use Protected Material that is 21 disclosed or produced by another Party or by a Non-Party in connection with this case 22 only for prosecuting, defending, or attempting to settle this Action. Such Protected 23 Material may be disclosed only to the categories of persons and under the conditions 24 described in this Order. When the Action has been terminated, a Receiving Party must 25 comply with the provisions of section 13 below (FINAL DISPOSITION). 26 Protected Material must be stored and maintained by a Receiving Party at a 27 location and in a secure manner that ensures that access is limited to the persons 28 authorized under this Order. {04000778.1} 7 STIPULATED PROTECTIVE ORDER 1 7.2 Disclosure of “CONFIDENTIAL” Information or Items. Unless otherwise 2 ordered by the court or permitted in writing by the Designating Party, a Receiving Party 3 may disclose any information or item designated “CONFIDENTIAL” only to: 4 (a) the Receiving Party’s Outside Counsel of Record in this Action, as well 5 as employees of said Outside Counsel of Record to whom it is reasonably necessary to 6 disclose the information for this Action; (b) the officers, directors, and employees (including House Counsel) of the 7 8 Receiving Party to whom disclosure is reasonably necessary for this Action; 9 (c) Experts (as defined in this Order) of the Receiving Party to whom 10 disclosure is reasonably necessary for this Action and who have signed the 11 “Acknowledgment and Agreement to Be Bound” (Exhibit A); 12 (d) the court and its personnel; 13 (e) court reporters and their staff; 14 (f) professional jury or trial consultants, mock jurors, and Professional 15 Vendors to whom disclosure is reasonably necessary for this Action and who have 16 signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A); (g) the author or recipient of a document containing the information or a 17 18 custodian or other person who otherwise possessed or knew the information; 19 (h) during their depositions, witnesses, and attorneys for witnesses, in the 20 Action to whom disclosure is reasonably necessary provided: (1) the deposing party 21 requests that the witness sign the form attached as Exhibit 1 hereto; and (2) they will 22 not be permitted to keep any confidential information unless they sign the 23 “Acknowledgment and Agreement to Be Bound” (Exhibit A), unless otherwise agreed 24 by the Designating Party or ordered by the court. Pages of transcribed deposition 25 testimony or exhibits to depositions that reveal Protected Material may be separately 26 bound by the court reporter and may not be disclosed to anyone except as permitted 27 under this Stipulated Protective Order; and (i) 28 {04000778.1} any mediator or settlement officer, and their supporting personnel, 8 STIPULATED PROTECTIVE ORDER 1 mutually agreed upon by any of the parties engaged in settlement discussions. 2 8. PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED IN 3 OTHER LITIGATION 4 If a Party is served with a subpoena or a court order issued in other litigation that 5 compels disclosure of any information or items designated in this Action as 6 “CONFIDENTIAL,” that Party must: (a) promptly notify in writing the Designating Party. Such notification shall 7 8 include a copy of the subpoena or court order; 9 (b) promptly notify in writing the party who caused the subpoena or order to 10 issue in the other litigation that some or all of the material covered by the subpoena or 11 order is subject to this Protective Order. Such notification shall include a copy of this 12 Stipulated Protective Order; and (c) cooperate with respect to all reasonable procedures sought to be pursued 13 14 by the Designating Party whose Protected Material may be affected. 15 If the Designating Party timely seeks a protective order, the Party served with the 16 subpoena or court order shall not produce any information designated in this Action as 17 “CONFIDENTIAL” before a determination by the court from which the subpoena or 18 order issued, unless the Party has obtained the Designating Party’s permission. The 19 Designating Party shall bear the burden and expense of seeking protection in that court 20 of its confidential material and nothing in these provisions should be construed as 21 authorizing or encouraging a Receiving Party in this Action to disobey a lawful directive 22 from another court. 23 9. 24 A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE PRODUCED IN THIS LITIGATION 25 (a) The terms of this Order are applicable to information produced by a Non- 26 Party in this Action and designated as “CONFIDENTIAL.” Such information produced 27 by Non-Parties in connection with this litigation is protected by the remedies and relief 28 provided by this Order. Nothing in these provisions should be construed as prohibiting {04000778.1} 9 STIPULATED PROTECTIVE ORDER 1 a Non-Party from seeking additional protections. 2 (b) In the event that a Party is required, by a valid discovery request, to 3 produce a Non-Party’s confidential information in its possession, and the Party is 4 subject to an agreement with the Non-Party not to produce the Non-Party’s confidential 5 information, then the Party shall: 6 (1) promptly notify in writing the Requesting Party and the Non-Party that 7 some or all of the information requested is subject to a confidentiality agreement with 8 a Non-Party; (2) 9 promptly provide the Non-Party with a copy of the Stipulated 10 Protective Order in this Action, the relevant discovery request(s), and a reasonably 11 specific description of the information requested; and (3) make the information requested available for inspection by the Non- 12 13 Party; if requested. 14 (c) If the Non-Party fails to object or seek a protective order from this court 15 within 14 days of receiving the notice and accompanying information, the Receiving 16 Party may produce the Non-Party’s confidential information responsive to the discovery 17 request. If the Non-Party timely seeks a protective order, the Receiving Party shall not 18 produce any information in its possession or control that is subject to the confidentiality 19 agreement with the Non-Party before a determination by the court. Absent a court order 20 to the contrary, the Non-Party shall bear the burden and expense of seeking protection 21 in this court of its Protected Material. 22 10. UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL 23 If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed 24 Protected Material to any person or in any circumstance not authorized under this 25 Stipulated Protective Order, the Receiving Party must immediately (a) notify in writing 26 the Designating Party of the unauthorized disclosures, (b) use its best efforts to retrieve 27 all unauthorized copies of the Protected Material, (c) inform the person or persons to 28 whom unauthorized disclosures were made of all the terms of this Order, and (d) request {04000778.1} 10 STIPULATED PROTECTIVE ORDER 1 such person or persons to execute the “Acknowledgment and Agreement to Be Bound” 2 that is attached hereto as Exhibit A. 3 11. INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE 4 PROTECTED MATERIAL 5 When a Producing Party gives notice to Receiving Parties that certain 6 inadvertently produced material is subject to a claim of privilege or other protection, 7 the obligations of the Receiving Parties are those set forth in Federal Rule of Civil 8 Procedure 26(b)(5)(B). This provision is not intended to modify whatever procedure 9 may be established in an e-discovery order that provides for production without prior 10 privilege review. Pursuant to Federal Rule of Evidence 502(d) and (e), insofar as the 11 parties reach an agreement on the effect of disclosure of a communication or 12 information covered by the attorney-client privilege or work product protection, the 13 parties may incorporate their agreement in the stipulated protective order submitted to 14 the court. 15 12. 16 17 MISCELLANEOUS 12.1 Right to Further Relief. Nothing in this Order abridges the right of any person to seek its modification by the court in the future. 18 12.2 Right to Assert Other Objections. By stipulating to the entry of this 19 Protective Order no Party waives any right it otherwise would have to object to 20 disclosing or producing any information or item on any ground not addressed in this 21 Stipulated Protective Order. Similarly, no Party waives any right to object on any 22 ground to use in evidence of any of the material covered by this Protective Order. 23 12.3 Filing Protected Material. A Party that seeks to file under seal any 24 Protected Material must comply with Civil Local Rule 79-5. Protected Material may 25 only be filed under seal pursuant to a court order authorizing the sealing of the specific 26 Protected Material at issue. If a Party’s request to file Protected Material under seal is 27 denied by the court, then the Receiving Party may file the information in the public 28 record unless otherwise instructed by the court. {04000778.1} 11 STIPULATED PROTECTIVE ORDER 1 13. FINAL DISPOSITION 2 After a final disposition of this Action, as defined in Paragraph 4, within 60 days 3 of a written request by the Designating Party, each Receiving Party must return all 4 Protected Material to the Producing Party or destroy such material. As used in this 5 subdivision, “all Protected Material” includes all copies, abstracts, compilations, 6 summaries, and any other format reproducing or capturing any of the Protected 7 Material. Whether the Protected Material is returned or destroyed, the Receiving Party 8 must submit a written certification to the Producing Party (and, if not the same person 9 or entity, to the Designating Party) by the 60 day deadline that (1) identifies (by 10 category, where appropriate) all the Protected Material that was returned or destroyed 11 and (2) affirms that the Receiving Party has not retained any copies, abstracts, 12 compilations, summaries or any other format reproducing or capturing any of the 13 Protected Material. Notwithstanding this provision, Counsel are entitled to retain an 14 archival copy of all pleadings, motion papers, trial, deposition, and hearing transcripts, 15 legal memoranda, correspondence, deposition and trial exhibits, expert reports, attorney 16 work product, and consultant and expert work product, even if such materials contain 17 Protected Material. Any such archival copies that contain or constitute Protected 18 Material remain subject to this Protective Order as set forth in Section 4 (DURATION). 19 20 14. Any violation of this Order may be punished by any and all appropriate 21 measures including, without limitation, contempt proceedings and/or monetary 22 sanctions. 23 IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD. 24 25 DATED: April 20, 2017 26 /s/ Glenn Kantor Attorney for Plaintiff 27 28 DATED: {04000778.1} April 20, 2017 /s/ Alexandra Drury 12 STIPULATED PROTECTIVE ORDER Attorney for Defendant 1 2 Filer’s Attestation: Pursuant to Local Rule 5-4.3.4(a)(2)(i), Alexandra Drury hereby 3 attests that concurrence in the filing of this document and its contents was obtained 4 from all signatories listed. 5 FOR GOOD CAUSE SHOWN, IT IS SO ORDERED. 6 7 8 DATED: April 25, 2017 9 ____________________________________ United States Magistrate Judge 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 {04000778.1} 13 STIPULATED PROTECTIVE ORDER 1 EXHIBIT A 2 ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND 3 I, _____________________________ [print or type full name], of 4 _________________ [print or type full address], declare under penalty of perjury that I 5 have read in its entirety and understand the Stipulated Protective Order that was issued 6 by the United States District Court for the Central District of California on [date] in the 7 case of Andy Hoang v. Berkshire Life Insurance Company of America, case number 8 5:17-cv-00175. I agree to comply with and to be bound by all the terms of this Stipulated 9 Protective Order and I understand and acknowledge that failure to so comply could 10 expose me to sanctions and punishment in the nature of contempt. I solemnly promise 11 that I will not disclose in any manner any information or item that is subject to this 12 Stipulated Protective Order to any person or entity except in strict compliance with the 13 provisions of this Order. 14 I further agree to submit to the jurisdiction of the United States District Court for 15 the 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 __________________________ [print or type full name] of 18 _______________________________________ [print or type full address and 19 telephone number] as my California agent for service of process in connection with this 20 Action or any proceedings related to enforcement of this Stipulated Protective Order. 21 22 Date: ______________________________________ 23 City and State where sworn and signed: _________________________________ 24 25 Printed name: _______________________________ 26 27 Signature: __________________________________ 28 {04000778.1} 14 STIPULATED PROTECTIVE ORDER PROOF OF SERVICE 1 2 3 STATE OF CALIFORNIA COUNTY OF SAN FRANCISCO ) ) 4 I am employed in the County of San Francisco, State of California. I am over 5 6 7 8 9 10 11 12 13 14 15 the age of 21 and am not a party to the action. My business address is Maynard, Cooper & Gale, LLP, 600 Montgomery Street, Suite 2600, San Francisco, CA 94111. On the date indicated below I served the foregoing documents described as: STIPULATED PROTECTIVE ORDER [x] By CM/ECF ELECTRONIC SERVICE: The following are registered CM/ECF users with the Court, and have consented to service through the Court’s automatic transmission of notice of electronic filing. Glenn R. Kantor (SBN 122643) Alan E. Kassan (SBN 113864) Mitchell Owen Hefter (SBN 291985) KANTOR & KANTOR, LLP 16 17 Attorneys for Plaintiff Andy Hoang 18 19 20 I declare under penalty of perjury under the laws of the United States of America that the foregoing is true and correct to the best of my knowledge. 21 22 Executed on April 20, 2017, at San Francisco, CA 23 _____________________________ Claudia Wu 24 25 26 27 28 {04000778.1} STIPULATED PROTECTIVE ORDER

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