Jo Lynn Pollard v. Time Insurance Company et al

Filing 15

PROTECTIVE ORDER by Magistrate Judge Marc L. Goldman re Stipulation for Protective Order 13 . See order for more information. (twdb)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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SOUTHERN DIVISION

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JO LYNN POLLARD, an individual
Plaintiff,

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Case No: SACV11-01196 JST (MLGx)
[PROPOSED] PROTECTIVE
ORDER

v.

Judge: Hon. Josephine Staton Tucker
Date Complaint Filed: April 21, 2011

TIME INSURANCE COMPANY and
ASSURANT, INC.,

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Defendants.

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On stipulation of the parties and good cause appearing, IT IS HEREBY

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ORDERED as follows:

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DEFINITIONS

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1.

Action: “Action” shall refer to the action known as Jo Lynn Pollard v.

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Time Insurance Company and Assurant, Inc., United States District Court for the

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Central District of California, Southern Division, Case No. SAC11-01196 JST

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(MLGx).

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2.

Party: “Party” means any plaintiff or defendant in the Action

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3.

Counsel: “Counsel” means: Ford & Serviss LLP, counsel for Plaintiff

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and Foley & Lardner, LLP, counsel for TIME and Assurant, and their respective

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support staff, including paralegals, and clerical secretarial staff.

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[PROPOSED] PROTECTIVE ORDER
CASE NO. SACV11-01196 JST (MLGX)
4815-9413-5310.1

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4.

Discovery Material: “Discovery Material” means all items or

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information, regardless of the medium or manner generated, stored, or maintained

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(including, among other things, testimony, transcripts, or tangible things) that are

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produced or generated in response to discovery directed towards a Party or non-

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party in these matters.

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5.

Designating Party: “Designating Party” means a Party or non-party

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that designates materials or disclosures produced or utilized in this litigation by

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any Party or any third party (pursuant to subpoena or otherwise), as Confidential

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Material or Highly Confidential Material - Attorneys’ Eyes Only.

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6.

Receiving Party: “Receiving Party” means any Party to the Action

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and all employees, agents and directors (other than Counsel) of the Party, who

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receives Discovery Material.

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7.

Producing Party: “Producing Party” means a Party or non-party that

produces or discloses Discovery Material in the Action.
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Conclusion of This Litigation: “Conclusion of This Litigation” is

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defined as the date on which this Action is settled by way of enforceable

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agreement or on which all appeals and rights to appeal have been exhausted,

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whichever is earlier.

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9.

Confidential Material: “Confidential Material” means any material

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which has not been made public and which contains either (a) proprietary

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information or (b) information that is protected by state or federal privacy laws.

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10.

Highly Confidential Material – Attorneys’ Eyes Only: extremely

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sensitive “Confidential Material” whose disclosure to another Party or non-party

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would create a substantial risk of serious injury that could not be avoided by less

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restrictive means.

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11.

Protected Material: “Protected Material” means any Discovery

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Material, and any document embodying or disclosing the contents of such

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Discovery Material, that is designated as “Confidential Material” or “Highly
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[PROPOSED] PROTECTIVE ORDER
CASE NO. SACV11-01196 JST (MLGX)

4815-9413-5310.1

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Confidential Material - Attorneys’ Eyes Only” in accordance with the terms of this

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Protective Order.

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DESIGNATION OF DISCOVERY MATERIAL AS CONFIDENTIAL

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12.

Criteria for Classification

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Any party or non-party who produces Discovery Material in the Action may

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designate such material as “Confidential Material” or “Highly Confidential

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Material--Attorneys’ Eyes Only” in accordance with the provisions of this

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Protective Order so long as they believe in good faith that the information so

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designated meets the definition of “Confidential Material” or “Highly Confidential

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Material--Attorneys’ Eyes Only” set forth in this Protective Order.

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13.

Time Of Designation

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Unless otherwise agreed between counsel for the parties, or as otherwise

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specified herein, the designation of Discovery Material as “Confidential Material”

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or “Highly Confidential Material--Attorneys’ Eyes Only” shall be made at the

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following times:

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a.

For documents or things at the time of the production of the

documents or things;
b.

For declarations, correspondence, expert witness reports, written

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discovery responses, court filings, pleadings, and other documents, at the time of

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the service or filing, whichever occurs first;

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c.

For testimony, at the time such testimony is given by a statement

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designating the testimony as “Confidential Material” or “Highly Confidential

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Material--Attorneys’ Eyes Only” made on the record or within 10 days after

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receipt of the transcript of the deposition as set forth herein.

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14.

Manner Of Designation

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The designation of Discovery Material as “Confidential Material” or

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“Highly Confidential Material--Attorneys’ Eyes Only” shall be made in the

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following manner:
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[PROPOSED] PROTECTIVE ORDER
CASE NO. SACV11-01196 JST (MLGX)

4815-9413-5310.1

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a.

For documents, by placing the notation “Confidential Material” or

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“Highly Confidential Material--Attorneys’ Eyes Only” or similar legend on each

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page of such document;

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b.

For tangible things, by placing the notation “Confidential Material” or

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“Highly Confidential Material--Attorneys’ Eyes Only” on the object or container

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thereof or if impracticable, as otherwise agreed by the parties;

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c.

For declarations, correspondence, expert witness reports, written

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discovery responses, court filings, pleadings, and any other documents containing

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Confidential Material or Highly Confidential Material--Attorneys’ Eyes Only, by

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placing the notation “Confidential Material” or “Highly Confidential Material--

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Attorneys’ Eyes Only” both on the face of such document and on any particular

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designated pages of such document; and

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d.

For testimony, by orally designating such testimony as being

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“Confidential Material” or “Highly Confidential Material--Attorneys’ Eyes Only”

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at the time the testimony is given. Alternatively, if a question asked at a pretrial

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deposition calls for an answer containing “Confidential Material” or “Highly

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Confidential Material--Attorneys’ Eyes Only” or if the question or answer contains

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“Confidential Material” or “Highly Confidential Material--Attorneys’ Eyes Only”,

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counsel for the party seeking confidential treatment of that information shall within

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30 days after receipt of the transcript of the deposition notify all other counsel on

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the record or in writing that the information provided in such answer or question is

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considered Confidential Material and designate the specific portions or the entirety

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of the transcript of such deposition, which shall thereafter be subject to the

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provisions of this Order. Prior to the expiration of this 30 day period deposition

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transcripts will be considered conditionally confidential and will be treated as

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“Confidential Material” or “Highly Confidential Material--Attorneys’ Eyes Only.

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Thereafter, the original and all copies of the “Confidential” portions of the

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transcript of any such testimony shall be separately bound and marked by the Court
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[PROPOSED] PROTECTIVE ORDER
CASE NO. SACV11-01196 JST (MLGX)

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Reporter with an appropriate legend and shall be disclosed only in accordance with

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the provisions of this Protective Order.

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Resolution Of Disputes Regarding Designation

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a.

The acceptance by a party of Discovery Material marked as

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“Confidential Material” or “Highly Confidential Material--Attorneys’ Eyes Only”

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shall not constitute an admission or concession or permit an inference that such

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designation is appropriate. However, Discovery Material marked as “Confidential

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Material” or “Highly Confidential Material--Attorneys’ Eyes Only” shall be treated

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as designated unless the receiving party follows the following procedures to

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remove, change or otherwise declassify the designation:
b.

If a Receiving Party at any time wishes to have the “Confidential

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Material” or “Highly Confidential Material--Attorneys’ Eyes Only” designation of

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any particular Discovery Material removed or changed, that party shall first request

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in writing that the designating party or non-party remove its designation and state

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the reason(s) therefore. The Parties shall then meet and confer on whether the

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material designated as Confidential should be considered Confidential. If the party

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or non-party designating the Discovery Material as Confidential refuses to agree to

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remove or change the designation, then the party requesting the re-designation may

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move the Court for an order changing the designation of the material. The party

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asserting protection shall have the burden of proving that such particular Discovery

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Material is properly designated as “Confidential Material” or “Highly Confidential

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Material--Attorneys’ Eyes Only.” The parties shall treat the Discovery Material as

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originally designated until any motion requesting re-designation of the material is

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decided by the Court.

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16.

Inadvertent Disclosure

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Protected Material not designated as “Confidential Material” or “Highly

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Confidential Material--Attorneys’ Eyes Only” through mistake or inadvertence

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shall nevertheless be deemed confidential upon notice of such mistake to the
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[PROPOSED] PROTECTIVE ORDER
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Receiving Party. Each party maintaining custody of such documents shall protect

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their confidentiality notwithstanding the fact that they have not been marked

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“Confidential Material” or “Highly Confidential Material--Attorneys’ Eyes Only”

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Where a Producing Party has inadvertently produced a document that the

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Producing Party later claims should not have been produced because of privilege,

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the Producing Party may request the return of any such document by making a

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written request within two (2) business days of discovering that it was

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inadvertently produced. A request for the return of any document shall identify the

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document by Bates number and the basis for asserting the document (or portions

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thereof) is privileged and the date of discovery of the inadvertent production. If a

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Producing Party requests the return of any such document from another party, the

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party to whom the request is made shall within ten (10) days return to the

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Producing Party all copies of the document within its possession, custody, or

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control (including but not limited to all copies in possession of any experts or

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consultants) or shall contest the claim of privilege or inadvertent production. In

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the event the Receiving Party contests the claim of privilege or inadvertent

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production, the Producing Party may file and serve a motion or other application

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acceptable by the Court to obtain a judicial determination that the document is

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privileged. Until such a judicial determination is made, the alleged privileged

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document shall be afforded privileged status.

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Nothing in paragraph (b) shall supersede the duties of the parties to

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immediately inform the producing party of the receipt of inadvertently disclosed

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privileged material. Upon demand, the receiving party will return the inadvertently

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produced privileged documents within five (5) business days.

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DISCLOSURE OF PROTECTED MATERIAL

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All Confidential Materials in the Action are private and confidential and

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shall be used by the Receiving Party only for the prosecution or defense of the

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Action.
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[PROPOSED] PROTECTIVE ORDER
CASE NO. SACV11-01196 JST (MLGX)

4815-9413-5310.1

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17.

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Protected Material may be disclosed and copies may be provided by the

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Disclosure of Protected Material to Qualified Persons

Receiving Party to any of the following “qualified persons”:

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a.

Any Party;

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b.

Counsel representing any party to the Action;

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c.

Paralegal, secretarial, and clerical employees of counsel representing

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any Party to the Action;
d.

The Court and the Court’s employees whose duties require access to

information lodged or filed in connection with the Action;
e.

Any non-party support services including, but not limited to,

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stenographers, reporters, other persons involved in recording or transcribing

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testimony in the Action (including depositions and hearings); employees of

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copying, microfilming, or other services engaged to reproduce, scan, or store

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Confidential Discovery Materials in the Action;

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f.

Experts and consultants retained or consulted by counsel concerning

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the Action and the employees of any such expert or consultant who are assisting in

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the work for which the expert or consultant is engaged;

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g.

Any mediator who may be utilized in connection with the Action;

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h.

Persons who prepared the Confidential Discovery Materials;

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i.

Prior recipients of the Confidential Discovery Materials;

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j.

Any other person as to whom the parties agree in writing.

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It shall be the responsibility of Counsel to provide copies of this Protective

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Order to qualified persons receiving Protected Material, and to maintain

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compliance with this Protective Order by qualified persons.

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18.

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Notwithstanding any other provision of this Protective Order, Protected

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Use of Protected Material During Deposition

Material may be disclosed and used as follows:

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[PROPOSED] PROTECTIVE ORDER
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a.

A Party or present employee of a Party may be examined and may

testify concerning all Protected Material produced by that Party;
b.

A former employee of a Party may be examined and may testify

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concerning all Protected Material produced by that Party to which that former

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employee has knowledge or which pertains to the period or periods of his or her

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employment.

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c.

Non-parties may be examined and may testify concerning any

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document containing Protected Material of a Producing Party which appears on its

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face or from other documents or testimony to have been prepared by, received by,

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known by or communicated to the non-party (other than through inadvertent

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disclosure).

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USE OF PROTECTED MATERIAL

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19. The Parties agree to fully cooperate with each other in ensuring that

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Discovery Materials that are subject to the Protective Order are not disclosed. The

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Parties therefore agree that Protected Material may be used as follows:

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a.

Protected Material, including all information derived therefrom, and

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all copies, summaries, abstracts, excerpts, and descriptions of such material, shall

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be held in confidence by the Receiving Party, shall be used only by persons

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permitted access to it under this Protective Order, shall not be disclosed by the

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Receiving Party to any Party or person not entitled under the terms of this

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Protective Order to have access to such material, and shall not be used for any

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purpose other than in connection with the Action.

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b.

If a Party wishes to include information designated as “Confidential”

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in any papers filed with the Court, except discovery motions or discovery

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proceedings, which are addressed by paragraph 20 of this Protective Order, the

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following procedures shall apply:

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(i)

If Party has an interest in the confidentiality of the documents,

then it must lodge the proposed under seal documents with the court,
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[PROPOSED] PROTECTIVE ORDER
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following the procedures set forth in Local Rule 79-5.1, and file an

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application with a supporting memorandum and declarations containing the

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facts sufficient to support the proposed sealing order.
(ii)

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If the Party does not have an interest in the confidentiality of

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the documents, then it must lodge the proposed under seal documents with

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the court, following the procedures set forth in Local Rule 79-5.1, and give

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notice to all other parties that (a) any party with an interest in the

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confidentiality of the documents has ten (10) days within which to file an

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application with a supporting memorandum and declarations containing

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facts sufficient to support the proposed sealing order, and (b) failure to

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timely file an application may result in the public filing of documents.

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20.

Unless otherwise directed by the Court, the Party seeking to use or

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reference Protected Material in any discovery motion or proceeding shall file

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redacted documents with the Court, so that the documents do not disclose the

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contents of any information subject to this Protective Order. The filing Party shall

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also lodge unredacted versions of the documents under seal with the Court, in

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accordance with this Court’s procedures.

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21.

Protected Material may be used in testimony at trial, offered into

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evidence at trial and/or at hearings on motions, used to support or oppose any

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motion to the Action and used to prepare for and conduct discovery in the Action

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subject to the restrictions in this Protective Order.

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22.

Nothing in this Protective Order shall affect the admissibility into

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evidence of Protected Material, or abridge the rights of any person to seek judicial

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review or to pursue other appropriate judicial action with respect to any ruling

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made by the Court concerning the issue of the status of Protected Material. This

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Protective Order is without prejudice to any party seeking an Order from this Court

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imposing further restrictions on the dissemination of Protective Material, or

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seeking to rescind, modify, alter, or amend this Protective Order with respect to
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[PROPOSED] PROTECTIVE ORDER
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specific information. Nothing in this Protective Order shall prevent any

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designating party from using or disclosing its own Protected Material as it deems

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appropriate.

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23.

The designation of Discovery Material as “Confidential Material” or

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“Highly Confidential Material--Attorneys’ Eyes Only” by a Party or the failure by

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a Party to object to the designation of Discovery Material as “Confidential” shall

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not be deemed a conclusive determination or admission that such material

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constitutes a trade secret of the Producing Party.

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24.

Nothing herein shall be construed to prevent disclosure of Protected

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Material if such disclosure is required by law or by order of the Court. However, if

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another court or administrative agency subpoenas or orders production of Protected

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Material that a party has obtained under the terms of this Order, such party shall

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promptly notify the party or another person designating the document as

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Confidential of the pendency of the subpoena or order and shall not produce the

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Protected Material or until the designating party or person has had a reasonable

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time to object or otherwise to take appropriate steps to protect the Protected

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Material.

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RETURN OR DESTRUCTION OF DOCUMENTS OR INFORMATION

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25.

No later than sixty (60) days after Conclusion Of This Litigation, each

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Receiving Party or other individuals subject to this Protective Order shall be under

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an obligation to destroy or return to the designating party any Protected Material

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subject to this Protective Order that is in his or her possession, custody or control,

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including all copies thereof. Notice of the destruction or return of any such

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Protected Material shall be made by Counsel in writing, and notice of receipt

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thereof shall be acknowledged in writing. Notwithstanding the foregoing

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provisions of this Paragraph, receiving counsel shall be entitled to retain all

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litigation documents containing Protected Material which become part of the

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official court record of the Action, including pleadings, briefs, and exhibits.
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[PROPOSED] PROTECTIVE ORDER
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RIGHT TO FURTHER RELIEF
26.

Nothing in this Protective Order shall abridge the right of any person

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to seek modification or amendment of this Order from the Court.

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RIGHT TO ASSERT OTHER OBJECTIONS

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27.

This Protective Order shall not be construed as waiving any right to

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assert a claim of privilege, relevance, or other grounds for not producing Discovery

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Material.

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SURVIVAL

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28.

All obligations and duties arising under this Protective Order shall

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survive the termination of the Action. The Court retains jurisdiction over the

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parties hereto and all non-party recipients of Protected Material with respect to any

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dispute regarding the improper use of Protected Material disclosed pursuant to this

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Protective Order.

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VIOLATION OF PROTECTIVE ORDER

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29.

Any intentional violation of this Protective Order may constitute a

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contempt of Court, and be punishable as such, and may subject the offending party

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or non-party to such additional and further remedies as may be available to the

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aggrieved party or non-party.

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AMENDMENT OF PROTECTIVE ORDER

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30.

This Protective Order may be amended by the written stipulation of

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the parties or by the Court upon a showing of good cause.

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PROTECTED HEALTH INFORMATION

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31.

Any document or information that constitutes protected health

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information (PHI) as that term is used in the federal laws governing confidentiality

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of patient identifiable health information (e.g., Health Insurance Portability and

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Accountability Act of 1996, as amended by Sections 13400 through 13424 of the

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Health Information Technology for Economic Clinical Health Act (HITECH Act),

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which was enacted as a part of the American Recovery and Reinvestment Action
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[PROPOSED] PROTECTIVE ORDER
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of 2009 (AARA)), shall be deemed to be “Confidential” regardless of whether it is

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or is not marked “Confidential.” Nothing in this protective order requires any of

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the parties mark “PHI” as “Confidential.”

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EXECUTION AND COUNTERPARTS

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32.

This Order may be executed in one or more identical counterparts,

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each of which shall be deemed to be an original, but all of which together shall

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constitute one and the same instrument. Facsimile signatures of any Party upon the

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signature page of this Order shall be binding upon the Parties hereto and may be

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submitted as though such signatures were original signatures.

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IT IS SO ORDERED.

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DATED: DECEMBER 6, 2011

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_______________________________
HON. MARC L. GOLDMAN
UNITED STATES MAGISTRATE JUDGE

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[PROPOSED] PROTECTIVE ORDER
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