Cell-Crete Corporation, et al. v. Lexington Insurance Company
Filing
64
STIPULATED PROTECTIVE ORDER by Magistrate Judge Paul L. Abrams re Stipulation for Protective Order 63 (es)
1
2
3
4
5
6
7
8
9
10
11
Traci M. Ribeiro (admitted pro hac vice)
traci.ribeiro@sedgwicklaw.com
Alice Ye (admitted pro hac vice)
alice.ye@sedgwicklaw.com
SEDGWICK LLP
One North Wacker Drive, Suite 4200
Chicago, Illinois 60606
Telephone: 312.641.9050
Facsimile: 312.641.9530
Curtis D. Parvin (Bar No. 116079)
curtis.parvin@sedgwicklaw.com
Jenni K. Katzer (Bar No. 253684)
jenni.katzer@sedgwicklaw.com
SEDGWICK LLP
Three Park Plaza, 17th Floor
Irvine, California 92614
Telephone: 949.852.8200
Facsimile: 949.852.8282
Attorneys for Defendant, Lexington
Insurance Company
12
13
UNITED STATES DISTRICT COURT
14
CENTRAL DISTRICT OF CALIFORNIA, SOUTHERN DIVISION
15
16
17
18
19
20
21
22
23
CELL-CRETE CORPORATION, a
California corporation, and DAVID L.
BRAULT, an Individual,
Plaintiffs,
v.
Case No. 8:14-cv-00503-AG-PLA
Assigned to Hon. Andrew J. Guilford
STIPULATED PROTECTIVE
ODER
LEXINGTON INSURANCE COMPANY,
a Corporation, and DOES 1 through 200,
inclusive,
Defendants.
24
25
26
27
28
[PROPOSED] STIPULATED PROTECTIVE ORDER
1
1.
A. PURPOSES AND LIMITATIONS
2
Discovery in this action is likely to involve the production of confidential,
3
proprietary, or private information for which special protection from public disclosure
4
and from use for any purpose other than prosecuting this litigation may be warranted.
5
Accordingly, the parties hereby stipulate to and petition the Court to enter the
6
following Stipulated Protective Order. The parties acknowledge that this Order does
7
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
10
legal principles. The parties further acknowledge, as set forth in Section 12.3 below,
11
that this Stipulated Protective Order does not entitle them to file confidential
12
information under seal; Civil Local Rule 79-5 sets forth the procedures that must be
13
followed and the standards that will be applied when a party seeks permission from
14
the Court to file material under seal.
15
B. GOOD CAUSE STATEMENT
16
This action is likely to involve confidential, proprietary or private information
17
for which special protection from public disclosure and from use for any purpose
18
other than prosecution of this action is warranted. Such confidential and proprietary
19
materials and information consist of, among other things, the following:
20
- Documents or information relating to any underlying claims against Cell-
21
Crete Corporation (“Cell-Crete”) which are still open, as such
22
information is otherwise unavailable to the public and may impact Cell-
23
Crete’s position in the underlying litigation of these claims if publicly
24
disseminated;
25
- Documents or information from Lexington Insurance Company’s
26
underwriting files for the seven Lexington policies issued to Cell-Crete,
27
which
28
information;
includes
Lexington’s
confidential
business
1
[PROPOSED] STIPULATED PROTECTIVE ORDER
or
financial
- Lexington’s
1
Litigation
Management
Guidelines,
which
includes
information regarding Lexington’s confidential business practices;
2
- David L. Brault’s and the Law Offices of David L. Brault’s tax returns,
3
return information and financial data;
4
5
- Any other documents or information which may be privileged or
6
otherwise protected from disclosure under state or federal statutes, court
7
rules, case decisions, or common law.
8
Accordingly, to expedite the flow of information, to facilitate the prompt
9
resolution of disputes over confidentiality of discovery materials, to adequately protect
10
information the parties are entitled to keep confidential, to ensure that the parties are
11
permitted reasonable necessary uses of such material in preparation for and in the
12
conduct of trial, to address their handling at the end of the litigation, and serve the
13
ends of justice, a protective order for such information is justified in this matter. It is
14
the intent of the parties that information will not be designated as confidential for
15
tactical reasons and that nothing be so designated without a good faith belief that it
16
has been maintained in a confidential, non-public manner, and there is good cause
17
why it should not be part of the public record of this case.
18
2.
19
DEFINITIONS
2.1
Action: Cell-Crete Corporation, et al. v. Lexington Insurance Company, et al.,
20
Case No. 8:14-cv-00503-AG-PLA, in the United States District Court, Central District
21
of California, Southern Division.
22
23
24
2.2
Challenging Party: a Party or Non-Party that challenges the designation
of information or items under this Order.
2.3
“CONFIDENTIAL” Information or Items: information (regardless of
25
how it is generated, stored or maintained) or tangible things that qualify for protection
26
under Federal Rule of Civil Procedure 26(c), and as specified above in the Good
27
Cause Statement.
28
2.4
Counsel: Outside Counsel of Record and House Counsel (as well as
2
[PROPOSED] STIPULATED PROTECTIVE ORDER
1
2
their support staff).
2.5
Designating Party: a Party or Non-Party that designates information or
3
items that it produces in disclosures or in responses to discovery as
4
“CONFIDENTIAL.”
5
2.6
Disclosure or Discovery Material: all items or information, regardless of
6
the medium or manner in which it is generated, stored, or maintained (including,
7
among other things, testimony, transcripts, and tangible things), that are produced or
8
generated in disclosures or responses to discovery in this matter.
9
2.7
Expert: a person with specialized knowledge or experience in a matter
10
pertinent to the litigation who has been retained by a Party or its counsel to serve as
11
an expert witness or as a consultant in this Action.
12
2.8
House Counsel: attorneys who are employees of a party to this Action.
13
House Counsel does not include Outside Counsel of Record or any other outside
14
counsel.
15
16
2.9
Non-Party: any natural person, partnership, corporation, association, or
other legal entity not named as a Party to this action.
17
2.10 Outside Counsel of Record: attorneys who are not employees of a party
18
to this Action but are retained to represent or advise a party to this Action and have
19
appeared in this Action on behalf of that party or are affiliated with a law firm that has
20
appeared on behalf of that party, including support staff.
21
2.11 Party: any party to this Action, including all of its officers, directors,
22
employees, consultants, retained experts, and Outside Counsel of Record (and their
23
support staffs).
24
25
2.12 Producing Party: a Party or Non-Party that produces Disclosure or
Discovery Material in this Action.
26
2.13 Professional Vendors: persons or entities that provide litigation support
27
services (e.g., photocopying, videotaping, translating, preparing exhibits or
28
demonstrations, and organizing, storing, or retrieving data in any form or medium)
3
[PROPOSED] STIPULATED PROTECTIVE ORDER
1
and their employees and subcontractors.
2
2.14 Protected Material:
3
any Disclosure or Discovery Material that is
designated as “CONFIDENTIAL.”
2.15 Receiving Party: a Party that receives Disclosure or Discovery Material
4
5
from a Producing Party.
6
3.
SCOPE
7
The protections conferred by this Stipulation and Order cover not only
8
Protected Material (as defined above), but also (1) any information copied or
9
extracted from Protected Material; (2) all copies, excerpts, summaries, or compilations
10
of Protected Material; and (3) any testimony, conversations, or presentations by
11
Parties or their Counsel that might reveal Protected Material.
Any use of Protected Material at trial shall be governed by the orders of the
12
13
trial judge. This Order does not govern the use of Protected Material at trial.
14
4.
DURATION
15
Once a case proceeds to trial, all of the information to be introduced that was
16
previously designated as confidential or maintained pursuant to this protective order
17
becomes public and will be presumptively available to all members of the public,
18
including the press, unless compelling reasons supported by specific factual findings
19
to proceed otherwise are made to the trial judge in advance of the trial. See Kamakana
20
v. City and County of Honolulu, 447 F.3d 1172, 1180-81 (9th Cir. 2006)
21
(distinguishing “good cause” showing for sealing documents produced in discovery
22
from “compelling reasons” standard when merits-related documents are part of court
23
record). Accordingly, the terms of this protective order do not extend beyond the
24
commencement of the trial.
25
5.
DESIGNATING PROTECTED MATERIAL
26
5.1 Exercise of Restraint and Care in Designating Material for Protection. Each
27
Party or Non-Party that designates information or items for protection under this
28
Order must take care to limit any such designation to specific material that qualifies
4
[PROPOSED] STIPULATED PROTECTIVE ORDER
1
under the appropriate standards. The Designating Party must designate for protection
2
only those parts of material, documents, items, or oral or written communications that
3
qualify so that other portions of the material, documents, items, or communications
4
for which protection is not warranted are not swept unjustifiably within the ambit of
5
this Order.
6
Mass, indiscriminate, or routinized designations are prohibited. Designations
7
that are shown to be clearly unjustified or that have been made for an improper
8
purpose (e.g., to unnecessarily encumber the case development process or to impose
9
unnecessary expenses and burdens on other parties) may expose the Designating
10
Party to sanctions.
11
If it comes to a Designating Party’s attention that information or items that it
12
designated for protection do not qualify for protection, that Designating Party must
13
promptly notify all other Parties that it is withdrawing the inapplicable designation.
14
5.2
Manner and Timing of Designations. Except as otherwise provided in
15
this Order (see, e.g., second paragraph of section 5.2(a) below), or as otherwise
16
stipulated or ordered, Disclosure or Discovery Material that qualifies for protection
17
under this Order must be clearly so designated before the material is disclosed or
18
produced.
19
Designation in conformity with this Order requires:
20
(a) for information in documentary form (e.g., paper or electronic documents,
21
but excluding transcripts of depositions or other pretrial or trial proceedings), that the
22
Producing Party affix, at a minimum, the legend “CONFIDENTIAL” (hereinafter
23
“CONFIDENTIAL legend”), to each page that contains protected material. If only a
24
portion or portions of the material on a page qualifies for protection, the Producing
25
Party also must clearly identify the protected portion(s) (e.g., by making appropriate
26
markings in the margins).
27
A Party or Non-Party that makes original documents available for inspection
28
need not designate them for protection until after the inspecting Party has indicated
5
[PROPOSED] STIPULATED PROTECTIVE ORDER
1
which documents it would like copied and produced. During the inspection and
2
before the designation, all of the material made available for inspection shall be
3
deemed “CONFIDENTIAL.” After the inspecting Party has identified the
4
documents it wants copied and produced, the Producing Party must determine which
5
documents, or portions thereof, qualify for protection under this Order. Then, before
6
producing the specified documents, the Producing Party must affix the
7
“CONFIDENTIAL legend” to each page that contains Protected Material. If only a
8
portion or portions of the material on a page qualifies for protection, the Producing
9
Party also must clearly identify the protected portion(s) (e.g., by making appropriate
10
markings in the margins).
(b) for testimony given in depositions that the Designating Party identify the
11
12
Disclosure or Discovery Material on the record, before the close of the deposition.
13
(c) for information produced in some form other than documentary and for
14
any other tangible items, that the Producing Party affix in a prominent place on the
15
exterior of the container or containers in which the information is stored the legend
16
“CONFIDENTIAL.” If only a portion or portions of the information warrants
17
protection, the Producing Party, to the extent practicable, shall identify the protected
18
portion(s).
5.3
19
Inadvertent Failures to Designate. If timely corrected, an inadvertent
20
failure to designate qualified information or items does not, standing alone, waive the
21
Designating Party’s right to secure protection under this Order for such material.
22
Upon timely correction of a designation, the Receiving Party must make reasonable
23
efforts to assure that the material is treated in accordance with the provisions of this
24
Order.
25
6.
26
CHALLENGING CONFIDENTIALITY DESIGNATIONS
6.1
Timing of Challenges. Any Party or Non-Party may challenge a
27
designation of confidentiality at any time that is consistent with the Court’s
28
Scheduling Order.
6
[PROPOSED] STIPULATED PROTECTIVE ORDER
1
6.2
2
Meet and Confer. The Challenging Party shall initiate the dispute
3
resolution process under Local Rule 37.1, et seq. Any discovery motion must strictly
4
comply with the procedures set forth in Local Rules 37-1, 37-2, and 37-3.
6.3
5
Burden. The burden of persuasion in any such challenge proceeding
6
shall be on the Designating Party. Frivolous challenges, and those made for an
7
improper purpose (e.g., to harass or impose unnecessary expenses and burdens on
8
other parties) may expose the Challenging Party to sanctions. Unless the Designating
9
Party has waived or withdrawn the confidentiality designation, all parties shall
10
continue to afford the material in question the level of protection to which it is
11
entitled under the Producing Party’s designation until the Court rules on the
12
challenge.
13
7.
14
ACCESS TO AND USE OF PROTECTED MATERIAL
7.1
Basic Principles. A Receiving Party may use Protected Material that is
15
disclosed or produced by another Party or by a Non-Party in connection with this
16
Action only for prosecuting, defending, or attempting to settle this Action. Such
17
Protected Material may be disclosed only to the categories of persons and under the
18
conditions described in this Order. When the Action has been terminated, a Receiving
19
Party must comply with the provisions of section 13 below (FINAL DISPOSITION).
20
Protected Material must be stored and maintained by a Receiving Party at a
21
location and in a secure manner that ensures that access is limited to the persons
22
authorized under this Order.
23
7.2
Disclosure of “CONFIDENTIAL” Information or Items. Unless
24
otherwise ordered by the Court or permitted in writing by the Designating Party, a
25
Receiving
26
“CONFIDENTIAL” only to:
Party
may
disclose
any
information
or
item
designated
27
(a) the Receiving Party’s Outside Counsel of Record in this Action, as
28
well as employees of said Outside Counsel of Record to whom it is reasonably
7
[PROPOSED] STIPULATED PROTECTIVE ORDER
1
necessary to disclose the information for this Action;
(b) the officers, directors, and employees (including House Counsel) of
2
3
the Receiving Party to whom disclosure is reasonably necessary for this Action;
4
(c) Experts (as defined in this Order) of the Receiving Party to whom
5
disclosure is reasonably necessary for this Action and who have signed the
6
“Acknowledgment and Agreement to Be Bound” (Exhibit A);
7
(d) the Court and its personnel;
8
(e) court reporters and their staff;
9
(f) professional jury or trial consultants, mock jurors, and Professional
10
Vendors to whom disclosure is reasonably necessary for this Action and who have
11
signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A);
(g) the author or recipient of a document containing the information or
12
13
a custodian or other person who otherwise possessed or knew the information;
14
(h) during their depositions, witnesses, and attorneys for witnesses, in the
15
Action to whom disclosure is reasonably necessary provided; (1) the deposing party
16
requests that the witness sign the form attached as Exhibit A hereto; and (2) they will
17
not be permitted to keep any confidential information unless they sign the
18
“Acknowledgment and Agreement to Be Bound” (Exhibit A), unless otherwise agreed
19
by the Designating Party or ordered by the Court. Pages of transcribed deposition
20
testimony or exhibits to depositions that reveal Protected Material may be separately
21
bound by the court reporter and may not be disclosed to anyone except as permitted
22
under this Stipulated Protective Order; and
(i) any mediator or settlement officer, and their supporting personnel,
23
24
mutually agreed upon by any of the parties engaged in settlement discussions.
25
8.
26
PRODUCED IN OTHER LITIGATION
PROTECTED
MATERIAL
SUBPOENAED
OR
ORDERED
27
If a Party is served with a subpoena or a court order issued in other litigation
28
that compels disclosure of any information or items designated in this Action as
8
[PROPOSED] STIPULATED PROTECTIVE ORDER
1
“CONFIDENTIAL,” that Party must:
(a) Promptly notify in writing the Designating Party. Such notification
2
3
shall include a copy of the subpoena or court order;
4
(b) Promptly notify in writing the party who caused the subpoena or
5
order to issue in the other litigation that some or all of the material covered by the
6
subpoena or order is subject to this Protective Order. Such notification shall include a
7
copy of this Stipulated Protective Order; and
(c) cooperate with respect to all reasonable procedures sought to be
8
9
pursued by the Designating Party whose Protected Material may be affected.
10
If the Designating Party timely seeks a protective order, the Party served with
11
the subpoena or court order shall not produce any information designated in this
12
action as “CONFIDENTIAL” before a determination by the court from which the
13
subpoena or order issued, unless the Party has obtained the Designating Party’s
14
permission. The Designating Party shall bear the burden and expense of seeking
15
protection in that court of its confidential material and nothing in these provisions
16
should be construed as authorizing or encouraging a Receiving Party in this Action to
17
disobey a lawful directive from another court.
18
9.
19
PRODUCED IN THIS LITIGATION
A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE
20
(a) The terms of this Order are applicable to information produced by a
21
Non-Party in this Action and designated as “CONFIDENTIAL.” Such information
22
produced by Non-Parties in connection with this litigation is protected by the
23
remedies and relief provided by this Order. Nothing in these provisions should be
24
construed as prohibiting a Non-Party from seeking additional protections.
25
(b) In the event that a Party is required, by a valid discovery request, to
26
produce a Non-Party’s confidential information in its possession, and the Party is
27
subject to an agreement with the Non-Party not to produce the Non-Party’s
28
confidential information, then the Party shall:
9
[PROPOSED] STIPULATED PROTECTIVE ORDER
1
(1) promptly notify in writing the Requesting Party and the Non-
2
Party that some or all of the information requested is subject to a confidentiality
3
agreement with a Non-Party;
4
(2) promptly provide the Non-Party with a copy of the Stipulated
5
Protective Order in this Action, the relevant discovery request(s), and a reasonably
6
specific description of the information requested; and
(3) make the information requested available for inspection by the
7
8
Non-Party, if requested.
9
(c) If the Non-Party fails to seek a protective order from this Court
10
within 14 days of receiving the notice and accompanying information, the Receiving
11
Party may produce the Non-Party’s confidential information responsive to the
12
discovery request. If the Non-Party timely seeks a protective order, the Receiving
13
Party shall not produce any information in its possession or control that is subject to
14
the confidentiality agreement with the Non-Party before a determination by the
15
Court. Absent a court order to the contrary, the Non-Party shall bear the burden and
16
expense of seeking protection in this Court of its Protected Material.
17
10.
UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL
18
If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed
19
Protected Material to any person or in any circumstance not authorized under this
20
Stipulated Protective Order, the Receiving Party must immediately (a) notify in writing
21
the Designating Party of the unauthorized disclosures, (b) use its best efforts to
22
retrieve all unauthorized copies of the Protected Material, (c) inform the person or
23
persons to whom unauthorized disclosures were made of all the terms of this Order,
24
and (d) request such person or persons to execute the “Acknowledgment and
25
Agreement to Be Bound” that is attached hereto as Exhibit A.
26
11.
27
OTHERWISE PROTECTED MATERIAL
28
INADVERTENT
PRODUCTION
OF
PRIVILEGED
OR
When a Producing Party gives notice to Receiving Parties that certain
10
[PROPOSED] STIPULATED PROTECTIVE ORDER
1
inadvertently produced material is subject to a claim of privilege or other protection,
2
the obligations of the Receiving Parties are those set forth in Federal Rule of Civil
3
Procedure 26(b)(5)(B). This provision is not intended to modify whatever procedure
4
may be established in an e-discovery order that provides for production without prior
5
privilege review. Pursuant to Federal Rule of Evidence 502(d) and (e), insofar as the
6
parties reach an agreement on the effect of disclosure of a communication or
7
information covered by the attorney-client privilege or work product protection, the
8
parties may incorporate their agreement in the stipulated protective order submitted
9
to the Court.
10
12.
12.1 Right to Further Relief. Nothing in this Order abridges the right of any
11
12
MISCELLANEOUS
person to seek its modification by the Court in the future.
13
12.2 Right to Assert Other Objections. By stipulating to the entry of this
14
Protective Order, no Party waives any right it otherwise would have to object to
15
disclosing or producing any information or item on any ground not addressed in this
16
Stipulated Protective Order. Similarly, no Party waives any right to object on any
17
ground to use in evidence of any of the material covered by this Protective Order.
18
12.3 Filing Protected Material. A Party that seeks to file under seal any
19
Protected Material must comply with Civil Local Rule 79-5. Protected Material may
20
only be filed under seal pursuant to a court order authorizing the sealing of the
21
specific Protected Material at issue; good cause must be shown in the request to file
22
under seal. If a Party’s request to file Protected Material under seal is denied by the
23
Court, then the Receiving Party may file the information in the public record unless
24
otherwise instructed by the Court.
25
13.
FINAL DISPOSITION
26
After the final disposition of this Action, within 60 days of a written request by
27
the Designating Party, each Receiving Party must return all Protected Material to the
28
Producing Party or destroy such material. As used in this subdivision, “all Protected
11
[PROPOSED] STIPULATED PROTECTIVE ORDER
1
Material” includes all copies, abstracts, compilations, summaries, and any other format
2
reproducing or capturing any of the Protected Material. Whether the Protected
3
Material is returned or destroyed, the Receiving Party must submit a written
4
certification to the Producing Party (and, if not the same person or entity, to the
5
Designating Party) by the 60 day deadline that (1) identifies (by category, where
6
appropriate) all the Protected Material that was returned to destroyed and (2) affirms
7
that the Receiving Party has not retained any copies, abstracts, compilations,
8
summaries or any other format reproducing or capturing any of the Protected
9
Material. Notwithstanding this provision, counsel are entitled to retain an archival
10
copy of all pleadings, motion papers, trial, deposition, and hearing transcripts, legal
11
memoranda, correspondence, deposition and trial exhibits, expert reports, attorney
12
work product, and consultant and expert work product, even if such materials contain
13
Protected Material. Any such archival copies that contain or constitute Protected
14
Material remain subject to this Protective Order as set forth in Section 4
15
(DURATION).
16
14.
17
measures including, without limitation, contempt proceedings and/or monetary
18
sanctions.
19
20
21
Any violation of this Order may be punished by any and all appropriate
FOR GOOD CAUSE SHOWN, IT IS SO ORDERED.
DATED: December 16, 2014
22
23
________________________________
24
Paul L. Abrams
United States Magistrate Judge
25
26
27
28
12
[PROPOSED] STIPULATED PROTECTIVE ORDER
1
EXHIBIT A
2
ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND
3
4
I, _________________________ [print or type full name], of ____________
5
[print or type full address], declare under penalty of perjury that I have read in its
6
entirety and understand the Stipulated Protective Order that was issued by the United
7
States District Court for the Central District of California on [date] in the case of
8
_________________ Cell-Crete Corporation et al. v. Lexington Insurance Company, et al.,
9
Case No. 8:14-cv-00503-AG-PLA, Central District of California, Southern Division. I
10
agree to comply with and to be bound by all the terms of this Stipulated Protective
11
Order and I understand and acknowledge that failure to so comply could expose me
12
to sanctions and punishment in the nature of contempt. I solemnly promise that I will
13
not disclose in any manner any information or item that is subject to this Stipulated
14
Protective Order to any person or entity except in strict compliance with the
15
provisions of this Order.
16
I further agree to submit to the jurisdiction of the United States District Court
17
for the Central District of California for the purpose of enforcing the terms of this
18
Stipulated Protective Order, even if such enforcement proceedings occur after
19
termination of this action. I hereby appoint ___________________________ [print
20
or type full name] of _________________________ [print or type full address and
21
telephone number] as my California agent for service of process in connection with
22
this action or any proceedings related to enforcement of this Stipulated Protective
23
Order.
24
Date: ____________________________
25
City and State where sworn and signed: ___________________________________
26
Printed name: _____________________
27
Signature: ________________________
28
13
[PROPOSED] STIPULATED PROTECTIVE ORDER
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?