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)

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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

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