Sperry Commercial, Inc. v. Zurich American Insurance Company

Filing 17

ORDER FOR ENTRY OF STIPULATED PROTECTIVE ORDER by Magistrate Judge Jay C. Gandhi re Stipulation for Protective Order 15 . (kh)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

CENTRAL DISTRICT OF CALIFORNIA

10
11
12

SPERRY COMMERCIAL, INC., a
California Corporation,
Plaintiff,

13

vs.

14
15

ZURICH AMERICAN
INSURANCE COMPANY, et al.,

16

Case No. 8:15-cv-01229-DOC-JCG
ORDER FOR ENTRY OF
STIPULATED PROTECTIVE
ORDER
Complaint Filed: May 13, 2015
Trial Date:
August 8, 2017

Defendant(s).

17

Having reviewed the Parties’ Joint Stipulation to Enter Proposed Protective

18
19

Order, IT IS HEREBY ORDERED:

20

1.

A. PURPOSES AND LIMITATIONS

21

Discovery in this action is likely to involve production of confidential,

22

proprietary, or private information for which special protection from public

23

disclosure and from use for any purpose other than prosecuting this litigation may

24

be warranted. Accordingly, the parties hereby stipulate to and petition the Court to

25

enter the following Stipulated Protective Order. The parties acknowledge that this

26

Order does not confer blanket protections on all disclosures or responses to

27

discovery and that the protection it affords from public disclosure and use extends

28

only to the limited information or items that are entitled to confidential treatment
ORDER FOR ENTRY OF PROTECTIVE ORDER

CASE NO. 8:15 CV 01229 DOC JCG

1

under the applicable legal principles. The parties further acknowledge, as set forth

2

in Section 12.3, below, that this Stipulated Protective Order does not entitle them to

3

file confidential information under seal; Civil Local Rule 79-5 sets forth the

4

procedures that must be followed and the standards that will be applied when a

5

party seeks permission from the court to file material under seal.

6

B. GOOD CAUSE STATEMENT

7

This action involves an insurance dispute under a first-party property

8

insurance policy issued by defendant Zurich American Insurance Company

9

(“Zurich”) to plaintiff Sperry Commercial, Inc (“Sperry”). Sperry is a privately-

10

held commercial real estate firm that provides to its clients, inter alia, real estate

11

sales, management and leasing services for different projects located throughout the

12

United States.

13

Presently, the dispute raised in the Complaint is limited to Zurich’s decision

14

disclaiming coverage for physical damage to one of the buildings which Sperry

15

manages and operates in the greater Atlanta, GA area. That building is located at

16

5300 Oakbrook Parkway, Building 300, Norcross, Georgia (“Building 300”).

17

Building 300 is one of eleven (11) buildings located in Norcross, GA that Sperry

18

collectively manages and operates as “Oakbrook North.”

19

Sperry has also presented claims to Zurich involving an additional sixteen

20

buildings which are all located in another part of Norcross, GA that with one

21

exception Sperry collectively manages and operates as “Gwinnett Park”. 1 Based

22

upon the information presently available and preliminary opinions from Zurich’s

23

expert consultants, the parties anticipate that Zurich will disclaim coverage for

24

some, if not all, of the sixteen Gwinnett Park Buildings. The parties contemplate

25

that any such denials of coverage are likely to result in Sperry amending its current

26

complaint to include those buildings.

27

1

28

There are an additional three (3) buildings that are part of Sperry’s “Gwinnett Park” group of
buildings for which no claim has been made to Zurich.
-2ORDER FOR ENTRY OF PROTECTIVE ORDER

CASE NO. 8:15 CV 01229 DOC JCG

1

In the parties’ September 18, 2015 Joint Rule 26(f) Report [Docket No. 9],

2

one of the key legal issues Zurich identified was “[w]hen the losses actually

3

manifested and which policy, if any, provides coverage for the claimed losses.” (Id.

4

at 7:25-8:3) (Emphasis added).

5

discovery to Sperry requesting, among other things, “any and all documents”

6

referring to “any damage to the Property for which you are presenting [a] claim

7

under the Policies” and “[a]ny and all tenant files pertaining to the Property

8

between the time you first leased any portions thereof to anyone and May 30, 2014.

9

As used herein ‘tenant files’ include but are not limited to, (i) leases and documents

10

related thereto, (ii) Documents pertaining to all communications with the tenant’s

11

representatives, (iii) maintenance/repair Documents, (iv) lease payments and

12

documentation of any requested or granted concessions, reductions or refunds and

13

(v) inspections or other Documents reflecting the conditions of the premises or

14

building(s) and changes thereto.”

Subsequently, Zurich propounded written

15

Sperry has identified three specific categories of documents which are

16

responsive to one or more of Zurich’s requests, but which should not be produced

17

unless and until this Court enters a protective order: (1) the leases for Sperry’s

18

current and former tenants at Building 300; (2) Oakbrook North’s monthly rent rolls,

19

which include those applicable to Building 300 and (3) the “Management Reports”

20

that Sperry prepares for Oakbrook North, which includes Building 300. As

21

explained below in greater detail, a protective order is necessary to prevent the

22

public dissemination of these documents because (a) the documents contain

23

confidential financial and other information regarding how Sperry conducts its

24

business operations generally and at Oakbrook North, in particular; (b) the

25

documents contain confidential and private financial and other information

26

regarding the third-party tenants occupying space at 5300 Oakbrook Parkway,

27

Building 300; and/or (c) Sperry Commercial owes a duty to its Oakbrook North

28
-3ORDER FOR ENTRY OF PROTECTIVE ORDER

CASE NO. 8:15 CV 01229 DOC JCG

1

project clients not to publicly disclose confidential financial and other information

2

regarding said buildings.

3

(1) Leases for Sperry tenants occupying Building 300. The leases in question

4

contain, inter alia, private financial information of the tenants occupying space at

5

Building 300, including bank account information, information regarding rent and

6

security deposits, and information regarding the contemplated use for the space.

7

These third parties have a reasonable expectation of privacy that the financial

8

information they had supplied to Sperry in conjunction with the leases, as well as the

9

amount of monies they pay for rent, will not be publicly disclosed. In addition,

10

Sperry also has an interest in protecting the leases from disclosure because it could

11

adversely affect its ability to negotiate future leases with tenants and/or potential

12

tenants if the rates it charges tenants and other lease terms are publicly available.

13

Moreover, if outside brokers know Sperry’s rent rates, cam information, and lease

14

expirations, they would solicit tenants to lease.

15

(2) Oakbrook property monthly rent rolls. The Oakbrook property monthly

16

rent rolls contain, among other things, private rent information, Sperry

17

Commercial’s rental income on a month-by-month basis, and what each tenant pays

18

for rent. Again, as with the leases described above, third parties have a reasonable

19

expectation of privacy that the financial information they had supplied to Sperry in

20

conjunction with the leases, including the amount of money they pay for rent, is not

21

publicly available. Further, Sperry also has an interest in protecting the leases from

22

disclosure because it could adversely affect its ability to negotiate future leases with

23

tenants and/or potential tenants if the rate it charges tenants are publicly available.

24

Further, if outside brokers know Sperry’s rent rolls, they would solicit tenants to

25

lease.

26

(3) Oakbrook North monthly “Management Reports.” The “Management

27

Reports” provide comprehensive financial information regarding the entire

28

Oakbrook North project, including discussions and descriptions regarding vacancy
-4ORDER FOR ENTRY OF PROTECTIVE ORDER

CASE NO. 8:15 CV 01229 DOC JCG

1

rates, prospective clients, rental strategies, property conditions, Oakbrook North

2

“loan” balance and payment status; and ledgers and other financial data reflecting

3

all outlays by Sperry on a monthly basis as to each and every building in the

4

Oakbrook North project, including the subject Building 300. This information

5

constitutes Sperry’s confidential financial and proprietary information about how its

6

business is run and its profitability. Sperry Commercial would be harmed by the

7

disclosure of this information because it could give another company a competitive

8

advantage against Sperry. Relatedly, if Sperry’s competitors obtain a competitive

9

advantage against Sperry, its clients for the Oakbrook North project would also be

10

harmed by the public disclosure of the monthly “Management Reports.” The

11

“Management Reports” also include bank account information and investor

12

information that, if made public, could leave Sperry and its investors open to

13

identity theft.

14

In addition to the information from Sperry, discovery has also been

15

propounded to non-party witnesses based on Sperry’s contention that the physical

16

damage to its property was caused by vibrations from blasting at Vulcan Material

17

Company’s nearby quarry. Vulcan has asserted that its response to the discovery

18

calls for disclosure of confidential business information and has requested that its

19

document disclosure be subject to confidentiality under a protective order.

20

The information which the parties seek to protect implicate confidential

21

business or financial information of Sperry and/or third parties, information

22

implicating privacy rights (including that of third parties), is otherwise generally

23

unavailable to the public and/or may be privileged, or otherwise protected from

24

disclosure under state or federal statutes, court rules, case decisions, or common law.

25

Accordingly, to expedite the flow of information, to facilitate the prompt resolution

26

of disputes over confidentiality of discovery materials, to adequately protect

27

information the parties are entitled to keep confidential, to ensure that the parties are

28

permitted reasonable necessary uses of such material in preparation for and in the
-5ORDER FOR ENTRY OF PROTECTIVE ORDER

CASE NO. 8:15 CV 01229 DOC JCG

1

conduct of trial, to address their handling at the end of the litigation, and serve the

2

ends of justice, a protective order for such information is justified in this matter. It

3

is the intent of the parties that information will not be designated as confidential for

4

tactical reasons and that nothing be so designated without a good faith belief that it

5

has been maintained in a confidential, non-public manner, and there is good cause

6

why it should not be part of the public record of this case.

7

DEFI NITIONS

8
9
10
11

2.1

Action: Sperry Commercial, Inc. v. Zurich American Insurance

Company, et al., Case No. 09 CV 1373 DMS (RBB).
2.2

Challenging Party: a Party or Non-Party that challenges the

designation of information or items under this Order.

12

2.3 “CONFIDENTIAL” Information or Items: information (regardless of

13

how it is generated, stored or maintained) or tangible things that qualify for

14

protection under Federal Rule of Civil Procedure 26(c), and as specified above in

15

the Good Cause Statement.

16
17
18

2.4

Counsel: Outside Counsel of Record and House Counsel (as well as

their support staff).
2.5

Designating Party: a Party or Non-Party that designates information or

19

items that it produces in disclosures or in responses to discovery as

20

“CONFIDENTIAL.”

21

2.6

Disclosure or Discovery Material: all items or information, regardless

22

of the medium or manner in which it is generated, stored, or maintained (including,

23

among other things, testimony, transcripts, and tangible things), that are produced

24

or generated in disclosures or responses to discovery in this matter.

25

2.7

Expert: a person with specialized knowledge or experience in a matter

26

pertinent to the litigation who has been retained by a Party or its counsel to serve as

27

an expert witness or as a consultant in this Action.

28
-6ORDER FOR ENTRY OF PROTECTIVE ORDER

CASE NO. 8:15 CV 01229 DOC JCG

2.8

1

House Counsel: attorneys who are employees of a party to this Action.

2

House Counsel does not include Outside Counsel of Record or any other outside

3

counsel.
2.9

4
5

Non-Party: any natural person, partnership, corporation, association, or

other legal entity not named as a Party to this action.

6

2.10 Outside Counsel of Record: attorneys who are not employees of a party

7

to this Action but are retained to represent or advise a party to this Action and have

8

appeared in this Action on behalf of that party or are affiliated with a law firm

9

which has appeared on behalf of that party, and includes support staff.

10

2.11 Party: any party to this Action, including all of its officers, directors,

11

employees, consultants, retained experts, and Outside Counsel of Record (and their

12

support staffs).
2.12 Producing Party: a Party or Non-Party that produces Disclosure or

13
14

Discovery Material in this Action.

15

2.13 Professional Vendors: persons or entities that provide litigation support

16

services (e.g., photocopying, videotaping, translating, preparing exhibits or

17

demonstrations, and organizing, storing, or retrieving data in any form or medium)

18

and their employees and subcontractors.
2.14 Protected Material: any Disclosure or Discovery Material that is

19
20

designated as “CONFIDENTIAL.”
2.15 Receiving Party: a Party that receives Disclosure or Discovery Material

21
22

from a Producing Party.

23

3.

SCOPE

24

The protections conferred by this Stipulation and Order cover not only

25

Protected Material (as defined above), but also (1) any information copied or

26

extracted from Protected Material; (2) all copies, excerpts, summaries, or

27
28
-7ORDER FOR ENTRY OF PROTECTIVE ORDER

CASE NO. 8:15 CV 01229 DOC JCG

1

compilations of Protected Material; and (3) any testimony, conversations, or

2

presentations by Parties or their Counsel that might reveal Protected Material.
Any use of Protected Material at trial shall be governed by the orders of the

3
4

trial judge. This Order does not govern the use of Protected Material at trial.

5

4.

DURATION

6

Even after final disposition of this litigation, the confidentiality obligations

7

imposed by this Order shall remain in effect until a Designating Party agrees

8

otherwise in writing or a court order otherwise directs. Final disposition shall be

9

deemed to be the later of (1) dismissal of all claims and defenses in this Action,

10

with or without prejudice; and (2) final judgment herein after the completion and

11

exhaustion of all appeals, rehearings, remands, trials, or reviews of this Action,

12

including the time limits for filing any motions or applications for extension of time

13

pursuant to applicable law.

14

5.

DESIGNATING PROTECTED MATERIAL

15

5.1

Exercise of Restraint and Care in Designating Material for Protection.

16

Each Party or Non-Party that designates information or items for protection under

17

this Order must take care to limit any such designation to specific material that

18

qualifies under the appropriate standards. The Designating Party must designate for

19

protection only those parts of material, documents, items, or oral or written

20

communications that qualify so that other portions of the material, documents,

21

items, or communications for which protection is not warranted are not swept

22

unjustifiably within the ambit of this Order.

23

Mass, indiscriminate, or routinized designations are prohibited. Designations

24

that are shown to be clearly unjustified or that have been made for an improper

25

purpose (e.g., to unnecessarily encumber the case development process or to

26

impose unnecessary expenses and burdens on other parties) may expose the

27

Designating Party to sanctions.

28
-8ORDER FOR ENTRY OF PROTECTIVE ORDER

CASE NO. 8:15 CV 01229 DOC JCG

1

If it comes to a Designating Party’s attention that information or items that it

2

designated for protection do not qualify for protection, that Designating Party must

3

promptly notify all other Parties that it is withdrawing the inapplicable designation.

4

5.2

Manner and Timing of Designations. Except as otherwise provided in

5

this Order (see, e.g., second paragraph of section 5.2(a) below), or as otherwise

6

stipulated or ordered, Disclosure or Discovery Material that qualifies for protection

7

under this Order must be clearly so designated before the material is disclosed or

8

produced.

9

Designation in conformity with this Order requires:

10

(a) for information in documentary form (e.g., paper or electronic

11

documents, but excluding transcripts of depositions or other pretrial or trial

12

proceedings), that the Producing Party affix at a minimum, the legend

13

“CONFIDENTIAL” (hereinafter “CONFIDENTIAL legend”), to each page that

14

contains protected material. If only a portion or portions of the material on a page

15

qualifies for protection, the Producing Party also must clearly identify the protected

16

portion(s) (e.g., by making appropriate markings in the margins).

17

A Party or Non-Party that makes original documents available for inspection

18

need not designate them for protection until after the inspecting Party has indicated

19

which documents it would like copied and produced. During the inspection and

20

before the designation, all of the material made available for inspection shall be

21

deemed “CONFIDENTIAL.” After the inspecting Party has identified the

22

documents it wants copied and produced, the Producing Party must determine

23

which documents, or portions thereof, qualify for protection under this Order. Then,

24

before producing the specified documents, the Producing Party must affix the

25

“CONFIDENTIAL legend” to each page that contains Protected Material. If only a

26

portion or portions of the material on a page qualifies for protection, the Producing

27

Party also must clearly identify the protected portion(s) (e.g., by making

28

appropriate markings in the margins).
-9ORDER FOR ENTRY OF PROTECTIVE ORDER

CASE NO. 8:15 CV 01229 DOC JCG

1

(b) for testimony given in depositions that the Designating Party identify

2

the Disclosure or Discovery Material on the record, before the close of the

3

deposition all protected testimony.

4

(c) for information produced in some form other than documentary and

5

for any other tangible items, that the Producing Party affix in a prominent place on

6

the exterior of the container or containers in which the information is stored the

7

legend “CONFIDENTIAL.” If only a portion or portions of the information

8

warrants protection, the Producing Party, to the extent practicable, shall identify the

9

protected portion(s).
5.3

10

Inadvertent Failures to Designate. If timely corrected, an inadvertent

11

failure to designate qualified information or items does not, standing alone, waive

12

the Designating Party’s right to secure protection under this Order for such

13

material. Upon timely correction of a designation, the Receiving Party must make

14

reasonable efforts to assure that the material is treated in accordance with the

15

provisions of this Order.

16

6.

17

CHALLENGING CONFIDENTIALITY DESIGNATIONS
6.1 Timing of Challenges. Any Party or Non-Party may challenge a

18

designation of confidentiality at any time that is consistent with the Court’s

19

Scheduling Order.

20
21
22

6.2 Meet and Confer. The Challenging Party shall initiate the dispute
resolution process under Local Rule 37.1 et seq.
6.3

The burden of persuasion in any such challenge proceeding shall be

23

on the Designating Party. Frivolous challenges, and those made for an improper

24

purpose (e.g., to harass or impose unnecessary expenses and burdens on other

25

parties) may expose the Challenging Party to sanctions. Unless the Designating

26

Party has waived or withdrawn the confidentiality designation, all parties shall

27

continue to afford the material in question the level of protection to which it is

28
-10ORDER FOR ENTRY OF PROTECTIVE ORDER

CASE NO. 8:15 CV 01229 DOC JCG

1

entitled under the Producing Party’s designation until the Court rules on the

2

challenge.

3

7.

4

ACCESS TO AND USE OF PROTECTED MATERIAL
7.1

Basic Principles. A Receiving Party may use Protected Material that is

5

disclosed or produced by another Party or by a Non-Party in connection with this

6

Action only for prosecuting, defending, or attempting to settle this Action. Such

7

Protected Material may be disclosed only to the categories of persons and under

8

the conditions described in this Order. When the Action has been terminated, a

9

Receiving Party must comply with the provisions of section 13 below (FINAL

10

DISPOSITION).

11

Protected Material must be stored and maintained by a Receiving Party at a

12

location and in a secure manner that ensures that access is limited to the persons

13

authorized under this Order.

14

7.2 Disclosure of “CONFIDENTIAL” Information or Items. Unless

15

otherwise ordered by the court or permitted in writing by the Designating Party, a

16

Receiving

17

“CONFIDENTIAL” only to:

Party

may

disclose

any

information

or

item

designated

18

(a) the Receiving Party’s Outside Counsel of Record in this Action, as

19

well as employees of said Outside Counsel of Record to whom it is reasonably

20

necessary to disclose the information for this Action;

21
22

(b) the officers, directors, and employees (including House Counsel) of
the Receiving Party to whom disclosure is reasonably necessary for this Action;

23

(c) Experts (as defined in this Order) of the Receiving Party to whom

24

disclosure is reasonably necessary for this Action and who have signed the

25

“Acknowledgment and Agreement to Be Bound” (Exhibit A);

26

(d) the court and its personnel;

27

(e) court reporters and their staff;

28

(f) professional jury or trial consultants, mock jurors, and Professional
-11ORDER FOR ENTRY OF PROTECTIVE ORDER

CASE NO. 8:15 CV 01229 DOC JCG

1

Vendors to whom disclosure is reasonably necessary for this Action and who have

2

signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A);

3
4

(g) the author or recipient of a document containing the information or a
custodian or other person who otherwise possessed or knew the information;

5

(h) during their depositions, witnesses ,and attorneys for witnesses, in the

6

Action to whom disclosure is reasonably necessary provided: (1) the deposing party

7

requests that the witness sign the form attached as Exhibit 1 hereto; and (2) they

8

will not be permitted to keep any confidential information unless they sign the

9

“Acknowledgment and Agreement to Be Bound” (Exhibit A), unless otherwise

10

agreed by the Designating Party or ordered by the court. Pages of transcribed

11

deposition testimony or exhibits to depositions that reveal Protected Material may

12

be separately bound by the court reporter and may not be disclosed to anyone

13

except as permitted under this Stipulated Protective Order; and

14

(i) any mediator or settlement officer, and their supporting personnel,

15

mutually agreed upon by any of the parties engaged in settlement discussions.

16

8. PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED IN

17

OTHER LITIGATION

18

If a Party is served with a subpoena or a court order issued in other litigation

19

that compels disclosure of any information or items designated in this Action as

20

“CONFIDENTIAL,” that Party must:

21
22

(a) promptly notify in writing the Designating Party. Such notification
shall include a copy of the subpoena or court order;

23

(b) promptly notify in writing the party who caused the subpoena or

24

order to issue in the other litigation that some or all of the material covered by the

25

subpoena or order is subject to this Protective Order. Such notification shall

26

include a copy of this Stipulated Protective Order; and

27
28

(c) cooperate with respect to all reasonable procedures sought to be
pursued by the Designating Party whose Protected Material may be affected.
-12ORDER FOR ENTRY OF PROTECTIVE ORDER

CASE NO. 8:15 CV 01229 DOC JCG

1

If the Designating Party timely seeks a protective order, the Party served with

2

the subpoena or court order shall not produce any information designated in this

3

action as “CONFIDENTIAL” before a determination by the court from which the

4

subpoena or order issued, unless the Party has obtained the Designating Party’s

5

permission. The Designating Party shall bear the burden and expense of seeking

6

protection in that court of its confidential material and nothing in these provisions

7

should be construed as authorizing or encouraging a Receiving Party in this Action

8

to disobey a lawful directive from another court.

9

9. A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE PRODUCED

10

IN THIS LITIGATION

11

(a) The terms of this Order are applicable to information produced by a

12

Non-Party in this Action and designated as “CONFIDENTIAL.” Such information

13

produced by Non-Parties in connection with this litigation is protected by the

14

remedies and relief provided by this Order. Nothing in these provisions should be

15

construed as prohibiting a Non-Party from seeking additional protections.

16

(b) In the event that a Party is required, by a valid discovery request, to

17

produce a Non-Party’s confidential information in its possession, and the Party is

18

subject to an agreement with the Non-Party not to produce the Non-Party’s

19

confidential information, then the Party shall:

20

(1) promptly notify in writing the Requesting Party and the Non-

21

Party that some or all of the information requested is subject to a confidentiality

22

agreement with a Non-Party;

23

(2) promptly provide the Non-Party with a copy of the Stipulated

24

Protective Order in this Action, the relevant discovery request(s), and a reasonably

25

specific description of the information requested; and

26
27
28

(3) make the information requested available for inspection by the
Non-Party, if requested.
(c) If the Non-Party fails to seek a protective order from this court within
-13ORDER FOR ENTRY OF PROTECTIVE ORDER

CASE NO. 8:15 CV 01229 DOC JCG

1

14 days of receiving the notice and accompanying information, the Receiving Party

2

may produce the Non-Party’s confidential information responsive to the discovery

3

request. If the Non-Party timely seeks a protective order, the Receiving Party shall

4

not produce any information in its possession or control that is subject to the

5

confidentiality agreement with the Non-Party before a determination by the court.

6

Absent a court order to the contrary, the Non-Party shall bear the burden and

7

expense of seeking protection in this court of its Protected Material.

8

10.

UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL

9

If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed

10

Protected Material to any person or in any circumstance not authorized under this

11

Stipulated Protective Order, the Receiving Party must immediately (a) notify in

12

writing the Designating Party of the unauthorized disclosures, (b) use its best

13

efforts to retrieve all unauthorized copies of the Protected Material, (c) inform the

14

person or persons to whom unauthorized disclosures were made of all the terms of

15

this Order, and (d) request such person or persons to execute the “Acknowledgment

16

and Agreement to Be Bound” that is attached hereto as Exhibit A.

17

11. INADVERTENT PRODUCTION
PROTECTED MATERIAL

18
19
20
21
22
23
24
25
26
27
28

OF PRIVILEGED OR OTHERWISE

When a Producing Party gives notice to Receiving Parties that certain
inadvertently produced material is subject to a claim of privilege or other
protection, the obligations of the Receiving Parties are those set forth in Federal
Rule of Civil Procedure 26(b)(5)(B). This provision is not intended to modify
whatever procedure may be established in an e-discovery order that provides for
production without prior privilege review. Pursuant to Federal Rule of Evidence
502(d) and (e), insofar as the parties reach an agreement on the effect of disclosure
of a communication or information covered by the attorney-client privilege or work
product protection, the parties may incorporate their agreement in the stipulated
protective order submitted to the court.
-14ORDER FOR ENTRY OF PROTECTIVE ORDER

CASE NO. 8:15 CV 01229 DOC JCG

1

12.

12.1 Right to Further Relief. Nothing in this Order abridges the right of any

2
3

MISCELLANEOUS

person to seek its modification by the Court in the future.

4

12.2 Right to Assert Other Objections. By stipulating to the entry of this

5

Protective Order no Party waives any right it otherwise would have to object to

6

disclosing or producing any information or item on any ground not addressed in

7

this Stipulated Protective Order. Similarly, no Party waives any right to object on

8

any ground to use in evidence of any of the material covered by this Protective

9

Order.

10

12.3 Filing Protected Material. A Party that seeks to file under seal any

11

Protected Material must comply with Civil Local Rule 79-5. Protected Material

12

may only be filed under seal pursuant to a court order authorizing the sealing of the

13

specific Protected Material at issue. If a Party's request to file Protected Material

14

under seal is denied by the court, then the Receiving Party may file the information

15

in the public record unless otherwise instructed by the court.

16

13.

FINAL DISPOSITION

17

After the final disposition of this Action, as defined in paragraph 4, within 60

18

days of a written request by the Designating Party, each Receiving Party must

19

return all Protected Material to the Producing Party or destroy such material. As

20

used in this subdivision, “all Protected Material” includes all copies, abstracts,

21

compilations, summaries, and any other format reproducing or capturing any of the

22

Protected Material. Whether the Protected Material is returned or destroyed, the

23

Receiving Party must submit a written certification to the Producing Party (and, if

24

not the same person or entity, to the Designating Party) by the 60 day deadline that

25

(1) identifies (by category, where appropriate) all the Protected Material that was

26

returned or destroyed and (2) affirms that the Receiving Party has not retained any

27

copies, abstracts, compilations, summaries or any other format reproducing or

28

capturing any of the Protected Material. Notwithstanding this provision, Counsel
-15ORDER FOR ENTRY OF PROTECTIVE ORDER

CASE NO. 8:15 CV 01229 DOC JCG

1

EXHIBIT A

2

ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND

3

Sperry Commercial, Inc. v. Zurich American Insurance Company, et al.

4

U.S. District Court for the Central District of California, Santa Ana Division

5

Civil Action No. Case No. 09 CV 1373 DMS (RBB)

6
7

I,__________________________ , declare under penalty of perjury under

8

the laws of the United States and the State of California that I have read and

9

understand in its entirety the Protective Order in the above-referenced lawsuit, and

10

agree to adhere and to be bound by its terms. I understand that any unauthorized

11

disclosure of confidential information constitutes a violation of this Court’s

12

Protective Order, for which I may be held in contempt of court. I hereby submit to

13

the jurisdiction of the United States District Court for the Central District of

14

California for the purpose of enforcement of the Protective Order.

15
16

Date:

Name:

17
18
19
20
21
22
23
24
25
26
27
28
-17[PROPOSED] ORDER FOR ENTRY OF PROTECTIVE ORDER

CASE NO. 8:15 CV 01229 DOC JCG