U.S. Equal Employment Opportunity Commission v. Farmers Insurance Exchange

Filing 44

STIPULATED PROTECTIVE ORDER signed by Magistrate Judge Sheila K. Oberto on 3/11/2015. (Timken, A)

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Seyfarth Shaw LLP
Laura J. Maechtlen (SBN 224923)
[e-mail]
Soo Cho (SBN 254712)
[e-mail]
560 Mission Street, 31st Floor
San Francisco, California 94105
Telephone: [phone]
Facsimile: [phone]
SEYFARTH SHAW LLP
Andrew M. Paley (SBN 149699)
[e-mail]
2029 Century Park East, Suite 3500
Los Angeles, California 90067-3021
Telephone: [phone]
Facsimile: [phone]
Attorneys for Defendant
FARMERS INSURANCE EXCHANGE

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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U. S. EQUAL EMPLOYMENT OPPORTUNITY
COMMISSION,

STIPULATED PROTECTIVE ORDER

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Plaintiff,

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Case No. 13-CV-01574-AWI-SKO

v.
FARMERS INSURANCE EXCHANGE,

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Defendant.

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1.

PURPOSES AND LIMITATIONS
Disclosure and discovery activity in this action may involve production of confidential,

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proprietary, or private information for which special protection from public disclosure. Accordingly, the

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parties hereby stipulate to and petition the court to enter the following Stipulated Protective Order. The

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parties acknowledge that this Order does not confer blanket protections on all disclosures or responses to

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

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information or items that are entitled to confidential treatment under the applicable legal principles. The

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parties further acknowledge, as set forth in Section 12.3, below, that this Stipulated Protective Order

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does not entitle them to file confidential information under seal; Local Rule 141 and Federal Rule of

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Civil Procedure 5.2, 26, sets forth the procedures that must be followed and the standards that will be

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

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2.

DEFINITIONS

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2.1

Challenging Party: a Party or Non-Party that challenges the designation of information or items

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under this Order.
2.2

“CONFIDENTIAL” Information or Items: information (regardless of how it is generated, stored

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or maintained) or tangible things that qualify for protection under Federal Rule of Civil

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Procedure 26(c).

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2.3

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support staff).
2.4

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Counsel (without qualifier): Outside Counsel of Record and House Counsel (as well as their

Designating Party: a Party or Non-Party that designates information or items that it produces in
disclosures or in responses to discovery as “CONFIDENTIAL.”

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Disclosure or Discovery Material: all items or information, regardless of the medium or manner

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in which it is generated, stored, or maintained (including, among other things, testimony,

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transcripts, and tangible things), that are produced or generated in disclosures or responses to

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discovery in this matter.

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Document: each and every “WRITING” as defined by Federal Rules of Evidence, and includes,

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but is not limited to, all notes, drafts, documents, reports, summaries, appendices, duplicates,

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originals, tapes, photographs, videotapes, audiotapes, negatives, schedules, title copies, records

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of completed telecopy transmissions, telexes, cable communications, messages, electronic

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messages, contracts, and each and every form of document, writing, or of this object upon which

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information is capable of being recorded.

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2.7

Expert: a person with specialized knowledge or experience in a matter pertinent to the litigation

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who has been retained by a Party or its counsel to serve as an expert witness or as a consultant in

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this action.

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2.8

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include Outside Counsel of Record or any other outside counsel.
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Non-Party: any natural person, partnership, corporation, association, or other legal entity not
named as a Party to this action.

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Outside Counsel of Record: attorneys who are not employees of a party to this action but are
retained to represent or advise a party to this action and have appeared in this action on behalf of

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House Counsel: attorneys who are employees of a party to this action. House Counsel does not

that party or are affiliated with a law firm which has appeared on behalf of that party.
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Party: any party to this action, including all of its officers, directors, employees, consultants,

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retained experts, claimants represented by the EEOC, and Outside Counsel of Record (and their

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support staffs).

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2.12

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Producing Party: a Party or Non-Party that produces Disclosure or Discovery Material in this
action.

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Professional Vendors: persons or entities that provide litigation support services (e.g.,

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photocopying, videotaping, translating, preparing exhibits or demonstrations, and organizing,

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storing, or retrieving data in any form or medium) and their employees and subcontractors.

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2.14

Protected Material: any Disclosure or Discovery Material that is designated as
“CONFIDENTIAL.”

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a.

Personnel Files: Courts have recognized that disclosure of employment personnel

files implicate privacy concerns.

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b.

Medical records: Individuals would be prejudiced in being forced to disclose

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private medical records. Any public disclosure of confidential medical information may result in

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the violation of the constitutional right of privacy. Forcing any Party or non-Party to disclose

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confidential medical information with no confidentiality protection would cause a violation of

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privacy rights.

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c.

Documents that are not otherwise available to the public that evidence

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Defendant’s partial pay practices including, but not limited to documents related to Defendant’s

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audit of those practices. Defendant has developed its own policies and procedures for the

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payment of insurance claims as well as internal detection of fraud. Dissemination of such

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information may negatively impact Defendant’s business. This information could be used by

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Defendant’s competitors to gain a competitive advantage.

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d.

Documents that are not otherwise available to the public that relate to or evidence

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Defendant’s policies and procedures; employee manuals including documents related to the

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handling of insurance claims. Defendant has developed its own policies and procedures for the

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handling of insurance claims. Dissemination of such information will negatively impact

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Defendant’s business. This information could be used by Defendant’s competitors to gain a

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competitive advantage.

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e.

Documents that are not otherwise available to the public that relate to or evidence

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private identifying information regarding Defendant’s customers, including but not limited to,

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financial account numbers, social security numbers, dates of birth and addresses.

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2.15

Receiving Party: a Party that receives Disclosure or Discovery Material from a Producing Party.

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3.

SCOPE

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The protections conferred by this Stipulation and Order cover not only Protected Material

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(as defined above), but also (1) any information copied or extracted from Protected Material; (2)

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all copies, excerpts, summaries, or compilations of Protected Material; and (3) any testimony,

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conversations, or presentations by Parties or their Counsel that might reveal Protected Material.

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However, the protections conferred by this Stipulation and Order do not cover the following

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information: (a) any information that is in the public domain at the time of disclosure to a

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Receiving Party or becomes part of the public domain after its disclosure to a Receiving Party as

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a result of publication not involving a violation of this Order, including becoming part of the

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public record through trial or otherwise; and (b) any information known to the Receiving Party

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prior to the disclosure or obtained by the Receiving Party after the disclosure from a source who

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obtained the information lawfully and under no obligation of confidentiality to the Designating

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Party. Any use of Protected Material at trial shall be governed by a separate agreement or order.

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4.

DURATION

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Even after final disposition of this litigation, the confidentiality obligations imposed by

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this Order shall remain in effect until a Designating Party agrees otherwise in writing or a court

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order otherwise directs. Final disposition shall be deemed to be the later of (1) dismissal of all

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claims and defenses in this action, with or without prejudice; and (2) final judgment herein after

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the completion and exhaustion of all appeals, rehearings, remands, trials, reviews of this action,

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or the expiration of a consent decree resolving the claims brought by the EEOC, including the

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time limits for filing any motions or applications for extension of time pursuant to applicable

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law.

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5.

DESIGNATING PROTECTED MATERIAL

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5.1

Exercise of Restraint and Care in Designating Material for Protection: Each Party or Non-Party

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that designates information or items for protection under this Order must take care to limit any

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such designation to specific material that qualifies under the appropriate standards. The

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Designating Party must designate for protection only those parts of material, documents, items,

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or oral or written communications that qualify – so that other portions of the material,

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

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unjustifiably within the ambit of this Order.

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Mass, indiscriminate, or routinized designations are prohibited. Designations that are

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shown to be clearly unjustified or that have been made for an improper purpose (e.g., to

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unnecessarily encumber or retard the case development process or to impose unnecessary

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expenses and burdens on other parties) expose the Designating Party to sanctions.

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

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for protection do not qualify for protection, that Designating Party must promptly notify all other

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Parties that it is withdrawing the mistaken designation.

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5.2

Manner and Timing of Designations: Except as otherwise provided in this Order (see, e.g.,
second paragraph of section 5.2(a) below), or as otherwise stipulated or ordered, Disclosure or
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Discovery Material that qualifies for protection under this Order must be clearly so designated

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before the material is disclosed or produced.

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Designation in conformity with this Order requires:

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(a)

for information in documentary form (e.g., paper or electronic documents, but

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excluding transcripts of depositions or other pretrial or trial proceedings), that the

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Producing Party affix the legend “CONFIDENTIAL” to each page that contains

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

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

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

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(b)

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

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inspection need not designate them for protection until after the inspecting Party

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has indicated which material it would like copied and produced. During the

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inspection and before the designation, all of the material made available for

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inspection shall be deemed “CONFIDENTIAL.” After the inspecting Party has

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

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determine which documents, or portions thereof, qualify for protection under this

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Order. Then, before producing the specified documents, the Producing Party must

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affix the “CONFIDENTIAL” legend to each page that contains Protected

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Material. If only a portion or portions of the material on a page qualifies for

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protection, the Producing Party also must clearly identify the protected portion(s)

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(e.g., by making appropriate markings in the margins).(b) for testimony given in

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deposition or in other pretrial proceedings, that the Designating Party identify on

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the record, before the close of the deposition, hearing, or other proceeding, all

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protected testimony.

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(c)

for information produced in some form other than documentary and for any other

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tangible items, that the Producing Party affix in a prominent place on the exterior

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of the container or containers in which the information or item is stored the legend

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“CONFIDENTIAL.” If only a portion or portions of the information or item
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warrant protection, the Producing Party, to the extent practicable, shall identify

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the protected portion(s).

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5.3

Inadvertent Failures to Designate: If timely corrected, an inadvertent failure to designate

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qualified information or items does not, standing alone, waive the Designating Party’s right to

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secure protection under this Order for such material. Upon timely correction of a designation, the

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Receiving Party must make reasonable efforts to assure that the material is treated in accordance

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with the provisions of this Order.

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6.

CHALLENGING CONFIDENTIALITY DESIGNATIONS

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6.1

Timing of Challenges: Any Party or Non-Party may challenge a designation of confidentiality at

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any time. Unless a prompt challenge to a Designating Party’s confidentiality designation is

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necessary to avoid foreseeable, substantial unfairness, unnecessary economic burdens, or a

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significant disruption or delay of the litigation, a Party does not waive its right to challenge a

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confidentiality designation by electing not to mount a challenge promptly after the original

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designation is disclosed.

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6.2

Meet and Confer: The Challenging Party shall initiate the dispute resolution process by

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providing written notice of each designation it is challenging and describing the basis for each

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challenge. To avoid ambiguity as to whether a challenge has been made, the written notice must

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recite that the challenge to confidentiality is being made in accordance with this specific

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paragraph of the Protective Order. The parties shall attempt to resolve each challenge in good

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faith and must begin the process by conferring directly (in voice to voice dialogue; other forms

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of communication are not sufficient) within 14 days of the date of service of notice. In

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conferring, the Challenging Party must explain the basis for its belief that the confidentiality

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designation was not proper and must give the Designating Party an opportunity to review the

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designated material, to reconsider the circumstances, and, if no change in designation is offered,

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to explain the basis for the chosen designation. A Challenging Party may proceed to the next

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stage of the challenge process only if it has engaged in this meet and confer process first or

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establishes that the Designating Party is unwilling to participate in the meet and confer process in

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a timely manner.
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6.3

Judicial Intervention: To the extent that any applicable informal resolution procedures have been

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designated by the court, the Parties will comply with those procedures. If the Parties cannot

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resolve a challenge without court intervention, the Designating Party shall file and serve a

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motion to retain confidentiality within 21 days of the initial notice of challenge or within 14 days

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of the parties agreeing that the meet and confer process will not resolve their dispute, whichever

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is earlier. Each such motion must be accompanied by a competent declaration affirming that the

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movant has complied with the meet and confer requirements imposed in the preceding

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paragraph. Failure by the Designating Party to make such a motion including the required

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declaration within 21 days (or 14 days, if applicable) shall automatically waive the

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confidentiality designation for each challenged designation. In addition, the Challenging Party

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may file a motion challenging a confidentiality designation at any time if there is good cause for

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doing so, including a challenge to the designation of a deposition transcript or any portions

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thereof. Any motion brought pursuant to this provision must be accompanied by a competent

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declaration affirming that the movant has complied with the meet and confer requirements

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imposed by the preceding paragraph.

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The burden of persuasion in any such challenge proceeding shall be on the Designating

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Party. Frivolous challenges, and those made for an improper purpose (e.g., to harass or impose

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unnecessary expenses and burdens on other parties) may expose the Challenging Party to

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sanctions. Unless the Designating Party has waived the confidentiality designation by failing to

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file a motion to retain confidentiality as described above, all parties shall continue to afford the

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material in question the level of protection to which it is entitled under the Producing Party’s

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designation until the court rules on the challenge.

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7.

ACCESS TO AND USE OF PROTECTED MATERIAL

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7.1

Basic Principles: A Receiving Party may use Protected Material that is disclosed or produced by

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another Party or by a Non-Party in connection with this case only for prosecuting, defending, or

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attempting to settle this litigation. Such Protected Material may be disclosed only to the

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categories of persons and under the conditions described in this Order or as otherwise required

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by law, memoranda of understanding with other federal agencies available at
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http://www.eeoc.gov/laws/mous/index.cfm, or regulations pertaining to the EEOC. When the

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litigation has been terminated, a Receiving Party must comply with the provisions of section 13

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below (FINAL DISPOSITION).

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

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in a secure manner that ensures that access is limited to the persons authorized under this Order.

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7.2

Disclosure of “CONFIDENTIAL” Information or Items: Unless otherwise ordered by the court

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or permitted in writing by the Designating Party, a Receiving Party may disclose any information

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or item designated “CONFIDENTIAL” only to:

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(a)

the Receiving Party’s Outside Counsel of Record in this action, as well as

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employees of said Outside Counsel of Record to whom it is reasonably necessary

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to disclose the information for this litigation and who have signed the

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“Acknowledgment and Agreement to Be Bound” that is attached hereto as Exhibit

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A;

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(b)

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

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(c)

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

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reasonably necessary for this litigation and who have signed the

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

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(d)

the court and its personnel;

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(e)

court reporters and their staff, professional jury or trial consultants, mock jurors,

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and Professional Vendors to whom disclosure is reasonably necessary for this

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litigation and who have signed the “Acknowledgment and Agreement to Be

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Bound” (Exhibit A);

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(f)

during their depositions, any non party or expert witnesses in the action to whom

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disclosure is reasonably necessary and who have signed the “Acknowledgment

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and Agreement to Be Bound” (Exhibit A), unless otherwise agreed by the

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

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testimony or exhibits to depositions that reveal Protected Material must be
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separately bound by the court reporter and may not be disclosed to anyone except

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as permitted under this Stipulated Protective Order.

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(g)

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the author or recipient of a document containing the information or a custodian or
other person who otherwise possessed or knew the information.

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PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED IN OTHER

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LITIGATION

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

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disclosure of any information or items designated in this action as “CONFIDENTIAL,” that

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Party must:

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(a)

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

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(b)

promptly notify in writing the party who caused the subpoena or order to issue in

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the other litigation that some or all of the material covered by the subpoena or

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order is subject to this Protective Order. Such notification shall include a copy of

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this Stipulated Protective Order; and

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(c)

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cooperate with respect to all reasonable procedures sought to be pursued by the
Designating Party whose Protected Material may be affected.

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

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court order shall not produce any information designated in this action as “CONFIDENTIAL”

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before a determination by the court from which the subpoena or order issued, unless the Party

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has obtained the Designating Party’s permission or pursuant to a court order. The Designating

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Party shall bear the burden and expense of seeking protection in that court of its confidential

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material – and nothing in these provisions should be construed as authorizing or encouraging a

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Receiving Party in this action to disobey a lawful directive from another court.

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9.

A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE PRODUCED IN THIS
LITIGATION

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(a)

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The terms of this Order are applicable to information produced by a Non-Party in
this action and designated as “CONFIDENTIAL.” Such information produced by
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Non-Parties in connection with this litigation is protected by the remedies and

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relief provided by this Order. Nothing in these provisions should be construed as

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prohibiting a Non-Party from seeking additional protections.

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(b)

In the event that a Party is required, by a valid discovery request, to produce a

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Non-Party’s confidential information in its possession, and the Party is subject to

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

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information, then the Party shall:

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(1)

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promptly notify in writing the Requesting Party and the Non-Party that
some or all of the information requested is subject to a confidentiality

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agreement with a Non-Party;

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(2)

promptly provide the Non-Party with a copy of the Stipulated Protective

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

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specific description of the information requested; and

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(3)

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(3) make the information requested available for inspection by the NonParty.

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(c)

If the Non-Party fails to object or seek a protective order from this court within 14

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

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

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

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

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

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

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

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10.

UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL

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

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to any person or in any circumstance not authorized under this Stipulated Protective Order, the

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Receiving Party must immediately (a) notify in writing the Designating Party of the unauthorized

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disclosures, (b) use its best efforts to retrieve all unauthorized copies of the Protected Material,
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(c) inform the person or persons to whom unauthorized disclosures were made of all the terms of

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

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

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11.

INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE PROTECTED

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MATERIAL

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When a Producing Party gives notice to Receiving Parties that certain inadvertently produced

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material is subject to a claim of privilege or other protection, the obligations of the Receiving

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Parties are those set forth in Federal Rule of Civil Procedure 26(b)(5)(B). This provision is not

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intended to modify whatever procedure may be established in an e-discovery order that provides

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for production without prior privilege review. Pursuant to Federal Rule of Evidence 502(d) and

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(e), insofar as the parties reach an agreement on the effect of disclosure of a communication or

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information covered by the attorney-client privilege or work product protection, the parties may

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incorporate their agreement in the stipulated protective order submitted to the court.

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12.

MISCELLANEOUS

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12.1

Right to Further Relief: Nothing in this Order abridges the right of any person to seek its

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modification by the court in the future.
12.2

Right to Assert Other Objections: By stipulating to the entry of this Protective Order no Party

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waives any right it otherwise would have to object to disclosing or producing any information or

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item on any ground not addressed in this Stipulated Protective Order. Similarly, no Party waives

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any right to object on any ground to use in evidence of any of the material covered by this

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Protective Order.

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12.3

Filing Protected Material: Without written permission from the Designating Party or a court

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order secured after appropriate notice to all interested persons, a Party may not file in the public

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record in this action any Protected Material. A Party that seeks to file under seal any Protected

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Material must comply with Local Rule 141. Protected Material may only be filed under seal

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pursuant to a court order authorizing the sealing of the specific Protected Material at issue.

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Pursuant to Local Rule 141, a sealing order will issue only upon a request establishing that the

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Protected Material at issue is privileged, protectable as a trade secret, or otherwise entitled to
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protection under the law. If a Receiving Party's request to file Protected Material under seal

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pursuant to Local Rule 141 is denied by the court, then the Receiving Party may file the

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information in the public record unless otherwise instructed by the court.

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13.

FINAL DISPOSITION

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Within 60 days after the final disposition of this action, as defined in paragraph 4 and/or the

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EEOC’s legal obligations regarding record retention, each Receiving Party must return all

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Protected Material to the Producing Party or destroy such material. As used in this subdivision,

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“all Protected Material” includes all copies, abstracts, compilations, summaries, and any other

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format reproducing or capturing any of the Protected Material. Whether the Protected Material is

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returned or destroyed, the Receiving Party must submit a written certification to the Producing

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

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

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destroyed and (2) affirms that the Receiving Party has not retained any copies, abstracts,

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

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Material. Notwithstanding this provision, Counsel are entitled to retain an archival copy of all

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pleadings, motion papers, trial, deposition, and hearing transcripts, legal memoranda,

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correspondence, deposition and trial exhibits, expert reports, attorney work product, and

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consultant and expert work product, even if such materials contain Protected Material. Any such

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archival copies that contain or constitute Protected Material remain subject to this Protective

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Order as set forth in Section 4 (DURATION). This provision is not intended to conflict with any

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obligations dictated by federal law or regulations for the EEOC to maintain records following the

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conclusion of this litigation. Any compliance of the EEOC with any such obligations shall not be

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deemed a violation of this Protective Order.

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IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD.

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DATED: ________________________

_____/s/ Rumduol Vuong________________
Attorneys for Plaintiff

DATED: ________________________

____/s/ Soo Cho________________________
Attorneys for Defendant

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EXHIBIT A

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ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND

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I, _____________________________ [print or type full name], of _________________ [print or

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type full address], declare under penalty of perjury that I have read in its entirety and understand the

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Stipulated Protective Order that was issued by the United States District Court for the Eastern District of

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California on [date] in the case of ___________ [insert formal name of the case and the number and

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initials assigned to it by the court]. I agree to comply with and to be bound by all the terms of this

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Stipulated Protective Order and I understand and acknowledge that failure to so comply could expose

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me to sanctions and punishment in the nature of contempt. I solemnly promise that I will not disclose in

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any manner any information or item that is subject to this Stipulated Protective Order to any person or

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entity except in strict compliance with the provisions of this Order.

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I further agree to submit to the jurisdiction of the United States District Court for the Eastern

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District of California for the purpose of enforcing the terms of this Stipulated Protective Order, even if

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such enforcement proceedings occur after termination of this action.

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I hereby appoint __________________________ [print or type full name] of

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_______________________________________ [print or type full address and telephone number] as my

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California agent for service of process in connection with this action or any proceedings related to

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enforcement of this Stipulated Protective Order.

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Date: ______________________________________

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City and State where sworn and signed: _________________________________

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Printed name: _______________________________

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Signature: __________________________________

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ORDER

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Pursuant to the parties' stipulation, this stipulated protective order is issued.

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IT IS SO ORDERED.
Dated:

March 11, 2015

/s/ Sheila K. Oberto
UNITED STATES MAGISTRATE JUDGE

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