Elhouty v. Lincoln Benefit Life Company

Filing 21

PROTECTIVE ORDER Granted as Modified by the Court, signed by Magistrate Judge Jennifer L. Thurston on 11/17/2014. (Hall, S)

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Ryan S. Fife (Bar No. 235000)
DRINKER BIDDLE & REATH LLP
1800 Century Park E, Suite 1400
Los Angeles, CA 90067
Telephone: [phone]
Facsimile: [phone]
Email:
[e-mail]
Jason P. Gosselin (admitted pro hac vice)
Katherine L. Villanueva (admitted pro hac vice)
DRINKER BIDDLE & REATH LLP
One Logan Square, Suite 2000
Philadelphia, PA 19103-6996
Telephone: [phone]
Facsimile: [phone]
Email:
[e-mail]
[e-mail]
Attorneys for Defendant
Lincoln Benefit Life Company

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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KAMIES ELHOUTY

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Case No. 1:14-CV-00676-LJO-JLT
ORDER GRANTING PROTECTIVE
ORDER AS MODIFIED BY THE COURT

Plaintiff,
v.

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(Doc. 20)

LINCOLN BENEFIT LIFE COMPANY,
a Nebraska corporation, and DOES 1
24 through 10, inclusive.
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Defendants.
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PHILAD EL PHIA

ACTIVE/ 77807121.1

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PROTECTIVE ORDER

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PROTECTIVE ORDER
WHEREAS, the parties are engaged in discovery pursuant to the Federal
Civil Rules of Procedure; and
WHEREAS, items or information produced or generated in disclosures or
responses to discovery in this matter may call for disclosure of non-public and
confidential information, including medical, financial, personal, and trade secret
information; and
WHEREAS, the parties seek to produce Confidential Materials (as defined
below) with suitable assurances of confidentiality and without being improperly
used, disclosed, shared, or distributed.
IT IS HEREBY ORDERED that:
1.

This Protective Order shall govern all documents and other materials,

as well as all information contained in such documents and materials, and all
copies, excerpts, or summaries thereof, produced by the parties in regard to this
action, whether voluntarily or in response to any discovery request, deposition
notice or subpoena, or admissions, and any other documents and materials produced
or otherwise provided to a party to this litigation (“Litigation”), whether by
discovery, at a hearing or trial or otherwise in connection with the litigation.
2.

Any party to this action may designate documents, deposition

testimony or other material produced pursuant to any discovery request, including
subpoena, as “Confidential” (collectively, the “Confidential Materials”) under the
terms of this Order if it believes such material contains non-public, confidential,
trade secret, personal, medical or financial data, or other sensitive information that
requires the protections provided by this Order. Such designated documents,
testimony and other materials shall be “Confidential Materials” and shall be
maintained as confidential and used and disclosed only as permitted by this Order
unless otherwise ordered by the Court pursuant to paragraph 6 hereof. Each party

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PHILAD EL PHIA

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PROTECTIVE ORDER

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that designates information or items for protection under this Order must take care
to limit any such designation to specific material that qualifies under the
appropriate standards. The designating party must designate for protection only
those parts of material, documents, items, or oral or written communications that
qualify – so that other portions of the material, documents, items, or
communications for which protection is not warranted are not swept unjustifiably
within the ambit of this Order.
3.

Designations that are shown to be clearly unjustified or that have been made for an
improper purpose (e.g., to unnecessarily encumber or retard the case development
process or to impose unnecessary expenses and burdens on other parties) may
expose the designating party to sanctions, pending the parties’ efforts to resolve
and/or limit such designations.
4.

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must promptly notify all other parties that it is withdrawing the mistaken
designation.
5.

Except as otherwise provided in this Order, or as otherwise stipulated

or ordered, Confidential Materials that qualify for protection under this Order must
be clearly so designated before the material is disclosed or produced.
Designation in conformity with this Order requires the following:
(a)

The designation shall be made by stamping or otherwise

marking “Confidential” on the first page of a document or writing (or on the first
page of a section of a document or writing, if only a portion is to be so designated).

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If it comes to a designating party’s attention that information or items

that it designated for protection do not qualify for protection, that designating party

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Mass, indiscriminate, or routinized designations are prohibited.

(b)

When the designation is intended to apply to only a portion of

the document or writing, that portion shall be clearly indicated.

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PROTECTIVE ORDER

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(c)

requests for admission and/or pleadings, each page containing Confidential
Materials shall be marked as “Confidential.”

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(d)

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With respect to any deposition, such designation may be

invoked by designating specific pages and/or lines thereof as “Confidential” on the
record at the deposition, or by serving such designations within 10 days after
receipt of the transcript of the deposition in which the designations are to be made
by the party or third party seeking to make such designation.

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In regard to responses to interrogatories, document requests,

(e)

Before the disclosure of Confidential Materials in a deposition,

all persons present at the deposition shall have signed an undertaking in the form
attached hereto as Exhibit A, agreeing in writing to be bound by the terms and
conditions of this Order, consenting to the jurisdiction of the Court for purposes of
enforcement of the terms of this Order, and agreeing not to disclose or use any
Confidential Materials for purposes other than those permitted herein. Persons to
whom the disclosure of such information is prohibited under this Order shall be
excluded from the deposition during the disclosure of such information.

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(f)

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Any testimony describing a document containing Confidential

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Materials shall be deemed to be designated as “Confidential,” whether or not the

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testimony is specifically designated as Confidential Materials.
(g)

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In addition, documents or materials originally authored or

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prepared by a party in the Litigation, but produced by a different party or third

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party, may also be designated as Confidential Materials by the authoring or

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preparing party after the documents or materials are produced by providing the

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designating party with written notice of the designation. In such instance, such

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party will be treated as a designating party under this Order. Any copies or

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reproductions, excerpts, summaries or other documents or media that paraphrase,

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excerpt or contain documents or materials designated as “Confidential” shall also

D RINKER B IDDLE &
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PROTECTIVE ORDER

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be treated as Confidential Materials pursuant to this Order. Any receiving party
may request at any time that the designating party remove a “Confidential”
designation pursuant to Section 6 of this Order. Such request shall be made in
writing and shall state the reasons for the request.

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(h)

In order to accelerate the pace of discovery, any person or entity

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designating material as “Confidential” pursuant to Section 2 (“designating party”)

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may also designate material “Confidential” by means of cover letter or equivalent

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actual notice to recipients of such materials (“receiving party”).

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6.

Any party who wishes to challenge the designation of material as

Confidential Materials should first confer in good faith with counsel for the
designating party regarding such designation. If this effort fails to resolve the
disagreement, the party wishing to challenge such a designation (“objecting party”)
may file an appropriate motion with the Court, identifying the disputed material by
category or document number and certifying that the objecting party has sought in
good faith to confer with counsel for the designating party but has been unable to
resolve the dispute. Counsel for the designating party will then have ten (10)
business days in which to file a response to the motion. SHALL comply with the
scheduling order (Doc. 16 at 4) regarding discovery motions. If this fails to resolve
the dispute, within 21 days or as otherwise ordered by the Court, the Designating
Party SHALL file a motion which complies with Local Rule 251 and, in particular,
subsection (c). The designation of materials as Confidential Materials shall remain
in full force and effect until the dispute is ruled upon by the Court.
7.

A party who does not challenge a designation of material as

Confidential Materials at the time that it is designated is not precluded from making
a later challenge.
8.

Confidential Materials shall be maintained in confidence in the United

States by any person or entity receiving such materials and shall be used solely for

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PROTECTIVE ORDER

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purposes of the above-captioned proceeding, including use at trial or in any
dispositive motion, and any appeal.
9.

characterized or otherwise communicated or made available in whole or in part
only in accordance with paragraph 8 above and only to the following persons:

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(a)

copying services and outside litigation support services) for use in accordance with
this Order;
(b)

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(c)

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paragraph 10 below;
(d)

The Court, persons employed by the Court, and court reporters

transcribing the testimony or argument in connection with any hearing, deposition,
trial or other proceeding or any appeal therefrom; and

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Witnesses or deponents and their counsel, during the course of,

or to the extent necessary to prepare for, depositions or testimony, subject to

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Experts or consultants engaged to assist special litigation

counsel for the parties, subject to paragraph 10 below;

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Attorneys to the parties of the Litigation and regular and

temporary employees and service vendors of such counsel (including outside

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Confidential Materials may be disclosed, summarized, described,

(e)

Any other person, only upon order of the Court or with the

written consent of the designating party.

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10.

Notwithstanding Paragraph 9(b) and (c) above, the Confidential

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Materials may be provided to experts or consultants only to the extent necessary for

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such expert or consultant to prepare a written opinion, to prepare to testify, or to

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assist counsel in this litigation provided that such expert or consultant is using said

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materials solely for this litigation and further provided that such expert or

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consultant signs an undertaking in the form attached hereto as Exhibit A, agreeing

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in writing to be bound by the terms and conditions of this Order, consenting to the

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jurisdiction of the Court for purposes of enforcement of the terms of this Order, and

D RINKER B IDDLE &
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ATTO RNEY S AT LAW
PHILAD EL PHIA

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PROTECTIVE ORDER

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agreeing not to disclose or use any Confidential Materials for purposes other than
those permitted herein. All persons listed in Paragraph 9(b) and (c) above, who are
given access to Confidential Materials or information contained therein, shall be
required to confirm their understanding and agreement to abide by the terms of this
Order by signing a copy of attached Exhibit A. Alternatively, if the witness is
unable or unwilling to sign a copy of Exhibit A, the party desiring to question the
witness with Confidential Materials may seek from a court with jurisdiction over
the Order an order requiring the witness to abide by the terms of this Order, and
upon obtaining such order may give the witness access to Confidential Materials in
connection with the testimony.
11.

If Confidential Materials are to be filed with the Court, any portion

designated “Confidential” shall be submitted to the Clerk in a sealed envelope.
Confidential Materials filed with the Court shall be maintained in a secure,
segregated facility. No one shall have access to such sealed materials other than the
Court, its agents and employees, and persons authorized by this Order. All such
materials shall be accorded in camera treatment. No Confidential Materials may be
filed under seal unless the Court so orders. Requests to file documents under seal
SHALL comply with Local Rule 141.
12.

If Confidential Materials are to be used at trial, the party seeking to use

such Confidential Materials shall not do so until the designating party agrees to the
methods for protecting the use of such materials from improper disclosure and/or
the Court directs otherwise.
13.

It is the responsibility of counsel for each undersigned party to

maintain the security of all Confidential Materials pursuant to the terms of this
Order.
14.

In the discretion of the Court, a breach of the provisions of this Order

shall be subject to sanctions.

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PHILAD EL PHIA

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PROTECTIVE ORDER

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15.

Confidential Materials shall not lose their status as Confidential

Materials through use in any court proceeding referred to in paragraph 8 above.
16.

This Order has no effect on, and shall not apply to, any designating

party’s use or disclosure of its own Confidential Materials for any purpose
whatsoever.
17.

The parties reserve the right to move the Court to modify this Order

and/or for an order seeking additional safeguards for Confidential Materials beyond
the protections afforded by this Order.
18.

Inadvertent disclosure of or failure to designate any documents or

testimony as Confidential Materials shall not be deemed a waiver of the safeguards
provided by this Order. In the event such disclosure occurs, the parties agree that
any documents protected by attorney client privilege or under the attorney work
product doctrine, or prohibited from disclosure under applicable state or federal law
shall be returned immediately upon request. Such inadvertent disclosure shall not
act as a waiver of or estoppel as to any claim of privilege, work product, or other
basis for withholding production to which any party would otherwise be entitled.
19.

By agreeing to or performing as required by this Order, no person or

entity has waived any objection to discovery of non-public, confidential,
proprietary, or commercially sensitive information.
20.

(a)

In the event that a person or entity receives material designated

“Confidential” that was already legitimately in such person’s or entity’s possession,
the restrictions of this Order apply only to the copy of the material actually
designated as “Confidential” and produced under this Order, and do not apply to the
copy of such material previously held by such person or entity unless its disclosure
is otherwise prohibited by law.

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PHILAD EL PHIA

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PROTECTIVE ORDER

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(b)

The provisions of this Order do not apply to material produced

in discovery or otherwise acquired by the parties in any proceeding other than those
referred to in paragraph 8 above.
21.

In the event that any person or party bound by this Order is served

with a valid and enforceable subpoena or is otherwise requested by any other court,
law enforcement and/or administrative agency of competent jurisdiction to produce
documents or other materials produced by any designating party under the terms of
this Order, such persons or party shall promptly notify counsel for the designating
party by electronic mail of the pendency of such subpoena or other request. In the
event the designating party objects to the production of documents or other
materials designated as “Confidential” under the terms of this Order, the
designating party will be responsible for seeking to protect the Confidential
Materials. In the absence of a protective order or limiting instruction by the
requesting party, the responding party or person shall cooperate fully with the
subpoena or request. Such disclosure shall not be deemed a waiver of the
safeguards provided by this Order. Such disclosure shall not be deemed a breach of
the terms of this Order.
22.

Within 30 days of final termination (upon the parties’ execution of a

release and settlement of their claims and/or the issuance of a final non-appealable
Order) of the Litigation, unless the parties and all designating parties otherwise
agree, each party shall assemble all documents or other materials designated as
“Confidential” hereunder that were produced to it, including all copies thereof, and
make available all such documents or materials to the party or designating party
producing such documents or have them destroyed, at the option of the party in
possession of such materials, and shall provide an affidavit from counsel of record
certifying that a good-faith search for any and all such documents or other materials

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PROTECTIVE ORDER

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has been made and that the provisions of this paragraph have been satisfied by such
receiving party.
23.

This Order shall survive the final termination or resolution of the

Litigation, and this Court shall retain jurisdiction to resolve any dispute concerning
the use of Confidential Materials disclosed hereunder.
24.

The provisions of this Order shall govern discovery of Confidential

Materials in connection with the Litigation. The undersigned parties agree to be
bound by the terms of this Order pending entry by the Court of this Order, or an
alternative thereto that is satisfactory to all parties, and any violation of the terms of
this proposed Order shall subject the offender to the same sanctions and penalties as
if this Order had been entered by the Court.
PROPOSED BY:

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Kamies Elhouty
By: /s/ Amanda Lucas (as approved on 11/14/14)
Bob H. Joyce, Esq. (SBN 84607)
[e-mail]
Andrew K. Sheffield, Esq. (SBN 220735)
[e-mail]
Amanda M. Lucas, Esq. (SBN 248219)
[e-mail]
LAW OFFICES OF LEBEAU -THELEN, LLP
5001 E. Commercenter Drive, Suite 300
Mailing: P.O. Box 12092
Bakersfield, California 93389-2092
Phone: [phone]
Fax: [phone]

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Lincoln Benefit Life Company

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By: /s/ Ryan S. Fife
Ryan S. Fife (Bar No. 235000)R
[e-mail]
Jason P. Gosselin (admitted pro hac vice)
[e-mail]
Katherine L. Villanueva (admitted pro hac vice)

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D RINKER B IDDLE &
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ATTO RNEY S AT LAW
PHILAD EL PHIA

ACTIVE/ 77807121.1

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PROTECTIVE ORDER

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[e-mail]
DRINKER BIDDLE & REATH LLP
One Logan Square, Suite 2000
Philadelphia, PA 19103-6996
Telephone:
[phone]
Facsimile:
[phone]

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ORDER
The stipulated protective order is GRANTED as modified (in paragraphs 6
and 11) by the Court.

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IT IS SO ORDERED.
Dated:

November 17, 2014

/s/ Jennifer L. Thurston
UNITED STATES MAGISTRATE JUDGE

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PROTECTIVE ORDER

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EXHIBIT A TO PROTECTIVE ORDER

1.

I have received and read the Protective Order (“Order”) entered in the

matter of Kamies Elhouty v. Lincoln Benefit Life Company, Case No. 1:14-CV00676-LJO-JLT pending in the United States District Court Eastern District of
California, and understand all of the terms and provisions of that Order.
2.

I agree only to use or disclose any Confidential Materials, as that term

is defined by that Order, in strict compliance with the provisions of that Order and
in particular, the requirements of paragraph 9 of that Order.
3.

I agree that I am subject to the jurisdiction of the United States District

Court Eastern District of California for all matters relating to this Order.

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Dated: ______________________

_____________________________
Signature

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_____________________________
Print Name

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PROTECTIVE ORDER