Guarantee Real Estate v. The Hanover Insurance Company

Filing 25

STIPULATED PROTECTIVE ORDER signed by Magistrate Judge Michael J. Seng on 12/10/2014. (Yu, L)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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GUARANTEE REAL ESTATE, a
California corporation,
Plaintiff,

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vs.

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THE HANOVER INSURANCE
COMPANY, a New Hampshire
corporation, and DOES 1 to 20,

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Defendants.
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CASE NO.: 1:14-cv-00860-TLN-MJS
STIPULATED PROTECTIVE ORDER

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COME NOW plaintiff Guarantee Real Estate (“plaintiff”) and defendant

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The Hanover Insurance Company (“defendant”)1 which propose the following Protective

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Order, pursuant to the Federal Rules of Civil Procedure, Rule 26(c):

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WHEREAS the Parties intend to produce documents, testimony, discovery

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responses and other information that contain and embody trade secrets, confidential

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and/or proprietary information and/or may otherwise be protected by privilege and/or

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Plaintiff and defendant collectively shall be referred to as “the Parties.”
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law including all copies and notes that a receiving Party may generate concerning such

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information (collectively referred to as “Confidential Materials”);

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WHEREAS, the Parties have objected to producing or disclosing

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Confidential Materials in discovery absent execution by the Parties and approval and

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entry by the Court of an appropriate protective order to protect and prevent the

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unauthorized use or disclosure of Confidential Materials produced in this action;

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NOW, THEREFORE, to protect the Parties’ rights in their Confidential

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Materials, the Parties, by and through their respective counsel, have stipulated and it is

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hereby ordered as follows:
1.

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The Parties may designate documents, materials or other

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information to be produced or disclosed to counsel for the Parties during discovery or

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other proceedings in advance of trial, by marking such items with the designation

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“Confidential.”

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“Confidential Materials” within the meaning of this Protective Order. For purposes of

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this Protective Order, “Confidential Materials” means any discovery material that the

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producing Party or protected person reasonably believes not to be in the public domain

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and reasonably believes contains any trade secret or other confidential, strategic,

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research, development, or commercial information.

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documents may be accomplished by marking the first page of the documents.

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copies, prints, or other productions, summaries, notes, synopses or any other

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memorialization of Confidential Materials, or other information contained therein, shall

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be deemed Confidential Materials subject to this Protective Order.
2.

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This “Confidential” designation shall automatically make such items

The designation of multi-page
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By designating a document, thing, material, testimony or other

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information derived therefrom as “Confidential,” under the terms of this Protective Order,

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the party making the designation is certifying to the Court that there is a good faith basis

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in law and fact for the designation within the meaning of Federal Rules of Civil

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Procedure Rule 26(g).

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3.

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The Parties may use the Confidential Materials for the limited

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purpose of this litigation. The Confidential Materials shall not be published, disclosed,

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or made available to any other person or entity for any purpose whatsoever without prior

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written consent of the producing Party or pursuant to written order of this Court upon

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motion properly filed, noticed and heard and upon a showing of good cause (with proper

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notice to the Parties), other than as permitted in this Protective Order. No “Confidential

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Materials” shall be published or posted by any Party on any internet information

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exchange or social network such as Facebook, Linked-In, My Space, You Tube, Twitter,

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Instagram or similar social media or network applications.
4.

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The Parties and their attorneys and experts shall not make any

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more copies of Confidential Materials than are reasonably necessary in the preparation

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of this action for trial.
5.

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The Parties shall only disclose the Confidential Materials as

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necessary to the following persons below, subject to the following conditions and

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provided that prior to such access or disclosure, each of the following persons are

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advised of the provisions of this Protective Order and shall be instructed to comply with

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it:
(a)

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To their attorneys of record (including in-house attorneys) in this

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action only and their respective partners, associates, of counsel,

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law clerks, legal assistants and secretaries who are directly

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participating in the prosecution of this matter;

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(b)

To their management and employees, as necessary;

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(c)

To deponents during the course of their depositions and deposition
reporters, notaries and staff;

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(d)

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To potential witnesses that respective counsel for the Parties may

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wish to interview to determine if formal testimony via deposition

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and/or at trial is warranted;

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(e)

To independent experts or consultants employed or retained by

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their trial counsel of record to perform investigative work, research,

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analysis, expert testimony and other services specifically related to

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the prosecution, defense or settlement of this action only;

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(f)

representatives, and consultants;

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To insurers, reinsurers, regulators, auditors, insurance claims

(g)

Any third party to which the Parties or their counsel have legal or

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contractual duties to report insurance claim payments or litigation

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recoveries, including but not limited to, the Internal Revenue

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Service, accountants, insureds, agents, financial advisors, legal

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guardians, and/or legal advisors;

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(h)

Outside photocopy services, graphic production services, or

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litigation support services employed by the Parties and their

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counsel to assist in this litigation, and computer personnel

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performing duties in the relation to a computerized litigation system;

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(i)

To the Court in this action; and

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(j)

To such other persons as hereafter may be designated by written
stipulation of the parties or by further order of the Court.

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The information disclosed to the above persons may be used for purpose
of this litigation only and for no other purpose.
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If any of the Parties’ Confidential Materials are present at, or are

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the subject of inquiry during, a deposition, counsel for the Party who introduces the

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Confidential Materials shall notify the deposition reporter to stamp on or otherwise

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permanently affix “CONFIDENTIAL – SUBJECT TO PROTECTIVE ORDER” to the

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pages of deposition testimony during which Confidential Materials are discussed or

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referenced. In addition, counsel for the Party who introduces the Confidential Materials

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shall notify the deposition reporter to stamp or otherwise permanently affix

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“CONFIDENTIAL – SUBJECT TO PROTECTIVE ORDER” onto the title page of that
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deposition transcript.

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appropriate, Confidential Materials for the purpose of this Protective Order.
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Such portions of deposition transcript shall be deemed, as

Nothing shall be filed under seal, and the Court shall not be

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required to take any action, without separate prior order by the Judge before whom the

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hearing or proceeding will take place, after application by the affected party with

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appropriate notice to opposing counsel.

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applicable law with respect to filing documents under seal.
8.

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The Parties shall follow and abide by

Counsel for the Party who introduces the Parties’ Confidential

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Materials with any document submitted to or filed with the Court in this action, including

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Confidential Materials used as trial exhibits, shall permanently affix “CONFIDENTIAL –

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SUBJECT TO PROTECTIVE ORDER” to the pages of Confidential Materials and any

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reference to or discussion of the Confidential Materials. Such portions of the document

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so designated shall be deemed, as appropriate, Confidential Materials for the purpose

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of this Protective Order.
9.

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Nothing in this Protective Order shall preclude any Party from using

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or disclosing either: (a) its own documents or information; or (b) documents or

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information that it has obtained from any source other than a producing Party in this

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action.

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10.

The Parties shall cooperate and take all necessary steps, including

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the filing of legal papers, to protect Confidential Materials from disclosure. In the event

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that disclosure of any Confidential Materials is sought from anyone who is subject to this

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Protective Order pursuant to a lawful subpoena, demand by a governmental authority or

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other legal process, such person or entity shall, upon receipt of such request, notify the

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producing Party within seven (7) days of the request for disclosure. The producing

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Party may then seek to prevent disclosure by filing a motion for protective order or

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taking other appropriate action and, in that event, the material shall not be disclosed

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until the producing Party has had a reasonable opportunity to file such motion or take

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such action. In the event that the producing Party files a motion for a protective order or
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takes other appropriate action to prevent disclosure of these materials, the materials

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shall be treated as Confidential Materials until a ruling on such motion is issued from the

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Court or other governing body.

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11.

Nothing in this Protective Order shall operate to require the

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production of information or documents that are privileged or otherwise protected from

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discovery.

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12.

In the event that a Party inadvertently produces a document or

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information that the producing Party believes is subject to a privilege or other legal

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protection, such inadvertent production shall in no way prejudice or otherwise constitute

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a waiver of, or act as estoppel to, any claim of privilege, work product, or other ground

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for withholding information that the Party otherwise would be able to assert, provided,

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however, that the producing Party must give written notice to all Parties, within thirty

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(30) days of learning of the inadvertent production, that the document or information is

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subject to a privilege or other legal protection. The notice shall state the nature of the

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privilege or protection claimed, and shall provide information explaining the basis for the

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invocation of the privilege or protection.

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(a)

Upon receipt of such notice, the receiving Party shall promptly

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return the material (or portion thereof) that the producing Party

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claims was inadvertently produced, including any copies that are

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not destroyed. In the event that only part of a document is claimed

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to be subject to a privilege or other legal protection, the producing

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Party shall furnish redacted copies of the document, redacting only

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those portions that the producing Party claims are privileged.

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(b)

Alternatively, a recipient of the notice provided for in paragraph 12

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may retain the document, and inform the producing Party, in

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writing, that the claim of privilege is disputed. Within thirty (30)

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days of receipt of a privilege notice from a Party, an objecting

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recipient shall move the Court for an order declaring that the
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disputed document is not privileged. If the recipient fails to move

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the Court for such an order within thirty (30) days of receiving the

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notice, the recipient’s objection to the claim of privilege shall be

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waived.
i.

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A disputed document may be used in connection with such a
motion or an opposition thereto.

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ii.

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No Party, however, may use any such document or any

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information contained in it for any other purpose before (a)

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such a motion is resolved, or (b) the time for filing such a
motion has expired.

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iii.

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If the Court rules that the document is privileged, all Parties

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shall return the document, and any other copies of it in their

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possession or control, to the producing Party. If the Court

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rules that the document is not subject to a privilege or other

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legal protection, the Parties need not keep the document

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segregated any longer.
13.

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This Protective Order may be modified or amended only

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by: (a) written agreement of all Parties and an accompanying order of the Court for

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good cause shown; or (b) order of the Court sua sponte.
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The provisions of this Protective Order shall apply to any materials

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produced in connection with this action before, on and after the date this protective

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Order is entered.

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15.

Upon the final resolution of this action, all persons, including the

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Parties and attorneys and experts for the Parties, who have received Confidential

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Materials shall, without demand, either (a) destroy or (b) return to the pertinent Party’s

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attorney all portions of these Confidential Materials, except for exhibits to pleadings filed

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under seal in the action.

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16.

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Nothing contained in this Protective Order shall preclude any Party

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from seeking and obtaining, upon a showing of good cause, additional protection with

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respect to the confidentiality of documents or other information, including additional

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restrictions on disclosure to the Parties herein.

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intended to or has the effect of diminishing any obligations of confidentiality that the

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Parties otherwise may have.
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Nothing in this Protective Order is

The Protective Order shall survive the termination of this action and

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continue in full force and effect, and the Court retains jurisdiction to enforce this

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Protective Order. The Court may modify the Protective Order in the interests of justice

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or for public policy reasons.

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IT IS SO ORDERED.
Dated:

December 10, 2014

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/s/

Michael J. Seng

UNITED STATES MAGISTRATE JUDGE

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