Green v. Hartford Life and Accident Insurance Company

Filing 16

AMENDED STIPULATED PROTECTIVE ORDER signed by Magistrate Judge Kendall J. Newman on 8/3/2011. (Duong, D)

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DeVRIES LAW FIRM
Douglas K. deVries (SBN 70633)
641 Fulton Avenue, Suite 200
Sacramento, CA 95825
Telephone: [phone]
Facsimile: 916.473-4342
Email: [e-mail]
Attorneys for Plaintiff Margaret A. Green
BURKE, WILLIAMS & SORENSEN, LLP
Michael B. Bernacchi (SBN 163657)
E-mail: [e-mail]
444 South Flower Street, Suite 2400
Los Angeles, CA 90071-2953
Telephone: [phone]
Facsimile: 213.236.2700
Attorneys for Defendant Hartford Life and
Accident Insurance Company

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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MARGARET A. GREEN,
Plaintiff,

Case No. 2:10-CV-02658-GEB-KJN

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v.

AMENDED STIPULATED
CONFIDENTIALITY AGREEMENT
AND PROTECTIVE ORDER

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HARTFORD LIFE AND
ACCIDENT INSURANCE
COMPANY,

Hon. Garland E. Burrell, Jr.

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Defendant.

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IT IS HEREBY STIPULATED AND AGREED, by and between the parties

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to this action, Plaintiff Margaret A. Green ("Plaintiff") and Defendant Hartford Life

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and Accident Insurance Company ("Hartford"), that certain documents, materials or

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information to be produced by Hartford in discovery (as described in Paragraph 1)

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shall be subject to the following Confidentiality Agreement with respect to

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confidentiality and privacy, subject to the approval of the Court.

B UR K E , W IL L IAM S &
S O R EN S E N , LL P
AT T O RN E YS AT L A W
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AM ENDED STIPULATED CONFIDENTIALITY
AGREEM ENT AND PROTECTIVE ORDER

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1.

The information/items governed by this Stipulated Confidentiality

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Agreement are: (1) any part of Hartford's claims handling procedures, policies and

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guidelines to be produced as part of its responses to the request for production of

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documents and responses to interrogatories; and, (2) the table of contents for the

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LTD Product Manual. Any further documents to be designated as subject to this

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Stipulated Confidentiality Agreement will be designated in addendum(s) to this

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Stipulated Confidentiality Agreement and submitted to the Court for approval.

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2.

The documents, materials or information identified in Paragraph 1 of

this Stipulated Confidentiality Agreement contain or constitute confidential,

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private, proprietary and/or trade secret information as defined by California Civil

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Code § 3426.1 and FRCP Rule 26(c)(1)(G), and shall be subject to the terms of this

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Stipulated Confidentiality Agreement. Said documents, materials or information,

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including all information contained therein, and all copies, descriptions, summaries,

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notes, abstracts or portions of pleadings or transcripts which contain or are derived

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from such information, hereinafter shall be referred to as "the Information."

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3.

The Information shall be used solely for the purpose of this action. No

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part of the Information shall be disclosed to any person or otherwise made public

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except pursuant to this Stipulated Confidentiality Agreement.

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4.

The Information may be disclosed only to the persons described in the

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following sentence, only to the extent that such person is performing work in

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connection with this action, and only to the extent necessary to perform that work.

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Such persons are: (a) the Parties to this action; (b) counsel of record for the Parties;

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(c) any person regularly employed by such counsel, including legal assistants,

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secretaries, law clerks, investigators, associates and contract attorneys; (d) actual or

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prospective experts and consultants retained or consulted by a Party or a Party's

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counsel in the course of this action; (e) any potential deposition and trial witnesses,

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to the extent counsel deems it necessary for and relevant to the testimony of such

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witnesses; and (f) this Court, its staff, and jurors empanelled in the trial of this

B UR K E , W IL L IAM S &
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AM ENDED STIPULATED CONFIDENTIALITY
AGREEM ENT AND PROTECTIVE ORDER

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lawsuit. These persons shall not disclose, discuss or reveal the Information, its

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contents or existence, or the documents containing the Information to any other

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person or entity not specifically identified in this Paragraph. Upon demand,

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Plaintiff's counsel and these persons will return the Information and all copies of

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documents relating thereto to Defendant's attorneys at the conclusion of this action.

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5.

No copies, summaries, digests, notes or descriptions of the Information

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shall be provided by a Party or its counsel for distribution to persons other than

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those described in Paragraph 4.

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6.

Persons to whom access to the Information is given pursuant to this

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Stipulated Confidentiality Agreement shall keep such material and any copies,

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extracts, summaries, notes or descriptions thereof secure in accordance with the

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purposes and intent of this Stipulated Confidentiality Agreement and shall adopt

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and employ all suitable precautions to ensure continued confidentiality, non-use and

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non-disclosure. No disclosure shall be made to any person pursuant to Paragraph

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4(d) or 4(e) until such person has executed either this Stipulated Confidentiality

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Agreement or a written Understanding and Agreement to be bound by this

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Stipulated Confidentiality Agreement in the form attached hereto as Exhibit 1.

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7.

Upon request of any Party, the original transcript and any and all

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copies of any deposition containing (a) documents pertaining to the Information as

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exhibits, or (b) testimony relating to the Information, shall be marked on its cover

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"CONTAINS CONFIDENTIAL INFORMATION. DO NOT DISCLOSE

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EXCEPT BY COURT ORDER." Disclosure of any copy of such deposition

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transcript or any document attached as a deposition exhibit shall be restricted to the

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deponent, his or her counsel of record, and persons designated in Paragraph 4.

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Any party who intends to file documents which discusses or discloses

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any Information subject to this Stipulated Confidentiality Agreement with the Court

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must comply with Eastern District of California Local Rules 140(d) and 141(b).

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Specifically, the Parties may disclose the Information to the Court in connection

B UR K E , W IL L IAM S &
S O R EN S E N , LL P
AT T O RN E YS AT L A W
L O S A N G E L ES

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AM ENDED STIPULATED CONFIDENTIALITY
AGREEM ENT AND PROTECTIVE ORDER

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with motions filed in this case or at trial in this case along with a stipulation (and/or

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motion if necessary) to file the documents under seal pursuant to Local Rule 141.

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The Information will be provided to the Court in a sealed envelope and will be

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marked "Confidential: Subject to Protective Order." The Court will decide whether

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to seal the Information and all references to the information in any other

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documents, or in any reporter's transcript. Any party who intends to file documents

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which discusses or discloses any Information subject to this Stipulated

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Confidentiality Agreement shall give seven (7) days’ notice of the same to all

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parties in the action.

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9.

Production of the documents or disclosure of the Information protected

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by this Stipulated Confidentiality Agreement shall not constitute a waiver of any

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confidentiality, privacy right or privilege. Moreover, Defendant retains the right to

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assert all substantive objections to the Information and/or documents containing the

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Information, including but not limited to relevancy, hearsay, privacy, privilege and

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Federal Rule Of Evidence, Rule 403.

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10.

Any part of the Information may be removed from the scope of this

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Stipulated Confidentiality Agreement by agreement of the Parties or by Court

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order.

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11.

Should any Party violate the terms of this Stipulated Confidentiality

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Agreement, and should legal action be necessary as a result of any violation or

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threatened violation of this Stipulated Confidentiality Agreement, the prevailing

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Party shall recover any damages allowed under the law.

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12.

Notwithstanding anything to the contrary contained herein, any Party

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may move for a modification of this Stipulated Confidentiality Agreement at any

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time that the interests of justice appear to so require. Further, nothing in this

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Stipulated Confidentiality Agreement shall be construed as affecting the Parties'

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obligations with respect to the Information as required by law.

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///

B UR K E , W IL L IAM S &
S O R EN S E N , LL P
AT T O RN E YS AT L A W
L O S A N G E L ES

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AM ENDED STIPULATED CONFIDENTIALITY
AGREEM ENT AND PROTECTIVE ORDER

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This Stipulated Confidentiality Agreement shall be binding on any and

all Parties who sign below.
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The reason why the need for protection should be addressed by a

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Court as opposed to a private agreement by or among the parties is as follows:

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It is undisputed that the manual is proprietary information and its general disclosure

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poses a significant risk of injury to Hartford. See Fed. R. Civ. P. 26(c)(7). Indeed,

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Hartford created the claims manual at considerable expense and it contains a wealth

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of information about the company’s practices, procedures and business techniques.

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Access to the foregoing documents would give Hartford's competitors an unfair

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advantage of obtaining, at no cost, Hartford's valuable and innovative business

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techniques, programs, processes and information that were developed as a result of

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Hartford's significant investment of time, manpower, and financial resources. This

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would dilute the effectiveness of Hartford's investment and cause harm to

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Hartford's competitive position. In addition, others could use information in the

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Manual to facilitate improper claim submissions. Adams v.Allstate Ins. Co., 189

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F.R.D. 331, 332-33 (E.D. Pa. 1999).

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With respect to why a private agreement will not suffice, it must be

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remembered that this action alleges not just breach of contract, but also the tort of

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insurance bad faith. As such, it seeks tort damages, including punitive damages. In

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addition to counsel, the documents will of necessity be shared with witnesses,

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including expert witnesses who regularly participate in numerous other such cases.

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In other words, persons who will see such documents may have a self-serving

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interest in exploiting access to them for the own use. It is important to Hartford that

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persons who come into possession of sensitive proprietary internal company

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documents in the course of this litigation immediately understand that they are

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subject to a court order, as opposed merely to the wishes of a party. An order,

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unlike merely a stipulation, will serve to impress upon such persons the seriousness

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of the need to maintain confidentiality, and that breach of confidentiality with

B UR K E , W IL L IAM S &
S O R EN S E N , LL P
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AM ENDED STIPULATED CONFIDENTIALITY
AGREEM ENT AND PROTECTIVE ORDER

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respect to the documents is subject to sanction from outset. A protective court order

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obtained only after the fact will be too late to undo the immediate damage to

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defendant that will already be done upon distribution of the documents. In addition,

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it is anticipated that dispositive motions will be filed in this case, and these

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confidential documents will be filed with the court under seal in conjunction

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therewith. Having a protective court order already in place will serve the interests

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of judicial time and efficiency.

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Dated: August 2, 2011

deVries Law Firm

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By: /s/Douglas K. deVries
Douglas K. deVries
[e-mail]
Attorneys for Plaintiff Margaret A. Green

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Dated: August 2, 2011

Burke, Williams & Sorensen, LLP

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By: /s/Michael B. Bernacchi
Michael B. Bernacchi
[e-mail]
Attorneys for Defendant Hartford Life
and Accident Insurance Company

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B UR K E , W IL L IAM S &
S O R EN S E N , LL P
AT T O RN E YS AT L A W
L O S A N G E L ES

LA #4843-1096-2185 v1

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AM ENDED STIPULATED CONFIDENTIALITY
AGREEM ENT AND PROTECTIVE ORDER

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EXHIBIT 1

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UNDERSTANDING AND AGREEMENT PURSUANT

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TO PROTECTIVE ORDER

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I hereby state that I have read a copy of the Stipulated Confidentiality

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Agreement and Protective Order in Margaret A. Green v. Hartford Life and

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Accident Insurance Company, Case No. 10-CV-02658-GEB-KJN, pending in the

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United States District Court, Eastern District of California. I understand and agree

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to be bound by its terms.

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Dated: _____________

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__________________________________
Signature
__________________________________
Printed Name

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_____________________________

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_____________________________
Address

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B UR K E , W IL L IAM S &
S O R EN S E N , LL P
AT T O RN E YS AT L A W
L O S A N G E L ES

LA #4843-1096-2185 v1

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AM ENDED STIPULATED CONFIDENTIALITY
AGREEM ENT AND PROTECTIVE ORDER

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PROTECTIVE ORDER
Upon consideration of the Amended Stipulated Confidentiality Agreement

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and Protective Order (“Agreement and Protective Order”) between plaintiff and

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defendant, the court hereby APPROVES of the Agreement and Protective Order

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and orders the parties to comply with its terms, except that the court and its staff

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identified in paragraph 4(f) of the Agreement shall not be subject to the special

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document-related procedures imposed by the Agreement, including those provided

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in the third and fourth sentences of paragraph 4 and paragraph 6.

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IT IS SO ORDERED.
DATED: August 3, 2011

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B UR K E , W IL L IAM S &
S O R EN S E N , LL P
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LA #4843-1096-2185 v1

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AM ENDED STIPULATED CONFIDENTIALITY
AGREEM ENT AND PROTECTIVE ORDER