Gonsalves v. Nationwide Mutual Insurance Company

Filing 13

STIPULATED PROTECTIVE ORDER signed by Magistrate Judge Kendall J. Newman on 5/1/2013. (Zignago, K.)

1
2
3
4
5
6
7
8
9
10
11

CARL P. BLAINE (SBN 65229)
[e-mail]
ERIC R. GARNER (SBN 131232)
[e-mail]
WAGNER KIRKMAN BLAINE
KLOMPARENS & YOUMANS LLP
10640 Mather Blvd., Suite 200
Mather, California 95655
Tel.: [phone]
Fax: [phone]
M. GABRIEL MCFARLAND
[e-mail]
EVANS & MCFARLAND, LLC
910 13th Street, Suite 200
Golden, Colorado 80401
Tel.: [phone]
Fax: [phone]
Attorney for Plaintiff Gary Gonsalves

12
13
14
15
16
17
18
19

MARC S. HINES (SBN 140065)
[e-mail]
CHRISTINE M. EMANUELSON (SBN 221269)
[e-mail]
BRIAN PELANDA (SBN 278453)
[e-mail]
HINES CARDER LLP
3090 Bristol Street, Suite 300
Costa Mesa, California 92626
Tel.: [phone]
Fax: [phone]
Attorneys for Defendants
NATIONWIDE MUTUAL INSURANCE COMPANY

20

THE UNITED STATES DISTRICT COURT

21

EASTERN DISTRICT OF CALIFORNIA

22
23

GARY GONSALVES,
Plaintiff,

24
25
26
27

CASE NO. 1:12-CV-01272-MCE-KJN

vs.

STIPULATED PROTECTIVE ORDER

NATIONWIDE MUTUAL INSURANCE
COMPANY,
Defendants.

28

1
STIPULATED PROTECTIVE ORDER

Upon consideration of the parties’ Stipulated Protective Order and for good

1
2

cause shown, the court HEREBY APPROVES the parties’ Stipulated Protective

3

Order, except as modified below and denoted by strikethrough marks and bolded

4

text.

5
6
7

TO THE COURT, ALL PARTIES AND THEIR RESPECTIVE COUNSEL
OF RECORD:
IT IS HEREBY STIPULATED AND AGREED to, by and between the parties

8

to this action, through their respective attorneys of record, HINES CARDER for

9

Defendant, Nationwide Mutual Insurance Company (“NATIONWIDE”), and WAGNER

10

KIRKMAN BLAINE, KLOMPARENS & YOUMANS LLP, and EVANS &

11

MCFARLAND, LLC, for Plaintiff Gary Gonsalves (“Plaintiff”), that certain documents

12

produced in connection with discovery proceedings in this action shall be subject to the

13

following confidentiality agreement (“the Agreement”):

14

1.

The documents that are the subject of this Agreement include proprietary

15

and confidential documents of NATIONWIDE containing trade secret or other

16

confidential research, development or commercial information, and which

17

NATIONWIDE contends are protected by trade secret privileges under Civil Code §

18

3426 et seq. and Federal Rule of Civil Procedure 26 and which NATIONWIDE is

19

producing to Plaintiff pursuant to discovery procedures while the above-referenced action

20

is pending and marked by NATIONWIDE as “CONFIDENTIAL” (“Confidential

21

Documents”). NATIONWIDE may seek leave from the Court at any time to designate

22

documents as “CONFIDENTIAL” that have been inadvertently produced without having

23

been marked as such due to human error, but may only seek the court’s intervention if

24

counsel are unable to resolve issues in connection with such inadvertent production

25

after thoroughly meeting and conferring thereon.

26
27

2.

The Confidential Documents, and all copies or extracted therefrom,

excerpts, summaries, compilations, testimony, conversations, presentations by parties or

28

2
STIPULATED PROTECTIVE ORDER

1

counsel to or in court, or in any other settings that might reveal said information, and

2

information learned from the Confidential Documents, are confidential and proprietary in

3

nature and protected by privacy rights and trade secret laws. It is the intent of the parties

4

to preserve the confidentiality of the Confidential Documents and the information learned

5

from it. The Confidential Documents and the information learned from them are not to

6

be used in any fashion other than for the purposes of this litigation, and are not to be

7

disclosed to any persons or entities except as set forth in the Agreement, and are to be

8

kept confidential to the greatest extent possible, even within the confines of this

9

litigation.

10

3.

In the event NATIONWIDE marks any document or testimony

11

“CONFIDENTIAL” which Plaintiff believes is not protected by any trade secret privilege

12

or is not confidential or proprietary in nature, the parties shall within thirty (30) days of

13

Plaintiff’s request, meet and confer in good faith regarding removal of the

14

“CONFIDENTIAL” designation. In the event the parties are unable to reach an

15

agreement regarding designation of the documents as Confidential Documents subject to

16

this Agreement or designation of testimony as subject to the restrictions of this

17

Agreement, Plaintiff shall move the Court for an order de-designating the subject

18

documents as “CONFIDENTIAL,” and nothing within this Agreement or corresponding

19

order shall preclude Plaintiff from making such motion. The burden of persuasion of any

20

challenge proceeding shall be on the designating party. The parties agree to continue to

21

afford the material confidential protection until the Court rules on any such motion.

22

4.

The parties agree that, as to the Confidential Documents described

23

herein, NATIONWIDE need not file a motion for protective order pursuant to Federal

24

Rules of Civil Procedure 26.

25

5.

Immediately following the conclusion of this litigation, either by

26

settlement, judgment, dismissal or otherwise, counsel for the party or parties to which

27

Confidential Documents were produced shall destroy the Confidential Documents,

28

3
STIPULATED PROTECTIVE ORDER

1

including any copies made of the Confidential Documents and including any extracts

2

and/or summaries of the Confidential Documents containing information taken from the

3

Confidential Documents. Each party shall provide written notice to the other side that

4

the Confidential Documents have been destroyed or, in the alternative, return the

5

Confidential Documents to the other side with a cover letter confirming all Confidential

6

Documents have been returned. The parties and Counsel for the parties shall not discuss

7

the Confidential Documents or information gleaned from the Confidential Documents at

8

all with any person or party at any time after conclusion of the litigation, other than with

9

their respective counsel and clients in the above-captioned action, counsel for Plaintiff,

10
11

counsel for NATIONWIDE, and the Court under seal.
6.

The Confidential Documents shall be disclosed only to:

12

a.

The Court and its officers in accordance with Paragraph 8 herein;

13

b.

Counsel of Record for the parties and the staff assigned to assist Counsel

14

of Record in this matter;

15
16

c.

Any experts or consultants retained by any of the Parties; provided such

expert or consultant complies with Paragraph 7 herein;

17

d.

Witnesses during depositions in accordance with Paragraph 9 herein;

18

e.

Persons recording testimony involving such Confidential information,

19

including Court reporters, stenographers and audio and/or video technicians, and clerical

20

staff employed by any of the foregoing;

21

f. Mediators who may be authorized by the parties to mediate the case; and

22

g.

23
24

Such other persons as hereafter may be designated by written stipulation

of the parties, or by the Order of the Court.
To “disclose” the Confidential Documents means to provide the Confidential

25

Documents, or any one of them, to provide any documents which discuss the

26

Confidential Documents, or to discuss or refer to any of the contents of the Confidential

27

Documents.

28

4
STIPULATED PROTECTIVE ORDER

1

7.

The Confidential Documents may be disclosed to an expert or consultant

2

under Paragraph 6 of the Agreement only upon the expert or consultant signing Exhibit 1

3

to the Agreement. Said expert or consultant witnesses shall not disclose the Confidential

4

Documents to any person or entity other than staff and/or colleagues employed by the

5

expert or consultant’s firm who assist them with their assignment. Said expert or

6

consultant shall either (A) return the Confidential Documents and all copies thereof,

7

including extracts and/or summaries of the Confidential Documents containing

8

information taken from the Confidential Documents, to the party’s respective counsel at

9

the conclusion of the litigation, or (B) destroy the Confidential Documents and all copies

10

thereof, including extracts and/or summaries of the Confidential Documents containing

11

information taken from Confidential Documents at the conclusion of the litigation. The

12

original of such signed Exhibit 1 shall be retained by counsel for each party who intends

13

to or does provide such expert or consultant any such Confidential Documents, until the

14

conclusion of the above-captioned action, including any appeals. If requested to do so by

15

counsel for any party, counsel shall provide a copy of such declarations to counsel

16

making the request, unless such disclosure would provide information not otherwise

17

subject to discovery (e.g., identification of non-testifying consultant experts or retained

18

experts prior to expert disclosure date or identification of potential witnesses in violation

19

of work product protection or any privilege). The parties agree not to use these

20

declarations for any purpose other than monitoring and enforcing compliance with this

21

Order. The parties further agree to treat the declarations as confidential.

22

8.

The Confidential Documents, and any documents or testimony disclosing

23

its contents, shall be treated as confidential. Without written permission from

24

NATIONWIDE’s counsel, or a court order secured after appropriate notice to all

25

interested parties, Plaintiff may not file in the public record in this action any

26

Confidential Documents. Any party that wishes to file under seal any Confidential

27
28

5
STIPULATED PROTECTIVE ORDER

1

Documents in connection with a motion, trial or appeal in this action, must comply with

2

Local Rule 141.

3

9.

During any deposition in which any of the Confidential Documents or

4

confidential material subject to this Agreement are offered as an exhibit, or a witness is

5

questioned about the specific contents of same, whether or not offered as an exhibit, all

6

persons present at the deposition shall agree to observe the confidentiality of the

7

Confidential Documents, the material and the terms of the Agreement. Said agreement

8

shall be placed on the record at the deposition, and the Agreement shall be made an

9

exhibit to the deposition. No witness shall be permitted to take any of the Confidential

10

Documents, or any copies of same, from the deposition, nor shall they be permitted to

11

retain any of the Confidential Documents, nor shall they be permitted to disclose any of

12

the Confidential Documents. Within thirty (30) days of receipt of the original or a

13

certified copy of the deposition transcript, if NATIONWIDE contends testimony

14

pertaining to any document marked “CONFIDENTIAL” is subject to this Agreement,

15

counsel for NATIONWIDE shall provide written notice to counsel for Plaintiff of the

16

page and line numbers so designated. If a document designated as “CONFIDENTIAL” is

17

used as an exhibit at a deposition, that document and the deposition testimony concerning

18

it shall be deemed “CONFIDENTIAL” matter regardless of whether a party makes any

19

formal designation thereof in connection with the deposition. If any portion of a

20

deposition transcript is designated and/or deemed a “CONFIDENTIAL” matter,

21

including exhibits, any production or lodging of the transcript in its entirety shall be

22

produced and/or lodged under seal after the grant of an appropriate motion to seal,

23

pursuant to Local Rule 141 and Paragraph 8, above.

24

10.

The parties reserve the right to seek an order from the Court, on noticed

25

motion, to modify or change this Agreement, including the right to have documents

26

designated as confidential deemed not confidential. This Agreement and the Confidential

27
28

6
STIPULATED PROTECTIVE ORDER

1

Documents governed hereby can only be deemed not confidential by an order of the

2

Court upon motion or by stipulation.

3

11.

Notwithstanding the termination of this action by settlement, judgment,

4

dismissal or otherwise, the United States District Court for the Eastern District of

5

California shall retain jurisdiction to enforce the Agreement. Once the Clerk of Court

6

has closed this action, the court will not, unless otherwise ordered, retain

7

jurisdiction over enforcement of the terms of this Stipulated Protective Order. See

8

E.D. Cal. L.R. 141.1(f).

9
10
11
12
13

IT IS SO STIPULATED.

14

Dated: April 30, 2013

EVANS & MCFARLAND, LLC

15
16
17

By:

18
19

/s/ M. Gabriel McFarland
M. Gabriel McFarland
Attorney for Plaintiff
GARY GONSALVES

20
21

Dated: April 30, 2013

WAGNER KIRKMAN BLAINE
KLOMPARENS & YOUMANS LLP

22
23
24
25
26
27

By:

/s/ Eric R. Garner
Carl P. Blaine
Eric R. Garner
Attorney for Plaintiff
GARY GONSALVES

28

7
STIPULATED PROTECTIVE ORDER

1
2

Dated: April 30, 2013

HINES CARDER

3
4
5

By:

6
7
8
9

/s/ Brian Pelanda
Marc S. Hines
Michelle L. Carder
Brian Pelanda
Attorneys for Defendant
NATIONWIDE MUTUAL INSURANCE
COMPANY

10
11
12
13
14

ATTESTATION OF CONCURRENCE IN FILING
I hereby attest and certify that on April 30, 2013, I received concurrence from

15

Plaintiff’s counsel, M. Gabriel McFarland and Eric R. Garner, to file this document with

16

their electronic signatures attached.

17
18
19
20

I certify under penalty of perjury under the laws of the United States of America
that the foregoing is true and correct. Executed on April 30, 2013.
/s/ Brian Pelanda
Brian Pelanda

21
22
23
24
25
26
27
28

8
STIPULATED PROTECTIVE ORDER

1
2

EXHIBIT 1

3
4

I, ________________________________________, declare:

5

1.

I hereby acknowledge that I have read the Stipulated Protective Order

6

regarding the Confidential Documents (hereinafter “Order”) in the case of Gary

7

Gonsalves v. Nationwide Mutual Insurance Company, U.S. District Court for the Eastern

8

District of California, Case No. 1:12-CV-01272-MCE-KJN (the “Lawsuit”) and I

9

understand the terms of the Order and agree to abide by and be bound by the terms of the

10
11
12
13

Order.
2.

I further acknowledge that I understand that the Confidential Documents

may not be disclosed to anyone, except as authorized by this Order.
3.

I further acknowledge that the Confidential Documents may not be used for

14

any purpose other than as required for my work in the Lawsuit. I further understand and

15

acknowledge that any dissemination or use of such Confidential Documents or

16

information in a manner inconsistent with the Order may subject me to contempt

17

proceedings.

18
19
20

4.

I hereby consent to the jurisdiction of said Court for purposes of enforcing

this Order.
5.

Upon final dissolution of the Lawsuit, I shall either (A) return all copies of

21

the Confidential Documents to the attorney, entity or person that retained me or my firm

22

in the Lawsuit, or that provided me with the Confidential Documents, or (B) destroy all

23

copies of those Confidential Documents in my possession, custody or control.

24
25

I declare under penalty of perjury under the laws of the State of California that the
foregoing is true and correct.

26
27

Dated: _________________

By: ____________________________

28

9
STIPULATED PROTECTIVE ORDER

1
2
3

ORDER
4
5

Based on the parties’ above Stipulation, and good cause appearing, the court
HEREBY APPROVES the parties’ Stipulated Protective Order, except as modified

6

above and denoted by strikethrough marks and bolded text.
7

Accordingly, IT IS HEREBY ORDERED that: the Stipulated Protective Order, the
8

terms of which are set forth above, be in force as a Protective Order of this Court, and
9

that the parties, person, and entities to whom the Confidential Documents, information
10

and materials, as defined in the Stipulated Protective Order, be released shall be subject
11

to and bound by the terms and conditions of the Stipulated Protective Order.
12

IT IS SO ORDERED
13

Date: 5/1/2013
14
15
16

_____________________________________
KENDALL J. NEWMAN
UNITED STATES MAGISTRATE JUDGE

17
18
19
20
21
22
23
24
25
26
27
28

10
STIPULATED PROTECTIVE ORDER